administratrix, though a will was afterwards discovered which did not appoint executors. That learned Judge referred to the old case of Abram v. Cunningham (2 Lev. 182), decided in the reign of Charles II., and said "The report, like many reports of that time, has a short note of the judg ment not containing any reasons. But the argument is given at some length, and in it reliance was placed chiefly on the fact that the concealed will had appointed executors, who therefore had a right of property vested in them before probate, and this, I gather, was the ground of the decision. No stress seems to have been laid upon the fraud committed in concealing the will; and, indeed, where the question was whether a third person should suffer who had acquired the property in good faith from an administrator apparently duly constituted, it would not be reasonable to visit him with the consequences of a concealment to which he was no party."

Although, where the will appoints executors, the grant of administration is spoken of as wholly void, certain acts of the administrator are protected. "It would seem, however, that, as between the rightful representative and a person to whom the executor or administrator, under a void probate or grant of letters, has aliened the effects of the deceased, the act of alienation, if done in the due course of administration, shail not be void. Thus in the case of Graysbrook v. Fox" (Plowd. 275, Temp. Eliz.), “it was laid down by the Court, that if the sale had been made to discharge funeral expenses or debts, which the executor or administrator was compellable to pay, the sale would have been indefeasible for ever:" (Williams on Executors, 10th ed., p. 462). This is reasonable, as, since the executor would have been obliged to pay the funeral and testamentary expenses and debts of the deceased, he must be taken to have adopted the acts of the administrator in paying them. There are also certain provisions of the Probate Act 1857 to be considered. Sec. 77 provides for all payments bonâ fide made to any executor or administrator under a revoked probate or administration, before revocation, being lawful discharges, and for all payments made by such executor or administrator" which the person to whom probate or administration shall be afterwards granted might have lawfully made" being good. Sec. 78 enacts that "all persons and corporations making or permitting to be made any payment or transfer bonâ fide upon any probate or letters of administration granted in respect

of the estate of any deceased person under the authority of this Act shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of such probate or letters of administration. ̈` If it were not for some such provisions, no one could safely pay a debt due to the testator's estate to an administrator or executor, as the testator's will or a later'one might at ny time be discovered and proved, and the debt might have been paid to the wrong person.

In The Goods of J. Wright (68 L. T. Rep. 25; (1893), p. 21), an application was made to the Probate Division for a grant of administration until a will was found. The widow of the deceased had stated that he had made a will, but that it had been accidentally destroyed. It was believed that the widow was not in England. Mr. Justice Gorell Barnes (as he then was) said that a grant ad colligenda would not be sufficient, as there did not seem to be much chance of the will turning up, and a grant of administration was made until the original will or an authentic copy thereof should be brought into the registry, limited to dealing with and completing the sale of certain leasehold houses and giving a discharge for the purchase money thereof. Probably the alleged will in that case was never discovered. Otherwise. there might have been a question whether the purchasers got a good title from the limited administrator. If the proceeds of sale were employed in due course of administration, they presumably would, and the order of the Court expressly referring to the sale might in any case have protected them.

In Hewson v. Shelley it was argued that as under the Land Transfer Act 1897 an administrator can sell realty for the payment of debts, &c., and it is not the practice for purchasers to inquire if there are debts, &c., in existence, the purchaser was protected, seeing that the proceeds might have been employed in the due course of administration. The learned Judge, however, brushed these arguments aside. as well as those which dealt with the possible sale for the purpose of raising money owing to the widow for estate duty or an improvement charge paid by her, on the ground that as a matter of fact the land was not sold for any such purposes.

The sale in question, though in form by the administratrix, was in reality by the widow and co-heiresses, who had consented to the sale of the land which they supposed was

theirs. His Lordship, though fully sensible of the hardship on the purchaser, had no alternative but to give judgment. for recovery of the premises by the executors and for an account of rents and profits since the widow's death. The fund set apart to meet the dower was with the consent of the plaintiffs ordered to be paid to the purchaser in exchange for the title deeds.

It is difficult to see how, at any rate, a Judge of first instance, in the present state of the authorities, could come to any other conclusion, but the question which will now trouble conveyancers is: Can they safely accept titles from legal personal representatives or from persons who claim through recent purchasers from them? A will, or a later will, or even a codicil may afterwards turn up, and if it appoints executors or fresh executors the title may be bad. Yet, if they refuse to complete, the Court may, and preumably would, decree specific performance. Possibly a practice may grow up of purchasers requiring personal representatives to show that they are selling for payment of debts, &c., or of purchasers insuring at Lloyd's against the risk of such sales being set aside. Possibly, the Legislature, in its wisdom, may intervene and, in effect, guarantee the sale by executors or administrators if made before the probate is or letters are revoked. It is, of course, hard on the devisee if the property to which he is entitled under the will or codicil does not come to him, as it has been sold by the administrator or wrong executor, but then he is merely a volunteer, an object of the testator's bounty, while the purchaser has actually paid good money for it and is so much the poorer. Both are innocent parties, but the purchaser is the more entitled to our sympathy.

THE ANNOTATOR'S PROBLEM.

BY GEORGE H. PARMELE.

[ED NOTE. This is the third of a noteworthy series of articles by different authors on the evolution of the modern law book and its changing forms and methods to meet the problems of the prac titioner. The first article appeared in the July Case and Comment.]

The lawyer preparing a brief, or the Judge writing an opinion, deals with a definite question, limited and defined by the facts of the individual case before him. He need concern himself only with those difficulties and complexities of the subject which are presented by those facts.

The annotator has a much broader field. He has to deal with a wide range of facts, embracing, so far as they are essential, vital, and of differentiating value, the facts of all the adjudicated cases that fall within the scope of his note. and to anticipate, so far as he may, new combinations of facts and circumstances that may arise in the user's practice.

Modern annotation, at least as prepared for selected cases, is not primarily academic, but practical. It should. indeed, comprehend a logical and lucid statement of the broad, underlying principles of law governing the subject treated. In this respect it will serve the needs of the student as well as those of the lawyer. It should not, however, be primarily or chiefly elementary. The treatment must, of course, be as simple and clear as is consistent with the complications and complexities of the subject; but difficulties and refinements inherent in the cases should not, out of tenderness for the superficial reader, be ignored or glossed over in order to present a result that may be quickly and easily grasped.

The mere grouping or massing of cases under broad statements of principles and rules, with but a bare suggestion of specific applications, contradictions, limitations, and distinctions, is easily accomplished, and sometimes not unattractive to the merely academic reader, but will prove but a feeble aid to the lawyer having a practical question to argue, or to the Judge having such a question to decide.

The proper preparation of a note requires a minute and careful examination of each of the cases cited therein, and generally of many cases which, upon a close examination, are found not to be in point, and are consequently discarded.

The annotator must discriminate between the facts of the case which are merely accidental or incidental, and those which are essential and vital; he must know not only the result reached in the case, but also the grounds of the decision and the principle to which it is referred. The collation of cases with reference merely to final results, and without careful examination of the principles and grounds of decision, is fraught with exceeding danger to the user. It frequently leads to the indiscriminate intermingling, in support of a proposition, of cases that do support it with those that lend no support whatever to it, or are even directly opposed to it. Illustrations are legion. A convenient one is afforded by the question whether the declarations of a by-stander who had otherwise no part in the transaction are ever admissible as res gesta. In some treatises cases sustaining the negative of that proposition are mingled indiscriminately with cases that merely excluded the declarations of the by-stander because they did not in other respects meet the requirements of the rule as to res gesta.

Not only must the annotator indicate the specific applications of general principles, distinctions, limitations, and exceptions as they are affirmatively and expressly presented in the individual cases examined, but he must also, from his comparative study, preserve those which are implicit and appear negatively only. For example, having observed a certain distinction expressly made by one or more of the cases, or such a distinction having occurred to him independently, he must not only trace it through the cases which expressly adopt it or reject it, but he must examine with refrence to it all the cases that fall within the scope of his note, to ascertain whether upon the facts involved they may or may not be reconciled with it. At that point may be noted the great advantage the annotator, from his comparative study of the cases, enjoys over the digester, who deals with each case as a unit and without reference to other cases on the same subject. The annotator comes to a case with the knowledge, perhaps, that other cases have ingrafted certain limitations or distinctions upon the general principle which the opinion in the case in question appears to sustain in its broadest and most unqualified form. Examining the facts of the case in the light of his study of the other cases, he often finds that the Court was only called upon to sustain the principle in its limited and qualified form, and that,