414 HAR VARD LA W RE VIE W. should happen should go over to the other members of the class upon the same trusts as the other shares were held upon. A dies without ever having had a child. Held, that the gift over was too remote, and could not take effect. It cannot be split into gifts upon two contingencies, one of which is the death of A without leaving issue. The case of Evers v. Challis (7 H. L. C. 531) is confined to the case where an executory devise over can be split into two gifts, one of which is a remainder. In re Bence [ 1 89 1 ] 3 Ch. Div. 242. Real Property — Quasi Easement to Freedom from Noise — Proceed- ings in Equity. — Where plaintiff, an abutting owner, brings a bill in equity against defendant, an elevated railroad company, as a result of which proceed- ings defendant is ordered to pay a lump sum in condemnation of plaintiff's ease- ments, held, by four judges, three dissenting, that the element of damage by noise cannot be admitted. Kane v. R.R. Co. 125 ^N. Y. 164, distinguished. The Court say that where plaintiff sues for a past wrongful interference with his rights, he can recover for all incidental damage, of which noise is a part; but, as no such thing exists as a quasi easement or absolute right to freedom from noise, and as the "fee damages" awarded by equity are by way of condem- nation and purchase, and not by way of damages for a tort, plaintiff cannot receive payment for something which he does not possess and cannot sell. American Bank Note Co. v. NY. El. R.R. Co., 29 N. E. Rep. 305 (N. Y.). Real Property — Waste — Custom. — The cutting of timber by a life- tenant in accordance with the modern method of cultivating timber estates is not waste. Evidence of modern usage in that respect is admissible in determin- ing what is waste; and it is not necessary that the usage or custom should be immemorial. Dashwood v. Maginac, [1891] 3 Ch. Div. 306. Statute — Widow's Allowance — Construction of " Necessaries." — Under a statute which exempts from liability for the debts of the deceased such parts of his personal estate as the Probate Court, "having regard to all the cir- cumstances of the case, may allow to the widow, for herself and for his family under her care," A received $5,000. It appeared that A had $1,200 a year in her own right; that she expected to live, free of charge, with her father; and that she had no children. Her husband's estate was insolvent. Held, upon appeal by the creditors, that the allowance should be reduced to $500, as the statute con- templated nothing more than the satisfaction of actual temporary wants. Morton and Allen, JJ., dissented, on the ground that the social position and habitual style of living of the petitioner ought to be taken into account, and also because it was contrary to the received practice to interfere with the discretion of the Probate Court. Dale v. Hanover Nat. Bank, 29 N. E. Rep. 271 (Mass.). Suretyship — Discharge of Surety — Concealment by Principal when not to Surety's Prejudice. — B bought a traction engine of plaintiff, and gave in payment for it three notes, maturing at intervals of a year. On the second of these notes he secured the indorsement of defendant as surety. He also gave plaintiff, unknown to defendant, a mortgage, providing, among other things, that on default of any one of the notes all should become due. Held, that the mortgage did not operate as a change of the contract, to discharge the surety; nor was failure to notify her thereof the suppression of a material fact amounting to fraud. Springfield Engine & Thresher Co. v. Park, 29 N. E. Rep. 444 (Ind.). Suretyship — Guaranty of Note — Exhausting Securities. — A assigns a note secured by mortgage, and as part of the same transaction assigns the mort- gage and guarantees the payment of the note. Held, A is not liable on the guaranty until resort has been had to the mortgage security. A's contract is to pay the debt if, by due diligence, it cannot be collected from the debtor or out of the mortgage security. Dewey v. JV. B. Clark Inv. Co., 50 N. W. Rep. 1032 (Minn.). Tort — Action of Wife for Enticement of Husband. — Under an Indiana statute which gives to married women the right to sue alone for injuries to their persons and property, held, that a wife can maintain an action in her own name against one who wrongfully entices her husband from her, and thereby deprives her of his consortium and support. Haynes v. Nowlin, 29 N. E. Rep. 389 (Ind.). This doctrine is of very recent growth; the earliest case in accord decided in a court of last resort in this country being Westlake v. Westlake, 34 O. St. 691 (1878). According to the most recent survey of the authorities (26 Am. Law Rev. No. 1), Ohio, Connecticut, New York, New Hampshire, and the U. S. Circuit Court in Illinois allow the action; England {Lynch v. Knight, 9 H. L.
