474 HARVARD LAW REVIEW. hold and the husband is allowed to recover damages for their loss. Street Ry. Co, v. Twi?iame, 121 Ind. 375. When she receives regular wages from her husband, even though she could not enforce payment of them, they are hers when they are paid, the presumption is that they would have continued, and consequently, as hers is the loss, it would seem that she should be allowed to recover damages there- for. But the contrary has been held. Blaechinska v. Howard Mission,, GN^., 130 N. Y. 497. After all, the general rule of law seems clear, and the only questions are practical ones for the jury. What damage has the wife suffered from the impairment of her capacity to carry on a separate employment? What damage has the husband suffered from the loss of her services in the household? It may be difficult at times to answer these questions satisfactorily. It is no easy matter to determine in every case just what constitutes a separate employment. (See the dissenting opinion of Lott, Ch. C, in Brooks v. Schwerin, supra.) And the position of the judge whose duty it is to instruct the jury in such a manner that they will care- fully discriminate between the two elements of damage may well be no sinecure. But these are the every-day inconveniences necessarily inci- dent to the law as a working system. Can a Murderer Acquire a Title by his Crime? — In Riggs v. Palmer, 115 N. Y. 506 (1889), the New York Court of Appeals passed upon the validity of a devise to a defendant who had murdered his testator to prevent a revocation of the will. The action was brought to have the devise cancelled and annulled. The court decreed "that the devise and bequest in the will to Elmer [Palmer, the defendant] be declared inef- fective to pass the title to him ; that by reason of the crime of murder committed upon the grandfather he is deprived of any interest in the estate left by him." In 4 Harvard Law Review, 394, and 8 Harvard Law Review, 170, it was suggested that a more satisfactory way of reach- the desirable result of this decision was to allow the devisee to take the legal title under the will, but to compel him to hold the property as constructive trustee for the heirs at law of the testator; thus avoiding the violence done to the plain letter of the Statute of Wills by read- ing into it a revocation clause. In Ellerson v. Westcott, 42 N. E. Rep. 540 (N. Y.), an heir at law of the testator sued directly for a partition of lands devised to the de- fendant, who was alleged to have murdered her devisor. The court refused to entertain this form of action, and said that the plaintiff's only remedy was in equity to deprive the devisee of the benefit of her crime. While not expressly overruling Riggs v. Palmer, the court sharply distinguishes it from the present case in point of procedure. The follow- ing sentences are quoted from the opinion at page 542 : "The devise took effect on the death of the testator, and transferred the legal title and right given her by the will. The relief which may be obtained against her is equitable and injunctive. The court in a proper action will, by forbidding the .enforcement of a legal right, prevent her from enjoying the fruits of her iniquity. It will not and cannot set aside the will. That is valid, but it will act upon facts arising subsequent to its execution, and deprive her of the use of the property." From this, the New York court seems to have abandoned a position difficult to defend
