NOTES. 475 in theory, and to have adopted substantially the view that a devisee by his own crime may acquire the legal, but not the beneficial, interest in the property devised. In I)eem v. MiUikm^ 6 Ohio Cir. Ct. R. 357, a mortgagee for value without notice from a son who had murdered his mother was properly allowed to retain realty that came to the murderer by descent from his mother. This of course is in accordance with the rule that a bona fide purchaser may acquire trust property free from the trust. It is to be regretted that Pennsylvania has gone to the other extreme and holds (following Shelle7iberger v. -Ransom^ 59 N. VV. Rep. 935 (Neb.), noted in 8 Harvard Law Review, 170) that a son who murders his father may take both legal and beneficial interest by the local statute of descent. /;/ re Carpenter's Estate^ 32 All. Rep. 637 (criticised in 30 Am. Law Rev. 130). Ltabiliit of Municipal Corporation for Defective Water-works. — In Springfield Fire 6^ Marine Insurance Co. v. Village of Keeseville^ 42 N. E. Rep. 405, the New York Court of Appeals recently held that a municipality which maintained a public system of water-works, under a power conferred by the State, was not liable for the loss of property by fire caused by the defective condition of the water-works. The case raises the old question of the liability of a municipal corpora- tion to private action for failure in the performance of a duty, and in the opinion of the court the general grounds upon which this (juestion has always been decided are well set forth. The powers conferred upon municipal corporations by the State are of two sorts, which may be briefly characterized as public and private. The former are the legislative and governmental powers intrusted to the municipality as one of the political divisions of the State. The latter are those conferred for the private benefit of the municipality, which are exercised by it in its private capa- city, and with which the State itself is unconcerned. Whether or not, apart from statute, a city is liable to private action for failure in the per- formance of a public duty specifically enjoined, is a disputed question, though probably it would generally be answered in the affirmative. It is perfectly well settled, however, that for neglect in the exercise of public, discretionary powers, a municipality is no more liable in tort than the State itself would be, while for neglect in the exercise of any private power, it incurs the same liability as a private corporation. Maxmilian v. May or ^ ^c. of New York., 62 N. Y. 160; Eastman v. Meredith^ 36 N. H. 284; Dillon on Municipal Corporations, §§ 965 a, 980; Goodnow on Municipal Home Rule, ch. vii. The difficulty arises in determining to which class any particular power belongs. Is a city which establishes and maintains a system of water- works by permission of the Slate exercising a governmental function, or is it merely performing the work of a private corporation? The argument from analogy leads to but one conclusion. The cases where the city is liable to an action of tort for failure to perform a duty voluntarily assumed are limited strictly to those where the duty is incurred in the performance of such a purely business undertaking as the management of docks and wharves at a profit. Mayor, 6^r. of Lyme Regis v. Henley^ 3 B. & Ad. 77 ; Pittsburgh City v. Grier, 22 Pa. St, 54. Where the duty is undertaken for the public good, the city is not liable. It is accordingly held every- where that the power to establish a fire department is governmental, and
