ePub 版

port or the manner in which it should be pro- | from which assertion he can be estopped by vided, is by such a decree made certain by re

reason of some former misrepresentation of a quiring that the obligation be met by paying

fact. If defendant, on the other hand, is to a certain amount of money, and paying it to the wife. Thereafter the husband's obligation

be held liable as a constructive trustee, he must is measured by the decree, but the fundamental be found to have intentionally misled the tes. obligation continues. The decree is, in fact, a

tatrix in executing the power of her will, and judicial determination of the fact that the obli

such action would then constitute such fraud gation exists, although the parties are separated.”

in the acquisition of the fund as to create a

constructive trust in favor of those defrauded · IS ONE WHO DREW UP A WILL ESTOPPED

of their interest under the will of the tesTO RECEIVE THE BENEFITS OF HIS

tatrix. A mere mistake in the matter of adOWN MISTAKE?—The question whether one

vising the testator in making her will cannot can take advantage of his own mistake is dis

make the defendant responsible as a construccussed in the recent case of Reed v. Hollister,

tive trustee. Moreover, in this case the trust 186 Pac. Rep. 819. In this case it appeared

fund belonged to an entirely different estate that defendant, an attorney, drew up a will for

and was under the control of the Courts of his mother, by which she attempted to exer

another state. Defendant was awarded the cise a power of appointment with respect to a

fund by those properly in control of the fund, fund of $40,000 created by the will of her de

and, it seems to us, that the proceedings in ceased husband. The trustee of the fund refused

this case should have been brought against the to recognize the bequests in the will as a proper

trustee of the fund who had the right to deterexercise of the power and turned the entire

mine, in accordance with the law of the state, fund over to the defendant, to whom it would

where the power was created, whether the have descended, under his father's will, in de

power had been properly exercised and who fault of the exercise of the power of appoint

was entitled to the fund in default of the proper ment by the widow. Under the will, which was

execution of the power. an attempt to exercise the power of appointment, defendant would have received $8,000. The Supreme Court of California held that defendant was estopped to claim such fund and having received it from the trustee under his

THE RECORD OF THE “RAINBOW father's will he was to be regarded as a con DIVISION” IN THE WAR AS structive trustee and required to pay the be

TOLD BY A LAWYER. quests made in the will which he himself drew up. On this point the Court said.

It is very easy to start talking about the "The circumstances attending the execution of the wiil of Philoclea A. Hollister, and the

war, but it is much harder to stop talking fact that both she and the defendant, who pre about it. The fact is that anyone who saw pared the will, understood that the third clause

our men fight over there is so filled with was an execution of the power of appointment, would be sufficient of itself to raise an im admiration for what the American soldier plied or constructive trust against the defen

did that he seizes with eagerness on every dant. Whether the defendant, as legal adviser of his mother, was mistaken in his understand chance to tell the people at home about their ing as to whether said third clause was an

| acts. As Congressman McKinley said, it exercise of the power of appointment, is unimportant, for it would be in the highest degree

was American organization, American inequitable, and not to be countenanced by a brains, that let the men fight at the front. Court of equity, to permit an attorney at law, under whose direction and suggestion a will

You can go farther than that and say it was has been prepared, to himself seize and appro America's immense resources in material priate a part of the estate, which the testator intended, and which the attorney himself in

and men and money that won the war. We tended at the time the will was drawn, to go did win the war. What fighting we did, to another legatee or devisee. It seems that

compared to the three and a half years of under such circumstances the attorney might well be held to be estopped to claim such be the Allies' fighting was very small, but it quest." It seems to us that the Court's decision pro

*[This interesting address by Col. Noble B. ceeds on the wrong theory. There is no estop Judah of the Chicago bar before the Illinois Bar pel in this case, because there was no misrep Association is really classic in its descriptions,

and we find it a pleasure to comply with the resentation of a fact by the defendant. More

suggestion that we give our readers the opporover the defendant is not asserting a right | tunity to enjoy it.-Editor.)

was the final punch. And without any brag- | from Chicago, one from Champaign, the ging, it is fair for the Americans to say | University of Illinois, and one from Danthat the American armies did finally win ville. The machine-gun battalions were the war.

from Pennsylvania, New Jersey and Wis

consin; Engineers from South Carolina I do not know any better way to tell you

and California; ammunition train from about what those men did than to tell you

Kansas; supply train from Texas; field sigthe story of one division, the 42nd, the

nal battalion from Missouri; trench mortar Rainbow Division, not because it was typ

battery from Delaware, and so on, from ical of all American divisions—we thought

twenty-six different states. We were gathit was the best one there—but because it

ered at Camp Mills, and on the 18th of was one of the divisions that entered the

October sailed for France and landed there war early and saw all its phases. The great

on the first of November, 1917. At that number of American divisions that got in

date there were less than 50,000 American in the summer and fall of 1918 saw only the

fighting men in France, the whole of the one phase of the war when it had developed

1st Division, a regular army division, part into open warfare, whereas the First, Sec

of the 2nd regulars and part of the 26th ond and Twenty-sixth and Forty-second,

Division, National Guard from New Engthe early divisions, saw old-fashioned

land—less than 50,000 fighting men on Notrench warfare. They then helped to break

vember 1, 1917. A year later, at the date the Germans in semi-open warfare and then

of the armistice, there were more than two fought them to a finish in open warfare,

million fighting men there and over 750,000 and the Rainbow Division was one of those

fighting in one battle. You can look at all divisions. We speak of a division because

the failures of our government, the ordit is the smallest self-supporting unit of the

nance, the aviation, the extravagances, but army. Roughly, it numbers 25,000 men,

look at the other side of it and the misfour infantry regiments, three artillery reg- |

takes look small. If we had done no more iments, one engineer regiment, three ma

than transport those two million men, it chine-gun battalions, ambulance companies,

would have been an achievement. But we field hospitals, supply trains, and so on, a

drafted them, trained them, transported unit that can fight, has all the auxiliary

them, and when they reached France they weapons, can feed its own men, supply food

were fighting men. and ammunition and take care of its wounded and sick. It moves and acts by itself.

When Gen. Joffre was here in the spring The Rainbow Division was made up of of 1917 he asked the United States to send old National Guard units, the much de- men. They knew we had no trained solspised militia. It was organized on paper diers in the European sense, but they wantin Washington in August and was gath ed to show that American soldiers could be ered together on Long Island ready to sail transported to France; they wanted to boost for France in September, 1917. I do not the allies' morale. They said the training know why they called it the Rainbow, ex could be continued over there. And so, cept that we had units from so many states. when we landed in France they first sent We had organizations from twenty-six dif- us to training camps. The artillery went ferent states. Our infantry was the old to an old Napoleonic camp in Britanny, and 69th New York, an Irish regiment, from the infantry went up closer to the lines near the days of the Civil War, the 4th Ohio, Toul. For three months we were trained 3rd Iowa and the 1st Alabama; the artil for trench warfare under French officers, lery was the 1st Minnesota, 1st Indiana and ) and finally, in February, we were ordered 1st Illinois, later the 149th Field Artillery. into a sector of our own. We were sent In that regiment we had four batteries into the trenches at the edge of the Vosges

Mountains, in Lorraine, a quiet sector as | York wanted prisoners. So they got perit was called. There were a great many mission to send a patrol over into the Gerplaces on the Western front where no big man trenches. Right opposite the New offensive was to be feared, but where con York regiment's sector was a little old destant fighting was going on and where new stroyed village of perhaps two dozen houses. troops could be trained. And we went into We knew there was a small German outa sector of that kind.

post there; the village was right in the wire, Now the trenches were just what the and the plan of our patrol was to go word means, ditches in most places full of in through the wire, get back of the town water; when we went in they were very and come out through it. We could not full; it was winter and snow was still on send a big patrol across No Man's Land. the ground. The trenches are six, seven or There would be too much noise, but we eight feet deep; in front of them a strip of could send a small patrol out. We sent wire, perhaps two or three beds of wire out a lieutenant and seven men of this 69th twenty or thirty feet wide, then No Man's Irish regiment. Lieut. Cassidy was in comLand, then on the other side the German mand, O'Leary was his sergeant and Kerwire and German trenches. We had a front rigan was his corporal. They went out with of about eight miles. At some places we their hands and faces blacked so they could were fifty feet from the German trenches, not be seen in the dark, and armed only at other places six or seven hundred yards; with hand grenades and trench knives. The part of the land was open, part of it was American trench knife was a handy weapon woods; and we proceeded to have some fine for close fighting with a three-cornered experience. We were in for four months. blade and on the hilt indentations like brass The fighting was guerilla and patrol fight- knuckles. They got across No Man's ing, but it let our men get their hands in; Land, which was there about four hundred they found the Germans weren't any bet-yards wide ; they went in, four on each side ter than they were. They met them hand of the town, and they came down through to hand in the trenches and No Man's Land it and then ran into the German outpost and they gained confidence in themselves. of about ten men, a sergeant in command;

When we went in the French had used he was on watch and saw our men come in. the sector as a rest sector. Every night Just as he saw them, Kerrigan and O'Leary they pulled back their outposts. There were jumped him. Kerrigan was an ex-New many French villages right in the trench York policeman and O'Leary had been an systems, of course shot to pieces, destroyed. insane asylum keeper. All they had was But every village in France has houses their trench knives but there wasn't much made of stone and is a natural fort and at left of the German sergeant and they night the French in this sector withdrew brought the rest of his outfit back across into the villages and stood on the defensive. No Man's Land.. The Americans didn't understand that. We The Germans were strong and of course wanted to fight, and the first week we were they came back at us. And we had, in four in the trenches our Alabama regiment ran | months in that sector more than two thouinto a German patrol in our own trenches. sand casualties, but we never lost an unThe Germans had come in expecting the wounded prisoner and no German ever got French were still there and they struck the inside our lines. The thing that astonished Alabama men. Ten Germans came into the the French was the fact that these new, trenches; we killed two and took two un green men and officers could fight, and fight wounded prisoners. That was first blood well and coolly. The first small raid made for us. Right next was our New York reg- by the Germans on our Iowa regiment was iment, and there was rivalry all the time a very severe one at one point in the line. between New York and Alabama and New | They isolated one of our strong points with

a heavy box barrage. In this outpost we been completely successful, and the Gerhad eight men under the command of a ser- | mans were advertising in Germany this geant. Fourteen Germans surrounded the fourth offensive as the Peace Offensive; it post and tried to gobble it up. We had two was going to end the war. The line on the killed and several severely wounded. Of Rheims front ran straight east and west the fourteen Germans that came over, eight from the Argonne Forest to Rheims and to were killed, four were prisoners and two the south around Rheims down to the got back alive. At dawn, in the trenches Marne at Chateau Thierry, where the Gerwe saw those men that had just come mans had been held. About the first of through fighting, fine, big, husky Iowa July the French got word from their agents boys; their breakfast had just come up, and that the big push was coming between here were two of them sitting on the firing Rheims and the Argonne. And on July 5 steps; four feet away from them was one they sent us into line on that front, the dead German with his head blown off and only American division. The signs of atone German so badly wounded he could tack became more imminent every day. The not be moved; the rats were already at the aeroplanes picked up all the signs; troops dead one, and these two big husky farmer moving up from the rear at night; their boys were sitting, eating their breakfast field hospitals being moved up, one of the and talking about the fight as unconcerned- sure signs of an offensive; the airdromes ly as could be.

coming up; and finally, as the day of the at

tack drew nearer they even bridged the We had daily fighting of that kind for

trenches opposite us to get their cannon nearly three months. But we wanted to get

across. into big fighting farther north. When Gen

We went in on the 5th of July. The night eral Pershing made his famous offer to

of the 7th we stood to arms all night, but Marshal Foch after the German offensive

nothing happened. That Champagne counof March 21, to take all the American

try has a chalky soil; if you dig into the forces there were in France, just four

ground the air soon hardens the soil and American Divisions that were fit to fight,

then you have practically stone-walled the 1st, 2nd, 26th, and the 42nd. They

trenches. The trenches were beautifully were the only ones that had ever been in

organized; they had concrete machine-gun the trenches.

posts, concrete observatories and were enIn March the Germans jumped off in

tirely dry. The German position was on a their first great offensive of 1918 and pushed

long line of crests from Rheims to the Arthe British back, and again in April they

gonne. The French were down in the valpushed the French back. In the middle of

ley with their first line trenches and the May they pushed the French and the Brit

second line trenches were back about 800 ish back, and in those offensives the 1st

yards on another low crest. General GouDivision got into the fight at Cantigny on

raud, who commanded the Fourth French April 28 and the 2nd Division at Belleau

army, anticipated that the attack would be Woods in June. Finally, on June 21, the |

a severe one and a very critical one for the orders came for us to leave the trenches

allied armies, and he worked out a new sysand entrain and they said we were going

tem of defense. Instead of leaving all his to Soissons where the big fighting was go

men in the front line trenches to be smashed ing on. But they unloaded us near Chalons,

to pieces by the artillery, he planned to pull just south of Rheims.

them out of the first line before the battle

and mass them all on the second line. In The French command at that time knew the front line he left just a few infantry that the fourth big German offensive was watchers to send up the rocket signals when just about to break. The first three had l the German infantry came over and in the open space between the first line trenches | For four hours that artillery fire lasted and and the second line he checker-boarded ma- then the rockets went up from our front chine-gun nests. They were to use enfilade line, the signal that the Germans were comfire on the German masses as they ad- ing. Then our artillery fire was shortened vanced.

and came down on our own front line

trenches and the open space from the front The French made wonderful prepara

back to our crest. The Germans had not tions; they brought in artillery and then

expected that; they came across No Man's more artillery. When the fight came on,

Land and got into our front line trenches on the ten-mile front where the attack was

without meeting resistance and came on fiercest, there was a gun to fire for every

through en masse across the open. Our ten yards of front. I do not mean that the

guns were firing steadily on that space and guns were hub to hub; some of them were

the machine guns opened up on them and five hundred yards from the front and some

they simply melted away. And they kept of them four or five miles, depending on their

coming on en masse and melting away. By caliber, but there was a gun on the ground

seven o'clock that morning one of the batready to fire, one for every ten yards. And

talions of our Ohio regiment had repulsed we knew the Germans had just as many or

nine different attacks. The infantry came more,

on to the attack until 11:00 in the mornOn the 14th of July we thought surely it

ing. The Germans attacked with twentywas coming. That was Sunday. The | five divisions betwen Rheims and the ArFrench had been getting prisoners every gonne and by noon those twenty-five divinight and the prisoners had been talking. sions were broken and gone. The infantry They said the attack was coming and it was

fight was really over at 11:00 o'clock, but going to be big and it was coming on this

our guns fired from 10:45 the night before front. Sunday night, the 14th, the French until 3:30 o'clock the next afternoon just got six prisoners. They said, “yes, the at

as fast as the guns could be loaded and tack is coming tonight; the artillery prep

fired. aration is going to begin at five minutes | The attack came from the Argonne to after twelve and the infantry attack at 4:30 Rheims and they didn't gain a foot. Not in the morning.” We got that information on that whole front did they get into the over the telephone about 10:45 p. m., with French position except at one place. We the order that the French counter artillery had a battalion of the Alabama regiment fire would begin twenty minutes before the in reserve right back of that and they went German. Our own artillery came in on in and cleaned the enemy out. The Gerthat. At a quarter to twelve the French mans also attacked west of Rheims as far fire came down on the whole front and south as Chateau Thierry, where they then on our front the guns were going, one crossed the Marne. But the big push came for every ten yards. It was just one glare, from Rheims to the Argonne. That offenjust one roar. You couldn't see a separate sive was the Gettysburg of Germany. At flash, you couldn't hear a separate dis- midnight on July 14 it looked as though charge. The whole sky was red and the they would be successful; they had been roar in the air ran up and down your spine successful in three offensives ; they expectin waves. For twenty minutes we waited. ed to be successful in the fourth ; but they We didn't know whether the German attack were over-confident and they lost and from was coming or not. If it did not come, the then on their power waned. The French French had shown their hand and it might had not known what was going to happen. be very disastrous. But at five minutes | They thought the Germans might go past twelve, down came the German fire through them and if the Germans had done and then the roar and glare was doubled. I so and had cut their lines and isolated the

« 上一頁繼續 »