Dalton's heirs, but he was estopped from denying the rights of the others under the settlement.

The true foundation of the so-called "estoppel" is the fact that at least a possessory title passes by deed or will. The validity of the instrument and the fact that it is operative can be material only in case something is to pass under it, such as possession. "Estoppel" would be the same from the mere fact of claiming only a life estate, whether the instrument were operative or inoperative.

In the report of the case of Dalton v. Fitzgerald the material fact is not disclosed whether the grantors, the trustees, took possession of the lands prior to making the deed. Accordingly it is impossible to say whether the case is correctly decided or whether it should not be classed under problem 3. If the life tenant, Fitzgerald, did not go back to the trustees as his source of title, but initiated a possession of his own, there seems to be no reason why his possession should make a worthless deed (from grantors with no title or possession) convey title to those in remainder, when he himself got no benefit or title under the deed, but solely by his own independent adverse possession. If, however, the grantors had had possession, and their deed was a good deed in itself, A., the life tenant, and his successors cannot dispute that the remaindermen have a superior title derived from X. as they go back to a prior possession which A. received from X. A's holding has not been adverse to them and could not be. This result is not based on estoppel but on the ordinary fundamental proposition that he prevails who can trace his title back to the prior possession.

In re Tennent's Estate also recognized the distinction between problems 1 and 2. The Irish Court here held that a supposed life tenant under an invalid will which purported to be an exercise of power to appoint lands, is not estopped from saying as against the remainderman that the devise over to him is void as being an invalid exercise of the power of appointment. The life tenant by entering under the defective will is not prevented from setting up the invalidity of the limitations over, and is held to acquire title as against everyone although claiming only as tenant for life under the will.

The question involved in these cases is ably and acutely discussed in the dissenting opinion of Freeman, J., in the Tennessee case of Brown v. Brown.51 That case raises the question as to what is the effect in establishing the title of the supposed remainderman of the holding of one who claims as tenant for life under an invalid will, voidable by the heirs for fraud or undue influence.

By the supposed will of Benjamin Brown only a life estate was given to his widow. She went into possession under this invalid will and claimed according to its terms. The parties claiming the remain

"[1913] 1 Ir. 280.

" (1884) 82 Tenn. (14 Lea) 253, 268.

der interest were never in possession at all. It was urged that the holding of the widow, as a life tenant, enured to the benefit of the remaindermen and perfected their title as well as her own, and the majority of the court, per Cooper, J., sustained this contention, on the ground that the tenant for life represented the remaindermen in fee, her possession being also the possession of those having other interests carved out of the fee by the assurance which she held, citing the case of Hanson v. Johnson, supra. The decision may be sustained on the ground that the will was not void, but only voidable by the heirs by suit to recover the property. If the will had been void, as it seems to have been in Hanson v. Johnson as to the real estate, so as to pass no title, then the arguments of Freeman, J., dissenting, should have prevailed.

Freeman, J., dissenting, argues that the adverse possession of the life tenant cannot enure in favor of parties not in possession, and for whom in fact she did not hold under the voidable muniment of title. The Statute of Limitations cannot confer a title on anyone except the persons in adverse possession, actual or constructive, and so if possession be held under a void deed or will, the holding will not establish the limitations or remainders created by the deed or will.

To acquire title by adverse possession there must be continuous adverse possession plus claim of title or interest in the property against the true owner. The law does not enlarge the estate or title claimed. How can the possession of the life tenant, holding for himself or herself alone, silently work for the remainderman to perfect his title? The party entitled to the benefit of the statute, in general, is the party having possession, either by himself or by those through whom he claims according to the extent of his claim of title. The remaindermen do not claim through the life tenant but after him.

The remaindermen must, therefore, stand on their title derived from the will which ex-hypothesi is invalid. Having had no possession under the will, the fee claimed by them is not aided by the possession of another who did not claim the fee for them. Her possession was not their possession. It is true that the possession of a tenant for life is usually the possession also of the remainderman. But that is so where there has been an estate in remainder created.52 Can the true owners be ousted of a valid title when they have had no right of action against the parties acquiring the title, or anyone holding for them, by which their claim could be adjudged? Why should it matter whether the life estate and remainder are conveyed by the same instrument or by different instruments when the remainderman does not claim through the life tenant? The life estate may be a good title against the owner of the fee while the remainder may be void. Would this lawful possession be effective in favor of a void remainder after a valid life estate? If the possession of the life tenant is the possession

"Bomar v. Stephens (1848 Tenn.) 9 Humph. 546; Doe v. Reade (1807, K. B.) 8 East, 353; 2 Preston, Abstracts, 293, 295.

of the remainderman under the same instrument, it would be so; yet no right of action would exist, and the owner would be barred by the possession of a party he could not dispossess. This argument of Freeman, J. is the same as that used by Jessel, M. R. in Re Stringer's Estate supra.

The statute only works to perfect the title of the party in possession either by himself or by one holding the possession for him, as in the case of a tenant holding for his landlord. But where land not included in a lease was taken possession of by the tenant as supposedly included in the lease, it was held that the lessee who occupies land beyond the boundaries described does not acquire title for his landlord as his possession is not that of the lessor.58

In the early Tennessee case of Bomar v. Stephens," where a father held slaves under a void trust deed conveying a life estate in trust to his wife, remainder to the after-born children, it was held that the statute would vest the title in the life tenant but would not give validity to the limitations in remainder, which the deed attempted to create. It was argued that the statute can confer title on no one but the person in adverse possession, either by himself, or by one holding the possession for him. "It cannot be said that the possession of a party actually holding a slave is the possession of another person in remainder in whom no estate in remainder has been created."

We may conclude that the American courts should recognize the distinction of the English cases which we have discussed with reference to the creation of successive estates by adverse possession. The distinction in brief is between the effect of claim of title under (1) a devise or grant valid as a conveyance of a defective or possessory title, and (2) under a devise or grant invalid as an instrument of conveyance, whether the settlors' title is absolute or possessory. In the first case the adverse possession was initated by the settlor and the life tenant's continuance of that possession does not give him title against the remainderman in the valid deed or will. Title is established for the benefit of all deriving interests under the same source of title. In the second case the supposed life tenant's adverse possession may give him a good title against the whole world, including the remainderman. This is loosely expressed by saying that in the first case there is an estoppel but not in the second. The truth is, that this is not a question of estoppel but merely an application of the rule that possession is a source of title good except against those who can connect themselves with a prior possession or title.

"Holmes v. Turners Falls Co. (1889) 150 Mass. 535, 546 (1908) 22 HARV. L. REV. 138; Bayne v. Brown (1911) 60 Ore. 110, 118 Pac. 283; Magdalen Hospital v. Knotts (1879, H. L.) 4 App. Cas. 324, 336; Tabor v. Godfrey (1895) 64 L. J. Q. B. 245; Kingsmill v. Millard (1855) 11 Exch. 313; 18 Halsbury, Laws of Eng., Landlord & Tenant, 562; Lightwood, Time Limit on Actions, 108. "(1848, Tenn.) 9 Humph. 545.

JUDICIAL REGULATION OF RATES OF WAGE FOR

WOMEN1

W. JETHRO BROWN

President of the Industrial Court, South Australia

Probably no problem of industrial regulation is of more immediate importance than the question of the rates of wage for women. It has been my fortune, or misfortune, to deal with the question judicially in the Industrial Court of the State of South Australia.” The present article is based upon my judgment in that case. I felt, and I still feel, that it was desirable to explain what appeared to me the fundamental principles which should guide an Industrial Court in dealing with a subject which is of growing importance, involves manifold issues, and affects the interests of all classes of the community. So far as I am aware, the subject has not previously received judicial consideration in other countries. It has on various occasions come before Industrial Courts in Australia; and certain definite principles may be found in the brochure by Mr. Justice Higgins on A New Province for Law and Order. The principles in question are as follows:

(1) "The principle of the living wage has been applied to women, but with a difference, as women are not usually legally responsible for the maintenance of a family. A woman's minimum is based on the average cost of her own living to one who supports herself by her own exertions. A woman or girl with a comfortable home cannot be left to underbid in wages other women or girls who are less fortunate.

(2) "But in an occupation in which men as well as women are employed, the minimum is based on a man's cost of living. If the occupation is that of a blacksmith, the minimum is a man's minimum ; if the occupation is that of a milliner, the minimum is a woman's minimum; in the occupation of fruit-picking, as both men and women are employed, the minimum must be a man's minimum."

I hope I may say without presumption that there is much that might be justly urged in support of these principles, apart from the authority

1

[This article is expected to appear in the AUSTRALIAN QUARTERLY for December, 1918 or January, 1919. With the consent of the Editor of that magazine, it was sent by the author for publication also in the YALE LAW JOURNAL. It is highly desirable that such a paper should receive a wider circulation in America than can be commanded by a magazine published in Australia for Australian readers. We therefore take pleasure in printing it for our readers, and the more so because of the previous publication of the learned author's article "The Judicial Regulation of Industrial Conditions," which appeared in (1918) 27 YALE LAW JOURNAL, 427.-ED.]

'The Printing Trades Case (1917) Nos. 53-54

which properly attaches to them as declaratory of the policy of the Commonwealth Court of Conciliation and Arbitration. In particular, their clearness, and the comparative ease of their application to particular industries, must appeal to a Judge of an Industrial Court. But, in the recent case the far-reaching importance of the subject imposed upon me the necessity of an analysis of the principles with a view to considering the propriety of their adoption by this Court. I defer any remarks which may appear to me pertinent to the first of the principles. affirmed by the learned Judge until I come to deal with the statutory definition of the living wage as stated in the South Australian Industrial Arbitration Act of 1912. The second principle suggests a partial recognition of the alluring doctrine of equal pay for equal work. But I am more inclined to regard it as merely a rule of expediency designed to protect men from unfair competition in the labor market. Indeed, if we were to accept the "equal pay for equal work" doctrine, it is hard to say why the minimum wage for all unskilled women workers should not be the same, or approximately the same, as that for unskilled men. Women, who are unskilled workers, may naturally ask why their rate of wage should depend upon the accident of men happening to be employed in the same industry. Certainly some women to-day ask why the wages of women should not be assessed from the point of view of effort expended irrespective of whether women do or do not compete with men for employment. Other women take a more definite stand, and urge the award of equal pay for equal work in value. Such modes of assessment, however, have not been generally adopted by Industrial Courts. What is the explanation? One answer is that, however theoretically desirable, it is practically impossible for a mere human being to fix wages by reference to the value of work done. The impossibility is especially apparent in cases of mental work, because of its infinite variety. Milton, if I remember rightly, obtained £5 for the manuscript of Paradise Lost. It has been said that an American scientist, working at a fixed salary, made among many other discoveries, one discovery which increased the value of the potato crop of the United States by the amount of £2,000,000 per annum. While the remunerations received in the cases mentioned were obviously capricious, and suggest that the question of value of work done ought not to be wholly ignored, it remains true that an Industrial Court which should set out to fix the minimum wage for unskilled labor by reference to the value of the work done, would be soon lost in a sea of fallacy and contradiction. Even an employer in a particular business would be generally unable to assess in terms of money the values of particular workers, though he might be able to say what the total wages bill ought to be if his business is to prove a paying proposition. As far as unskilled labor is concerned, an Industrial Judge is naturally driven to adopt the standard of the needs of the worker-a standard which leads to different results as regards men and women. The man, and not the