against the policy of the law, expressed in the statutes, to permit men to legally get together and agree with each other that, upon their death, their wives and children shall receive no portion of the estate which they spent their lives in accumulating. It is a clear fraud on the marital rights of the wife. Many a wife has been a faithful helper in the building of great fortunes. Many a wife, by economy and selfdenial, has been a strong factor in the building. Yet we are asked to say that this wife, who has done faithful service and practiced self-denial for 36 years that something might be left for declining years, must be left penniless." This appeal by the Court touches our sympathy but has no place in a serious consideration of the legal rights created by the contract herein involved. Here there was no property of the husband sought to be conveyed for the purpose of defeating the wife's interest. The contract referred to property to be acquired as a result of the labors of four men who agree with each other as to the interest each should have in the property thus to be accu mulated in the future. We know of no rule of public policy which restricts contracting parties from defining their interests to property which may or may not come into existence in the future. In some forms of insurance contracts many of the policy holders are by the terms of their mutual contracts entitled to certain additional rights by virtue of the fact of survivorship. These benefits accrue in the nature of increased dividends. In certain forms of tontine policies rights accrue only on the basis of survivorship and at the expense of those who die before a certain time. The fact that survivorship is no longer re garded as an incident of joint tenancy does not make invalid contracts definitely, providing that future rights of the contracting parties shall be based on the fact of survivorship. In 17 Am. & Eng. Ency. of Law, p. 650, it is said: "Although the right of survivorship as an incident to joint tenancies be abolished by statute, it may nevertheless be given by will or deed, either expressly or by necessary implication. Nor does such a statute prohibit contracts making the rights of the parties dependent upon survivorship." See also Taylor v. Smith, 116 N. Car. 531; Pritchard v. Walker, 22 Ill., App. 286; Jones v. Cable, 114 Pa. St. 586. The real objection to this contract which the Court might have pressed with more vigor than it did, was that it amounted to a testamentary disposition of property by deed inter vivos. But even if this contract were construed as a testamentary disposition of the property of plaintiff's husband, it would not for that reason necessarily have been invalid for such a contract, in equity, if made for a valuable consideration fully performed on the part of the other contracting party is valid. Take the familiar case of an agreement to devise all one's property to one who agrees to take care of the deceased during his last illness. Such a contract if performed on the part of the one agreeing to render the services will be enforced in equity and a will made in pursuance of such a contract is "irrevocable," according to Mr. Schouler. Schouler on Wills (5th Ed.) Vol. 1, Secs. 452, 453, citing many cases. So, even regarding this contract as being in the nature of a testamentary disposition, there can be no objection to an agreement providing that after one's death his property shall belong to the other contracting party. The property under the contract was the product of the labor of the other contracting parties who may have conceivably entered into it and contributed the labor of a life time only on the theory that they would be entitled to the share of the others. A contract is void as a testamentary disposition only when it is in the nature of a gift, not where it is the consideration for services or property received by the party so disposing of his property after death. But it seems to us that this contract should properly be regarded as a contract defining the interest of the parties in property to be accumulated in the future and we know of no rule of law which prevents parties from defining their respective interests in property thus to be acquired or produced by their joint efforts. In thus defining their interests in such property they may properly provide that their several interests shall be for life with the fee contingently in the survivor. Under the contract in the present case it was specifically provided that none of the parties thereto had any "property rights" in the property "other than that herein specified and defined." It is, therefore, an improper interference with the right of contract for a Court to take the property contributed and accumulated by the other contracting parties and give it to those who have no right to it under the contract and thus deprive the other parties to the contract of the promised reward after they had fully performed the contract on their part. It is in keeping with the superficial character of the Iowa Court's consideration of the problem involved in this case that they should fail to have observed the application of a contrary principle, announced by them just six months before in the case of Stewart v. Todd, 173 N. W. 619. In that case a husband and wife entered into a contract to conduct a business as a partnership in which certain provisions were practically identical with the case at bar. In this contract the parties provided that "all the property accumulated, purchased, and owned by either party to be in the firm name. Both parties to use any money they need, and at the death of either party the one living shall fulfill all contracts, pay all debts, and have all property left or owned by either party, or in the firm name." The contract in the Stewart case was clearly a testamentary disposition, but the Court upheld the contract in favor of the surviving husband as against the wife's will which attempted to devise her share of the property, which was largely real estate, to certain of her relatives. In this case the Court properly ignored the question whether a partnership had been created for the obvious reason, as the Court states, that the rights of the parties do not arise out of the partnership relation but out of the specific provisions of the contract into which they entered, which provided that property to be accumulated by their joint efforts should belong to them as partners while they lived and go to the survivor on the death of either. In answer to the objection that such a contract was an attempt to make mutual wills, the Court said: "It is true that as a testamentary instrument it cannot be enforced, but an agreement to leave property to another, resting upon a consideration, is valid and binding, and will be enforced by the courts." In Carmichael v. Carmichael, 72 Mich. 76, 40 N. W. 173, 1 L. R. A. 596, 16 Am. St. Rep. 528, the same result was reached. In this case the Court held that: "Where husband and wife bind themselves to make a particular disposition of their property by will, and such contract is fully per formed on the part of the husband, and the benefits received and accepted by the wife, equity will prevent the wife from violating her part of the contract in fraud of parties interested, and that, if a conveyance is made by her after the death of her husband in violation of her agreement, the conveyance may be set aside at the suit of the parties for whose benefit the agreement was made. See, also Teske v. Dittberner, 70 Neb. 544, 98 N. W. 57, 113 Am. St. Rep. 802." RESTRICTIONS UPON RESALE OF AN ARTICLE TO PREVENT PRICE CUTTING.There have been many decisions and much argument over the question of the right of a merchant to impose such restrictions upon his vendee as will prevent the latter from selling the article purchased below a price fixed for resale of the article. The subject is also cov ered by the Sherman and Clayton Acts which have been construed as prohibiting restrictions on resale of patented articles. Boston Store v. American Graphaphone Co., 246 U. S. 8, 38 Sup. Ct. Rep. 257. But all contracts prohib iting price cutting are not against public policy and the distinctions to be observed in this respect are made clear by the Vice Chancellor of New Jersey in the recent case of Ingersoll & Bro. v. Hayne & Co., 108 Atl. Rep. 128. The complainant, a manufacturer of cheap watches, asked that the defendant be restrained from re-selling complainant's watches known as "Yankee Watches" for less than $1.35 each. The theory of the suit was not that complainant desired to interfere with the property right of the defendant but that he wished to protect his trade name "Yankee Watch." He offered to permit defendant to purchase the identical watch without the name, "Yankee Watch," and sell it for what. he wished. The Vice Chancellor in sustaining the defendant's bill said: "It is also well recognized that a person has a property interest in his trade-name and good will, and will, even in the absence of statute, be protected against injury to that trade-name and good will. This right has in this state been as above indicated recognized by statute. Since the opinion of the Supreme Court in Standard Oil Co. v. United States, 221 U. S. 1, 31 Sup. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834. Ann. Cas. 1912D, 734, it has been recognized that the Sherman Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. §§ 8820-8823, 88278830) and Clayton Act Oct. 15. 1914, c. 323, 38 Stat. 730, must be construed in the light of reason. To say that Congress intended to prohibit an act which had the effect of stimulating interstate commerce and stimulating competition rather than putting a restraint upon either is, I think, to state an absurdity. The proofs before me demonstrate that, if defendant and others are permitted to pursue their practice of price cutting, the business of complainant will be ruined and thereby the volume of interstate trade be reduced, or a method of distribution will have to be adopted which will greatly increase the price to the consumer, which will necessarily result in reducing the volume of interstate traffic; that in either event competition will be effectively reduced." The Chancellor also called attention to the fact that such a use of the trade-mark of a well known manufacturer is a fraud upon the public. The Court asks why retailers desire to sell a certain trade-marked article at or below cost and answers his own question. "So that retailers," says the Court, "may make use of the trade-name and good will established after extensive advertising, to the extent that the public have associated with the article a standard of value, to fool the public into a belief that because a standard priced article can be sold at a cut price all other goods sold are similarly low priced; in other words, to defraud the public. It is no answer to say that full value is given by the retailer for each article sold. If such be the fact, a person is defrauded if he buys an article at full price for which he has no immediate need because he is induced to believe it a bargain and thereby deprive himself of the use of the purchase price for other purposes for which he might have used it if he did not think he was getting a bargain." The Chancellor seeks to distinguish this case from the cases of Boston Store Co. v. American Graphapahone Co., supra, and Dr. Miles Medical Co. v. Park & Sons and others by showing that in these cases the Supreme Court upheld the right of a purchaser to resell the article bought but did not hold that he had a right to traffic in the manufacturer's trade-mark. The Court said: "In the cases which have gone to the Supreme Court of the United States, there have been involved questions of patent or copyright law not here present. In those cases in which the right to fix a resale price has been under consideration, the prohibition against the resale has been against the resale of the article itself. The name or trade-mark or what not has been so much an integral part of the article as that a resale of the article without reference to the trade-mark or trade-name would be practically impossible. In the case at bar the prohibition is not against the resale of the article, nor is it impracticable to resell the article without reference to the trade-name. Indeed, complain ant offers to manufacture watches similar to those marked with its trade-name without the trade-name. Complainant does not seek to retain any right in the article itself; it merely seeks to restrain the use of its trade-name and good will, except under conditions fixed by it. It may permit the purchaser of the article to use its trade-name and good will under such conditions as it sees fit. It has an interest, in addition to that of mere protection to its trade. name and good will, for it guarantees the article sold, and scrupulously performs its guaranty, maintaining a large and expensive repair department for this purpose. It seems to me that there is a clear distinction between those cases in which the nature of the restraint is such as necessarily to affect the resale of the article itself and the case at bar where the nature of the restraint is not such." WHICH DEFINITION OF "CONCURRENT POWER" WILL THE SUPREME COURT CHOOSE? Four distinct constructions of "Concurrent Power" have been presented to the U. S. Supreme Court in the hearing on the seven liquor cases now pending relating to the 18th Amendment. The life of the 18th Amendment hangs upon a proper construction of these two records. Messrs. Root and Guthrie in claiming that the Federal Prohibition Code cannot be enforced in New Jersey without concurrence by similar state legislation said in their brief: "In other words, the State was not surrendering to the Federal Government any part of the exclusive control then exercised and exercisable by it over its own internal affairs, nor was the Federal Government surrendering any part of its exclusive control over interestate and foreign commerce, but each was retaining an effective voice within its own sphere of action, and this was accomplished by limiting the grant of authority of each, so far as it might affect the rights of the other, to concurrent power of enforcement." Mr. Kelly representing the liquor interests of Massachusetts contended that the Federal Code could not go into operation until three-fourths of the states ratified it by enacting similar legislation. His brief says: "The only method of legislation authorized by the Constitution of the United States by which the power of the several States over intoxicating liquor can be destroyed or surrendered is legislation enacted by the concurrent power of congress and the several States as authorized by Article 5 of the Constitution." Mr. Jackman representing the brewing interests of Milwaukee, claims that the State has supreme power over the liquor traffic within its borders. He said: "Congress and the Respective States are granted concurrent power to enforce the prohibition. The state of Wisconsin, having under the power reserved by and granted to it by the Eighteenth Amendment, enacted legislation to enforce the pro hibition contained in such amendment and not having concurred in the congressional legislation, congress is without power to enforce its legislation as to strictly intra state transaction and override the state enactment." If any of the above definitions are adopted by the court, beer containing 234 per cent alcohol may be sold in the states that do not prohibit it, or fail to concur in the act of Congress which fixes the standard at one-half of one per cent. Concurrent Power as Defined by the Defenders of the 18th Amendment.-The Justice Department of the United States construed "Concurrent Power" in their brief as follows: "There is an express purpose, of course, that Congress shall have power to legislate for the enforcement of the amendment. The only qualification or limitation of the power so conferred is that, instead of being exclusive, it shall be concurrent with a like power in the several States. It is not required that there shall be joint action by Congress and the States, or that the legislation enacted by the one shall be concurred in by the other." * * * It is to be noted that section II does not say that legislation shall be concurrent, but that the concurrent power to legislate shall exist. The concurrent power of the States and Congress to legislate is nothing new. It is respectfully submitted that the validity of the Volstead Act does not depend in any sense upon whether it has been con curred in by the State of New Jersey or not." Mr. Charles E. Hughes, former Justice of the Supreme Court, construed "Concurrent Power" in these words in his brief: "If the intent had been to provide that the traffic should be prohibited, but that the prohibition should not be enforced in any state except by the law of the State, or with the consent of the State, it is difficult to see why the Amendment should have been made. * * * "That this prohibition was established by an amendment to the Federal Constitution sufficiently indicates the intention to make the subject to which the prohibition applies a matter of national concern; and, as the prohibition of the manufacture and sale of intoxicating liquors was thus made a matter of national concern, it is impossible to conclude that it was intended that the Nation was to be denied authority to enforce the prohibition, except with the consent of the States. It is equally impossible to suppose that the authority of the Nation should be overriden, in case of conflict between National and state legislation." Congressman Volstead, Chairman of the Judiciary Committee of the House, gave his opinion in the following words, which was quoted to the Court: "The amendment cannot be enforced by granting the right to do certain things; it must be enforced by forbidding the things forbidden by the amendment. Any act left unpunished by a state, may, nevertheless, be punished by the National Government if such punishment tends to enforce the amendment, and likewise, to accomplish the same purpose, an act left unpunished by the National Government may be punished by the states." Congressman Webb, the author of the 18th Amendment, now United States District Judge, expressed his views as follows: "In other words, if a state, through its law-making body, does not consider it necessary to limit the alcoholic content to onehalf of one per cent, but thinks a two and three-quarter per cent sufficient, then, as a matter of course, any person in such state, who manufactured a beverage containing two and three-quarter per cent alcohol would not and could not be punishable by such state authorities for making such beverage, but such person would be liable to indictment by the federal authorities, because he had violated the federal act which limits the alcoholic content to less than onehalf of one per cent. "Some wet states might not pass laws against the manufacture and sale of liquor at all, but their nonaction would certainly not prevent the prosecution of one of their citizens for violating the Volstead Act based upon the constitutional amendment.” Senator Nelson, Chairman of the Judiciary Committee of the Senate, stated it as follows: "The concurrent legislative power conferred on the states is a power to enforce and not to destroy or nullify the Amendment or any part of it. The States may pass laws to aid in enforcing the Amendment, but they are utterly without legislative power to in any wise nullify or destroy it." Either the state or the United States may go as far in prohibiting the beverage traffic as Section II of the Eighteenth Amendment authorizes, but the failure of either to use all of its power does not prevent the other from doing so. When either unit of government does act within the scope of its authority and prohibits the traffic, the other unit cannot license or legalize the traffic within the territory covered by the authorized prohibition act. If the state attempts to override or set aside the valid laws of the United States by enacting license laws permitting the sale of prohibited beverage liquors, they will be of no avail because the vendor must obey the laws of the United States as well as those of the state. Likewise the Congress cannot license the sale of intoxicating liquors in conflict. with state laws, because there is no authority to license beverage intoxicants. It might prohibit intoxicants of a greater alcoholic content than is found in the laws of ne of the states but this does not prevent the state from enforcing its law. If either the state or the United States should at tempt to license the sale of well recognized intoxicants, such acts would be clearly void as in contravention of the Constitution. Either the state or the United States may prohibit liquors not commonly recognized as intoxicants, because it is necessary to do so to secure the enforcement of the law against the recognized intoxicants. The manufacture, sale, transportation, importation and exportation of the traffic in intoxicating liquors is outlawed by the constitution. All laws which are necessary and appropriate to make this prohibition effective and enforceable are clearly authorized. WAYNE B. WHEELER. Washington, D. C. THE EJUSDEM GENERIS PRINCIPLE OF INTERPRETATION. The recent notable decision by Mr. Justice Sankey to the effect that a proclamation (No. 32) of 1918, enacted under § 43 of the Customs Act of 1876 is illegal, turned essentially on a principle of interpretation of statutes and contracts well known in our law-the ejusdem generis rule. Mr. (now Lord) Justice Scrutton thus explains it: "Where specific words are followed and amplified by the addition of general words, the latter are to be confined in their application to things of the same kind as the preceding specific words." And in further explanation of the principle, he points out that in this connection ejusdem generis does not mean "of the same kind,” but "of the same genus;" in other words, it is used in its strict logical meaning, and not in a popular sense. The question always is, whether a particular thing is within the same genus as the enumerated species; the question is not as is sometimes erroneously supposed, whether a particular thing is of a similar kind or like to the things enumerated. Another point to be noted is that this rule of construction only applies when the whole context and character of the document under consideration show that the general words which follow the specific words are descriptive of one well-marked genus to which these belong as species; otherwise the ordinary rule must obtain that prima facie general words ought to be taken like other words at their face value, and not in any restricted sense. It is only when some indication exists | that the parties to the document intend a restricted meaning that such restriction can be read into it. An analysis of the whole document in order to grasp its general scope, is, therefore, necessary before it can be decided whether or not the rule applies. These observations will tend to a clearer appreciation of the question Mr. Justice |