Page:Harvard Law Review Volume 2.djvu/202

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184 HARVARD LAW REVIEW.

and the logical inference to be drawn therefrom. [See Chamber- layne's Ed. of Best on Evidence, p. 298, note, i A (b).] The temp- tation for judges to give these presumed meanings, when brought in conflict with other evidence, far greater evidentiary force than that to which they are entitled from their intrinsic probability, is a danger which needs to be guarded against A modification of this general statement is, of course, necessary for those "rules of construction," as, for example, the rule that a gift to testator's children means to his legitimate children only, which, resting not only upon the basis of in- herent probability, but also upon special motives of policy, cannot be weighed in evidence, are held to be strong presumptions^ and are pre- sumed to be true until enough conflicting evidence is introduced, clearly to establish that they are not true.

As indications of the general tendency of modem law, in other matters than the construction of instruments, either to destroy entirely these rebuttable presumptions for the ascertaining of the intention of the parties, or to attach to them less evidentiary force, may be mentioned the fate of the old doctrine as to the presumption of part- nership arising from a participation in profits, already referred to in a preceding note. In England, participation in profits now seems to raise no presumption of partnership whatever:^ in the United States the amount of evidence necessary to overthrow it has been much dimin- ished. So, too, may be instanced the growing discredit which has fallen upon the doctrine that in sales of personal property the fact that the price of the goods, otherwise in a deliverable condition, remains to be fixed by weighing, measuring, or numbering, establishes a pre- sumption that the title does not pass until the act of weighing, meas- uring, or numbering be performed. This has fallen from an almost irrebuttable presumption, to be regarded either as establishing no presumption at all, or else a presumption which can be overthrown by slight evidence of contrary intention.*

The case of Dorr v. Lover ing, 19 N. E. Rep. 224, decided by the Supreme Court of Massachusetts on Oct. 2 2d, is an important decision, overruling Lover ing v. Lover ing^ 129 Mass. 97, and bringing the Massachusetts courts again in line with the proposition : " that when, on a gift to a class, the number of shares is definitely fixed within the time required by the Rule against Perpetuities, the question of remote- ness is to be considered with reference to each share separately." Gray on Perpetuities, p. 263.

We make the following extracts fh)m the opinion, which was de- livered by Morton, C. J. The itahcs are ours.

"The thirteenth article of the will of Joseph Lovering devises certain real estate to trustees upon the following trusts: to pay the net rents and profits to Nancy Gay, a daughter of the testator, during her life ; and upon the decease of said Nancy to pay the net income to her chil- dren during the lives of said children ; . . . and ' as said Nancy's children shall successively decease, a proportion of said estate or the

1 Cox V. Hickman, 8 H. L. Cas. a68; 8. c. Ames* Gas. Partnership, ^7; Mollwo, Marsh &Co.-p. Court of Wards, 4 Pr. Coon. App. 419; 8. c. Ames* Gas. Part. 79; Badeley 9. Consolidated Bank, 38Ch.D.38.

  • Logan v. LeMesurier, 6Moore Pr. Coun.Gas. 116; s.c. Langdell*s Set. Gas. Sales, p.66i; Tar-

ley V. Bates, a H. &G.aoo: s.c. Langd. Gas. Sales, 69a; Martineau 9. Kitching, L. R.7H: B. 436, at 449; Terry v. Wheeler, a? N. Y. sao ; s. c. Lang d. Gas. Sales, 706; Gnat v. Oite, 51 N. V. 431 -Bur. rows V, Whittaker, 71 N. Y. agi.