Cornell University Law Library THE GIFT OF Professor. .Herbert ,..P......Laube.. Cornell... Law.... School Date June. .3, 19.48 KFW2544:Z7l" Un ' VerS " y Ubrary Pro iHSi , ™iiim , iiiniii?Pi« , £ ral law codified : 3 1924 024 766 275 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024766275 PROBATE AND GENERAL LAW CODIFIED COMPRISING THE PROBATE AND RELATED GENERAL LAW APPLICABLE TO PROBATE AND OTHER COURTS VOLS. 1-3 PINNEY AND VOLS. 1-164 WISCONSIN 1837-1917 1 -r- By A. G. Zimm erman ; OF THE WISCONSIN" BAR ' CHICAGO CALLAGHAN AND COMPANY 1917 METHOD OF GETTING INFORMATION^ The plan or schema' on which this book is mad^is unique— therefore, READ TH£ kVt&OfrS E^|»LA^ ( ATQBY FOREWORD^ ( , ) ,/ •/,,„,,,_ ■,'.;.': All points ar| cte^lopei^ronl&logieally |n laie/Ofdet of ■ their presentafi^:t^otig^o|uri d^isioiisy^^) '- ' ' .< : '/' The entire judicial listo|y of evfcry^dntmay betr^^d at a glance. ■j ■■■•■V,.:-M •„■■ /■■>,■ "■!,? '(-',. ,':c; • ( The application, ext^fon and.,^^l^taon!of* prinei- : pies are disclosed as indilatedthrough decisions. It not only Is a edification of ail questions stored: it is a compendjiuin of the judicial his|D|y Of e>ery pjprt. There are '$$e$ methods of get|ing at th© woaith of deV tailed information: ' , , _■ " •",/'. '*"' '..;<| ,(11 If the investigator, dislike^|indeies r the ti^|0§:be|% ajphabetiqally ar^an|ed, he can i^ad^^4-^0'F^!^i$^ and with most subjects he ea$ ign4re f the indexes and get the points of the whole title $^a very short time; (2) He can get '^uitetjo^lote line on the leg^J, points and Jjaragraplis he ,,iwan! i fcsi.b^/"'us , in^ tl& tytle indl^ at ' the head of the title;: , , ,-' ' ■-{.'.* >.y ;*.,,;* '.' '"'- ;! '' t . (3) For more exhaustive. in^mafe|b^ he hag the ex- haustive Qttpe^ Index at the endlof &%& voIuiW J^liis service.' • ' -" i^-> ■ ,' ■- .,, ajfij^Vv. ■ If he is preparing a brief he can ||ii% s<^uesteif jlhe^ p^rggraphs with Cili||ions on the point bejtnjj brief 6$ ah&\ thus have a pomplfete brief ?x)n the s^iibjeqtj largely in the language of the courf;, : '*" ' ^ However^ for the plan, purpose, sebpe, jnethod of com- V pilation, and the Why and wherefore READ authoritatively state the law itself, not a mere reference to it ; to endeavor satisfactorily to enlighten the user and the court, generally speaking, without necessitating going back to the reports. The intent all through has been to state the law as it exists at this time, and to indicate the changes and distinctions. All codified cases are given chronologically as to time and the titles arranged alphabetically, so that the development of the law may be noted, and to enable easy finding of the cases indicated in the cross-references: The purpose has been to make the strictly probate titles complete and exhaustive, but not the related general law topics, as a rule. There are, however, numbers of more or less exhaustive titles equally, or perhaps more generally, applicable to practice in all courts. Some of the more important and more complete general law titles may be mentioned, as follows: Accounts, Admissions, Attorney and; Client, Authentication, Bond for Maintenance, Charitable, Trusts, Commissions of Brokers, etc., Concur- rent Jurisdiction, Consideration, Contracts, in general, Creditors' Ac- tions, Curtesy, Custody and Commitment; Deeds, Delivery, Depositions, Discovery. Domicil, Dower, Escrow, Expert Testimony, Fixtures, For- eign Judgments, etc., Guardian ad litem, Handwriting, Homestead, Hus- band and Wife, Impeachment of Witnesses, Implied Trusts, Incompe- tents. Infants, Insane Persons, Interest^ Joint Tenancy, Judgments, Judi- cial Decisions, Jurisdiction, Kin, Land Contract, Landlord and Tenant, Legitimacy; Limitation of Actions, Marriage Contracts, Married Woman, Marshalling Assets, Mistake, Money, Mortgages, Necessaries, Novation, ' EXPLANATORY FOREWORD v Nunc Pro Tune, Officers, Omissions, Parent and Child, Parol, Parties, Part Performance, Paupers, Payments, Permanent Improvements, Per- petuities, Personal Estate, Power, Precatory Trusts, Presumptions, Pre- sumption of Death, Principal and Agent, Privileged Communications, Promissory Notes, Quantum Meruit, Real Estate, Services, Set-off, Settle- ment, Sunday, Sureties, Surviving Partner, Tender, Title, Transactions with Deceased Persons, Trustees, Trust Funds, Trusts, Undue Influence, Vacating Judgments, Vesting of Estates, Waiver, Widow, Witnesses, Writings. Much pains-taking labor has been expended on a double index system with the view of facilitating the use of the material. At the head of each general title appears a detailed alphabetically arranged index of the title contents with references to the numbered paragraphs thereun- der ; and at the end of the work appears a similarly compiled but some- what more exhaustive General Index of the whole contents, the references here being 4,0 the pages of the volume. The labors herein involved have extended over a number of years, and great effort has been made to make the results reliable. In the interest of greater accuracy and to facilitate condensation, the initial text of the entire work including the indices, was first painstakingly written out in long-hand and subsequently revised and dictated in detail and then veri- fied and re-verified with infinite care. Yet, doubtless, there is error, for which indulgence must be asked. With the foregoing epitome of the scope, purpose and manner of the undertaking, the work is respectfully submitted to the kindly considera- tion of the legal profession. A. G. Zimmerman. Madison, Wis., June, 1917. TABLE OF TITLES (See detailed index under title heads; also at end of volume.) Page ABBREVIATIONS. See Parties. Words and Phrases. ABUTTERS -•. . . : ;Y.9fA ... 1 ACCORD AND SATISFACTION ;'.'. „'.-.'. >.■■:'!% VAL AA\ '>9-. ifPA.v: . 2 ACCOUNT BOOKS. ACCOUNTS .....' ■?•-. ....... .'.4'. , #?.' ; 4 ACOUNTS OF EXTRS. AND ADMRS ..'.'.. : ?. ... 12 ACCOUNTS OF GUARDIANS 16 ACCOUNTS OF TRUSTEES. See Accounts of Extrs. & Admrs. Accounts of Guardians. Trustees. Trust Funds. Trusts. ACKNOWLEDGMENT , Vf 1 . .'.% 22 ACTIONS ■..:.....:■■..: 23 ACTIONS AGAINST EXTR. OR ADMR 25 ACTIONS BY EXTR. OR ADMR :; . . . '. 26 ACT OF GOD ■'. ...:'. 31 ADDITIONAL BOND. See Bonds. ADEMPTION. See Legacies. ADMINISTRATION 31 ADMINISTRATION EXPENSES .' 37 ADMINISTRATOR. See Administration. Administrator de bonis non. Admin- istrator with Will Annexed. Extrs. and Admrs. Public Administrator. Special Administrator. ADMINISTRATOR DE BONIS NON 41 ADMINISTRATOR WITH WILL ANNEXED. .. i .,,... 45 ADMISSIONS ..:.., 46 ADOPTION ■ 50 ADVANCEMENTS 54 ADVANCES BY EXTR. & ADMR. See Advancements. ADVERSE PARTY EXAMINATION. See Discovery. AFFIDAVITS. See Verification. AFFIRMATIVE 58 AFTER-BORN CHILD .i 59 AGE. See Birth, etc. AGENCY. See Principal and Agent. -i AGGRIEVED PERSON '.1 ......;... .. 61 AGREEMENTS 64 ALLOWANCE. See Widow. fl -H9 ~i ALTERATION •■-- ■ 66 AMBIGUITY ; 70 AMENDMENT ■ >.,> 72 ANCILLARY PROCEEDINGS 74 ANTE-NUPTIAL CONTRACT. See Marriage Contracts. APPEAL ■ ■ • • 75 (Vii) viii TABLE OF TITLES Page APPEAL BOND. See Bonds. APPEARANCE 9a APPRAISAL. See Inventory and Appraisal. ARBITRATION 96 ARGUMENT. See Affirmative. ASSESSMENT. See Condemnation. Taxation of Estates. ASSIGNMENT , , 97 ASSIGNMENT OF ESTATES. Se'e Descent and 'Distribution. Judgments. ATTESTATION. See Execution of Wills. ATTORNEY AND CLIENT 99 AUCTION SALJEiS. . .-. 109 AUTHENTICATION 110 BAILMENT 112 BILL OF PARTICULARS... , KI! , V , .t ,,.,!..... y» 112 BILLS AND NOTES. See Promissory Notes, etc. BIRTH, AGE, DEATH AND PROOF OF HEIRSHIP 113 BLANKS. See Omissions. BOARD CLAIMS. See Services. BOND FOR MAINTENANCE 116 BONDS ■.... , 127 BOND TO PAY DEBTS AND LEGACIES . 138 BOOKS OF ACCOUNT. See Account Books. BOOKS OF SCIENCE., . 139 BROKERAGE. See Commissions of Brokersj etc. BURDEN OF PROOF. See Affirmative. Evidence. Fraud. Undue Influence. BURIAL EXPENSES. See Funeral Expenses. CALLING IN OTHER JUDGE. See County Judge. CEMETERY LOT. See Dead Bodies. CERTIFICATE OF DEPOSIT. See Money. Promissory Notes, etc. CERTIFICATE OF DESCENT. See Descent and Distribution. CERTIFIED COPIES. See Authentication. , ; CERTIORARI, WRIT OF. See Writ of Certiorari. CESTUI QUE TRUST ...;.. 141 CHAMPERTY AND MAINTENANCE.;..::...., ". 141 CHANCERY COURT. See Equity. . CHANGE OF VENUE. See. Venue. CHARACTER 144 CHARITABLE BEQUESTS. See Charitable Trusts; CHARITABLE TRUSTS :' :...,: 145 CHATTEL MORTGAGE ji.v ;„ . .. . . 160 CHECKS 161 CHOSE IN ACTION u 163 CIRCUIT COURT 164 CITATION. See Discovery. (,<->-< CLAIM FOR SERVICES. See Services. CLAIMS 166 CLERICAL ERRORS. See Mistake. CODE, THE 181 CODICILS 1 82 CO-EXECUTOR. See Extrs. & Admrs. COLLATERALLY : 183 COLLATERAL SECURITY. . . . .' ... .... .i. ........... i . .' ' ' ' 183 COMMISSION FOR DEPOSITION. See Depositions. COMMISSIONS OF BROKERS, ETC. .....; 185 TABLE OF TITLES ix COMMITMENT. See Custody and Commitment. COMMON LAW !..'.."' 192 COMMUNICATIONS WITH DECEASED PERSONS. See Transactions with Deceased Persons. COMPENSATION OF ADMR., EXTR., GRDN. & TRUSTEE 196 COMPETENCY OF WITNESSES. See Evidence. Husband and Wife. Impeach- ment of Witnesses. Objections. Transactions with. Deceased Persons. Witnesses. ' COMPOSITION. See Compromise. COMPROMISE 203 COMPUTATION OF ESTATES, ETC 205 COMPUTATION OF TIME. See Time. CONCURRENT JURISDICTION ' 206 CONDEMNATION :. "-..': 212 CONDITIONS. See Bond for Maintenance. Construction of Deeds. Construe-' tion of Wills. Devises. Vesting of Estates, etc. CONSENT. See Agreement. Jurisdiction. Stipulation. CONSIDERATION ..: 215 CONSTITUTION . I ..' . '. I 219 CONSTRUCTION OF'CONTRACTS . :': ■:. i . . :'.'¥. . '. . ... 220 CONSTRUCTION OF DEEDS. 225 CONSTRUCTION OF STATUTES 232 CONSTRUCTION OF WILLS 237 CONSTRUCTIVE TRUSTS. See Implied Trusts Trusts. CONTEMPT 266 CONTINGENT CLAIM 268 CONTINGENT INTERESTS. See Future Contingent Estates. Trust Variation. Vesting of Estates, etc. CONTRACTS 272 CONTRIBUTION ..;".. , 283 CONVERSION. See Actions by Extr. pr Admr. Discovery. Personal Estate. ■Services. CONVEYANCE. See Construction of Deeds". Deeds. Fraudulent Conveyances.. . , Mortgages. Sale of Personalty. Sale of Realty. ./ CORPORATIONS. See Charitable Trusts. Officers. CORPSE, RIGHTS TO. See Dead Bodies. COSTS AND FEES , t 285 COUNTER CLAIM. See Pleadings. Set-off. COUNTY COURTS. See Probate Courts. COUNTY JUDGE ... 295 COURT COMMISSIONERS . , .,.,,,.,.,. , ., .-.• 299 COURT RULES. See Rules oi Practice. ,, .,- , ' , - COVENANT . . . f. 300 CREDIBILITY OF WITNESSES. See Impeachment of Witnesses; Witnesses. CREDITORS' ACTIONS .-.,.-. ..... A .; Cr .^ .'. . '. ,". . .. 308 CROP SHARING. See Rents and Profits. , "^ CROSS EXAMINATION '.". '.'.', . .... 308 CURRENCY. See Money. ^. r ; CURTESY '. .'.-/: 313 CUSTODY AND COMMITMENT ''.'. 314 CUSTOM. See Usage. CY PRES u Jk-. ■.- 316 DAMAGES 317 DAY. See Time. DEAD BODIES .... 319 x TABLE OF TITLES Page DEATH. See Birth, etc. Construction of Wills. Presumption of Death. Vest- ing of Estates, etc. DEBTS ' * 32 ° DECLARATIONS. See Admissions. DECREE. See Judgments. DEEDS 3ZZ DEFAULT 389 DEFINITIONS. See Words and Phrases. , DELIVERY 330 DEMAND 334 DEMURRER 335 DEPOSITIONS 339 DEPUTY. See Officers. DESCENT AND DISTRIBUTION 344 DEVISES., DEVISEES 350 DICTUM, JUDICIAL AND OBITER. See Rules of Practice. DISCONTINUANCE 853 DISCOVERY 355 DISMISSAL. See Discontinuance. DISQUALIFICATION. See County Judge. DISTRIBUTION. See Descent and Distribution. Judgments. DIVIDENDS. See Trust Funds. DIVORCE 363 DOCUMENTARY. See Evidence. Writings. DOMICIL 365 DOWER 369 DRUNKENNESS. See Incompetents. DURESS. See Unlawful Contracts. ELECTION. See Remedies. Widow. EMANCIPATION. See Parent and Child. , EMINENT DOMAIN. See Condemnation. ENDORSEMENT. See Promissory Notes, etc. ENTIRE CONTRACTS. .'.'.:...'! 377 EQUITABLE CONVERSION ..,,.., 380 EQUITABLE LIEN. See Lien. EQUITY : .V. .-: . 384 ERROR, WRIT OF. See Writ of Error. ESCROW 390 ESTOPPEL 395 EVIDENCE 401 EVIDENCE AGAINST DECEDENTS. See Transactions with Deceased Persons. EXAMINATION OF WITNESSES 409 EXECUTION 410 EXECUTION OF WILLS ; 411 EXECUTORS AND ADMINISTRATORS 421 EXEMPLIFICATION. See Authentication. EXEMPTIONS 430 EXPERT TESTIMONY 432 EXPRESS TRUSTS 443 FACTOR 444 FEES. See Costs and Fees. FEME COVERT. See Married Woman. FINAL JUDGMENT. See Judgments. FINAL SETTLEMENT. See Accounts of Extrs. & Admrs. Descent and Dis- tribution. Judgments. Settlement. TABLE OF TITLES xi Page FIXTURES 446 FORECLOSURE. See Mortgages. FOREIGN EXECUTORS AND ADMINISTRATORS 449 FOREIGN GUARDIANS 451 FOREIGN JUDGMENTS 452 FOREIGN JURISDICTION 456 FOREIGN LAWS 457 FOREIGN WILLS s: 459 FORFEITURE 462 FRAUD 463 FRAUDS, STATUTE OF 470 FRAUDULENT CONVEYANCES. See Actions by Extr. or Admr. Creditors' , Actions. Dower. Fraud. Frauds, Statute of. Husband and Wife. Incom- petents' Sale of Realty. Infants' Sale of Realty. Married Woman. Sale of Realty. Undue Influence. FRAUDULENT ORDERS 475 FUNERAL EXPENSES 479 FUTURE CONTINGENT ESTATES 480 FUTURE DELIVERY CONTRACTS. See Unlawful Contracts. GARNISHMENT. See Liability. GIFT 481 GUARANTY 490 GUARDIAN AD LITEM 492 GUARDIAN AND WARD 499 GUARDIANS' ACCOUNTS. See Accounts of Guardians. HABEAS CORPUS 506 HANDWRITING 507 HEIRLOOMS 511 HEIRS, HEIRSHIP -511 HIGHWAY 514 HOLIDAYS 515 HOMESTEAD 516 HOUSEHOLD FURNITURE 534 HUSBAND AND WIFE 535 HYPOTHETICAL CASE. See Expert Testimony. ILLEGAL CONTRACTS. See Unlawful Contracts. ILLEGITIMACY. See Legitimacy. IMBECILE. See Incompetents. IMPEACHMENT OF WITNESSES. CREDIBILITY 559 IMPLIED TRUSTS 565 IMPROVEMENTS. See Permanent Improvements. INCHOATE DOWER. See Dower. INCOME. See Rents and Profits. Trust Funds. INCOMPETENTS 569 INCOMPETENTS' SALE OF REALTY 575 INDORSER. See Promissory Notes, etc. INFANTS 577 INFANTS' SALE OF REALTY 585 INHERITANCE TAXES 588 INJUNCTION 594 INSANE PERSONS 595 INSANITY. See Insane Persons. INSPECTION OF BOOKS AND PAPERS. See Discovery. Writings. INSURANCE ........,,...:. 601 xii TABLE OF TITLES Page INTEREST 607 INTERPLEADER ; ' 61S INTERPRETATION OF CONTRACTS, ETC. See Construction, etc. INTERPRETER 615 INTERROGATORIES. See Depositions. INVENTORY AND .APPRAISAL ;*. 616 INVESTMENTS OF GUARDIANS, TRUSTEES, ETC. See Accounts of Guardians. Guardian and Ward. Trustees. Trust Funds. JOINT OBLIGATIONS 617 JOINT TENANCY 620 JUDGE OF COUNTY OR PROBATE COURT. See County Judge. JUDGMENTS 624 JUDICIAL DECISIONS 634 JUDICIAL NOTICE 638 JUDICIAL RULES. See Judicial Decisions. Rules of Practice. JURAT. See Verification. JURISDICTION 640 JURY 654 KIN, RELATION 659 LABOR. See Services. LACHES 661 LAND CONTRACT 663 LANDLORD AND TENANT, . .,.,. ,,,.., . r , , .;„.,.„. . . .',.,., 667 LAPSED LEGACY. See Legacies. Vesting of Estates, etc. LAST SICKNESS. See Claims. LAW 673 LEADING QUESTIONS 674 LEASE. See Landlord and Tenant. LEGACIES. LEGATEES 675 LEGAL HOLIDAY. See Holidays. LEGAL TENDER. See Tender. LEGITIMACY 685 LETTERS. See Writings. LEX LOCI CONTRACTUS. See Contracts. LIABILITY 68 9 LICENSE. See Liquors. Sale of Realty. LIEN 693 LIFE ESTATES 69g LIFE INSURANCE. See Insurance. LIMITATION OF ACTIONS 705 LIQUORS , 719 LOST WILL " " 720 LUCID INTERVAL. See Insane Persons. LUNACY. LUNATIC. See Insane Persons. MAGISTRATE. See County Judge. Custody and Commitment. MAINTENANCE. See Bond for Maintenance. Champerty and Maintenance MAJORITY ' 72 „ MANDAMUS 723 MARRIAGE JZ MARRIAGE CONTRACTS Ltl. MARRIED WOMAN '*, MARSHALLING ASSETS. ", Jt. MASSES. See Charitable Trusts. TABLE OP TITLES xiii Page MASTER AND SERVANT ,/...,., 746 MAY 747 MEDICAL WORKS. See Books of Science. MEMORANDUM. See Writings. MENTAL CAPACITY. See Incompetents. Insane Persons. Testamentary Capacity. .'; MINOR. See Infants. MISTAKE 748 MODIFICATION OF WILLS. See Descent and Distribution. Probate of Wills. Trust Variation. MONEY k . 755 MONUMENT *.. 757 MORTALITY TABLES. See Computation of Estates, etc. MORTGAGES 758 MORTMAIN 766 MOTION i. , .... . . . .',,;.< ...'..■ 767 MUSICAL INSTRUMENTS. See Household Furniture. MUST. See May. MUTUAL ACCOUNTS. See Account Books. NAMES. See Parties. >, : " NECESSARIES •,-:. . . . ,. 768 NE EXEAT. See Writ of Ne Exeat, i . r« ", . NEGOTIABLE INSTRUMENTS. See Promissory Notes, etc. NEWLY DISCOVERED EVIDENCE. See Trial. NEW TRIAL. See Trial. NEXT OF KIN. See Kin. NON-EXPERT. See Expert Testimony. NON-NEGOTIABLE INSTRUMENTS. See Promissory Notes, etc. NON-RESIDENT ADMINISTRATOR. See Foreign Extrs. & Admrs., NON-SUIT .....,; i. 770 NOTES. See Promissory Notes, etc. NOTICE ...:.: ..771 NOVATION : 773 NUNC PRO TUNC ..{...:...... 776 NUNCUPATIVE WILL .....-; . . . ,.:, 778 OATH. See Verification. „-, OBITER DICTUM. See Rules of Practice. OBJECTIONS 780 OFFERS. See Contracts. Estoppel. Sale of Realty. OFFICERS 783 OMISSIONS 787 OMITTED CHILD 791 OPENING AND CLOSE. See Affirmative. OPINION EVIDENCE. See Expert Testimony. OPTIONS ■■.■:-A . . . U^C. 791 ORDERS 1 792 ORPHAN. See Guardian and Ward. Infant. Kin. PARENT AND CHILD 794 PAROL 802 PARTIAL PAYMENTS. See Payments. PARTIES 814 PARTITION 822 PARTNERSHIP. See Surviving Partner. PART PERFORMANCE \ 824 xiv TABLE OF TITLES Page PASSIVE TRUSTS. See Trusts. PAUPERS Hi PAYMENTS '*; PERMANENT IMPROVEMENTS *»" PERPETUITIES 838 PERSONAL CHATTELS. See Legacies. Personal Estate. PERSONAL ESTATE 842 PERSONAL SERVICE. See Service. PETITIONS 847 PHYSICIANS. See Expert Testimony. Privileged Communications. PLEADINGS 848 PLEDGE. See Collateral Security. POLICE POWER. See Constitution. POLICY OF THE LAW 85 ? POOR HOUSE AND POOR PERSONS. See Paupers. POST-NUPTIAL CONTRACT. See Marriage Contracts. POWER 859 POWER OF ATTORNEY. See Deeds. POWER OF SALE. See Power. • PRACTICE. See Rules of Practice! PRAYER FOR RELIEF 867 PRECATORY TRUSTS 868 PREFERRED CLAIMS. See Claims. Funeral Expenses. PREJUDICE. See County Judge. PRESUMPTION .../. 873 PRESUMPTION OF DEATH 877 PRINCIPAL AND AGENT 880 PRINCIPAL AND SURETY. See Sureties. PRIVILEGED COMMUNICATIONS 890 PROBATE COURTS '. 895 PROBATE JUDGE. See County Judge. PROBATE OF WILLS 897 PRODUCTION OF PAPERS. See Writings. PROFESSIONAL ETHICS. See Attorney and Client. PROFITS. See Rents and Profits. PROMISSORY NOTES, ETC 905 PROOF OF HEIRSHIP. See Birth, etc. Heirs. Presumption of Death. PROOF OF PUBLICATION OR SERVICE. See Publication. Service. PUBLIC ADMINISTRATOR 919 PUBLICATION 920 PUBLIC POLICY. See Policy of the Law. PUBLIC TRUSTS. See Charitable Trusts. PURCHASE MONEY LIEN. See Lien. QUANTUM MERUIT 924 QUIA TIMET 927 QUIT CLAIM. See Construction of Deeds. Deeds. RATIFICATION 928 REAL ESTATE 930 REAL ESTATE BROKERAGE. See Commissions of Brokers* etc. REBUTTAL 9 3 6 RECEIPTS. See Settlement. Writings. RECORDS 943 REFERENCE 9 4 6 REFORMATION 949 RELATION. See Kin. TABLE OF TITLES xv Page RELEASE. See Agreement. Joint Obligations. Settlement. REMAINDERS, VESTED* AND CONTINGENT. See Devisees. , Future Con- tingent Estates. Power. Trust Variation. Vesting of Estates. REMEDIES 953 REMOVAL : 955 RENTS AND PROFITS 957 REPEAL 959 REPORTS OF GUARDIANS. See Accounts of Guardians. REPRESENTATIVE CAPACITY 960 RES AD JUDICATA 960 RESCISSION OF CONTRACT 937 RES GESTAE 963 RESIDENCE. See Domicil. RESIDUARY ESTATES. See Bond to Pay Debts and Legacies. Construction of Wills. Legacies. Vesting of Estates, etc. RESIDUARY LEGATEE BOND. See Bond to Pay Debts and Legacies. RESIGNATION 966 RESULTING TRUSTS. See Implied Trusts. Trusts. RETROACTIVE 967 REVERSION. See Devises. Vesting of Estates, etc. REVOCATION 967 REVOKING FRAUDULENT ORDERS. See Fraudulent Orders. RIGHT OF WAY. See Construction of Deeds. RULE IN SHELLEY'S CASE 973 RULES OF PRACTICE 973 SALE OF PERSONALTY ! 976 SALE OF REALTY 979 SANITY. See Insane Persons. SEAL 994 SERVICE , 996 SERVICES • 999 SESSIONS OF COURT. See Terms of Court. SET-OFF. COUNTER-CLAIM 1018 SETTLEMENT ;>>,. 1023 SEVEN YEARS' ABSENCE. See Presumption of Death. SHALL. See May. SHARES IN CROPS. See Rents and Profits. SICKNESS . . : 1030 SIGNATURE. See Execution of Wills. Handwriting. SOLE BENEFICIARY BOND. See Bond to Pay Debts and Legacies, SOLE EXECUTOR. See Extrs. & Admrs. SPECIAL ADMINISTRATOR 1031 SPECIAL GUARDIAN 1033 SPECIFIC LEGACY. See Legacies. SPECIFIC PERFORMANCE 1033 SPENDTHRIFT. See Guardian and Wards Incompetents. STARE DECISIS 1037 STATUTE OF FRAUDS. See Frauds, Statute of. STATUTE OF LIMITATION. See Limitation of Actions. STATUTES ■.';.■ 1039 STAY OF PROCEEDINGS 1039 STIPULATION i. /.-,..!.. .1 . .1041 STRANGER , v. .1043 SUBROGATION ' V. .....:. . 1043 SUBSCRIBING. See Execution of Wills. SUBSCRIPTION 1046 xvi TABLE' OF TITLES Page SUBSTITUTION. See Attorneys and Client. :: SUCCESSION. TAX. See Inheritance Taxes. ir;- ' • •■ ' : i SUNDAY ., 1047 SUPPLEMENTARY PROCEEDINGS 1052 SUPPORT AND MAINTENANCE. See Bond for Maintenance. Widow. SUPPORT OF INSANE, POOR, ETC. See Paupers. SURETIES 1052 SURVIVAL OF ACTIONS. . See Actions. Actions Against Extrs. or Admrs. ; Actions by Extrs. or Admrs. Creditors' Actions. SURVIVING PARTNER 1062 SURVIVORSHIP 1071 SUSPENSION OF POWER OF ALIENATION. See Perpetuities. TAXATION OF ESTATES 1078 TELEGRAMS 1075 TENANTS IN COMMON 1075 TENDER 1077 TERMS OF COURT 1078 TESTAMENTARY CAPACITY 1080 TESTAMENTARY GUARDIAN. See Guardian and. Ward. TESTAMENTARY INSTRUMENTS. See Wills. TESTAMENTRY TRUSTS. See Trusts. TESTIMONY. See Evidence. Impeachment of Witnesses. Witnesses. TIME 1094 TITLE 1096 TOMBSTONE. See Monument. TORTS 1104 TRANSACTIONS WITH DECEASED PERSONS 1105 TRANSFER TAX. See Inheritance Taxes. TRIAL 1115 TRIAL BY REFEREE. See Reference. TRUST COMPANIES. See Principal and Agent. Trust Funds. TRUST CONTRAVENTION OR ASSIGNMENT. See Trust Variation. TRUSTEES 1118 TRUST FUNDS 1131 TRUSTS 1141 TRUST TERMINATION. See Trust Variation. TRUST VARIATION 1153 UNCONSTITUTIONAL. See Constitution. UNDERTAKING. See Appeal. Bonds. Sureties. UNDUE INFLUENCE l 16 i UNLAWFUL CONTRACTS ". \\ n 77 USAGE ' " 1181 USES AND TRUSTS. See Trusts. VACATING FRAUDULENT ORDERS. See Fraudulent Orders. VACATING JUDGMENTS 1184 VALUE. See Evidence. Expert Testimony. Services. VARIANCE. See Pleadings. VENDOR'S LIEN. See Lien. VENUE U92 VERBAL AGREEMENTS. See Parol. VERDICT. See Jury. VERIFICATION v . 1193 VESTING OF ESTATES, ETC ' xi 95 VOLUNTARY PAYMENTS. See Payments. TABLE OF TITLES ■ xvii Page WAGES. See Services. WAIVER 1216 WARDS' SALE OF REALTY. . See Incompetents' Sale of Realty. Infants' Sale of Realty. WARRANTY 1219 WIDOW 1220 WIFE. See Husband and Wife. WILLS 1229 WITH WILL ANNEXED. See Administrator with Will Annexed. WITNESSES 1236 WORDS AND PHRASES. 1241 WRITINGS .' 1248 WRIT OF CERTIORARI .". . .1254 WRIT OF ERROR 1256 WRIT OF NE EXEAT 1257 Table of Cases Codified 1259 Table of Foreign Gitations 1279 Table of Statutes, Etc., Cited 1285 General Index , '. . 1289 PROBATE AND GENERAL LAW, CODIFIED (Vols. 1-3, Pin. ; Vols. 1-164, Wis. ; A. D. 1837-1917.) ABBREVIATIONS. See Parties. Words and Phrases. ABUTTERS. Compensation for taking, 3. Railroad cannot appropriate, 2. Own to center of street, 1, 4. Street not in exemption, 4. 1. " The proprietor of the adjacent lot owns to the center, of the street, subject only to the right of the public to occupy and use the land as an ordinary highway", 2. And "a railroad company cannot appropriate and occupy it with the track of its road without; the consent of such proprietor, or without compensation made to him " ; 3. And "neither the legislature nor the municipal authorities have any power to dispense with such compensation". —Ford v. C. & N-W. By. Vo,, 14 W. 609, 616. 4. "In this state the law is well settled that the owner of pie adjoining lot takes to the center of the street. That is, the fee is in him to the center of the street, subject to the public easement". But the land in the street is not to be reckoned as part of a homestead exemption. » , — Weisbrod v. Daenicke, 36 W. 73, 75. 1 Zimmerman — 1 2 PEOBATE AND GENERAL LAW, CODIFIED ACCORD AND SATISFACTION. See also Compromise. Payments. Settlement. Accepting another contract, 4. Fraud acquiesced in, 11. Absolute payment, 5. New incident discovered, 12, 13. Conditional payment, 6. Keeping part payment, 2. Accord defined, 15. Mere promise, part payment, 3, 24, 26. Accord witnout satisfaction, 7, 16, 17, 25. Mortgage, notes, by notes, 10. Compromise draft payment, 1. New promise in satisfaction, 8, 9. Consideration slight, 21. Receipt in full, 23. Definition anl effect of, 18, 19, 20. Satisfaction,, no reservation, 14. ' Waiver of bankruptcy 'law, 22. 1. It was held '.'competent for the plaintiffs", "after execution had been issued and returned nulla bona, to compromise the judgment by- receiving a draft on New York for an amount equal to fifty cents on the dollar, and bind themselves to a discharge of the judgment by an acknowledgment of satisfaction", 2. "While there are numerous cases going to show that a debt is not discharged .by the payment of a sum less than that which is due, yet", it is indicated, there are no cases ' ' where the creditor has been permitted to hold on to, and enjoy the fruits of, a compromise of his claim, and yet reject the compromise, and further prosecute his debtor". -r-R&id v. Hibbard, 6 W. 175, 190. 3. It is "the settled law, that a bald promise by a creditor, for no other consideration or benefit than the mere payment in money of a part of an admitted debt, to accept: such part in satisfaction of the whole, was void for want of, consideration". —Otto v. Klauber, 23 W. 471, 473. 4. "In Eastman v. Porter, 14 W. 39, and in Blunt v. Walker, 11 W. 334, it was in effect decided that 'a subsisting simple contract is dis- charged' and extinguished by the acceptance of another contract of the same nature given to the same party, and founded upon the same con- sideration, if it be so expressly agreed by the parties' ". 5. "In Story on Promissory' Notes, 104, it is said : ' If a note be given for a preexisting debt, and it is received as an absolute payment thereof, the original contract is extinguished, and no liability thereon any longer exists ; 6. And if such note was received as conditional payment only, then, if duly paid and discharged, the original consideration is equally' extin- guished. 7. It is true that the usual rule is that accord without satisfaction is no bar to an action. This is so except where the new promise or contract itself is the satisfaction of the debt or broken contract, by the accord agreement'." ACCORD AND SATISFACTION 3 8. ",'The party holding the claim may agree to receive a new promise of theother in satisfaction of; it, or he may agree to receive a new under.-, tailing when the same shall be executed as a .satisfaction, , In ; eitheir case he will be held to his bargain,' 2 Pars, on Con., 681. ... 9. In. Babcock v. Hawkins,, 23 Vt. 561, this dpefrine is fully sustained by the opinion of Judge Redfield, in a very able review of the whole subject". . , <• , .,,, .,, i . 10. "Holding this to be the law, it-follows that, if the notes, to secure which the mortgage was given, were paid and satisfied: (by the new notes) , the mortgage was also satisfied and is discharged." ,,, , ;i —Jafiray. v. Grme, 50 W. 349, 353. ,11. The "facts would seem to, make; a very strong: case, ;of accord and satisfaction. The language approved in Grannis v. Hooker, 31 W. ,474, is as follows: 'Acquiescence in the sale, although tacit, after, discovery of the fraud, will, be considered as an election, to confirm it ; 12. And this will nptbe affected by the,fa)C$.of .'subsequently discovering a new incident in the fraud, for this would, not confer a new right to rescind, but would merely confirm the previous knowledge of the fraud. ' IBenj. Sales, 336. . ;i * ; ,,13., This principle has, application to this case. The defendant claims to have discovered the fraud before the time of this adjustment of it. His action, then, should beheld conclusive. n . ,;,,., 14. Here, was ' a satisfaction agreed upon,. without reservation between the party ^injuring and the, party injured, which, when performed, is. a bar to all actions upon this account, ' and this is accord and satisfaction. (Many citations) ''. , , • —Woodford v. Marshall, 72 wl 129, 132. 15. " The , legal • meaning , ,o.f ;an accord is^that 'it is a satisfaction agreed upon, between the party injuring and the party injured, which, when performed, is a bar to all actions on this account'. 'It must be advantageous to the , creditor % and he must receive an aqtual benefit therefrom'- 'Everything must be, done which tlie party undertakes to do.' 2 Greenl. Ev, 28; 3 Bl. Comrn. 15;,Bou,v. Law Diet. tit. 'Accord', and cases cited ; (and cases). , , ,. 16. : 'An accord not,, followed; by a, satisfaction is no bar'. . ., Palmer y. Yager, 20 W. 91; Barnes', Admr., v. Lloyd, 1 How, (Miss.) ''585'. ''To constitute a good accord and satisfaction, it must be accepted as such. ' ' ' — Sieber v. Amunson, 78 "W. 679, 682. 17. "It is well settled that a mere accord without satisfaction is not binding. (Many, cases) ';. —Bptt v. .MpGeqch, 81 W. 160, 172. 18.." 'Accord and satisfaction is the substitution of another : agree- ment between the parties in satisfaction of the former one, and an execu : tion of the latter agreement', and 'forms a complete bar to any further action on the original claim '.i ,1 Am. & Eng.Ency. of ; Law, 94," 4 PROBATE AND GENERAL LAW, CODIFIED 19. "It may be said, in a general way, that where there is some new or independent consideration, or the creditor receives some additional benefit or legal possibility of benefit or advantage to which he would not have been entitled except for the new agreement, then the acceptance of a lesser sum in full payment of an admitted, liquidated debt will operate as an accord and satisfaction'; 20. And hence, in the absence of fraud or mutual mistake, the same is conclusive upon the parties. Bishop, Insolvent debtors, 591, 480; Jaffray v. Davis, 124 N. Y. 164; Allison v. Abendroth, 108 N. Y. 472". See also Compromise. —Continental Nat. Bank v. McGeoch, 92 W. 286, 312. 21. The giving of "absolute title to property held by the assignee as security only", however slight an advantage, 22. And waiver of the right "to the benefit of the federal bankruptcy laws," are each held "sufficient to make a good accord and satisfac- tion," and "to support the settlement" between the parties. — Herman v. ScUesinger, 114 W. 382, 400. 23. A finding that the payment of the sum admitted to be due, for which plaintiff "gave to the defendant a receipt 'in full settlement of claim under policy', was a complete accord and satisfaction", — such amount being but a part payment, — is not sustained. 24. "It is well settled in this and other states that part payment of an admitted debt is no consideration for an agreement not to enforce the collection of the balance of such debt. (Many cases) ". • —Weidner v. Standard L. & A. Ins. Co., 130 W. 10, 15. 25. "There must be both accord and satisfaction". "In this case the jury found the substituted agreement (to pay $600 upon delivery of a note) was unperformed — hence it constituted no satisfaction and no bar to an action founded upon the original contract. 26. Had the jury found, as contended by defendant S., that plaintiffs accepted the mere promise of S. to pay $600 in full accord and satis- faction, then only an action upon such substituted agreement could be maintained". — Morgenthaler v. Somers, 164 W. 159, 161. ACCOUNT BOOKS. ACCOUNTS. See also Accounts of Executors and Administrators. Accounts of Guardians. Account between parties, 45, 46. Account stated— continued Account stated; conclusive, 37, 72. Delay for limited period 71 Admission of correctness, 50, 51. Effect of stated account', 52 53 ACCOUNT BOOKS, ACCOUNTS Account stated — continued Impeached for mistake, 54. Statement sent and kept, 39. While work going on, 73. Agent, charged to, 26. Balance due, 47. Burden of proof, 36. Caption not conclusive, 20, 21. Cash payments, 12. Contents of proved accounts, 10. Contract in account book, 40. Decedent; setoff after, 2. Entries hj, 69, 70. Definition: of account, 29. Long account, 30. Mutual account, 35. . Entries: for a day, 41. Contemporaneously, 68. Of decedents, 69. Subsequent entries, 70. When to be made, 67. Equitable accounting decree, 34. Fraud or mistake, 27, 28, 37, 38, 54. Illegal contract account, 18. Impeachment: inadmissible, 1, 14. For fraud or mistake, 27, 28, 37, 54. Interest: unliquidated demand, 19. Judgment on part of account, 3. Limitation, six years, yvhen, 23, 24, 32. Loose sheets, 42, 43. Memoranda to assist memory, 5, 6, 7, 13. Entries against a decedent, 63. Mistake in name of party, 4. Money items as loans, 61, 62, 64, 66. Written order for money, 65. Mutual account current, 22,- 23, 24, 31, 32. Definition of, 35. Other goods purchased, 11. Paid in full, effect of, 48. Payments, how applied, 25, 49. Presentation of bill, 9. Conduct relating to, 56. Failure to object, 57. Not conclusive, 58. Silence and retention, 59, 60. Price not specified, 33. Promise to pay balance, 38. Proof of accounts, 14, 43, 44, 55. Setoff after decease, 2., Settlement: defined, 8. When set aside, 28, 53. Subsequent entries, 68, 69, 70. ^Surcharging stated account, 15; 17, 27. jVerification of account, 1, 14, 16i, 1. Books of account, verified by the party as the statute prescribes, become prima facie evidence of the contents. Parties sp verifying can- not be impeached, the statutes changing the general rule. (Approved in Winner v. Bauman, 28 W. post. — Winne v. Nicherson, 1 W. 1. 2. Accounts accruing subsequent to decease cannot be set off in an action for assets. See Setoff. — Armstrong v. Prctft, 2 W. 299, 3,07. 3. Judgment on part of the items of a running account which were due, is a bar to a subsequent action on the omitted items ; however, there may be two or more running accounts on which separate suits might be brought. , ,^-Iforngesser v. Harrison; 12 W. 544. 4. Account entries are "admissible, notwithstanding a mistake in the name of a party, or in some addition to his name, if such mistake is fairly and satisfactorily explained by other competent, evidence. ! * The intrinsic -value of such entries as written evidence of the facts stated' in them must be the same whether they are made under one name or another ; and if there was a mistake in the name, and that is explained so as to leave no doubt or suspicion, we think they should be received. ' ' ,5.; "If the books were not admissible as evidence" they may be " suf- ficient as memoranda to assist the memory of the witness." 6. "Within all the authorities, if the witness after having inspected 6 PROBATE AND GENERAL LAW, CODIFIED the memorandum, is able to state the facts as upon his present recollec- tion, his testimony is admissible." 7. "If the witness can swear positively that the memoranda or entries were made according to the truth of the facts, and consequently that the facts did exist, that is sufficient, though they may not remain in his memory at the time he gives his testimony. He may testify from the entries, and when he does so he swears positively to the truth of the facts stated in them." —Schettler v. Jones, 20 W. 412, 415. 8. The word "settle" implies adjustment and agreement upon the balance. See Settlement. — Baxter v. State, 9 W. 38, 44. i 9. "Merely presenting his bill for services, without its appearing that the defendant ever accepted it or admitted its correctness, and offered to pay it, so as to make it a stated account, ' ' would not preclude the plain- tiff "from recovering more than" the amount of the bill, "if the testi- mony showed that the services (physician's) were worth more than this amount. Toland v. Sprague, 12 Peters, 300; LockWood v. Thorne, 11 N. Y. 170". —Newman v. ZoerMaut, 21 W. 466, 469. 10. "The correctness of the entries (in a book of accounts) being thus established by a living witness to them, it was competent for such wit- ness, or any other, to state their contents to the court. And th.6 fact that the entries were made by the wife' of the witness from memoranda furnished by him can make no difference." —Biggs v. Weise, 24 W. 545-546. 11. Accounts of purchases properly proven under the statute "are not evidence" that "no other goods" were purchased. 12. Such accounts are not proper evidence of cash payments in amounts "exceeding five dollars". 13. May be received as memoranda "to refresh" witness' recollection of payments. 14. It was held in Winne v. Nickerson, 1 W. supra, "that where an account book had been received in evidence, testimony to impeach the character of the party whose book was so received and who had made the preliminary oath required by the statute (see. 4186), and which testimony was offered for the purpose of impeaching such account book, was inadmissible". — Wmner v. Bowman, 28 W.563, 566. 15. "The evidence to surcharge a stated account should be clear and satisfactory"; and when "the testimony is about balanced", the account should not be disturbed. 16. "The book is not evidence of the correctness of the charge" where "not verified as required by the statute". —March v. Case, 30 W. 531, 534. ACCOUNT BOOKS, ACCOUNTS 7 17. "On the principle that he who asks equity must do equity, the plaintiff cannot be allowed to open the account and surcharge it, by reason of errors committed against his interest, without at the same time being held to corrections of the account where errors have intervened in stating it, which are in his favor and against the interest of the other party thereto. Floyd v. Priester, 8 Rich. Eq. 248". —Grace v. Newbre, 31 W. 19, 24. 18. A stated account ''upon an original illegal contract", may be allowed on showing a, demand therefor, "which was acceded ; to, by the defendant". See Consideration. —Melchoir v. MoCarty, 31 W. 252, 256. 19. "An open unliquidated demand", with no account rendered or "demand of payment made, does not carry interest". See Interest. —Marsh v. Fraser, 37 W. 149, 153. 20. Where the "plaintiff really gave no credit to the E. T. Co., but rendered his services, and furnished his goods and materials, solely on the credit and promise of the defendant (E.), then' it is plain that the defendant is liable for them", though the account appeared in the books under the name of the E. T. Co. 21. "The caption or heading on the pages of the account", was held not conclusive, and testimony was- properly allowed to show the real facts as to the credit given. 22. Where "the plaintiff, on his side, rendered labor and services, and furnished materials of various kinds for the use of the defendant, as required ; and the defendant, on the other hand, made payments in cash, sold the plaintiff lumber and slabs, and in one instance gave a buggy, carriage and $400 in exchange for another carriage", it is held to show "a system of mutual dealings", making "a mutual and open account current", in which the "statute only began to run from the date of the last item charged". 23. "Says 1 Mr. Angell, in his work on Limitations: 'The rule that items within six years draw after them other items heyond that period, is by all the cases strictly confined to mutual accounts, ' or accounts between two parties which show a reciprocity of dealing'. Sec. 148. 24. Again he says: 'Mutual accounts are made up of matters of set-off! There must be a mutual credit, founded on a subsisting debt on the other side, or an express or an implied agreement for a' set-off 1 of mutual debts'. Sec. 149 (case,s) ". 25. The court may apply payments to earlier items, to leave the bal- ance not "within the bar of the statute". See also Payments. — Hcmriari v. Engelmann, 49 W. 278, 281. 26. Charging the account on the books "to the agent is not conclu- sive that the credit was given to him, but might be explained". See Principal and Agent. —Bentley v. Doggett,. 51 W. 224, 232. 8 PEOBATE AND GENERAL LAW, CODIFIED 27. "When parties have mutually stated an account of their deal- ings with each other, and have adjusted balances on the basis of it, nothing short of clear and satisfactory evidence of fraud or mistake will justify the falsifying or surcharging of such account. Marsh v. Case, 30 W- supra; Klauber v. Wright, post, herewith decided". — Hoyt v. UcLaughlm, 52 W. 280, 283. 28. In the absence of mistake or fraud in stating an account between two parties, a creditor of one of the parties 'cannot have the settlement set aside, though the party may have "made an improvident settlement — ■ one which diminished his ability to pay his debts". —Klaubler v. Wright, 52 W. 303, 312. 29. " 'Account' means an account in fact, kept by one party or the other". 30.' "A long account is a series of charges made at various times as the transactions occurred. Freeman v. Atl. M. Ins. Co., 13 Abb. Pr. 124. One bill of goods which were delivered at one time is not such an account. Swift v. Wells, 2 How. Pr. 79". — Druse v. Horter, 57 W. 644, 648. 31. "Where the items in the account are all charged against the one party and in favor of the other, as here, it is not a mutual account. It lacks the very element essential to make it such — mutuality", under sec. 4226. 32. "The claim presented, not being a mutual account, does not come within 'the rule that items within six years draw after them other items beyond that period', for that rule is 'strictly confined to mutual accounts'." Hannan v. Engelmann, 49 W. 282. See also Butler v. Kirby, 53 W. 188. —Fitzpatrick v. Est. of Phelm, 58 W. 250, 254. 33. "Books of original entry", "properly verified may" "be presump- tive proof of the delivery of the articles charged, although no price is therein specified. In such case the party producing them would be required to give other proof of values." — Jones, Admr., v. Orton, Admr,, 65 W. 9, 14. 34. In an "equitable action for an accounting" either party "is entitled to an affirmative decree", though no counterclaim is interposed. See also Discontinuance. — Hutchinson, Admr. v. Paige, 67 W. 206, 209. 35. An instruction that "an. open, that is, unsettled, and mutual account current, is an account consisting of credits as well as debits, charges and credits, between the parties," and an account which "has no credits, is not a mutual account current between the parties, ' ' is held to be in harmony with previous rulings and cases supra. ACCOUNT BOOKS, ACCOUNTS 9 36. And an instruction that "the burden is upon the plaintiff to convince you that there was such open, mutual account, and if there was, then to satisfy you of the balance due him, to entitle him to recover thereon," is held proper. — Dunn v. Est. of Fleming, 73 W. 545, 547. 37. In an action as to a balance of account it is said, that "treating it merely as an account stated, it was conclusive upon both parties, and was impeachable only for fraud or mistake. Martin v. Beckwith, 4 W. 2l9 ; Orr v. LeClair, 55 W., 93 ; Hill v. Durand, 58 W., 160. But this was more than a mere account stated, the correctness of which had been assented to. There was an- unconditional promise to; pay the amount". 38. ' ' That promise was based on a- good consideration, and was a good cause of action in itself. It could be avoided only by proof that the defendant was induced to make the promise by fraud. Miller v. Chip- pewa Co., 58 W., 630". —HawleyY. Harran, 79 W., 379, 381. ,39. "Statements of account sent" and kept, "constituted accounts stated, binding on both parties". See also Interest. -^Ryan Drug Go. v. EvambsaU, 92 W. 62, 63. 40. As to the evidentiary value of a memorandum of a contract in. an account book. See Writings. — Haeer, v. Streich, 92 W., 505, 508. 41. Entries in defendant's bank journal for a day "were only evi- dence in so far as they showed transactions with the plaintiffs", — two items bearing on the question in dispute. —Kuenster v. ~Woool~hov.se, 101 W., 216, 220. 42. As to two loose sheets with "some twenty items" of account, and a stub book of promissory notes, it is held that "neither is an account book, ' ' under sec. 4186, or admissible as such ; 43. And "whether such fugitive sheets of paper may ever be deemed to be in such permanent form as to be admissible", they were not specif- ically proved under, sec. 4189, 44- Which "gives admissibility to documents which by the common- law rules of evidence would be excluded, and it is to take effect only upon reasonably strict compliance with all of the requisites which it prescribes". —Kelley v. Crawford, 112 W.,'368, 371. 45. While an action for a balance unpaid on a sale for a certain price per ton of ore, "delivered by team frdm day to day", covering "no definite or ascertained quantity of ore", the contract being "an open one as to the amount to be furnished", was properly held to be "an account between the parties, in the strict sense of the term", in Nimmick v. Mathiesson, 32 W. 324 — 46. Yet, where "there was a definite contract on one side to sell, and on the other side to buy, eleven certain tubs of cheese already in exist- 10 PROBATE AND GENERAL LAW, CODIFIED ence, and known to both parties, at eleven; cents per pound", weighed and delivered in installments, — an action for a balance unpaid, was one ''to enforce an express contract", "and hot properly an action 'founded upon an account', within the terms of" subd. 4, sec. 3572. 47. And it is held (in effect overruling Barker v. Baxter, 1 Pin. 407, and Woodward v. Garner, 2 Pin. 28), "that the words 'balance due' in" subd* 1, see. 3572, do not "mean a balance agreed on by the parties" "upon settlement of accounts", but "that it has been the universal prac- tice to. treat 'the words as used in their ordinary and common significa- tion, namely, as meaning the remainder after deducting proper credits ' '. 48. Acceptance of a check with "the words 'paid in full today, eight hundred, etc.", is held "a mere acceptance by the creditor of a part of the amount due on an undisputed claim", with nothing "which can stand as a consideration for the release of the balance - of the claim. Herman v. Schlesinger, 114 W, 382 (See Consideration). — Prairie Grove G. M. Co. v. Luder, 115 W. 20, 24. 49. " If by express or tacit consent two parties agree to the entry upon a mutual account between them of a charge against one, and that one proceeds to make payments in amounts sufficient to cover that item, together with all preceding ones; it constitutes payment of that item, at least as against protest by any third party ' '. — Nat Cash B. Go. v. Bonneville, 119 W. 222, 224. 50. Where "the .statement presented in writing" "showing the debits and credits with respect to the items embraced therein was admitted by the defendant to be correct", "the same thereupon became an account stated", 51. Notwithstanding the defendant at the time "asserted a counter- claim growing out of another transaction. ' ' 52. "Wharton v. Anderson, 28 Minn., 301, gives a clear statement to the effect to be given to an account stated:" 53. A 'stated account' 'is only prima facie evidence of the correct- ness of the balance', unless it 'is the result of a compromise', or there is a forbearance, 'in consequence of the accounting', bringing 'the qase within the principle of an estoppel in pais. 54. A stated account, not affected by such new consideration or estoppel, 'may be impeached for mistake or error in the law or in fact with respect to the items included in it, or for omission of items'. : —Segelhe & K. M. Co. v. Vincent, 135 W., 237, 240. 55. Under see. 4186, the "entire absence of any evidence 'that such entries are just, to the best of his (plaintiff's) knowledge and belief," renders the books "inadmissible. Kelley v. Crawford, 112 W. supra Brown v. Warner, 116 W. 358". ; 56. "When a demand in the form of a bill or account is delivered to the debtor, his conduct with reference thereto may be significant ACCOUNT BOOKS, ACCOUNTS 11 57. And his failure to object within' a reasonable time be construed prima facie as an admission that such bill or account is correct; 58. Not at all conclusive either on the fact of admission or on the fact of correctness, but prima facie, subject to be overcome by other evidence. (Many cases) ". 59. And this being the sole evidence on the question, it is held that, "silence and retention of the bills without protest" is "an admission" "that the price therein named was that at which the" article "had been purchased, 60. And therefore that the finding" as to "value or price had" suffi- cient "evidence in its support". Judgment sustained. 'Tones v. DeMuth, 137 W. 120, 121. 61. A claim against an estate "for two items of $150 each for money loaned", depending on claimant's testimony and his account books con^ taining such items entered by him, and properly proved, as such under sec. 4186, they containing ' ' original entries of charges for goods or other articles delivered", — was disallowed in each of the. three courts. 62. "As to the items in question they fell within the exception of sec. 4187, because the entries related 1 to items, of money delivered at one time exceeding $5", and were properly excluded. 63. Being " incompetent to ; testify to transactions or communications personally had with" "deceased, the plaintiff could not use the books as memoranda to refresh his memory and then testify to the 'transaction". 64. "The books could not come within both sections" 4186 and 4189. ' ' Sec. 4189 renders competent only ' entries in a book or other permanent form other than those mentioned in sees. 4186 and 4189b'. Any book of the kind mentioned in sec. 4186, produced as there provided, is not made competent by. sec. 4189", but "were expressly excluded". , 65. A claim that one of the items "represented by a written order drawn upon another party indebted to the plaintiff, which, was given to the deceased and cashed by him", is considered but "another mode of delivering money to the deceased similar to payment by check, and within the statute", sec. 4187, as to the books not being admissible as to items "exceeding $5". 66. "It is not intended to commit this court to the view that books of account mentioned in sec. 4186, properly verified, would in any case be evidence of a loan of money as a separate transaction, but that ques- tion is left undecided". — Dohman v. Est. of Blum, 137 W. 560, 562. 67. "Where plaintiff made entries under an agreement "for acquiring a stock of" logs, "manufacturing them into lumber, paying therefor; selling the lumber," — "the fact that the entries" in his books "were made whenever reported as paid or received \is substantial compliance with the requirements for making them competent evidence". —Lemma v. Blamdmg, 139 W., 156, 159. 12 PROBATE AND GENERAL LAW, CODIFIED 68. The rule respecting "advancements" is held "in harmony with the rule respecting book accounts. In Marshall v. Coleman, 187 111. 556, the court said : ' Book accounts are only admissible in favor of the party who keeps them when the entries are made, contemporaneously with the transactions recorded, 69. And the same rule applies to books and entries of deceased- per- sons. (Citations) ■ -70. ' Declarations or book entries of the donor subsequent to the trans- action are inadmissible unless they are of the res gestae or against interest'. 2 Woerner, Adm'n. (2nd Ed.) § 558.' " (Cases). —Arthur v. Arthur, 143 W. 126, 134. 71. "Mere delay for a limited period without returning or objecting to accounts rendered merely raises a presumption or inference of acquies- cence. Such presumption or inference is more or less strong according to circumstances. 72. The neglect to return or object may, be for such a length of time as to render such presumption conclusive of acquiescence so as to make an account stated". 73. Where "it appears only that from month to month while work was going on tentative monthly statements were rendered", it is held that this "could at most constitute only prima facie evidence of correctness", and that such accounts have not "become stated within the technical meaning of the term 'account stated' ". —Gwnett v. J. H. Flick Const. Co., 163 W. 574, 576. ACCOUNTS OP EXECUTORS AND ADMINISTRATORS. See also Administration Expenses. Compensation of Adme., etc. Executors and Administrators. Judgments. Rents and Profits. .Settlement. Trustees. Trust Funds. Advances to minors, 6. No objection; thereto, 8. - Personal against heirs, 9. Protection therefor, 7. Amendment on appeal, 18, 19, 20. Charged by himself, 3. Co-executor may appeal, 30. Commissions allowed, 10, 26. Executor also as trustee, 16. Division of expense's, 29. Executor's own debt, 17. Executrix of. deceased extr., 11, 12. Extraordinary services, 15, 16. Function of guardian, 5. Interlocutory account, 13. Conclusive on notice, 14. Extraordinary services, 15. Items properly credited, 2. .Judicial discretion, 25, 26. Maladministration, 24, 25, 27. Not allowed as of course, 21. Evidence introduced, 23. Specific objection made, 22. Objections to account, 21, 22, 23. Personal chattels delivered, 1. Kent advanced to decedent, 28. Support, etc., of heirs, 4. ACCOUNTS OF EXECUTORS AND ADMINISTRATORS 13 1. Executors are not accountable for "personal chattels" delivered to the life beneficiary as a specific, legacy, where the same are afterward lost or destroyed. , . , , 2. In an action on his bond, the executor having died and not rendered his account, was held properly credited with, funeral expenses, monu- ment, debts paid, "lumber for fence and repairs of," house, taxes paid on real estate though it was in "the possession and enjoyment" of the widow as life beneficiary, widow's allowance before probate of the will, and administration expenses. See also Life Estates. —Golder v. Littlejofm, 30 W. 344, 352. 3. Where, "in his account the executor charged himself at the rate of two dollars per acre, annually, as a reasonable rent" for the farm de- vised to him, of which the widow was entitled "during life, the use, income and profit of one third", and "did not claim that he had been in possession as devisee", and was "personally liable"; and "having treated it as a matter connected with the estate, which he was bound to settle and adjust in his trust capacity", and "having, in fact, invoked the jurisdiction of the court to examine into it", — he cannot now object to so doing, and "has, clearly waived all objection by the course he has taken," —Baker v. Baker, 51 W. 538, 546. 4. "It was not the duty of the administrator, and he had no authority to furnish out of the estate of the intestate in his hands the means to support and educate theiheirs of such intestate." 5. The court having made no direction, "in so doing, he assumed the functions of a guardian of those minor heirs and acted entirely upon his own personal responsibility." 6. "In substance and legal effect, by advancing money to them he did not charge the estate of his intestate, but only made himself their creditor for the sums so advanced". 7. It is not determined, whether, the probate court, "might or might not protect him by allowing him to reimburse himself for such advances out of the estate before distribution". 8. But, the heirs not objecting, such properly proven advancements are here allowed. 9. But such disputed advances, being "mere personal claims against the heirs", "it seems very clear to us that the statute (sec. 3927) pro- viding for the examination of the administrator on oath concerning his account does not include such charges". 10. ' ' The statute seems to be imperative that the prescribed commis- sions shall be allowed" the administrator, notwithstanding "his neglect of duty", "and it gives. the court no discretion to withhold them. Sec. 3929". (An amendment by Chap. 660, L. 1907, inserts the words, "un- less derelict in his duty".) — In re Fitzgerald, 57 "W. 508, 513. 14 'PROBATE AND GENERAL LAW, CODIFIED 11. An executrix of' a deceased executor ' ' might apply to the county 'coiirt" for a settlement' of the accounts of " the latter, "but, if she de- clines to make the application for a settlement, we are of the opinion that the county court cannot compel her to do so." See also Discovery. 12. "The rule of the English law that, an executor of an executor is the executor of the first testator, and must execute the will of the first testator, is abolished by statute in this state. See Sees. 3258,; 3800 M . <■■■■ ^-Beed v. Wilson, 73 W. 497, 503. 13; ''We have no doubt* of the right of the county court to settle and, allow an executor's or administrator's account at any time before the rendition of his final 'account, upon notice as provided in the statute (sec. 3931), ■ ■ - 14. And that when thus settled and allowed it will be final and con- clusive' as to all matters embraced in it, and can be impeached or re- opened only for fraud or mistake: Woerner, Admin. Sees. 504, 505". ! 151 Ah allowance of such an account including extraordinary serv- ices as executor, "having been made contrary to sec. 6, rule 17, (now sec. 3, rule 15), of 1 'the county court rules, tout it is none the less con- clusive. It cannot now be avoided for mere error, of practice". ' 16. Such allowance f Or* " extraordinary services" were held proper where the executor continued for seven years performing trustee duties and enhancing the value of the estate, the matter being in the ' ' sound discretion" of the court. "The question is 'What does the court, in view of the evidence and its own knowledge of the facts, judge reason- able?' Ford v. Ford, 88 W. 131". See also Administration. ; : ■ —Schdnzv.Schinz, 90 W. 236, 248. 17. Executor's own debt to the deceased, when and how chargeable' to him. See Extes.'& Admrs. — Est. of Robmsm v. Hodghin, 99 W. 327, 330. 18. '''Sec: 1 4034, governing the subject of trials in" appeal cases from the county court, "permits the exercise of some discretionary authority in 1 granting leave to amend within the scope of the (admr's) account presented to the county court ; 19. But since the theory of such an appeal is that only matters passed upon by the court of first instance are to be reviewed, it would be an abuse of discretion, at least, to allow an entirely new claim to be first presented to the appellate tribunal". . : 20., "The mere, change by, amendment", in the circuit court as to a claim "for extraordinary services". of the administrator, "in the par- ticulars of .the service and h°w. the same came to be rendered or included originally in the account was within the legitimate field for amend- ments." See also Compensation of Admr., etc. —Sloan v. Duffy, 117 W., 480, 483. ACCOUNTS OF EXECUTORS AND ADMINISTRATORS 15 21. As on appeal from county court "the trial in circuit court is a trial de novo", (Sec. 4034) and as under sec. 3, county court rule 15, "even in case of no i contest , a final account shall not be allowed of course", "but the court shall be satisfied of its correctness",- — 22. "A fortiori must this be the case when specific objection is made", under sec. 4, rule 15. And as to such items so objected to, "we think there can be no doubt that evidence should have been introduced by the executor - to show their correctness before ■ they could ■-. be- properly allowed"; 23. And for failure so to do we must "reverse that part of the judg- ment which affirms the judgment of, the county court as to these two items". "There 1 was evidently a -misapprehension in the trial court as to where the burden of proof rested on these items''. —Fitch v. Huntington, 125 W. 204, 209. 24. Where the account of an administrator, includes "charges for disbursements and expenses against the estate of over $1100, to collect a claim which was legitimate only" "to the extent of $28.57", "incurred in pursuing the real estate", "lasting over six years'", involving much litigation, also being twice in the supreme court (Will of Madden, 104 W. 61, see Administration, Expenses; and Mackin v. Hobbs, '116 W. 528, see Sale op Realty); there being "most reprehensible mal-adminis- tration" and "bad faith and inexcusable improvidence and laches char- acterized the litigation", — such charges were disallowed, "except the small amount of $25.40", being per diem, printer's and appraiser's, fees. 25. "Expenses dependent upon judicial discretion should always be rejected where they are the result of bad faith or inexcusable negligence". 26. "There are some allowances' to an administrator .which are en- tirely beyond] the reach of discretionary interference. In re Fitzgerald, 57 W. supra; See. 3929 (Since amended by ch. 660, L. 1907, inserting after the words, 'he shall be allowed', the phrase "unless derelict in his duty",— submitted! by the writer). , . , , ; r ,, , ; :,.,', 27. "Courts should set a pretty high mark for the judicial test of, the business conduct and fidelity of trustees, whose administration they are in duty bound to supervise"* "Severe judicial, mere opinion, conr damnation", should not be '''followed by awarding the recreant officer substantial compensation", "where, there is jjudicial discretion". . ' ,.; — Mackm v. H&bbs, 126 W. 216, 222. 28. As, to rent paid in advance to decedent by note, being payable to the widow as life tenant. See Rents and Profits. 29l As to accounting division of expenses and fees, where the executor as such acts also as trustee- See Trustees. — Est. of Hemphill, 157 W. 331, 337. 30. A co-executor may appeal from the allowance of an account ' ' with- out the consent." of his co-executor. See also Appeal,. , : .,,,.; t ,, —Will of Hyde, 157 W. 462, 465. 16 PROBATE AND GENERAL LAW, CODIFIED ACCOUNTS OP GUARDIANS. See also Guardian and Ward. Trustees. Trust Funds. Action before settlement, 11. After ward's decease, 10. Heir and guardian, 55. Without administration, 54. Annual accounts: appeal, 15, 23. Allowance not final, 1. Court rule authoritative, 23, 24. Not an estoppel, 221 'Prima facie correct, 2. Annual rests, 8, 52, 53. Attorney: employed, 46. Funds turned over by, 49. Guardian is not, 48. Negligence of attorney, 45. Effect of court's -order, 23. Court rule effective, 24. Funds : invested at interest, 31. , Turned over by attorney, 49. Heirs: at waroVs decease, 54, 55. Interest: compound when, 3, 9 ; 33. Annual rests, 8, 9, 52, 53. From filing of petition, 30. , Simple interest, when, 4, 5, 25, 33, 34. When to commence, 6, 7, 32, 34, 50. Investment: what is, 41, 42. Attorney as agent, 47. Investment-Continued Duty to invest, 45. Negligence of attorney, 46. On guardian 's security, 43, 44. Judgment: conclusive, 36. After ward's decease, 54, 55. Laches, not applied, 28, 29. Limitation statute, 28, 29. Neglect by guardian, 48, 50. Support: as charged, 18. Aunt in loco parentis, 51. Before appointment, 16, 17. Beyond annual interest, 19. Living in guardian's family, 20. No claim made therefor, 26, 27, 39, 51. Out of body of estate, 21. Widowed mother, to, 37. Without court order, 21. Sureties: right to credit, 40. Liable for negligence, 47. Settlement: by county court, 12. After ward 's decease, 10, 54. By court of equity, 13, 14. Conclusive on parties, 36. Direction effect of judgment, 35. 1. "The allowance of the accounts, although a judicial act, was not in the nature of a final adjudication between the parties. The accounts were rendered by the guardian, and acted upon, by the probate court, during the minority of the wards, and ex parte". 2. The accounts rendered from time to time, "as allowed, are pre- sumed to be correct until the contrary appears. But they are only prima facie correct, and wherever they are erroneous the ward may have them corrected. They are only partial accounts, and do not bind him in any particular when he is able to show they are erroneous". — Willis v. Fax, 25 W. 646, 650. 3. ' ' The result of all the authorities seems to be that only in cases of fraud or flagrant breach of trust should the guardian be charged with compound interest. 4. But if he fails to invest the trust fund in his hands so as to derive an income from it when he should have done so, he should be charged with simple interest at the legal rate, although such failure may not have been the result of any fraudulent intent or wilful disregard of duty. 5. These are believed to be just and salutary rules, and we do not hesitate to adopt them as the law of this case and other cases like it". 6. "There are cases which hold that the computation of interest should ACCOUNTS OF GUARDIANS 17 not commence until a reasonable time has elapsed after the trustee receives the fund, to enable him to invest it properly. , 7. Many of the cases name six months as such reasonable time. This is not an absolute, unvarying rule. There may be considerations which render it inapplicable to a given case", and it rests "in the sound discretion" of the court. ■ (Followed in Abrams v. U. S. F. & Guaranty Co., 127 W. post.). 8. "For the purpose of deducting the sums allowed for. maintenance Of the ward, the rests and deductions 1 should have been made annually ; and on the balance remaining in the hands of the" guardian, "simple interest should have been computed to the date of the findings and judgment". 9. In this case, "Charging interest from, the beginning is approved, and an erroneous computation of compound interest by semi-annual rests, is not set aside, because of liberal allowances to the guardian, and ' ' an enormous overcharge, evincing an entire disregard to the rights of the ward",, and a small difference of only $11.35, under ''the maximde minimis non curat lex". • — In re Thurston, 57 W. 104, 108. 10. "The general question", "Can the accounts of a guardian be adjusted by the county court after the decease of the ward; in a pro- ceeding to which the guardian and the heir of the ward are the only parties, without any administration of the estate of the deceased ward," is not determined, but it is said, — "as at present advised, we all incline to the opinion, that it must be answered in the negative". ■ >- (So decided in Glasspoole by Gdn, v. McGuine, 143 ~W. post.). —Israel v. Silsbee, 57 W. 222, 232 11. "An action at law to recover money in the hands of the guardian should not be maintained by the ward before the guardian's 'accounts have been settled in the county court".' So held on demurrer. , 12. The county court "has full power to compel the guardian to settle his accounts, and can possess itself of all the facts, necessary for an intelligent settlement of such accounts more readily than a jury possibly can do, and with less expense* to the parties". ' . , 13. "Willis v. Fox, 25 W. 'supra, was an equitable action, and it was said that courts of equity should not exercise jurisdiction over guardians and compel them to account, 14. Except where some special reasons were shown for withdrawing the matter from the county court. In that case it was thought that the question as to the alleged mismanagement of the ward's estate was a sufficient reason", and it seems questioned whether this "was well founded or not". —Kugl&r v. Prien, 62 W. 248, 249. 15. As to the adjudication of the annual account of minors, recon- sidered on appeal from p, final accounting, it is said, there having been Zimmerman — 2 18 PROBATE AND GENERAL LAW, CODIFIED no appeal, that "perhaps no appeal was allowable, or necessary to pro- tect the rights of either party". . 16. "Where "the evidence shows that the guardian was the husband of the sister of the mother of the minors, and it tends to show at least that, when the children were taken into the family of the guardian, it was understood between the mother and the guardian that there was to be no charge made by him for their board," a minor of tender years having lived with him for about two years before the appointment and for like time after the appointment and after receiving a small legacy from a grandparent, — it was held that there was "nothing in this case which entitles the guardian to any such allowance ' ' for support previous to the appointment. 17. "Such charges for support previous to the guardian's appoint- ment are only allowed when there are the strongest equities in favor thereof. In re Besondy, 32 Minn., 385 ; Villard v. Robert, 49 Am. Dec, 654, and cases cited in a note on p. 660 ' '. 18. An allowance at the final accounting of only fifty cents a week for board, for each of two minors, by the court below, was not disturbed; as "the allowance was probably fixed at that amount because the guar- dian" in his prior annual account "charged at that rate for their board. 19. Under many of the authorities, no allowance should have been made to the guardian for the support of his wards beyond the annual interest upon the estate in his hands. See Villard v. Roherts, 49 Am. Dec, 654, and Beeler v. Dunn, 49 Am. Dec, 761, 3 Head., 87. 20. And when the guardian claims for the board of his infant wards when they are living in his family, without first obtaining an order from the court to use the principal of their estate to pay for such board, he must make a case which appeals strongly to the equity powers of the court." 21. "Although we are of the opinion that in a proper case the court might allow for such support out of the body of the estate without first obtaining an order for that purpose, we are not satisfied that the facts in this case would justify such an allowance, and, had the trial court refused to allow anything beyond the interest of the estate in payment for their board in this ease, we should have felt constrained to affirm such decision." 22. "While the orders of the county court on the annual accounts "were not an estoppel against the defendant" guardian, "we think they were properly received in evidence for the purpose of showing the character of the claims made by the defendant". 23. "Whether or not passing upon an annual account "as required by sec. 3972, would be conclusive upon the guardian or ward if not appealed from", the old court rule sec. 10, rule 10, "must be held to be an authoritative declaration as to the effect which shall be given to the orders of the county courts made under said sec. 3972. See also "Willis v. Fox, 25 W., 646". 24. (Part of sec. 3, rule 8, of the present rules, substituted for the old ACCOUNTS OF GUARDIANS • 19 sec. 10, rule 10, as to sec. 3972, provides : ' ' Upon such hearing any errors in such account may be corrected upon the principles applicable to the settlement of guardians' accounts, and the account so corrected shall be prima facie correct". This is apparently pursuant to and in harmony with the principle approved in Willis v. Fox, 25 W., supra.) 25. The guardian was charged with- legal simple interest on the sums in his hands from the time of receipt thereof until paid (less expendi- tures allowed with interest considered thereon), which was approved. 1 ' There can be no doubt but that the guardian should be charged with interest on the balance of the estate in his hands. In re Thurston,' 57 W., supra." (On this point, approvingly cited in Taylor v. Hill, 87 W., post.). — Olsen v. Thompson, 77 W. 666, 669. i 26. Where a widow and three minor children were held each entitled to one-fourth of receipts from a life insurance policy, receipted for as a whole by the widow and guardian of the minors as such, in 1870, and the guardian permitted the widow to retain the entire fund, and no demand was made on the guardian for the money or an accounting until 1891; 27. And the widow supported' the children gratuitously, "never made any claim for such support, and now refuses to make any such claim", it is held, on proceedings for an accounting by the children, — That the guardian cannot "be credited with the support of the wards" so furnished; , : 28. That there has been no "laches which will bar a recovery". "As between the trustee of an express trust and his cestui que trust, the statute of limitations does not apply, 29.' Nor does any bar in analogy: thereto, unless the full period of limitations has elapsed since the denial or repudiation of the trust. Laches is a bar in analogy to the statute of limitations. Fawcett v. Faweett, 85 W. 332", (cited under Laches. Implied Trusts) ; 30. That the judgments of the county and circuit courts, requiring the guardian to account for the full amount of such wards' funds, with interest from the date of filing petition for accounting, less fees, com- missions, and counsel fees, were proper, and are affirmed. (As to in- terest, see Taylor v. Hill, 87 W. post.). v '..■■■■ ' . r— Taylor v. Hill, 86 W. 99, 105. 31. "The rule that it is the duty of a guardian to invest the funds of his ward so that interest may be derived therefrom is as old as the common law itself, and needs no citation of authorities. 32. That he must be charged with interest if he fails within a reason- able time to invest his wards' funds is also a well-established principle. 33. If such failure to invest results' from fraud or wilful breach of duty, the guardian will be charged with compound interest. If, how- ever, there be simply neglect of duty, without fraud or intentional mis- conduct, he will be' charged with simple interest. These rules were 20 PROBATE AND GENERAL LAW, CODIFIED recognized and applied in In re Thurston, 57 W. supra. See also Olsen v. Thompson, 77 W. supra." 34. "The guardian, therefore, must be charged with simple interest upon the funds in his hands after the expiration of a reasonable time from his receipt of the funds. This reasonable time is generally held to be six months after their reecipt, and that seems entirely reasonable in the present case". See the facts in Taylor v. Hill, 86 W. supra. —Taylor v. Hill, 87 W. 669, 671. 35. "No doubt, the direction of the county court upon the settlement of the accounts of the guardianship has the force and effect of a judg- ment, 36. And is conclusive of the rights of the parties, for the judgment of a county court as to matters within its jurisdiction is as conclusive and final as the judgment of any other court. Barker v. Barker, 14 W., 131, 147 (See Judgment.) ; Brook v. Chappell, 34 "W., 405 (See Juris- diction) ; Appeal of Schaeffner, 41 W., 260 (See Construction of Wills). —O'Connor v. Decker, 95 W. 202, 204. 37. " The propriety , of the allowance" to a widowed mother, whether she be or be not guardian, for reasonable expenses incurred by her in the support of her minor children, out of their estate, need not be impugned or questioned. 38. She has the unquestioned right, if she chooses, to support those children voluntarily and out of her own means; and, if she so elects, it lies not in the mouth of anyone else to complain. Taylor v. Hill, 86 W. supra". 39. .Having in her account as guardian, filed six months before her decease, stated that "she will make no charge at this time on account of" such support, "we cannot say that at the time of her death she could have successfully demanded, as a rightj credit for the support of the children. : 40. We cannot accord to her sureties a right which she did not have. 41. Doubtless, after receiving her ward's money, the guardian might have discharged her liability by a safe and legitimate investment of the guardianship funds upon proper security". 42. But notes secured by a third mortgage, "in a loan to herself", being "inadeqquate as security" is not "an investment at all". 43. "Guardians must not confuse their trust capacity and their per- sonal capacity in dealing with trust funds. No matter how good might have been the security given by the guardian upon the borrowing of guardianship funds from herself, it cannot serve as a credit further than moneys are actually realized therefrom. (Cases)". See also Guardian and Ward. — Hudson v. Jenson, 110 W. 26, 39. 44J As to guardian crediting individual notes payable to himself, and note and mortgage executed by himself, and bond liability therefor. See Bonds. —Brehm v. U. 8. F. & Guaranty Co., 124 W. 339, 349. ACCOUNTS QP; GUARDIANS 21 45. "The guardian (of minors) was a trustee of the funds of the wards. It was her duty, on receiving such funds, to keep them, for her wards, and to. invest so much of them as was not required for immediate and necessary use, as soon as she could do so with reasonable diligence. 46. She could employ an attorney to collect them, and, if she exer- cised reasonable care and prudence in the choice of an attorney, doubt- less she would be protected from loss occurring by the fraud or negli- gence of the attorney in the" course of his duty as "collecting agent; 47. But when she had received the funds by draft or; in cash the. functions of the attorney for collection ended, and if she then placed the funds in his hands to invest he became simply an agent to whom she had attempted to delegate her duties as trustee", and she and her bonds- men are responsible for loss resulting by the default of the attorney. Lewin, Trusts. Vol. 1, p., 252. So held, 48. "The guardian has not undertaken to act as an attorney*, but the care and investment of the funds which reach his hands is one of the very things which the guardian has agreed to attend to", and "he cannot delegate to others" such duties. 49. Where the attorney collected the funds, and turned over to the guardian checks and drafts therefor, and she "endorsed them and handed them back to the attorney, to be invested iby him for her as guardian", she and her surety are liable forrloss incurred by thei attor- ney's handling thereof. 50. Where "the guardian absolutely neglected her duty and made no attempt to invest the funds, we cannot say that there was an abuse: of discretion" in allowing only "about two months upon a part of the funds, and three months upon the balance,' during which time no in- terest was charged". In re Thurston, 57 W. supra. 51. The guardian, an aunt, was allowed credit "for food furnished", but "neither the guardian nor the surety has any right to" credit "for lodging or services", as "she voluntarily stood in loco parentis to these children and never' intended to charge them anything" therefor. Hut- son v. Jenson, 110 W. supra. 52. Whiledt ''was not the proper plan of accounting", to allow "the guardian interest on her disbursements at six per cent per annum from a period midway between the time of her appointment: and the time of her resignation", but, being "more favorable to the appellant, there was no prejudicial error". ' 53. -"Annual rests should have been made, and the amounts expended for the ' preceding year deducted, and , the interest computed on the balance up to the next annual rest". In re Thurston, supra. ^-Abrams v. V. S. Fidelity & G. Co., 127 W. 579, :583. 54. As '^intimated" in Israel v. Silsbee, 57 W. supra, it' is now de- cided that "the accounts of a guardian of " a deceased ward cannot. "be adjusted by the county court" between "the guardian and the heir", or. without "administration of the estate of the ward". 22 PROBATE AND GENERAL LAW, CODIFIED 55. Nor can the "court render judgment directly in favor of the heir and against the guardian for the amount found due by the guardian to his ward's estate".' — Q-lasspoole v. McGuvne, 143 W. 294, 295. ACCOUNTS OP TRUSTEES. • \ See Accounts 1 of Extrs. & Admrs. Accounts of Guardians. Trus- tees. Trust Funds. Trusts. ACKNOWLEDGMENT. Agent or .deputy, 5. ., .Valid acknowledgment, 2. Denial and withdrawal, 3. Without the state, 6. Formula, no prescribed, 1. Clerk's additional certificate, 7. Object of acknowledgment, 4. ! 1. "There is no prescribed formula of the acknowledgment of a con- veyance. It is sufficient if the. grantor, after being fully informed of the contents of the instrument, declare to the officer taking his acknowledg- ment that he executed the same. ■ ■ < : i ■ 2. In this ease Mrs. D. knew the contents of the mortgage,, declared her approval thereof, and acknowledged that she executed the instru- ment. This is a valid acknowledgment. 3. True, she afterward denied, in the presence of the justice, that she executed it freely, but she did not attempt to cancel or recall the acknowl- edgment previously' made; and; it' may be doubted whether she could withdraw her acknowledgment after having once made it". i -^-Lefebvre v. Dutruit, 51 W. 326,, 331. 4. "The object of an acknowledgment is to verify the fact that the person whose name is subscribed to the deed did in fact, subscribe the same as his deed ; 5. Or, if he signed it as deputy or agent, that he subscribed it for his principal." — Ward v. Walters, 63 W. 39, 42. 6. An acknowledgment, of a deed "outside of this state, before a notary public, who 'certified to the same substantially in the form pre- scribed by our statutes, and made the impression of his official seal as such notary public upon the instrument", was held "sufficient, 7. And hence that Such deed was properly admissible in evidence without having annexed thereto an additional certificate to the effect that such notary was such officer Sees. 2216-2219". ^-Washburn L. Co. v. Swamby, 131 W. 1, 3. ACTIONS 23 ACTIONS. See also Actions Against Extr.vOR Admr. Admr. Creditors' Actions. Actions by Extr. or Accrual, as to decease, 18. Actionable form, when, 7. Against debtor and trustee, 20. Agreement not to begin, 1. Amendment, law to equity, 14. Character, determined, 9. Creditors against heirs, etc., 8. Ex delicto, ex contractu, 6. Filing claim, 3. Heirs: for their shares, 2. Creditors against heirs, 8. Cumulative bond remedy, 2. Incompetent : bring in person, 15. Adjudged insane person, 16. Proper course to pursue, 17. Money had and received, 12, 13. ' Equitable in nature, 19. Implied repayment, 21. Payor bring on judgment, 10. Proceeding, when action, 5. Surety on bond, notice, 11. Title, estate of deceased, 4. 1. Agreement not to commence does not defeat action. See Agree- ment. — State Bank y. Corwith, 6 W. 551, 578. 2. Heirs have a right of action against the administrator for their shares. Also on the bond as a cumulative remedy. , See Liability. ; " —Williams v. Bams,l% W. 115. 3. Piling of a note for allowance, held, "the commencement of an action". " — Boyce v. Foote, 19 W. 199, 204. 4. The title may be the claimant v. "Estate of M. deceased". See Appeal. —McNight v. Estate of McNight, 20' W. 446, 447. 5. "The word- 'action' " as used in change 'of venue statute is held "to include this proceeding for the probate of a will", on appeal in circuit court. See also Venue. " — Jaoknum Will Case, 27 W. 409, 412. 6. The distinction between an action ex delicto, as conversion, and an aetion ex contractu, as for money had and received, "is not merely technical or formal, but is : a substantial one". In-the 1 former "execu- tion goes against the body,' in the other, against the property only". — Anderson v. Case, 28 W. 505, 509. 7. A cause of action must be "in a perfectly actionable form at the time suit was commenced". See 'also Set-Off. Common Law. ■ N — Orton v. Noonan, 29 "W. 541, 545.. 8. May be brought by a creditor against heirs, devisees or legatees, where the will was probated but no further proceedings were had. See Heirs. —McGonigal, J. v. Colter, 32 W. 614, 625. 9. The character of an action is determined by the relief demanded. See Prayer for Belief. —Lowber v. Connit, 361 W. 176, 182. 24 PROBATE AND GENERAL LAW, CODIFIED 10. The real party who pays, may bring an action to recover on a judgment. See Parties. Vacating Judgment. ^—Mann v. Aetna Ins. Co., 38 W. 114, 117. 11. Notice or demand on surety is not necessary to obtain' leave to sue on the bond. See Bond. —Elwell, Judge v. Prescott, 38 W. 274, 278. 12. "An action for money had and received is maintainable whenever the defendant receives money which, in equity and good conscience, he ought to pay to the plaintiff. Lockwood v. Kelsea, 41 N. H., 185; 13. In the language of Lord Ellenborough, C. J., in Hudson v. Robin- son, 4 M. & Sel., 475-478, 'an action for money had and received is maintainable whenever the money of one man has, without considera- tion, got into the pocket of another' " See also Pleadings. — Wells v. Am. Ex. Co., 49 W. 224, 230. 14. It is "clearly error" to allow an amendment against objection "changing the action from one at law to an action in equity". —Kavimdffhy. O'Neill, 53 W. 101, 106. 15. "At common law, and in the absence of a statute to the contrary, a weak and feeble-minded person of full age may bring an action in his own name, and appear by attorney, and not by guardian ad litem, (many cases) "; and so held in an action to set aside a fraudulent trade of lands, there being no statute to the contrary. — Mem v. Beeoe, 95 "W., 383, 389. 16. Following Menz v. Beebe, 95 W. supra, it is held that one "ad- judged to be insane by the county court", may properly commence and prosecute an action in his own name,^the statutes, sec. 2613, providing "that an infant must appear by guardian, but omit any such require- ment with reference to the insane plaintiff". 17. But "the proper course for courts to pursue when it becomes apparent that a plaintiff, by reason of his insanity, cannot safely pro- tect his rights in the litigation,; is illustrated by Wiesmann v. Daniels, 114 W; 240, where, upon suggestion of such a situation, this court" ' ' appointed a guardian ad litem and directed the case to proceed ' '. —Wiesmann v. Donald, 125 W. 600, 602. 18. 7 As to conditions when a cause of action accrues before and after death. See Claims. — Barry v. Minahan, 127 "W. 570, 573. 19. Although an action "for money had and received" "is legal in form, the right to recover is in its nature equitable, and can only be enforced where the' defendant has received money which in equity and good conscience he ought to pay to the plaintiff. ( Cases) ' '. — Steuerwald v. Bichier, 158 W. 597, 602. ACTIONS AGAINST EXECUTOR OR ADMINISTRATOR 25 20. An action in equity "against the debtor personally", and includ- ing a trustee as defendant also, was held proper to compel a transfer of the debtor's interest in the trust. See Trust Variation. —Mangcm v.Mea, 158 W. 619, 625. 21. An action "for money had and received" "arises frQm the im- plied agreement to return the part" paid, on failure to convey title. See also Principal ANb Agent. —Jensen v. Miller, 162 W. 546, 548. ACTIONS AGAINST EXECUTOR OR ADMINISTRATOR. See also Actions. Concurrent Jurisdiction. Against deceased stockholders, 4. Joint wrongdoers, deceased, 8. Executors and personally, 5. Remedies of claimants, 2, 3. Good will conversion, 6. Surety for contribution, 1. Claim filing expired, 7. 1., An action by a surety against an executrix of a deceased co-surety for contribution, cannot be maintained, where the time limited in which to present claims has been fixed and notice given, and no claim 'for such contribution has been filed. 2. See. 3868, providing "that 'the claimant may also have a remedy by any proper action' ", "is clearly limited to such' actions as are expressly authorized by the chapter in 'which that section is contained, 3. And not to such as are therein expressly prohibited, and in lieu of which other remedies are therein provided ' ', as under sec 3858 and sec. 3860. See Contingent Claim. ,,,^-Emst v. Nau, Extrx. 63 W. 134, 139. 4. Suit to establish a claim against executors of deceased stockholders of an insolvent bank, though no claim filed in the county court, held^ proper. See Concurrent Jurisdiction. — Gicmella v. Bigelow, 96 W., 185. 5. Causes of action against executors, etc., and against them individ- ually, cannot be joined in the same action. —Crowley v. Hicks, 98 W. 566, 572. , 6. ,An action "for wrongful appropriation of the good will by" a deceased survivor in the nature of a trustee of a bank; corporation which expired by limitation^ and for "wrongful appropriation of the assets", is held to survive under see. 4253, as "one for an injury to personal estate". (Cases) ; 7t And such action may be maintained, though ' ' the time for filing claims against" the estate has not expired, and it is in process of 26 PROBATE AND GENERAL LAW, CODIFIED administration, as results can "be most effectually and efficiently accom- plished in an action for winding up the bank's affairs". —Lindemamnv. Busk, 125 W. 210, 225. 8. Judgment against the executor of a joint wrongdoer, separately, is held proper,— such defendant having " died 'pending the litigation". See also Bond for Maintenance. ' —Borchert v. Borchert, 141 W. 142, 144. ACTIONS BY EXECUTOR OR ADMINISTRATOR. See also Actions. Damages. Concurrent Jurisdiction. Creditors' Actions. Accounting in specie, 28. Remedy at law, 29. Circuit court relief, 46. Barred in county court, 47. Eights previously fixed^ 49. Subrogation of claims, 48. Conversion after death, 41. Disbursed in good faith, 42., No damage been done, 43. No damage defense, 45. Preferred claims paid, 44. Bights previously fixed, 49. : Subrogation: of claims^ 48. ,| Conversion before death, 35, 37. Demand not required, 40. Money conversion, 39. Payment by cheek, 38. Death damages: personal, 12. Brought by administrator, 13, 14. Brought by widow, etc., also, 15. Proceeds to widow, etc, 13, 15. Evidence of competency, 36. Of check payments, 38. , {>'■ . Fraudulent transfers, 16. Accounting in equity, 28. Burden upon administrator, 33. Cestui que trust, 29. Constructive trust, 27. • Fraudulent transfers — continued Deficiency of assets, 17. Estoppel not found, 34. Future creditors, 30. Payment of wife's debt, 32. Property in specie, avails, 25. Bescission of contract, 26. , l( Sec. 3832 covers all, 31. Implied contract, 20, 21. Limitation statute, 24. Pleading: counterclaim, 23. Limitation statute, 24. Preferred claims paid, 42. Barred in county court, 41. No damage done, 43. Resulting trust, 21. Setoff: against deceased, 3, 4. Confirmed by see. 4260, 11. Mutual claims, 8, 9, 10. Nonresident administrator, 22. Nonresident relatives, 18. On executor's contract, 1. To recover assets, 2. Under see. 3847, 6, 7. Where claims not barred, 5. Trust enforcement, 19, 21. Constructive trust, 27, 28. Widow applies estate funds, 41. 1. ' ' The rule seems to be well established that in an action brought by an executor or administrator upon a contract made by such executor or administrator himself, after the death of the testator or intestate, 2. Or to recover assets belonging to the estate in the hands of a third person, 3. A claim due from the deceased to the defendant cannot be set off or counterclaimed. ACTIONS BY EXECUTOR OR ADMINISTRATOR 27 4. The reason of the rule is that in all such cases the allowance of such set-off or counterclaim would necessarily destroy the equal and just distribution of the assets belonging to the estate among the creditors in every case where the assets were insufficient to pay all the debts of the deceased. '(Many cases) ". See also Administration Expenses; Ciaims. Liability. i, 5. It is indicated, but not decided, that ' 'if any assets of the intestate ' ', "other than a debt due to the estate from the defendant upon a con- tract made with the intestate in his lifetime, can be appropriated to the satisfaction iof a debt due from the. intestate to such defendant, it can only be done in a case where it is made to appear affirmatively that" the estate is solvent, and that "the claim of the defendant against' the estate had not been barred, because not presented for allowance within the time prescribed by law. (Cases) ". 6. Actions under sec. 3847, "in which such setoff may be made, are actions to recover a 'debt or claim' due from the defendant to the intestate in his lifetime, 7. And not an action to recover upon a contract made with his ad- ministrator after his appointment, or an action to recover the assets belonging to the estate which have come to the hands of the defendant after the death of the intestate ' '. 8. "Where there are mutual claims between the intestate and one of his creditors, there are two ways or adjusting such claims: 9. First, under sec. 3841, when the 1 creditor presents his claim for allowance", the county courts "pass upon both claims, and strike the balance in favor of the largest claim. ■ ■« 10. Or, under sec. 3847, the administrator, instead of waiting for the presentation of the creditor's claim" in the county courty "may bring an action against such creditor on the; claim 'due to the intestate, and then the creditor may, if he choose so to do, set off his claim against the estate in that action. 11. This construction of this section is confirmed by the provision of see. 4260, in relation to setoff". . '(<•-■ ^McLaughlin v. Winner, 63 W. 120, 124. 12. The right of recovery of ■ the widow under the statutes, sees. 4255-56, for damages for causing the death of the husband "isi personal, and dependent upon pecuniary < loss", and does not survive to her administrator. 13. "Moreover the action must be brought by and in the name of the personal representatives of such deceased person." (But, see par. 15, post.). "Such damages do not go to. the estate of the deceased, but to the beneficiary named in the statute. Gores v. Graff, 77 W. 174". — Schmidt v. Menaska W. Co., 99 W. 300, 301. 14. An action to recover for the death of the intestate, under sees. 4255-56, must be brought by the personal representative, for the benefit 28 PROBATE AND GENERAL LAW, CODIFIED of the beneficiaries, as given in the statute, only. Brown v. C. & N. W. R. Co., 102 W. 137. 15. "The right of action, therefore, is purely statutory, and in this case is given solely for the benefit of such children", "and constituted no part of" the intestate's estate, and "hence the final settlement of that estate", " cannot • operate as a bar to their right of action by" a properly appointed administrator de bonis non. (By amendment of ch. 186, L. 1913, to sec. 4256, the husband, widow or parent, may also now bring such action).- See > also Admb. de Bonis Non. —Hubbard v. C. & N. W. B. Co., 104 W. 160, 164. 16. "There is no right on the part of the administrator to attack alleged fraudulent transfers of property made by his intestate except under the provisions of sec. 3832. (In effect over-ruled in Borchert v. Borchert, 132 W.,post), : 17. Under this section it must appear, in order to entitle the adminis- trator to maintain it, that there is or will be a deficiency of assets to pay creditors existing at the time of the transfer. " (Over-ruled in Saw- yer v. Metters, 133 W. post, the statute not being limited to ' ' creditors existing at the time of the transfer".) . —Eckler v. Wolcott, 115 W., 19, 20. 18. Sees. 4255-56 "do not give to nonresident alien relatives" such right of action. (By Amdt. of ch. 35, L. 1915, to sec. 4256, now "a non- resident alien surviving iwife and minor children shall be entitled to the benefits".). —McMillan v. Spider, L. S. M. & L. Co., 115 W. 332, 340. 19. On demurrer, an action in equity is held properly brought by an administrator (the heirs being joined) against the intestate's fiduciary agent "in a position of special trust and confidence" having control of known and unknown "amounts of his principal's money", for an ac- counting, and payment, and for moneys improperly invested in realty, and for reconveyance of the same to defendant. 20. "Whether it be viewed as an action to enforce a trust or to recover on implied contract, the cause of action'survives at common law, and no support for such result is needed from sec. 4253. 21. The cause of action arising from deceit and fraud, which did not survive at common law, and which we have held not to be given survival ,by that section, is the recovery in tort for the damages suffered by the plaintiff. (Cases)." Here the attempt at recovery is "only defendant's gains, upon implied contract or resulting trust." -^Somtm^rvwill v. McDermott, 116 W. 504, 509. 22. An administrator appointed in another state, where the deceased and his relatives were all residents, may bring an action under sees. 4255-56 for wrongful death in this state. ■—Robertson v. C. St. P: M. & O. B. Co., 122 W. 66. ACTIONS BY EXECUTOR OR ADMINISTRATOR 29 23. While "in case of a defendant, in an action brought against him by an executor, counterclaiming under sec. 3847,' he must, in order to succeed, have a demand not barred by sec. 3844" in the county court, — a claim "enforcible there" (Carpenter v. Murphey, 57 W., 541, see Claims), — 24. Yet, he is not "required to plead affirmatively the facts showing that the demand is not affected fatally by any statute of limitations. That is a defense under the general rule stated in South Milwaukee Co. v. Murphy, 112 W., 614". — Bust v. FitzJmgh, 132 W., 549, 555. 25. -Contrary to Eckler v. "Wolcott, 115 W. supra, it is held, that an" administrator may proceed for the "recovery of property in specie or the avails thereof", obtained by a fraudulent transfer from the intestate "and to the prejudice of the heirs", though the rights of creditors are not involved. 26. "The right to sue for rescission of a contract secured through fraud and to recover property obtained under such contract, or the proceeds thereof, survives, on principle, as the authorities abundantly show. Coon v. Dennis, 111 Mich. 450; Sharon v. Terry, 36 Fed. 337". 27. "An action lies to establish a constructive trust and to recover the subject thereof where the property wrongfully obtained in specie, or in its converted form, still remains in the possession of the wrongdoer. 28. In case of a constructive trust an action lies in equity for its establishment and for an accounting, Even though .the property wrongfully obtained is personal and, in specie or in some new form into- which it can be definitely traced, is within the reach of a plain remedy at law, where it is necessary in order to obtain complete justice for equity jurisdiction to deal with the situa- tion. (Citation). 29. This court quite recently held that the better rule is that the cestui que trust may always sue in equity for an accounting. Harrigan v. Gilchrist, 121 W. 127, 252". —Borchert v. Bmchert, 132 W. 593, 596, 30. Overruling Ecklor v. "Wolcott, 115 W. supra, "so far as out of harmony with the doctrine laid down here", it is held, "that an action can be maintained by an administrator under sec. 3832, to set aside a conveyance fraudulent as to future creditors whose claims arose after the conveyance and who were in the contemplation of the grantor 1 at the time of the conveyance and who were intended by the grantor to: be defrauded by such conveyance." + 31. The statute "was manifestly intended by the legislature to cover all conveyances made by decedent in his lifetime and which 'by law are Void as against creditors'," "where there is a deficiency of assets". (Cases). 32. Where the conveyance was to the wife "in payment of a bona fide debt, meritorious in character, and quite adequate to the value of the 30 PROBATE AND GENERAL LAW, CODIFIED property conveyed in payment of it", the deed was upheld as against creditors of sixteen months thereafter. 33. There being a "valuable consideration", and the deceased other- wise having "no debts at the time", "the burden was upon the appellant (administrator) to show that the deed to defendant was fraudulent". 34. Where the wife was not present when deceased represented that he owned the land, she is not estopped by his claims. —Sawyer V. Metiers, 133 W. 350, 355. 35. A complaint by an administrator charging "that the defendant had decedent's money in his possession at the time of her death and that he retains the same in his possession and has converted it to his own use", sufficiently alleges "a taking and conversion of the money before her death". , 36. Where the defendant obtained decedent's money in her lifetime, from her bank deposit with her checks, "evidence of decedent's mental capacity" and of her incapacity of "transacting any business" "at the time the checks were given", is held erroneously refused. 37. So obtaining "the checks and the proceeds thereof " would be wrongful, and "this would operate as a fraud upon the decedent and would not vest in defendant any right to the checks or the proceeds", and the bank's payment " rendered him liable to her, for his wrongful conversion of it". 38. ' " True, in a bona fide transaction the giving of a check is pre- sumptive evidence of the payment of a debt (citations), but this pre- sumption is not conclusive and may be wholly overcome by, other evi- dence." 39. For the wrongful conversion of money the defendant "will be held to the same liability as if he had wrongfully converted some other of her personal property. (Many cases) ". 40. "An averment of its wrongful taking is sufficient without demand, if sustained by proof of its original wrongful taking or subsequent wrongful appropriation". — Meyer v. Bokerty, 133 W. 398, 402. 41. In an action by an administrator, appointed about eight years after the decease of the intestate, for conversion under sec. 3824, against the widow, and the time for filing claims having expired, and there being claims, and no other assets, and the widow having filed no claim, 42. And her answer showing that she "in good faith" disbursed the estate funds sued for, in payment of "necessary and reasonable, ex- penses" of funeral and last sickness, — on overruling a demurrer to the answer, it is held : 43. That "the answer shows no damage has been done to the estate or to the administrator in this capacity", — "as trustee for the creditors and heirs",— and "there is no legal wrong under sec. 3259", or at common law. 44. "Having applied the assets of the estate in payment of these pre- Administration ■ 31 * f erred, claims, neither creditors of the second class nor heirs were aggrieved by such payment". McKeigue v. C. & N. "W. R. Co., 130 W. 543 (See Settlement). 45. "In those cases in which the law does not conclusively presume damages, it is always a defense to an action for tort or wrong to show that the plaintiff sustained no damage. , 46. This case being properly in the circuit court, that court has juris- diction to administer complete relief without referring the defendant to a useless proceeding in the county court, where it must be conceded- that no relief could now be given her. ' ' 47. "The fact that the defendant's claim against the estate, if she had one, would be now barred by reason of her failure to present it in the county court, 48. Does not affect either her equity to be subrogated to the claims of the preferred creditors or her right to resist the recovery here sought. 49. The rights of the parties were fixed by the transaction long an- terior to the time for filing claims, and the administrator" "never had a right of action against the defendant". —Merrill v. Comstoek, 154 W. 434, 436. ACT OP GOD. Excuse entire contract; 2. Sickness so regarded, 1. 1. Sickness '.'is regarded as the act of God", and will excuse delay or even nonperformance of contracts, for personal services. See Sickness. —Green v. Gilbert, 21 W. 395, 400. 2. Will excuse the performance of an entire contract. See Entire Contract. —Jennings v. Lyons, 39 W. 553, 557. ADDITIONAL BOND. See Bonds. ADEMPTION. See Legacies. ADMINISTRATION. See also Descent and Distribution. Kin. Probate op Wills. Administration: purpose, 18. Administration — continued Creditors right, 26. Necessary facts, 43. Effect of strangers, 2, 42. Next of kin, limited, 25, 28. 32 PROBATE AND GENERAL LAW, CODIFIED Administration — continued Eight is statutory, 23. Right under see. 3807, 24, 27. Appeal: new evidence, 11. Jury, improper, 11. New petition filed, 12. Application: of strangers, 1, 22. All heard, one petition, 7. Irregular, not void, 2, 41. Nonresident applicants, 5, 6. Petition defective, 38, 39, 41. Revocation, proper, 3. , Without notice, li Circuit court, 11, 12. Creditors right to, 26. Discretion of court, 9. Executor as trustee, 19. Until qualified trustee, 20. Executor, trustee of widow, 14. Federal jurisdiction, 16. Guardian, administrator, 4. Intestate estate and will, 13. Irregular, not void, 2, 41, 42. Jurisdiction, 31, 33. Absence of estate, 49. Appointment conclusive, 37. Jurisdiction — continued Decease and residence, 31, 43. Existence of estate, 45. Hearing on petition, 44. Petition defective, 38. Prima facie showing, 46, 47. Proceeding in rem, 36. ^ Property, death out of state, 43. Property in other states, 35. Status at death, 48. Stranger to proceedings, 42. •Limitation of administration, 21. Next of kin: meaning, 10. Absolute within thirty days, 28. Right to, limited, 1, 25. ■ Nonresident: applicant, 5, 6, 27. Administrator, 8, 9. Proceeding in rem, 15, 16, 36. Revocation, 3. Stranger applying, 1, 22. Vested at the death, 17. Will afterward found, 29. Administration revoked, 32. Effective until revoked, 34. Settlement effective, 30. 1. The decedent died "leaving a wife, who survived him only a few hours, and two infant children, who are still living. He had no other kindred within the territory of Wisconsin". "The father and uncle of the late" wife, were on their petition "appointed administrators" without notice "to the next of kin, as the statute requires,, and the thirty days, within which it was the absolute right of the next of kin to appear and claim letters of administration, had not expired. 2. This appointment was, in the highest degree, irregular, though not perhaps entirely void". (In Steinberg v. Saltzman, 130 W., post, it is said, as to this paragraph, — ' ' That decision has stood without criticism for over fifty years", and that "the suggestion that such an appoint- ment is probably erroneous only" and not "wholly void", has become established.) 3., "The order of revocation" "on the petition of" the brother and husband of the sister of the deceased, was held properly made. "The authority" "to revoke or reverse orders entered in the course of pro- bate proceedings", "must be regarded as incident to the general powers of the court, and indispensable to a right exercise of those powers". 4. It is indicated that "after the renunciation of the next of kin", that while "the appointment of administrators" "is wholly confided to the discretion of the judge of probate", subject to fitness and compe- tence, that the selection of "the general guardian of the infant heirs" "has often been deemed proper, where no special objections existed". See also Kin, pars. 24, 25. — Brunson v. Burnett, 2 Pin. 185, 188. ADMINISTRATION ■ 33 5: As to granting administration on the separate petitions of two sole heirs, "the fact that both are hon- residents may not absolutely disqualify *them far the appointment, though it is the manifest policy of the statute not to favor the appointment of a non-resident as admin- istrator. 6. This is plain from sec. 3803, which expressly authorizes the county court to remove an administrator who ' shall reside but of the state ' for that cause alone". i ' i 7. On the petition ' of one' heir, " all persons interested in the estate had the right to appear before the court at the hearing of this applica- tion and have their wishes in the premises considered", without other application being made. ' 8. On the applications of two non-residents, one for a resident and the other for a non-resident administrator, "the fact that" the latter "was not a resident of the state when administration was asked for, was a sufficient reason for not appointing him". ' 9. "The statute gives the court a discretion in the matter, and its judgment and discretion must be- guided by personal fitness, and vari- ous considerations affecting the appointment and the best interests of the estate'"- '< ' ! ■ • ''■'''■ ' ■■'■ " !i " ■'''■ ' ' '"' 10. The court does not determine whether 'next of kin' means all kindred, or those 'next of blood'. See Kin; pp. 24, 25. 11. On appeal to the circuit court on the question of appointment, "it was not a ease for a 'jury trial, or Where the introduction of new evidence would have*' been- proper", especially where "there was no dispute about the real facts which controlled the decision of the case". •' 12." "The circuit court properly disregarded the petition" filed there, "requesting the appointment of Daniel. F. Brown", not considered in the county court, "because not regularly 'before it". Esi. of Sargent, 62 W. 130,' 133. 13. '"Under bur system the executor' of the will, 'to whom letters of administration with the will annexed are issued, takes possession of all the personal estate' of the testator, " whether' the same be disposed- of by the will or not, and it becomes his duty, as such administrator with the will annexed, to settle the estate and distribute the same in the manner prescribed by law. See Subd. 6, Sec. 3935. 14. The executor, after he knew the widow had elected not to take under the 1 will of her husband, became her trustee as to her share of the personal estate, and must be held to an honest' discharge of his duties as such trustee". See also Widow. ' : ; ■v'-il. Beem v. Kimberly, 72 W. 343' 367. 15. "The settlement of estates in courts having probate jurisdiction is essentially proceedings in rem, and not 'civil suits commenced and prosecuted', within the meaning of the constitution. 16. It is upon this theory that the federal courts have uniformly Zimjnerman — 3 34 PEOBATE AND GENERAL LAW, CODIFIED disclaimed jurisdiction in probate matters; since such., jurisdiction is not conferred by the words: 'The judicial power shall extend to all cases in law and equity, arising', etc. Sec. 2, art. 3, const. U. S. 17. While an estate becomes chargeable at once for debts (Union Nat. Bk. v. Hicks,' 67 W., 191, cited under Debts), yet "the rights of heirs, devisees, and legatees, in a certain sense become vested at the death of such testate or intestate., 18. The administration of estates is to preserve the same until the claims pf creditors are ascertained and provided for, when the residue may be effectively transmitted to the respective parties entitled". — State ex rel. Sanderson v. Mann, 76 W. 469, 476. 19. "The executor (as such) was entitled to hold the estate upon the trusts implied by law from the will (Ford v. Ford, 70 W. 19) to collect and pay over such inqome from time to time to the widow during her life, and to hold the bequests, in favor of Z. upon the express trusts specified in the will. These trust duties would continue for the con- templated period, although his duties as executor might be sooner terminated, « ; , ; .■,,;,,;, . ,■ 20. He would, however, continue to hold the estate as executor until he should qualify as testamentary trustee,; and as it does not appear that he had so qualified, he held the estate by his title as executor until he, settled his final aceount. Sec. 4025 ; . Newcomb v. Williams, 9 Met. 525, 534''. .So held, and that he was entitled to compensation and expenses., (Followed in.Walber v. "Wilmanns, 116 W. 246, 250). See also Accounts of Extes. & Admbs. ' , —Sehine v. Schmz, 90 W. 236, 246. 21. As to the power and jurisdiction to grant administration after seven years absence, and as to inconsistent statements in the petition. See Peesumption op Death. —Wis. Trust Go. v. Wis. M. &,F. Ins. Gq. Bank, 105 "W., 464, 467. 22. "A mere stranger, having no interest in the estate or its admin- istration, cannot move the court ,fqr the appointment of an adminis- trator. Sees. 3807, 3808. This is elementary". See also Adminis- teatoe de Bonis Non. — Wiesmwnn v. Daniels, 114 W. 240, 243. , , , , i 23. "The right of administration while a very valuable one, is not inherent, but statutory. It may be given or withheld in the wisdom .of the legislature". 24.' Sec. 3807, specifying administration rights, "is clearly- manda- tory, and in itself declares its only exceptions." "Disobedience there- of" constitutes "error subject to review". (Cases.) ,25. "By subd. 2 of the same section, this right of the next of kin is limited to the case where he applies within thirty days after the death, and when he or the person nominated by him is suitable, ADMINISTRATION ■> 35 26. When those conditions fail, and not till then, do the creditors acquire any right over the nomination of an administrator; hence the appointment of" the public' administrator "as permanent administrator cannot be justified by the request of certain creditors. " ; 27. Nor is see. 3807 limited, "to the case of relatives resident in the state", though the public administrator was appointed under ''sec. 3819, which obviously provides merely for a temporary situation, and authorizes appointment of the public administrator only until those having lawful rights under sec. 3807 shall make proper application. , 28. Hence we conclude that' when the next of kin, within thirty days after the death of this intestate, made due application for the appoint- ment of a competent and suitable person resident in this state he was absolutely entitled' thereto. " "' i —Welsh v. Manwaring, 120 W. 377, 378. 29. Where complete administration was had, the judgment assigning all the estate to the widow as 'sole heir, and the widow and the deceased's mother "supposed that he left a will dividing the property between them" and "being still uncertain whether a will might hot yet be found, met and agreed", to' a settlement and division of realty, in writing, including "all claims of the mother as to the property (whether any will afterwards was found or not) ", 30. And a "will was afterwards found and probated", providing for a mutual division, — held in an action to quiet title, that "the settlement so made is effective", both on the ground of estoppel and on "com- promise of doubtful rights." Kereheval v. Doty, 31 W. 476. (See Compromise) . " l! " '"• < 31. "Residence" and "decease" are necessary, but jurisdiction "does not depend upon the presence or absence of a will". ■ l; 32. On such erroneous administration, "the letters of administration will of course be revoked, and all acts of the county court inconsistent with the due administration of the estate under the terms of the will will doubtless be revoked upon motion, 33. But such action will not be based on the idea that all such acts have been void for lack of jurisdiction, but rather on the ground that they have been erroneous ' '. ( Citations) . 34. "Until set aside, however, the (final) decree was effective upon the parties, because it was within the jurisdiction of the court, and was rendered upon due notice to all parties of the application for such decree. Appeal of Schaeffner; 41 W. 260". —Perkins v. Owen, 123 W. 238, 241. 35. Where "an intestate person leaves property located in different states", "there can be 1 no doubt that the appropriate court of each state where such property is located may, upon proper proceedings being had, grant letters of administration of so much of the estate as is therein located". 36 PROBATE AND GENERAL LAW, CODIFIED 36. The oounty court having '■', jurisdiction to determine whether the deceased left any property in the state, of, Wisconsin", "in such pro- ceeding in rem, its determination could not properly ^ e treated as a nullity nor be open ; to collateral attack". (Oases). 37. And it is held that the appointment of an "administrator was conclusive, on the defendant in this action" for damages for dece- dent's wrongful death, and that the question of fact as to whether deceased in fact had property to give jurisdiction for the appointment of an administrator, could not be inquired into. See also Public Administrator. —Jen-dam v. Q.,& N. W. B. Co., 125 W. 581, 589. 38. Following Brunson v. Burnett, 2 Pin., supra, it is held, "that mere failure to state in the petition for administration- all facts requisite to entitle the person named as administrator to the appointment, 39. Sufficient being shown to indicate that a cause for administration exists and that the application is in the proper jurisdiction, 40. Or failure to appoint as administrator a person designated by the statutes, , , . i ■,.,.. , ,,, 41. Is not such a defect as to render the administration proceedings initiated by the petition wholly void". Kan., N: Y., U. S., Minn, and other cases. Contra. : Mich., Ky. * 42. Here held that administration on petition of a half-brother, not an heir, and appointment thereon, of a stranger,— is voidable merely, and not- to be attacked collaterally. -^-Steinberg v. Saltzmcm, 130 W. 419, 426. 43. Sees. 2443 and 3806 "confer jurisdiction upon the county court to act" in granting administration in the. two cases, where "the juris- dictional facts are (1) domicile and death", and ,(2)., "the existence of an estate within the county to be administered, and death without the state. • ; j 44. In each case such jurisdictional facts may be controverted upon the hearing of a petition for letters testamentary, or of administration, and they must be established before the court acquires jurisdiction to act. 45. Not so, however, as to the existence of an estate in the case of the death of a resident of the county. A prima facie showing that there is an estate, or a bona fide claim that deceased left property to be administered, 46. Or the prima facie showing of any other statutory ground for the granting of letters of administration, is all that is necessary". Perkins v. Owen, 123 W. supra. 47. Though it is alleged that the intestate transferred all his per- sonalty and realty before his decease, "a bona fide claim that there is an estate to administer will support the granting of letters, and the court should not proceed to adjudge the validity of the claim. That must be left for future litigation in the proper forum and between the proper parties. (Citations). ADMINISTRATION EXPENSES 37 48. Moreover, in this case the court found that deceased left $36. The fact that it, was afterward used, i and properly so, for funeral expenses, is immaterial. The status at the time of death governs". (Cases). 49. The intimation of Lyon, J., in Flood v. Pilgrim, 32 W. 376 (See Jurisdiction), "that a local grant of letters, where there is no estate, is absolutely null and void", — is obiter, and "it cannot be said that the act of appointment is beyond the jurisdiction of the court". Adminis- tration sustained. — Barlass v. Barlass, 143 W. 497, 498. ADMINISTRATION EXPENSES. See also Compensation of Admr., Extb.', Gtrdn.,. & Trustee. Costs and Fees. Administrator insolvent, 5. Application to court, 5. Attorney :,' not creditor, 14, 20. Action on bond, 27. Beneficiary; attorney, 36, 39. Collateral action, 25, 31. Duty of executor's attorney, 37. Equitable claim on funds, 30. .Insolvent, administrator, 15. -■ ■■,-, .Judgment conclusive, 24,, .31. Jurisdiction of person, 23, 28. Xiien on estate funds, 29. Personal to administrator, 14, 21. Submission to court, 22, 27. Sue administrator personally, 26. Bank offioial, administrator, 13., Before administration, 1. Items proper, 2. Monument expense, 4. Voluntary payment, 3. Costs and counsel fees, 7, 33. Priority over debts, 5a, 34. General guardian, 39. Generally devised estate, 11. Guardian ad litem, 38. Homestead proceeds applied, 11, 12. Implied contract for, 13. Maladministration, 35. Preference given them, 8. Counsel fees, 5a. Necessary incident, 9. Sale of homestead, 10. Revocation of administration, 15. Stipulation for expenses, 40. Widow's expenses, 6. Will afterward found, 16. Administration expenses, 18, 19. Expenses not claim, 17. 1. "Only such necessary expenditures as from the nature of the cir- cumstances cannot properly be postponed until an administrator shall be appointed", for "expenses incurred intermediate ^the death of an intestate and the granting of letters of administration are legally chargeable to the estate ". 2. ' ' This rule will, of course, entitle an heir, a legatee, widow or guar- dian, or even a stranger, who has paid reasonable burial expenses, neces- sarily incurred before administration could be granted, to-be reimbursed from the estate. But, , as we understand the law, the rule goes no further"., 3. "Every expenditure which can decently and reasonably be post- poned until an administrator is appointed, should be so postponed, and one who, before* such appointment, voluntarily incurs an expense for 38 PROBATE AND GENERAL LAW, CODIFIED which 'there is no immediate necessity, does so in his own wrong, and cannot compel the administrator, when appointed, to reimburse him' . 4. Where a sister, one of three heirs, with the approval of one who had been the guardian of the deceased, expends $500 for a monument and curbing, and $14.75 for photographs for memorial cards, before the appointment of an administrator, though the same may be "appropriate to his estate and condition in life", and "had the administrator made such expenditures, the court might, in its discretion, have allowed the amount thereof against the estate", — it is held she cannot be reim- bursed out of the estate. "The view we have taken of the law of this case is fully sustained in Foley v. Bushway, 71 111. 386". —Samuel v. Est. of r Thomas, 51 W. 549, 552. 5. "Where the administrator has incurred a liability for services which have been performed for the benefit of the estate of the intestate, and the administrator is insolvent and unable to pay", "the party performing such services", can properly "present his case by petition to the county court", and by order have "his claim allowed as a part of the expenses of the settlement of the estate", but cannot have a setoff in an action by the administrator on an estate claim against such party. See Actions by Executor or Administrator. — McLaughlin, Admr. v. Winner, 63 W. 120, 131. i 5a. "Counsel fees or other proper expenses of administration", are allowed out of the assets, and given "priority over the general debts". See Liability. —Miller v. Tracy, 86 W. 330, 333. 6. Expenses of the widow, in "litigation, much of which she herself commenced," held "properly disallowed" as administration expenses. —Ford v. Ford, 88 W., 122, 134. 7. Costs and counsel fees, authoritatively set forth. See Costs and Fees. —In re Donges's Est., 103 W. 497, 513. 8. "Expenses of administration constitute a charge of the highest character against the estate in which they are incurred. They take precedence of debts, even of such as grow out of the last sickness, unless otherwise provided by statute. Woerner, Admn. 356, 362. 9. Such expenses are a necessary incident to the carrying out of the purpose of the testator, without which such purpose would be quite likely to fail in whole or in part." 10. "Where the 1 will requires a sale of the homestead and a distribu- tion of the proceeds in the payment of debts and legacies, thereby requiring a conversion of realty into personalty in the hands of the executor", there attaches thereto "the payment of the expenses of administration, precedent to the rights of the beneficiaries of the fund". 11. And it is held that the "expenses of administration", first, though ADMINISTRATION EXPENSES 39 not provided for in the will, and, second, "the payment of all his debts", so generally provided in the will, take precedence to legacies to be paid out of the remainder (one-half) of the homestead not specifically devised. 12. (There seems to have been no error assigned as to the payment • of the debts, and in Kuener v. Prphl, 119 W. 487, 491, referring to the instant case, it is pointed out that the statute, sec. 3862, as to no general direction for the payment of debts out of the homestead being effective, "was not referred to in the opinion in" this case). — Will of Madden, 104 W. 61, 65. 13. The facts that an administrator, being president of a hank, the principal creditor of the estate, and ' ' could obtain his pay in the county court out of the estate", — "would not prevent the making of an express contract for payment, nor the implication of a contract in the absence of an express contract", by such bank creditor to pay the administrator for his services as such. — Lowe v. Ring, 106 W. 647, 655. 14. A claim of an attorney for estate services is not one "as a cred- itor of the estate", but is one against the administrator personally. See Administrator de Bonis Non. 15. But "exceptional circumstances, such as insolvency of the adminr istrator," "have sometimes been held to justify a court in ordering payment out of the estate directly to the claimant." — Weistmawn v, Daniels, 114 W., 240, 243. 16. Where, on appeal the allowance of a will and appointment of an administrator B., was revoked, and subsequently the will was admitted and another administrator appointed in another county court, where B. filed his claim for administration expenses incurred by him in good faith, it is held, — 17. That the claim was not properly a claim under sec. 3838, and as such was properly disallowed ; 18. "Yet it does not follow that the plaintiff is not entitled to be reimbursed for the moneys- he had in good faith expended and the services he had in good faith rendered, in pursuance of his appointment. (Citations)." , 19. "If the plaintiff's claim, or any part of it, is to be allowed, it must be as a part of the expenses of administration", upon properly filing his account and on a hearing thereon upon notice. Sees. 3927, 3931. See also Miller v. Tracey, 86 W., supra. —Brown v. McGee's Est., 117 W.,-389, 392. 20. In an action by an attorney against an administrator personally for services; in the estate, the amount having been allowed in the final judgment in the estate, it is held, that, from the principle of Weismann v. Daniels, 114 "W. supra, 40 PROBATE AND GENERAL LAW, CODIFIED 21. The attorney could not ''have gone into the county court, against objections by the defendant, and proven his claim against the estate or obtained an order for payment thereof. His claim was personal against her". 22. But "no reason is perceived why she might not herself in her final account present the question to the court as to how much she should pay to her attorney out of the residuum of the estate in her hands. 23. By doing so she waives any question of jurisdiction of her person, and the court;, having full jurisdiction of the subject matter — i. e., the disposition of the funds in the hands of its officer— may doubtless render such a judgment as was rendered' here. 24. "When so rendered, such judgment must be considered as binding and conclusive upon the administratrix, upon whose request it was rendered, , 25. Until set aside in a direct proceeding for fraud or some other reason recognized by the law. Another court cannot investigate it and set it aside in a collateral action, as was done here. (Cases) ". 26. For the, amount so allowed he may "sue her personally for the sum as for money had and ; received for' his benefit ' ' on " implied contract", and she may "counterclaim upon the promissory note" given by him. Judgment directed for the amount, less the sum due on the counterclaim. — Vaughn v. Walsh, 122 W. 486, 489. '27. "Where the administrator's account showed allowance for attor- neys fees for M., but not for F., both having duly performed services for the administrator for the estate, neither having been paid, — On petition of such attorneys the order of the county court thereon made, is upheld, in a subsequent action on a bond, the administrator having defaulted. 28. The county court had "jurisdiction to determine the amount justly allowable to the attorneys of the administrator out of the estate on account of legal services performed by them, 29.' To' make the same a lien thereon and to order the lien to be extinguished by, using funds for which the administrator was respon- sible". 30. The administrator holds the personalty of the estate "in trust and is accountable to the court appointing him after the manner of trustees generally", the court having "the amplest authority" "to rec- ognize equitable claims upon the funds in his hands". ,31. "His account was duly settled and the final order in respect thereto" "is conclusive in this action", whether or not "the county court committed judicial error in exercising its authority. Its decision cannot be disturbed by a collateral attack. (Cases) ". —Carpenter, J., v. V. S. F. & Guaranty Co., 123 W. 209, 212. 33. Where an administrator, "authorized by the county court", brought an action to recover assets, in which judgment for costs was "ADMINISTRATOR DB BONIS NON 41 entered against him as administrator, under sec. 2932, there being no bad faith, "it follows that the costs incurred in that action were 'neces- sary expenses of administration' within the meaning of" sec. 3852. 34. And as such, following Miller v. Tracy, 86 W. supra, 'will have priority over' debts. "Certainly, such costs were, not a claim" "within the meaning of see. 3838", — Ferguson v. Woods, 124 W. 544, 546. 35. As to almost total disallowance of administration expenses, for maladministration and bad faith. See Accounts of Extbs, & Admes. —Maaltin v. Hobos, 120 W. 216, 222. 36. " The beneficiaries,, except as to the ; minors by, their guardians ad litem, had no right to be represented by attorneys, in the settlement of the estate at the expense thereof. , , 37., It was the duty of the attorneys, for the executors to perform, in general, all legal services chargeable to the estate, 38. And that of the guardian ad litem to see that they did not do the work for them (beneficiaries?) and at the end combine to have several sets of attorneys' fees instead of one allowed". 39. As to other "attorneys for the general guardian and the adults, it was their duty to insist upon the attorneys for the executors and the guardians ad litem performing their duty. That was really their whole scope of legitimate employment". 40. The agreement, ; between all the parties for their compensation is "held void on grounds of public policy and the compensation granted the attorneys for the executors held to cover all expenses of that nature chargeable to the estate". See also Pbobate of Wills. —Will of Bice, 150 W. 1 401, 461-3. ADMINISTRATOR. - See ADMINISTEATIOSf. ApMINISTEATOB DE- BONIS NON. AdMINIS- tbatoe with Will Annexed. Extbs. and Admks. Public Admr. Spe- cial Adme. ADMINISTRATOR DE BONIS NON. Action for assets, 12. Guardian ad litem, 14, 16. Attorney's service claim, 18, 19. Former guardian, 14. Duty of court to, appoint, 28,. , - Nunc pro tunc, 15. Erroneous order, 22, 2.3. Without guardian, 17, 26, 27. Executor and trustee, 21, 22. Interest in estate, 18, 20. Final order: incomplete, 6. Jurisdiction to make, 24. '■ Erroneously made, 21, 22. _ Bondsmen liable, 25. ^Proof of payments, filed, 7. Nonresident administrator, 3, 42 PKOBATE AND GENERAL LAW, CODIFIED Notice of appointment, 13, 16. Eesignation statutory, 2. Without notice, 17, 26, 27. Sole residuary bond, 11. Presumption of regularity, 8, 9. Stranger cannot move, 18. Letters, prima facie, 10. Suit on executor 's bond, 4. Reason for, not disclosed, 8. Void appointment, 1, 5, 10. Removal of executor, 1, 26, 27. 1. Administration de bonis non is held void where the executor is removed without notice. See Removal. — Humes v. Cox, 1 Pin. 551, 554. 2. "In the absence of a statute authorizing it, the probate courts have ho power to appoint an administrator, de bonis non on the resignation", and the failure of the original administrator to complete the adminis- tration, he being still in existence, and there being real estate unadmin- istered and debts unpaid. — Sitzman'v. Pacquette, 13 Wis. 291, 306, 311. 3. Where the original administrator is a nop-resident, has failed to report for ten years, and the estate is left unsettled, the court may, for these reasons, appoint an administrator de bonis non, without formally removing the original administrator, the facts being valid reasons for formal removal. —Bailey v. Scott, 13 W. 618, 621. 4. An administrator de bonis non can bring "a suit upon the bond, expressly authorized by statute (generally 'by any executor, adminis- trator or guardian'), to compel the executors to" pay over and account for the value of the property received by them", the executors being deceased, and the action being in the name of the county judge against their surety. — Golder v. Littlejohn, 23 W. 251, 254. 5. Where the widow "gave bond and acted as executrix", but her authority "as executrix was extinguished by her subsequent marriage", and subsequently her husband was appointed administrator and gave bond as such, it is held, "that it does not appear, either presumptively or otherwise, that any will of B. was ever admitted to probate, and, consequently, that the county court had no power to appoint an admin- istrator de bonis non with the will annexed". —Chase v. Ross, 36 W. 267, 274. 6. An alleged final order which "only shows that the debts, funeral expenses and expenses of administration had been fully paid, and that there remained in the hands of the administratrix ' ' a certain sum directed to "be paid to the heirs of said deceased, and that, upon making such payment, the administratrix be discharged from further trust in said matter", but which "order does not define who the heirs of the deceased are ' ', — does not show that the estate has been fully settled • 7. The administratrix should have filed "some proof that she had paid the moneys in her hands to the proper person, in order to have ADMINISTRATOR DE BONIS NON 43 made a final distribution of the estate", and the fact that "she claims to be the sole heir at law", without any adjudication thereof, does not make such settlement as to prevent "the appointment, of an adminis- trator de bonis non" for further proceedings. 8. Where "the record does not disclose the reason for the appoint- ment, it must be presumed that the appointment was for some good cause in the law", in the case of an administrator de bonis non, "the evidence showing that the former administratrix has remarried", that being then a good ground. 9. "The record also discloses that the appointment was made by the mutual consent of all parties interested", and the widow and adminis- tratrix ' ' claims that she is the only party interested except the claimant ; and it must be presumed, therefore, that she was present, consenting to such appointment, 10. But, in the absence of any evidence showing the appointment void, the order granting the letters, and the letters themselves are prima facie evidence of the authority to make the appointment. ."(Many, cases)'.'. ,—Oakes v. Est. of Buckley, .49. W. 592, 598. 11. "Where an executor, who gave a sole residuary legatee bond, dies before final judgment of distribution was entered, an administrator de bonis non is, proper to be appointed on application of interested parties. See Bond foe Payment of Debts, etc. ; . .;i. ' ' —Jones v. Roberts, 84 W., 465, 472. 12. An administrator de bonis non may proceed in the circuit court for unadministered assets in the hands of third persons. See Concur- rent Jurisdiction. — Meyer v. Garthwaite, 92 W. 571, 576. 13. While an "application for-the appointment of" an administrator de bonis non, subsequent to the final settlement of an estate, for the purpose of bringing an action. to recover for the infant heirs damages for the death of the intestate under sees. 4255-6, "was made by their general guardian", yet, "he could not, as to such children or the defendant,, waive the, notice required by" sec. 3808; 'Dell v. Rogers, 44 W. 136 (See Jurisdiction) ; s 14. "No guardian ad litem was appointed to represent such children in this action", and the "function as such guardian ad litem", :of One previously appointed, "terminated with the final settlement of" the estate. Sec. 4052a; county court rule 3. 15. An order made many months afterward, allowing the previous guardian ad litem as such, being the same person who was present as general guardian, "to appear nunc pro tunc as of" the date "when plaintiff was so appointed administrator, is. without significance. Cer- tainly it did not cure the want of notice required by sec. 3808." ., , 16. (In Jenks v. Allen, 151 W. post, it would appear that the instant decision, as to notice and guardian ad litem being necessary for the 44 PEOBATB AND GENERAL LAW, CODIFIED appointment of an administrator de bonis non, is in effect though not in fact, overruled, it being queried whether it is distinguishable because "the first administrator had completed his administration, settled his accounts and been discharged", and "the court did not conceive that the appointment in that (this) case was made under sec. 3804, for that section is not mentioned",— being apparently overlooked; 17. And it is further held, that the appointment of an administrator de bonis non, upon the removal of an executor, under sec. 3804, ' ' without notice and without the appointment of a guardian ad litem for the minors was valid"). See also Actions by Extk. & Adjvtr. —Hubbard v. C. & N. W. R. Co., 104 W. 160, 165. 18. "A mere stranger," as an attorney for a previous administrator, B., whose "resignation was accepted", "cannot move the court for the appointment of an administrator" de bonis »on, for the purpose of recovery "for services rendered to B. as administrator" "and to carry out the provisions 'of the will" of the deceased testator. 19. Such claim for services is not " as a creditor of the estate ' ', but is "against B. personally, to be by him charged against the estate in his hands upon his accounting, if the outlay be proper and reasonable. (Cases). 20. One "in possession of a tract of land under some claim of right, which the petitioner claims should be sold by the proposed adminis- trator as a part of" the estate, has such a "substantial and direct" interest, "as to entitle him to appear and oppose the application." TT-Weismcmn v. Daniels, 114 W., 240, 243. 21. Where "the final order" in settlement discharged the executor and his bond liability, "upon his paying" trust funds as designated, but as to said funds "the said bond ofsaid executor" to remain in full force, and such executor subsequently resigning, it is held, — 22/ Whether the offices of executor and as trustee should have been separated by "the county court when there was no further use, neces- sarily, for an executor", nevertheless, "at most it was a mere error of judgment in the exercise of the undoubted jurisdiction of the court,— such an' error, as has often 1 been said, a court has jurisdiction, in other words 'authority of law' to make."' ; 23. Bight or wrong, the final conclusion declaring the law based on such an error, is the law in fact for the purpose of the proceeding". 24. And the appointment of an administrator de bonis non is upheld, because "the county judge had jurisdiction to decide that matter and did decide it, and (that) his decision is not open to collateral impeach- ment". 25. Such administrator subsequently dying insolvent, his estate and his bondsmen were held liable to a subsequently appointed trustee. —Barney, J. v. BabcOck's Est., 115 W. 409, 414. ADMINISTRATOR WITH WILL ANNEXED 45 26. As to an administrator de bonis non upon the removal of an executor, ''it must be held that such appointment, without notice and without the appointment of a guardian ad litem for the minors, was valid", pursuant to sec. 3804. 27. Sees. 3787 and 3808 "relate to the initial application" and "do not prescribe what must be done in case an executor or administrator is removed and a successor appointed in his place". See also Hubbard v. C. & N. W. R. Co., 104 W. supra. —Jenks v. Allen, 151 W. 625, 629. 28. "It was the duty of the county court to appoint an adminis- trator de bonis non when, after the discharge of the executor and the 'closing of his administration, it appeared that there was estate which had not been administered upon. (Sec. 3804) ". See also Appeal. —Will of. Dwkee, 164 W. 41, 43. ADMINISTRATOR WITH WILL ANNEXED. See also Executors and Administrators. Confidential powers, 1. , Intestate and testate estate, 4. Not usually devolved, 2. Will never allowed, 3. 1. Where a testator gives his estate to his son, 'J. B., sole executor of this* my last will ,* „ with power to dispose of the, same in such manner as to him shall seem meet, for the payment of my just debts and for the use and benefit of my only and afflicted daughter, Gr. B., so long as she shall remain insane', and such "executor and trustee" dies after paying the debts, the daughter "still living and insane" the "adminis- trator with the will annexed"; de bonis non "is not entitled to the possession of any part iof* the estate by virtue of his appointment", because of ' ' the rule that powers and duties thus confidentially reposed, and not connected with the office of executor, do not pass to the admin- istrator with the will annexed", notwithstanding the statute provides the latter ''shall have the same authority to perform every act and discharge every trust, as the executor named in the will would have had". ' '- ' ' 2. "The duties thus specially imposed were of a delicate and respon- sible character, and quite distinct from those usually devolved on the office of executor ' ' and ' ' were in a great measure discretionary and personal". ;i '-^-Est. of Besley, 18 W. 45l, 454. 3. Where it does not appear that the will was ever proved and allowed, "the court had no power to appoint" an administrator with will annexed. See also Admr. de Bonis Non. —Chase v. Boss, 36 W. 267, 272. 46 PROBATE AND, GENERAL LAW, CODIFIED 4. Administrator with will annexed administers "all the personal estate of the testator, whether the same.be disposed of by the will or not." See also Administration, — Beem v. Kimberly, 72 W. 343, 367. See also Pleadings. ADMISSIONS. Agent of husband, 1. Authority of agent, 34. Part of res gestae', 4, 8, 16. Scope of authority, 7. 9, Casual conversations, 36. Decedent: payment, 5. , Against mortgage title, 11, 22, „ Against realty title, 10, 12, 38. Delivery of a gift, 24. Husband to aid wife, 23. Not part of res gestae, 15. Deliberately made, 37. Explanation allowed, 21. Gift: delivery of, 24. In derogation of, 40. Impeachment of, 26. Incompetent, 25. Lost will contents, etc., 28. Memorandum as, 27. Not conclusive, 35. Partner's admission, ,31. Pleading: conclusive, 3. Admissible in evidence, 17. ; ■'. After amendment, 33. Received with caution, 19. Selfserving declarations, 30, 38, 39. Spendthrift received, 2. Strong evidence, 18, 37. Testator: latent ambiguity, 6. Against sole legatee, 29. ■ I ">// Against testator 's interest, 30. Intention concerning, 32. Lost will contents, etc., 28. ' Making of a will, 32. Weak testimony, 20, 36. Widow, administratrix, ' 13, 15. As party in interest; 14. Wife as agent, 1. 1: Declarations and admissions of wife as agent of the husband, "in relation to matters done under her direction * may be given in evi- dence against him". See also Husband and Wipe. —Birdmll v. Dunn, 16 W. 235. 2. Of spendthrift Under guardianship may be received. See Neces- saries. — McNiffkt v. Estate of McNight, 20 W. 446, 448. 3. An admission in a pleading "is conclusive, and not open to con- tradiction or disproof by the party who made it". —Denton v. White, 26 W. 679, 686. 4. The admission of an agent as part of the res gestae, against the principal, may be received. See Res Gestae. —Ewzleton v. Union Bamh, 32 "W. 34, 48. « 5. Declarations of the deceased in his lifetime "in relation to the payment of " a judgment against him, "were clearly inadmissible". — JHsun t Admr, v. Stebbiiis, 41 "W. 235, 240. 6. Declarations of a testator are admissible to remove latent ambig- uities in a, will. See Construction op "Wills. — Morgan, v. Burrows, 45 "W. 211, 217. ADMISSIONS 47 7. "The admissions or representations of an 'agent while engaged in any particular transaction f or his principal, made in regard to such transaction, may -be received as evidence against the principal in a controversy concerning such transaction. 8. But, to be received, they must constitute a part of the resi gestae in the course of the agent's employment about the matter in question. 9. They must accompany the transaction or the doing of the business, and must be within the scope of the delegated authority". Hazleton v. Union Bank, supra. —Bovmsavell v: Peasi, 45 W. 506, 510. 10. In ejectment, the' plaintiff claiming title "as devisee of her late husband, S., deceased," who took title as son and heir of D. deceased, it is said: "D.' and S. were privies in blood, and S. and the plaintiff privies in estate, in' respect to the land in controversy. ' . 11. Such being the relations between the plaintiff and those from whom, or through whom, she derives title, it is elementary that she is bound by their admissions affecting such title". ''""> 12. As the admission of D. and S. in like actions would be admissible against them, "the plaintiff being in privity directly with S., and derivatively with his mother, in respect to the title she claims, the admissions of 'both or either of them, derogatory to her title, may be proved against her. Greenl. on Evidence, 189 ' '. —Littlefield v. Littlefield, 51 W. 23, '28. 13. In an aetion by the widow, as administratrix, for injuries causing the death of an intestate, ' ' declarations of the plaintiff, 'made during the life of her husband, as to how the accident occurred", "were competent only for the purpose of contradicting the testimony given by the plain- tiff on the trial, but were hot admissible for the purpose of proving the fact of negligence on the part of the deceased". 14. Such declarations "as being made by a party in interest, within the meaning of the rule", "to be admissible, must be against the interest of the person making them at the time when they were made. 1 Greenl. Ev. 147". iv - ■ ■ „ , ' 15. Neither such declarations of the plaintiff, nor of the deceased, presumably made a day or two after the accident, were "admissible as a part of the res gestae". — Fitzgerald v. Weston, 52 W. 354, 357. 16. "Declarations of the plaintiff's agent as to a transaction with the defendant made, not at the time of the transaction, but at a time long subsequent"; sought to be- introduced hy the defendant, are not admis- sible, not being part of the res gestae. ■• : r —Mclndoe v. Clarke, 57 W. 165, 169. 17; Where the original verified pleading- was allowed to be read to the jury, it is said : "There can be no doubt that the admission in the answer was competent evidence to go to the jury for what it was worth, 48 PROBATE AND GENERAL, LAW, CODIFIED on the question as to what were the terms of the contract between the parties". . ,, -jN orris v. Gargill, 57 W. 251, 256, 18. "Admissions, as facts established, by the testimony, are strong evidence against the party making them, and, not weak; 19. But the testimony by which they are sought to be proved or estab- lished 'should be received with the greatest caution and scrutiny', as said by Chief Justice Dixon in Benedict v. Horner, 13 W. 256, 20. And 'is the weakest, kind of testimony', as said by Mr. Justice Paine in Dreher v. T. of Fitchburg, 22 W. 675". Orton, J. —Nash v. Hoxie, 59 W. 384, 388. ■\ 21. "A party may always deny, explain, or controvert his alleged admissions against his own interest, unless they create an estoppel. —Seefeld v. C. M. & St. P. Ry. Co., 67 W. 96, 98. ' < 22. Following Littlefield v. Littlefield, 51 W., supra, it is held that statements of a deceased mortgagee made before his death as to owner- ship of a mortgage, "against his own interest at the time", are admis- sible in a foreclosure action. 23. But, such statements of the husband for ., the benefit of the wife "to prove that she owned" the mortgage, were "clearly immaterial, as well as incompetent". — Lehman v. Sherger, 68 W. 145, 149. y \ 24. " Statements of the deceased in his \ii e-time, to third persons are held competent to prove the delivery of a gift inter vivos"., —Pritchard v, Pritchard, 69 W. 373, 376. 25. The (declarations of an incompetent at the time of the act com- plained of, ten months before, an inquisition de lunatico, were held competent. See Testamentary Capacity. —Giles v. Hodge, 74 W., 360, 368. 26. No foundation need be laid as to evidence of admissions of a party to impeach his evidence. .See Impeachment. —Hunter v. Gibbs, 79 W., 70, 72. 27. A memorandum properly identified may be introduced as an admission. See Writings. —Hazer v. Streich, 92 W. 505, 509. 28. Declaration's of the testator as to the existence and contents of a lost will, are admissible. See Lost Will. — In re Valentine's Will, 93 W. 1 45, 54. 29. In an action on a claim, against a sole residuary legatee, admis- sions or statements of the testator to such legatee in the latter 's interest are ! held inadmissible, such declarations being " 'no more competent .' ) ADMISSIONS 49 as evidence for hisiestate after his death than for himself while living; and, if such statements were not made in the presence of the adverse party, they are inadmissible in a suit against the estate'. 1 Jones, E v., 236". 30. '"Ah exception to the rule stated is where the declarations made are against the interest of the party making them. (Citations). The giving of such declarations by the testator did not authorize the admis- sion of such self-serving declarations", though the adverse party "him- self opened the door". ..'")'"■ —Pym v. Pym, 118 W., 662, 670. 31. An admission by one defendant partner was held' '-'competent, not only as against himself, but as against his, co-partners". -r-Muench v. Ileinemamn^ 119 W., 441, 445. 32. "Declarations by the testator concerning the making of a will, and as to intention ^concerning" provisions, are inadmissible in! any case. See also Afterbokn Child. : —Sandon v. Sandon, 123 W. 603, 607. 33. As to admissibility of pleadings, after amended, and testimony of explanation 1 . See 1 Pleadings. , ' r-SchvMz v. Culbertson, 125 "W, 169, 171.1 34. Admission of authority to act as agent "does not tend to prove the agency". ' See Pbincipal and Agent. ' ' ! —McCune v. Badger, 126 W. 186, 191. 35. "An unqualified admission of a party against, his interest, does not preclude sending the issue involved to the jury where there is credible evidence fairly conflicting therewith". ■ r ■ —Bruger, v. Princeton .&,Stl Ml M. F. Ins. Co., 129 W. 281, 285. 36. "The rule, often asserted by this court, that 'evidence of casual statements or admissions by a party, made in casual conversations and to disinterested persons, is very weak testimony, ^because of the liability of the witness to misunderstand or iforget what was really said or intended by the party'. Haven v. Markstrum, 67 "W;, 493. 37. The rule as to weakness of evidence of admissions so made is sup- plemented by Mr. nGreenleaf with this statement: 'But where the admission is deliberately made and precisely identified, the evidence it affords is f often of the most satisfactory nature'. 1 Greenlf. Bv. (15th ed.) 200. That statement was fully sanctioned by this, court at an early day. (Cases) ". •>':■■■ >,t —Scheer v. Ulrich, 133 W., 311, 317. 38.- A declaration of a deceased grantor 1 as to delivery of a "deed to J. for safe-keeping" merely, "was of a self-serving character and so was clearly not provable to defeat the deed which years before had passed into J's. possession". Welch v. Sugar Creek, 28 W. 618; Fay v. Eankin, 47 W. 400. —Chase v. Woodruff, 133 W. 555, 559. Zimmerman — 4 50 PROBATE AND GENERAL LAW, CODIFIED 39., ''Self-service declarations; whether oral or written, not part of the res gestae, are incompetent", 40.. And "declarations of a donor after a gift and in derogation of that gift are incompetent". See also Gift. ,.,: . ., — mtm v. Bohr, 161 W. 619, 623. ADOPTION. Abandonment, &, , , . . , : Judicially determined, 12. Jurisdiction obtained, 13, 14, 19. No evidence thereof, 11. Notice, effect of, 17, 21. After-born child, ,25. Child : Eights as, 26. Effect of statute, 27. ' Favored, 16, 18. Intent of testater, 29. Issue of blood, 28, 31, No direct language, 30, 31. Consent not shown,, 8, 11. Valid as to child, 10. Void as to parent, 9. Contract of adoption, 32. Conduct of parties, 36. Intended to adopt, 3.4. , ' Lost writing, 33. Mother to contract, 35. Specific performance, 32. Contract for inheritance rights, 38. Clearly shown; no fair doubt, 39. Estoppel, 18. Inheritance by Wood, 2. Adopted parent, 3. • Statutory change, 4, 5. Jurisdiction, 13, 19, 23. Abandonment, 14. Notice to parents, 11, 14. As to abandonment, 17, 21. Two constructions, 15. Order of adoption, 7, 20. Petition imperfect, 19. Presumption of record, 22. Revocation of will, 24. Services in family, 1. Statutory proceeding, 6. Civil law; not common, 37. 1. An infant adopted (unofficially) is governed by the same rule as to services in the family as a child by blood. See Services. —Tyler v. Burrmgton, 39 W. 376, 380. 2. "Both by the common law and by the statutes (sec. 2270) of this state inheritance is confined to the blood of the deceased, the only exception being made in favor of the wife of the deceased". 3. "We think it must be held, according to the rules of construction, that the general law of inheritance was not intended to be changed in favor of the adopted parent, and that the estate of the adopted child, upon his death without a will, must descend to his kindred of blood as prescribed by section" 2270. So held in this case, the property coming to the adopted child from his natural parents. • 4. (The rule, so far as it affects estate of the adopted child which came to him from his adoptive parents, has been changed so that such estate goes "to the 'next of kin of such parents by adoption", by sec. 2272a). 5. In Massachusetts- "the law upon the subject of adoption of chil- dren" is '<' almost in the same language as our statute." (And it seems ADOPTION 51 the foregoing amendment in effect also follows an amendment of that state). — Hole v. Rollins, 5,3 W. 514, ,517. 6. "The proceeding by adoption: here in question is a mere statutory proceeding, not according to the course of the common law, and. when legally conducted, has a m.-,.,, 9. "That as to the father the.prder (of adoption) is a mere nullity and may : be disregarded as such whenever and wherever it comes, in question as, against him pr as affecting his rights.,. 10. But the order in question may well be held valid as against a minor child, as in the case of the commitment tp the Industrial School of Milwaukee. Milwaukee I. S. y. Milwaukee Co., 40 W. 328^" (In affirming this, paragraph, it is .said, in Parsons v. Parsons,, 101 W; pos.t: "Obviously meaning because ,the, court, had jurisdiction that; far, which of course included jurisdiction , of , the petitioner whp commenced the proceedings"). See also Parent, and Child. ■ ,.-,,.. ,,, ■ ,i ,,,.— ScMitz y. Roenifz, 86 W. 31, 38. 11. A proceeding by an original petitioner, to, set aside an order of adoption, about ten years later, there having been no cpnsent qf pr nptiee tp the living ■ parent. The priginal "petition, in form, complies with the statute". There was no, evidence as to abandpnment found, "but the, verified petition, and "the allegation of abandonment was on information and belief". 12. ''The fact of abandonment, judicially determined, was essential to the jurisdiction; hot essential that it should be determined '6n L J>r6per evidence, necessarily, or in accordance with the truth, because mere error in that regard does not affect 1 jurisdiction. - i3. If jurisdiction be obtained to determine a fact, its determination wrong or on insufficient or improper evidence is immaterial on the question of the legal 1 right' to proceed judicially to the next step". ' : ■ 14. The court had "jurisdiction to act on the subjeet of the alleged abandonment, in the absence of notice, actual or constructive, to the parent". 52 PROBATE AND GENERAL' LAW, CODIFIED 15. Then "the statute did not require notice" thereof, "but if the statute would admit of two constructions, the result would be the same , under proper "rules of liberal construction". 16. "The adoption statute is a humane provision which looks^to the interests of children primarily". "Therefore, every reasonable intendr ment should be indulged in, in case of doubt, in the line of promoting that object". 17: After quoting the amendment (Ch. 18, L. 1895) to sec. 4022, prescribing notice to a non-consenting living parent, it is said: "That notice to the parent is hot requisite to a valid determinaton of the faet of abandonment as regards all other parties to the proceedings, has been held in numerous cases elsewhere". ' "Nugent v. Powell, 4 Wyo. 173; Van Fleet, Col. Attack § 408; Barnard v. Barnard/ 119 111. 92". 18: "The adoption order is sustained "on the merits of the ease", but the proceedings being "clearly of an equitable nature, and after the lapse of many years",' the petitioner is estopped from appealing "to the equity powers of the court to declare" void the adoption order "entered on her motion". —Parsons v. Parsons, 101 W. 76, 79. 19. Though, in adoption proceedings, "the petition is far from being a model" and "even fails to state the name or residence of" the child's father or mother, it is 'held sufficient to give "jurisdiction to hear proof, in the matter of' the adoption of the child. Sec. 4021. ' 20. But that did hot authorize" the court to adjudge "adoption in violation of" see. 4022, by failure to "'find that the parents of the child, or either of them, had abandoned the child,— much less that they, or either of them, were dead", they being in fact living, and neither having had notice, and the order of adoption based upon abandonment "by the parents, was clearly a nullity as against them. Schlitz v. Roenitz, 86 W.. supra. 21. Such want of notice to the parents, however, did not take away the jurisdiction of the county court to determine whether the parents had in fact abandoned the child. Parsons v. Parsons, 10l "W. supra". 22. The rule "that, in a certain class of cases, where the record is silent as to some fact, a presumption will be indulged in favor of the judgment (cases)", does not extend to "violation of an express statu- tory requirement, 'and in a proceeding which is purely statutory". 23. In a proceeding to determine the validity of an administration petition made by an adopted child, it is held, "that the county court, in granting such adoption, acted in excess of its jurisdiction. State ex rel Atty. Gen. v. Circuit Court, 97 W, 1". — In re Est. of UcCornwk, 108 "W. 234, 237. 24. The marriage and adoption of a child revokes a will previously made. See Revocation. — GlaseoU v, Bragg, 111 W., 605, 607. ADOPTION 53 25. A child adopted after the making of a will, has 1 the' same right to a share of the estate, as an after-born child. See Apter-Boen Cjhild. —Sandon'v: Samdon, 123 W. 603, 606. 26. A devise was made to B., a granddaughter, of a life estate! with "remainder over to her children and descendants of such " with power to convey '''to such children", 'if any; and "with a further power in trust to dispose of the remainder by will," if "leaving no children or descendants". B., "without covenants of warranty, deeded her inter- est ".to S., and he to Lr., plaintiff; aid the latter, after' her conveyance, legally adopted N., her "only child" at, date of suit, and it is held: 27. "See. 4024, relating to the status of adopted children",', is not "controlling", but "is, at best a mere aid in construing", and "does- not cut any figure as to an adopted child taking under the will," "except as it may explain what the testator had in mind by .the use of the term 'child' or 'children' ", as the statute "deals with intestacy." 28. "The fact that B. was quite a young unmarried girl at the time the will was made, and at the time the testator died, rather repels the idea, that her grandfather'' "thought of great-grandchildren in any other sense than issue of her blood,". So. held, and, that, N. is not "a child of E., within the meaning of , the will". See jalso Constb]CJ|Ctio;n op Wills. rrrrUoMerv. Thiers, 139 W., 481,, 485.. 29. "The rule" that "the, purpose of. the testator is, to be strictly carried out if it can be gathered, from the" will and circumstances, "applies in determining whether /the word 'child'. of another in a will refers to a child of the blood of such other or an adopted child. Lichter v. Thiers, 139 W r supra". , ,, ,,, ]. 30. Where a will indicated "an intention, to have his property go to and be enjoyed by .persons of his own blood "^ though there was no language directly so stating in a clause diverting property from a son if 'he does not leave him surviving any child', — 31. The word 'child' is held not to inculde a child born after the will was made, "not of the blood" of the testator, "nor was his existence known" to him, who subsequent to the decease, of the. testator, "became the adopted child of" such son, the latter dying without other children. — Will of Mitchell, 157 W. 327, 330. 32. "It is fundamental to the specific performance of a contract of adoption, where the writing relied on as containing the contract is lost, ; that the evidence adduced to establish it must be clear, satisfactory, and convincing in its probative force. 33. In such cases the facts must not only be consistent with perform- ance of such a contract, butpmst^ also be such that they cannot reason- ably be harmonized with any other theory. Wales v. Holden, 209 Mo. 552". 34. "The contents of the letter" from the stepfather C, to "the 54 PROBATE AND GENERAL LAW, CODIFIED boardingrhouse keeper with whom the plaintiff was boarding", "stating that, his mother would shortly call for him to bring him to M. and that said C. would adopt plaintiff as his own son",— "are in their most favorable aspects no more than a declaration by C, deceased, that he intended to adopt plaintiff", 35. "And fails to show that a contract of adoption had in fact been made with .the plaintiff's mother, the only person who could contract for plaintiff (then a minor) in this matter". 36. And it is held that the facts do not show that C. "regarded the plaintiff as an adopted son", but "more in harmony with the treatment that a stepfather under like circumstances bestows on a stepson". Performance denied. — Heath v. Cuppel, 163 W. 62, 67. 37. ("Adoption of children was a thing unknown to the common law, but was a familiar practice under the Roman or civil law; and our modern statutes of adoption are taken from the latter, and so far modify the rules of common law as to the succession of property." —Butterfield v. Sawyer, 52 L. R. A. 75, 77; 187 HI. 598). 38. "Where foster-parents agreed in writing with the father of an in- fant taken into their family, — ' to care for said child in a parental man- ner and to enjoy all of the privileges of a child as if born by said party of the second part and will do our utmost to care for her as if our own child", — it is held, "that the writing does not show with sufficient clear- ness that property advantages were promised" the child, "to justify specific performance" for inheritance rights. 39. "In a case of this kind, "specific performance should not be decreed unless" it is clearly shown, "without room for fair doubt, that the parties to it intended the child to have the right of heirship the same as if born to those taking it into their family". — Winke v. Olson, 164 W. 427, 431. ADVANCEMENTS. Acknowledgment in writing, 21. Advances by administrator, 2. Agreement as to, 3. Heir deceased, 4. Pleaded as payments, 6. Promissory notes, 5. Bequest to trustees, as, 25. Computation, 27. Not advancement, 26. Bond and mortgage, 1. Certificate of decedent, 30. Character, at delivery, 20. Charge; upon books, 18. Contemporaneous, 31. Computation for, 27, 28, 29. Contemporaneous charge, 18, 31. Declaration in writing, 21. Evidence of, 9. Conclusive, 13. Pinal judgment as, 10. Judgment conclusive, 12, 13. Judgment creditor of heir, 7. Special notice to, 8, 12. Land conveyed, 17. Oral evidence, 11. Not to contradict, 24. Not to prove, 14, 23. Statute construed, 15, 16. Promissory note, 22. Statute mandatory, 19. ADVANCEMENTS 55 1. Held, "that a debt evidenced by bond and mortgage was" not "in- tended by language referring only to debts evidenced by 'notes of hand' or 'book accounts','' to be advancements under the will, in the absence of evidence showing the contrary. — Hopkins v: Holt, 9 W. 228, 230. * 2. Advances by the administrator to heirs, are personal matters be- tween them. See Accts. of Extes. & Admes. — In re Fitzgerald, 57 W. 508, 514. 3. Where, pending administration, an administrator advanced to an heir, sums to be allowed him on her distributive share when assigned, and "it is a fact, decisively established by the proof that the parties intended 1 and agreed that these advances should be so applied", it is held ,that he may so apply them, even, . 4. Where such heir died before distribution, and her administrator made the demand for her full share; and, 5. Though part of such advances were evidenced by a promissory note from the heir ; 6. And that it was not necessary for such administrator to present such advances as claims against the deceased heir, or be barred, as ' ' these advances must be pleaded as payments, according to the intention and agreement of the parties". — Lyle, Admr. v. Williams, 65 W. 231, 234. 7. A creditor of an heir obtained a judgment in 1878, and the heir received an advance of $7,000 from his father in 1874, and a further advance of $1,000 in 1883, at which time he gave an acknowledgment in writing to his father for "payment in full up to date for all services rendered, and all claims, now and in the future, against the said L. and his estate, living or dead, and that he has no further claim" "against his father or heirs;" the father died intestate in 1886, and final judg- ment in settlement of his estate was entered in 1887, finding such ad- vances to be advancements, and' that such son "was not entitled to any share in the estate," personal or real, there having been only a general notice of such settlement, by the statutory publication; held, — 8. That the judgment creditors of the' son were not entitled to special notice of the final settlement, and that on the publication notice given, ' ' it is quite clear that the county court had jurisdiction to make such order or judgment final to all the world ; " ' •.'■.'• 9. That the "use of the words 'claims' and 'claim' in the written in- strument acknowledging the advancements", in connection with •' the words 'estate' and 'heirs' used", is sufficient to establish the writing as evidence of the advancement; 10. That the final "judgment of the county court was competent evi- dence to prove the advancement and that it was acknowledged in writ- ing"; and, '■■'.» 56 PROBATE AND GENERAL LAW, CODIFIED ,11. That such son "was properly asked whether it was in writing. The testimony of its contents was improper, but a witness may be asked whether a certain contract is in writing, in order to lay the foundation for proving it. ' ' 12. "From the nature and effect of such an order or judgment as to advancements made by the deceased to any heir, it is binding on every- body who is interested in Jhat question. The statute (see. 3961) confers on the county court the fullest jurisdiction to make it", without special notice. - 13. It is "conclusive on all the world. To hold otherwise would work infinite mischief, and there would be no such thing as a final order of distribution or of settlement". — Liginger v. Field, 78 W., 367, 371. 14. Following Mass. and Mich., from which taken, it is held that under the statute, sec. 3959, "parol evidence is inadmissible to prove an advancement; 15. That, though the statute does not expressly declare that an advancement shall not be proved in any other manner than that indi- cated therein, such is undoubtedly its meaning; 16. That ;i by prescribing aiparticular manner for proving an advance- ment, by implication all, other evidence is excluded". ,.. 17. So held,: "in rejecting the offer of parol evidence to prove that land conveyed to plaintiff during the lifetime of the father was so con- veyed by way of an advancement." " —Pomeroy v. Pomeroy, 93 W., 262, 266. 18. The testator furnished, and, charged to his children sums of money "upon his books in the form of loans'', and stated in the will that "all sums advanced and charged! by me to either of my children", "are to be deemed advancements to said child and to be taken into account in such distribution. " : Held, not advancements under sec. 3959, and that "the trial court rightly treated the accounts as assets of the estate to be treated the same as other property'.'. 19. ' ' The statute is mandatory and must be enforced as written. Pomeroy v. Pomeroy, 93 W. supra. 20. It clearly contemplates that a delivery of property by one to another, the latter having claims upon the former's bounty, is not to be deemed an advancement unless it is given that character at the time of such delivery, , 21. Either by a declaration in the writing making the bestowal or by an acknowledgment in writing at that time by the recipient of the bounty, or by an expression of the donor in respect to the matter in charging the property to the person receiving the same". (Approvingly quoted and followed in Arthur v. Arthur, 143 W. post.) —Luddington v. Patton, 121 W. 649, 662. 22. "Where an ordinary promissory note was filed as a claim by the father against his deceased son's estate, it is held that "the admission ADVANCEMENTS 57 of parol evidence tending to show that the sum' named in the note in question was an advancement from the father's estate was error, for two reasons: ''■' 23. First. Under our statute (see. 3959) parol evidence is inadmis- sible to prove an advancement. Pomeroy v. Pomeroy, 93 W. supra. 24. Second. Irrespective of this question, it was inadmissible because it tended to contradict and set at nought the plain terms of an unam- biguous written contract". " ■ '• —Schmidt y. Schmidt's Est., 123 W. 295, 297. 25. A will gives the residug to trustees, ultimately in equal shares to a son and daughter, the latter within one year to be paid 'one-fourth of her share or portion', and. providing that advancements 'shall .be added to and deemed a part of my estate' so 'devised in trust', 'and in the division' 'shall be deducted from the share of the child' to whom made. The only advancement is $8000 to the daughter. Held: 26. "The bequest to the trustees was of money. and property belong- ing to the deceased at his death. Any advancements were not such, property. They did not, belong to the testator" and "could not come to the trustees".. . . , ■■ 27. "We think the conception and intent plain merely to direct such method of computation as that the proportioning of the actual property held by the trustees between the children should give to the one receiv- ing less advances a proportionate superiority over the other child". ' 28. "The one-half of the estate attributable' to appellant (daughter) should be ascertained by dividing the estate plus the" advancement by two, one-half for each child, and that the amount of advancement to her should be deducted from the same one-half share, 29. And the remainder pass to the trustees to be mama^ed' and divided by them in the proportions prescribed' by : the will";' — the daughter's first one-fourth being one-fourth of her share so in the trustees' hands.' 1 — Rose v. Ruggles, V&l W. 439, 443. , 30. Where the intestate transferred and assigned property to several sons, $5,000 to each, and four months thereafter and six weeks before his decease, executed a duly acknowledged certificate that by such 'trans- fers, 'I have made advancements'- to^such sons;— it Was held, ,that such transfers were not "advancements", and that "the certificate was" not" competent" evidence. • ■'■'' ' M 31. Quoting and following Pomeroy v. Pomeroy, 93 W. and Lud- ington v. Patton, 121 W., supra, it is h'eld that "the manifest purpose of the statute (sec. 3959) in making the charge in' writing evidence of an advancement is that the charge must be made contemporaneously with the advancement" "in harmony with the' rule respecting book accounts". (Cases). See also Account Books. " ; ■■■•■'■ —Arthur v. Arthur, 143 W. 126, 133. 58 PROBATE AND GENERAL LAW, CODIFIED ADVANCES BY EXECUTOR AND ADMINISTRATOR. See Advancements. ADVERSE PARTY EXAMINATION. See Discovery. AFFIDAVITS. See Verification. AFFIRMATIVE. Chancery hearing, 5. Denial on belief, 3. No presumed advantage, 6, 7. Open and close, 1. Confession and avoidance, 8. Pleadings furnish test, 4. Counterclaim interposed, 2., Kule of practice, merely, 9. 1. "The general practice" and "common law rule", "is for the party holding the affirmative of the issue to open and close the argument", but the matter is "under the control of the judge in his sound discre- tion", and will be interfered with only in ease of abuse of such discre- tion. — Marshall v. American Ex. Co., 7 W. 1, 18. 2.- Where "the answer does not controvert any of the material allega- tions of the complaint," and "the issue which was tried was made upon the counterclaim of the defendant," then the defendant "should have been allowed to open and close the argument", and "his right to do so is not affected by the fact that another issue was made by the reply". —Bonnell v. Jacobs, 36 W., 59, 62. ,3, A denial of "knowledge or information sufficient to form a belief," of the representative capacity put "the affirmative of that issue" upon the plaintiff. —WiUmann, Extrx., v. Watry, 37 W., 238, 241. 4. On a suit on a guaranty of notes, it is held that "upon the plead- ings, which, according to the authorities", "must furnish the test as to which party holds the affirmative, it clearly belonged to the respondent (defendant) ; for, in consequence of the denial in the answer, it was incumbent upon him to prove the original indebtedness by the notes. Second Wd. Bank v. Shakman, ,30 W. 333." — Daklmcm v. Hammel, 45 W. 466, 467. AFTER-BORN CHILD 59 5. ' ' The supposed advantage of having the opening and closing argu- ment in a ease at law, is not apparent ! Upon the hearing of a cause in chancery ; 6. And we cannot presume in this case that any substantial advantage has been gained or lost to either party, or that the judgment of the court was at all affected, by the order in which the argument of the learned counsel was allowed to be opened and closed; 7. And we do not think it manifest that any injustice was done by the ruling of the circuit court upon this question ; and unless it is so manifest, it is no ground of error, even in actions at law". —Austin v. Austin, 45 W. 523, 532. 8. Contrary to the former English rule, the court adopts the modern English rule, "that in actions to recover unliquidated damages, if the defendant" confesses and avoids, the plaintiff "still is entitled to open and close". — Cunningham- v. Gallagher, 61 W. 170, 173. 9. ' ' This court has held that the question as to ' which party is entitled to open and close the argument is a mere rule of practide,' and within the control of the courts'. Cunningham v. Gallagher, 61 W. supra". — Wausau Boom Co. v. Dunbar, 75 W. 133, 138. AFTER-BORN CHILD. Adopted child, 15. If any be born, 8. Born after decease, 2. Intention of testator, 5. "Heir" construed, 3. Not expressed, 9. ,p Contingent remainder, 4, 14. i Not outside of will, 1. Declaration of testator, 17. - Provision made, 6. .-•„■' Ellipsis or omission, 10, 13. No other intended, 12. Extrinsic evidence, 7, 16. Remainder is, 4, 11. 1. "We are not permitted to look outside of the will to ascertain the purpose of the testator upon this point. For the statute positively declares, that unless it is apparent from the will itself, that it was the intention of the testator that no provision should be made for the after- born children, then they shall share in the estate as though no will had been made". —Bresee v. Stites, 22 W. 120, 124. 2. A testator in extremis, having no children, knowing his wife to be pregnant, bequeathed 'to my wife M. two thirds of my estate while she remains my widow (if not) one half to go tO her' heir, and the other third to my brother D.'; a son, W., was born after his decease, and the widow subsequently remarried ; held,— - 3. "The words 'her heir', in the will, referred to the unborn child"; the wife received "two thirds of his entire estate", while remaining his 60 PROBATE AND GENERAL LAW, CODIFIED widow, ; and on her remarriage "she was to retain but one of these thirds, .and .the other was to go to her, unborn child. The remaining third" tbDl; ,4. "The remainder limited to the unborn child is a contingent remain- der",, and whether this is a 'provision', under section 2286, is not deter- mined; "that it 'is not", see Rhodes v. Weldy, 46 Ohio St. 234; "That it is", see Osborn v. Jefferson Nat. Bank, 116 111. 130., ■5. If it is a 'provision', then "the will must, prevail"; if, it is not a ,' provision', then, "the will r . shows,, the, intention of the testator not to make a 'provision' for the child, within the meaning of the statute, and the will must likewise prevail". 6. (In re Donges's Est, 103 W. post, after referring to this, and reviewing the, cases, .generally, approval is given to the "rule that any provision, intended ; as such, howeyer slight, will be respected and ,enforced as the complete will of the testator"),, . 7. (Aind.in.Sando^ y, Sandon, 123 W. post, citing Bresee v. Stiles, 22 W. supra, and this case, it is said, in effect, that while "extrinsic evidence" is not permissible to ascertain the intent of the testator, yet, it , is proper to show ."the circumstances surrounding the testator", to ascertain "the meaning and intention" of "ambiguous language" used in the will.) — Verrinder v. Winter, 98 W. 287 290. 8. The testator gives to his wife "all the real estate", "to have and to hold the same until the youngest of my children, if any be born to me, shall attain the age of twenty-one years. In case there are no children living at the time of my decease, my said wife shall be the sole owner of my real estate". The wife was then pregnant and two children were born after the making of the will. There was no further disposition of the remainder in case there were such children. 9. After "an examination of the conclusions" of many similar cases, including Baker v. McLeod's est., 79 W. 534, 543 (see Vesting of Estates), it is said "that the testator had in mind the intention" to give such remainder to "his after-born children", "and that the failure to so declare was" "merely an omission to express an intention fully present in the mind of the testator". 10. "And it is our duty to declare and effectuate such intention in a case like this, and to supply the ellipsis or omission of the testator, so ; that; there shall be added to the first paragraph of the will, 'and then to ; my i said children', and to, hold that by the will itself the realty is devised to respondents upon the majority of the youngest". i 11. And after reviewing the cases, it is held ' ' that the devise ' ' of such "remainder in the real estate", to such children, "constitutes a 'pro- vision' for them, within the terms of sec. 2286, and that the estate should be assigned, and distributed according to the terms of the will, subject to" the modification of "the widow's election to take by law". 12. And, "independently of our view", as stated, following Verrinder v,. Winter, 98 W. supra, "it appears from the will that such, and no AGGRIEVED PERSON 61 other, donation was intended, and, if that is not a provision, none was intended". 13. (In O'Hearn v. O'Hearn, 114 W. 428, See Construction op "Wills, it is said as to this case, that it was not intended to hold that the court "had power to amend the will by adding words to complete its mean- ing", but that it "should be construed as if the added words had been used by the testator", "and not to amend or change the will in any respect"..) See also Construction of Wills. — In re Dtmges's Est., 103 W. 497, 501, 512. 14. Whether a "contingent remainder", is a provision under sec. 2286, though the testator intended it as such, is not determined. See Precatory Trusts. '' '. — Swarth&ut v. Swarthout, 111 W., 102, 112. 15. Under see. 2286 as to after-born child, and see. 4024 as to effect of an adoption order,— where no provision or apparent intention not to provide, appears in a will, a child legally adopted nine days after the making of the will, is held entitled to the same intestate's shar'e of the estate as an after-born child. 16. Following cases supra, "extrinsic evidence" is admissible to show surrounding circumstances "if a will contain ambiguous language", 17. But ' ' declarations by the testator concerning the making of a will, and as to intention concerning the child's relation to his estate" are inadmissible in any case. — Scmdon^v. Sandon, 123 W. 603, 606. AGE. See Birth. See Principal and Agent. AGENCY. AGGRIEVED PERSON. See also Appeal. Administrator, 4, 5. ; ■ \: Affront or desire, 17. Cited for examination, 24. Executor in construction, 11. Executor named, 21, 25. Guardianship; 6. ; Child of party, 1,3, 20. G uardianship — continued Nonresident sister, 18, 19. Not under liability, 15. Substantial interest, 14. Legatee under other will, 8, 10. Liberally interpreted,: 9. Los); will, 22, 23. . 62 PROBATE AND GENERAL LAW, CODIFIED Not party to record, 1. Bights ; adversely affected, 16. Not interested, 2. Supreme test, 7. • Purchaser at sale, 12. Taxpayer, when, 3. .1, A person "directly interested" on account of his title to f real estate^ "though not a party to the record in the proceedings resulting in said order" of the county court, setting aside an administrator's sale, "was a person aggrieved, by such order, within the meaning of the statute, and so was, entitled to take and prosecute the appeal" to the circuit court. , —Beits v. Schotton, 27 W., 667, 670. 2. A party whom the testimony reveals has no interest in the con- troversy, and against whom no judgment is entered, is not a "party aggrieved", and cannot appeal, "however irregular may be the judg- ment". See .Appeal. ■ -—McGregor v. Peaxso-n, 51 W. 122, 123. 3. Where "members' of the corporation as a whole are aggrieved," a taxpayer may appeal, where the city officers refuse to do so. See also Appeal. • — Mulberger v. Beurhaus, 102 W., 1, 7. 4. An administrator, under the appeal statute, sec. 4031, and sec. 4035 as to "enlargement of the time" is an 'aggrieved person', and "any injury to" the interests of the heirs, "in legal effect, was a griev- ance te him within the meaning of the appeal statute." 5. "It is elementary that the legal representative of interests involved in litigation, prejudicially affected by the result, is a party aggrieved within the meaning of the appeal statutes. (Citations.) " — McKenney v. Minahan, 119 W., 651, 654. 6. A guardian ad litem, and also a son under contractual relations, of an alleged incompetent, held aggrieved persons entitled to appeal from judgment of incompetency. See also Incompetents. ■ —Z'iegler v. Bwrk, 121 W. 533, 542. 7. "The supreme test" is "substantial" interest, whether a party to the record or not. See Appeal. — Minn v. Gersten, 122 W. 222, 225. 8. "A person named as legatee under another will, which might be valid if that under consideration were rejected", is held, "a party aggrieved", entitled to appeal from an uncontested probate in the county court, and from a contested affirmance in the circuit court, the earlier will having been "received in evidence" in the latter court which found that the testatrix signed the document "and that upon its face it purported to, be her will". 9. The words 'person aggrieved' "must be interpreted liberally"; 10. "Although, if the objection to the later will were first offered in the county court, we should highly favor the practice which prevails in New York of refusing to listen to such contestant until she had AGGRIEVED PERSON 63 presented to that court for probate the will under which she claimed, to the end that the court might effectually decide upon its validity and thus settle which document was to control the distribution of the estate before it. " ( Cases) . — In re Will of Hunt, 122 W. 460, 463. 11. As to construction of will, the executrix "was an aggrieved party within the meaning of the statute (see. 4031), and, as such entitled to appeal". McKenney v. Minahan, 119 ~W„, supra. .,,, — In re Paulson's Will, 127 W. 612, 615. 12. A purchaser at an administrator's sale of realty "by order of the county court is aggrieved by an order of that court" confirming, as 'well as "vacating the proceedings and therefqr may appeal , therefrom, (Cases)". —Oreilmg v. Watermolen, 128 *W. 440, 448. 13. The petitioner, an only cnild, ;i appea^ng from, ,the decision of the county court refusing to. appoint a guardian of the father, "under sec; 1502, would be legally bound to relieve and support his father should he; dissipate his property so as to be unable to maintain himself. 14. This liability" is held to give "him such a substantial interest" as to "be considered a 'person aggrieved' " under sec. 4031, "when his petition is denied. 15. When a mere friend or relative or, other person not under such liability makes such a petition, ' ' under sec. 3978, ' ' it seems extremely doubtful whether he can" so appeal. (In Sanborn v. Carpenter, 140 W., post, it is held that the "limitation of the term 'aggrieved'" should not extend "further than was declared" here). "i "'.' : ,'"' , ._— Merrill v. MerrUl,,lM W., 39§, 396. 16. "This phrase of the statute", sec. 4031, 'any person aggrieved', "has from the earliest days been construed to the effect' that no one can be aggrieved, in the sense of the statute, unless the determination affects adversely his legal rights ; . , ,■.,,, , '. ,. ,,.,;. 17. That mere affront to desire or sentimental interest is insufficient. (Cases supra). 18. Obviously no personal rights", or "legal interests", "are in- volved" as to "an adult non-resident sister",' 19. And she is held "not aggrieved by the judgment" of refusal to appoint a guardian of her adult sister, though she was an original peti- tioner as "next of kin". ; ■.., • 20. The son's "direct interest" satisfies the decision of Merrill v. Merrill, 134 W. supra, but "a mere next of kin or heir apparent" "has no present legal right whatsoever, but a mere conjectural expectancy", and cannot "be deemed aggrieved for the purposes of appeal in such proceedings". See also Incompetents. ^Sanborn v ( . Carpenter, 140 W. 572, 5,74. . 64 PROBATE AND GENERAL LAW, CODIFIED 21. It is not 'determined "whether or not one actually named as executor in a will that is refused probate is a person 'aggrieved' within the meaning of the statute and entitled to appeal." 22. In the case of a lost will refused probate, where "the appellant has failed to show that she was named as executrix", "the fact that she claims she was so named" is held not to give her the right to appeal. '■ 23. ' ' Nor does the fact that she could properly arouse the jurisdic- tion of the county court in the first instaUce entitle her to appeal ' '. Sanborn v. Carpenter, 140 W. supra. ! Appeal dismissed. —Powers v. Powers, 145 W. 671, 674. 24. One cited for ; examination on discovery citation, is held an aggrieved person, entitled to appeal. ' See Discovery. —Mallory v. Wheeler, 151 W., 136; 144. 25. "The proponent of a will, who is named as executor therein, is a "person aggrieved'- by a judgment" "refusing probate", and "may appeal" therefrom under sec. 4031. See also Probate op Wills. —Cowan v; Beans, 155 W. 417, 418. AGREEMENTS. See also Contracts. Avoidance of agreement, 9. 'Did 'not read it, 11. Excusable mistake, 12. Gross negligence, 13. Inability to read, ; 10. Fraudulent release, 14. Happening after event, 15. ' ' Misunderstanding nature, 16. Mutual consent, 3. •■',,.'■ Mutual relinquishment, 2. Not to commence suit, 1. Oral change in, when, 5. ;Bef ore breach in, 6. Not contemporaneously, 7. Same consideration, 8. Presumption in signing, 11, 16. Unilateral, 4. ; .' 1. "Agreement not to commence a suit on a demand for a given time will not defeat an action commenced before the : expiration of the term fixed iii the agreement." — State Bank v. Corwith, 6 Wi 551, 578. 2. A mutual agreement to relinquish individual debts, acted upon by one debtor, binds the other. See 1 Debts. —Davenport v. First Cimg. 8oc, 33 W, 387, 390. 3. Where the record discloses that an order "was made by the mutual consent of all parties interested," the presumption is that an interested party later objecting, "was present consenting". See Admr. de Bonis Non. —Oakes v. Est. of Buckley, 49 W. 592, 599. AGREEMENTS , , , 65 4. Acceptance of a land contract, by the party not signing, makes it his written- agreement. See Land Contract. v —Bubbard v. Marshall, 50 W. 322, 327. 5. "We regard the rule as well established, that the terms and condi- tions of a written agreement,, not required by the statute, of frauds to be in writing, may subsequently be varied or qualified by the parties by a new agreement not reduced to writing. 6. The rule is thus stated by Lord Denman, in Gross v. Lord Nugent, 5 Barn. & Ad. '58.:, ' Aftjer the agreement has been reduced into writing, it is competent to the parties, at any time before breach of it, by a. new contract not in writing, either altogether to waive, dissolve or annul the former agreements, or in any manner to add to or subtract from, or vary or qualify, the terms of it, and, thus to make, a new contract, which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement.' Page 65." 7. "Obviously the above rule is not in conflict with that other rule, asserted in numerous cases in this court, that proof of an antecedent or contemporaneous verbal agreement between the parties cannot be received to alter or control their written agreement. See Hubbard v. Marshall, 50 W. supra". 8. "On the subject of consideration, it is sufficient to say, in the lan- guage of Lord Denman in Stead v. Dawber, 10 Ad. & EL, 57, that 'the same consideration which existed for the old agreement, is imported into the new agreement, which is substituted for it''. Page 66.'' ••■■'-'■ —Brown v. Everhwd, 52 W. 205, 207. 9. As to a release which is a bar to an action, on an instruction that plaintiff might avoid it "by merely showing that at the time he signed it he did not know its contents or effect", it is said: "Written instru- ments, regularly executed and delivered, cannot be thus dealt with and avoided, or their operation defeated". 10. There being no fraud or deception, "his inability to read English or Understand the contents of the paper is no excuse. . This was his own negligence. He could and should have sought the assistance of some one capable, of properly informing him. Fuller v. Madison M. I. Co., 36 W. 603 ; Sanger v. Dun, 47 W. 615. , • 11. It cannot be tolerated that a man shall execute a written instru- ment, and, when called upon to abide by its terms, say, merely, that he did not read it or know what it contained. Upton v. Tribilcock, 91 U. S: 50". 12. In Sheanon v. Pacific M. L. Ins. Co., 83 W. 527, 528, is given "the true rule, in the, absence, of" deception, that "if ( the instrument was signed through the excusable mistake or negligence , of the party, he is not bound by it, and that the burden of proof is on him to rebut the presumption" of gross negligence. Zimmerman — 5 66 PROBATE AND' GENERAL LAW, CODIFIED 13. .If grossly negligent, manifestly he would be bound by it ; but the presumption is not a conclusive one". ■ ■ , ^Albrechtv. Milwaukee & S. 11. Co., 87 W. 105, 109. 14. ' The recording of a fraudulent release of a mortgage, is held not to protect innocent purchasers. See' Claims. —Franklin v. Killilea, 126 W. 88, 98. 15. "An agreement to pay a' sum of money ascertainable after the happening of an event which the contract contemplates will happen is" "enforceable after such happening". — Bust v. Fitzhugh, 132 W., 549, 557. 16. As to statement of not understanding ' ' the nature of the docu- ment which he signed", not overcoming the contrary presumption. See Compromise. —Bayborn v. Galena I. W. Co., 159 W. 164, 169. See Widow. ALLOWANCE. ALTERATION. See also -Landlord and Tenant. "After due" stricken out, 11. Assent after alteration, 6. Burden of ' explaining, 1)'27. Consent of one party J 4. Instrument not under' seal, i5,l . Different ink, striking rout, 11. Foreclosure on note, 32. Immaterial alteration, 17. ' Adding name of witness, 22. Changing figures held not, 18. Legal effeet not changed, 21. Insurance beneficiary, 24. Interlineation, 25, Legal effect not changed, 21. Made by party or privy, 19. Must be material, 20. Note. Without maker's, consent, 1. Original consideration, recovery, 3, 16. Payable to order, to bearer, 12. Presumption of time, 26. Absence of indication, 27. Innocence presumed,' 28. Question when raised, 14. Signed in blank, 15., Spoliation by stranger, 13. True rule adopted, 7. Burden on party offering, 8. Explained in instrument, 9. Suspicion on face, 10. Void : extent of, 29. Foreclosure on note, 32. Holder in due course, 30. Legal effect changed, 31. Will after execution, 2. Attempted erasure, 23. Insurance beneficiary, 24. Without fraud, 3, 16. 1. Of note without maker 's consent vitiates it, and the burden of explaining is upon the holder. — Law v. Mei-rill, 1 Pin. 340. 2. Of a will after execution, without explanation, invalidates the will if alteration is material. See Wills. — In re Wilson, 8 W. 171, 179. ALTERATION /. ., 67 3. An alteration of a note without : fraud does , not! prevent recovery on the original consideration. See, Promissory NbltES. i —MattesonV. Ellsworth,, 2& W. 488, 493. 4. "The alteration of a written instrument in a material point, with the knowledge or consent of the holder, and party claiming, under it, hut without the consent -of the party sought to be charged, extinguishes the liability of the latter. Such an . alteration makes i the contract void, and so long as it remains, in that condition no recovery whatever can be had upon it". (But as to exception under Negotiable Ins, Act, L. 1899, see Heck v. Shenners, 126 W. post) . :,,.. .^ - i ,; ■ >' 5 "Therule is well settled, that an alteration of an instrument , not ■ under seal, by one party, with the assent of the other, will not render void the instrument." 6. "If this be so, then bis assent, given after the [alteration was/made and where knowledge, of it was. brought to him, ought to have the same effect and be in all respects equivalent to such assent previously given or to an original authority granted"; "and upon this question we find, no disagreement among the authorities". .'n.-., .,, —Kilkelly v. Martin,; 34 W. 525, 530. 7. The, court saying that, they were "at liberty, to adopt, that rule which appears to us most in, accordance, with: sound principle", : they "therefore adopt substantially the following remarks! of Prof. Greenleaf as laying down the true rule ; ;! .. -.■■>■.■-■■ [■■■-■ 8. 'If, on the production of 'the instrument, it appears ,to have been altered, it is incumbent on the party offering it in evidence to explain, this appearance.' .•.■■.,-. , s > ■ ■• ' - 9. 'If the alteration is noted in the attestation clause as having been made before the execution ofh the instrument, it is sufficiently accounted for and the instrument is relieved from that suspicion. ' ,.,, , . ... Mi , 10. 'But if any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing, but leaves the question of the time when it was done ,as well as that of the, person by whom, and the in- tent with which the alteration was made, as matters of fact,, to, be ultimately found by the jury upon proofs to be; adduced by thepariy , offering the instrument in. evidence'. 1 Greenl. Ev. See. 564". 11. In this case the: words 'after due', being stricken out, "with a different ink," it was held the "plaintiffs were bound to account, for the change in the note, and should have given some evidence from which the jury might have found, that the words 'after due! were stricken out prior to or contemporaneously with the; execution), of the note." —Page \. Danaker, 4:2^.221, 225, 12. "A note payable , to bearer is essentially a different contract from.; a note payable .to order " ; and an alteration changing, it from payable 'to order', to payable 'to bearer', is material. 68 PROBATE AND GENERAL LAW, CODIFIED 13. Where the alteration is made by ; a trespasser "it remained as written, as much as if it had been merely obscured by an accidental blot of ink. It was spoliation by a stranger, not alteration to charge the holder". —Union Nat. Bank v. Roberts, 45 W. 373, 377. 14. The question of alteration of a note must be raised, and the alteration explained when the note "is offered and before it is received in evidence." See Promissory Note. — Austin v. Austin, 45 W. 523, 530. 15. The holder of a note signed in blank, may fill and alter the same before^ negotiation, "without vitiating the note". See Omissions. ' — Snyder' v. Van Doren, 46 W. 602, 607. 16. An alteration of a note by the holder, without fraudulent intent, as decided in Matiteson v. Ellsworth, 33 W. supra, does "not prevent a recovery on the original consideration ' ', the alleged alteration here being ' the addition of the words 'payable annually' and the subsequent erasure thereof. — Garden v. Robertson, 48 W. 493, 495. 17. "We must hold that, assuming the words 'This note to be extended if desired by makers' were written upon the back of the note at the time of its execution and a part of it, yet they are too indefinite to con- stitute any material qualification of the agreement contained in the body of the note, and hence the subsequent addition of, the words, 'on payment of the interest as expressed until January 1, 1879, ' was not a material alteration of the note". ■ > —Krouskop v. Shontz, 51 W. 204, 207. 18\ Changing $45 on the margin of a note in blank to $450, is held not an alteration to vitiate the note. See Omissions. —Johnston E. Co. v. McLean, 57 W. 258, 263. 19. "The reasonable rule has now become firmly .established that an alteration of a contract which will render it void must be made by a party thereto or with his knowledge or consent ; 20. And, further the alteration must be material; that is, the altera- tion must in some way change the legal effect thereof as between the parties thereto. 21. The insertion or addition of words in or to a contract, or the erasing of words therefrom, which do not change the legal effect thereof in any respect, does not render the 'contract void, and is an immaterial alteration.' (Many cases). 22. The affixing of the name of P. as an attesting witness to the note in question does not change the liability of the maker thereof", and is an immaterial alteration. — Fuller, Extr. v. Green, 64 W. 159, 165. ALTERATION 69 23. "Attempt to alter certain portions of' the will by erasure, without obliteration." See Revocation. —Will of Ladd, 60 W., 187, 200. 24. Change attempted in beneficiary of a policy-, as designated in a will, and no will made. See Insurance. —Grace v. N. W. Mut. Relief Assn., 87 W., 562, 564. 25. Where "the words 'or. order' were interlined," it is said: , ,f The mere interlineation in the note raises no presumption of a fraudulent alteration. The note itself furnishes no evidence casting suspicion upon it. It appears to have been all written by the same hand, with the same ink, at the same time." 26. ' ' The mere fact that a note has a material interlineation raises no presumption that it was changed after delivery"; Page v. Danaher, 43 W., supra, distinguished as altered with a different ink, raising a sus- picion, to be removed. 27. "In the absence of any indication that the paper has been altered since its completion, execution, and delivery, it' is free from suspicion notwithstanding there may be an interlineation in it." 28. " ' In such a case it is clear that the usual presumption in favor of innocence and against wrong doing will obtain and the burden will rest upon the person asserting that a wrongful alteration has been made to establish it'. Jones Bv. 578". —Maldaner v. Smith,, 1 102 W., 30, .35. 29. "If the note has been altered in a material respect since its deliv- ery, it is receivable in evidence for no' purpose except to prove such alteration, and is wholly void either in the hands of the original payee or any subsequent holder thereof, however innocent. (Citations). '•- 30. The exception to this elementary rule of law in favor of a holder in due course, not connected with the alteration, established by the Nego- tiable Instrument Act (ch. 356, L. 1899, sees. 1675 to 1684-7), is inap- plicable, for the rights of the parties became fixed" here, before its enactment. 31. Although the alteration "did not affect the negotiability of the note", "any alteration which changes the legal effect of the instrument upon the rights of the parties is a material alteration, whether such change be prejudicial or favorable to the maker. (Citations)." 32. On a note held void for material alterations, foreclosure judgment on the mortgage was sustained, hut" personal judgment for the original consideration", "cannot be sustained, for the reason that there was no original actual consideration; the papers having 'been executed by" defendant "merely as accommodation". —Hecht v. Shmners, 126 "W. 27, 30. 70 PROBATE AND GENERAL LAW, CODIFIED AMBIGUITY. See also Construction of Contracts. Construction op Wills. Parol. Construction of Deeds. sion; of meaning, 7. Extraneous evidence, 2. Intention of parties, 6. Limited to circumstances, 10. Not to conversations, 11. Sense of parties, 9. When in will, 3, 12, 13, 14. Identify legacy or devise, 12. Names, cemeteries, 3. Latent: two lines, 2. Extrinsic evidence, names, 3. Individual indebtedness, 4. , , Meaning: by conduct, 19. Either of two ways, 20, 22, 23. Patent: void devise, 5. Subject matter thereof, 17. Surrounding circumstances, 10, 18. Unambiguous, 1, 8, 21. Clause in two ways, 22. Meaning is clear, 23. Will: Person or object, 3, 13. Sec. 21 as see. 22, 16. Misdescription, 14. Without adding, 15. 1. "Where there is no ambiguity, no exposition shall be made con- trary to the express words of the instrument." —Hopkins' Admr. v. Holt, 9 W. 228, 230. 2. "Two lines corresponding with the description in the will", is held to be a "latent ambiguity", explainable by extraneous facts. See Con- struction of Wills. — Morgan v. Burrows, 45 W. 211, 217. 3. "Extrinsic evidence was admissible to show which of the two cemetery associations was intended," to remove "the latent ambiguity which otherwise would have existed," in the will. See also Charitable Trusts. —Webster v. Morris, 66 W. 366, 379. 4. Parol evidence is held properly admissible to show what was intended by the words "individual indebtedness" in a will, as a latent ambiguity. See Construction of Wills. —Scott v. Neeves, 77 W., 305, 310. 5. A patent ambiguity, causing a void devise, and intestacy as to such portion of the will. See Construction of Wills. — Willey v. Clark, 105 W., 22. 6. Parol evidence is admissible "to enable the court to say what the parties to a contract intended to express by the language adopted in .making it," and "to.show the real nature of the agreement," where there is an ambiguity or its language is obscure. (Cases). —Boden v. Maker, 105 W., 539, 543. 7. "Ambiguity of expression is one thing and ambiguity of meaning is another." "Obscurity, which often springs from the consequences of a literal application of the plain, ordinary meaning of words in a con- AMBIGUITY 71 tract to the. subject matter of it; calls for the light which the settled rules of law shed upon the uncertainty of intention of the contracting parties, the same as when obscurity exists in the language of the contract itself. State ex rel Heiden v. Ryan, 919 W., 123." — Vilas v. Bumdy, 106 W., 168, 177. 8. "Where there is no ambiguity in the contract, either in its literal sense or when it is applied to the subject thereof, it must speak for itself entirely unaided by extrinsic matters. • -.: 9. Where such ambiguity does exist, then evidence of the circum- stances under which the contract was made -is proper to enable the court in the light thereof to read the instrument in the sense the parties intended, if that can be done without violence to the rules of language or of law. (Many cases) ". 10. "The rule of construction", "is limited to proof of the situation of the parties and 'the circumstances characterizing the making of the contract. 11. It does not extend to mere conversations between them leading up to the completion of the agreement. That is elementary." Steele v. Sehricker, 55 W., 134. , —Johnson v.' Pugh, 110 W., 167, 170. 12. " 'The admissibility of parol evidence to identify the subject- matter of a legacy or devise' is undoubted. 2 Underbill, Wills, § 911. Thus, 13. It has been held in the supreme court of the United, States : 'A latent ambiguity in a will which may be removed by extrinsic evidence may arise (1) either when it names a person as the object i of. a gift, or a thing as the subject of it, and there are two persons or things that answer such name or description ; 14. Or (2) when the will contains a misdescription of the object or subject, as where there is no such person or thing in existence, the person is not the one intended, or the thing does not belong to the testator ; 15. When a careful study of the testator's language, applied to the circumstances by which he was surrounded, discloses an inadvertency or mistake in a description of persons or things in a will, which can be corrected without adding to the testator's language, and thus make a different will from that left by him, the correction should be made'. Patch v. White, 117 U. S. 210". —Flood v. Kerwin, 113 W., 673, 680. 16. Extrinsic evidence to construe sec. 21 (as sec. 22,) in a will, fol- lowing Scott v. Neeves. 77 W., supra. See Mistake. . —Hamley v. Kraftasyk, 119 W., 352, 358. 17. "Ambiguity requiring judicial construction may as well arise from applying the contract to the subject-matter thereof as from the literal sense of the word'. (Cases). 18. In either case, in aid of determining the intention of the parties, ■ra PROBATE AND GENERAL LAW, CODIFIED which of course must govern if within the reasonable scope of their words, the agreement may be considered from the precise standpoint; ; as regards surrounding circumstances, of the parties at the time of entering into the same. (Johnson v. Pugh, 110 W., supra), 19. And the meaning which they subsequently, by their conduct, .ascribed thereto." 20. "Where the words of a contract may be reasonably taken in either of two ways, one that will render it void and one that will not, the latter is to be preferred. Hunt v. Stinson, 101 W., 556". See also Services. ■<■■>•• —Loper v. Est. of Sheldon, 120 W., 26, 30. 21. "In case of a contract being unambiguous no attempt should be made to determine its meaning by rules of construction". 22. "A contract is not, necessarily, obscure because some particular w6rd or ■clause,' by itself, is susceptible of being read in two or more ways. ■ : 23. Notwithstanding that, if looking at the writing in all its parts, the meaning is clear, there is no case for a choice between conflicting reasonable meanings". See also Marriage Contracts. —Oesau v. Est. of Oescm, 157 W. 255, 262. AMENDMENT. See also Mistake. Pleadings. After verdict, 18. Appeal: Of account, 1. Agreement added, 8. Claim, complaint, 5. Claim for services, 4. Failure to state facts, 6. Indefiniteness, 7. Jurisdiction not involved, 3. New items., wrong, 15. . Petition to, vacate will, 2. Within court 's discretion, 9. Contract, to money had; '20. Contract, to quantum meruit, 21. Commenced at filing, 23. Barring of action, 24. Separate cause of action, 22. Discretion, broad, 10. Accrue pending suit, 13. Furtherance of justice, 14. Nor contract to tort, 12. Not equity to law,, 11. Increasing the amount, 17. Not presented below, 16. Quantum meruit, to contract, 19. 1. On an appeal on an administrator's account, amendment as to detail and "particulars of the service etc", is held within the circuit court's discretion, but not ''to allow an entirely new claim to be" there first presented. See Accounts 6f EXtrs. and Admrs. —Sloan v. Duffy, 117 W., 480, 483. 2. Amendment/ on appeal in circuit court, of petition to vacate probate' of will order, for constructive fraud, allowing also to be "set up the claim of petitioner as being an afterb'orn child, and asking that the (final) order assigning the real estate" also "be vacated and set AMENDMENT 73 aside", there being no appeal from ■ such'. last order, — was held properly- allowed. •.;!,..,, , 3. "The original petition gave the county court' jurisdiction of these matters; hence it was proper to allow the amendment, or the court could have granted the relief without the amendment. Brook v. Chapell, 34 W. 405 (See Jurisdiction)." See also Fraudulent Orders. —Parsons v. BcAson^ 129 W. 311, 319. 4. Where a claim for services "did not contain any statement of the agreement out of which it originated, yet" "indicated" "that it was based on an agreement of some sort", and "was not barred by the statute", 5. "In view of this and the liberal rule in respect to such matters in county courts and the treatment of the claim filed as a complaint on appeal to the circuit court, ' 6. We are constrained to hold that the failure to state therein/ facts ' showing expressly a cause of action which accrued within six years prior to the death of M., 7. Was a matter of indefiniteness rather than a fatal defect in the cause of action;" and i. , 8. Amendment "by adding to the writing a statement that the. work was done under an agreement that it should be paid for, upon the death of M.", was held properly allowed. 9. It being "within the court's discretion to allow, the' amendment, and, it having been allowed, the fact that it was not formally reduced to writing and filed, inasmuch as the cause proceeded to. the: end on the theory that it had been made, is immaterial. ! ; 10. Trial courts have a very broad discretion in such matters", with "the limits, generally speaking", — ' 11. "That the form of the action must not be changed from one in equity to one at law, ' 12. Nor from one on contract to one sounding in tort, 13. Nor contain an independent cause of action accruing pending the suit, 14. And the amendment must be in furtherane of justice and allowed in such manner as not, in a legal sense, to prejudice the rights of the adverse party. Gates v. Hall, 117 W. 170". —Longwell v. Mierow >{ 130 Wj, 208, 210- 15. "The circuit court allowed an amendment to the original claim (for board and lodging) as filed in the county court which added two entirely new items", being for "washing, mending,, and cleaning,. etc.". "This was clearly, erroneous". , ,.'...;■ .16. "Matters not presented ip the county court cannot be brought into the controversy upon appeal, because the theory of the statute is that only claims which have been passed upon by the. probate court are to be considered upon the appeal. Sloan V; Duffy, 117 Wi supra.'.' 74 PROBATE AND GENERAL LAW, CODIFIED 17; "Where the original claim is for the value of definite property, or services, an amendment increasing the amount of such value is permis- sible, because" not considered "a new or independent claim, but as merely making change in the scope of the claim upon which the county court passed. Dayton v. Est. of Dakin, 103 Mich. 65. See also Longwell v. Mierow, 130 W. supra". 18. Amendment after verdict, allowed '.'to conform with the verdict and evidence" increasing board and lodging "to $7 per week instead of $4". —Taylor v. Thiewm, 132 W. 38, 41. 19. "It. has been held that a complaint for services on quantum meruit could be changed by amendment on the trial to a cause of action on express contract. Pellage v. Pellage, 32 W., 136. 20. So it has been held that an action on express contract could be changed by amendment to an action for money had and received. N. W. U. P. Co. v. Shaw, 37 W, 655; (other cases) ". 21. Where on the trial, "by leave of the court", an amended com- plaint was filed changing the action from one ' ' upon express contract to one on quantum meruit, and annexed a written agreement thereto as a part thereof" without claiming performance of such agreement, it is held: 22. "That the cause: of action on quantum meruit was separate and independent from the cause of action on express contract, 23. And that no action was commenced on quantum meruit until the filing .of the amended complaint, at which time that cause of action was barred by the statute of limitation. 24. It follows" "that the complaint ' was improperly amended," though "the amendment in question would undoubtedly have been per- missible had it been made before the statutes of limitation had run upon 'the new cause of action." See also Limitation of Actions. — Meinshausen v. A. Gettelman B. Co., 133 W., 95, 100. ANCILLARY PROCEEDINGS. Action against heir, 10. Primary administration, 4. Domicil at death, 1, 2. Probate elsewhere, 1, 2. Entirely independent, 9. Eeal estate, lex loci, 7. Non-claim statute, 8. Subordinate to principal, 5. Conclusiveness, 11. Surplus to ancillary, 3. Creditor barred, 10. Sent to principal, 6. L "The proper jurisdiction for the probate of" the will of a testa- trix, "in chief, was that of her domicil at death. Probate of her will elsewhere would be ancillary". — Smith v. Peckham, 39 W. 414, 419. 2. "The principal administration of the estate of an intestate is, at the place of his domicil at death. Administration in another jurisdiction is ancillary. APPEAL 75 3. And where there is a surplus for distribution in an ancillary admin- istration, the cases seem all to agree that, though the distribution must follow the lex domicilii, yet it is discretionary with the court granting the ancillary letters to transmit the surplus to the principal adminis- trator, or to distribute it for itself". See Foreign Judgments. —Price v. Mace, Admr., 47 W. 23, 27. 4. "The administration in the state of the domicile is deemed the principalor primary administration, — the one which can make -the final decree for the settlement and distribution of the estate. 5. If administration is granted in another state, it is treated as in its nature ancillary merely, and is generally held subordinate to the prin- cipal administration. See Story's Conn. Laws, Sec. 518; Price v. Mace, 47 W. supra; Parsons v. Lyman, 20 N. Y. 103. 6. So, where assets remain in the hands of the ancillary adminis- trator after the satisfaction of all debts in his jurisdiction, they are usually ordered to be sent to the principal administrator for distribution. 7. But real estate is governed by the lex loci, and questions in respect to it properly belong to the jurisdiction where: it is situated". — Van Steenwyck, Extr., v. Washburn, 59 W. 483,! 510-11. 8. The non-claim statute, sec. 3844, applies to ancillary administra- tion here as to claimants. See Claims. 9. "The ancillary administration is an entirely' independent adminis- tration. Price v. Mace, 47 W., supra-. "When letters have been -issued, the course of administration is the same" in the case of non-resident decedents as residents. — Winter v. Winter, 101 W., 494, 498. 10. "A creditor who fails to present his claim in an ancillary admin- istration in this* state within the time limited cannot maintain, an action here against an heir of the decedent after the time for presenting claims has expired. (Cases) ". 11. As to conclusiveness of ancillary proceedings as to clainya. See Claims. —Davis v. Davis, 137 W. 640, 647. ANTE-NUPTIAL CONTRACT. See Marriage Contracts. APPEAL. See also Aggrieved Persons. Bonds. , Stay of Proceedings. Adverse party, 8. Adverse party-'-^-continued Co-defendants, 25, 26. / Incompetent's appeal, 91. Guardian ad litem, 129. Special administrator, 23, 24, 127. 76 PROBATE AND GENERAL LAW, CODIFIED Aggrieved person, test, 101. , Proponent, special admr., 127, 128. Amendment of claim, 97. Of petition after appeal, 118. Appearance : effect of , : 31. Motion to dismiss, 32, 35. Refusal to reverse, 57. Appellant must show, 1. Appoint commissioners, 19.. Bar to another action, 68. Bond : endorsement, 9. Admr. of another estate, 69. After sixty, days, : 29, 71,114. Filed at trial, 131. Filing notice essential, 106. Guardian ad litem, 71. Guardian relieved from, 53. ' Believed in same est/ only; 70. Substantial compliance, 72, !105. Undertaking later, 104. Circuit court application, 11. Abuse of discretion, 61, 62, 124, 137. Allowed at court trial, 130. Ample power given, 60. , Attorney 's neglect, 78, 123. Bad faith and laches, ,36. Bond filed at trial, 131. Burden upon appellant, 88. 'Claim not 1 objected to, 12. Counter affidavits, notice, 11, 80, 86, 125. . Discretion of court, 113, 136, 138., Documents presented, 90. Doubtful, questions intimated, 64. Evidence: kind taken, 109. ' ' Facts themselves,' supplied, 89. Ignorance in infant case, ■ 64. Justice requires revision, 78, 86, 87, ^Laches found, 112. Near relatives and heirs, 107. Petition presents case, 61. Presumption of facts, 67. Require definite statement, 108. Time failure of bond, 115. What is declining, 13. Whether order appealable, 15. Circuit Court's judgment, 4. Co-defendants' rights, 25, 26. Co-executor or co-trustee, 92. From final account, 140. Nonconsent of co-executor, 143. Objections as legatee, 141. Consent: to judgment by heir, 122. To account by executor, 139. County judge: magistrate; 119. Decease after judgment,' 42. Time not extended, 43. De novo trial, 51. Dismissal of appeal, 102. After long delay, 117. Finding not effective, 103. Not prejudicial, 145. Entitled, estate of, 10. Executor for legatee, 142. Executor named: no bond, 82. Executor: will set aside, 93. Filing after sixty days, 98. Court's discretion, 99. Final determination, 96. Foreign administrator, 144. Dismissal pf appeal, 145. Not prejudicial, 145. Forms in appeal, 146. General guardian, by, 22. Adversely interested, 50. Relieved from undertaking, 53, 54. Guardian ad litem, 50, 129. Bond filed at trial, 131. Infants: by guardian; 76. Or guardian ad litem, 76. Interested, but not party, 100. Interest: objection as to, 18. Shown by record only, 120. Uncle of minors, 76. Intermediate orders, 40, 41, 84. Appeal from another order, 85. Joint right to appeal, 49. Judgment: against several, 21. On remittitur, 58. Jurisdiction, failure, 44. Jury verdict in equity, 38. Notice of appeal, 56. Authorized representative, 110. Defective notice, 86. Filing shows service, 81. Form not prescribed, 111. Signed by attorney, 121. Order as final judgment, 94. Order or judgment, 65, 94. Final -determination, 96. Form not conclusive, 95. Orders after judgment, 63. Party not appealing, 51. Part of judgment only, 37. Party with no interest, 39. Payment of judgment, 45, 46, 52. Acceptance of costs, 75. Distinction stated, 74. Entitled to money absolutely, 73. Part payment, 55, 66. Pending appeal, 7. Prosecute with diligence, 16. Irregular dismissal, 17. Realty purchaser, 5. APPEAL ; 77 Remittitur, judgment on, 58, 59. Taxpayer may appeal, 77- Judgment conclusive,, 116. Time runs: result announced, 133. Regularity of order, 6. Conclusive, from ininutes, 134. Service as per order, 30. Due notice of hearing, 132. Incompetent's appeal, 91. Two appeals, same, 14. On attorney for petitioners, 91. Undertaking, practice, 146. Parties not named, 33, 34. Voluntary relinquishment, 83. Special administrator, 23, 24, 127. Waiver of appeal right, 46, 47. Statutory right, 20, 135. Clearly established, 48! '"': Stay of proceedings, 37. Witness fund payment, 126, 127. Successive appeals, 27, 28. - Writ of error, .2. Supreme Court, judgment, 58, 59. Orders after judgment, 63. 1. Appellant must "show or offer to show that he had an interest in the estate, the subject of controversy, or that any wrong had been done, for which he could qlaim redress in a court of justice. " '.'"'" —Strong v. Wmslow, 3 Pin. 27, 29. 2. A "writ of error will lie to reverse" a void judgment. t —Abrwmsv. Jones, 4 W. 806, 808. 3. Appeal to circuit court has "the effect to suspend the order" of the county court, "until the determination of the appeal." "' '' —Gaston v. Babcock, 6 W. 503, 508. '4, Circuit court should affirm, reverse, or modify on appeal ' from county court, and nqt dismiss where the appeal is perfected. — In re Newland, 12 W. 490. 5.i The purchaser of real estate from an heir before final settlement, has not such an interest in the settlement as entitled him to appeal therefrom. . ,,, , 6. The court, "cannot look , beyond .thie orders of the probate court appealed from, and examine into" the regularity of the appointment of the administrator, etc, , —Gunn v., Green, 14 W. 316 j "318. 7., Suspends all proceedings until "cause remitted to the county court, ' ' and administration with will annexed could not be granted, pending appeal. ,, .:,,-.; -,,, ,. r , , , — In re Fisher, 15 "W. 511, 521. . ■'.■■ .-'I ;,.! . 8. After guardian's qualification and appointment, he is the adverse party and the bond "should have heen .executed; to tHe guardian" and not to the petitioner., , See Bonds. , , —State ex re},., Tallmadge y.' Flint, 19 W. 621, 623. 9. Bond received and properly filed ;need not necessarily have" ' ' ap- proval thereon endorsed in writing." See Bonds. —Bowles v. Page,, 20 W. 309. 78 PROBATE AND GENERAL LAW, CODIFIED 10. In appeal on claim, the cause may be' properly entitled by the name 1 of 'the; claimant as plaintiff and "The Estate of M. deceased," defendant, though "generally it would be more regular to name the executor or administrator as defendant or plaintiff in such cases." • —McNight v. Estate ofMbMght, 20 W. 446, 447. 11. Upon an application to the circuit court to allow an appeal from an order of the county judge, after the time for appealing has expired, the circuit court properly declined to receive counter affidavits "in regard to the merits of the claim", and it ! was held doubtful whether the opposite party "had any right to notice of the application, and whether if; was not designed to be entirely ex, parte". 12. It is not necessary for the claim to be "objected to" in the county court, to allow an appeal. 13. "A neglect to appeal until the right was barred, would be declining in the most effectual manner". — Grower v. Hield, 22 W. 200, 202. ,,.., 14. In "bringing two appeals for the same purpose, * the practice has been adopted, to ' dismiss one of the appeals ' '. 15. ' ' It is doubtful whether this order (of the circuit court) , allowing an appeal to, be taken from a decision of a county judge, was appealable at all". —Ymmg v. Groner, 22 W. 205, 206. ,16. "It is the more regular practice, where the appellant fails to prosecute ' the appeal with reasonable diligence, for the circuit court", on motion "to affirm 'ttje judgment' or order appealed from". 17. While it was held irregular to dismiss the appeal, the dismissal was sustained because "the irregularity can work her (appellant) no prejudice". ' ' —Beits v. Sholton, 24 W. 306, 308. 18. The objection "that the appellant had no interest in the subject- matter of the appeal" may 'properly be' taken by motion in the circuit ', court" supported by " affidavits, "papers and documents". "In such case, if any serious or doubtful question of fact arises, an issue may be made up and the verdict of a jury taken". 11 —Amory v. Amory, 26 W. 152, 158. 19. Where the' power to appoint commissioners for ; condemnation purposes, is given by statute, disconnected from the regular county court proceedings, "and is not conferred upon the bounty judge as a part of his ordinary judicial functions", the general county court appeal statute does not apply, and there is no appeal in such proceedings in the absence of special authority in connection therewith. 20. "An appeal is purely a statutory right, and unless given by the statute, the right does not exist." —Western V. By. Co. v. Dickson, 30 W. 389, 391. ; APPEAL . i 79 21. The county court having entered i judgment i against several heirs claiming an undivided fund, and only one < appealing therefrom, the judgment must stand as to the remainder where reversed as to the one on appeal. : — Try on v. Famsworth, 30 W. 577, 582. 22. An appeal by the general guardian instead of guardian ad litem, was held proper. See Infants. —Foster v. Hammond, 37 W. 185, 187L 23. "Probably, in any case, the special administrator should be con- sidered as the adverse party, to whom, in circumstances like these, the appeal bond should run", he being . appointed , before the probate of a will. "He is, for the time being, the only representative! of < the estate". 24. "Here, however, the special administrator is also the proponent of the will and the executor named in it. There appears- no- room for doubt that he is the adverse party to whom the appeal bond should run ". —Appealofi John MulUns, 40 W. 154, 155. 25. Co-defendants in a construction suit are not "adverse parties", necessarily entitled to notice of appeal' from other defendants.. , See Interpleader. — Wheeler y. Hartshorn, 40 >W; 83, :97. 26. On an appeal by one defendant, co-defendants are " entitled, upon proper application here (in the appellate court), to all the rights of practice of respondents", being, though not parties, "privies to the appeal, because parties to the record below", the plaintiff below being prima facie at least, "the adverse party of the statute*'. " ■ . . —Hunter v, Boswonntih, 43 W. 583, 590. 27. Where the circuit court construed a will, certain .parties appealed and obtained a different construction as to them by the supreme court ; while other parties accepted their shares: under 'the circuit court con- struction without 'appealing, until after the reversal by the supreme court as to the first appellants, when they also appealed ; 28. A motion to dismiss this, appeal on the ground of settlement made, etc., was denied, not on the merits and without prejudice to the right to further litigate said matter, and. the court says: ''We reverse the judgment of the ; circuit court as ito these appellants* :on the same grounds that we reversed.it as to the former appellants on their appeal. (40 W. 83, supra) ". ^-Wheeler v. C.atlin, 44 W: 464, 466. . 29. "The penalty of the (appeal) bond was not fixed, nor was the bond formally approved by the county judge, until after the expiration of the sixty days of the statute; but we are, of the opinion that those circumstances do not invalidate the appeal". - 30. When the creditors "are adverse parties to the appeal", and the order "required. personal service of the notice of appeal on the adverse parties" (sec. 4033), and none were so served, it is held that "service 80 PROBATE AND GENERAL LAW, CODIFIED on their* attorney ,alone> is not a 'compliance with that order, and would not give the court jurisdiction of them",.i. e. of the person, though "the appeal was perfected so as to give the circuit court jurisdiction of the subject matter^— that is, of the order appealed from". 31. But the adverse parties having "appeared generally in the cir- cuit court, and submitted a motion that the order 'of the county court", be affirmed, "that was an appearance which operated as a waiver of defects in the service of the notice of appeal." —Perkins v. Shadbolt, 44 W. 574, 578. 32. ''The appeal should not have been dismissed" for defects of service, "for the reason that the adverse parties appeared generally in the circuit court by their attorneys, by obtaining and arguing the motion to show cause why the appeal should not be dismissed, and thereby waived all irregularities in the service of the notice of appeal", the motion to dismiss not being confined to this point. See also Appearance. 33. That an order directing "the notice to be served upon the adverse party, ■ without naming the party", "would be good when the proof shows that it was in fact served upon the adverse party, was decided in Nelson v. Clongland, 15 W. 392 ; 34. And we have no doubt but an order directing it to be served upon the person or persons who are in fact the adverse parties, would be equally good, provided it was properly served upon such persons so named in the order". 35. "A motion to dismiss the appeal on 'the ground that there was no evidence filed in the circuit court of the service of the notice of the appeal, by implication admits that there was a service in fact, and there- . fore, admits the jurisdiction of the court over the person of appellant". —Kasson v. Est. of Brocket, 47 W. 79, 83. 36. In a case "of bad faith and laches", the circuit court's order allowing an appeal after sixty days, was reversed. See Circuit Court. — Downer, Adm. v. Howard, 47 W. 476, 478. 37. Where on a claim for money loaned and for services preformed, the money claim was allowed and the service claim disallowed in county court, and there was an appeal only by the administrator from the money allowance, but no appeal by the claimant from the service disallow- ance, held, that the only question which the circuit court could adjudi- cate was the amount due claimant as for money loaned. — Moerchen v. Stoll, 48 W. 307. 38. Upon appeal from the verdict of a jury in equity, the judgment will not be reversed, "unless it appeared that such finding was clearly against the preponderance of the evidence". See Jury. — Stanley v.,Bisse, Extrx. 49 W. 219 220. APPEAL ; 81 39. "We * hold that an appeal will not lie in favor of one who had no interest in the controversy (revealed by the testimony, though a party), and against whom no judgment has been entered, however .irregular may be the judgment. Appeals are to be taken by a 'party aggrieved.'- .(Many cases inc. Idley v. Bo-wen,- 11 Wend. 227; Mills v. Hoag, 7 Paige, 18 )> ' '. —McGregor v. iPearson, 51 W. 122j 123. 40. -"Upon an appeal from a judgment, this court may review any intermediate order, or determination of the court below appearing upon the record, which involves the merits and necessarily affects the judg- ment (Sec. 3070) ; . 41. But on an appeal from an order, no authority is conferred to review a prior order in the cause. '- Flanagan v. Eailway Co., 45 W. 98, and cases cited". —Breed v. Ketchwn, 51 W. 164, 166. 42. Where plaintiff obtained judgment in the. circuit court, and died without an administrator having' been appointed within the two years limited for appeal, it is held that neither under the statute (sees. 3039 and 4234), or otherwise, can the judgment defendants appeal after such two years, an administrator having thereafter been appointed. ■; 43. "It would seem -that under section 3086, an administrator might have been appointed on the application of the defendants, and then, upon their application, the administrator might have been compelled to revive the judgment under sec. 2811. " See also Limitation of Actions. -^8amb$, Admx. v.- Stein, 53 W. 569, 574. 44. Though the matter is tried de novo in the circuit court on appeal, if "the county court failed to obtain jurisdiction of the subject matter of the proceedings, then the circuit court could not obtain jurisdiction of them by the appeal ' ', and could only dismiss the proceedings. ( Gases) . . : — Appeal of Boyston, 53 W. 612, 617. 45. The rule of law is "the payment of a judgment is no waiver of the right to appeal therefrom, or to; bring a -Writ of error to review it". 46. The reason given "for this rule is doubtless the true one, namely, that because payment of the judgment may be enforced by execution, a party is not deemed to waive his right to an appeal or writ, of: error by paying it". • ... . _ _, .. 47. A mutual agreement "to settle all litigation in the matter and waive all right of appeal", "if fairly made, would probably be enforced. See Dyett v. Pendleton, 8 Cow. 325 ",; and; other cases. 48l "But such an agreement ought to be clearly established, and not made out by way of inference". — Sloane v. Anderson, 57 W. 123, 127. 49. "This court clearly recpgnjzejs. the right, of all persons against whom the judgment is entered to join in an appeal to this court, even though their interests may be different and the judgment rendered, may affect them differently". —K,aehler v. Halpin, 59 W. 40, 43. Zimmerman — 6 _, 4 82 PROBATE AND GENERAL LAW, CODIFIED 50. A guardian ad litem should -be appointed to appeal, when the general guardian is adversely interested. See Guardian and Ward. — Marx v. Rowlands, 59 W. 110, 114. 51. An appeal by either party to the circuit from the award on the claim, "necessitated a trial de novo in the circuit court of the whole controversy ' ', and the party not appealing is not limited to ' ' recover in the circuit court any greater sum," than awarded to him in the county court. < — Yorke v. Orion, Admr. 65 W. 6, 8. - ' < , ' }~ 52. Payment of a judgment is no waiver of the right to appeal, and the money may be recovered on reversal. See Payments. — Chapman v. Sutton, 68 W. 657-661. 53. Though his ward has arrived at age, and the amount due from the guardian exceeded his bond, yet the statute, section 4032, ' ' in express words relieved the guardian from giving an undertaking in the circuit court on appeal." — Stinson v. Leary, 69 W. 269, 270. 54. Following Stinson v. Leary, 69 W. supra, there was the same holding, that section 4032 "is general, and embraces all appeals taken by a guardian". — Tompkins v. Page, 70 W. 249, 251. 55. As to appeal being dismissed when the part of the judgment favor- able was accepted and receipted for. See Payments. — Webster-Glover L. & M. Co. v. St. Croix Co., 71 W. 317, 319. 56. "The notice of appeal is that the defendants will appeal from the judgment, etc. , It is' very doubtful whether this is an effectual notice of appeal/' but the point not being made,' the question is not determined. — Emton v. Coleman, 76 W., 221, 229. ■ 57. Refusal to reverse a default judgment after a general appearance for appeal purposes. (Afterward overruled). See Appearance. -—Dikeman v. Struck, 76 W., 332, 335. 58. "Upon the affirmance or reversal of a judgment by this court upon an appeal in an equity case, the circuit court, upon a remittitur from this court, must enter judgment according to the opinion of this court as to the rights of the respective parties as found by this court, unless this court in its remittitur directs or leaves it tp the discretion of the circuit court to grant a new trial as to some or all of the issues in the case." 59. "On such appeal, this court not only corrects any errors which may have been committed by the trial court, but it retries the case upon the merits, and so indicates in its decision the judgment which should APPEAL 83 be entered therein by the court below", or gives necessary directions for further proceedings, if any, by the court below. —Whitney v. Traynor, 76 W., 628, 630. 1 60. "See. 4035, gives the circuit court ample power to allow an appeal" from the county court's decision, within a year, where it appears justice requires; and, here the circuit court's refusal was set aside, it appearing that the petitioner lived at a great distance, could not readily obtain legal advice, "was ignorant of her rights, and of what was being done in the settlement of her father's estate, until the sixty days for taking an appeal had expired. " 61. "The matter stated in the petition presents a case for allowing an appeal from the order of the county court admitting the copy of -the will to probate, and there are strong grounds for 'believing that justice will be promoted by the revision of that order." "It was an abuse of discretion" not to allow such appeal. 62. (In Deering Har. Co. v. Johnson, 108 W., post, it is indicated and approved, that the record of documents and affidavits presented in the present case showed the information justifying appeal, and it is said that this is ' ' the only case in which this court has reversed the decision of a circuit court denying ap'peal"). ■ . Tamison v. Snyder, 79 W. 286, 288. 63. "No rule of practice is more firmly established in this court; than the rule that, on an appeal from a judgment, orders made in the cause after judgment cannot be reviewed. Leary v. Leary, 68 W. 662. ' ' r ■■"■■■■ —Second Nat. Bank v. 1 Larson, 80 W. 469, 474. 64. Where a minor ward F. and guardian, "were both ignorant of the entry of" an order of assignment, awarding curtesy against the infant's interests, there being doubt, "and failed to take an appeal" during the statutory limit, it is held that on petition the circuit court properly allowed such appeal. "The bare intimation of these '-•( doubtful) ques- tions, and the infancy of the petitioner, are sufficient grounds for such leave." (See also under Legitimacy,' Shuman, by G-dn. v. Shuman, 83 W., 250). —Shuman v. Hurd, 79 W., 654, 656. v 65. Where "the 'order for judgment' contains all the effective words of a judgment", an appeal therefrom refusing probate of a will, was considered and not dismissed on motion, the court saying, "we should treat it as an effective judgment itself if it stood alone." ' —Spehn v. Heubschen, 83 W., 313,. 315. 66. It is held "that by accepting the money on the portion of the judgment in his favor the plaintiff thereby waived his right to appeal from the whole judgment", and "especially should such rule prevail where, as here, the 1 moneys so applied are exempt from execution, and 84 PROBATE AND GENERAL LAW, CODIFIED the principal defendant has waived such exemption in order to prevent further litigation, and such waiver has, been incorporated into the judg- ment appeal, .from", (See Fiedler v. Howard, 99 W., 388, 396, post, where the cases are reviewed, and the distinction as to a "condition" in a judgment emphasized) . —Laird v. Giffm, 84 W., 286, 288. 67.. As to an order of the circuit court allowing an appeal from the county court,, it is said that it "must have found the necessary facts, — that such omission was not her fault, and that justice required a revision of her ease", the record not showing the ground. —Marsh v. Briesen, Admr., 84 W., 618, 619. 68, "A mere appeal, does not affect the judgment as a bar to another action". See Res Ad judicata. — Smith v. fichreiner, 86 W. 19, 24. 69, An appeal by an administratrix, of the estate of M., from a judg- ment of ithe county court in the estate of S., dismissing her claim as such administratrix, was dismissed because of lack of jurisdiction, for failure to give an undertaking.. 70, "The statute (see. 4032.) was not intended to, and does not, confer on q,n administrator a general right to appeal without giving the security prescribed by it, but merely to so appeal from an order, judgment, or determination made in the matter of the estate in which he has been appointed such administrator". ,. , ' — In re Steiner's Estate, 91 W. 399, 406. : 71. A guardian ad litem was allowed to have his appeal perfected by filing an undertaking in the lower court, and certified up. See Guardian ad Litem. , ;,;.,.. —Tyson v. Tyson,M W., 225, 233. 72. "A substantial compliance 'V, in an undertaking on appeal, is sufficient. See Bonds. —C. & J. Michel B. Go. y. Est. of Wightman, 97 W. 657, 660. 73. Prior, decisions are reviewed, and, the distinction is emphasized, ■ f that, where a party is entitled to a certain sum of money absolutely under a judgment, he is not, by accepting that money, precluded from prosecuting an appeal which does not involve a reversal of that part of the judgment or decree under which he^akes the money". ! , 74. ' ' If the benefit received , is dependent upon, or was granted as a condition of, the order or judgment attacked, clearly the party ought not to be, permitted to carry on his warfare." 75. "In Cogswell v. Colley, 22 W. 399, Mr. Justice Paine rightfully : holds that, where a new trial has been granted on condition that defend- ant shall pay the costs of the former trial, plaintiff cannot accept the costs and then maintain an appeal .from the order". —Fiedler v, Howard, 99 W. 388, 396. APPEAL 85 76. An uncle of minors, setting forth misconduct by the guardian, their mother, ' ' is not a party in interest and cannot appeal. " < Appeals of minors can only be taken as provided by statute sec. 4031, by the general guardian "or by a guardian ad litem appointed for that pur- pose." — In re Gdnsp. of MeLaugUim, 101 W. 672, 673. 77. Where the city officers refused to appeal from an adverse judg- ment of the county court as to the application of funds from! principal or income of a trust estate, in which the city was the . remainderman, — it is held that a taxpayer for himself and others may so appeal,: and "enforce the cause of action of a public corporation of which he is a member when its officers neglect or refuse to perform their duty. (Cases)". ; , — Mulberger. v. iBeurhans, 102 Ws 1, 7. 78. Where attorneys fail to properly perfect an appeal '■ from an order disallowing a will, within sixty days, and the proponents through other attorneys, and with an affidavit of merits, , apply to the circuit court under sec. 4035, it is said i that "the failure to> take the appeal within the time prescribed by statute was sufficiently excused", (cases), and, 79. That "it sufficiently appeared from the showing made that justice required a revision of the case ' ' ; 80. That following Groner v. Hield, 22 W. supra, on " a prima facie case, the court should grant it without considering counter affidavits as to the justice of the claim", but that, "of course, the applicant must not be guilty of laches. Chase v. Bates, 81 Me. 182". — Oakley y: Davidson,, 103 W. 98, 101. 81. "A notice of appeal duly directed to the clerk of the trial. court was delivered, to him for the purpose of complying with the appeal statute (sec. 3049), and was filed and returned by him to! this court a? a part of the record", "shows prima facie the jurisdictional requisite as to such service", "and the clerk's filing thereon sufficiently proves the service". .., ., . - ^rWill of M adden, 104 W.. 61, 63. 82. An appeal by an executor, named,' before, appointment, , without filing an undertaking, is ineffective;; See Extrs. ' & Admrs. '../ . — Will of Somervaill, 104 ; W> 72, ,75. 83. Where the respondent by voluntary act relinquished his right under the judgment, before the appeal was perfected,, the appeal will be dismissed. See also Judicial .Decisions: ■.-•, .,;.,. —Hagan v. G. of La Crosse, 104 W. 106, 108. 84. ' 'Upon appeal from a judgment, intermediate orders involving the merits and necessarily: affecting the judgment may :i be reviewed- Sec. 3070. i 86 PROBATE AND GENERAL LAW, CODIFIED 85. : But we know of no provision which authorizes a review of one order upon an appeal from another. Breed v. Ketehum, 51 W. supra". ■^-Linden Land Co. v. Milwaukee E. B. & L. Co., 107 W., 493, 502. 86. There being a defective notice of appeal, on subsequent applica- tion to the circuit court under sec. 4035, on the affidavit of the attorney of claimant, on information and belief, met by counter-affidavits and a deposition on the merits, supplementing the evidence in the county court, — appeal was refused, and such > order sustained; as not an abuse of ' ' discretion in holding' that appellant had not satisfactorily shown that justice required a revision of the case." Oakley v. Davidson, 103 W., supra. 87* " Full justice may be done by a decision notwithstanding the com- mission of specific errors," by the county court allowing the claim, it appearing that such error in the record "does not necessarily establish that justice requires revision." 88. "The burden is upon the applicant to satisfy the court that, in view of all the known facts, there is at least reasonable probability that upon further hearing a result more favorable to him will be reached. 89. The court should be given opportunity to judge from -the facts themselves, rather than from the applicant's conclusions or generaliza- tions, and it is the latter 's duty — since he is a supplicant for favor — to lay before the court, as fully and frankly as in his power, all the facts which he believes to< justify him in making the application. (Many cases)". 90.' As to the applicant's information: "If derived from documents, they could and should have been laid before the court ; if from statements of other persons, affidavits from such others of the truth of . their state- ments should have been presented, or applicant's inability to obtain them should have been explained." Jamison v. Snyder, 79 W., supra. r^-Deermg H. Co. v. Johnson, 108 W., 275, 278-81. 91. On an appeal by an alleged incompetent, from an order of the county court appointing a guardian, who "had not qualified" as to giving bond, — it is held that "service of notice of appeal was sufficient", where served upon the attorney for the petitioners as adverse parties, pursuant to the order of the court, under sec. 4033. See also Incompe- tents. — In re Odnsp. of Welch, 108 W., 387, 391. 92. "One of the two co-executors or co-trustees can appeal without the other", it is held, in effect, only when necessary for protective reasons, the co-executor and interested parties being satisfied with the judgment. See also Trustees. — In re Luscombe's Will, 109 W., 186, 195. 93. Where the executor "qualified" as such, and the will was after- ward set aside in circuit court, he is "aggrieved" and can appeal, it being his duty "to protect and enforce his trust and to take all" neces- APPEAL 87 sary steps to that end. In re Luseombe's Will, 109 W., supra ; Hester- berg 'v. Clark, 166, 111. 241. — In reButleHs Will, 110 W., 70, 75. 94. An order of the circuit court, reversing the county court, and establishing the widow's right to the estate "as sole beneficiary", under sec. 3795, "was to all intents and purposes a final judgment and appeal- able as such, though it was, in form, an order." Sec. 4037. 95. "Whether the determination of; a court is an order or a judg- ment within the meaning of the appeal statute^ cannot always be solved by mere form". 96. "A proceeding upon appeal, as regards the appellate court, is an action, or a proceeding in the nature of an action, and the decision is a final "determination of the rights of > the parties thereto. See. 2282". See. 2595. —Swarthout v. Swarthout, 111 W., 102, 106. 97. On appeal from the county court, amendment "to allow an entirely new claim" in an administrator's account, "would be an abuse of < dis- cretion." See Accounts of Extrs. and Admrs. • —Sloan v. Duffy, 117 W., 480, 483. 98. Where the notice, undertaking, and order allowing appeal, were duly "made within the time prescribed,'' and "the only objection is that the appeal papers and record were not filed in the circuit court until" several months after the twenty days required by sec. 4033, it is held, 99. That the circuit "court certaintly had jurisdiction of the case by virtue of the appeal taken" (Congregation v. Hellstern, 105 W., 632), and as under sec. 2831, the court had discretion to i allow such records "to be so transmitted to the circuit court 'after the time limited'," a motion to dismiss because ''the appeal 'was not taken in due* time or according to the provisions of the statutes, ' ''■■ was properly ref used; ;. —Hanley v. Kraftczyk, 119 W., 352, 357. 100. In an action of replevin, the administrator only being a party, distributees are held "parties aggrieved by the (adverse) decision though they are not parties to the record, and as such are entitled to appeal. 101. The supreme test of whether a person has a right to appeal to this court is whether he has a substantial adverse interest to the adjudica- tion sought to have reviewed, not whether he was a party as appears by the record of the trial. (Cases) ". -^Emn v. Gersten, 122 W., 222, 225. 102. "The dismissal of an appeal removes the case from the appellate court and places the parties in the same condition as they were before the appeal was taken. (Citations)i Sec. 4037", as to appeals from county courts, "does not affect the question". 103. An order of the circuit court which ' ' dismissed the appeal and 88 PROBATE AND GENERAL LAW, CODIFIED remanded the cause 'for further proceedings in accordance with the findings' " is. reversed as to the latter direction. —Silverman v. Fidelity & C. Co., 124 W. 459, 461. 104. Citing Kasson v. Est. of Brocker, 47 W., and Perkins v. Shadbolt, 44 W. supra, it is held that filing an undertaking "three days after the notice of appeal was filed", does not invalidate the appeal. 105. "A literal compliance with the words of the statute (Sec. 4032) vs not necessary. Substantial compliance is sufficient. (Case, supra). 106. The prime essential in taking an appeal is the filing of the notice of appeal within the time limited therefor. That being done, the filing of the bond afterwards will operate to perfect the .appeal". —Chamley v. Charmley, 125 W. 297, 301. 107. As to permitting appeal after time expired, under sec. 4035, ' ' the liberal rules for reading out of pleadings facts essential to support them should be broadly applied" to: the petition j and the phrase 'near relatives and heirs at law' 'entitled- to'. a distributive share,' is held to import interest and aggrieved persons. 108. The court, also, may, on application, require "a more definite statement of material matters", as in pleadings. 1,09. "The court can determine the right of the matter upon affidavits, or upon the petition alone, or upon evidence in support of , and against the petition, taken in open court, or otherwise by its direction. ' ' See also Kin. , - " —Perry v. Scaife, 126 W. 405, 410. 110. Though -' ' the form of the notice of appeal is that the authorized representative of the parties in interest 'being aggrieved * hereby appeals'," "it is perfectly apparent that the principals — the ones repre- sented by the person (consul with power of attorney) signing the notice — were in fact ■ aggrieved, and that the notice was by their authority filed in their behalf". 111. Such notice is held sufficient. "No form for such notice is pre- scribed by statute". — Est. of, Sander, 126 W. 660, 664. 112. Where the applicant^ for leave to appeal from a construction of a will as to the administrator's right to sell realty, under see. 4035, ' ' did not move until nearly a year after she received notice that the sale would be made, and more than three months after notice that the order was made, during which time the purchaser was in possession, making valuable improvements and changing his position on the faith of his purchase", — denial, on the ground of laches, was affirmed. 113. Such application "is addressed to the sound discretion of the court, and the determination will, not be disturbed unless it clearly appears that such discretion 1 has been abused. (Cases)". >-rln re O'Hara's Will, 127 W. 258, 262. APPEAL 89 114. Where the notice of appeal was filed within sixty days, an under- taking filed "a few days after; the expiration of the sixty days", "should have been accepted and approved by the county court". Charmley v. Charmley, 125 W., supra. 115. "Failing to do so, the circuit court shpuld",, on < the, application made ishortly thereafter, under sec. 4035, have "allowed, such" appeal" upon reasonable terms, and "the order of the, circuit court denying such .application twenty-one months after it was made was an abuse of dis- cretion ". • , — In re Box >s .Will, 127 W. 264, 270, 116. On return pf appeal papers "to render;. judgment" "in accord- ance with the opinion", the trial ,, court; "has no authority :tq,reframe the pleadings as to any issue and retry them", and, ''the only course open to it is to render judgment in accordance wi1;h the opinion of this court", . —Halsey v. Waukesha 8. S., 128 W. 438,' 440. 117. Motion to dismiss appeal from county court "pending for about five years", it appearing "that substantial grounds existed for the delay" in hearing, there being other litigation iu progress depending thereon and also protracted settlement negotiations, — was held properly denied under see. 4038. (Cases). As to order on appeal setting aside probate,, carrying with it also [the setting aside of the order assigning the estate. , See Jurisdiction. ; i 118. As to amendment of petition after appeal to circuit .court. [See Amendment. —Parsons v. Balson, 129 W. 311, 315. 119. As to, decision of county judge as magistrate not being subject to appeal, but subject only to review as to jurisdiction, — unless specifically otherwise provided. See County Judge. ,.,, —State exrel. Velie, v. 'Morgan, 430 W. 293, 295. 120. Where it, "appeared by the records of the county court, at the time of" appeal, that the appellant "was interested in the estate", no interest/appearing in the appeal papers, or, , 121. Where the notice "was not signed by" him, but "it purports to be given by him and is signed 'B., Attorneys for Appellant'," and "he gave and signed the undertaking on such appea,l as principal, and, the same was approved by the county court", "the circuit court had juris- diction". 122. The fact that an heir appeared and assented to, the. judgment of probate in county court, does not prevent his appealing, ,See also .Trjal. — Boveey. Johnson, 130, W r 447,, 453. 123. Following cases, supra, the order of the, circuit, cour.tj refusing to allow appeal on final judgment, after time for, appea^ h,ad expired, was sustained, it appearing that while the attorney of the appellant made various inquiries and, was several . times at, the county,, seat withijl tlie 90 PROBATE AND GENERAL LAW, CODIFIED sixty-day limit (he being from another county), yet he failed to examine the records as to the entry of such judgment. 4 —M'axey v. Ellison, 132 W. 389, 391. 124: Where the petition to the circuit court to allow an appeal under see. 4035, after time expired, "is in the most general terms and quite barren of any facts tending to show that justice requires a revision of the case", with "no affidavit of merits", an order refusing appeal, is sustained, as not being "an abuse of discretion". (Cases, supra). 125. "The doctrine that where the petition makes a prima facie case the court should grant it without considering counter affidavits", "does not go to the extent of permitting" an appeal on such "prima facie case without stating the facts from which the court can see and judge whether or net justice requires a revision of the case". —Roemer v. Schmidt, 134 W. 1, 5. '126. Pending a contest for probate of a will, an order of the circuit court requiring the payment out of the estate, to the guardian ad litem of minors, of funds to procure attendance of witnesses in the contest, it. is held, "did not necessarily relate to the determination of the contest of the probate", and therefore, under subd. 2, sec. 3069, is "a final order entered in a special proceeding within the rule of Kingston v. Kingston, 124 W. 263," and is appealable. 127. Where' one P: was proponent, executor, and special administrator, and the preliminary "order to- show cause is directed to the proponent and respondents", and "requires them to show cause why P., special administrator" "'and the proponent" "should not be ordered to pay, etc.", and the final 'order requires such special administrator and pro- ponent to pay, etc., — it is held, 128. That neither the executor nor special administrator, were parties to the proceeding, that the executor was "not a party aggrieved", but that "as the proponent was required to make payment of the money, he was certainly the party aggrieved' by the order". —Frame v. Plumb, 135 W. 24, 28. 129. A guardian ad litem is not "entitled to recognition as such in appeal proceedings" in a contested claim therein. See also Parties. -+Est. of Koch, 148 W. 548, 57i: 130. Where an appeal by certain parties after the sixty-day period and within one year, was allowed at the trial in circuit court on another appeal on construction, all parties being present and all consenting but one,— it was held that under the circumstances "the notice was reason- able," there being "no special circumstances" indicating the contrary. 131. And where a guardian ad litem has appealed, under the impres- sion that no 1 bond was necessary, and he files such bond during the trial in circuit court, it beirig certified from the county court, and oh the APPEAL 91 proceeding of the trial and determining the issues raised thereby, it was held "that the court impliedly" " approved the procedure fol- lowed", and that "the default in the timely filing of the bond" may be so waived. Gharmley v.' Charmley, 125 W. supra. — Will of S'iarh, 149 W. 631, 644. 132. When an executor "presents a matter to the supervising court for an advisory order, or presents a matter for adjudication proper to be so presented, and parties have due notice and opportunity to be heard, 133. Time for appealing commences to run from the time the result is announced, whether embodied in a fitta! order or merely minuted on the court record; 134. And, unless challenged seasonably for correction in the same court or on appeal, it is conclusive. Such, is the doctrine of Sphinz v. Schinz, 90 W. 236 (See Accounts of Extrs. & Admrs.), and we affirm it". —Will of Rite, 150 W. 401, 458. 135. "The right of appeal is purely statutory, and unless given it is withheld. Puffer v. Welch, 141 W.'304"J- —Clancy v. Fire & P.' Com., 150 W. 630, 633. 136. As to permission to appeal afl^r time .expired, sec. 4035 "confers a discretionary power upon the circuit court) 137. And in order to reverse its decision it must appear that the circuit court abused that discretion. (Cases) ". 138. Wh&re a compromise of a claim for damage for injury was, with the county court's approval, made by the guardian of the ward about of age, and the injury thereafter appeared more serious, application by the ward and his' mother (former guardian) several months after settlement and after the ward 1 became of age, for leave to appeal from such order of approval, was refused, and a contrary order also' ' ' would undoubtedly be affirmed". — Gusiafson v. Whitney Bros. Co., 154 W. 8, 11. 139. It is not decided ' ' whether an executor who presents and has allowed his final account can appeal from the order or judgment allow- ing the same entered at his request". . r " 140. Where one only of two executors prepares, signs, and files a final account, and the other H., as residuary legatee, ' files formal objections thereto and contests its allowance, there being ■' 'no > question about the intention", it is held that he was entitled to appeal from the allow- ance, as executor. 141. "If it were necessary for him to file formal objections to the account as executor, the objections filed might well be treated as having been made in such capacity as well as that of residuary legatee". 142. '"Neither is there any doubt about the right of an executor to appeal from an order or judgment of the county court which in his " judgment does injustice to a residuary legatee. (Cases). 92 PROBATE AND GENERAL LAW, CODIFIED 143; Nor is there any doubt about the right of H. to appeal as executor without the consent or participation of his co-executor. Luscombe's Will, 109 W, supra". —Will of Hyde, 157 W. 462, 464. 144. "We do npt" "decide whether the word 'administrator' in sec. 4031 includes an administrator appointed under the laws of another state. This may admit of doubt. " 145,. Adismissal of an appeal of such, foreign administrator from an order appointing H. administrator de bonis npn ' ' after the discharge of the executor", there being unadministered "choses in action", — is held not "prejudicial error", ," even if erroneous", there being no objection "made to the fitness of H", and the court having "simply performed its duty". , —Will of Durkee, 164 W. 41, 43. 146. (As to forms in appeal proceedings,, and practice in execution of undertaking, — see Zimmerman's Probate Practice, p. 492.) APPEAL BOND. See Bonds. APPEARANCE. After an execution sale, 10; Aihend return motion, 27. Asking such relief, 28. Appeal: saying objection for, 30. Trial on merits, 29. Attorneys: authority presumed, 3.' Prima facie evidence, 8. Contesting on the merits, 14. , Equivalent to an answer, 15. County court practice, 32. Dismiss the appeal, 18. " Equivalent to proof of service, 13. General, on process defect, 1. Infant, after at age, 17. , j. Jurisdiction of person, 23. Inconsistent step, 24, 26. Specifically to object^ 25. Party without state, 5. Purpose incompatible with defect, 12. Set aside judgment, 9, 11. For said motion only, 16. Jurisdiction; irregularity, 20. Minor after at age, 17. True rule laid down, 19. Sole purpose of appeal, 21.' Merits may be considered, 22. Special: on process defect, 2. Stay and open default, 7. Vacate and dismiss with costs, 31. Waiver of defects and process, 6. Without process issued, 4. 1. "It is a familiar rule, that a general appearance .waives any defect in process". , 2. "To avoid theeffect of this rule, it is the common practice, when it is desired to take advantage of such defects, to appear specially for that purpose only." — Lowe v. Siringham, 14 W. 222, 224. 3. "The authority of an attorney at law 'who appears in a court of justice in behalf of a party to an action, is to be presumed. He is an officer of court ; and if his authority is denied, the burden of showing , —Thomas v. Steele, 22 W. 207, 209. APPEARANCE 93 4. ' ' An appearance may be made without the issuing or service iof any- process whatsoever, whether by publication or otherwise." 5. ' ' It may be made as well by a party residing without the state as one within it". 6. "An appearance is a waiver of all previous defects in the service "of process, and' of the process itself, if none has been issued". — Keeler v. Keeler, 24 W. 522, 526. 7. Making a motion in open court to stay proceedings' and open a default to enable answering, which stay was granted; "was an appear- ance in the action, and a waiver on the part of the defendants of all previous defects in the service of process". " ; ■' " - — Ins. Go. v. Swineford, 28 W. 257,' 264. 8. An attorney's "appearance is prima facie evidence of his authority and retainer until some contrary proof is made". ; He has 1 "a perfect' right to decline", "to answer a question put to him on argument", as to his retainer, as the burden of proof is on the other party. —Andrews v. Thayer, 30 W. 228,' 233. 9. In Grantier v. Rosecrance, 27 W. 488, "it was held 'that a motion to set aside a judgment on the ground that the eomplaiht did not state a cause of action, was a general appearance, and waived any defect in the service of summons, although the' notice of motion stated that the defendant appeared 'specially' for the purpose of setting aside the judg- ment, and although such defective service was also assigned as a ground for the motion". ' 10. In Anderson v. Coburn, 27 "W. 588, ' ' it was decided that where a defendant, not duly served with process of summons, appeared after an execution sale under a judgment in the cause, and moved to set aside the judgment and execution, not only because of the defective service, but for lack of proof of certain facts' essential to his liability, and for excess of damages, this was a genera! appearance, and cured the defect of juris- diction". , 11. "Moving to set aside the judgment", because "there was no proof that a notice of the pendency of the action was filed", is inconsistent with the grounds "specifying defects in the service of the : summons and want of jurisdiction", and made the appearance general.'' ; 12. "If he goes in for any purpose incompatible with the supposition that the court has no power or jurisdiction on account of defective service of process upon him, he goes' in and submits for all the purposes of per- sonal jurisdiction with respect to himself, and cannot afterwards be heard to make the objection. 13. It is a general appearance on his part, equivalent in its effect to proof of due personal service of process". — Alderson v. White, 32 W. 308, 311. 94 PROBATE AND GENERAL LAW, CODIFIED 14. Appearing, and contesting on the merits "was a waiver of any defect" and "was an appearance in; the aetion". See Jurisdiction. : —Atkins v. Fraker, 32 W. 510, 517. 15/ "The, respondent appeared before the probate court and contested the application. His appearance and opposition was equivalent to an answer in the case". —Brook v. Chappell, 34 W. 405, 419. 16. An "appearance by stating that it was 'for the purposes of said motion oniy'," to make a motion 'to set aside the findings of fact, con- clusions of law, and the, judgment rendered', on the record, "was a general appearance in the cause, and waived all defects in the service of process." , —Goad v. Coad, 41 W. 23, 26. 17. Where the petitioner, as a minor, was not represented by guardian ,ad litem at the probate of . the will, and after becoming of full age peti- tioned the court to set aside the probate proceedings on the grounds, of fraud, defective publication, want of notice, etc., but did not set out her infancy and failure of the appointment of a guardian ad litem, or appear to set aside the proceedings for that reason, (which would have been a valid reason), it was held, that the petitioner's attitude was ' ' equivalent to an appearance, to the proceeding sought to be declared void for want of notice ; and operate as an assent and submission to the proceedings of the court in the probate, of the will and the appointment of executors," and "for the, purposes of this case, the»ef pre, we must hold said proceedings valid as to all the, parties"., See Jurisdiction ; Notice. —O'Dell v. Rogers, 44 W. 136, 176. 18. ".That the appearance of the defendants, and their making the motion to dismiss the appeal for the causes set forth in the motion (additional to defects: of service), was a general appearance in the case, and a waiver of any defects in the service of the notice of appeal, is fully sustained by the following decisions : Grantier v. Rosecrance, 27 W. 488 ; 27 W. 558 ; 32 W. 308 ; 37 W. 344. ' ' See Appeal. —Kasson v. Est. of Brocker, 47 W. 79, 85. 19. "The rule laid down by this court in the case of Blackburn v. Sweet, 38 W. 578, is the, true rule which must govern cases of this kind, ' ' as follows: 20. " 'When a motion to set aside the judgment is founded partly on the failure of the court to obtain jurisdiction of the moving defendant, and partly on the ground of mere irregularities consistent with the fact of jurisdiction and which imply its existence, this constitutes a general appearance and a waiver of any defect of process ' ' '. —Sanderson v. 0. C. By. & Coal Co., 61 W. 609, 612. 21. In notice of retainer after judgment, for one of several defendants sought, to be served by publication, to ' ' appear specially for him, for APPEAKANCE 95 the< express and sole purpose of 'taking an appeal from the judgment", and a notice of appeal the same day "from each and every part of the judgment, and the Whole thereof," is held to be "a full appearance in the action, and is a waiver of service. Alderson v. White, 32 W., supra, (and other cases.) 22. Under this notice and appeal the merits of the action may be considered by this court. Anderson v. Coburn, 27 W. 558. " " The want of service upon S. (such defendant), if any, is cured," and the judgment was affirmed. (This case is overruled in Zimmernan v. Gerdes, 106 W. 608, so far as it holds that a. default judgment will not ' ' be reversed on appeal by a defendant as to whom the record fails to present proof of • service", but otherwise is cited and followed in Corbett v. Physicians' Casualty Assn., 135 "W. post). —DikemaM v. Struck, 76 W. 332, 334. 23. "It is well settled in this court that if a litigant desires to avail himself of want of jurisdiction of his person he must keep out of court for all purposes except that of objecting to jurisdictiohj, or, what is the same thing, moving, to dismiss on that ground-. 24. If he takes any step consistent with the idea that the court has jurisdiction of his person, such appearance amounts to a general appear- ance and gives the court jurisdiction for all purposes. (Cases). 25. The mere fact that the defendant stated that he appeared specially to object to the jurisdiction of the court will not protect him from the consequences of a general; appearance, . 26. If the proceedings taken by him; show that he appeared for any purpose consistent with jurisdiction". 27. Where ' ' the defendant moved ' the court- to amend the return of the officer fo the summons to conform to the facts", this "was incon- sistent with want of jurisdiction of the court over the person of the : defendant "- 28. "The asking of the relief prayed for in the motion, whether granted or not, was a submission' by defendant to the jurisdiction of the court and a waiver of all jurisdietipnal defects", and "amounted to a general appearance in the action". ,,, : , —Bestor v. Inter-County Fair, 135 W. 339, 341. 29. "It is firmly settled" "by numerous decisions of this court", that on objection on jurisdictional grounds to defective service, and then proceeding "to a trial upon the merits" after such objection is over- ruled, , , .i ..,,,' 30. The 1 party cannot "on appeal, have the benefit of the objection made at the start", though "saving an objection to the ruling." (Many cases) . Contra : Harkness v. Hyde, 98 U. S., 476. " — Corbett v. Physicians' C . Asso., 135 W. 505, 511. 31. An appearance "specially", to move "merely to vacate the service" and "to dismiss the action with costs", is held not "a general appearance ' '. — Milwaukee E. Co. v. Feuchtwanger, 141 W. 266, 267. 96 PROBATE AND GENERAL LAW, CODIFIED 32. (As to detailed 'discussion of points of practice as to appearance in county court proceedings, — see Zimmerman's Probate Practice, §§ 427, et al.; and especially as to attorneys, §§ 475, et al.) ;■ APPRAISAL. See Inventory and Appraisal. ARBITRATION. Court may suggest, not impose, 3, j, Parol , submission, 1. ■Errors of judgment, 5., ,, . Publication of award, 4. Impeachment for fraud, ,6.. Submission to judge, 2. Clear mistake, 6. " Failure to apprehend fact, 7 1 .' ' 1 1. Notwithstanding' the statute, a parol submission and award is binding 1 on the parties to it, as at common law. '"' '. ; '' ; " '• — WinWv. Elderkin, 2 Pin: 248. 2. A submission of a dispute to a judge' for his decision is binding upon the parties and no appeal lies, the same as with any other private arbitrator. — Lansing's Appeal, 10 W. 120! 3. "Undoubtedly a circuit court may well suggest arbitartiori to parties litigant before it; but it cannot impose it as a condition of justice". —Sobey v.- Thomas, 37 W. 568, 573. 4. '" 'The publication of the award' contemplated by the statute (sec. 3554) is the filing of the submission and award in the clerk's office of the court designated in the submission, for the action of the court thereon". ' ''* • —Bimell v. Clark, 60 W. 284, 285. 5. "A common-law award of arbitrators is not to be set aside for mere errors of judgment upon questions of fact or law submitted, 6. But it is subject to impeachment for fraud", "or upon clear evi- dence ,of mistake, when such mistake is not simply a wrong conclusion upon 1 the facts or law submitted, ' ' 7. But an unconscious failure to know or apprehend some material ,fact or right in the light of which their judgment Should be exercised. Consolidated W. P. Co. v. Nash, 109 W. 490. — Donaldson v. Buhlman, 134 W. 117, 119. See Affirmative. ASSIGNMENT ARGUMENT. 97 ASSESSMENT. See Condemnation. Taxation of Estates. ASSIGNMENT. Actual delivery, 9. To third person, 9. After acquired property, 15. Certificates of stock, .etc., 10. Order, writing or act, 11. Check, funds pro tanto, 6. Gnoses in action,. 12. Confidence personal contract, 16. Consideration unnecessary, 8. Deposit books, funds, 16a. Notice to bank, 17. Future earnings, 1, 22, 23. Irrevocable transfer, 7. i , . ' Judgment: assignee's title, 18. At common law, 19. Statute not conclusive, 21. Statutory provision, 20. Possibility or expectancy, 13. Potential interest, 14. Rent, no formality, 2. By tenant in common, 4. Crediting on books, 3. Salary to become due, 1. Trust personalty income, 5. Wages, non-existing employ, 22. Must be a contract, 23. 1. The salary of a public officer to become due is "a possibility coupled with an interest, and as such capable of being assigned." — State Bank v. Hastings, 15 W. 75, 77. 2. ' ' We are not aware ; that any particular formality is necessary to effect the transfer of such a claim", which being "for rent, was a mere matter of account, or a chose in action". 3. The transfer was held valid, being made "by crediting F. and J. with the amount on the books of the defendants at the time the assign- ment was made, and charging the plaintiffs with the same". 4. A transfer by one tenant in common, subsequently ratified or as- sented to, by the other, makes a valid assignment. ; —Chapman v. Plwwmer, 36 W. 262, 265. 5. A trust income from personalty is held assignable. See Trust Variation. — Lamiberton v. Pereles, 87 W. 449, 459. ■ 6. As to the effect of cheek as an assignment of funds pro tanto. See Check. — Baesser v. Nat: Exch. Bank, 112 W., 591, 593. 7. In an assignment "there is an actual irrevocable transfer of the property". "8. "No consideration is necessary to support an assignment. And Zimmerm an — 7 98 PROBATE AND GENERAL LAW, CODIFIED transfer of property, whether by gift or otherwise, is in a general sense an assignment. 1 Bouv. Law Diet. 155. 9. True, there must be an actual delivery of the thing assigned, or its equivalent", which may be "made to a third person with intent on the part of the assignor to surrender dominion over the thing assigned, ' ' and if "the assignee assents to the transaction, that is sufficient". (Cases). —Stall v. MutucfLB. L. I. Co., 115 W. 558, 562. 10. As to certificates of stock, insurance, etc., "no particular form or words or written instrument is required by the law to constitute an assignment of this class of property. > , 11. 'Any order, writing, or act which makes an appropriation of the fund amounts to an equitable assignment, and an oral or written declara- tion may be as effectual as the most formal instrument.* 12. The same is true as -to gifts of choses in action, if a delivery, or what in judgment of law amounts to such, takes place '. Crook v. First Nat. Bank, 83 W, 31 (see Gift; other cases)". See also Insurance. —Opitz v. Karel, 118 W., 527, 531. 13. "A mere possibility or expectancy of acquiring property, 'not coupled with an interest, is insufficient'," to enable assignment thereof to be valid, . 14. But "it is well settled that a potential interest in property is sufficient to support such a transfer". 15. And "an attempted transfer of after acquired property is not effectual to create a lien in equity. (Cases) ". —O'Niel v. Kerr Co., 124 W. 234, 237. 16. A contract with individual inexperienced subscribers for the erec- tion -of a plant by a skilled concern, "involved a relation of personal confidence which the subscribers must have intended would be exercised by the party in whom they confided", and is non-assignable by the latter "without 1 the consent of the other party thereto. (Cases) ". — Johnson v. Tickers, 139 W., 145, 148. 16a. Where Ed. B. "rendered services" and "advanced money to secure necessaries for" decedent, and "attended to her affairs", and her bank "deposit book, with the slip attached, having thereon the words, 'Ed., this is for you. Lida' (decedent), was in his possession (before her death), as were also withdrawal receipts signed by her", — held, "that it is an assignment to him of decedent's claim against the bank". 17. Sec. 2319c, merely "was designed to protect banks as to payments made on such accounts before they have had notice of an assignment", and the assignment is held "to become operative on the bank" after notice by delivery to the bank ' ' after the death of Lida, the owner ' '. —Stacks v. Buten,yUl W.> 235, 237, ATTORNEY AND CLIENT 99 18. "The assignee of a judgment takes subject to the equities between the parties. (Cases). 19. At common law a judgment was not assignable so as to vest the legal title in the assignee, but such an assignment, will operate to vest an equitable interest which the law will protect. 23 Cyc. 1413." 20. A statutory provision must be followed "to! secure to the assignee any rights which depend solely on the statute; 21. But such statute is not regarded as exclusive and does not pre- vent" "an assignment, good at least between the parties thereto, in any other lawful way ". —Cowie v. Nat. Exch, 'Bank, 147 W. 124, 128. 22. "Wages to be earned under an employment not in existence are not assignable. '.'. 23. The law recognizes no assignment of future earnings unless such earnings are based on an existing contract of employment". — Porte v. G. & N. W. B. Co., .162 W. 446, 449. ASSIGNMENT OF ESTATES: See Descent and Distribution. Judgments. ■< ATTESTATION. See Execution of Wills. ATTORNEY AND CLIENT. See also Administration Expenses. Lien. Privileged Communications. Champerty and Maintenance. Accord and satisfaction, 82. Admission: not qualified, 91. .Striking from roll, 92. Agent, as collector, 6. Aid questionable transfer, 23. Appeal, authority for, 55. , Consult client, 56. Authority for non-residents, 4. Authority: presumed, 7, 35, 41. Adverse party's rights, 37. Burden on party denying, 42. Denied by client, 36. Employ other attorneys, 63. Statutory relief, 38. Compensation, elements, 27. Judge's qualification, 30. . Question of yalue, 28. Witnesses differing, 29. Corporate officer, attorney, 69. County court practice, 94. Dictation of counsel, 40. Disbarment, 49. Criminal in nature, 49. Deceive the court, 71. Desert for better pay, 54. Good moral character, 52. Not of criminal nature, 50. Not strictly professional, 53. 100 PROBATE AND GENERAL LAW, CODIFIED Disbarment — continued To entitle practice, 51. Disclosure as employee, 1. Discontinuance, 39. Attorney terminating, 83. Party the principal, 40. Special authority; merits, 93. Employ other attorneys, 63. At own risk, 64. Fees, when not employed, 58. File election by widow, 48. Heirs bound by actions, 22. Lien: on collection order, 9. Cause of action," 10. Judgment, 13. On settlement, 75. Taxable costs contract, 76. Limitation statute, when, 68. Collection for client, 89. Negligence of solicitor, 2, 57. Non-resident attorneys, 14. Not admitted to bar, 17. Notice, imputed to client, 59. Breach of confidence, ^60. Employed by another, 62. Previous transaction, 61. Officers of the court, 15, 42, 70, 90. Quasi, of the state, 16, SO. Party is principal, 40, 47, 72. Percentage agreement, 11. Powers as attorney, 63. Control of procedure, 85. Not attorney of record, 87, 88. Reasonable expenses, 66. Reasonably necessary things, 65. Powerg as attorney — continued Sanction for expenses, 67. Surrender of rights, 84. Waiver of procedure, 86. Professional ethics, 24. Advise engaging attorney, 25. Purchase of client's property,- 79. Deed set aside, 81. Viewed with suspicion, 80. Receipt in full demand, 19. Recognition of other attorneys, 5. Retain collection charges, 18. Settlement: by client, 8, 45. ' Against attorney's wish, 46. Attorney acquiring lien, 75. Attorney on one side, 43, 77. Other attorney available, 44. Taxable costs contract, 76. Substitution of attorneys, 78. Act without substitution, 87, 88. County court practice, 94. Sureties for client, 12. Traffic in litigation, 70. Trustee of purchased estate, 20. Attorney's partner and others, 21. Trustee's attorney, 72. Not the beneficiaries. 74. Personal as to pay, 73. Represents the trustee, 74. Undue influence by attorney, 23, 26. Witnesses for clients, 31. Failure of justice, 32. Not accept retainer, 34. Surrender management, 33. Words spoken in proceedings, 3. 1. "An attorney cannot be compelled to disclose, at the instance of a third person, any matter which came to his knowledge, in consequence of his employment, even though such business had no reference to legal proceedings begun, or apprehended." —Dudley v. Beck, 3 W. 274, 284. 2. "Negligence of solicitor is good ground on which to base an applica- tion to set aside a default". But "if the party has been guilty of negli- gence or laches himself, the negligence of his solicitor will not avail." —Bdbcock v. Perry, 4 W. 31, 40. 3. Attorney cannot be held liable for "words spoken in the course of judicial proceedings, though they impute crime to another, and there- fore, if spoken elsewhere would import malice and be actionable in them- selves,* if they are applicable and pertinent to the subject of inquiry." For "accusation of perjury against the witness", the attorney is not liable. — Jennings v. Paine, 4 W. 358, 361. ATTORNEY AND CLIENT 101 4: Attorneys for non-resident clients, or at a distance, employed to collect debts, are authorized to employ all the necessary and usual means, including the giving of personal bonds of indemnity to officers, and their acts are binding on the clients, and they can recover for losses so sustained in good faith. —Clark v. Randall, 9 W. 135. 5. Attorney of record is "not bound to recognize" other attorneys "as having anything to do with the case," until "regularly substituted." ■ — Waterhouse v. Freeman, 13 W. 339, 340. 6. Attorney as to collections "is an agent — nothing more. The title •to property which he collects for his principal, is in the principaT and not in him, ' ' and he is liable for conversion as any other agent. —Cotton v. Shwrpst&m, 14 W. 226, 230. 7. Authority of attorney to appear is presumed. "He is an officer of court". See Appearance. — Thomas v. Steele, 22 W. 207, 209. 8. "Where a settlement is privately effected between the parties, with the design of preventing the attorney from obtaining his compensation, as this- was, it should be set aside ' '. 9. An attorney "was to be paid for his services in collecting the money on the (town) order, out of the avails of the judgment", his client having no other means of payment, and having "advanced money and rendered services", held "that he has a lien for Compensation upon the order by well established principles". — Howard v. Osceola, 22 W. 453, 458. 10. An attorney has no "lien upon the cause of action," before judg- ment on "a claim for unliquidated damages", in the absence of an agreement and of notice to the other party. —Courtney v. McGavoch, 23 W. 619, 622 11. A percentage agreement for services between attorney and client on the amount recovered, is held valid and proper, there being no agree- ment by the attorney "to pay the expenses of the action". See Cham- perty. — Atyard v. Lamirande, 29 W. 502. 509. 12. Attorneys may not become sureties, whether interested in the action or proceeding or not. See Bonds. , —Gttbank v. Stephenson, 30 W. 155, 156. 13. An "attorney has a lien upon the judgment" for services. See Lien. —Bice v. Carnhart, 35 W. 282, 283. 14. Non-resident attorneys may appear in causes here. "No license to practice here is necessary or proper for that purpose; the usual and' proper practice being to grant leave ex gratia, for the occasion". 102 PROBATE AND GENERAL LAW, CODIFIED 15. "The bar is no unimportant part of the court; and its members are officers of the court (■cases) . And if officers of the court, certainly, in some sense, officers of the state for which the court acts". 16. "Attorneys and counsellors of a court, though not properly public officers, are quasi officers of the state whose justice is administered by the court". 17. Non-resident attorneys cannot be admitted to the bar here. "Our courts cannot have a non-resident bar". — In re Ole Mvsness, Esq., 39 "W. 509, 510. 18. Attorneys have "the undoubted right to retain out of the collec- tion" of client's funds "reasonable charges for their services"; 19. But it is not competent "to exact a receipt in full as a condition precedent to paying over the sum admitted to belong to the" client, on a disagreement as to the attorneys' charges, "and in such a case it is the duty of the ' attorney to pay to his client the sum which he admits his client is entitled to receive, and the latter can only be required to receipt therefor on account". — Charboneau v. Orton, 43 W. 96, 102. 20. "Where an attorney drew the will, suggested the executors, became their "legal adviser, as well as the attorney and legal adviser of the heirs, and, down to the day of final settlement of the estate, had virtually the control of all the proceedings", and with his law partner had become a purchaser of a large part of the estate, it is held that he holds such property as trustee at the option of the parties interested, p. 178. See also Jurisdiction ; Notice. 21. And it is held that the attorney's law partner and a third person who became purchasers with the attorney and had full knowledge of the attorney's relation to the estate, "stand affected with whatever disability the purchase attached to R. (the attorney), and that they are equally chargeable with the trust. Hoffman S. C. Co. v. Cumberland C. &I. Co., 16' Md. 456". p. 180. 22. Where heirs "not personally present at the probate", "appeared there by their attorney R., and they also subsequently consented to the proceedings by receiving their shares of the proceeds of the sales, and executing receipts and deeds of confirmation", though the regular notice was defective, they are concluded by the proceedings. See also Trustees. —O'Dell v. Rogers, 44 W. 136, 173. 23. Where an attorney for the grantee sister, drew the papers and aided in the negotiations for a transfer without valuable consideration, of parental estate, from a weaker sister, without the knowledge of the latter's husband, and without the knowledge of her attorney in a prior proceeding relating thereto in court, the court per Ryan, C. J., says: 24. "It was against all professional ethics, against all propriety, to suffer that woman, without professional advice of her rights, without advising her of them himself, in the absence of the counsel who had ATTORNEY AND CLIENT 103 maintained them, without the knowledge of her husband, without the counsel or sanction of any friend, alone, and in an apparent condition . of weak health, to avoid the effect of the judgment of the county court". 25. "It was the plain professional duty of the gentleman who was the elder .sister's attorney here, to have told these women, in these circum- stances, that he would take no part in consummating the agreement between them, until the younger sister had taken proper professional; advice, or had at least consulted her husband. No such transaction should ever be consummated as it were ex parte in a lawyer's office". 26. "This gentleman presumably acted without conscious bad faith. But thq effect was the same. And this court holds what took place in his office to be equivalent to undue influence — adequate grounds for avoiding a conveyance so executed". — Watkims v.' Brant,- 46 W. 419, 428. , 27. "The learning and ability of the counsel, the means of the. client, the magnitude of the interests involved, the hazards of the litigation, and the final result whether successful or otherwise, as well as the actual time and labor expended for the client, all are or may be elements to be ; considered in determining what is reasonable compensation in a given case. 28. More or less prominence may be given to these and other elements , entering into the question of value, by different witnesses. 29. Hence it is that witnesses equally honest and equally competent to testify as experts in that behalf, differ so widely from each other in their estimates". 30. The fact that the case was tried before him, "does not make the judge a witness in the cause, but it peculiarly qualified him to pass upon the weight of the conflicting testimony in respect to the value of the defendants' services," in an action therefor. See Wis. Cen. Ry. Co. v. Cornell Uni., 49 "W. 162. —Halaska v. Cotshausen, 52 W. 624, 626. 31. "As a general rule, no doubt, attorneys should not be witnesses , for their clients. The sentiment of the profession is opposed to it, and for very satisfactory reasons ;, 32. Yet cases may arise, and in practice often do arise, in which there ' would be a failure of justice should the attorney withhold his testimony. In such a case it would be a vicious professional sentiment which would deprive the client of 1 the benefit of his attorney's testimony. 33. The attorney must decide for himself whether he ought to become a witness. If he resolves the question in the affirmative, a nice sense of professional propriety will no doubt prompt him to do as W. did in the present ease ; that is, surrender the management of the case to others. 34. Of course, an attorney .should not accept a retainer if he knows in advance that he will be a material witness for the party seeking to employ him. But a breach of professional ethics in this respect does, not necessarily involve moral turpitude or affect the credibility of the 104 PROBATE AND GENERAL LAW, CODIFIED attorney who has thus become a witness for his client". See also Wit- nesses. —Connolly, jr. v. Straw, 53 W. 6.45, 649. 35. "In Am. Ins. Co. v. Oakley, 9 Paige, 498", "Chancellor Walworth states the rule thus: 'As a general rule, when a suit is commenced or defended, or any other proceeding is had therein, by one of the regular . licensed solicitors, it is not the practice of the court to inquire into his authority to appear for his supposed client. 36. But if the party for whom such solicitor appears or assumes to act, denies his authority and applies to the court for the relief before the adverse party has acquired any rights or suffered and prejudice in consequence of the acts of the solicitors, the court may correct the pro- ceeding, and may compel the solicitor who has assumed to act without' authority to pay the costs to which the parties have been subjected in consequence of his improper interferences. (Cases). 37. In cases, however, where the adverse party has acquired rights, or been subjected to costs by proceedings in the name of a party who afterward denies the authority of the attorney or solicitor who has thus proceeded, the courts are in the habit of permitting the proceedings to stand where the solicitor or attorney is a responsible man, and leaving the party injured by such unauthorized proceedings in his name to seek ' his redress against such solicitor or attorney by a summary application to the court or otherwise. (Cases) '." 38. "In this state, however, the question has been somewhat simplified by the statute (sec. 2832), which provides," for relief from a judgment, order or proceeding, ' ' through mistake, inadvertence, surprise, or excusa- ble neglect", where application is made within a year. —Cleveland v. Hopkins, 55 W. 387, 389-90. 39. Counsel cannot "prevent the discontinuance" of an action, "merely because in their judgment such discontinuance would be detri- mental to the rights of such client. It is the action of the party, not of the counsel. 40. The party is the principal and counsel are not to dictate but simply to aid in settling and discontinuing actions". See Married Woman. —Dolloff v. Curran, 59 W. 332, 335. 41. " 'The authority of an attorney at law who appears in a court of justice on behalf of a party to an action, is to be presumed. 42. He is an officer of the court, and if his authority is denied, the burden of showing, that he is unauthorized rests upon the party making the denial'. Thomas v. Steele, 22 W. supra". —Schlits v. Meyer, 61 W. 418, 421.' 43. "Settlements effected by an attorney on the one side with the opposing party on the other should be closely scrutinized, and should never be sanctioned where there is any appearance that undue influence was used in, effecting them". ATTORNEY AND CLIENT 105 44. In this case, the other attorney was easily available, and such settlement was set aside, and it is said : "In the language of the chief justice in.Watkins v. Brant, 46 W. supra, no such transaction should ever be consummated as it were ex parte in a lawyer's office". —Voellv. Kelly, 64 W. 504, 506. 45. "Certainly, in the absence of any intervening rights, or of any fraud, duress, circumvention, or undue influence, a man of legal age, possessed of his mental faculties, may, especially when acting by the advice of friends and counsel, and for a valuable consideration paid to him at the time, settle and authorize the discontinuance of a suit against him, wherein he claims to have a good defense upon the merits, and whereby he may have lost valuable rights, 46. Without the presence of his attorney of record, and even against the wish and protest of such attorney. Dolloff v. Curran, 59 W. supra, 47. In such case, the party to the action is supposed to be the prin- cipal, and his attorney his agency in securing his lawful purposes. Ibid". „ —Sullivan v. Bruhling, 70 W. 388, 391. 48. Authority to file election by widow. See Widow. — Beem v. Kimberly, 72 W. 343, 363. 49. "This court has held, in effect, that where the charges of pro- fessional misconduct upon which the accused (attorney) is disbarred are such as would, if true, subject him to criminal prosecution, the same 'should be established by clear and satisfactory evidence, and cannot rest in doubtful and uncertain inferences. ' In re. Orton, 54 W. 386. 50. But even where such charges .are not of a criminal nature, yet we apprehend that, in order to justify disbarment, they^ should be estab- lished by a 'preponderance of satisfactory evidence."' 51. "To entitle a person to practice law in Wisconsin, he must, in addition to the other requisites, be 'of good moral character'. Sec. 2586. As a good moral character is a condition precedent to admission to the bar, so it is a requisite condition for the rightful continuance in the prac- tice of the profession. (Many cases). 52. The words 'good moral character', are general in their applica- tion, but of course they include all the elements essential to make up such a character. Among these are common honesty and veracity, espe- cially in all professional intercourse". 53. "The better rule seems to be, that the misconduct requisite for such suspension (of attorneys) is not limited to acts committed strictly in a professional character, but extends to all such misconduct as would have prevented an admission to the bar". 54. "It may be said that an attorney is not obliged to continue in the service of his client without pay. However this may be, he certainly is not at liberty to desert this client and to take up against him in the 106 . PROBATE AND GENERAL LAW, CODIFIED same cause or a similar cause based upon substantially the same facts, for, the purposes of getting better pay or even any pay". — In re , 73 W. 602, 617. i 55. "We think, upon authority and principle, an employment to defend an action pending in a trial does not, under ordinary circum- stances, authorize such attorney to take an appeal to a higher court from the judgment rendered against his client. 56. Public policy and the rights of litigants require that their attor- neys in such case, especially where they have easy access to their clients, should first consult their wishes upon the question of taking an appeal from the judgment rendered against them in the trial court, before incurring further expenses in such litigation. ( Cases) ' '. Disallowance of claim for such services was upheld. —Hooker v. V. of Brandon, 75 W. 8, 17. 57. In an action for services as attorney, a judgment against the attor- ney on the ground of negligence, "first, in not having a stipulation of settlement in writing; and, second, in not noticing the case for trial," is upheld as a matter of law. — Armin v. Loomis, 82 W., 86, 89. 58. Recovery of fees for services to an administrator when not -, employed by him. See Liability. — Miller v. Tracy, 86 W., 330, 336. 59. "The whole doctrine of imputed notice to the client or principal rests upon the ground that the attorney or agent has knowledge of some- thing, material to the particular transaction, which it is his duty to communicate to his principal. (Citation.) 60. And notice of it will not be imputed to the client where it would be a breach of professional confidence to make the communication ; 61. And where the interest in, or the relation of the attorney to, the previous transaction is such as would be sufficient to induce him to with- hold the information, the presumption of its communication is rebutted. 62. The client will not be charged with notice of a fraud or wrong to which his attorney was a party while employed by another, and which it is quite certain he would conceal. Kettlewell v. Watson, 21 Ch. Div. 707". See also Sale op Realty. — Melms v. Pabst Brewing Co., 93 W., 153, 169. 63. An engagement as attorney does "not carry by implication author- ity to employ other attorneys at the expense of" such attorney's employer. 64. But "an attorney may, at his own expense and risk, employ an assistant to aid him in his professional employment (Weeks Attys. 246) ", and may include such services as part of his own. 65. An employemnt as attorney, "included power to do those things reasonably necessary, or reasonably supposed by him to be necessary ATTORNEY AND CLIENT 107 from a professional standpoint, to carry out the object of such, employ- ment. 66. That an attorney may, as incident to professional employment by a client, incur reasonable expenses in conducting the matter under his charge, cannot be doubted. ' ' ' 67. "An attorney is never bound to acquaint his client in .advance with the necessity of making each specific disbursement, and to obtain his sanction of it, in order to" charge therefor or retain it out of 1 pro- ceeds "as an expense incident to such attorney's professional employ- ment." He "merely takes the chances" as to reasonablenessi — Vilas v. Bundy, 106 W., 168, 182. 68. The statute of limitations "does not commence to run upon an attorney's claim for services and disbursements until the termination of the proceedings in which they were rendered, where his employment was to conduct such proceeding to its termination, or until the employ- ment is otherwise terminated. (Cases) ". So held, though the case lay dormant at one time for more than six years without action thereon. \ " 69. "Where services are rendered to a corporation by one of its officers, which are clearly outside of his official duties, a recovery may be had therefor under implied contract, if the circumstances be such as to fairly imply that it was expected that the services were to be paid for. (Cases) ". Compensation allowed in case of attorney's services by a bank president. — Lowe v. Ring, 106 W. 647, 653. 70. "Attorneys are officers of the court and charged as such with duties in the administration of justice entirely inconsistent , with liberty to traffic in the subjects of the litigation of which they have the man- agement. The law which condemns such transactions necessarily ren- ders them absolutely void". See also Champerty, etc.. —Miles v. Mutual M. B. F. L. Assn., 108 W., 421, 423. 71. Following In re O , 73 W., supra, an attorney is disbarred for an "attempt to deceive the court" "in making and presenting to the court false affidavits as to the pretended service" and filing of a notice of appeal. —Flanders v. Keefe, 108. W;, 441, 446. 72. "The attorney for an assignee, administrator, or other person similarly situated is his private employee. 73. At law the attorney must look to such person for his pay, and the latter must rely for reimbursement for his outlay in that regard upon the allowance of his account by the court." 74. "The attorney does not" "stand .for the beneficiaries of the trust. He stands for the trustee. He is the latter 's personal representative. The trust estate is not directly chargeable with the attorney 's claim for compensation." See also Prtwusged Communications. —Herman v. ScJdesinger, 114 W., 382, 388. 108 PROBATE AND GENERAL LAW, MODIFIED 75. " The idea that an attorney can acquire a lien of either a legal or an equitable character upon the mere right of his client to defend against the claim or cause of action of- the plaintiff, precluding the parties from settling the litigation independently of him, regardless of their motives therefor, is without support in principle or authority, so far as we are aware". 76. Where the defendant's attorneys' fees in the main, by contract with the client, were to be taxable costs to be recovered, 77. A settlement between the defendant in the absence of his attorney, and the plaintiff's attorney, dismissing the action without costs, was upheld, there being no fraud, though plaintiff's attorney had knowledge of the fee contract of defendant's attorney. —Garvin v. Crowley, 116 W. 496, 503. 78. The circuit court rule 5, see. 2 "is made in pursuance of the stat- ute", sec. 2585, as to any "civil action or proceeding", "and contem- plates consent in writing, signed by the party and his or her attorney of record, before any substitution is permissible", and refusal to recog- nize an attorney on substitution signed by the attorneys only is approved. —MaMahon v. Snyder, 117 W., 463, 466. • 79. "If an attorney purchases his client's property, concerning which his advice is sought, the transaction is always viewed with suspicion, 80. And the attorney assumes the heavy burden of proving not only that there was no overreaching of the client, but that the client acted upon the fullest information and advice as to his rights. 81. In other words, the attorney must prove uberrima fides, or the transaction will be set aside by a court of equity. ' ' Deed set aside. — Young v. Murphy, 120 W., 49, 51. 82. An attorney "under his retainer" can "bind his client in an" "accord and satisfaction" but "can exercise such power only upon an express authority. (Cases). — Fosha v. O'Donnell, 120 W. 336, 342. 83. As to authority of attorney terminating on dismissal of action by order without costs. See Discontinuance. — Wmorzyniahowski v. Hoffman & B. Mfg. Co., 137 W. 629, 632. 84. ' ' The powers of attorneys at law in charge of litigation are very broad, and while it may be that the general retainer is not sufficient to authorize an absolute surrender of substantial property rights which the attorney is employed to establish and enforce (Fosha v. O'Donnell, 120 W 336, See Stipulation), 85. Still it is and must be sufficient to enable the attorney in his honest judgment to control all matters of procedure in the action brought for such enforcement. (Citations)". 86. A stipulation "merely to waive such procedure", not by "the AUCTION SALES 109 attorney who signed the summons and for whom no substitution had been made", 87. But by attorneys who had his consent, and "full authority from the plaintiff as its attorneys to conduct the litigation, and" " defend- ants 's attorneys knew it", — held binding, 88. It not being "improvident and induced by fraud, misunder- standing, or mistake, or rendered inequitable by the development of a new situation, as in Brown v. Cohn, 88 W. 627 ' '. See also Stipulation. —Illinois 8. Co. v. W arras, 141 W. 119, 122. 89. As to running of the statute on collection made for a client, with- out demand". See Limitations op Actions. —OH v. Hood, 152 W. 97, 99. 90. "An attorney is an officer of the court and, in a sense, of the state. ' ' 91. Admission of an attorney to practice, he not having qualified ' ! as our statute requires", is held "jurisdictional error". 92. "The court can act upon its own motion as to whether the name of a member of its bar should be stricken from the roll or on application of any member of such bar, or even of a private person", or of a bar association. — Vernon Co. Bar Asso. v. McKibbin, 153 W. 350, 352. 93. An attorney cannot stipulate "to dismiss an action upon the merits" without "special authority so to do". See also Discontinu- ance. — Seymour 8. Bank v. Bettler, 164 W., 619. 94. (As to practice concerning appearance and substitution in county court proceedings,— see Zimmerman's Probate Practice, ■§§ 475, et seq.) AUCTION SALES. See also Sale op Personalty. Sale op Realty. Auctioneer may sue, 7. Bidding for another, 2. Auctioneer's memorandum, 3. Bidding jointly, 8. Agent for both parties, 4. Purchaser, a quasi party, 1. Contemporaneous with sale, 5. ., Vendor's agent memoranda, 6. 1. "The authorities establish that a' purchaser, by bidding at such sales, becomes a quasi party to the proceeding, and subjects himself to the jurisdiction' of the court. And it would be strange if it were not so — if a man might bid, and then abandon it at pleasure, and thus baffle wantonly the execution of judgments". 2. "The fact that" a bidder "was bidding for the benefit of" another, 110 PROBATE AND GENERAL LAW, CODIFIED "cannot be set up by him to, affect the rights of other parties. ; That is a matter that he must arrange with" his principal. — -Atkinson v. Richardson, 14 W. 157, 161. 3. "Where a memorandum containing all the essentials of the con- tract for the sale of land, is made and signed at the time of the sale, by the auctioneer, who sold it for the owner, it is well settled in law that this is sufficient to take the case out of the statute. 4. The auctioneer is deemed to be the agent for both parties at a public sale for the purpose of signing the contract. Benj. on Sales, 268; Tallman v. Franklin, 14 N. Y. 584. 5. But 'it has been decided that the memorandum of the auctioneer, to bind the purchaser, must be contemporaneous with the sale. It can- not be made afterwards'. Story, J. in Smith v. Arnold, 5 Mason, 414-9. See also Gill v. Bickwell, 2 Cush. 355; Horton v. MeCarty, 53 Me. 394". 6. The agent of the vendor cannot make and sign such a memorandum for his principal, and bind the vendee who has not accepted or assented to it. —Bpmoer v. Savage, 52 W. 110, 113. 7. When the auctioneer has paid his principal before receiving pay- ment, he may sue the purchaser in his own name. See Factor. —Progress B. B. F. v. Chicago H. 8. Co., 153 W. 249, 251. . . 8. "Agreements to bid jointly at a public sale", in good faith, "are valid." See also Sale of Personalty. —Stack v. Both Bros. Co., 162 W. 281, 288. AUTHENTICATION. Authentication, what is,i 2, 10. Exemplified copy, 10. Certificate to show, 11. Foreign judgment proof, 12. Certified copies admissible, 1. , Judge ex officio clerk, 9. Federal or state statute, 3. Numerous documents, 5. Originals in court, 1. Court records, 6. Compared with original, 7, 8. Seal with clerk's Certificate, 4. Certificate as to, 11. 1. Certified copies are properly admissible as evidence, though the opposite party have the originals in court. — Fouke v. Bay, 1 W. 104. 2. "The authentication of any document is that which is certified concerning it by the proper certifying officer or officers. ' ' 3. According to either federal or state statute, if relevant, certified copies are admitted as evidence the same as originals. —Ordway v. Conroe, 4 W. 45, 50. ; AUTHENTICATION 111 4. Certificate of clerk and. not that of the judge must have the seal of the court attached, to entitle a record to admission. —KirschneV v. State, 9 W. 140, 145. 5. Certified copies of ten deeds attached , with one certificate of the register, were held not "so authenticated as to entitle them to be read in evidence" under the statute (sec. 4149). "The method of authenti- cation contemplated by this statute would seem to be for the officer to certify to each document or record which is offered in evidence". (Court record distinguished in 51 W. post) . —Newell v. Smith, 38 W., 39, 40. 6. The case of Newell v. Smith, supra, ' ' is very wide of the point here raised as to court records, which should be, and must be, attached in some way, and the whole followed as a single record by the proper cer- tificate. The deeds in the case referred to could not be attached in any manner so as to be properly authenticated by one certificate ' '.. — Sherburne, Admr. v. Rodman, 51 W. 474, 478. •'• 'UiwTH*, ' ■ ', iJ < 7. "The copy of the bill of sale was properly rejected, because the certificate of the town clerk was insufficient, in that it .did not state that the copy 'had been compared by him, (the clerk), with the original', as required by sec. 4149. 8. See also, Stevens v. Clark Co., 43 W., 36". (There "the certificate of the secretary of state offered in evidence does not state that he has compared the copy with the original; but only that it has been com- pared", and such certificate was held insufficient, and the case deter- mined differently solely for that reason). —Doran V.Byan, 81 W. 63, 65. 9. When the foreign judge is also ex officio, clerk, under sec. 905 R. S. of U. S., "no doubt he must certify in each Capacity; " but "it is a matter of form, rather than of substance, whether 1 the certification shall be by two separate certificates, or comprised in one!" One such certificate is here approved, . — Keith, Bros. Co. v.- Stiles, 92 "W., 15, 17. 10. As to what constitutes an ] ' exemplified copy' of records as toa foreign will, and, 11. As to necessity of certificate to show that copies by the clerk "had 'been, by him compared' with the original' ", to valid authentication under state and also federal statute. See Foreign Wills'. — In re Box V W'ill, 127' W. 264, 270. 12. As to proof of the foreign judgment of an inferior court, "authen- ticated under title 13, ch. 17, "sec/ 905, R~. S. of U. S.' (U. S. Comp. Stats. 1901, p. 677) ". See Foreign Judgments. : — Christiansen v. Kriesel, 133 W. 508, 510. 112 PROBATE AND GENERAL LAW, CODIFIED BAILMENT. Bailment is special deposit, %. General deposit liability, 2. 1. Where money given by A. to B. for safekeeping, and "the parties did not contemplate or understand that the same identical money" was to be kept and returned, "the transaction is not, therefore, a bail- ment or special deposit, but rather what, in commercial language, is termed a general deposit, which is not a bailment, but in the nature of a loan. Story oh Bailments, 41". 2. "The liability of the defendant (B) in this case is precisely the same as the liability of a bank, for a general deposit made with it". "His liability is absolute, and it is immaterial that the money was lost without his fault", in this case having been stolen. — Shoemaker v. Hinze, 53 W. 116, 117. BILL OF PARTICULARS. See also Pleadings. Amended like pleadings, 4. Object is to inform, 2. Confined to items in bill, 3. Variance immaterial, 1. 1. Where judgment for $575 is demanded,; and "an exhibit in the nature of a bill of particulars is made a part of the complaint" in which but $435 is demanded, an application to make more definite and certain is denied, the variance being held immaterial, '*as the plaintiff will be confined in his proof to the bill, unless he should obtain leave of the court to amend it". 2. ' ' The object of a bill of particulars is to inform the opposite party what will be attempted to be proved against him on the trial, so that he may prepare his evidence accordingly. Brewster v. Sackett, 1 Cow., 571, "(and other cases)". 3. ' ' The rule is that a party is confined in his proofs to the items con- tained in his bill, and is not entitled to recover for items not included in it. Hurst v. Watkis, 1 Camp. 68 ; Holland v. Hopkins, 2 Bos. & P. 243. 4. Such a bill may be amended like other pleadings, upon terms, where it will promote substantial justice. Melvin v. Wood, 3 Keyes, 533, 4 Abb.,Pr. (N. S.) 438". —Gudworth v. Gaynor, 76 W., 296. BILLS AND NOTES. See Promissory Notes, etc. BIRTH, AGE, DEATH, AND PROOF OF HEIRSHIP 113 BIRTH, AGE, DEATH, AND PROOF OF HEIRSHIP. See also Heirs. Baptismal certificate, 5, 6, 9, 25. Material fact in certificate, 14. Church registry entry, 1, 2, 11. Marital status of mother, 15. -Copies stipulated, 12. Minority; burden of proof, 26. Family record, 23, 24. Minor may testify, 4. Father may prove, 3, 21. Mother may testify, 5. Memorandum by him, 21. Party himself may testify, 4, 10. With family record, 23, 24. As to own age, 18. Identity of the persons, 16. Knowledge from parents, 20. Antiquity of documents, 18. Personal presence proof, 8. Independent proof of, 17. Eegister of deeds certificate, 6, 7. Law when offered, 13. 1. " The entry in the church register, although it may be competent evidence to prove the date of his baptism, is not evidence of the date of plaintiff's birth. So far as the latter date is concerned, it is only hear- say", to prove infancy. (But, see sec. 4160, as amended in 1898; also Sandberg v. State, 113 W. post) . , *> » 2. "Prof. Greenleaf says: 'Neither is the. mention of the child's age in the register of christenings, proof of the day of his birth, to support a plea of infancy.' " 3. Knowing him for years, the 'defendant "had only to call the father as a witness to prove the age of the plaintiff". —Herman v. Mason, 37 W. 273, 274. 4. It seems that a minor is competent to testify. in. his own behalf as to his age. ' ' It was a matter of repute in the family when the defendant was born, and though he could not have any personal knowledge of his birth, yet he might testify to his age as he had learned it from his par- ents and relatives". — Hart v. Stickney, 41 W. 630, 638. 5. As to her daughter's age, the mother testified "that she had or kept a baptismal certificate, It was contended that such family record was the best evidence of; her age. "We have no statute that makes such record evidence, and Sec. 4160 makes the registration of births in the register's office only presumptive evidence thereof. 6. In both cases, the evidence would be merely hearsay or secondary, at best. 7. It certainly could not supersede the testimony of the mother , of the exact age of her child. No evidence could possibly be better or more reliable." (But, see sec. 4160, as subsequently amended in 1898; also Sandberg v. State, 113 W. post). 8. "The personal appearance of this young girl (sixteen) on view in presence of the jury", was held to be "very satisfactory evidence that the defendant fehew that she was under the age of twenty-one years". —Hermann v. State, 73 W. -248, 249. Zimmerman — 8 114 PROBATE AND GENERAL LAW, CODIFIED 9. A foreign certificate of baptism "incidentally mentions or recites the age of the infant baptised. But that was no proof of the birth of such infant. Herman v. Mason, 37 W., supra. But it is plain that the certificate was not admissible under the statute (sec. 4172), because it did not purport to be a certificate of the birth of any one ; therefore was no evidence bearing on the question of the age of the insured". (But, see Sandberg v. State, 113 W. post). —Lavin v. Mutual Aid, Soc, 74 "W., 349, 351. 10. "It was intimated, but not decided, in Hart v. Stickney, 41 W., supra, that a witness might testify as to his own age. The intimation was certainly in accord with the great weight of authority, and we now hold affirmatively that such testimony is competent. Commonw. v. Stev- enson, 142, Mass., 466; 2 Jones, Ev. 303". So held, in case of a minor under fourteen. years of age, the fact being vital, "and there was no Other direct evidence as to her age". —Dodge v. State, 100 W., 294, 295. 11. Under sec. 4160, as amended by the revision of 1898, it is held that, ' ' copies of parish registers of births and deaths, kept in the King- dom of Sweden, in accordance 1 with its laws, and offered in evidence upon the trial, 12. Under a stipulation that they should have the same effect as if the originals had been produced by the proper custodian, and duly sworn to by him", were held properly admissible on the question of heirship. 13. The admissibility ' ' is controlled by the law in existence at the time when the evidence is offered", though the decedent died before the law's enactment. (U. S. eases). 14. The statute "provides that the record shall be prima facie evi- dence of any material fact stated therein, in this respect extending the efficacy of such records beyond that accorded them at common law". 15. And it is held that "the marital status of the mother (a deceased sister of decedent) is a material fact'in a birth record", and the prima facie illegitimacy of a child of such deceased sister, who otherwise would be an heir of decedent, is held so established "within the phrase of the statute, 'other material facts' " and "the record is sufficient to overcome a mere prima facie presumption" of legitimacy. 16. While the rule, that "the records themselves" "establish prima facie the identity of the persons named therein", without "some inde- pendent proof of identity", rather than the contrary rule, "seems more nearly so (universal) according to the weight of authority", "in the present case it is not necessary to decide between them", there being ' ' some fact or circumstance in addition to the mere name, 17. Although that alone in several instances, we are persuaded ought to suffice, because of the duplication of rather unusual Christian names, constituting combinations extremely unlikely to occur in different indi- viduals" 1 . BOARD CLAIMS 115 18. Where ' ' the evidence with reference to the death of the six mater- nal uncles and aunts" was "wholly documentary", it was held, "in view of the antiquity of these events", "these three elements of iden- tification — name, date of birth, and place of birth — would seem entirely sufficient". —Sandberg v. State, 113 W. 578, 584. 19. "Any one, after arriving at the age of discretion so as to be competent to testify as a witness at all, may give evidence as to his own age. (Citation.) 20. And that applies though the witness has no other knowledge in respect to the subject except that which was told him by his parents. Hart v. Stiekney, 41 W., supra . 21. The father's testimony, as to his child's age where "he -relied in part" "upon a memorandum made by him at the time of the child's birth, which memorandum was not produced in court", was held proper, 22. The witness testifying "that he was present at such birth, that he made the memorandum, and knew at the time thereof that he made it correctly. " 23. Such memorandum "which appears, to have been an ordinary family record", was not "the best evidence", being "a mere private memorandum" properly used only "to refresh the memory of the wit- ness who made it or who at some time knew it was correct, 24. Or as evidence in connection with the verbal testimony and as a paH of the witness' evidence". See also Writings. —Loose v. State, 120 W., 115, 122. 25. That "a baptismal certificate" "was not admissible in evidence to prove the date of birth of respondent, is ruled by Lavin v. Mutual Aid Soc, 74 W. supra." (But see Sandberg v. State, 113 W., supra). 26. "The burden was upon" plaintiff "to establish his claim, by evidence, to the satisfaction of the jury",— that he was "a minor", when he made the contract he now desires to rescind. ' —Lamlrecht v. Holsaple, 164 W. 465, 467. See Omissions. See Services. BLANKS. BOARD CLAIMS. 116 PROBATE AND- GENERAL LAW, CODIFIED BOND FOR MAINTENANCE. See also Rescission of Contract. Absence of agreement, 41. Action by administrator, 73. Administration not settle, 32. Assignment of covenants, 17, 54. • Contract not delegable, 57. Breach wholly by grantee, 48, 71. Claim filed for support, 31. Cloud on title removed, 60, 81, 82. Contracts out of ordinary, 5. Compliance made impossible, 65. Could not demand rescission, 66. Conditional sale of property, 33. Condition subsequent, 4, 53, 59, 82a. Conveyance so rescinded, 21. Liberally so construed, 25. Unless contrary intent, 20. Voluntary conveyance rule, 24. Conduct afterward condoned, 1. Damages for support, 48. Breach wholly by grantee, 48. For partial breach, 49. Decease of grantee, unexpectedly, 63. Not ground for rescission, 63. Dissatisfaction only, 28. Election, two obligated, 44. Election to rescind, 64. Entire nonperformance, 8. Settled law of state, 16. Sufficient to rescind, 15. Equity grant proper relief, 7, 48, 83. Quiet title, 60. Rescission, cancellation, 9, 55, 83. Wife alone may act, 84, 85. Estoppel by administration, 31. Executory performance, 53. Failure: to demand support, 42. Substantial failure, 83. "Without justification, 62. Foreclosure: complaint, 11, 14. Judgment for breach, 49. Prayer for sale disregarded, 13. Strict foreclosure nature, 12. Forfeiture not relief, 14, 56, 82b. Grantee complies with, 22. Grantors first breached, 65. Could not demand rescission, 66. Full money equivalent, 67. Grantee's compliance, 65. New contract, full payment, 68, 69. Husband's duty to support, 44. Joint tort feasors, 75. Decease of one, 76. Separate findings, 77. Lease given with notice, 30. Mutual rescinding, 87. Rights of third parties, 88,- 89, 90. Over-payment relief, 18. Parol: addition to contract, 19. Parol contract performed, 27. Penalty: sum named, 10. Not for payment of farm, 50. Permanent improvements, 26, 47. Consent of both parties, 72. Personal, by grantee, 91, 92. Assignment, a breach, 92. Condition supplied, 93. Grantee; not others, 94. Personal care required, 51, 82a. Property: to remain intact, 45. Not expended for support, 46. Not to pay condition, 94. By new mortgage, 94. Security for breach, 45. Provision elsewhere, 3. Quiet title, 60, 81. Rescission, cancellation, 9, 48, 52, 55, 60, 61, 70, 71. Remedy to remove cloud, 81. By special administration, 82. , No administration, 78. Rights of heirs settled, 79, 80. Rescind on future failure, 23. Self interest, absent, 6. Separate instruments as one, 34. , Survival of action, 75. Testimony of grantor, 61. Third person's benefit, 95. Contingent, condition precedent, 96. Lien on the land, 95. Third persons: parties, 86. Contract mutually rescinded, 87. Estoppel as to payment claim, 90. Vested rights of, 88. Trust for support, etc., 35. Deficiency of assets suit, 40. -In trust for own use, 38. Not expressed in form, 36. Sums to other children, 37. Void as to creditors, 38, 39. Uncomfortable in family, 2. Undue influence contract, 74. Voluntary conveyance rule, 24. Waiver: of strict performance, 29. Competent to waive, 43. Waiver for time only, 44. Wife alone may bring action, 84. Especially if homesteaded, 85. BOND FOR -MAINTENANCE 117 1. An inconsequential breach, or a failure for a short time to extend the "usual and customary domestic courtesies" required, which conduct ceased and was afterward condoned, or a failure to continue the obligee in the family on removal to another county, she refusing to go with' the obligors, and they making other satisfactory provision in lieu thereof, held insufficient to justify the interference of the court to invalidate a bond for maintenance. 2. While being made uncomfortable as a member of defendant's family, plaintiff "would doubtless have been justified in leaving their house for that reason, and could then have successfully claimed that the condition of the bond had been broken". 3. ' ' This controversy should be speedily and amicably arranged, either by a rtturri of the plaintiff to the family of the defendants, or by ade- quate provision for her support elsewhere." —Smith v. Smith, 34 W. 320, 325. 4. In the case of a conveyance by the father to a son, in- consideration of an agreement executed at the same. time for the maintenance of the father, and the performance of certain other conditions at his decease, it is indicated in effect that .the "maintenance" was not "a condition subsequent, the failure to perform which works a forfeiture of the lands conveyed", and that on that theory relief could not be granted by a court of equity, on failure to fulfill the agreement. (Overruled on this point in Glocke v. Glocke, 113 W. post). 5. "Conveyances of property by aged and infirm people to their children, in consideration of promised support and maintenance, are somewhat peculiar in their character and incidents, and must sometimes be dealt with by the courts on principles not applicable to ordinary con- veyances". 6. "We seldom find in such transactions evidences of that deliberation and careful regard to self interest on the part of the father, which" usually characterize ordinary business transactions of t|e same mag- nitude." * 7. "Because of these and other considerations peculiar (ft* a case like this, it is the duty of the son, and he should regard it jfe his highest privilege^ fully to perform his agreement. This is not onip|a mor a l,'and religious duty, but it is a duty of which a. court of equity will/ take cognizance, and grant proper relief for its non-porf ormancje ". 8. In the case of an entire non-performance, it is hel ' 23. "In case of such failure hereafter, the court on proper proceed- ings will cancel the conveyance to J. (the grantee), and from her to him, (her assignee), without hesitation. (Cases, supra) ". —Badey v. Kartell, 56 W. 444, 453. 24. Stipulations and covenants in conveyance by parents to a son and wife, for support of the grantors, are held to be' conditions subsequent, under, ' ' the rule of construction which prevails in the case of a volun- tary conveyance. Horner v. C. M. & St. P. By. Co., 28 W. 165 ;" and the cases of Bogie v. Bogie, 41 W. and Bresnahan v. Bresnahan, 46 W., supra, are followed. 25 "In Blake v. Blake,, 56 W. supra, it was said in substance, that in such a case stipulations in the conveyance might be held conditions sub- sequent, which in other and different cases would be held covenants merely". 26. On condition broken, and re-entry, and the conveyance containing an agreement to that effect, the value of the grantee's permanent improvements are allowed in this action of ejectment, but against such value, "the plaintiff must be allowed all unpaid sums", stipulated to be paid up "to the commencement of this action". , —Belong v. Belong, 56 W. '514, 518. 27. An agreement, by a son with his mother to "return home and take care of his parents while they lived, stay on and work the farm, he should have it and all that was on it", executed "faithfully for twelve years or more", making improvements etc., with such agreement evi- 120 PROBATE AND GENERAL LAW, CODIFIED deneed by oral testimony of the contents of a lost letter of the mother, the son being in possession at the parents' decease, is upheld and enforced. 28. Evidence "that the defendant failed to supply his parents with proper clothing, etc", is held to be "confined to showing that Mrs. T. was dissatisfied and repudiated the contract; — 29. That if she did not choose to repudiate it, it was immaterial whether the defendant fully performed". "No doubt Mrs. T. could waive a strict performance on the part of the defendant". 30. A fifteen year lease given by the mother to her husband, shortly before she died, "doubtless voluntary", was held to be taken "chargeable with notice of defendant's rights". 31. A petition for administration filed by the son and his claim ' ' that the estate was indebted to him for improvements", services and support of parents, with no action "thereon , but issuance of letters, which pro- ceedings he was induced to begin by advice of counsel that "he could not hold the farm under his contract", was held not to be an estoppel. 32. Granting the letters did not ' ' adjudicate upon or settle any ques- tion of; title to real estate". —Thrall v. Thrall, 60 W. 503, 506. 33. As to a conveyance, of realty to an adopted son, with conditions therein for a portion of the proceeds and buildings to the grantors dur- ing their lifetime, and certain payments to other heirs at the decease, and also a bill of sale of personalty at the same time, it is held : 34. "The conveyance, of the real estate and the bill of sale of the personal property, although separate instruments, are founded upon a single agreement", and will "be construed together as evidences of one agreement", with the same effect as if the whole agreement had "been embodied in a single instrument". 35. "Disregarding mere form, and looking only to the substance", the conveyance "created a trust in the property conveyed for the support and maintenance of the intestate and his wife during their lives, etc." 36. "True, the condition expressed in the conveyance is not, in form, for such maintenance, but that is its plain and obvious import," and on a failure to so fulfil, "a court of equity would promptly have rescinded the conveyance and restored the property to the intestate. (Cases, supra) ". 37. "The condition for the payment of the specified sums to all the other children is an express trust created by the intestate in their favor", in principle the same as "a similar provision in a will". 38. It "was a conveyance or transfer of his property by the intestate in trust for his own use, and hence", "under sec. 2306, the same is void as against- his creditors, existing or subsequent". 39. "The fact that the defendant had previously made advances of considerable sums of money to the intestate does not change the char- acter of the conveyance, or strengthen his title to the property as against such creditors." BOND- FOR MAINTENANCE 121 40. As to increase of cows so purchased, " as to creditors such increase belonged to the estate". The suit was brought under sec. 3832, where there was a "deficiency of assets", to recover property conveyed by "the intestate during his lifetime". —Severin v. Rueckerick, 62 W. 1, 5. 41. "Considering the relationship between the plaintiff and defend- ant, as mother-in-law and son-in-law, during the whole time she was an inmate in his family he was not entitled to any compensation or remun- eration for her board, support, and maintenance therein, unless it was agreed between them that he should be paid by her". —Austin v. Moe, 68 W.-458, 461. 42. Under a conditional devise for maintenance, it is held that "failure of A. to demand her support did not release S. from his liability to furnish it. 43. But it- was competent for A. to waive her right to it, as was held in Jenkins v. Stetson, 9 All. 128. 44. "While her husband lived, it was, his duty under the law, to main- tain her. At the same time it was the duty of S. to do so Under his father's will. She could eleet upon which of them she would cast the burden. She received her maintenance from her husband, and thus elected to look to him for it, instead of S. This was a waiver by her of the obligation of S. until the death of her husband, which revived the obligation". See also Constructiqn of Wilds. —Dickson v. Field, 77 W. 439, 447. 45. Where a widow deeded her land to a nephew with an agreement back for her support during life, and after a few years the nephew died and his representatives went into possession,— -on suit brought by the widow to set aside the conveyance; it was "found that there had been a breach of such conditions ",. and the decision of the circuit court award- ing the defendants damages for- part support of the widow as a condition of setting aside the conveyance, was disapproved, it being held that the principles in such a case "go upon the theory that property thus con- veyed shall remain intact for the security of the conditions thus annexed to the grant." 46. The trial court's decision seems to have been erroneously "based upon the theory that the property thus conveyed should be held" to "be expended for the support" etc., "of the grantor, with the right to permanently retain all not; so expended ' ', with the further right of the grantee at his option to discontinue the 1 arrangement, "and reclaim all he had expended, less rents and profits actually received, ' ' which would be unjust and "contrary to the rule (thus) established by this court". 47. "We are inclined to think, however, that it is no violation of that rule to allow the defendants for the $150 expended in making permanent improvements on the land, less the $50 damage to the premises by reason 122 PROBATE AND GENERAL LAW, CODIFIED of timber cut and removed therefrom. Blake v. Blake, 56 W., supra; Delong v. Delong, 56 W., supra." 48. "This court has by a long line of adjudications settled the rule that for such breach of conditions a court of equity will, upon proper pleadings, set aside such conveyance and agreement, and do equity between the parties, especially in favor of an aged woman in the con- dition of the plaintiff at the time of the execution of the papers in question. Bogie v. Bogie, 41 W. supra ; Bresnahan v. Bresnahan, 46 W. supra; Blake v. Blake, 56 W. supra; Delong v. Delong, 56 W. supra; Divan v. Loomis, 68 W. 150 ; Stoel v. Flanders, 68 W. 256 ; Hartstein v. Hartstein„74 W. 1; Dickson v. Field, 77 W. supra. See also Martin v. Martin, 44 Kan. 295". (This case is distinguished in Lowrey v. Finkleston, 149 W. 222, 223, the court indicating that the decision went on the ground that here "the breach was wholly by the grantee", as the reason for disallowance of damages for support). —Morgan v. Loamis, 78 W. 594, 600-1. 49. On a deed by parents to son, and maintenance bond in the sum of $2,000 to them, secured by mortgage on the premises, the conditions being fulfilled except as to the payment of $337.50, — it is held, on fore- closure, that under section 2890, "the proper practice now is to render judgment for the amount which is due for the breach' of the condition of the bond". 50. "The penalty of the bond is of no significance as indicating an intention that the obligor, should pay for the farm". It "is a mere nominal sum" to cover all possible damages for a breach. —Eeidtke v. Krause, .97 W. 118, 120. 51. On a conveyance by parents to a son of their farm and personal property, and an agreement for their support and 'to care for them in all things' during their lives, with a mortgage back to secure the same, the agreement requiring personal care by the son, and he getting married and removing several miles away, and their being substantial breaches, it is held, — 52. That judgment be rendered "rescinding and setting aside the said agreement, and the deed of conveyance and bill of sale", and granting "restitution of said premises". 53. "The performance of the condition upon which the conveyance and transfer were made was executory, and when taken and construed together, they appear to have been taken and held by the defendant under a condition subsequent for the support and care of his aged parents. (Cases supra) " — Knutson v. Bostrak, 99 W. 469, 483. 54. Referring to Bogie v. Bogie, 41 "W. supra, and Frederick v. Doug- las Co., 96 W. 415, where parents conveyed their homestead to a daughter for support during their lives, and, she failing, assigned her interest to a son-in-law with the consent of the beneficiaries, and he carried out the BOND FOE MAINTENANCE 123 agreement until the decease of the surviving parent,— on application of the heirs, the court declined to rescind the agreement, on the ground of laches on the part of the heirs who, for several years neglected to pro- ceed. —Cross v. Bowker, 102 W. 497, 500. 55. Where a father deeded his farm to his son, with a separate written agreement for support and maintenance, secured by a mortgage on the premises, and there was a failure to carry out the agreement, and the son removed from the premises, — in an action in equity to enforce recis- sion for non-performance, it is held : 56. "That the doctrine of Peterson v. Olson, 47 W., supra," and "of Bogie v. Bogie, 41 W., supra, so far as it is to the effect that relief in such a case cannot go upon the ground of forfeiture for non-perform- ance of a condition subsequent, is not the law ; 57. And that by repeated decisions of this and other courts the law has been firmly established that where a son obtains title and possession of his father's property,, giving as a consideration therefor his promise to support the grantor for life, such promise, whether the manner in which it is to be kept be definitely specified in the writings or not, is not delegable • 58. That the property conveyed is held upon condition subsequent ; ' 59. That for a breach thereof the title thereto will, at the election? of the grantor, no sufficient equitable consideration to the contrary stand- ing in the w&y, revert without judicial aid, the same as in any other case of breach of condition subsequent ; 60. And that the grantor may have the aid of a court of equity for such appropriate relief as may be necessary to judicially establish his status as regards the property and quiet his title thereto, removing any adverse claim or outstanding paper in regard thereto that may exist, which might be used presently or in the future, prejudicially to him"., —Ol&cke v. Olocke, 113 W., 303, 321. 61. As to a deed from father to son, and a bond for support by the latter, secured by mortgage, the rule of Glocke v. Glocke, 113 W., supra, is stated and followed, and exclusion of "the testimony of the father tending to show that the defendant's breach of' his contract was wilful and without excuse, ' ' is held error. 62. If the "failure to furnish board was without justification," the plaintiff "was entitled to have the conveyance cancelled upon surrender by him of the $1000 cash or notes which he received as the first pay- ment". — Wanner v. Wanner, 115 W., 196, 199. 63. Plaintiff made a will and a .conveyance giving her property to a grand-daughter, the latter giving back a bond and mortgage for life support of the grantor, and while executing the agreement died "unex- pectedly". "Then the plaintiff manifestly discovered that she had not fixed her property as she would have done had she anticipated such a 124 PROBATE AND: GENERAL LAW, : CODIFIED contingency". Held, in the absence of fraud, that "that is no ground for setting aside the transaction". — H ayries v. Harriman, 117 W. 132, 141. 64. Conveyance of land in consideration of support, between parent and child, created an estate upon condition subsequent. Election to rescind, conditions of title, and as to notice thereof/ considered and determined, on the facts, eases, supra followed. —Gall v. Gall 126 W. 390. 65. In case of conveyance from parents to son and bond for support in return (See same case, 115 W. supra), where the plaintiffs (parents) "first breached the contract", and "made it practically impossible for the defendants to carry out their agreement to furnish board, fuel, and personal services, " it is held : 66. "Plainly they could not demand rescission", and perhaps had "forfeited their right to enforce the conditions, of the bond as to board and personal service. 67. Certainly they have no ground for complaint", that they are to receive "all the money payments agreed on, besides a full money equiva- lent for the board, fuel, and personal services provided for in the bond". 68. The fact "that the court has made a new contract for the parties", "might indeed be a serious objection were the defendant's here appeal- ing from the judgment, but they are not. 69. The question is, upon the plaintiff's appeal, whether the judgment does not give them as much as or more than they are entitled to". — Wanner v. Wanrier, 134 W. 71, 73. 70. In a contract for conveyance of lands to a daughter and her hus- band for support, etc., "the majority of the court", on the facts, find "a breach of a condition subsequent which entitled the defendants (parents) to rescind and re-enter for condition broken and thereby become repossessed of their former estate, under the rule of Glocke v. Glocke, 113 W. supra; (other cases) ". 71. "The plaintiffs having breached the agreement before the com- mencement of the action, the defendants' right to recission' was com- plete, and the defendants were entitled to enforce it under their counter- claim. (Cases, supra) ". 72. Permanent "improvements having been made by consent of both parties to the contract", "the ordinary rule does not apply, but the reasonable value of the improvements, not exceeding the actual cost, should be ascertained and allowed". —Moots v. Petraschefski, 137 W. 315, 322. 73. In a suit by the administrator of W., deceased, for recission of a contract for maintenance of W. and her husband, by defendant P. and his wife A., the latter having "died pending the litigation, and" is rep- resented by her executors, BOND FOR MAINTENANCE 125 74. It being shown that P. and A. "by means of undue influence" "induced the making of the contract and the transfer of the property from W.",— it is held: 75. "In. such case, where two persons jointly commit a tort, fraud, or wrong, and the right of action therefor survives (see same case, 132 W. 593, Actions by Extr., Etc.), 76. And afterwards one of these wrongdoers dies and his executor or administrator; is substituted as defendant, the judgment at law cannot ordinarily be a joint one". 77. "In a suit in equity for rescission like this the court should find" separately, and enter judgment against the executor only for what was "wrongfully taken" by the deceased, to "be collected only out of the estate represented. (Cases)". , ,i — B or chert v. Borchert, 141 W. 142, 144. 78. Where a mother J., conveyed her realty to plaintiff, a son,. "in consideration of a bond for her support'' and "took a mortgage from the plaintiff to secure" such bond, and "died intestate, without property", leaVing a husband and ehifdren, and there having been "no administra- tion" of her estate, — in "an action to quiet title", it is held: 79. "It is obvious that, the plaintiff was entitled to have the alleged rights of J.'s heirs under the mortgage ascertained and determined. This could not be accomplished" under an "ex parte application" by "order of discharge entered by a (circuit) court under" sec. 2252, which "would not bind the heirs who could not be made parties thereto. 80. To obtain such relief necessitated the institution of an action wEereby plaintiff could compel the defendants to assert such rights as they might claim to have under the mortgage ' '. 81. i"An action for the removal of the cloud created by this mortgage on plaintiff's title to these premises is the appropriate remedy for relief". 82. (While apparently overlooked in this case, it would seem that the appointment of a special administrator, with or without notice as the county "court shall determine", for the specific purpose of satisfying such mortgage, under sec. 3813a, would be a simple and appropriate remedy ,— and also conclusive on the heirs if the notice provided be given). — Rosenthal v. Rosenthal, 146 W. 41, 45. :82a. Where "a substantial part of the consideration was the agree- ment" "to render personal services," "the agreement will be treated in equity as a condition subsequent, and, if substantially broken through failure of the grantee to perform, the conveyance will be set aside. (Cases, supra). 82b. As said by this court in Grloeke v. Glocke, 113 W. supra, courts of equity take jurisdiction in such cases not to forfeit a title, but to quiet a title already forfeited for nonperformance of a condition subsequent. ' ' —Lowrey v. F inkiest on, 149 W. 222, 230. 126 PROBATE AND GENERAL LAW, CODIFIED 83. ' ' Conveyances like the present, made by aged people in considera- tion of support and care, are deemed to be conveyances made upon con- ditions subsequent, and will be set aside by a court of equity upon proof 1 of substantial failure to perform. Bogie v. Bogie, 41 W. supra; Lowrey v. Finkleston, 149 W. 222." 84. Though the title "was in the husband, the wife" "is entitled to bring an equitable action alone (the husband refusing) for reconveyance of the land and rescission", "joining her husband as a party defendant. 85. Especially is this true when a part of the premises conveyed con- sists, as here, of the homestead". 86. "Where the agreement" "also provides for" payments to third persons charged upon the realty, they "are not only proper but neces- sary parties" to such action. Mootz v. Petraschefski, 137 W. supra". —Young v. Young, 157 W. 424, 426. 87. Where parents conveyed their farm to a son P., in consideration of an agreement and mortgage back for their support, and to pay W. $600 and G. $100, at certain ages, and after several years the arrangement between the parents and P. is mutually rescinded, with the knowledge and acquiescence of W., but not of G., it is held : 88. That such contract "established the relation of debtor and cred- itor between P. and each of the beneficiaries, which relation could not be changed merely by agreement of the parents and P. without the consent of the beneficiaries. Tweeddale v. ,Tweeddale, 116 W. 517;" 89. That W. was "estopped from asserting any claim", and also "is barred by the twenty -year statute", subd. 2, sec. 4220, running subse- quent to /the time of payment; 90. That "G. not being estopped or barred by the statute of limita- tions, is entitled to foreclose the mortgage for the amount due her under the agreement with interest". Timlin, Siebecker, and Kerwin, J.J., dissent. ' — Wetutzke v. Wetwtzhe, 158 W. 305, 308. 91. In a conveyance to a son-in-law, in consideration of payment of debts of the grantor, and other sums, besides support and maintenance of the grantor, where the grantee subsequently conveyed to others, it is held: 92. There being "nothing in the deed indicating that the grantee was to be permitted to pass his obligations on to his vendee", they "were expressly made personal on his part," and "any shifting of the respon- sibility was a breach of the condition of the conveyance. 93. Had there been no express condition, one, if necessary, would have been read out of the instrument by the rule of construction pecul- iarly applicable to such situations and enforced by forfeiture or other- wise, as needed for the protection of the grantors as to the dominant purpose of the grant and all which were inseparably connected there- with. (Cases) ". 94. "The condition precedent" for the payment of the grantor's debt BONDS 127 on the land, is held to mean by the grantee, — "not by anyone else or by using the property therefor", and payment by ''taking up the old mort- gage ' ' and ' ' by giving a new mortgage ' ' is not payment or performance of the condition. 95. "The conveyance of land by one person to another by deed, on condition of such other paying to a third person a specified sum of money, and acceptance of such conveyance, creates a lien upon the land in favor of such third person", (cases) ; 96. "But where the payment is made contingent upon a condition precedent, the lien is likewise contingent and, if the time limited for such precedent event to occur expires without its happening, the possibility of the lien ripening into an absolute interest no longer exists". — Krahn v. Goodrich, 164 W. 600. BONDS. See also Sureties. Accept after twenty days, 98. After stay granted, 98. Account: not settled, 89, 91. Guardian's notes, mortg., 92, 93. Accrual, time of, 15. Additional bond, 45. Default before such bond, 50. Effect of court's order, 48. Guardian insolvent, 49. Liability under, 46, 90. Eelease of surety, 47. Subsequent waste, 51. Admr. de bonis non, action, 9. Appeal bond: incompetent, 5. Admr. of another estate, 62. Costs in supreme court, 96. Guardian adverse party, 5. Judge's refusal to fix, 6. Limited to circuit court, 97. Not running to judge, 95. Special administration, 27. Substantial compliance, 70. Undertaking approved, 94. Words "to effect" omitted, 69. Approval: is directory, 1. Filing, as approval, 8. Sale of minor 's realty, 7. "As" before "administrator," 39. Attorney as surety, 10. Absence of proof, 11. Civil or criminal, 13. Includes every action, 12. Attorney 's fees a lien, 87. Authority to sue, 41. Informal order, 42. Revoke authority, 43. Breach clearly shown, 29. Clerical mistake in, 28. Complaint: as to breach, 29. Assailed first at trial, 30. Contribution of co-surety, 20. Corporation, signing, 79. Court not dispense with, 3. Damages exceed penalty, 53. If principal so liable, 55. Interest from breach, 54. Demand not required, 17. Attorney's demand, 18. Evidence of breach, 16. Certified copy of order, 16. Executed before order; made, 32. Sureties estopped, 33. Execution only for default, 14. * Failure of co-sureties to sign, 63. Authority to deliver, 64. Between man and man, 65. Public policy in estates, 66. Failure : of principal to execute, 58. Of some obligors named, 59. Failure: to account, 14, 31. To administer, 60., ; ; Failure, to return inventory, 31, 60. Guardian's penalty, 52. Interest: from breach, 54, 55, 76. Controlled as to principal, 75. Damages exceed penalty, 74. 128 PROBATE AND GENERAL LAW, CODIFIED Interest — continued Demand when required, 77. Other money contracts, 78. Judgment for penalty, 14, 44. Guardian's bond, penalty, 52. Limitation: twenty years, 15. Contract limitation, 86. Four years before action, 85. Notice: leave to sue, 19. Sureties not entitled, 22. Permission, ex parte, 19. Partnership appeal bond, 35. Bind all partners, 36. Heirs of all bound, 38. Signed, partnership name, 37. Principal's discharge by law, 73. Refusal to fix penalty, 6. Eemedy, cumulative, 4. Retroactive effect, 61, 91. Sale of realty bond, 56. Liability therein, 56, 57. Special administrator's, 2. Not as regular, 2. Stay of proceedings, 72. Substantial compliance, 40. Substituted bond, 88. Guardian's individual mortg., 93. Guardian's individual notes, 92. Liability at time, 91. Notice not given, 89. When cumulative, 90. Sureties: concluded by order, 21, 26, 71. Bound like principal, 24. Collusive judgment, 25. Notice unnecessary, 22. Though not parties, 23. Trustees, mandatory, 80. Undertaking approved, 94, 95. Void: guardian appointment, 67, 81. Binding at common law, 84. Lack of jurisdiction, 83. Settlement with the ward, 68. Sureties liable on bond, 67. Voluntary obligation, 82. Voluntary bond, 82, 84. Ward or guardian as party, 34. 1. Approval of administration bond is directory. "Granting of letters without such approval in form" of the bond is "at most but an irregu- larity, which could only be taken advantage of by appeal from the order". — Cameron v. Cameron, 15 W. 1, 5. 2. Of special administrator could not stand as bond as administrator "without the formal written consent of the sureties, or a re-execution of the bond by them. " 3. Court cannot "dispense with the security prescribed, by statute." —In re Fisher, 15 W. 511, 521. 4. Action on bond by the heir for' his share " is a cumulative remedy. ' ' See Liability. — Williams v. Davis, 18 W. 115. 5. The appeal bond in an incompetent proceeding, "should have been executed to the guardian, who, after his appointment and qualification, may properly be denominated 'the adverse party'," and not to the petitioner. 6. On refusal of the county judge, the relator should apply "to the circuit court for an order that the county judge fix the penalty or approve the bond * ; or the circuit court may itself fix the penalty and approve the bond, so that the right of appeal shall not be lost." Man- damus is not the proper remedy. — State ex rel. Tallmadge v. Flint, 19 W, 621, 623. 7. Where the bond filed on sale of minor's real estate "was and still is sufficient," and the purchase money has "been faithfully applied BONDS 129 and fully accounted for, ' ' a failure to ' ' formally approve ' ' the same can- not collaterally invalidate the sale as "it is at most a mere formality, not affecting the validity of the sale." —Emery v. Vraman, 19 W. 689, 700. * 8. "When no exception is taken by the adverse party to the sufficiency of the sureties, and the county judge receives the appeal bond without objection, and places it with the appeal papers,, this will be regarded as a sufficient approval" without formal "approval thereon endorsed in writing". -—Bowles v. Page, 20 W. 309. 9. An administrator de bonis non can bring an action on the bond of a deceased executor. See Admk. de Bonis Non. —Golder v. Littlejohn, 23 W. 251, 254; 10. ' ' This is not a personal privilege, which such attorneys may waive, but the law evidently intends to disqualify them from entering into such contracts". But. the court was not "bound to take judicial notice of who were practicing attorneys in this state, and who were not". 11. The fact that a surety was a practicing attorney "should have been shown by affidavit. And, in the absence of all proof upon the point, the court was right in assuming that there was no legal objection to the sureties, and, in holding the undertaking sufficient". — Cothren v. Cownaughton, 24 W. 134, 137. 12. The statute (see. 2590) excluding attorneys from becoming sure- ties, "was, undoubtedly, intended, according to its plain import, to include every action, and to forbid a practicing attorney or counselor from becoming bail or security in any case", whether "professionally engaged or interested", or no,t. 13. "An attorney or counselor at law, practicing in any county of the state, can, under no circumstances, be taken or received as bail or security in any action, civil or criminal". — Gilbank v. Stephenson, 30 W. 155, 156. 14. In an action on the bond, the executors having, failed to render an account, ' ' their failure to do so is a breach of the condition of the bond ' ', and ' ' judgment for, the penalty named therein was properly ren- dered," but execution issued only for the sum unaccounted for with interest. —Golder v. Little John, 30 W. 344, 349> 356. 15. An action on an administrator's bond "is brought ;uppn a sealed instrument, and the cause of action accrued ' ' upon the date of settle- ment of his final account. It may be brought at any time within twenty years thereafter. —McGonigal, J. v. Colter, 32 W. 614, 624. 16., In an action on an administrator's bond, the "certified copy of the order of distribution", "was competent evidence to show a breach Zimmerman — 9 x 130 PROBATE AND GENERAL LAW, CODIFIED of the bond", without the production of ''the records of the prior 'pro- ceedings in the probate court ". : ; ■ ! ;". . 17. The fact ' ' that no demand was made'upon. the surety in the bond ' ', is immaterial, :the statute (sec. 4014) not requiring it. 18. "The demand was made by the attorney who appeared for the creditors in the probate court on the final accounting; and presumptively he had authority to make demand of i payment on behalf of his clients- Thomas v. Steele, 22 W. 207". , 19. The fact that "no notice was given ; the administratrix or the surety of this application for leave to commence the action", was im- material, as "the statute (4016 Sec.) does not make such a notice neces- sary"- and on default" the judge isi then authorized to grant the permission ex parte". — Elwell v. Preseott, 33 W. 274,. 278. 20. After 1 an accounting in the county court, and judgment in the circuit : court thereon against the guardian and a surety, such surety sued his co-surety for contribution; heldj — . , 21. "The sureties were concluded' by 'the order bf the county court as to the amount due. "The order shows that the> sureties appeared by counsel before that court on the hearing and final accounting of the guardian". -\ . > 22. "But even if they had not appeared at the accounting, we are still inclined to hold upon the authorities; considering the matter of their contract and the relation they occupied to the guardian, that their responsibility would be fixed in a proceeding to which they were not parties, and where 'they had noopportunity to contest the amount due". ■•• 23. Though; as a general rule, judgments bind only parties and their privies, yet, " it is conceded that whenever the surety has contracted in, reference, to the conduct of one of the parties in some suit or pro- ceeding in the courts, he is concluded by the judgment. (Wis. cases cited)". ' . ■' •■. 24. "The sureties upon the bond of an administrator are bound by a decree against the administrator finding: assets' in > his hands and non- payment of them over, to the same extent to which the administrator himself is bound. Stovall v. Banks, 10 Wall. 583; etc". 25. "The sureties' are not to be concluded 'by a judgment suffered ■eollusively by the administrator (cases) ; but as to 1 all matters of defense going to; the merits of the debt as between' the original parties, the judg- ment against the administrator is held conclusive in an action upon the bond". ■ ■■■ 26. "The sureties, as well as the principal, are estopped from con- '■ troverting the correctness of the order ascertaining the amount" found due on the accounting. > ^-Shepard v. Pebbles, 38 W. 373, 378. '27. "Probably, in 'any case, the special administrator" as the adverse party prior to probate, is the proper party to whom "the appeal bond i < should run". See also ! Appeal. r, >. :; >, , , . • BONDS 131 28.. "Obviously a 'clerical mistake" in the given name of the special administrator in the appeal bond,; is, not "sufficient; to defeat the bond". — Appeal of Mullins, 40 "W. 154, 155. 29. On demurrer sustained in an action on a guardian's bond, where the complaint sets out the bond and the penalty due, it is< held that this is'not an action "for; the payment of money only", and that. "in actions 'brought on, official bonds, this court, has held that a breach of the bond must be clearly shown (cases cited) ; and we see no ground for a dis^ tinction between those, ; cases and this'.'. , i ,.'„ •., ] ' —Qarrmgion v. BayUy, 43 W. 507, 508.. 30. A complaint in an action on a bond is given a liberal construction, "but not more liberal than it should receive for the purpose of sustain- ing it when it is assailed; for; the first time on, the trial", where the allegations are appropriate in part under one section, but construed as proper under another , section for such action on the bond. - : < ... 31. "The failure of ; the administrators to return an inventory of the estate of their intestate within three months, and their failure to render an account of their administration within" the; time required by law, without citation, are held,, breaches of the bond,. ,., , :,, ; — JofCfmnes v. Youngs, 45 W. 445, 447. 32. Where a foreign .guardian's, bond under the statute "was made and delivered to the. surrogate", previous to the appointment of the guardian, it is held : ' ' But, without such statute, a bond so given would take effect upon the, appointment of , the guardian, and, its date would be immaterial. ; ■■':'■' ' ' 33. Besides, the sureties are estopped by the bond itself from denying its legal effect as a guardian's bond. Single v. Barnard, 29 "W. 463". 34. Whether a suit by guardian on a bond "should have been brought injhe name of the guardian as plaintiff, , instead of ,the inf ant . by (her , guardian, is not of. muqh importance, and at. most a mere formal irregularity", but ' 'it, is our opinion that this action is properly brought , in the name of the ward by her guardian". , ,.,,— Vincent v. #fow%, 45/W- 458, 463. 35. The order disallowed the claim "as the. claim of.K &,N", partners; "we, think it was regular, therefore, ior, the ; claimants to giye their bond (on appeal) in their partnership name; > and that:]fchere can be no excep- tion to it upon that ground. I-. ) > 36. As , the bond was approved by the- county, judge,, in. < the absence of , all proof upon the, subject, it must be. presumed it was executed so as to bind^both the partners. 37. A bond signed by one .partner in the partnership name, will, biad all, the, partners consenting to su,ch signature. . (Cases) >, . , , ,.. 38. If' the partners are bound by the bond, K then they have promised to pay, and have bound their heirs". , 132 PROBATE AND GENERAL LAW, CODIFIED 39. The word "as" inserted before "administrator", the adverse party in an appeal bond, is not necessary to the validity. See also Extes. & Admes. 40. ' ' The rule applicable to bonds in cases of this kind is, that if the bond substantially covers the provisions of the statute, and secures to the appellee 1 all that the law designed for him, it is sufficient. The language of the statute need not be adopted. (Oases)". —Kasson v. Est. of Brocket, 47 "W. 79, 85. 41. It is held "that the objection of want of authority to sue theliond (of administrators) is in the nature of a plea in abatement, and that, to entitle a party to the benefit of such a defense, he must specially set it* up in his answer at the proper stage of the cause ' '. 42. On petition for leave to sue, an order "on the back of a certified copy of the bond", "stating in substance, that it appeared to" the satis- faction of the probate judge, that petitioner was a creditor; that the administrators failed to file an inventory and render an account within a year, and that he therefore "authorized an action to be brought on the bond", signed by the judge, is "sufficiently formal to meet the require- ments of the statute. (Sec. 4014) ". 43. If "the county judge could revoke the authority granted after an action had been commenced for a breach of the bond", nevertheless "it was improper to raise any such issue after pleading in bar to the action and going to trial of 'the cause upon the merits". 44. As to entering judgment "for the penalty of the bond,— that would be the form of the judgment, undoubtedly, at common law ; But the question whether or no the rule has been changed by the" statute, was not discussed nor decided. — Johannes v. Youngs, 48 "W. 101, 103. 45. An additional bond is held valid as such, though "the bond given under the order of the court did not on its face recite that it was given as an additional bond by order of the court. It was in the same form as though it had been given as an original bond upon the appointment of the guardian". 46. "It is evident to us that the surety on this bond is not only liable for the failure of the guardian to account for the moneys received by him as guardian after the bond was executed, but he is equally liable for all money in the hands of the guardian belonging to the wards at the time the bond was executed". (Quoted approvingly in Brehm v U S Fidelity & G. Co., 124 W. post). 47. "To release the surety upon the subsequent bond, for money re- ceived by his principal before he became bound, either the evidence must show an actual conversion of such money by the principal, or such facts must be shown as raise a presumption of such conversion. This seems to have been the opinion of the supreme court of the United States in the case of U. S. v. Giles, 9 Cranch. 215, 237". BONDS 133 48. "Where, at the time of giving the additional bond, the "account was examined and allowed by the court", and it "shows affirmatively that there had been no waste of the trust funds by the guardian", then "no presumption of any misappropriation of this trust money arises from the fact that some of it had been received", several years before. 49. The fact ' ' that the guardian was insolvent at and before the time the bond in controversy was signed", is "not in any way inconsistent with the fact that he had on hand this trust fund." 50. "The surety upon the second bond given by the guardian was not liable for any default of the guardian, or waste of the trust funds, which took place before such second bond was executed ; " 51. But such sureties "are liable for any subsequent waste of the funds on hand at the time the bond was given, as well as of the waste of the money which^came to his hands after the signing of the bond." 52. It is held that a guardian 's bond under section 3966,: is not ' ' classed among the bonds mentioned in sees. 4015 and 4017", relating to "those given by administrators, executors and testamentary trustees" to ''the . judge of the county court", where judgment cannot exceed the penalty and costs, but that such guardian's bond as to "form of the judgment" is ruled by sec. 2890 which "was not enacted "to: define or limit the. judgment thereon, but "that question must be determined upon general principles of law". (Whether the amendment to sec. 3966, by Ch. 351 L. 1899, changing the obligee from the ward to the "county judge," as in the other bonds, effects the foregoing, is doubtful) , 53. "We think the authorities in this country establish the doctrine that when the damages resulting from the breach or breaches of the bond, exceed the penalty, interest on the amount of the penalty may be re- covered from the time of the breach in excess of the penalty. 54. This rule must be limited to cases where interest is recoverable against the principal" upon the damages resulting from the breach of the condition of the bond. TJ...S..V. Arnold, 1 Gall. (U. S. C. C.) 348, 360; (other cases) ; State v. Homey, 44 W. 615, 621." 55. The court does "not determine" when the, interest on the penalty begins, i. e. whether from "the breach of the bond" or from "the corar mencement of the action". (Referring to :this case in Whereatt v. Ellis, 103 W. post, it appears that interest is recoverable from the time of the breach, "if the principal is liable for \ interest from that time"). —Clark v. Wilkinson, 59 W. 543, 546. 56. A bond on license to sell r realty "is not a bond of indemnity to pay all damages which may result from the default of the adminis- trator." 57. The liability in default, with costs of prosecution were allowed, but not counsel fees. See also Contingent Claim. —Mann, Judge v. Everts, 64 W. 372, 380. 58. "It seems to be quite well settled that the failure of the principal to execute a joint and several bond does not invalidate the same as to a 134 PROBATE AND GENERAL LAW, CODIFIED suraty, unless there was an express agreement that the bond should not be valid until so executed ' ' ; and it is so expressly held as to a county treasurer's bond. 59. "Taylor v.> Coon, 79 W. 76, was an action on an obligation not executed by all the persons named therein as obligors". It was there intimated "that the instrument was incomplete for that reason, and could not be upheld against an obligor executing the bond until all such persons had executed it, unless he consented to dispense with : the sig- natures", but "in the light of our further investigation of the subject in this case we are constrained to withdraw such intimation". —Douglas Go.vi Bbtrdon, 79 W. 641, 644. 60. Where an administratrix fails "to make and return any inventory of the estate which came into her possession, Within the time prescribed, or at all (sec. 3821)", and also fails to administer the estate, "such failures operated as a breach of the conditions of the bond, and author- ized a recovery under the third subdivision of see. 4014". —Ellis, Judge, v. Johnson, 83 W., 394, 396. ,61. As to the effect of a bond not 1 being retroactive for prior acts of the person appointed ■ guardian. See Guardian and Waed. Sureties. —Holdcn v. Curry, 85 W., 504, 510. 62. As to an undertaking by an administrator of one estate, on an appeal from a judgment in another estate,, being necessary. See Appeal. — In re Steiner's Est, 91 W., 399, 406. 63. An administrator, required to give an additional bond, left such bond, filled out except as to sureties, with the 1 cashier of a bank, who obtained the. signatures of two directors, J. and H., "with the under- standing that he was to obtain the signatures of the other directors of the bank before delivering it," but, without so doing, the county judge called "and obtained -the bond without knowledge of any, condition affecting in any way its validity, filed and approved it," there being "nothing on the face of the bond indicating that the other sureties were expected to sign ; " held, — 64. Generally, that "the courts are now well-nigh unanimous that, if a surety clothes his principal with apparent authority to deliver a bond bearing no indication on its face that others are to sign it, and it is delivered to the obligee and acted upon by him without notice of any condition, the surety is bound. In the present case ' ', the situation is "the same, in legal effect." 65. And while the cases Beloit & M. R. Co. v. Palmer, 19 W., 574, and Chipman v. Tucker, 38 W., 43, may indicate a different rule, yet "they differ from the case in hand in that they involved business transactions between man and man only, where the grantee is perfectly able to ascer- tain and investigate the status of the transaction", while, BONDS 135 66. This case involves "the considerations of public policy and the preservation of the estates of widows and minors, which are" strongly set forth in Dair v. U. S., 16 Wall. 1 and State v. Peck, 53 Me., 284, and "if* it be necessary to draw a distinction between those cases and the present case, it may with justice be drawn at official and probate btindsi " Sureties held liable, in an action on such bond. (Followed as to incor- poration certificate, in Kehbein v. Rahr, 109 W., 136, 145). , -^Belden, J. v. Hurlbut, 94 W., 562, 568-70. 67. Where a guardian of, a supposed incompetent, was appointed by the order of the county court, ' ' and he gave his bond, with the defendants as his sureties, and by means thereof obtained possession of $20,000 worth of property", and which order appointing the "guardian was afterward adjudged void for want of jurisdiction, by the circuit court", — In an action by a judgment creditor of the ward, against the principal and sureties upon the guardian's bond,, it was held 1 that, "it was, within the rule of a vast number of authorities, a good voluntary: bond in the hands of" the supposed ward, and good against the principal and sureties. ,..,, ,-„..! : 68. (In Dudley v. Rice, 119 W. post, in an action on the same bond, this case is distinguished from Conant v. Newton, 126 Mass. 105, contra, on the ground that the Wisconsin bond provides for settlement "either with the county court or with the ward, if she be of sound mind", while the alternative to settle "with the ward is not found in the Massa- chusetts bond"). -^HazeUm v. Douglas, 97 W. 214; 217. 69. i Where the undertaking on appeal "was in literal compliance with the statute, except that it omitted the words ' to effect, ' " it is held to be a substantial compliance, and sufficient. 70. "A substantial compliance with the statute (sec. 4032) is suffi- cient to confer jurisdiction on the appellate court. Kasson v., Est. of Brocker, 47 W. supra; West v. Eau Claire, 89 W. 31". —C. & J. MichelB. Co. v. Est. of Wighimcm,m W..657,;660. 71. The bondsmen and "the executor are concluded by the judgment of the ; county court", as to payment of claims, and direction to bring suit on the bond. See Claims. Judgments. ■—Roberts v. Weadook, 98 W. 400, '405. 72. It being discretionary for the court "to grant or refuse" a. stay, "the security as a consideration for the stay" "was ample considera- tion for the bond" to pay a judgment if affirmed on appeal.;. 73. "The circumstance mentioned in the undertaking'-', having oc- curred, a "subsequent; perpetual stay i of execution" as to the ' principal, by reason of his discharge in bankruptcy, ' ' did not affect the liability of the sureties", as the right "to proceed against the sureties on the undertaking had become a vested right of property and it could not be 136 PROBATE AND GENERAL LAW, CODIFIED divested by a discharge of the principal by operation of law. That is elementary". Brandt, Surety & G. 150. (Followed in Pope v. Title G. & S. Co., 152 W. 611,. 618). 74. "The judicial rule here, as to interest, is that when the damages' for the breach of a penal bond exceed the penalty, the obligee is entitled to interest on the penalty, 75. The interest period, however, to be controlled by the right of the obligee to interest upon the damages against the principal", Clark v. Wilkinson, 59 W. supra, 76. Under "the rule that the time of the breach of the bond fixes the beginning of the interest; period, if the principal is liable for interest from that time. Suth. Damages, 477; U. S. v. Arnold, 1 Gall. 348". 77. Where ' ' no demand is necessary to start the interest period against the principal, none is required against the sureties". 78. "The question of whether interest on the penalty was recover- able in this case (against such sureties) is determinable by the rules that govern other money demands on contracts", and "this subject was recently" "fully covered" in Laycock v. Parker, 103 W. 161 (See In- terest). — Whereatt v. Ellis, 103 W. 348, 352. 79. A bond by a corporation may be signed by the proper officers as such, without signing the name of the corporation. See Officers. —Fond dm, Lac v. Est of Otto, 113 W., 39, 42. 80. It is mandatory for trustees under a will to give bond before act- ing, though title vests. See Trusts. McWUliums v. Gougk, 116 W. 576, 584. 81. In an action by the supposed incompetent ward against the prin- cipal and sureties on the bond given in void guardianship proceedings ; (see Hazelton v. Douglas, 97 W., supra), the bond though void as a guardian's bond, 82. It is held "that the bond may be enforced as a voluntary obliga- tion to the extent" that the sureties by signing the bond "enabled D. (the guardian) to retain and collect the income of the plaintiff's estate under the promise that he would account with her and pay it back to her when she became of sound mind, 83. And we think that they ought not now to be heard to urge lack of jurisdiction in the court as a means of escaping from this definite agreement. ' ' 84. "The general principle is that a bond not required by statute is binding at common law if given voluntarily for a valid consideration, if it be not repugnant to the letter or policy of the law. (Citations) ". 85. But as under sec. 3968 an action against the sureties not "com- menced within four years from the time when the guardian shall have been discharged", is barred, and as "the guardian was in legal effect BONDS 137 discharged when the guardianship proceedings were reversed and held void", more than four years before, it is held, — ■-,, 86. ' ' The action is barred not because the statute of limitations operat- ing on the guardian's bond, but because, in contemplation of law, the parties put this limitation in their (bond) contract, and it cannot be taken out of the contract, even though it be now discovered that it never was a guardian 's bond ' '. —Dudley v. Rice, 119 W., 97, 100. 87. Attorney 's fees of a defaulting administrator held a lien properly, . collectible from the surety. See Administration Expenses. —Carpenter v. U. S. F. & Guaranty Co., 123 W. 209, 212. 88. Where a guardian of an incompetent gives a new bond "pursuant to an order of the county court" reciting "thati'such bond was 'to take the place of a bond' " previously given, upon filing his account, which was filed, and approved by the order which thereupon released the sureties and principal 'from any further liability on' the old bond,— - 89. But no notice as to such new bond, under sec. 3967, "was ever given", and "no examination of the guardian's account was ever had, as prescribed by" sec. 3972, and no proceedings for a new bond and the discharge of sureties under sec. 4281b, were had; therefore, , •' 90. "Since no steps were ever taken as prescribed by statute to relieve the sureties or to discharge" the guardian "as principal on the original bond, it is obvious that the bond in question must be regarded as an additional or cumulative bond, as mentioned in the statute. Sec. 3967 ' '. 91. Holden v. Curry, 85 W. supra, distinguished as applying to a person "intermeddling" before being appointed guardian, and Clark v. Wilkinson, 59 W. supra, quoted and followed, making the guardian liable, the account not haying been properly settled, for conversion and defalcation existing at the time such bond was given. 92. Notes payable to the guardian individually, are presumed "falsely credited in his account with the estate", or "previously converted" "to his own use from the estate", and such new surety held liable therefor ; 93. And a note and mortgage executed by the guardian individually to the ward, being an attempt ' ' to loan the funds of the ward to himself could not in any way lessen his liability, as such guardian, upon the bond in question, nor the liability of his surety thereon". Hutson v. Jenson, 110 W. 26 (See Accounts ;Of Guardians) . , —Brehm v. V. S. F. & Guaranty Co.,,124 W. '339, 347. 94. An undertaking in the, sum of $250 that appellants "would dili- gently prosecute their appeal to effect and to pay all damages and costs, which might be awarded against them on such appeal", duly approved, "conformed strictly to. the statute, sec. 4032," and was "sufficient to give the circuit court jurisdiction". (Many cases): 95. The provision of sec. 4013, as to "a bond running 'to the judge 138 PROBATE AND GENERAL LAW, CODIFIED of th'e county court','' is held to have "no application" to such under- taking. —Zahorka v. Geith, 129 W. 498, 503. 96. "The surety on the bond given on appeal from the county to the circuit court" is "not liable on such bond for the costs incurred on the appeal to the supreme court", 97. As the Statute, sec. 4032, restricts ''the obligation of the surety to the payment of the costs and damages awarded against his principal in the circuit court on appeal from the county court". —Breed v. Weed, 130 W. 264, 265. 98. The county judge has power to accept bonds and issue letters to executor after twenty days from an order appointing, and after stay granted. See also Stat of Proceedings. -^-Schnorenberg v. Schnorenberg, 150 W. 537, 539. BOND TO PAY DEBTS AND LEGACIES. Pinal judgment, effect, 6. Property subject to debts, 7. Remedy of creditors, 2. Not limited to bond, 8. Action in circuit court, 9. Title: of whole estate, 1, i Passes by the will, 4. Purther proceejiings, 5. 1. As to a bond of the executor and residuary legatee, under sec. 3795, ' ' to pay all debts and legacies of the testator ' ', it is said : ' ' The effect of the bond is to pass to the executrix and sole legatee the absolute title to the whole estate, and to terminate the administration". 2. That the claims became "claims against the sole legatee, and the remedy of general creditors of the estate was thereafter upon the bond or against the legatee, and not against the estate". (Overruled in Pym v. Pym, 118 W. post). —Will of Cole, 52 W. 591, 592. 3. "The mere ordering, receiving, and approving the bond" for the payment of debts and legacies, did not, ipso facto vest "the title to the whole estate, both real and personal, in the executrix absolutely and irrevocably, ' ' under section 3795 ; 4. Put, "such transfer is effected, if at all, by virtue of the provisions of the will as construed by the court upon (such) notice and opportunity for hearing, and not merely by reason of ordering, receiving, and approv- ing of a bond of a particular form." (Approvingly quoted in Pym v Pym, 118 W., post). 5. Besides such sole or residuary legatee "bond, as well as the letters testamentary, contemplated further proceedings in the county court in the settlement of said estate", and the executrix having died without further proceedings, it is held that other interested parties under the will BOOKS OF SCIENCE 139 are entitled to the appointment of an administrator de bonis non with the will annexed". —Jones v. Roberts, 84 W. 465, 470. 6. An order establishing a widow 's right to take ' ' as sole beneficiary ' ' under sec. 3795, is in effect a final judgment, and appealable, and the will is construed determining the widow 's right adversely. See also Appear. Precatory Trusts. — Swarthcmt v. Swarthout, 111 W., 102, 106. 7. "It appears from the, statutes (sees. 2270, 2277, 2281/3862), as well, as from the decisions in other states (Mass. Mich.) under similar statutes, that all property, not exempt, of which a testator dies seized is subject to the payment of his debts, whether the sole executor and residuary legatee gives the bond required by section 3795 or the bond required by the previous section. See, also, Sec. 3940. Jones v. Roberts, 84 W., supra. 8. In so far as" Will of Cole, 52 "W., supra, is to the, contrary, and as to "limit 'the remedy of general creditors' to proceedings 'upon the bond or. against the legatee' personally, the same must be overruled". 9. Where such residuary legatee bond is given, by the executrix, an action for "a just claim against the estate" was held properly brought in circuit court to "enforce payment of such claim out of the" realty not exempt. Meyer v. Garth waite, 92 W. 571; (other cases. 'See Con- current Jurisdiction) . — Pym v. Pym, 118 W., 662, 667. BOOKS OP ACCOUNT. See Account Books. BOOKS OF SCIENCE. Admissibility of, 3, 4. Testifying to contents, 2, 6. Beading, discretion, 1. Arguments to jury, 5. 1. The reading in argument of books of science "is a matter generally within the discretion of the court, and therefore not the subject of a writ or error." — Liming v. State, 2 Pin., 215, 220. 2. It is held "that the court erred in permitting Dr. C. to testify as .to what was said in standard medical works upon the subject" under consideration. 3. In Stilling v. T. of Thorp, 54 W. 528, "the question of the admis- sion of medical wprks in evidence, was fully discussed, and it was held that they were not admissible. ' ' 4. This rule "was followed in the case of Knoll v. State, 55 W. 249, 140 PROBATE AND GENERAL LAW, CODIFIED 256. The authorities cited clearly show the correctness of the rule stated by this court." 5. "It is apparent that if counsel are allowed to read extracts of medical authors in the argument to the jury, it would nullify the rule which prevents such extracts from being read in evidence." 6. "On account of the error in permitting the witness Dr. C. to testify as to what certain medic,al works stated upon the subject of inquiry, and for permitting the counsel for the state to read from medical works to the jury, the judgment of the circuit court must be reversed, and a new trial ordered." —Boyle v. State, 57 W. 472, 478. BROKERAGE. See Commissions of Brokers, etc. BURDEN OF PROOF. See Affirmative. Evidence. Fraud. Undue Influence. BURIAL EXPENSES. See Funeral Expenses. CALLING IN OTHER JUDGE. See County Judge. CEMETERY LOT. See Dead Bodies. \ CERTIFICATE OF DEPOSIT. See,. Money. Promissory Notes, etc. CERTIFICATE OF DESCENT. See Descent and Distribution. CHAMPERTY AND MAINTENANCE CERTIFIED COPIES. See Authentication. 141 CERTIORARI, WRIT OP. See Writ of Certiorari. CESTUI QUE TRUST. See also Trustees. Trusts. Deceased cestui que trust, 1. Extrinsic evidence, 3. Parties to equity suits, 2. 1. The administrator of the deceased cestui que trust may obtain "an order from the county court" directing the trustee to pay over funds, "if it appears that his intestate left any debts which should be paid by this provision made for the mother (cestui que trust) in the will". —Batchelder v. Batchelder, 20 W. 452, 454. 2. In general they must be made parties to suits in equity, subject) to exceptions. See Parties. . . . — Board of Suprs. v. Mineral Point By., 24 W. 93, 127. 3. Extrinsic evidence was "proper to point out and show who were the cestuis que trust intended", where referred to in a deed of a passive trust in language ' ' otherwise unintelligible to the court". See Trusts. —Sydnor v. Palmer, 29 W. 226, 243. CHAMPERTY AND MAINTENANCE. Appearance is authority, 9. Champerty defined, 3, 11. Contingent fee, 20. Contributors to test case, 14. Common interest, 15. Common law in force, 1, 5. Compensatipn of attorney, 4. Dismissal of action, 7, 19, 21. Division of proceeds, 10, 18. , Expenses to be paid, 18. Interest in suit, 12, 13. Knowledge of courts 17. Maintenance defined, 8, 11, 16. Percentage of proceeds, 6, 20. Pleaded, need not be, 21. Proved without an issue, 2. Purchase of client's claim, 22, 23. Stirring up litigation, 16. Strictness relaxed, 1. Transfer, to attorney, 23. 1. While "the strictness of the law relating to champerty and main- tenance has been greatly relaxed"; yet it is "an existing substantive part of the common law," and,' "prevails in this state". , , 142 PROBATE AND GENERAL LAW> CODIFIED 2. It may be proven 'informally without an issue, "if it comes to the knowledge of the court in any proper manner" during the progress of the cause. (Champerty and maintenance discussed.) —Barker v. Barker, 14 W. 131, 142. 3. "Champerty is nbtning else than an agreement to aid in a suit and then to divide the thing recovered. This agreement was to- prose- cute the action, pay the expenses, and divide the fruits of the litigation", and "was clearly champertous". 4. Though an agreement between attorney and client "is void for champerty, yet the attorney 'does' not thereby forfeit his right to full compensation for his services, nor the client his right to the fruits of the litigation after paying for such services what the same are reasonably worth". —Stearns v. ^elker, 28 W. 594, 596. 5. "The commoti law in regard to champerty and maintenance, with the qualifications established, by the modern "authorities, is ini force in this state". ■■•... . . 6. ■ An agreement for a percentage 6f the proceeds 1 (in this case for one- half of the; land recovered), is held ; champertous and otherwise by the authorities generally, but the court saying it was "at liberty to adopt and follow" either line of decisions, holds such an agreement not cham- pertous, "although, utider the 'authorities, it would be otherwise had the attorneys agreed to pay the expenses of the action". '••'■ 7.* If "it was proved that the attorneys Were 1 prosecuting this action pursuant to a champertous agreement with the plaintiff, the motion to dismiss should have been granted". — Allard v. Lamirande, 29 W. 502, 505. " 8. "Maintenance is defined to be an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it. 4 Bl. Com. 134. ' ' 9. An attorney's "appearance is prima facie evidence of his authority and retainer until some contrary proof is made". "He had a perfect right" to decline "to answer a question put to him on argument" as to his retainer. —Andrews v. Thayer, 30 > W. 228, 233. 10. An agreement between attorney and client stated, as to the divi- sion of proceeds, 1 etc., is held not champertous. See Liens. — Kusterer v. Beaver Dam,, 56 W. 471, 475. 11. The definition of maintenance as adopted by Chief Justice Dixon, in Andrews v. Thayer, 30 W. supra, is approvingly quoted, as is the statement as to champerty in Barker vi Barker,' 14 W. supra, the court saying "the same is doubtless "true as to the ! kindred offense of main- tenance". , i ;: CHAMPERTY AND MAINTENANCE 143 12. "The terms of this definition obviously do not include all kinds of aid in the prosecution of defenses of another 's ! cause, and it has there- fore always been held not to extend to persons having an interest in the thing in variance, nor to persons acting in the lawful exercise of their profession as counsel or attorneys at law. Bayard v. McLane, 3 Har. (Del.) 208. ;■..■" • 13. Nor does' the doctrine of the eommon law as to maintenance apply to persons who either have a legal interest in the suit prosecuted by them or who act under the bona fide belief that they have. McCall's Admr. v. Capehart, 20 Ala. i 526. " > ' ' 14. "We do not perceive how any principle of law or of public policy is "violated in allowing a number of persons interested in the same ques- tion, and whose claims depend upon the same principle of law, to contribute to defray the expenses which must be incurred in the decision of such a question by a test case"; and so held here where the con- tributors had similar interests, but only a |est case interest in the instant case. 15. "It appears to us they (the contributors) certainly had a common interest in the decision of such a question, because it concerns the interests of all of them. If so, the agreement to ■ prosecute the action cannot be held to amount to maintenance!' Findon v. Parker, 11 Mees. & W. 675; (other eases). . > ../ •-. 16. The arrangement made does not necessarily imply anything that the law condemns as maintenance. Says Lord Abinger, in Findom v. Parker, 'The law of maintenance,' as I understand it upon the modern construction, is confined to cases where a man improperly, and for the purpose of stirring up litigation and strife encourages others either to bring actions or to make defenses which they have no right to make'." ■*.:■•; !■•'! " ! —Davies v. StoweU, 78 W. 334, 335. 17. The doctrine of Barker v. Barker, 14 W., supra, though doubtless against the weight of authority, as 'to 1 champertous agreement, that, in' a suit, "although no issue had been formed in regard to it, that, if, the fact came to the knowledge of the court in any proper manner, it would refuse longer to entertain the proceeding," is adhered to. 18. An agreement to pay the expenses, and divide the amount re- covered, was held champertous, "within the rule laid down in Stearns v. Felker, 28 W. supra; (other cases) ". 19. A proposition by the "attorney to cancel the agreement and pro- ceed with the action",' the client hot being there "to agree thereto," was held not available, and the action was held properly dismissed. — Kelly v. Kelly, 86 "W., 170, 172. 20. An attorney may contract "for a fee contingent upon his success", for a percentage or share recovered, "where he does not undertake to pay any part of the expenses of the litigation. (Cases) "■. —Dockery v. McLellcm, 93 "W., 381, 388. 144 PROBATE AND GENERAL LAW, CODIFIED 21. "Champerty need not be pleaded," but when apparent in the action, a dismissal "motion should be granted", or "the court may prop- erly act on its own motion". .22. "The purchase by an attorney of the claim of his client in a pendr ing suit, to be enforced in such su|t at the expense and for the benefit of such attorney", is held champertous and void. —Miles v. Mutual B. F. L. Assn., 108 W., 421, 432. 23. Following Miles v. Mutual R. F. L. Asso., 108 W. supra, "the transfer to defendants' attorney" of the realty in litigation, is declared void, and he is denied "the benefit of any defense he sought to make". —Emerson v. McDonnell, 129 W. 67, 71. CHANCERY COURT. See Equity. CHANCE OF VENUE. See Venue. CHARACTER. » i See also Impeachment op Witnesses. Acquaintance •with party, 1. Knowledge of character, 2. 1. "In any case, where the character of a party if properly in ques- tion, as in this- case, (one of slander), it is sufficient to prove such character by witnesses who are well acquainted with the party in the neighborhood of his residence, without first asking them if they know the character of such party. " 2. In such a case, the question is not merely of reputation founded upon the speech of people, but of actual knowledge. of the character of the party, and such knowledge is a proper subject of inquiry by any proper questions tending to that end. (Citations)". —Dufvesne v. Weise, 46 W. 290, 297. CHARITABLE BEQUESTS. See Charitable Trusts. CHARITABLE TRUSTS 145 CHARITABLE TRUSTS. See also Cy Pres^ Equitable Conversion. Trustees. Trusts. Abolished, except by statute, 6, 10. Account compelled, 1. Attorney general, or party, 1. Alternative, one valid, 49. Ambiguity, latent, removed, 38. Confusion of names, 38, 39. Associations of individuals, 3, 94. Beneficiaries uncertainty, 2, 4, 7, 62, 81, 87, 91, 105, 127: Conflicting earlier cases, 23, 24, 25. Donee or devisee uncertain, 54, 55, 59. Doubtful trust favored, 109. Essential element' of charity, 22, 63. Power of selection, 19, 64, 105. Trustee select beneficiaries, 87. Beneficiaries of the trust:' Blood relatives, heirs, 47. Castastrophes, elements, 105. Church charitable work, 139. City, "a public library", 66, 95. Business men's club room, 66. Home for aged poor, 68, 72. Lands for driving park, 72, 73. Manual training school, ' 121, 132, 133. To trustees, then to city, 95, 121. Erect an orphan asylum^ 32. Expended for temp, work, 78, 85. Heirs who are in needj 46,^ 48. Locality not restricted, 25, 105. Benefit suffering humanity, 106.. , Poor at Ness, 108. , Masses for repose of souls, 74, 75, 110. Most needy and deserving orphans, 62. Orphans of a diocese, 7. Poor of city of G. B., 54, 55. Belief of residence poor, 40. Subjects worthy of assistance, 105. , Superannuated preachers, 91. Support a Baptist colporteur, 59. Unincorporated societies, 2, 139. Worthy indigent females, 12. Young, in useful arts, 50, 51. City: for public library, 66. Bonds to be issued, 133, 135, 137. Business men 's : club r6om, 66*. Compelling cause to raise money, 137, 138. Condition, name and tuition, 122, 134, 136. Conditioned on raising fund, 121. Home for aged poor, 6$. Legal and beneficial title, 100, 104, 124. Zimmerman — 10 City — continued Manual, training, 132, 133. Manual training school, Hi, 132, 133. May accept for legal purposes, 71, 129. Perpetually administered, 131, 12j5. Reverter not implied, 123. Same duties and regulations, 130. To trustee and, then city, 95, 103. Unimportant accessory, 67. Cy pres doctrine, 8, 9, 45. Judicial power, 41, 42, 89. Devise to trustee, then city, 102. No^ trust : limitation invalid, 10O, 101. . Educatipnaj, institutions, 128. , ; Equitable conversion, 17, 33. Applied to. realty for masses, 116. By necessary, implication, 69. Equivalent to direction, 92. Overrides perpetuity statute, 119. ,, Extrinsic evidence as, to name, 38, 39 Failure of a trustee, 27, 35, 8*2, 86, 125. Chancellor's judicial power, 41, 42,,' 43. Court power .to appoint, 93. . Equity supply; trustee,, 29, '30, 34. Will not to contrary, 65. . , Favorable leaning for, 11. Forfeiture declared by trustee, 146. Formality not required, 125, i 126, 127, 141.. ■: ■ - .,': ,:„■ ■ > Heirs, who might be, 47., Incorporated subsequently, 5, 12, 26, 27. Creation of new corp.28, 32, 52. Establishing' corporate, existence, 53. Religious societies, unincorporated, 56, Indefinite public charities: Abuse of selection power, 20! Blood relatives, as heirs, 47. Chancellor's judicial powers, 42; City, for various purposes, 66, 67, 68. Limited by amount, 18; , Locality not restricted, 85, 1051 '" Narrower than field, 106, 112. No provision for selection, 54. Power of selection, 19, 64, 105, 145. Purpose at. large, 44, 106, 144. Rules, public, trusts, 79 to 90,,.- 112, 113. : Scheme sufficiently indicated, 44, 141. Uncertainty of donee or devisee, 55, 59, 60. Leading cases, 31.' .,'r . . : .,, previous cases. harmonized, 77., 146 Probate and general law, codified Legal and beneficial interest, 100. Limitations void, 101. No trust created, 104. , si Locality not restricted, 85, 105. Masses: for self and others, 74, 75, 110. Benefit of all mankind, 111. Particular persons; general, 114. Realty and personalty, for, 110. Valid, when clear and direct, 76. Mixed trust and fee, 98, il00. Mixed trust and power, 65. Mortmain statute, 13. Narrower than field gen'ly, 44, 106. Indefinite number of persons, 112, 113. Limits of purpose ascertained, 144. Particular persons arid gen'l, 114. Perpetuity: statute, realty, 14. Both legal and beneficial interest,' 100. Condition subsequent imposed, 102. English doctrine, 15. Equitable conversion, supersedes, 119. Gifts for charitable uses, 90, 96. Implied power of sale, 69. Limited to realty, 16, 119. Perpetual race track, and aged home, 72. Personalty; not prohibited,, 98. Prohibition ineffectual, no trust, 104. Realty not to be sold, 70. Realty under power of sale, 17, 22, 99. Religious corporations, 37. Statute now includes realty, 72, 119, 120. ■ ■ Suspension three years, 97. Power of sale, implied, 69. Negation of sale, limited, 70. Private from public trusts, 21, 115. Charitable church ■ work, ,142. Private from public trusts — continued Definiteness different, 60, 61. Masses held to be both, 75. Private trusts different, 145. Reversion, failure in conditions, 1,23, 124, , Rules governing public trusts, 79. Agency, invoke judicial power, 89. Correct essential points, 80. Good trust stated, 85, 141. Indefinite beneficiaries, 81, 87, 105, 127, 144. Indefinite details, 83, 88, 105, 143, 144. Indefinite methods, 84, 105. Perpetuity statutes, 90. Precedents sjightly useful, 107. Trustee determine details, 88. Trustee , selects beneficiaries, 87, 105. Want of trustee, 82, 86. Title: in archbishop, 36. City donee, 66. Donee uncertainty, 55. Held by persons, executing, 118. Legal and beneficial, 100, 101, 102. Necessary implication, 118. Temporary in trustees, 57. Trustees three years, then city, 103. Unincorporated institutions,, 3, 52, 56, ... . 139. ; , Uses and trusts: statute, 6. Lifliited to realty, 14. No application to personalty, 140. Not charitable trusts, 117. Vague and indefinite number, 127, 143. Void, in part, valid in part, 49, 66. Certain lands, alienation suspended, 72. Unimportant accessory, 67. Void unappealed judgment, 94. 1. "Account is an ancient and familiar branch 'of equitable jurisdic- tion. In cases of charity, to be administered by trustees, whether private persons or corporations, a, court; of equity has jurisdiction, at the in- stance of the attorney general or other proper party, to take an account, and to correct abuse or misuse of the trust funds; and even to remove delinquent or improvident trustees. Story's Eq. 1191". — In re. Taylor Orphan Asylum, 36 W. 534, 543. 2. In a devise of lands to two persons ' to hold the same in trust for the use and benefit of the order of St. Dominican and St. Catherine's Female Academy', held, "the trust is wanting in .all the elements of cer- tainty and precision essential to give it validity. 3. The words used are general and indefinite in their meaning. The trustees are to hold the legal title 'for the use and benefit' of the beneficiaries, unincorporated institutions or associations of individuals. CHARITABLE TRUSTS . 147 No active duty is imposed upon the trustees in respect to the manage- ment, disposition or use of the property. No provision that the trustees should take possession of the property, receive the rents and profits, and apply them to any specified purpose. 4. Instead of the trust being 'fully expressed and clearly defined' (Sec. 2081, subd. 5), there is a fatal, uncertainty about it in every par- ticular". 5. " In-corporation obtained subsequent to the commencement of this action ; and it is dear upon the authorities that the question presented is not affected by that circumstance." 1 6. It is indicated that by the statute (Sec, 2071) "uses and trusts, except as authorized and modified in this chapter, are abolished", and that charitable trusts 1 were included. (The result in this case, but not the reasoning, seems to be accepted in Harrington v. Pier, 105 Wj post.) —Ruth v. Oberbrunner,;4fi W. 238,, 256. 7. A will which ' gives and bequeaths to the Roman Catholic orphans of the diocese of La Crosse, state of Wisconsin, all 'his real-estate ', is held to be void because "it is impossible to determine from the language of the will who are the Objects of • the testator's bounty. There are no ascertainable beneficiaries, either as a class or individuals, and therefore the trust cannot be effectually carried out". ■■■ 8. Where a "bequest to charity as vague and uncertain" has been sus- tained, it was in cases which "mainly rest upon' the doctrine of cy pres, which is a doctrine of, prerogative or sovereign function, and not strictly a judicial power. 4 Kent, 508", (Many cases). 9. It is indicated that the courts of this state are not "clothed with other than strictly judicial power", and have not "succeeded to the jurisdiction over charities which the chancellor of England exercises by virtue of the royal prerogative and cypres power". 10. The court says that in Ruth v. Oberbrunner, supra, "it was held that ch. 84, R. S. (Sec. 2071), abolished all uses and trusts, including charitable uses and trusts, except 1 such as were authorized . by its pro- visions", and that 'while this view "would inevitably overthrow" this will;" yet "our decision in this case will not be placed upon" that ground. (The result that" the donees were uncertain and unascertainable" seems, to be accepted as a private trust, but not the reasoning in Harrington v. Pier, 105 W. post). ' : — Heiss v. MurpMey, 40 W. 276 r 289. 11. "From time immemorial the general inclination of the courts of equity has been" to lean in favor of "bequests for charitable uses", and against "claimants- under the statutes of distributions". 12. Here "the testator gives the residue of his estate real and per- sonal, to his executors, upon trust to pay it over to four institutions", "to apply and use for the education and tuition of worthy indigent females. ' ' Three of these beneficiaries are colleges in existence, and the fourth " shall be organized", as "an institution of learning'' for females. 148 PKOBATE AND GENERAL LAW, CODIFIED 13. Held that the statute of mortmain "has never been adopted or in force here" and that all the bequests are valid and should be carried out. Ryan, C. J. See also Mortmain. 14. In response to "strenuous objections to the charitable bequests", "founded on. the statutes prohibiting perpetuities, and regulating uses and trusts", it is said: "It is almost sufficient to say, for the purposes of this case, that both of these statutes are expressly limited to realty. 15. The English doctrine of perpetuities applied to estates both real and personal, and grew up by a. series of judicial decisions. Perry on Trusts, sees. 377, 379. It appears to have been applied to private trusts, but not to trusts for charitable uses, which usually are essentially and indefinitely permanent. Perry, sees. 384, 687, 736." 16. "But were this otherwise, the statute limiting the rule against perpetuities to realty, : manifestly abrogates the English doctrine as applicable to personalty. Expressio unius exclusio alterius". 17. The real estate under general power of sale, and direction to "pay over and deliver", is considered as "personalty only". See Construc- tion of WmLS. :'' >, .. 18. As to definiteness, it is said: "Public charities, indefinite in terms, are necessarily limited in their administration by the amount of the foundation. ■ . :t -i* , i 19. Where the founder does not provide a rule or order of selection, there is, therefore, in every public charity, a necessary power of selec- tion of beneficiaries in the trustee. . 20. If the power be abused,, the state; in the exercise of its visitatorial power, will correct it. Re Taylor Orphan Asylum, 36 W., supra; Perry on Trusts, Sec. 732". 21.- "When a trust defines" the beneficiaries with certainty, it is rather private than public. As Mr. Perry remarks, charity begins where uncer- tainty of the beneficiaries begins. Sec. 687 ' '. 22. " 'It is the number and indefiniteness of the, objects, and not the mode of relieving them, which is the essential element of charity. * * A good charitable use is 'public', not in the sense that it must be executed openly and in public ; but in the sense of being so general and indefinite in its objects as (to) be deemed of common and public benefit'. Salton- stall v. Sanders, 11 Allen, 446". (Quoted approvingly in Harrington v. Pier, 105 W., post), p. 98.i , 23. As to the cases of Ruth v. Oberbrunner and Heiss v. Murphey, supra, in which "there are some passing remarks", "apparently more or less in conflict with what is now held ' ', it is said : "No question of charitable use was in either case, and no question of trust in" the latter. 24. In the former case, "the trust appears to have been private, not public", and " apparently failed for want of any certain cestui que trust to take the legal title under the statute", it being "a passive trust". 25. In the latter case, ';' the devise was in fee directly" and "failed for want of known and certain devisees", p. 99. 26. "The fourth bequest was to a contemplated institution, not yet CHARITABLE TRUSTS 149 in being", and "the words, institution and organized, < appear to imply an incorporation", "in legal parlance, an institution implies founda- tion by law, by enactment or prescription". 27. "Failing the contemplated corporation, then the bequest is to be distributed to the three existing corporations. And so, under the will, there can be no failure of a trustee to take and administer the bequest". 28. "Bequests for charitable uses to be administered by a corporation are sometimes of such a character and extent as necessarily to require the creation of a new corporation to administer them. 29. "But had that provision (for a new corporation) been omitted, and had the charitable use lapsed for want of a trustee in esse, it would have been a reproach to the administration of justice. 30. The rule has the sanction of very, high authority, that equity 'will not suffer a charitable use to be defeated for want of a trustee". 31. (This case and Gould, Admr., v. Taylor Orphan Asylum, 46 W., post, decided therewith, are discussed and approved as leading cases correctly stating the law as to 'charitable trusts, and the prior cases of Ruth v. Oberbrunner and Heiss v.» Murphey,- supra; criticised, in Har- rington v. Pier, 105 W. post, Becker v. Chester, 115 W. 90 (See Per- petuities) and Danforth v. ©shkosh, 119 W. post.) ' —Bodge v. 'Williams, 46 W. 70, 91. 32. As to a bequest to individuals, 'to hold in trust to erect an orphan asylum', 'to be paid to such asylum as' soon asone shall be duly incor- porated' (p. 107), it is held: "The corporation, when organized, takes title, not by the will, but by transfer from the trustee adi interim. This is not an executory bequest". ■ ■ ■- •<> ""■' ■ 33. Under the principles of Dodge v. Williams, supra, held applicable here, and a general power of sale and "the whole scope and tenor of the will", though there was realty, it is "to be considered as a will v of person- alty only". 34. Upon a default or failure to act of such trustees, ' or any of them, the trust would not have lapsed, but the court would have supplied trus- tees, as ' ' equity never suffers a trust to expire with the trustee ' '. ' 35. "Failing the corporation, they (the trustees named) would have remained permanently clothed with the trust, with full power to' admin- ister the charity". — Gould v. Taylor Orphan Asylum, 46 W. 106, 115. 36. Where an archbishop of the Catholic church holds the absolute title by warranty deed, of a local church property/. it is held that 1 the congregation, who contributed to the erection of the old 1 church building and repaired and supported it, have no legal right, as against the bishop, to tear down such church, build another, on the premises, or exercise acts of ownership thereof, and that such title cannot be shown to' be in trust for such congregation. — Heiss; Arch: v. Vosburcr, 59 W. 532. 150 PROBATE AND GENERAL LAW, CODIFIED , 37. In the , statute - of perpetuities, sec. 2039, ' ' the words ' charitable corporation' " do not ." include what is generally called, a religious cor- poration". See Perpetuities. —Be Waif, Extr., v. Lawson, 61 W. 469, 480. 38. Where a bequest; was made to "The 0. & A. Union Cemetery ,,Assn.", there being none such, but there were the "0. Cemetery Assn.," and "The, Union Cemetery Assn.," both in the town of 0., and the latter including incorporators in both 0. and A., it was held that the latter 1 was intended, and that "there can be no doubt but. what extrinsic evi- dence was admissible to show which of the two cemetery associations was intended. (Cases). Such evidence removed the latent ambiguity ■which otherwise would ,have existed., (Many cases)". 39. It was similarly held in a:bequest to the "First Presbyterian Church, of, the Village of 0, ", therei, being none such, but "an incor- porated 1 religious society named ' The First Presbyterian Society of the Town of 0', with: its church edifice in the village of 0, in said town and of which the testator; was a member". , 40. The 'direction to > such Presbyterian Society to "use one half of the annual income of the bequest 'for the relief 'of 'the resident poor' of the town, was clearly a charitable purpose", "and was sufficiently definite and certain to be carried into execution", as much so as in the case of Dodge v. Williams, 46 W. supra, and distinguishable from the ease in Heiss v.. Murphey, 40, W. supra. , 41: By the statute 43 Eliz. "it was made lawful for the 'Lord Chan- cellor, as keeper of the great, seal, * to authorize four or more persons', in case of such general bequest, to devise and carry into execution a charitable iseheme of the character indicated in the act". ■i 42; "But in so far as 1 that i statute was merely confirmatory of such powers exercised by the , Chancellor as were strictly judicial", not as "keeper of the great seal as the representative of the king", "it became, by judicial construction, interwoven in, and a part of, the common law of England, and to that extent is in force here. (Many cases). 43. Before thatjpower can be. exercised, however, the scheme of charity must be sufficiently indicated, or a method provided whereby it may be ascertained, and its object made sufficiently certain to enable the court to enforce the execution of the trust according to such scheme and for such object, i It must .be . of such' a tangible nature that the court can deal with it. Redf . on Wills. 44. The mere direction to expend money 'for charitable purposes' at large is too indefinite and uncertain to be so carried into execution, under: the rulings of this court in the cases cited (supra), and hence that alternative must: be held void for uncertainty. ( Cases) ' '. (Last two paragraphs are approvingly quoted in Will of Kavanaugh, 143 W. 90, 99). .-. i 45. As held 1 in cases supra* the courts of this state have no cy pres "prerogative jurisdiction, but 'only a strictly judicial power' ". p. 391. CHARITABLE TRUSTS " 151 1 46. The clause, 'to be *■' giveri to any of my heirs who are in need, or not in very comfortable circumstances, as to my executors, seems fit ! and proper',' is held to be sufficiently definite and certain to be carried into execution. •■■ ., .1 >-: ■ 47. "This manifestly means those who upon the death of both of his grandsons (his sole heirs,) without issue, would be his other blood rela- tions, and who might, under the other circumstances named, have become his heirs. It does not include all relations, however remote. ' ■ (Cases) "■.-■ 48. " The limitation ' to such needy relatives, and those not in very comfortable circumstances, makes the bequest charitable in its purpose. (Cases)". ■■■>< 49. The last two foregoing bequests, being in the alternative, one being void and the other valid, the latter' is Sustained, as both ' ' are charitable in their objects and hence sustainable as such "> 50. "Unquestionably, the purpose of establishing 'a school in 0.-, or some other place in, W. county, Wis., for the education of yoUng persons in the domestic and useful arts,' was a charitable purpose, within the judicial sense. (Cases). 51. Especially is this so, since 1 there is no restriction or limitation as : to the class of young persons to be thus educated." 52. "The language of the will seems to contemplate a school of the character indicated, to be incorporated," but does not say so in terms. ' "The mere fact that the corporation was not in esse on the death of the testator in no way frustrates the trust. 53. To. establish such a school is to give it legal existence — that is- to say, a corporate existence. (Cases cited, supra)." p. 397. i — Webster' v. Morris, 66 W. 366, 379. > - # 54. A bequest to 'the poor of the city of G. B.,' where "at' the time of the death of the testator there were nocity paupers or poor fund in the city," "and such poor persons are not certain, determined, or defined, and there is no way provided by the will for selecting them," is held void on the authority of Heiss v. Murphey, 40 Wr, and Webster v; Morris, 66 W., supra.'' 55. (Approvingly explained that the ; uncertainty causing invalidity, was as to the "donee or devisee in Whom the title may vest," and not as to the individualbeneficiaries, and "that the bequest would have' been supported as a trust for charitable uses if a ! trust had been created ad the court could have filled the office of trustee to administer the trust. " —Harrington v. Pier, 105 W.y post:) — Est. of Hoffen, 70 W., 522, 523. 56. "Under the repeated decisions of this court, we must hold that the mere fact that such church or religious society had not yet been incor- porated at the time of the delivery of the deed in no way frustrated the trust thereby created, if such trust was otherwise valid; (Cases, supra). 57. The deed of the trustees "put the legal title to the land Conveyed 152 PROBATE AND GENERAL LAW, CODIFIED in the trustees named therein, and their successors, for the uses and purposes therein mentioned," and, 58w "Upon the incorporation of the society, September 8, 1862, the legal title to such church property became vested in the corporation under the statutes." Sec. 2Q00, et al.... .i —Fadness v. Braunborg, 73 W. 257, 278. 59. Where the testator gave a sum in trust to deacons of a church and their successors in office, " 'to be, funded with good security on improved land, and the interest to be paid annually- to the A. B. P. Society, located at Philadelphia, Pa., to aid in the support of a Baptist colporteur and (or) missionary in the state of Wisconsin,' " the deacons not being incor- porated and declining -to accept the trust, it was held that the bequest "is void for uncertainty." , 60. (In Harrington v. Pier, 105 W., post, it is said of this case that "the rule in Webster v. .Morris, 66 W., supra,"— as quoted in the Web- ster case, par. 43, supra,— as to necessary incidents to validity, "was referred to and affirmed; but, as it seems, effect was given to the rule after the manner of private instead of public trusts. ' ' 61. And in Hood v. Dorer, 107 W., post, referring thereto, it is said : "In the recent case of Harrington v. Pier, 105 W., post, however, the doctrine of , the Puller case was substantially overruled.") ,, —Will of Fuller 75 W., 431 434, 62. A will bequeathed . to executors, in trust, money, for the support, etc., "of such indigent orphan children," under fourteen, in R. county, "as, in the judgment of my said executors, may be most needy and deserving". The executors named, "resigned, both, as executors and as trustees, without having" qualified, and the circuit court found (1) the bequest void, and (2) that the administrator with will annexed could not execute the trust; held,— 63. ' ' One of the essentials of a good bequest fox a public charity is that there shall be some uncertainty as to who shall be its beneficiaries" ; 64. Citing Dodge v. Williams, 46 W., supra, and Gould v. Taylor Orphan Asylum, 46 W., supra, it is said, '''it is no objection" "that its beneficiaries are uncertain", that ;the "power of selection" is "in the trustees," that "the scheme of the charity is definite and clear," and that it is "a, valid charitable bequest"; 65. The trust can "be executed by a, trustee appointed by the court," there being nothing in the will to the contrary. "This will creates a mixed trust and power. The power joined with the trust, in such a case, is imperative, and must be exercised''. Osborne v. Gordon, 86 W., 92 (See Power.) —Saioielle v. Witliam, 94 W., 412, 415. 66. A trust to a city to establish and maintain ' ' a public library and a business men's club room", is upheld as to the "library" under the "general common law power" and city charter, and as to the "club CHARITABLE' TRUSTS ; ; 153 room ' ' as being a ' ' comparatively unimportant accessory ' ' requiring little if any additional expense, and, — 67. Therefore, is not within the rule "that where a devise otherwise valid is inseparably coupled, with a void devise, and is a. mere accessory thereto, and the amount of the valid part cannot , be ascertained, then both must fall together. Chapman v. Brown, 6 Ves. 404''. It is held, "therefore, that the library scheme, does not iaiLby reason of the fact that the city cannot maintain the club room ". , , < • , . ; ■ , . . • 68. A trust for "a home for aged and poor people of the city", is also upheld, and as being with the "library, trust''; "both active trusts, and are sufficiently definite to be capable of enforcement''. Dodge v. 'Williams, 46 W. supra ; Webster v. Morris, 66 . W. supra ; Sawtelle v. Witham, 94 W. supra. 69. "Although there is no specific power to. sell given, we think such power must result by necessary implication from the various provisions", and the will is so construed, after the city takes the trust ; 70. And a provision that said realty "shall not be sold nor encum- bered", is construed to apply to the executors as trustees, and not to the subsequent city trustee. . u - 71. "The principle is well established that a city may accept; devises of property made to enable it to carry out any of its legal duties or powers, and such devise may be made to the city in ; direct terms, or it may be made in trust for such uses (citations) ". (Followed in Maxey v. Oshkosh, 144 W. post). 72. The devises of certain lands to the city, to ' ' be perpetually, used for the home for aged and poor people, and that fthe race track shall be perpetually used as a driving park and as agricultural grounds", "are void under sees. 2038, 2039, because the power of alienation is perpetu- ally suspended", — The city not being "a literary or charitable corpora- tion organized for 'their sole use and benefit'," and hence hot within the exception in section 2039. 73. (In Danforth v. Oshkosh, 119 W. post, this last ruling is spe- cifically upheld, with a vigorous dissent iby Justices Marshall and Sie- beeker. However, a subsequent amendment (ch. 511, L. 1905) to section 2039 adding a realty devise "to a charitable use", as an exception,, no doubt changes the foregoing rule, and now "the, statute against per- . petuities does not include devises to a charitable use". "Will of , Kay- anaugh^ 143 W. post). —Be-wrhausw. Cole, 94 W. 617; 627-31. 74. Certain bequests to the bishop of a church, 'to be used by him for the benefit and behoof, of churches named, and to a bishop 'to be used and applied % 'for masses for the repose of my soul '^ and of others named, — are held to be "essentially trust provisions, and appear to be void' for uncertainty and wholly incapable of being executed by a court of equity by virtue of its judicial, jurisdiction over private trusts" "We hold that" they "are void trusts, and are not valid bequests". 75. ,( In effect overruled, at least as to the 'masses', provisions, it 154 PROBATE AND GENERAL LAW, CODIFIED being stated,; in Harrington v. Pier, 105 W. post, as "placed on the ground that a trust for masses is private"; and it being held in Will of Kavahaugh, 143 W. post, that ''while the masses may be intended to benefit the souls of the departed mentioned, the benefits are public as well, therefore come within the designation of a public charity", and such bequests are held valid). 76;' "Such gifts or bequests j ( as to' masses); when made in clear, direct, and legal form, should be upheld; and they are not to be con- sidered as impeachable or invalid, under the> rule that prevailed in England, by which they were there held void, as gifts to superstitious uses. No such rule or principle obtains here". (Followed in Will of Kavanaugh, 143 W. post. - '■ ;■ ' —McHngh, v. McCole, 97 W. 166, 173. 77. (In this case, Harrington iw Pier, the previous cases are exhaus- tively discussed, distinguished, endeavored to be : harmonized, parts thereof disapproved, and the principles as to public, as distinguished" from private, trusts, set forth for future guidance; it is believed that the foregoing codification of cases with modifications as there indicated, by the instant and subsequent decisions, together with the paragraphs fol- lowing, correctly indicate (the rulings of law still applicable and useful for present and future purposes.) ■ 78. Personal and real property, the latter to be converted into money, was left, three-fourths thereof, to trustees named, to be ' expended for temperance work' in M. 'as their best judgment shall dictate', the greater portion for the benefit of two named incorporated temperance organizations, the whole "to be expended in temperance work within five years", an 4 the residue was left to individuals. 79. After distinguishing and harmonizing the cases, it is said: "With a single exception", Fuller's Will, 75 W. supra, in effect overruled,— "the decisions of this court from Dodge v. Williams, 46 W. supra, to the present time, are in harmony, and it must be held that such case states the law of this state* as. understood' from the time it was decided". 80j "Dodge v. Williams, and the cases expressly ruled by it, correctly state the law' on the points essential to the conclusion here reached", upholding the trust, "and whatever there is in other cases, decisions, or reasons for decisions;) inconsistent therewith, must yield to that view. 81. It follows that indefiniteness of beneficiaries who can invoke judi- cial authority to enforce the trust, 82. Want of a trustee if there be a trust in fact, or 83. Indefiniteness in details of the particular purpose declared, the general limits being reasonably ascertainable, or 84. Indefiniteness of mode of carrying out the particular purpose, does not! militate against the validity of a trust for charitable uses. 85. Given a trust, with or without a trustee, a particular purpose^- as education, or* relief of the poof, as distinguished from a bequest to charity generally,^-and a class great or small, and without regard to '< location, necessarily, as 'worthy indigent females', of 'indigent young CHARITABLE TRUSTS 155 men studying for the ministry' or 'resident poor', or indigent children of R. County', or 'the boys and girls of California' (People ex rel Ellert v. Cogswell, 113 Cal. 129), and we have a good trust for charitable uses. 86. The court, through its strictly judicial power, may fill the office of trustee if necessary. > ■ ; i j . . . 87. The trustee can select the immediate beneficiaries or objects within the designated class and scheme ; , i . 88. He can determine upon the details neeessary to effect the intention of the donor within the general limits of his declared purpose, and execute the trust accordingly; 89. And the proper public agency, if necessary, can invoke judicial power to enforce such execution". (Followed and approvingly quoted in Hood v. Dorer, 107 W. post; re-stated in Richtman v. Watson, 150 W. 385, 399). -.::,.! 90. As to personal "property at leasts it was plainly and correctly 1 decided in Dodge v. Williams, 46 W. supra, that the statutes of per- petuities and uses and trusts have no application to gifts for charitable purposes". Not decided whether.' '-'to such gifts' of real estate''. (But see Beurhaus v. Cole, 94 supra, here, evidently overlooked)'. See also Equitable Conversion. — Harrington v. Pier, 105 W. 485, 513. 91. Where the testator, after a life estate to his iwife;: his sole heir, provided that his real and personal estate, "be invested in a fund' pro- vided ' for that purpose for the support and maintenance of the super- annuated preachers of the church denominated the United Brethren in Christ", and the will was construed 'in 1888> such 'superannuated preachers' generally and two members of the church being made defend- ants, and the bequest was held void by the circuit court, there being no appeal, — in an action of ejectment years later after the death of the widow who had sold the realty, — it was held, following Harrington v. Pier, 105 W. supra : ' ' : ■• > •"•■ ;; 92. That such devising ' ' clause amounts to a direction to convert the real estate", and that "the doctrine of equitable conversion applies"; 93. That such bequest is a valid trust provision, and "the proper court has power to appoint" a trustee to carry it out. Sawtelle : v. Witham, 94 W. supra. ' /:■><: ..> 94. That "the 'superannuated preachers' were not a corporate body, ' and hence not capable of being sued under such a general designation", and that, therefore, such prior construction was of no effect. —Hood v. Dorer, 107 W. 149, 152. 95. A testatrix gave personalty and realty to trustees, to hold in trust, for founding 'and maintaining perpetually a public library' on her 'homestead lots', and on condition of an equal amount provided other- wise within three years, 'then the' property so hereby given' to such trustees, to be by them conveyed 'and set over absolutely' 'to the city of Oshkosh, or any lawful trustee^ by it selected, knd if riot 1 so used, the 156 PROBATE AND GENERAL LAW, CODIFIED property to revert to the heirs of the testatrix and her husband. Such amount was raised, and the trustees duly transferred such property to the city of 0.- Held: 96. That by "all the prior decisions", and as an original proposition, the statute, sec. 2039 (as then existing), against perpetuities applies "to grants for charitable purposes". (Probably as a result of this deci- sion, the rule was changed by amdt. of ch. 511, L. 1905, to see. 2039, making "a charitable use" an exception. See note to Beurhaus v. Cole, 94 W. supra) >■. 97. Following Kopmeier's Will, 113 W. 233 (See Construction of Wills), the suspension of alienation during the three years while in the hands of the trustees, did not invalidate the devise, suspension being permitted for, "twenty-one years". 98. "The fund to be realized out of" the realty and personalty "apart from the homestead," is not within the statute, as following Becker v. Chester, 115 W. 90 (See Perpetuities), "neither statute nor rule of common law in this state prohibits perpetuities in personalty". 99. The power of sale is not suspended "when a trustee or other donee of the legal title is given power and authority to sell and make convey- ance of complete title". 100. As the homestead is "to be conveyed to the city of O. for its own corporate use as a municipal corporation", "both legal x title and bene- ficial, interest are held by it in the same, towit, its corporate capacity. Hence no trust is created ior imposed upon it," and its title is "a fee". 101. "If the restraints ' upon use or disposal of the homestead are limitations merely, they are so repugnant to the grant as to be void ; 102. And if a condition subsequent is imposed thereby, so that on breach of these limitations the fee is to determine, the future estate in possession dependent upon such condition is so vested that the absolute power of alienation is not meanwhile suspended ' ' ; 103. "The devise first to trustees, and then to the city of Oshkosh, is valid". ', - 104. "The obvious distinction between " Beurhaus v. Cole. 94 W. supra, and this ease, "is that in the present we conclude that no trust was created, while in the former it was conceded by both litigants and assumed by the court that the only title conferred on the city was in trust and as trustee, so that express or necessarily implied prohibition against alienation - was leffeotual ■ '. See also Trusts. —Danforth v. Oshkosh, 119 W. 262, 267-280. 105. Referring to Harrington v. Pier, 105 W. supra, in "which our attitude is so unambiguously declared", it is held that a devise to trus- tees of a ' fund for the charitable purpose of relieving the wants, distress, and suffering arising from ' ' catastrophes resulting from the actions of the elements', -they being enjoined 'to select subjects worthy of assist- ance', with 'no restrictions upon' locality, — 106. Is a valid charitable, bequest' "narrower than the field of charity CHARITABLE TRUSTS 157 generally", and limited "to an ascertainable class of beneficiaries", to " 'subjects worthy of assistance', so that the money be of benefit to 'suffering' humanity". , 107. "As has; often been said, precedents are useful only slightly, or not at all, upon questions of construction. (Cases). Arguments are hardly more so ' '. —Kronskage v. ^ Varrell^ 120 W. 161, 164. 108. A will on a printed blank, which, after payment, of debts, etc., gives 'to the poor fund of Ness, with the understanding: I give, devise and bequeath for the most needy of same, and that shall be a special fund to them. So all the regular poor tax shall be paid or apportioned same as foregoing, without reference to this money '. ■ • '•■ ' 109. There were other printed paragraphs with blanks urifilled. The heirs were not near relatives, and the net for distribution was $380. Judgment "giving the entire estate in trust for the poor at Ness", was sustained "with some hesitation", it being "a choice' between certain defeat of the testamentary purpose and mere possibility of such defeat.'' — In re Hegna's Will, 133 W;, 513, 515. 110. A will gives ' real estate and personal property, for masses for the repose of my father's and mother's and sister's: and brother's and my own soul.. The masses will be said according to -the directions of F. and W. and I hereby appoint them to direct where and when to say said masses'. W. is. also appointed executor. There were no further provisions. The county and circuit courts held the ; will 'void : '. Held valid. .',:■■, •,-( f' 'i'" 111. It being shown that masses are said ' 'not alone f or " ' 'the deceased members mentioned, but for the benefit iof all mankind ' ', they "therefore come within the designation of a'publlc^ charity" (Many cases). 112. "A gift to be applied consistently with existing laws for the benefit of an indefinite number of persons by bringing their hearts under the influence of education or religion is a charity. Jackson v. Phillips, 14 Allen, 539". 113. ' ' The question ", of " charitable trusts "," has been so exhaustively, treated in Dodge v. "Williams, 46 ~W. and Harrington v. Pier,. 105 W., supra, that further discussion seems unnecessary". 114. "A bequest for masses is a charitable /bequest and valid &s such, although the repose of the souls of; particular persons be mentioned ' ', and "the statute relating to trusts (sec.: 2081); does not apply" as to "certainty" "required in regard to private 1 trusts ".- ; (Cases, supra). ; 115. There is a "distinction between a 'private trust and a public or charitable bequest. In the former, statutory certainty is required, while in the latter it is not". 116. "It is apparent that conversion of' the real estate, was necessary to carry out the terms of the will. Consequently the doctrine of equitable; conversion applies. (Cases 1 )". ■ ( ■' '> ■ ''■ ■ 158 PROBATE AND GENERAL LAW, CODIFIED 117. "Charitable trusts" "are not controlled by our statute of uses and trusts", and "a eharity will not be allowed to fail for want of a trustee. 118. The person named in the will to execute the charity will be held to, be the trustee, and, if necessary that he hold the title for the purpose of carrying out the provisions of the will, he will by implication hold such title". (Cases). 119. "The statutes respecting 'perpetuities" do not apply because of equitable conversion* and because the amdt. of Sec. 2039, by ch. 511, L. 1905, ' 'by adding to the exceptions from the operation of that section real estate devised to a charitable use". 120. "In so far as McHugh v. MeCole,, 97 W. supra, conflicts with anything said in this opinion it must be regarded overruled". — Will of Kwanaugh, 143 W. 90, 97. 121. Testatrix gives to S. and H. realty and personalty, 'in trust for' 'founding, etc' 'and maintaining perpetually a manual training school' in the city of 0., 'upon the express condition that within three years' the 'city of O.' or others 'shall raise' and donate $50,000 for the same purpose, and then the property to be transferred to the 'city of O., or any lawful trustees by' it selected* the whole, except for buildings, to 'be a perpetual fund to be used and enjoyed' for such 'manual train- ing school'. 122. And with a further condition as to 'name' and 'that a tuition fee shall be charged' as the city or trustees shall deem 'sufficient' for the purposes designed. The city duly accepted, and issued bonds for $50,000. Bequest held valid. 123. There "is no express provision for a reverter in the event of a diversion of the fund, and none can be implied under the law of this state. ( Cases) ' '. 124., While in Danfortfcv. Oshkosh, 119 W. supra, it was held "that no trust was created and that the title passed charged only with a con- dition subsequent", there being. a provision for reversion, 125. "We conclude here that it was the intention of the testatrix to create a charitable trust, public in its character". 126. "No great amount of formality in the use of language is neces- sary in order to create a public charitable trust. The courts look to the purpose for which the gift was made. 127. In order to create such a trust there must be some public benefit open to a vague and indefinite number of persons until they are selected or appointed to be the particular beneficiaries of the trust for the time being. (Citations) ; Dodge v. Williams, 46 W. ; Harrington v. Pier, 105 W. ; Sawtelle v. Witham, 94 W. ; supra. 128. Gifts to institutions of learning and for educational purposes ■■ are almost invariably held to be gifts for charitable purposes. (Cita- tions) ". 129. "That a city may become the trustee of a charitable trust, where CHARITABLE TRUSTS 159 the donation is made to aid some public purpose charitable in its nature ■ which it is the legal duty of the city to .support and -provide for, does not admit of doubt. ' 130. When the trust is accepted the city assumes the same obligations and becomes amenable to the same regulations that apply to other trus- tees of such trusts, 131. And among them is the obligation to perpetually administer the , charitable fund in accordance with the express wish of the testator. (Many cases) ". 132. "Manual training" is held to be a "practical and useful course of instruction" to be taught in public school, 133. "Which "the city has the right to maintain" "as part of its gen- eral system of education", and "to vote the bonds involved". 134. As to the condition "to -perpetuate the name of her husband" in the school, it is held it "may be lawfully made and lawfully complied with. (Cases) ". 135. While- the city may have "no power to raise a fund to be invested in perpetuity for such purpose", it is held that the purpose "will be carried into effect by the city using the fund raised by it to build and equip the school building". 136. It is held that "the testatrix intended" tuition to "be exacted only from such pupils as the city of 0. could legally exact such a fee from. The will does not undertake to /specify to whom the charge shall be made". i ; ,, i 137. While the donation of the testatrix "was the impelling cause which" caused the city to raise the extra money, and ordinarily "cor- porate action is said to be void under such circumstances", 138. Yet such rule is held not to apply here, as "the testatrix herself could reap no material benefit from her offer", there being "no chil- dren " or " relatives ' ', and ' ' she had no ulterior or vicious motive in doing what she did". — Maxcy v. Oshkosh, 144 W. 238, 249. 139. Personalty bequeathed in trust to an incorporated Synod church, for specified "charitable work" of other "organizations", some being unincorporated, some under the Synod's control, and some to which the church "makes yearly contributions", — held valid. 140. "The trusts created" "are trusts in personal property alone, not in real estate, hence the statute of uses and trusts (sec. 2081) has no application to them. Mc Williams v. Goughi, 116 W. 576 (See Trusts) ". '141. "All that' is required of a valid trust in personal property is that 'it shall be for a lawful purpose ; and be sufficiently definite and certain so that the court can deal with it in the exercise of its judicial functions and enforce it. '142. The trusts before us are plainly not private trusts but public trusts charitable in their nature and for the benefit of certain classes ; 143. Such trusts,; whether in real or personal property, are necessarily somewhat indefinite and vague. : ! ; : : 160 PKOBATE AND GENERAL LAW, CODIFIED 144. The individuals can never be named, but if the class and the general limits of the testator's purpose be ascertainable by any reason- able means the wishes of the testator will be carried out by the courts. 145. Were the trusts private trusts different considerations would arise." (See also amdt. of sec. 2081, by ch. 170 L. 1917, adding subd. 7, as to indefiniteness with power of designation of purpose.) 146. The clause "authorizing the Synod to declare forfeited the bequests to Gale College and the Preus Academy in case those institu- tions cease to be conducted in the interest and under the auspices of the Synod",— is held valid. —Rust v. Evemmi, 161 W. 627, 631. CHATTEL MORTGAGE. After acquired goods, 5. Subsequent mortgage, 6. Continuation of business, 3. Expenses of family, 3. Crop before existence, 2. Crop sharing agreement, 7. Discretion in mortgage, 4. Fixture, to vendor of, 1. Mortgagor may sell, 11. Title: legal in mortgagee, 8. Equitable in mortgagor, 10. Interest is special, 9. Purchaser, hbw obtain, 12. -Vendee may protect interest, 12. 1. A chattel mortgage to the vendor of a fixture attached to the prem- ises with his consent, is not valid agains a prior mortgagee of the realty. See also Fixtures. — Franklwnd v. Moulton, 5 W. 1. 2. "A chattel mortgage can only operate upon property in actual existence at the time of execution, and cannot be given, * upon a crop before it can be said to be in existence, ' ' . , i . .Camstock v. Scales, 7 W. 159, 160. 3. A chattel mortgage upon a stock of goods, allowing continuation of business; and payment of expenses of business and family out of the proceeds, the excess to be paid to (the mortgagee, is upon its face fraudu- lent in, law and void as to creditors. ,: — Place v. Langworthy, 13 W. 629. 4. As to a chattel mortgage containing "clauses that, upon default at maturity, the mortgagee might take possession and sell, and that, if the mortgagee should at any time deem herself insecure, she might in like manner take possession and sell, we can have no doubt that the latter clause operates to -vest an absolute discretion in the mortgagee". It is not a question of the reasonableness or of the fact. —Embner v. Koebke, 42 W. 319, 321. . : 5. "A chattel mortgage of after acquired goods does not create a lien, legal or equitable, by force of the mortgage, upon after acquired goods". iMany cases, adhered to. CHECKS 161 6. "Where ' ' the original chattel mortgage contained an express cov- enant for further assurance, to extend the lien to after acquired goods ; and a new mortgage was actually executed upon after acquired goods, to one of the mortgagees, to secure a separate debt"; "we cannot doubt tthat the second mortgage enured as additional security to the original mortgage ' ', for the benefit of all the mortgagees. See also Joint Obliga- tions. — Hunter v. Bosworth, 43 W. 583, 591. 7. Parties to a crop sharing agreement may as 'between themselves stipulate as to the legal title of crops to be grown. See Eents and Profits. — Lanyon v. Woodward, 55 W. 652, 656. 8. "A mortgagee of chattel property holds the legal title thereto, but nevertheless, till default' and actual possession of the property in himself, 9. His interest, as against the mortgagor or any person claiming under him, is special. It is limited 1 to the amount of the mortgage indebted- ness. ■ ■ ' '• ■ • ' 10. The general property and the equitable title ''being in the mort- gagor or those claiming under him. 11. The mortgagor may sell the mortgaged property and convey a good title thereto subject'to the mortgage", and "he may place a second mortgage thereon, , • 12. And the subsequent vendee or mortgagee may protect his interest and clothe himself with a full legal title by paying* off the first incum- brance." (Cases). — Illinois T. & 8. Bank v. Alex. St&ivart L. Co., 119 W., 54, 65. CHECKS. Acceptance by bank; 8, 17. .-■■ Effect of , check, 11. Action on check, 6, 7. Impliedly asserts funds, 8. Administrator's rights, 10. Present, reasonable time, 1. Assignment, pro tanto, 3, .4, 8. Closing hours, next day, 2. Conversion of checks, proceeds, 18. Bevoeable as such, 12. Decease of maker; 15. ■ Contract effect,. 12, 13. ; Contract payment^ 13, 16. Notice of revocation, 14. Depositary, safely pay, 13, 14. Splitting up debt, 5. Notice of revocation, ,14. Transfer pro tanto, in equity, 3. Depositary's rights, 6. ' When liable to holder, 9. 1. The settled law "is that, if a person receives a check on a bank, he must preserit it for payment within a reasonable time; in order to pre- serve his right of recourse on the drawer in case of non-payment by the drawee; •• '■ ■•■ 2. And that, when such person resides and receives the' check at the same place where such bank is located; a reasonable time for such Zimmerman — 11 162 PROBATE AND GENERAL LAW, CODIFIED presentation reaches, at the latest, only to the close of. banking hours on the succeeding day, excluding Sundays and holidays. (Citations) ; Lloyd v. Osborne, 92 W., 93." , —Grange v. Reigh, 93 W., 552,, 553. 3. "A check for a part of a bank credit, intended to transfer sUeh credit, pro tanto, operates that way in equity as against any subsequent claimant thereof/ saving, the rights of the drawee, particularly as to being obliged to pay such part of the fund twice." Questions fully discussed. Skobis .v, Ferge,,102 W., 122. —Dillman v. Cwrlin, 105 W., 14, 17. 4,: "As is now fully settled in Wisconsin, the giving of such check (on a bank) will be construed to intend\n assignment of the fund pro tanto as between the maker and; payee. Pease v. Landauer, 63 W. 20." 5. As fa: debtor or depositary owing one debt and subject to only one action therefor,, cannot, without his consent,, be subjected to the splitting up of that indebtedness so as to.be liable to several actions", 6. Hence, "an assignment of a part of a fund, while effective as between the assignor and, assignee, cannot be enforced, by. direct suit at law against the depositary without his consent. 7. It can only be enforced" in an action against all claimants in equity. Skobis v. Ferge, 102 W. 122. 8. ' ' One who draws a check upon a bank impliedly asserts that he has a fund in the hands of that bank out of which it is expected to be paid, and therefore that he assigns so much of that fund .as the check calls for". 9. "By the new Negotiable Instruments Law (Laws of 1899, ch. 356, sec. 1684-5) it is provided that the bank shall not be liable to the holder of a cheek unless and until it accepts or certifies it". 10. "An administrator's rights are the same", as "the original depositor". He " 'stands in the shoes', of his intestate". 11. "A cheek is, and always has been, primarily an authority from the maker upon which his banker may rely, but in which the latter has no interest until he has acted thereon". 12. While as such it is revocable, yet, where ' ' a check for a valuable consideration works an assignment of a deposit, , equitable or legal", "it also evidences a contract between the maker and payee, and, if that contract is a valid and irrevocable one, the check cannot be revoked as between them. , \ 13. If, by that contract, the payee has become the owner of the fund, the bank may safely pay it to him, not by virtue of the check as an authority alone, but by virtue of his actual ownership ' '. 14. Before notice of revocation, the check protects him; but after such notice, ' ' he then pays at the peril of being, able to establish a valid and irrevocable contract of assignment". 15. "In this view, then, we need not consider whether the death of the drawer revokes the check "..:.■ 16. And a bank's payment of; checks after the decease of the maker, !!)<;> CHOSE INACTION • 163 and after protest, they being on a valid contract consideration, is upheld against the administrator in a suit brought by him for the funds. ,-M >■>'■'■ —Raesser.'v. Natl. Exch.^Bank, 112 W. 591, 593. i 17. "Acceptance of a check on a bank is in the' nature of a condi- tional payment, which becomes complete when accepted and when the amount due on it is actually paid, and" "such, payment relates back to the time of its delivery. (Citations)". See also Sunday., — Jacobson v. Bentzler, 127 W. 566, 568. 18. As to recovery for conversion, on wrongful obtaining of checks, and the proceeds, See Actions by Bxte. or Admk, , -r-Meyer v. Doherty, 133 W., 398, 403. CHOSE IN ACTION. Covenant against incumbrances, 2. , Not specific legacies, 4. Executor receiving, in payment, 3. Subscription paper, 1. Informal transfer, 5. 1. A subscription paper is held to be a chose in action. The assignee thereof takes it "subject to all the equities' between the original parties at the time of assignment". — Rockwell v. Daniels, 4 W. 432, 438. 2. Covenant against incumbrances when broken, " is a chose in action, not assignable. at common law". — Pillsdury v. Mitchell, '5 W. 17, 21. 3. "We are not aware of any rule prohibiting" an executor on a sale from receiving "in payment a chose in action." — Roys' v. Vilas, 18 W. 169, 174. 4. A chose in action "from' its very nature, does not admit of use. enjoyment and sale in the sense in which those terms are evidently used in ihe will", as relating to personal chattels; and the same language is held to intend the latter, to be specific legacies, and the choses inaction as hot. —Gdider v. Littlejdhn, 30 W. 344, 353. 5. No "particular formality is necessary to effect a transfer of" a chose in action. — Chapman v. Plummer, 36 W. 262, 265. 164 PROBATE AND GENERAL LAW, CODIFIED CIRCUIT COURT. See also Appeal. Concurrent Jurisdiction. Equity. Appeal after sixty days, 9. Abuse of discretion, 15. Bad faith and laches, 10. Counter affidavits, refusal, 9. Requirements of justice, 16. Appeal bond, county court, 1. , Appellant jurisdiction, 2. Claim: pending action, 7. Claims against decedents, 12. Creditors' action for assets, 14. Custody and guardianships 19. findings in equity cases, 21. Jurisdiction with county court, 4, 11. Decedent estate claims, 12. Dissipation of trust funds, 17. Enforce trust in lands, 8. Equitable claim, not filed, 18. Guardianships, 5, 19. Legacy and trust matters, 13. Without statutory authority, 6. Land contract, county court, 3. Will, probate appeal, 20. 1. May fix appeal bond, on refusal of the county judge to do so. See Bonds. 2. ' ' Has, by the constitution, ' appellant jurisdiction from all inferior courts and tribunals, and a supervisory control over the same' ". — State exrel Tallmadge v. FUnt, 19 W. 621, 623. 3. "It is very clear to us that the adjudication of the county court upon this claim (for balance on land contract), is a bar to this action" thereon in the circuit court. See Claims, — Gale v. fiest, 20 W. 44, 47. 4. ' 'It is the policy of our law that a court of equity should not enter- tain jurisdiction when a complete, adequate and full remedy can be obtained from the county court". —Batchelderv. Batchelder,2d'W. 452, 454. 5. "The jurisdiction conferred upon the county judge is concurrent with that of the circuit courts over" "appointing and removing guar- dians over the persons and estates of infants". —Glipsscott v. Warner, 20 W. 654, 656. 6. The license for the sale of real estate to pay debts, granted by the circuit court when requested by the county judge, because the latter "had been of counsel for some parties interested in the matter", being without statutory authority, "must be treated as an order made coram non judice, and void". — Morgans. Hammiett, 23 W., 30, 41. 7. The commencement and the pending of an action in the circuit court on the decease of a defendant, ' ' could not be properly considered, ' ' on the filing of a claim against the estate in the county court. See Claims. , —Jones v. Est. of Keep, 23 W. 45, 50. 8. "Has jurisdiction' lands. See Trusts. to enforce a trust created by a charge upon —Powers v. Powers, 28 W. 659, 662. CIRCUIT COURT 165 9. On application to^the circuit court, after sixty days, to allow an appeal from the county court, "counter affidavits" were properly refused, and it was intimated that such application might "be entirely ex parte". See also Appeal. —Groner v. Hield, 22 W. 200, 202. 10. An order of the circuit, court granting an appeal after sixty days> where the assignee of the sole heir made the application, but without mentioning the assignment in the petition as a reason, or then filing the same, but falsely alleging sole heirship in himself, was reversed, because i( of bad faith and laches by claiming as heir and failing to disclose the assignment", though the assignment was later filed before such order was actually entered and the order recites only leave for filing. — Downer, Admr. v. Howard, 47 W. 476, 478. 11. "Section 8 of article VII of the constitution provides that "'the circuit court shall have original jurisdiction in all matters, civil and criminal, within this state, not excepted in this constitution and not hereafter prohibited by. law, and appellant jurisdiction', etc." See also Probate Courts. 12. The jurisdiction as to claims in decedent's estates has been taken away from circuit court where "notice to creditors has been given in the county court, and it is necessary to plead the absence of such notice to establish a cause of action. See' Claims. Jurisdiction. —Lcmnon v. Eackett, 49 W. 261, 267. 13. In proper "matters 1 of legacy and trust", "the jurisdiction of the, circuit court is not taken away by that statute". See Concurrent Jurisdiction. — Catlin v. Wheeler, 49 W. 507, 522. 14. Creditors' action to recover assets may be had in circuit court, under proper conditions. See Creditors' Actions. — German Bank v. Leyser, 50 W. 258, 264. 15. The order of the circuit court refusing an appeal after sixty days, was reversed as "an abuse of discretion". See Appeal. "-Jamison v. Snyder,' 19 W. 286, 288. 16. In granting an appeal from the county court, the necessary facts seem to be absence of neglect of the applicant, and the requirements of justice. See Appeal. — Marsh v. Briesen, 84 "W., 618, 619. 17. The circuit court; properly took jurisdiction to prevent dissipation of a trust, fund income. See Concurrent Jurisdiction. — Lambertmi v. Pereles, 87 W., 449, 456. 18. Jurisdiction of an equitable claim not filed in the county court. See Concurrent Jurisdiction. — Gianella v. Bigelow, 96 W., 185. 166 PEOBATE AND GENERAL LAW, CODIFIED 19. As to the circuit court's powers, as to custody and guardianship of a child. See Custody and Commitment. — In re Stittgen, 110 W., 625, 628. 20. "On an appeal from an order or judgment admitting or refusing to admits, will to probate, the circuit court proceeded as a court of equity. Bryant v. Pierce, 95 W., 338". 21. "In equity cases the mere absence of findings of fact does not, of itself, necessitate a reversal,- if the evidence supports the judgment. (Cases) ". —Flood v. Kermn, 113 W., 673, 678. CITATION. See Discovery.' See Services. CLAIM FOB SERVICES. CLAIMS. See also Actions Against Extr. or Admr. Amendment., Concur- rent Jurisdiction. Contingent Claim. Debts. Limitation of Actions. Pleadings. Services. Setoff. Accrual: at time of loan, 106. ' Arising after death, 108. Before death of either party, 109. Conditions of accrual, 107. . No person in existence, 108. Action: against heirs, 18, 39. Against executor, 27. Arising after death, 107., Claim filed, not paid, 61. Deceased bank stockholder, 82. No notice for claims, 26. Nonresident foreign judgment, 76. Of surviving partner, 70. Presumption of claim filed, 29, 121. Besiduary legatee bond, 89. Setoff: action by extr., 116. Specific realty and pers., 24. Suit on extr's. bond, 71, 73. Will probated only, 18. Administrator: personally liable, 2. After payment ordered, 71. • Duty to defend; expenses, 65. Premature disposal of assets, 126. Adverse examination, 64. Against ward's estate, 134. Ancillary administration, 76, 119. Appeal: in circuit court, 17. Part not appealed from, 20. Payment directed, 17. Trial de novo, 57. Barred: by disallowance, 4, 5. Extinguishes the claim, 81. Erroneous filing, 111. Failure to file, 25, 40, 52, 74, 99, 105. Failure to plead bar, 81. Fraud held not excuse, 100. Infants and married women, 111. Nonresident creditors, 74, 76. Bight and remedy also, 41, 42, 74. Claims: what are, 48. After decedent's death, 49. Irregular filing as claim, 131, 132. Revoked admn. expenses, 88. Commencement of actibn, 3, 64. Limitation statute, 11, 16. Conditional allowance, 7. Contribution, joint claim, 36. Against deceased co-surety, 53. CLAIMS 167 County claims for insane, 124. Coverture defense, not apply, 113. Deceased stockholder's liability, 82. Against residuary legatee, 83. Dividends fraudulently pd., 85. Fraudulent stock sub., 84. Defective proceedings, 47. Erroneous filing, 112. Order and notice together, 62, 63. Deficiency; judgment, 59, 90. Of assets, how ascertained, 60. Premature legacy payment, 126. Disallowance, bar, 4. Method, in part, 10; ( Reason, immaterial, 5. Equitable claim : not filed, 46, 69. Agreement to apply profits, 45. County Court jurisdiction, 23. "Estate," creditor and person, 113. Evidence: of no claims, 30. ' Inherently improbable, 68. Exceptions, as to filing, 24, 25. Execution of instrument, 67. Common law proof, 67. Executor's claim, a debt, 128. ' Payment without filing, 129. Express trust claim, -56. Extending time: specific claim, 9. Abuse of discretion, 58. On facts alleged, only, 115. Verified petition; answer, 114. Foreign: disallowance, 66. Allowance; not filed, 76, 80. Fraudulent release of mort., 100, 101, 102. Funeral and Idst sickness, 130. Husband for wife's support, 117. Services for wife, 136. Different status, 136.. Inconsistent, defeating, 135. Infants and married women, 111. Interest: ten per cent, 33. Judgment, legal rate, 33. Irregular filing as claim, 131, 132. Allowance affirmed, 133. ' Joint and several claim, 13. Contribution to estate, 36. Discharge; of all, 35. Filing, a new remedy, 14. Payment by executor, 34, 37. Revivor of suit brought, 13. Judgment: on claim, 19, 31. Against Extr. after time exp., 123. Claim merged therein, 32, 33. Judgment— continued Ten per cent int. merged, 33. Jurisdiction: in probate, 50. Other courts,, limited, 51. Land contract claim, 5. Tender of deed, 6, 7. Limitation statute, 11. After decease, before filing, 12. Failure to plead statute, 81. Filed, but not acted on, 15. Filing stops running, 16. Non-claim applied rigorously, 75, 110. 'Sec. 3841 in circuit court, 86. Statute once running, 98, Suit pending at decease, 13, 14. Within year of letters issue, 12. Note, payable after decease, 103, 104. Not barred: mortgage agreement, 45. Deceased stockholder in bank, 82. Defective proceedings, 47. ! Judgment against executor, 123. Nonresident creditors, 74, 76, 78, 79, 118. Partition in county court, 54 Subordinate to claims, 55. Partnership' transaction, 28. After estate settled, 70. Payment: extinguishes, 1. Before time, without filing, 128> 129. Effect of order for, 71, 125. Notice of application, 72. Order for leave to' sue, 73. Premature fund disposal, 126. Proceed in county court, 22, 38. Policy to so confine, 50. Property of deceased persons, 21. Presumption: claim filed, 29. Facts otherwise; pleaded, 122. In action against heir; 121. Remedy; exclusive, 2, 77. Sale of realty for claims, 61. Before claims allowed, 127. Limited to three years, 61. Setoff, in an action, 43, 116. Right of filing exist,. 44. Specific realty or personalty, 24. Subrogation claim, 93, 94. Mortgage lien right, 95, 96, 97. Support, absolute right, 87. Title: claim contest, 8. Without administration, 91. Volunteer personal attentions^ 92. Wife's subrogation claim, 93. Mortgage lien right, 95, 96. ' 1, Claims paid by the administrator are extinguished and cannot be purchased by him. • ■ 'See Payment. —Gillett v. G&lett, 9 "W. 194, 197. 168 PROBATE AND GENERAL LAW, CODIFIED 2. The remedy in county court ' ' is exclusive in its character. ' ' Allow- ance "has all the force an'd effect of a judgment." There can be no further action on the claim in circuit court against the administrator and on failure to ' "pay according to the order he ' shall be personally liable." • —Price v. Dietrich, 12 W. 626, 627. ■> 3. "The presentation of the note to the county court for allowance was unquestionably the commencement of an action." —Boy&e v. Forte, 19 W. 199, 204. 4. "If the county court erroneously disallowed the claim because it considered that it had no jurisdiction in the matter, or for any other insufficient reason, * * so long as the decision stands unreversed, it concludes the parties," and such adjudication is a bar to action thereon in the circuit court. 5. "It is quite immaterial what reason the county court gave for its decision. The claim was the amount due upon the land contract, and this claim against the estate the county court had a most undoubted jurisdiction over, and could have allowed." 6. It was unnecessary to make "tender of a deed" before allowing such claim. 7. "If it had been necessary * to make and tender a deed before receiving the money," the county court had authority to direct "the amount to be paid on condition that a proper deed of conveyance was executed and tendered." — Qale v.. Best, 20 W. 44, 47. 8. The title in a contested, claim may be claimant vs.' "Estate of M. deceased." See Appeal. —McNight v. Estate of McNight, 20 W. 446, 447. 9. Where an order extending the time for filing claims ' ' only extended the time for the petitioner to present his claim," it Was held to be "merely an irregular or erroneous exercise of the power on the part of the county court, and did not go to the question of jurisdiction," and such order was sustained. ■ — Tredway v. Allen, 20 W. 475, 478. 10. "It is more strictly correct to" disallow a claim in part, than to say payments "were allowed," in a judgment on claims. , —Parry v. Wright, 20 W. 483, 485. 11. "The presentation of the note to the county court for allowance was inquestionably the commencement of an action within the meaning of" the statute of limitations. 12. A note not barred at the decease, but the six-year limitation hav- ing expired before filing in county court within the time there limited, is held not barred for allowance, being presented ' ' within one year after issuing letters of administration," under section 4234. —Boyce v. Foote, 19 W. 199, 204. CLAIMS 169 13. , "At common law, in case of a several contract, or one joint and several, if one of the parties die, the executor of the deceased might be sued at law in a separate action"; and while "on the decease of one of the several defendants thus liable in a pending action, such action cannot be revived as a joint action," yet there is "no objection to the revivor of the suit in such a case as against the representatives of the deceased party as a separate action. And we suppose the same might be done under our statute." 14. ."Where such action against joint defendants was pending in the circuit court, and one of them died, the plaintiffs in filing the claim' against his estate, "sought to avail themselves of a new remedy. So far as that proceeding was concerned, the statute of limitations was a complete defense. The pendency of the action in the circuit court could not properly be considered." Held, that the claim was properly dis- allowed as ' ' the period of limitation had run when the notes were pre- sented * for allowance." — -Jones v. Est. of Keep, 23 W. 45, 49. 15. A claim duly presented for allowance, but not acted upon for several years, "was sufficient to prevent the statute of limitations from running on it. ' ' 16. "By the presentation of the claim to the probate court at one of the days fixed to receive and examine claims, the bar of the statute was prevented from running upon it. It was equivalent to the commence- ment of an action upon the demand (19 W. 199; '23 "W. 45) and is attended with the same legal consequences so far as the statute of limita- tions is concerned. ' ' — Large v. Large, 29 W. 60, 64. 17. "Where a claimant to a "sum of money" in the hands of executors as assets, obtains judgment therefor. on appeal, on the ground that it is not a proper asset of such estate, and the same not being liable for debts, it was held that "the' circuit court may as well direct" the pay- ment thereof to the appellant "as to send the case back to the county court." See Jurisdiction. — Try on v. Famsworth, 30 W. 577, 583. 18. Action against the heirs may be brought by a credifor, where the will was probated but no further proceedings were had. See Heirs. —McGonigal, J. v. Colter, 32 "W. 614, 625. 19. A judgment concluding "for which amount judgment is now ren- dered in favor of the plaintiffs and against the defendant," is held "to be sufficiently formal. It amounted to an allowance of the claim against the estate. " —Lenz v. Brown, A'dmr., 41 W. 172, 177, 185. 20. An appeal from the allowance of a claim for money loaned, does not authorize the circuit court to adjudicate as to the disallowance for services as a distinct part of the claim not appealed from by the claim- ant. See Appeal. —Moerchen v. Stall, 48 W. 307. 170 PROBATE AND GENERAL LAW, CODIFIED 21; By the "provisions of our laws, the -property of a deceased person, except his real estate, and that to a limited extent, passes into the posses- sion of the executor or administrator, when one is appointed, and under the control of the county court of the proper county ; 22. And all persons having claims against such deceased person, which ought to be paid out of his estate, must proceed to have their claims allowed and paid through the instrumentality of the laws regulating the procedure in that court. 23. The fact that, the claim is one which can be enforced in a court of equity alone, is no reason for the proceeding in the circuit court. The county court has ample power to determine equitable as well as legal claims; 24. The only exceptions are those expressly mentioned in the statutes (actions as to specific real or personal property. Sec. 3845), and possibly actions to ascertain an equitable claim, and then enforce it as a lien upon the. specific personal property or real estate which may have come to the hands and possession of the executor or administrator as a part of the estate of the decedent." 25. Except as such specific property, "in all cases", under section 3844, "when a time is fixed in pursuance of the statute, within which claims may be presented, and notice of such limited time is given as prescribed by law, a party who fails to present his claim within the time so fixed is forever barred of any action against the executor or administrator ". . ' 26. Under Sec. 3845 "it would be necessary to allege that no time had been fixed by the proper court within which creditors might present their claims against the estate, or that no notice of such limitation had been ordered or given as required by law". ■27. And no notice to creditors being alleged, "and the subject matter of the action being within the exclusive jurisdiction of the county court Which granted the letters testamentary, the complaint states no cause of action against the executor, and consequently none against the widow and heirs who are joined as defendants with her, and against whom no relief is demanded." 28. The fact that the claim arises out of a partnership transaction on which deceased was to account for profits, etc., and though "it may be necessary that the court should find these matters as facts existing, in order to entitle the plaintiff to an accounting and judgment for the amount found due him thereon," this not being a preferred claim nor against specific property, the circuit court has no jurisdiction. See also Jurisdiction. (But, see explanation in Gianella v. Bigelow, 96 W. 185, under Concurrent Jurisdiction). —Lannon v. Hackett', 49 W. 261, 270. 29. Where "no objection was made either in the county or circuit court that" a claim "had not been filed within the six months fixed" by the order, "we must presume it was filed within that time". —Oakes v. Est. of Buckley, 49 W. 592, 600. CLAIMS 171 30. "Administration, with the proper notices, and no claims having been presented, would seem to constitute the only satisfactory evidence that there were no claims against the estate. German Bankv; Leyser, 50 W. 258" (See Creditors' Actions). — Murphy by Gdn. v. Hawrahan, 50 W. 485, 490. 31. "There is no question but that" the allowance of a claim "by the county court is to all intents and purposes, a judgment of record, ex- cepting that an execution cannot be issued thereon. 32. The claim, whether of account or note, is merged therein, and, so far as the estate is concerned, it is extinguished thereby, and that such allowance is a full, complete, and final adjudication thereof, as in cases in other courts having jurisdiction thereof". 33. Where a, joint and several note bearing interest at ten per cent, until paid, was allowed as a claim in the estate of a deceased maker, it is held "that such allowance was a judgment and bore only seven per cent, interest (the then legal rate), 34. And that its full payment and satisfaction by the executor of the estate of B. deceased, discharged this defendant (co-maker) from any further liability to the plaintiff on the note ". 35. "The full payment and satisfaction of a judgment for the whole debt against one of several persons jointly and severally liable for the same debt, operates as a discharge of all of them". 36. "As soon as that judgment was paid, the estate had the .only surviving right of action against this defendant, as ( a joint and several maker with the deceased, for contribution, and that right is also based upon the satisfaction of the entire claim of the plaintiff". 37. "When payment has been made byone jointly and severally liable on a note, he is entitled to the possession of the note in order to sue the others for contribution". — Jameson v. Barber, 56 W. 630, 633. 38. "A general creditor of the estate" of a deceased person; "can only enforce payment of her claim in the county court through the process of administration upon the estate of. the latter". , 39. "On the authority of.McGonigal y. Colter, 32 W. supra, probably" a creditor of the deceased, ' ' could maintain an action at law against the respondent, as sole heir, of " the deceased, "on proof of the facts re- quired by the statute (sec. 3277), without first administering her estate". < —Israel v. SUsbee, 57 W. 222, 231. 40. On failure to present claims in the county court, "and the time allowed by law for so presenting them having elapsed,, such claims were absolutely and forever barred, either as the basis of an action or a set-off. 41. Section 3844 did not merely affect the remedy; it extinguished the right. Brown v. Parker, 28 W. 21. 42. From thenceforth the defendant had no claim against the deceased ; no mutual claims existed between them". 172 PEOBATE AND GENERAL LAW, CODIFIED 43. While section 3847 gives ' ' an option to set off against the demand upon which the administratrix has brought suit", "instead of pre- senting it to the court", yet, "this plainly implies that the right of so presenting the claim sought to be set off must have existed when the action was commenced". (Approved in Rust v. Fitzhugh, 132 W. post.) 44. The general statutes of limitation as to bringing actions after death, sees. 4234 and 4260, are subject to "the specific provisions of" the chapter as to payment of debts, etc., and "both the right of action and set-off are taken away by sees. 3844 and 3845, and to that extent the general provisions referred are modified and limited". — Carpenter v. Murphey, 57 W. 541, 544. 45. Where a decedent had been in possession of realty under a mort- gage thereon held by him, and an agreement to apply the profits upon the note and mortgage, and failed to so apply them, the* right to have the profits so applied is not a claim which would be barred on failure to present it for allowance; 46. "For in equity, as well as by force of the agreement", such profits were ' ' to be applied in payment of the note and mortgage, and when it . should he thus applied it would extinguish so . much of the mortgage debt", and the defendants had no "claim against the estate" to be pre- sented. —Ford v. Smith, 60 W. 222, 227. 47. Where the order for notice, "and the notice itself, to creditors, were not made within the time prescribed in the statute, and notice was pub- lished but three weeks, it was held that such proceeding' did not bar a claim under see. 3844. — Gardner v. Est . 'of Callaghan, 61 W. 91, 96. 48. "The demands and claims spoken of "in see. 3838 to be received by the county court for adjustment, ' ' are only such as existed at the time of the death of decedent, or such as result from contracts entered into by decedent in his lifetime, ' 49. And not claims or liabilities incurred by the executor or adminis- trator in executing his trust, and arising after the death of the decedent. (Citations) ". See also Actions by Exte. oe Adme. 50. "It has been and is the clear policy of the law of this state to confine, as far as can be reasonably done, the settlement of all claims against the estates of deceased persons to the county courts, acting as courts of probate; 51. And the jurisdiction of all other courts", "is taken away, except in a few specified cases, whenever the proper county court, assumes juris- diction by taking the proper steps to do so. Sea Lannon v. Hackett, 49 W. supra; Carpenter v. Murphey, 57 W. supra". —McLaughlin v. Winner, 63 W. 120, 128. 52. "Every claim 'proper to be allowed', not exhibited 'within the time limited for that purpose '. is forever barred. Sec. 3844 ; Carpenter v. Murphey, supra"'. CLAIMS 173 53. As to recovery of contribution by co-surety on executor's bond against a deceased surety. See Contingent Claim. —Ernst v. Nau, 63 W. 134, 136. 54. Where on petition of one of two heirs, partition of real estate, the only estate of a deceased, is had in county court, such petitioner is not •estopped from afterward beginning! administration proceedings and having a claim allowed and paid though the other heir had conveyed his interest in the realty. 55. "It is sufficient to say that the partition and the conveyances are subordinate and subject to the settlement of the estate", "and the payment of claims against it". — Pierce v. Pierce, 64 W. 73, 75. 56. "The county court has full power to consider and allow" a claim arising out of an express trust, under the decision in Lannon v. Hackett, 49 W. .supra. — Bostwick,>Admr. v. Est. of Dickson, 65 W. 593, 594. 57. On appeal, the trial in circuit court is de novo, and recovery there is not limited by the sum allowed in county court. See Appeal. — York v. Orton, Admr. 65 W. 6, 8. 58. Where a .claim, on a foreign judgment was afterward declared void, it was held an abuse of discretion not to allow an extension within the time limit, to enable filing on the original debt. —Smith v. Grady, Extr., 68 W. 215, 220. 59. A judgment for deficiency obtained in a foreclosure action pend- ing at the time of decedent's decease, "stands upon the same footing as any other judgment recovered in an action pending against a dece- dent at the time of his death. It is plain, that the statute .(sec. 3846) intends it shall be paid with other allowed claims", in the county court, and have no preferential lien. — Bienig v. Hartmcm, Extr., 69 W. 28, 31. 60. To enable an administrator to proceed to recover realty, it is held he "can readily ascertain, by the inventory of the property and the claims presented, whether there will probably be a deficiency of assets in his hands or not", and that it is not necessary for the claims to be allowed "that the deficiency of assets should be ascertained". ; !'- — Andrew v. Hmdermcm, 71 W. 148, 150. 61. A claim having been duly filed and allowed in the county court, and the estate settled without payment thereof, and there being insuffi- cient personalty to pay debts, it is held that realty may be pursued in a suit against the heir under sections 3274, et al., and that sec. 3873a, only limits the power of the county court to "sell the real estate after three years from the death of the deceased". See also Lien. Real Estate. - — Fisk v. Jenewein, 75 W. 254, 257. 174 PKOBATE AND GENERAL LAW, CODIFIED 62. Where the order limiting the- time for claims to be presented failed "to 'appoint convenient times and places,' " for receiving and adjust- ing claims, but the failure is supplied by the notice signed 'by the court', at the same time, we must ' ' regard both papers or orders together as really constituting one order in law and hence effectual". 63. The case of Brill v. Est. > of Ide, 75 W., 113, is distinguished, the notice being "made by the 'county judge' instead of 'the county court'*" and the "soundness" of the decision, "especially in so far as it is there indicated that such appointment could only be effectual when actually incorporated in the order of limitation itself, ' ' is doubted and questioned. —Austin v. Savelmd's Est., 77 W. s 108, 112. 64. "The presentation of a claim" is the commencement of an action, "in effect, a civil action or suit at law", and adverse examination under sec. 4096, may be had therein. See Discovery. — Frawley v. Cosgrove, 83 W. 441, 443. 65. "By reason of his trust ownership", it was the duty of the administrator to preserve the estate, and" ' to defend the estate against claims which he honestly, or upon reasonable grounds, believed to be unjust, and these expenses should be reimbursed, even though the suit be lost, and certainly if the estate benefit by it'. Schouler, Extrs. 544; Amnion's, Appeal, 31 Pa. St. 311".' See also Liability. — Miller v. Tracy, 86 W. 330, 333. 66. Judgment of disallowance of a claim in Minnesota, is held con- clusive as to estate in Wisconsin. See Foreign Judgments. —Sanborn v. Perry, 86 W. 361, 365. 67. The execution of a written instrument (a due bill here), filed as a claim, must be "proved as required at common law. 1 Greenl. Ev., 557," and its execution under sec. 4192, will not be presumed, as it would be as "between living parties". — Campion v. Sckmnick, 93 W., Ill, 112. 68. A disallowance of claims is sustained, though "there is evidence on the part of' the claimant which is not specifically contradicted by any witness", such evidence being "inherently improbable and in- ; credible". ' — Daniels v. Smith, 95 W. 639. 69. As to equitable claim, hot filed in the county court, and estate held liable in circuit court, and judgment executed in county court. See Concurrent Jurisdiction. —Qtwmlla v.Bigelow, 96 W., 185. 70. Actions of surviving partner against heirs,' after estate settlement, and before partnership adjustment. Demurrer sustained. See Sur- viving Partner. —Blakely v. Smock, 96 W. 611, 613. , . i CLAIMS , 175 71. Where, under, see. 3853, the county court orders the payment of claims and finds sufficient assets in the executor's hands, and the time fixed having expired, then, under sec. 3856, the executor is personally liable therefor, and , on his bond, though there may be , insufficiency of assets, there having been no appeal from such order, — and on suit on the bond, under section 4014: with permission of the court, claimants are held entitled to recover; 72. "There is no requirement for the giving of notice of the applica- tion for the order , of judgment, any. more than for the i application for leave to sue under sec. 4014, and while it was proper to give such notice, it was not requisite to the jurisdiction of the court. Elwell v. Prescott, 38 W. 274 (See Bonds) ; Landon v. Comet, 62 Mich. 80", 73. "Demand for, payment" having, been: "alleged in the complaint' and not denied by answer, it stands" as admitted. - "Moreover, it is con- sidered that, the order for leave to bring the suit, until set aside or vacated on appeal or some proper proceedings, is conclusive on that, question".. So also, as to sufficiency of assets, "such judgment is conclusive for the purposes of this case ' '. See also Judgments. • —Roberts, Judge v. Weadack, 98 W. 400, 403. 74. Claims of resident creditors not presented under, "sec. 3844 are forever barred; not only is, the remedy cut off, but the right of, action: is extinguished. Carpenter v. Murphey, 57 W., supra ; Austin y, Save- land's Est., 77 W., supra," and "non-resident creditors are governed; by the same rule." . 75. .These 'statutes of non-claim' "are generally applied more rigor- ously than the general statutes of limitation. " , , ; ,;,, 76. In an action against the ,heir, of a non-resident claimant, whose claim had been duly allowed in a California domiciliary administration, but which, was not filed in, "Wisconsin ancillary , administration, he was held barred from recovery. — Winter v. Wmter,, 101 W., 494, 496. 77. "The remedy thus provided (by see. 3840) is the sole remedy for the collection of claims against an estate- in the courts of this state where, notice has been given of the time limit , for, thefiling of claims as therein provided. (Cases, supra,) j ; : .,,.] 78. It applies to non-residents; as well as residents. (Cases, supra),., 79. And that, and sec. 3844 extinguishing claims, so -far as enforce- ment thereof is concerned in the courts of this state,' not .filed as pro- vided by sec. 3840, admit of ■ no exception in f ayqr of non-residents. Winter v. Winter, 101 W. supra." 80. So held asito a judgment on a .claim properly allowed in Minne- sota, and failure to duly file here in county court, where collection was attempted after the time limit. , i . ■81. "The barof, the statute absolutely, extinguished the claim. It could not be waived by any failure , to plead the statute in the county ; court, or by any act on the part of the executor". (Rule 13, sec. 6, 176 PROBATE AND GENERAL LAW, CODIFIED of the old county court rules, repealed in 1892, eight years before this decision, is cited as authority for this ruling as to "failure to plead"; but sec. 3841, providing that ' ' no claim barred by the statute of limita- tions shall be allowed", nevertheless upholds the ruling. See Martin v. Est. of Martin, 108 W. 284, 289, under Services.) —Fields v. Estate of Mwndy, 106 W. 383, 386. 82. The statutory liability of a deceased stockholder in an insolvent bank, may be enforced in a creditor's action in circuit court, "instead of the presentation of claim in the county court against" the estate, 83. And where the estate has been distributed, likewise against the residuary legatee, and on the decease of such legatee against her per- ' sonal representative. Grianella v. Bigelow, 96 W., supra. 84. And a stock subscription liability where a balance on the stock was fraudulently paid by the corporation on unearned profits, is also properly enforced in such an action, without filing in county court. Morey v. Fish Bros. "W. Co., 108 W., 520. 85. But as to dividends fraudulently paid to the deceased stockholder, it is held that this ' ' demand in favor of the corporation was one provable in county court," and there being no allegation under sec. 3845 of no time having been fixed or notice given in county* court, and as ' ' the lia- bility to the corporation has been extinguished ", : by county court pro- ceedings, recovery cannot be had in such equitable action. Lannon v. Hackett, 49 W. supra; (other cases). 86. Whether failure to plead the statute of limitations under sec. 3841, ought to govern the action of the circuit court, when . it " takes jurisdic- tion to adjudicate claims against estates of decedents", is not determined. —Gager v. Paul, 111 W., 638, 646. 87. Where the intestate H. was entitled to ' ' support during his natural life" out of his deceased father's estate, before the division of such estate among the heirs, and claimant had furnished H. such support, the latter "had the absolute right to such support out of such estate, independently of any contract with any one authorized to represent the estate" of the father, and claimant is held entitled to recover out of the father's estate on his claim filed against the estate of H. y without a contract "with any one authorized to bind" the father's estate. —Wwflwrton v. Williams, 116 W., 557, 560. 88. Expenses of a revoked administration, held properly disallowed as not being a claim under sec. 3838. See Administration Expenses. —Brown v. McOee's Est., 117 W., 389, 392. 89. An action on a claim in circuit court against an executor who gave a residuary legatee bond, was held properly brought to recover out of non-exempt estate. See also Bond to Pay Debts, etc. —Pym v. Pym, 118 W., 662, 669. >! :■'''■■'! CLAIMS 177 90. Where no claim was filed, and the time for filing had expired, a deficiency judgment against an executor in a foreclosure of the mort- gage, is erroneous. See Mortgages. —Pereles v. Leiser, 119 W., 347, 352. 9L A claimant cannot recover as sole heir of his deceased parent, he not having received title through administration proceedings. See Title. i -r-MeKenney v: Mwvakan, 119 : W.,'651, 659. 92. A claim of a volunteer for necessary personal attentions to an in- competent ward, otherwise provided for by the guardian, held properly disallowed against the deceased ward's estate. See also Guardian and Ward. . ' ^Schrwmelc v. Shepeck, 120 W., 643, 644. 93. Where a wife, in 1870, "to prevent a foreclosure", "paid a mort- gage on the homestead of herself and husband, placed thereon by another before the title came to him", which mortgage "he assumed and agreed to pay", and 'after his death in 1902, she filed a claim for the sum against i his estate, — judgment therefor is reversed, and the claim dis- allowed; 94. On principles of subrogation, "the equitable assignment went no further than the mortgagor's interest in the property, the debt itself being merely kept alive so far as necessary to support the lien, not so as to constitute in the hands of the wife "any legal claim whatever". 95. "In any view of the law", "the only right respondent (the wife) acquired by the act of her having paid the debt of her husband secured upon the homestead was limited' to an enforcement of the mortgage lien as to ^ the mortgaged property, or its equivalent in a changed form into which it could be traced and identified". 96. "It would seem", "and the authorities so hold", "that the prin- ciples' of subrogation should apply" to this case, but whether "such pay- ment created" a legal claim, that can be allowed, generally, independent of the property lien in specie, — is not determined. ( 97. The twenty-year statute of limitation (sec. 4220), having com- menced to run before her payment in 1870, as "the mortgage had pre- viously matured", and having expired before his death in 1902, and as claimant "if she could recover at all, could only do so in, the right of the mortgagor to whom she made the payment", the claim was held barred,— 98. The statute having once commenced to run, and therefore con- tinuing after the payment, and the cause of action! not arising out of a transaction with the husband. See also Limitation of Actions. : ' — Charmley'v. Cimrmley, 125 W. 297, 303. 99j Failure to present a claim (note>iwithih the time limited, is, under sec. 3844, "a bar" "as effectual as a payment. It cuts off any remedy for its enforcement, and extinguishes the right of action on a claim which Zimmerman — 12 178 EEOBATE AND GENERAL LAW, CODIFIED might have been presented against , the estate. Eingartner v. Illinois S.,Co., 103 W. 373 (See Limitation op Actions)". 100. The fact that "the deceased was guilty of a fraud by wrongfully obtaining and recording" a release of the mortgage securing the note, does not enable recovery on such claim, as contingent or otherwise ; 101. But such release having been placed with a loan agent to be delivered on payment of the debt, and having been fraudulently obtained "and recorded without payment of the debt", and "contrary to the condition of the deposit", "it therefore never had any force or effect", "obtained no legal existence, 102. , And, the recording of ife is no more a protection to subsequent innocent purchasers for, value than .the recording of any paper that has never come into legal, existence". , Foreclosure judgment against the land sustained. — Franklin v. KfflHea, 126 W. 88, 94. 103. A claim on a promissory note 'payable after my demise, out of my estate.',, is held invalid. See Gift. 1Q4. "Being sued as administrator in a pure action at law" on such claim, "he cannot . be. held as an individual upon an entirely different cause of action in equity", or upon a trust relation. — Tyler v. SHU, 127 W. 379, 381. 105. Where a wife, about a year before her death in 1893, loaned her husband $850 payable on demand, and he 1 dying in 1901 without repay- ment, — a claim filed against his estate, after the time limited therein to file claims, by the administrator of the wife's estate appointed after the expiration, of such time, is held barred, by sees. 3840j 3844. 106. "Upon well-established principles of law, the cause of action to recover money loaned upon demand accrues at the time of the loan. (Many cases).. 107 r fA cause of. action accrues where there exists a claim capable of present enforcement, a suable party against whom it may be enforced^ and a party who has a present- right to enforce it'; Murphy v. Omaha (Neb.), .95. N. W. 680; (many cases) ". 108. "The decision in Stehn v. Hayssen, 124 W. 583 (see Surviving Partner)",- — "That. a cause of action which arises after death cannot accrue until there is some person in existence who can bring it", — "is strictly confined to causes of action which arise after death, and, 109. Therefore, has no application here where the cause of action accrued before the death of either" of the parties. ,110. ."Such statutes (sees. 3840, 3844) are known as 'statutes of non- claim', and are generally applied more rigorously: than the general statutes of limitation, and in the absence of a saving clause run against all persons. Winter v. Winter, 101 W. supra. 111. Such statutes have been held to bar married women, infants, and non-residents, where there is ,no saving clause in their favor. (Many citations)",. . i. CLAIMS 179 112. And the bar is held to apply here, though the time for filing expired pending an erroneous , filing and attempt at recovery by a guardian ad litem. See McKenney v. Minahan, 119 W. supra. 113. "The defense of coverture does not apply at all under this 'non- claim' statute", and "the estate" "was a creditor and person having a claim within the meaning of these statutes. (Cases) ". — Barry v. Mimhcm, 127 W. 570, 573. 114. Where the answer of the administrator "did not wholly '• destroy the probative force of the verified petition" for the extension of the time for filing claims, there being "good cause", alleged, 115. The county court may, in its discretion, make "its order extend- ing the time", on "the facts therein alleged",: though "the allegations iof the petition were not substantiated by proof" otherwise. — Seidevnann v. Karstaedt, 130 W., 117, 120. 116: While in an action by an executor, the defendant may interpose as a set-off, only a claim which would be "enforceable" as. a claim in the county court, yet he is not "required to plead affirmatively." See also Actions by Extr. & Admb. — Bust v. FitzJmgh, 132 W., 549, 554. 117. A husband cannot recover from his wife's estate, for her support, care and nursing, either on express or implied contract. > See .Marriage Contract. — By an v. D oakery, 134 W., 431, 434. H8; "This court has held that the provisions of sec. 3844, apply to non-resident as well as to resident creditors, ,,. • , , ,:,-.., '•''■ ' 119. And to property rights involved in an ancillary administration as well as to those in a domiciliary administration; at least so far as the courts of this state are concerned". Winter v. Winter, 101 W. supra; -(other cases). See also Ancillary Proceedings. 120. Where "the ancillary administration was closed and the property of the estate" "distributed by final order", it is held, in an action against his heir on a claim upon decedent's property, that, — 121. "In the absence of anything appearing in the complaint to the contrary it must be presumed that the time was limited for creditors to present their claims and notice duly given (Lannon v. Hackett, 49 W. supra)", 122. And that, in view of sec. 3838, requiring proceedings for claims, and faking away "the right to' bring an; action", unless, such qlajim proceeding and notice is given, "it should be made to appear in the com- plaint", showing that "facts exist taking. the case out of the general rule". (Cases). See also Contingent Claim. , —Davis v. Davis, 137 W., 640; 647. 123. A circuit court judgment against the executor, is held properly allowed by the county court, though claims have become barred. See Mortgages. — Pereles v. Leiser, 138 W., 401, 403. 180 PROBATE AND GENERAL LAW, CODIFIED 124. The county court primarily held to have jurisdiction of claims of the county for the support. of insane persons. See, Insane Persons. — Washington Co. v. Schrupp, 139 W. 219, 222. 125. Where an executor had sufficient "personal property" "far in excess of" all allowed claims^ and the time for filing had expired, it is held the county court properly entered an order requiring payment of the claims ' ' after due notice and reasonable opportunity for the executor to be heard", ■ . 126. Notwithstanding, "before the time for filing claims had expired " the executor had" paid to specific and residuary legatees all moneys in its hands in an amount far in excess of the claims", and "that certain real estate still remains undisposed of, but of problematical value". —CHizens Trust Co. v. Scheftels, 141 W., 307. 127. Whether the filing of claims and statement thereof as unpaid in the petition for sale of realty, sufficiently complies with sec. 3881, as to 'debts justly due and owing',— is undetermined. See also Sale op Realty. —Milwaukee Trust Co. v. Clark B. Co.; 146 W., 230, 236. 128. "A valid debt or claim which the executor had against the de- ceased and subsisting as such at the time of her death is clearly a debt or -claim against her estate, therefore comes within the provisions of the statute", sec. 3930a, as to payment without filing before time expired. 129. And "crediting upon the note", held by the executor as such against himself personally, "of the several items", "amounted to a pay- ment of these claims within the meaning of the statute". — Est. of Morgan, 152 W. 138, 142. 130. Where a widow, prior to administration, used estate assets in payment of funeral and last sickness expenses, and thereafter failed to duly file a claim therefor, the administrator could not recover from her. See Actions by Extr. or Admr. —Merrill v. Comstock, 154 W. 434, 443. 131. Where an administratrix, in properly continuing the business of the deceased, incurred an indebtedness for a bill of goods, and a claim therefore was filed and allowed against the estate, 132. While "this claim was not properly filed against the estate (cases) " and was one against the administratrix, yet as such allowance "was a mere irregularity", and "all parties interested" were duly represented; the estate solvent, and no one prejudiced, it is held, — 133. "The error has not affected the substantial right of any party and the judgment must be affirmed. Sec. 3072m ; Crawley v. Am. Soc, 153 W., 13 ' '. See also Rules op Practice. —C. W. Beffgs, S. & Co. v. Est. of Behrend, 156 W., 34, 35j. CODE, THE 181 t 134. As to claim against a ward's estate, bath before and after decease. See Guardian and Ward. . .... r .■ —Gardner v. Yowig's Est., 163 W. 241, 245. 135. .As to inconsistent claim of personalty* and claim for money invested therein, defeating recovery, and,' " ■ 136. As to the different status of a claim for a husband's services against the estate of his deceased wife. See Husband and Wife. Serv- ices. — Est. of SimOTCson, 164 W. 590, 594. CLERICAL ERRORS. See Mistake. CODE, THE. Abolish all distinctions, 3. Cross bills abolished, '5. Broad as old practice, 4. Enacted in 1856, 1. Change of form only, 2. father of our code, 8. Complete substitution, 6. Old bill of review, 7. 1. "The Code was enacted and became the law :! of this state as chapter 120, Laws of 1856. It professed to regulate the manner of conducting all civil actions and proceedings whatever". Dixon, C. J. —Buckstaff: v. Hcmville, 14 W. 77, 78. 2. The Code "has not enlarged the jurisdiction of equity, nor abridged that of the law". There has been change of form only. See Equity. ' —Deerg v. McCUntock,Zl W. 195, 203. 3. ' ' The framers of the Code clearly intended to abolish all distinc- tions between actions at law and suits in equity, to abolish the forms of all such actions, and to provide that, in this state,: there shall be but one form of action for the enforcement or protection iof, private rights and the redress or prevention of private wrongs, which, is denominated a civil action. Sec. 2600". , 4. "The Code is quite as broad as the old practice, so far as relates to parties plaintiff and defendant". . . -: 5. "The forms of pleading in all actions are prescribed by the Code, and that alone", and "cross bills, strictly so called, were done away with by the Code''. —Kollock.v. Scribner, 98 "W, 3,04, 112. 6. ' ' The prime idea that must be kept in mind is that the Code was intended to be a complete system in itself , and; a complete substitute for the old forms of actions and methods of practice. ,,,, ; >,..,-. 182 PROBATE AND GENERAL LAW, CODIFIED 7. There is absolutely no reason for claiming , that the old bill of review exists under our present system". So held. — Crowns v. Forest Land Co., 102 W. 97,. 100. 8. In a memorial address, concerning the late Chief Justice Cole, by Judge George C. Clementson,: incidental reference is made of— "Joseph T. Mills, the father of our Code of propedure and for twelve years judge of the Fifth circuit".— 119 W., p. XXXiy. CODICILS. See also Construction of Wills. Wills. Cut down positive gift, 8. Positive terms required, £ Evinces a desire, 5. Not effective on will, 7. Words precatory, 6. Not based on valid will, 2. Nuncupative codicil, 1. Two wills, as will and codicil, 3. 1. A nuncupative codicil though properly proven cannot be allowed. See Nuncupative Will. — Brook v. Chappell, 34 W. 405, 409. 2. As to an instrument of testamentary character admitted as a codicil, without being based upon a valid instrument as a will. See Execution of Wills. "• — Skinner v. American Bj Sooy., 92 W., 209, 212. 3. Two wills, admitted as will and codicil. See Probate of Wills. —Dicke v. Wagner, 95 W., 260, 263. 4. Where the will gave the widow and two sons, each one-third of the residue absolutely, and a "codicil of the testator declares: 'I * hereby further provide * that my son, E., buy out and pay off the others to the extent of their shares so that E.,, will be the owner of the home farm which I value at about $6000',"— it is held. • 5. That "the phraseology employed" "evinces a desire that E., buy out and purchase from the wife and other son the interest, in the farm devised to them. 6. This in effect renders the words precatory in their nature, and they are operative only as a recommendation by the testator to his devisees, but they leave compliance discretionary with the parties." 7. "The terms of the codicil, when considered in connection with the devises under" the will, "fail to cut down the gifts made" therein, and "the widow and the two sons" take "the farm in common and" each owns "one third thereof absolutely in fee." 8. "It is a well-recognized rule that language in a provision of a will is not to be so construed as to 1 cut down a gift made in positive and clear terms in a prior provision, COLLATERAL SECURITY 183 9. Unless it does so by the use of words definite in meaning and in positive terms expressive of such an intent". (Cases). —Moore v. Moore, 138 W., 602, 604. CO-EXECUTOR. See Executors and Administrators. COLLATERALLY. Conclusive, when, 3. Jurisdiction, 3, 4. Judgment not impeached, 1. Probate not ; avoided, 2. 1. The decree of a court having jurisdiction of the subject matter and of the parses cannot be impeached collaterally, or "treated as a nullity merely because it was made improvidently, or, in a manner not war- ranted by law, or the previous state of the case." —Tollman V. McCarty, 11 W. 401, 406, 2. The probate of a will cannot be avoided, collaterally . in a legal action on account of omission by mistake. See Probate , of Wills. Omitted Child. — Newman v. Waterman,,, 63 W. 612. 3. "The general rule is that when a court has jurisdiction," its judg- ment is conclusive as to collateral attack. See Judgments. . —Roberts v. Weadoak, .98 W. 400, 405. 4. "Upon collateral attack the question is not whether the judgment was obtained by. fraud, but whether it was rendered without jurisdic- tion". —Cody v. Cody, 98 W. 445, 452. COLLATERAL SECURITY. See also Marshalling Assets. ... ' '■■ :' -i :|; .<: Estate assets pledged, 7. Becover entire amount, 3. Executor's personal use, 7. Surplus, ,f or principal, ,4.,, Liability of estate, 9. > Trustee less power, 8. Executor 's powers', 8. ' Neglect and delay, 2. Pledgor and pledgee,- 5. Without defense notice, 6. Reasonable diligence, 1. 184 PROBATE AND GENERAL LAW, CODIFIED 1. "A creditor who holds notes or other obligations for the payment of money, assigned to him by his debtor as collateral security, is bound to use reasonable diligence to collect such collaterals when they fall due. 2. If he neglects to do so — if he unreasonably delays to take the necessary steps to enforce payment thereof at maturity, — and a loss results from such neglect and delay, he must bear the loss". —Charter. Oak L. Ins. Co. v. Smith, 43 W. 329, 331. 3. "The general rule is, that a plaintiff recovering on an instrument held as collateral is entitled to recover the entire amount. (Cases) . It is true that Dixon, C. J., throws some doubt on the rule in Kinney v. Kruse, 28 "W. 183 ; and there are cases elsewhere in conflict with it. But the .rule has been established in. this" 'court for twenty years, and still appears to be the proper one". 4. "If the holder of: the collateral; recover more than his principal debt, he recovers it for the use of his principal debtor. Plant's M. Co. v. Falvey, 20 W. 200." 5. "But there are exceptions to the rule. As between the pledgor and pledgee, when the securities pledged are the obligations of the pledgor, the pledgee can only recover his principal debt. Jesup v. Bank, 14 W. 331." . 6. " So where' the collateral is in the hands of a bona fide holder, with- out notice of a good defense against his assignor, the general and better rule appears to be, that the' pledgee can recover the amount of his prin- cipal debt only. (Cases)." "And this court holds this to be a proper exception to the general rule ' '. —Union Nat. Bank v. Roberts, 45 W. 373, 378. 7. Where an executor borrowed money on his personal note, assigning a note and mortgage of the estate as security therefor, the pledgee not knowing that the money was for the executor's "own personal use and not for the purposes of the estate' ', but it was represented to the pledgee, , "in effect, that the money was borrowed for, the purposes of the estate", and there were no facts to "put a reasonable man upon inquiry, or raise a suspicion", "the law is quite well settled to the effect that the pledge was valid. The principle is well expressed in the case of Smith v. Ayer, 101 U. S. 320, 326". (Other citations). 8. "The powers of an executor with regard to. the sale or pledge of assets are much broader than those of a trustee, because the executor takes title to the personal property and is presumed to have the right to transfer. Schouler Extrs. 350. 9. It does not -necessarily follow from the fact that the pledge was valid that the estate is liable for the loan, nor is that point decided in this case". , — Hemmy v. Hawkins, 102 W. 56, 60. COMMISSIONS OF BROKERS,! ETC. COMMISSION FOR DEPOSITION. See Depositions. 185 COMMISSIONS OF BROKERS, ETC. Abandonment, 60. Procuring cause, 62. Strategic purposes, 61. Acceptance, construed as, 35. Agent for both parties, 5, 9, 11, 49, 50. Assent of both principals, 10, 21, 51. Ignorance of other party, 22. Pay from each, 6. Procure interview, 7. Broker as purchaser, 8. \ ' Jointly interested, 65. No recovery, 65. Broker : denned, 24, 27. Custody or possession,* 2t) Payment for property, 28. Name of principal, 25. Conveyance to another party, 39; 40. Custom relied on, 15. i Evidence of purchaser, 52. "Exchange of properties, 13, 14. Exclusive agency, 34, 53, 58. Sale by principal, 59. Failure to disclose principal, 57. Palse representations, 63. As to other brokers, 63, 64. Favorable to broker, 32. 'Fixed price by 1 seller, 47. Pay from both parties, 50; Many agents, for sale, 54. Middleman, 57: . Other offers, ,56. , ' ;,• i Payment to one, 55., , Middleman merely, 23, 44, 50. Assurance of broker, 46. Failure to diselose principal, 57. Fixed his own price, 47, 48, 51. Take pay from bo£h, 45, 49. Money to be raised, 41.' Pecuniarily able, 43, 63. Principal/makes ! sale,' 59. • : ' ' Principal' reduces price, 3, 16, 18, 19. Procurement,: i of , broker, 3, 4, 16, 32, 63. Of interview only, 7. Produces party ready, 1, 12, 29, 30, 36, ' '" 38, 41. ; >.,•.<■ Purchase at lower price, 53. i Another agent sells, 53. Befusal of principal, 2, 12, 42,, , Bequirements stated, 33. Satisfactory deal, 44. Several brokers recover, 63. Signs for purchaser, 20. Special . contract, 17. , Title: failure of,' 31, 36. ' Bank held liable, 37.' Performance made impossible, 40. ■1. "A broker, employed to make a sale at a price satisfactory to the seller, is entitled to his commissions when he produces a party who makes the purchase. 1 And it is in general enough^ in such case, that the broker produces a party ready to make the purchase at a satisfactory-price; " 2. And the principal cannot relieve himself from liability- by capricious refusal to consummate the sale, or by a voluntary act of his own, dis- abling him from performance. 31 N. Y. 462; Kock v. Emmerling, 22 How. (U. S.) 69". ■' "' " ■■>■<■ ' '" -> : '•' 3. "And where the price or other terms of sale are fixed by theseller, in accordance with which the broker undertakes to produce a pur- chaser, yet if, upon procurement of the broker, a purchaser comes with whom the seller- negotiates, and thereupon voluntarily reduces the price of the thing to be' sold, or the quantity, or otherwise 'changes! the terms of sale as proposed to the broker, so that a sale is consummated, or terms or conditions offered which the party proposing to buy is ready and agrees to accept, then and in either such case the broker will be entitled 186 PROBATE AND GENERAL LAW, CODIFIED to his commissions at the rate specified in his agreement with his prin- cipal". 4. "The authorities cited show that wherever the sale is effected through the efforts of the broker, or through information derived from him, so that he may be said to have been the procuring cause of it, his services are regarded as highly meritorious and, beneficial, and the law leans to that construction which will best secure the payment of his com- missions, rather .than the contrary". 5. "A person cannot at the same time be both agent for the seller to make the sale, and purchaser of the property to be sold. The rela- tions are wholly incompatible with each other, and cannot be combined in the same person. , The law will not permit it. Assuming the character of purchaser, the person so acting necessarily abandons that of agent, and can claim nothing in the latter capacity in his negotiations with his former principal. Such is the undoubted general rule". 6. ' ' The general rule is,, that a person cannot be agent for both pur- chaser and seller, and earn a compensation from each. The reason of this rule is the same as that for the other, which, in general, forbids the agent or broker from becoming the purchaser". 7. ' ' But to this rule an exception arises whenever the reason fails. If the agency or office of the broker is merely to procure an interview between his two constituents or principals, who themselves negotiate and conclude the sale or exchange, the broker is entitled to his customary compensatiou from each". 8. ' ' These decisions tend very strongly to sanction the rule, that where the broker merely engages to find a purchaser at such price as may be agreed upon, if he presents himself as such purchaser, and the seller, with full knowledge of that fact, so receives and enters into negotia- tions with him, and a sale is consummated, the broker may recover his commissions. But the proof in such case should be clear, and the knowl- edge and intent of the seller satisfactorily established in the mind of the jury." Dixon, C. J. , i —Stewart v. Mather, 32 W. 344, 349. 9. "To this extent the cases are in accord, that the agent of one person cannot, without his knowledge and consent, act for the other party in the same transaction, where the interests of the opposite parties are adverse". —>Meyer v. Hanchett, 39 W. 419, 425. 10. On the former appeal "it was there in effect decided, that the plaintiffs could not act as the agents of the seller and purchaser without the knowledge and assent of both principals that they might undertake such neutral agency and receive commissions for their services. 11. The law will not allow a person to assume such a double agency, or hold the inconsistent and repugnant relations which it imposes, cer- tainly not without the full consent of both parties freely given". —Meyer v. Hcmchett, 43 W. 246, 249. COMMISSIONS OF BROKERS, ETC. 187 12. ' ' The rule of law, as laid down by this court, applicable to this class of cases is", as stated in Stewart v. Mather, supra (quoting pars. 1 and 2 above). 13. This, was an action for commissions according to contract, ap- parently on quantum meruit, where there was evidence that an exchange was agreed upon, but the defendants ' ' appear afterwards to have refused to exchange, of their mere will, without reason assigned", and there being a non-suit, it was held the matter should have been submitted to the jury. ■ > 14. "If the respondents consented to an N exchange of properties, instead of sale for money, it is difficult to understand why they should be heard to contend that such an exchange would not entitle the appellants to compensation". ■ — Delaplaine v: Twnley, 44 W. 31, 41. V ' 15. Where proof of custom of a percentage was relied on and failed, nominal damages can only be recovered, 1 and not upon a quantum meruit. See Usage. — Hintmi v. ColemaM,] 45 W. 165, 170. 16. " The proposition of law laid down by the chief justice", in Stewart ' v. Mather, -32, supra, (par. 3, above), "is doubtless sound 'when applied to the facts and agreement he was considering", that being in "an action on a quantum meruit". 17. "But here the defendant claims that there was a special contract by which the plaintiff undertook to furnish him a purchaser who should be willing and ready to pay the full amount due on his securities, for which service he was to receive $500. If this was the contract it was incumbent upon the plaintiff to produce such a purchaser, or he was not entitled to recover the stipulated compensation. 18. If the plaintiff produced such a purchaser, and the defendant, knowing that fact, went and made a sale at a less price, this, doubtless, 1 wOuld amount to a waiver". 19. But it is held, in effect, that as the purchaser produced would not pay the stipulated price, but did pay a less price to the vendor, the broker is not entitled to a commission thereon under his special contract. < — McArthur V. Slauson, 5B W. 41,' 44. 20. Where "the price was fixed by the defendant (vendor),' and the plaintiff procured the purchaser' T., to accept these terms", and T. asked the agent to "sign his name to the contract in his absence, which he did in the presence of the defendant, after T. had personally accepted the terms proposed, after inspection of the land", held, that the agent was entitled to his commission from the vendor. t." 21. "If the contract to employ and pay a compensation by either party is made with the knowledge and assent of the agent's 1 employment by the other party in the same transaction, of course he cannot complain, and , should be held to pay the compensation agreed upon- 183 PROBATE AND GENERAL LAW, CODIFIED 22. But when otherwise' it is a fraud upon the party, and he is exempt from liability to the agent". — Barry v. Schmidt, 57 W. 172, 174. 23. One who "acted as a middleman merely", and not as agent for either party, the parties making their own agreement, as to an exchange of land, is held.to recover commissions from both parties. (Cases, supra). —Orion v. Scafield, 61 W. 382, 384. 24. "A broker is an agent, employed to make bargains and contracts between other persons, in matters of trade, commerce, or navigation, for, a compensation commonly, called brokerage. 25. He is not authorized to buy or to sell property in his own name, but only in the name of his principal. 26. He is not intrusted with the custody or possession of the property bought or ,spld, and 1 consequently has no special property or lien upon it. 27. He is strictly, therefore, a middle-man, or intermediate negotiator between the parties.,, 28. Ordinarily he has no authority merely by virtue of his agency to receive payment for property sold by him. Story on Agency ; Price v. Wisconsin m! ; &,F. Ins. Co., 43 W. 276". See also Title. Factor. , —Edgerton v. Michels, 66 W. 124, 130. 29. "The plaintiffs produced the purchaser ready and willing to pur- chase on the terms fixed, , and the defendant revoked their authority to sell on those terms, and refused to carry out the sale as in Kelly v. Phelps, 57, W. 425. ' , 30. The plaintiffs performed their contract, and were as entitled to receive their compensation as the plaintiff in O'Connor v. Semple, 57 W. 243, or as the assignee of the middleman in Orton v. Scofield, 61 W. supra; (other cases).". So, held. Sep also Parol. —Magtil v. Stoddard, 70 W. 75, 79. 31. Where an, agent for the sale of lands agrees to pay a broker a commission, "if he would find a purchaser," he is liable for the com- mission where such purchaser is procured, though he then discovers that the ' ' land was not the property of his principal. ' ' (Approvingly cited in De' Wolf v, Wis. L. I. & C. Co., 141 W., post.) —Barthell v. Peter, 88 W., 316. 32. Where, by effort or information, a broker is the procuring cause of a sale, " 'the law leans to that construction of his contract with the vendor which will secure the payment of his commission, rather than to the contrary construction'. Stewart v. Mather, 32 W., supra; Orton v. Scofield, 61 W., supra ; McKenzie v. Lego, 98 W., 364. 33. In a late case it is said by Mr. Justice Marshall, speaking for the court: 'All that is required, to, entitle an agent to his commission for selling land, is employment, for a compensation, to make the sale, and COMMISSIONS OF BROKERS, ETC. 189 the production of a purchaser ready, able, and willing to take the property at the price named. ' Donahue v. Padden, 93 "W., 22 ". . ;-.,;>! —Bell v. Sienums & H. E. Co., 101 W., 320, 323. 34. A "so-called option" for four months, construed: as "a promise of exclusive agency during its period". 35. "The immediate performance of work by the plaintiffs (brokers) in pursuance of such employment being at once brought to the knowledge of the defendant (principal) was undoubtedly an acceptance, and created! mutuality to such contract. (Many cases)". ,36. A real-estate agent finding "a customer ready> able, and willing to pay" the amount, and being "employed to find a customer at a net price to the seller, earns the agreed commission whether sale is consum- mated or not, and although failure to make sale is due to the owner's inability to make good title. (Cases)". 37. A bank held liable for the act and mistake of the cashier, as to such attempted sale, the bank not in fact having title. See also Officers. ', • -, ^-Arnold v. Natl. Bank of W., 126 W. 362, 365. .■*!■.■ ■ • ; 38. "The plaintiff (broker) had- performed his part of the contract when he procured the purchaser. It then became the duty of the de- fendant to make the proper transfer. 39.. And whether the transfer was made direct from defendant to the purchaser, or through mesne conveyances from the defendant, was wholly immaterial." 1 40. ' ' The defendant could not escape liability for the payment, of commission by transferring the property to another or by putting it out of its power to perform its part of the contract. (Many cases)." ! -De Wolf v. Wis.L. I. & G. Co., 141 W., 239, 242. 41. ' ' If the puchaser has his arrangement made so that the money will be forthcoming at the moment the deed is passed to him, no reason is perceived why he may not truly be said to be ready, able, and willing to complete the deal, although a part of the money comes from one who at the same moment receives a mortgage, of the newly purchased prem- ises." ' ;■'' 42. Where "his principal refuses to carry out" the deal, the broker "is simply required to show that he procured a purchaser who was ready, willing and pecuniarily able within the time fixed to take and pay for the property, (citation). 43. 'Pecuniarily able', in this connection, must of course have a reason- able construction", and means "that he is able to command the neces- sary money". — McCabe v. Jones, 141 W., 540, .542. 44. "Where a broker is employed- to find a purchaser 'for the sale of property]' 'provided a satisfactory, deal caii' be made by' a certain date, he "was employed as a mere middleman", and is entitled to recover his 190 PROBATE. AND GENERAL LAW, CODIFIED commission, and it is immaterial "regarding his having taken pay from" the purchaser also. 45. "A middleman, employed by a party to merely find a purchaser satisfactory to his employer, may produce another by whom he is also employed and properly take pay from both, if such purchaser proves satisfactory to such person". ' 46. And it is immaterial that the broker ' ' added his assurance to that of the proposed buyer, in order to make him a satisfactory purchaser", there being no fraud. — KUpmski v. Bishop, 143 W. 390, 392. 47. ''The defendant had fixed his own price at $2,000 per acre, and the only duty which plaintiff (broker) owed defendant was to produce a purchaser able, ready, and willing to pay $2,000 per acre. 48. When he had done this he had performed his contract with defend- : ant, and was entitled to his commission regardless of any contract which he had with the purchaser. Kilpinski v. Bishop, 143 W. supra ; Donahue v. Padden, 93 W: 20. 49'. Where the character of the employment of the agent is such that compensation from the purchaser cannot affect his fidelity in the per- formance of his duty to the seller, '■ ■ • • • 50. As for example where he is a mere middleman, or employed only to produce a purchaser at a fixed price, the rule that he cannot act for both parties does not apply. Tasse v. Kindt, 125 W. 631". Stewart v. Mather, 32 W. supra. ' 51. Broker held entitled to recover from the seller, though he did not inform the seller that he had an agreement to receive commission from the purchaser. — Tasse v. Kindt, 145 W. 115, 119. 52. "We see no .objection to permitting a party who has made an offer for property to testify that he was able to pay for it" ; and on this testimony alone, and that he was ready and willing, recovery was sus- tained for broker's commission. — Ahearn v. Bomgesser, 151 W., 194, 197. 53. Where ' ' the agent undertook to sell the property at a stated price", he "did not fulfill such a contract" by furnishing a purchaser at a lower price, and, not being an exclusive agent, he is held not entitled to a commission, where the owner later sells to such purchaser at a lower pricey in good faith, through another agent. McArthur v. Slauson, 53 W. supra; (other cases). 54. "Defendant (owner) might place his property in the hands of as many agents or brokers as he saw fit, so long as no exclusive agency was given. 55. When one of them produced a purchaser he was at liberty to deal with him and to pay the agreed commission in case of a sale, 56. Without ascertaining whether any other agent or broker had .'. 'r •> COMMITMENT -".-•■..■ 191 offered the property to such customer, the owner being ignorant of such an offer having been made. 57. Even if the contract should be construed as one to bring buyer and seller together at a' price satisfactory to the seller, there could be no recovery, because the agent never disclosed the name of his customer to his principal", —Terry v. Bartlett, 153 W. 208, 212. 58. "If the owner of property appoints another his exclusive agent/to negotiate for sale of a particular piece of property", 59. He does not "thereby disable himself from selling it to a third person, with whom such other has no connection, free from any claim for compensation by such other". Ingold v. Symonds, 125 la. 82; (other cases). — Greene v. American M. Co., 153 W. 216, 221. 60. ' ' Abandonment of negotiations is one thing, abandonment of the purpose to buy or sell another". 61. Where "the first negotiations" between the principals "had been abandoned and broken off, whether with intent to. give up the idea of buying and selling or for strategic purposes", '•■> 62. And "the plaintiff's (broker's) efforts were the procuring cause of the sale which was afterward consummated upon terms better for the seller than those ' theretofore offered by the purchaser", he was held entitled to commissions. —Meldrum v. Southwick-S'ellers L. Co., 157 W. 367, 375. 63. Where each of two brokers with ' ' several contracts ' ', in different actions "satisfied the court that, they had obtained. M. as a purchaser ready, willing, and pecuniarily able to purchase at a price , agreeable to plaintiff", "this gave them (each) a right to a commission as against plaintiff" (McCabe v. Jones, 141 W." supra), though he paid another, R r , full commission on false representation "that R. alone was instru- mental in procuring the sale to M.". 64. It is held that palintiff, for "expense and damage" in defending suits against such two brokers, can recover of R., but hot "tbe' amounts paid tp satisfy those judgments". ' > 65. R. having been in fact "jointly interested in the purchase" with M., it is held plaintiff can recover the commission paid him. ' ' The law refuses to give such undisclosed' purchaser any right to commission. Stewart v. Mather, 32 W. supra; Tasse v. Kindt, 125 W. 631, 633". —Sterling E. & C. Co. v. Miller, 164 W. 192,. 195. COMMITMENT. i See Custody and Commitment. 192 PROBATE AND; GENERAL LAW, CODIFIED COMMON LAW. Abrogating common law, 20. , Infants ' rights personal, 9. Not by implication, ,20, 38. Interest recovery, 3Q. , Action in actionable form, 20a. • Unliquidated demands, 30. Agent's testimony, 37. Jurisdiction presumption, 16. Arbitration, 4. Married woman; rights, 8.1' Beginning period, 12, 22. Act void, not voidable, 33. Eegulation period, 24. Earnings of, 10.. Champerty and maintenance, 17. Party's testimony, 37. Constitutional provision, 40. Presumption : stale claim, 2. Construction of pleadings, 28. Residence within' state, 3. '" ' Covenant for enjoyment, 27,.. Probate court: offspring, 1. Deed without witnesses,, 26. , ,.,| Proceedings outside of, 35. Discontinuance right, 29. , Property in common, 18. Domestic animals, 32.' Severance of same, 19. Herbiverous, 43. Real estate descent, 15. Election for insane, 36. Rent paid in advance,' 6; Entirety estates, 7. Setoff,, ; statutory, 5. Exists in the states, 11. • Summary manner, 34. Constitutional provision, 40. TJsages validity, 21. Fundamental idea, 23. Vacafing judgment, 13. Revolution, dividing line, 12, 22, 24. Variable: in places, 39. Wisconsin, when, 12. As a system, not, 41. . Fundamental idea, 23. ■ Conditions ehange, 42. , Husband and wife testifying, 14. Different times, 38. 1. "Probate courts are only, in a qualified sense, the mere creatures of the statute. They are as truly as any other judicial tribunals, the offspring of the common law. ' ' —Brwnson, v. Burnett, 2 Pin. 185, 189. " 2. At common law, twenty year stale claims are presumed to be paid, and the rule is still in force. See Presumption. 3. Twenty years residence within the state is not necessary to enforce the common law presumption of payment. — Sanderson v. Olmsted, 2 Pjn. 224. 4. Arbitration and award may be had orally as at common law, not- withstanding the statutory provisions. — Winnev. Elderhin, 2 Pin. 248. 5. "Set-off is given by statute, and did not exist at common law." See Set-Ofp! —Pierce v. Hoffmmi, 4 W. 277, 278. 6. Rent paid by tenant in advance cannot be recovered in case of destruction of the tenement by fire. See Rents and Profits, —Cross v. Button, 4 W. 468, 484. 7. Husband and wife took estates by entirety and the survivor took the whole. — Ketchum v. Walsworth, 5' "W.. 95. COMMON LAW , 193 8. "The legal existence of the wife was, for most purposes, merged in that of the husband, She was not allowed to hold property to her separate use ; and * she was denied the capacity to contract. ' ' —Conway v. Smith, 13 W. 125, 128. 9. The common law privilege for infants is .personal and for , their benefit only, their contracts on their side only being voidable. —Davies v. Turton, 13 W. 185. 10. At common law, and until the statute of 1872 "the earnings" of a married woman "are the absolute and unqualified property of the husband." —Elliott v. Bentiy, 17 W. 591, 595. 11. "There is perhaps no rule better established than that which holds that the common law, so far as applicable to our condition, exists in the states of this country, except those whose system was based upon the civil law or some other foreign code." 12. In Wisconsin "the existence * of the common law * musfsbe held to have had reference to that law as it existed, modified and amended by English statutes passed prior to the revolution. * The revolution itself is the dividing line which the reasoning of these cases would suggest for us. ' ' — Cobum v. Harvey, 18 W. 147, 148. 13. Court may vacate or correct a judgment at a subsequent term under common law rules. See Vacating Judgment. —Mtna Life Ins. Co. v. McCormick', 20 W '. 265. 14. The rule that husband and wife cannot testify against each other, is changed by statute only "so far as to permit them to testify when parties to actions. ' ' See Husband and Wipe. —Farrell v. Ledwell, 2l W. 182, 184. 15. "The real estate descended to the heir immediately", and the personal representative "had nothing whatever to do with the lands". See Eeal Estate. —Jones v. Billstein, 28 W. 221, 227. 16. There is no "presumption; in favor of jurisdiction", of a probate court at common law, "where its records fail to show it." See Juris- diction. —Blodgett v. Hitt, 29 W. 169, 176. 17. " The common law in regard to champerty and maintenance, with the qualifications established by the modern authorities, is in force in this state". — Allard v. Larmvrande, 29 W. 502, 505. 18. "The general rule of the common law is, that property held in common can only be divided by the consent of the owners, or by a pro- ceeding in a court of equity". Zimmerman — 13 194 PROBATE AND GENERAL LAW, CODIFIED 19. But, "the right of severance, amongst tenants in common, always existed at common law as to all property in its nature severable". —Newton v. Howe, 29 W: 531, 535. 20. ' ' The maxim of construction is f amiljar, that a statute to abrogate or change any rule or principle of the common law, must be clearly expressed so as to leave no doubt of the intention of the legislature. Repeals or changes by implication are not favored". 20a. At common law no action could be brought, "unless it existed ( in a perfectly actionable form at the time the suit was commenced". — Orion v. Noonan, 29 W. 541, 545. 21. "The rules of the common law respecting the validity of usages w and proof thereof "have been long established". —Lamb v. Klaus, 30 W. 94, 97. 22. " The rule fixing the period of our revolution as the' time from whieh l the English statutes and acts of parliament shall be considered as part of the common law of this country", "is a general one", subject to exceptions. 23. " The fundamental idea represented by the rule and upon which it is based is, that those statutes which were so enacted and which were suited to the condition and circumstances of our colonial ancestors, had been received, acted upon and ratified by them as part of the jurispru- dence and laws of the colonies before the separation from the mother country, and which, upon the separation, the colonists took with them as the still continuing law, except where subsequently repealed or modi- fied by positive legislative- enactment." 24. Statutes "enacted on the very eve of the revolution," as in 1774, when the colonists ' ' could not have become familiar with or have ratified or adopted" them, "would seem to" be excluded under this rule. —Spaulding v. G. & N. W. li. Co., 30 W. 110, 117. 26. "At common law a deed was valid without attesting witnesses". See Deed. —Gilbert v. Jess, 31 W. 110, 115. 27. "It is well settled at common law," that a covenant for quiet enjoyment is implied in every mutual contract for the leasing and demise of land, by whatever form of words the agreement is made ' '. —Eldred v. Leahy, 31 W. 546, 551. 28. "In the construction of pleadings, the maxim of the common law is, that everything shall be taken most strongly against the party plead- ing". This is "abrogated by the code". See Pleading. —Hazleton v. Union Bank, 32 W. 34, 42. COMMON LAW 195 " 29. "At the common law, a plaintiff had the absolute right to discon- tinue"; likewise in equity, but a cross bill was not carried: with the dismissal. See Discontinuance. ^-B&rtschy v. McLeod, 32 W. 205, 210. 30. At common law, "where no time of payment was fixed"; demand and refusal was necessary to recover interest; "not allowed on unliqui- dated demands". — Marsh v. Fraser, 37 W. 149, 152. 31. At common law one could not ' 'be held liable for the consequences of the vicious or mischievous act of his dog, unless he had previous knowledge of the vicious or misctfievous propensities of the animal". — SUnger v. Henn&mcm, 38 W. 504, 507. 32. But where it is shown that an "allegation as to breaking the close and killing the cow there was proven", then the plaintiff could "recover, though he did not snow that the defendant knew the dog was accustomed to bite and kill ddmestic animals".- ' •'' < —Ckmot v. Larson, 43 W. 536, 541. 33. At common law "a feme covert can do no act to bind herself", and her acts in general are void, not voidable. See Married Woman. —Petesch v. H'ambach, 48 W. 443, 449. 34. "To inquire in a summary manner", is "certainly not a mode of trial known to, tb.e, common law ' '. See Words and. Phrases. , '—Schafer by Gdn. v. Luke, 51 W. 669, 675. 35. Iri "special proceedings outside and in derogation of the common law practice of the courts", the "statute, as well as the proceedings under it, must be strictly construed. Freem. on Judg. 543 and cases cited"., .., ,-, . . - ,...., — Slotme^., Anderson, 57 W. 123, 131. 36. Election for insane person is made by "a court of equity". See Widow. —Van Steenwyck, Extr. v. Washburn, 59 W. 483, 504. 37. "At the common law the testimony of • a party ta the action was absolutely excluded", but the agent was competent even in transactions with deceased persons. See also Transactions with Deceased Persons. —Hanf v. N. W. Masonic Aid Assn., 76 W., 450, 453. 38. "The common law is not subject to change by mere implication. A statute to accomplish such a change 'must) be clear, unambiguous and peremptory'. (Citations)". See also Husb. & Wipe. —Richardson v. Stuesser, 125 W. 66, 72. 196 PROBATE AND GENERAL LAW, CODIFIED • 39. "That law being in a degree progressive, the term 'common law' is somewhat ambiguous, for the common law of the seventeenth century is not in all details that of the nineteenth, nor the common law of Eng- land in all details that of the United States, nor the common law of one state in all details that of another. , 40. This difference in detail is frequently all-important". "The con- stitution of this state (sec. 13, art. 14) provides that such parts of the common law as are now (1848) in force in the territory of Wisconsin not inconsistent with this constitution shall be and continue part of the law of this state until altered or suspended by the legislature. 4L Viewed objectively and at large as a system of deducing from litigated instances just, reasonable, and consistent rules of decision suitable to the genius of the people and to their political, social, and economic conditions, the common law never changes; 42. But with , reference to. the' rules so deduced we may say with Francis Bacon: ,'As waters do take tincture and taste from the soil through which they run, so do laws vary according to the region where they are planted though they proceed from the same fountains'. 43. A rule of the common law which has come down to us practically unchanged made it the duty of every man to keep his cattle (herbiverous domestic animals) within the limits of his own possession". Rule as modified by statute and cases considered. Timlin, J. —Metropolitan C. I. Co. v. Clark, 145 W. 181, 182. COMMUNICATIONS WITH DECEASED PERSONS. 4 See Transactions with Deceased Persons. COMPENSATION OF ADMINISTRATOR, EXECUTOR, GUARDIAN AND TRUSTEE. See also Administration Expenses. Costs and Fees. Additional counsel, 24, 25, 26, 27. Administrator as trustee, 61. Attorney as administrator, 29. Discretionary power, 32. Extraordinary services, 31. Legal services, outside duty, 30. Contract for definite sum, 22. Ordinary situation, 23. Situation changed, 22. Trustees not by contract, 54. Costs and fees, rules, 15. Evidence, not bound by, 5, 58. Executor: entitled to, 1. Executor and as trustee, 57. Not his partner, 2. Extraordinary services, 3. Court rule effect, 8, 32. Court's view, is test, 6. Experts not binding, 5. Itemized, should be, 4, 32. Legal services are, 3.1. Guardian ad litem: Allowance before services, 37. Additional counsel, 24, 38. COMPENSATION OF ADMINISTRATOR, ETC. 197 Guardian ad litem— continued Guardian ad literal-continued Leave to employ, 26., , Proof and nbtice required, .48. > , , , Seasonably necessary, 27. Public officer, 19 f ,20, 59. Without court order, 25. Rate of compensation, 44, 60. Consent immaterial, 46. Realty income, corpus, 13. Contract for definite sum, 22. Reasonableness, 9. i, Changed situation, 22. Reasonable sum, 64. Court has the power, 28. Reduced on appeal, 38, 39. Days in court, $16.50, 60. Statute not mandatory,, 41, 42. Out of court, $8.75, 60. Unsuccessful contest, 40. ' Duty of Court, 10'. Without compensation, 21. Enforce payment, 11. Maladministration, 33. Executor's Attorney's work, 51. Trustee: of implied trust, 16. Fixed by proceedings, court, 47. Breach of trust, 16. Foreclosure and sale, 14. Cestui que' trustent, 52. In lower court, 63. Discretion of the court, 54. In supreme court, 62. Executor also as trustee, 57. Legislative authority, 40. Proportionate division, 57. Lien on ward's title, 12, 14. Income ,and corpus, 50. Not liable for costs, 49. May be' direct to attorneys, 53. Official emoluments, 17, 18, 19, 21, 43, Not bound by the testimony, 58. 59. Not contract controlled, 54. Out of the estate, 7, 34. Official emoluments, 18, 19. Paid out of estate, 7, 39. Reasonable attorney 's, fees,, 53. Not so paid, 34, 36, 40. Supreme court may fix, 56. 1. The executor is entitled to compensation' though "he did not intend to" charge the same. ^ 2. A partner of the executor is not" entitled to share in the fees, though the executor ' ' intended to share it' with him ' '. —King V. Whiton, 15 W. 684, ,688. 3. On the facts and where "there has, been property found in four states, and looked after with diligence by the executor," extra compen- sation, under the statute, sec. 3929, in the sum of $3000, is upheld at that sum, though "all the witnesses" on the question fixed the value at double that sum or more. ■■■..! <■'. 4. It "would be the better practice" to itemize such claim, though neither the statute nor court rule seem to require it, and being "item- ized on the trial", such objection is not fatal, especially as "a bill of particulars" might have been moved for. 5. "We do not consider it absolutely binding on the court," to accept the full statements of the experts, the statute making the amount discretionary, being such "as the 'county court shall judge reason- able.' " . 6. "The court is fixing the value of the labor of its own officer in the transaction of the business. of the court," and the matter is not "on the same footing" as services between persons. " The. final test is, "What does the court in view of the evidence and its own knowledge of the facts, 'judge reasonable'." , 7. Where "none of this litigation was commenced by or on behalf ,of the minor, but he was a necessary party thereto," and defense was 198 PROBATE AND GENERAL LAW, CODIFIED necessary, the "attorney's fees and disbursements incurred by the guardian ad litem, ' ' in administration litigation and construction of the will, were held properly allowed out of the estate generally, "not as costs, but as a part of the expenses of settlement of the estate;" (In effect over-ruled, in Stephenson v. Norris, 128 W., post.) — Ford v. Ford, 88 W. 122, 130. 8. As to allowance for extraordinary services, not in compliance with the court rule. See Accounts of Extrs. and Admrs. —Schimz v. Schmz, 90 W., 236, 248. 9. Referring to the duties set forth in Tyson v. Tyson, 94 W. 225, (See Guardian ad Litem), the guardian ad litem "was entitled to a reasonable compensation for his services and his reasonable disburse- ments, 10. And it was the plain duty of the court, whose officer he was, to examine his claim for such compensation and disbursements, and to audit and allow it at the proper sum, 11. And also to use its power so far as reasonably necessary to enforce payment of such allowance out of any property of defendants (the wards) controlled by the court or protected by its decree, in accordance with settled principles of judicial administration". (Followed in Stephenson v. Norris, 128 W. post, as "payable only out of the infant's property",, and not out of the estate), 12. And the court has power "to make the same a lien upon the title of the" ward's personalty or realty, "and to make proper directions for the enforcement of such lien". 13. " It should evidently not go beyond control of the income of (realty) the property where that will be reasonably sufficient to satisfy the claim within a reasonable time", and otherwise "some portion of the property itself must uecessarily be sold" for the purpose. 14. "A lien upon the estate in remainder" is directed, and "unless paid within one year" with interest, "that the lien may be enforced by foreclosure and sale according to the rules and practice of the court and the statutes on the subject of foreclosure of mortgages". — Tyson v. Richardson, 103 W. 397, 400. 15. As to costs and counsel fees, authoritatively set forth. See Costs and Fees. — In re Donges's Est., 103 W. 497, 513. 16. As to a trustee of an implied trust, it is said: "Obviously, if a trustee be guilty of a breach of trust, he cannot charge his cestui que trust for services rendered in the course of committing the breach". —Jordan v. Est. of Warner, 107 W. 539, 558. 17. "We have pointed out in Richardson v> Tyson, 110 W., post, that guardians ad litem are public officers, and should be compensated in analogy to official emoluments, COMPENSATION OF ADMINISTEATOR, ETC. 199 18. The same is true, though perhaps in less degree, of receivers, trus- tees, and other like officers of courts. 19. They should be restrained to reasonable charges, measured not by the highest salary -which large establishments may pay, but by analogy to compensation which the law allows to public officers having similar duties". —Speiser v. Merchants' E. Bank, 110 W. 506, 513. 20. Referring to Tyson v. Tyson, 94 W. 225 (See Guardian ad Litem}, and Tyson v. Richardson, 103 "W. supra, as to his duties and rights, it is stated that a guardian ad litem "is a public officer, — a trusted attorney, aiding his own court as an official duty cast upon him by its'appoint- ment, a duty which no lawyer can with propriety decline, even though it may be compensated inadequately or not at all". ; 21. "It is a professional duty to aid the court as guardian ad lifem, either without compensation if the case requires it, or, when funds exist, for compensation to be measured by the standard of official emoluments, rather than by that of the highest prices demanded and paid between individuals free to contract as they will", — as for illustration, "com- parison should be made ' ', rather with the emoluments of the judge trying the case, than with private contracts. See also Speiser v. Mer- chants' E. Bank, 110 W. supra. " 22. Where a contract for a definite sum was made, and the situation changed "radically from that within the contemplation of both" par- ties, — : a large additional compensation was allowed. 23. The guardian ad litem himself is expected "to render the profes- sional services neecssary to any ordinary situation., 24. Hence the employment of additional counsel can only be justified by unusual or extraordinary circumstances. 25. If the guardian takes such step without an order of court, he assumes the peril that it may be disapproved, and he be left to bear the expense personally". 26. It is "the better practice" to apply for leave to employ counsel, and for the court, in advance, to "fix the amount" to be so expended; 27. "Nevertheless, if, after the fact, it appears that such" employ- ment "was reasonably necessary", "and such as the court would have authorized in advance", the expense therefore is allowable, without advance leave, on like considerations as suggested in ' ' taking appeal in Tyson v. Tyson, 94 W: 225,- (See Guardian ad Litem) ; "(cases) ".',,. 28. And the court has the power, and may exercise its discretion,, as to making allowance for guardian's services, and "for attorney's fees paid in the hearing on his account", which was contested, and such allowances are held proper ' ' when the officer acts fairly, makes full dis- closure, and does not make unreasonable demands for credit or allow- ance. (Cases) ". —Richardson v. Tyson, 110 W. 572, 578-5.86. 29. Where the administrator was an attorney and included in his account a claim for "extraordinary, services", mostly for legal work, 200 PROBATE AND GENERAL LAW, CODIFIED and "performed, generally, all the legal -services of settling up the estate", "none of such services, under the circumstances of this case, was within the ordinary duties of respondent's (the 'administrator's) office. 30. The performance of legal services was wholly outside thereof. If respondent had employed an attorney, as is usually done in such cases, and as the county court might properly have authorized him to do, the charges incident thereto" "would have amounted to quite a sum". • i • ■ ■' 31. Sec. 3929 authorizes the court to allow reasonable compensation "for all extraordinary services". "Legal services are extraordinary services within the meaning of such statute, and so are all other services involving special skill or learning. 2 Woer. Am. Law of Admn, 529". 32. While a claim for extra services "should be required to be pre- sented in such form that the questions involved can be passed upon in .detail", 1 ' -yet under the trial court's "broad discretionary power", its allowance here is approved though the "claim was not so presented in all respects.". See also Accounts of Extes. and Admrs. —Sloan v. Duffy, 117 W., 480, 485. 33. As to disallowance for maladministration and bad faith, and as to discretion so to do. See Accounts, op Extrs. & Admrs. , — Machine. Hoobs, 126 W. 216, 222. 34. Recognizing Ford v. Ford, 88 W. supra> as contra, approving the principles of In re Donges's Est., 103 W. supra, and following Tyson v. Richardson, 103 W. supra, — allowance of- guardian ad litem fees, in a will construction case, "out of the body of the estate" is reversed, though "the interests of the minors are problematical and distant", and "the minors have been brought into court by the execu- tors simply as a necessary incident", 1 35. And judgment is directed "that the sums allowed be paid out of and made a lien upon the respective interests in the estate to which said ■minors are entitled". 36. (Under subdi 2, see. 4041b, created subsequently by ch. 267, L. 1907, allowance to guardian ad litem, in probate, construction, and estate settlement, is allowable 'out of the body of the estate', ; if the infant has no available property'. Applied and discussed in Will of McNaughton, 138 W. post). See also Construction op Wills. —Stephenson v. Norris, 128 W. 242, 263. 37. Neither the amendment by ch. 267, L. 1907, of sec. 4041a (now subd. 2, sec. 4041b), "modifying the rule" of Stephenson v. Norris, 128 W., supra, nor other statutes, can be "construed as authorizing an allowance (to a guardian ad litem) before the services have been ren- dered or the expenditures have been made, as the court must determine the value of such services and. the necessity for such expenditures", and COMPENSATION OF ADMINISTRATOR, ETC. 201 the allowance must be made "by judgment, as provided in sec. 4041". Such, advance order, reversed. See also Appeal. —Frame v. Plumb, 135 "W., 24, 30. 38. Following cases supra, discussing the general principles, and citing among others,- In re Donges's Est., 103 W. Tyson v. Richardson, 103 W. and 110 W., and Stephenson v. Norris, 128 W., supra, in a will contest, where the circuit court allowed a guardian ad litem and asso- ciate counsel for the unsuccessful contestants the sum of $3;000 for services, besides disbursements, for eight days trial and ten to twenty days preparation therefor, there being about $40,000' involved, "out of the estate",— by virtue of Ch. 267, L. 1907 (subd. 2, sec. 4041b),— it is held, 39. That "$500 must cover the pecuniary reward 'for services in botb courts", circuit and supreme, besides ''necessary expenditures for liti- gation", "the whole to be paid out of the body of the estate", the in- fants having 'no available property' subject to 'be directed by the court'. 40. "The great weight of authority goes to the full 1 length of our adjudications that, without legislative authorization, no compensation whatever can be allowed to an unsuccessful guardian ad litem standing for an infant contestant of a will, or any party, similarly situated', pay- able out of the general fund or any part of it not belonging to the infant. (Many cases) ". 41. Under ch. 267, L. 1907 (subd. 2, sec. 4041b )V the "view would seem to be the correct one", that "the words 'may allow', etc.", should be construed not mandatory but according to "a sound legal discretion", and, 42. ""We adopt it both as regards power to determine whether com- pensation shall be allowed or not and the amount thereof". 43. ' ' The rule was firmly established here long before the law was passed that the basis should be that ordinarily paid to compensate for official services of a somewhat similar character. (Cases)". 44. (Cited and applied in Est. of ( Wells, 156 W. posit, a very large estate, where guardian ad litem fees of "$33 per day for days spent in court and $17.50 per day for days spent out of court", were held "too large by nearly or quite fifty per cent".) 45. "The gua'rdian ad litem was appointed, we must assume, because of his well-knpwn fitness for, the position, so he did not need any assist- ant" "to charge liberally because of his professional ability, for his services". < . , .-,,,, - 46. "We do not overlook the" "consent of the attorneys for the pro- ponent", but "the attorneys had, np, power 'whatever to stipulate away the trust fund, and their attitude in that, regard should not have .been recognized by the court". ,,, . , ,-,■ , M 47. "The law is very explicit, that the allowance in any instance is 'to be fixed by the court in which the proceedings or litigation is had'." 202 PROBATE AND GENERAL LAW, CODIFIED "So the trial court acted without jurisdiction in making, allowance for litigation occurring here". 48. :" Competent and definite proof" as to each item of "allowable expenditures" "should be required" and notice given to adverse parties, but taxation "according to the practice for taxing statutory costs" is not intended. !m49. " 'Necessary expenditures' of the guardian ad litem", "does not include a judgment for costs against the ward. A guardian ad litem is not liable for such a debt','. — Will of McNaughtan, 138 W. 179, 191. ., 50. In a controversy as to construction concerning funds of a trust estate, as between the life tenant and remaindermen, being "a bona fide dispute", the "judgment of the trial court directing that the compen- sation of the trustee be paid equally, out of the corpus and income must be sustained." See also Trust Funds. —Miller v. Payne, 150 W., 354, 384. 51. "If he did a large amount of the work which properly belonged to the attorneys for the executors or to the executors themselves, as probably was the case, the compensation due to him as guardian ad litem does not properly include it", p. 477. 52. "Where the trustees "were all adverse to such restoration" of a depleted trust fund, "the eestuis que trustent possessed the right to act in place of the trustee. " " The work performed was, in practical effect, for the trustee as well as for the beneficiaries. " 53. "Reasonable attorney's fees for services actually and rightfully rendered, doing that which is reasonably necessary in conserving a trust estate, are allowable to the, trustee as expenses, and may be allowed direct to the attorneys, chargeable to the trust fund. 54. They are always within the discretion of the court, — not eon- trolled by contract. , (Citation)". 55 "They are also to be fixed upon the basis of compensation for somewhat similar services in- official life, rather than the customary charges as between attorney and client". (Cases). 56. Within the rules mentioned it is proper for this court to fix the amount" "for counsel fees in this court and the trial court as well, since the record satisfactorily shows all the facts", — for such services for the eestuis que trustent. See also Administration Expenses. Guardian ad Litem. Probate op Wiuls. — Will of Rice, 150 W. 401, 487. 57. As to proportionate division of fees and expenses of executors act- ing also as trustees, charging to the corpus the regular administration services, and to the income the trustees' share, 58. And as to the court not being "bound by the testimony of wit- nesses". See Trust Funds. 59. "Guardians ad litem are in a true sense public officers, and not merely that but public officers of justice ' ', and the rule of Will of COMPROMISE 203 McNaughton, 138 W.,, and other cases, supra, that their compensation should be "measured more nearly by" that of "public officers having similar duties", is stated and followed. 60. In an estate involving millions, having numerous guardians ad litem, fees of "$33 per day for days spent in court and $17.50 per day for days spent out of court", are held "too large by' nearly or quite fifty per cent", and so accordingly reduced. —Est. of Wells, 156 W. 294, 314. 61. As to compensation of administrator with will annexed, acting without appointment as "trustee or agent for" the widow, a life bene- ficiary. See Trustees. — Est. of Hemphill, 157 W. 331, 340. 62. ' ' This court has power under sec. 4041b to make proper allowance to the guardian ad litem for services and disbursements in this court". 63. "Any allowance for services and disbursements in the county and circuit courts must be adjusted and allowed by such courts ' '. 64. For "two days at Madison", and "twenty-eight days" "time expended in getting out bill of exceptions, preparing record and briefs, and consideration of the case for this court", — '"we think $500 a reason- able allowance for services", 1 besides disbursements. Construction case. — Will of Allis, 163 W. 452, 465. COMPETENCY OP WITNESSES. See Evidence. Husband and "Wipe. Impeachment op Witnesses. Objections. Transactions with Deceased Persons. Witnesses. COMPOSITION. See Compromise. COMPROMISE. See also Accord and Satisfaction. Settlement. Complete bar, when, 3. Fraud negatived, 13. Composition > defined, ; 6. Payment part for whole, 7. Debtor and single creditor, 9. Not consideration, 8. Compromise, definition, 10. , Receipt in full, 4. Conditions afterward different, 13. Settlement, how, 12. Conditions for compromise, 1, 5. Signing, knowledge presumed, 15. Effective compromise, 2. ' Against signer's statement, 16. Favored in the law, 14. Uncertainty, facts, law, 11. 204 PROBATE AND GENERAL LAW, CODIFIED 1. "To constitute a valid compromise and adjustment" "which will not be opened or allowed to be disturbed by the, courts against the will of either party, it is in general only necessary that there should in good faith have existed a controversy between the parties upon some subject of: pecuniary value and interest to themselves, and with regard to which their rights or the claims respectively set up by them, or by one of them and denied by the other, may be said to have rested in some degree of doubt or uncertainty at the time, and thus to have been proper matters for amicable arrangement and pacification, or for judicial investigation in case no arrangement had been made"; 2 "To close the doors of dispute, therefore, and preclude all future investigation into the merits of the claims settled, these things only are reauisite; that the claims should have been in some doubt, and their validity controverted ; that they should have been asserted in good faith ; and that there should have been no fraud, undue advantage or mistake in the settlement". 3. With such understanding, "the settlement is a complete bar to such inquiry and examination 7. Per Dixon, C. J. —Kenheval v. Doty, 31 W. 476, 485. 4. A receipt in full for part payment is conclusive only "when the payment of the part is in compromise of the whole". See Settlement. —Catlin v. Wheeler, 49 W. 507, 524. 5. The law of compromise, per Kercheval v. Doty, 31 W. supra, quoted and followed. : — Zimmer v. Becker, 66 W. 527, 531. 6. "A composition is defined to be 'an agreement, made upon a suf- ficient consideration, between an insolvent or embarrassed debtor and his \Creditors, whereby the latter, for the sake of immediate payment, agreed to accept a dividend less than the whole amount of their claims, to be distributed pro rata in discharge and satisfaction of the whole.' Black. Law Diet. See 3 Am. & Eng. Ency. of Law, 385. 7. It is well settled," "that the payment of a part of an undisputed liquidated debt does not discharge the debt altogether, even where it is expressly received in satisfaction of it. Otto v. Klauber, 23 W., 471; (other cases.) - ■ , . 8. The reason of this rule is that the payment of a part of an admitted' debt which the debtor is bound to pay is no consideration for relin- quishing the balance of the debt, nor can it be a satisfaction to such creditor for the whole debt. 7 Ibjid. ; (citations.) 9. "It follows, that there can be no binding composition of such a debt by such a debtor and a single creditor." But, it is stated, that it may be binding with several creditors less than the whole, as well as with all. 10. "A compromise is defined to be : 'A settlement of difference by mutual concessions'. Century Diet. 'A mutual yielding of opposing COMPUTATIONS OF ESTATES, ETC. 205 claims ; the surrender of some right or claimed right in consideration of a like surrender of some counterclaim'. Ander Law Diet. 11. The dispute or opposing claims may arise from some uncertainty in regard to the facts or the law and the facts together. Black Law Diet. 12. A settlement may be made in the same way ; and, even where there is- no dispute or controversy, as by accounting together and striking a balance, or agreeing upon the amounts to be paid upon an unliquidated claim. Ibid." See also Accord and Satisfaction. — Continental Nat. Bank v. McGeoch, 92 W., 286, 310. 13. Where "the jury has on sufficient evidence negatived fraud in the transaction which resulted in the settlement", the latter is upheld as to an injury resulting twelve days before, though after "complications" "rendered the plaintiff's injury much more serious than" his physician "supposed it would prove when the settlement was made" at which he was present. . 14. "Compromise settlements are favored in the law when fairly made. 15. The signing of an instrument raises a strong presumption that its contents are understood, 16. And such presumption is not overcome by a mere statement of the signer that he did not understand the nature of the document which he signed. (Many cases) ". —Rayborn v. Galena I. W. Co., 159 W. 164, 169. COMPUTATIONS OF ESTATES, ETC. Complicated computations, 4. Present value of estates, 3. Mortality tables, 2. Wile's inchoate dower, 1. 1. The method of computing a wife's inchoate dower interest is indi- cated and citation given to formulas "by which the present value of an annuity can be calculated which is to commence at the death of one individual and terminate at the death of another". See Land Contract. —O'Malley v. Miller, 148 W. 393, 394. 2. While "mortality tables are not conclusive as to expectancy of life", "they are persuasive evidence of it, and unopposed to any .other evidence, should be controlling. This court has used them as a basis for compensation and so have others. 1 Joyce Dam. Sec. 661". Secord v. John Schroeder L. Co., 160 W. 1, 7. •{■-•■ '.' 3. (For the method of computing "the present; value of any estate, annuity or interest of beneficiary", together with the American Experi- ence Table of Mortality,— see Zimmerman's Probate Practice, p, 364, 206 PROBATE AND GENERAL LAW, CODIFIED 4. And for authority to submit more complicated computations to the commissioner of insurance for . ascertainment,— see the statute, sec. 3871m.) COMPUTATION OP TIME. ♦ See Time. CONCURRENT JURISDICTION. See also Circuit Court. Equity. Jurisdiction. Adequate and complete remedy, 13, 17, 22, 23. Action to enforee trust, 15. Executor of different estates, 39. Insolvent bank suit, 34. Items considered, 30. Phrase denned, 29. Sales of realty set aside, 16. Statutory rule as to, 42. Circuit Court: powers, 2, 4, 7, 9, 14. Cannot be taken away, 36. Decline, ordinarily, 35. General original juris., 21. Claims statutes, 36. Not barred in action, 37, 38. Not filed; time expired, 37. County court powers, 6. Plenary jurisdiction, 13. Settlement of estates, 14/ Trust execution, 14. Construe will, , estate pending, 46,-47. Pinal disposal of questions, 49,. Deceased stockholder, 33, 40. Fraudulent dividend's, 41., Discovery: in county court, 27. Action, in circuit, 28. Administration pending, 48. Economy of time, 43. Estates in different counties, 39. Foreign will trust, 19. Guardians: equity court, 2. Action for mismanagement, 4. Cite to account, 1. Extraordinary eases, only, 2. Guardian, but a trustee, 5. Neglected infant, 31. Ordinarily in probate, 3. Principle as in estates, 50. Insolvent bank suit, 32. Deceased stock holders, 33. Enforced only in equity, 34. Legacy payment action, 8. Circuit Court, 10. , County, not exclusive, 12. Nature of trusts, 9. Receipts in full, 8. With county court, 11. Partnership accounting, 45. Preferred claim, 51. Residuary soie legatee, 24. Action for personalty, 26. Personal estate, 25. Sales of realty set aside, 16, 17. Settlement of estates, 7, 14. Special circumstances, 35. Suspended jurisdiction, 22. Title to perspnalty directly, 44. Trust, after estate settled, 18. Prevent dissipation, 19. Trust enforcement, 15. Trust execution, 14. Waiver, failure to raise, 23. 1. While the probate court undoubtedly has power, "to cite the guardian to render an account of the property and estate of the ward in his hands", yet "its powers in that respect are not exclusive." 2. "Courts of equity still have jurisdiction over guardians, and may control them and compel them to account (2 Kent, 227; Willard's Eq. Jur. 621); but they should not exercise this jurisdiction except in ■>• CONCURRENT JURISDICTION 207 extraordinary cases, or when. , some special reasons are shown to exist why the matter should he withdrawn from the probate court". 3. "Where no such reasons exist, and it appears that the probate court can afford complete relief, there is no necessity -for the. circuit courts entertaining jurisdiction in such matters in the first instance". 4. For an accounting for mismanagement, and awarding damages for waste, brought in the circuit court, .it is said: "Perhaps; the probate court could settle and determine all such, questions, but the jurisdiction of the circuit court, as a court of equity, is' clear, and it, would, seem to be the most fit tribunal for the exercise of this authority "j 5. "The guardian is but'a trustee, and is amenable in that character for a violation of his trust to a court of equity, like other trustees, and can be removed and another appointed in his stead". —Willis v. Fox, 25 W. 646, 648. 6. Much of the jurisdiction of county cdurts "is necessarily concur- rent with that of courts of equity ' '. , See Jurisdiction. — Tvyonv. FarnswortU, 30 W. 577, 581. 7. The jurisdiction of a court of chancery is "concurrent, merely, in any matter pertaining to the settlement of estates of deceased persons." See Jurisdiction. — Brook v. Chappell, 34 W. 405, 412. 8. In a suit in circuit Court to recover full legacies, where receipts in full have been given for part thereof, it is said:, "When the rights of the parties have been adjudicated and determined: by the proper judg- ment in this case, the county court, sitting in probate, may proceed, , at .the instance of these plaintiffs or the executors, to execute such, judgment in the manner directed by the statute". > 9. "The jurisdiction of a' court of chancery of the- execution of trusts, and the payment of legacies which are in the nature of trusts, has been too long exercised to be now questioned ; 10. ■ And no court except one of plenary and general jurisdiction in equity, and governed by the established rules' and practice of such courts, can so well and So fully exercise it in such a case, to the end sought. ■'•" * i " >~ . 11. It has already been decided by this court that the county courts have jurisdiction in such matters concurrent with the circuit court, or court of chancery proper, by force of the statute; 12. But it will require the strongest', clearest and most unequivocal language of the statute to make such a jurisdiction of the county courts in probate exclusive, and no such language is found, in the present statute": 1 "This court has virtually < decided the question in Brook v. Chappell, 34 W. supra". — CattUn v. Wheeler, 49 W.; 507, 519. 13. While "the county courts under our statutes-have plenary juris- diction in all matters pertaining to the administration, settlement, and 208 PROBATE AND GENERAL LAW, CODIFIED distribution of estates of deceased persons," yet when "special facts are stated showing that a complete and adequate remedy cannot he had in the county court," "there a court of equity will take jurisdiction and grant the proper relief. 14. For, while it has been decided that the c6unty courts, under the statutes, have jurisdiction ordinarily in the' administration and settle- ment of estates and enforcing the due execution of trusts created by wills, still that jurisdiction is not exclusive, but concurrent with the cir- cuit court. Catlin v. Wheeler, 49 W., supra. 15. In this case the jurisdiction may be safely rested upon the ground that the action is to enforce a trust, and the power of the county court is inadequate to protect the rights of those interested. ' ' - 16. Where "the executor as trustee has made fraudulent sales of real estate, and it is sought to have these sales set aside and the contract and deeds mentioned declared void," it is held in effect that the county court would have no power "to set aside these sales if found fraudulent, and cancel the contract and conveyances," 17. And that in such ease involving real estate, the county court could not adjust the matter in the settlement of the final account by charging the executor ' ' with the proceeds or with the value of the real estate which he sold in violation of his trust. " —Hawiey V. Tesch, 72 W. 299, 304. 18. Where "the estate has been fully and finally settled in" the county court, and "nothing remains but for the trustees to execute the trust as directed by the will", "there is no longer any particular reason in this case why such jurisdiction should be confined to the county court ' '. 19. And the circuit court was justified "in taking jurisdiction" "to prevent the diversion or dissipation of the income of the trust fund, or control the direction of its payment". (Cases supra). — Lamberton v. Pereles, 87 W. 449, 456. 20. The circuit court "has full and plenary power" to administer a trust estate of a foreign 1 will duly filed in the register of deeds office, under sec. 2295. See Foreign Wills. — Wells Fargo & Co. v. Walsh, 88 W. 534, 538. 21. "It seems to be settled in this state that the circuit court, as a court of equity, has a general, original jurisdiction over matters arising in the administration of estates, concurrent with the county courts. (Pomeroy Eq. Jur., and cases supra). 22. Yet that jurisdiction is practically suspended to this extent: that the circuit court will decline to take jurisdiction over such matters unless such special facts appear as show that a complete and adequate remedy cannot be given by the county court. (Cases supra)". (Fol- lowed in Wisdom v. Wisdom, 155 W. 434, 437). 23. "So the circuit court should decline to take jurisdiction", though CONCURRENT JURISDICTION 209 "this question of jurisdiction has been waived by the defendant by omitting to raise it by answer or demurrer, 'unless it also appears" that the remedy in county court would be inadequate. 24. Where the residuary legatee is also executor, has qualified as such "but did nothing about the administration", it is held that such personal estate left in his hands at his decease is unadministered assets which "pass to the administrator de bonis non, to be administered by him," and for which he "has a cause of action against" third persons in possession thereof. 25. "When personal property is disposed of by a residuary legacy, it does not vest at once in the legatee, but in the executors, by operation of law, subject to distribution, as in case of intestacy. Melms v. Pfister, 59 W. 186". 26. In such action by the administrator de bonis non, it is the proper remedy to proceed in equity "to recover a fund, of the amount, form, and condition of which the plaintiff is ignorant, so that a. discovery is necessary", "and equity alone could furnish efficient relief". 27. "A proceeding in the nature of a discovery may be had in the county court, under section 3825. But if property is discovered, there is no remedy to enforce its delivery or restoration to the estate. Sad- dington's Estate v. Hewitt, 70 W. 240". 28. And as in such ease "another action must be brought for its recovery, in a court of general jurisdiction, either .at law or in equity," requiring circuity of proceeding, "clearly the remedy which the county court can afford is not equally practicable, efficient, and prompt as the remedy in a court of equity". 29. "By the phrase' 'adequate arid .complete remedy' is meant a remedy ' as practicable and efficient to the ends of justice and its prompt administration as the remedy in equity'. 30. When 'time, expense, and a multiplicity of suits will be saved by it, and the rights of all concerned will be settled in one litigation', a: court of equity has jurisdiction. Gullickson v. Madsen, 87 W. 19,; 1 Pomeroy Eq. Jur. 180, 243." —Meyer v. Gwthwaite, 92 W. 571, 573. 31. Guardian appointed by the circuit court, where the county judge had designated a custodian for a neglected infant. See Custody and Commitment. — In re Gdnsp. of Klein, 95 W., 246, 251. 32. In an action by a creditor of an insolvent bank, for himself and all other creditors, against the bank, and stockholders, including execu- tors of the estates of C. and S., deceased stockholders, to 'recover and to enforce the statutory personal liability against stockholders, it is held: 33. The liability of deceased stockholders "remained against their respective estates, the same as any other liability or' debt, to he enforced, through such personal representatives, by some court having adequate equity jurisdiction. To this end, no assignment of the : stock is neces- sary." Zimmerman — 14 210 PROBATE AND GENERAL LAW, CODIFIED 34. As this liability "can be enforced only in equity", and as "the bank and all its stockholders must be parties defendant ", " the jurisdic- tion of the circuit court in the present case may well be rested upon the inability of the county court to afford to the plaintiff any adequate remedy in the regular course of administration ; 35. And the circuit court will decline to take jurisdiction in matters arising in or relating to the administration of the estates of decedents, except where special circumstances show that a complete and adequate remedy cannot be given by the county court. Hawley v. Tesch., 72 W., supra; Meyer, v. Garth waite, 92 W., supra." 36. "The case of Lannon v. Hackett, 49 W., 261 (See Claims), must therefore be understood accordingly", and ; that "sees. 3844 and 3845 apply only within the legal competency of their jurisdiction". "The power of the legislature to take away the jurisdiction of the circuit court in legal or equitable actions is not absolute, but is subject to the condi- tion that a substantial remedy must be" provided. 37. As to the fact that no claim was filed in the county court, and the time for such filing has expired, it is said that a claimant is not ' ' bound to present his claim to a tribunal for allowance, which has no power to adjudicate it, or, failing to do so, that he shall be barred of his right". , 38. "And it is no objection to the jurisdiction that when the right of the plaintiff shall have been determined the judgment will have to be executed by the counjy court in probate, in the manner directed by the statute. Catlin v. Wheeler, 49 W., supra. ' ' —Gianella v. Bigelow, 96 W., 185, 193, 198. 39. Where the defendant was executor of two estates in different counties, "and the relief sought really requiring a settlement of appel- lant's (defendant's) accounts in both estates, that was sufficient jus- tification for the exercise of jurisdiction by the circuit court, to the end that the whole controversy might be settled in one suit in one court". Action to have property inventoried in one estate, adjudged as part of another estate. Meyer v. Garthwaite, 92 W. supra. — Burnham, v. Norton, 100 W. 8, 15. 40. As to liabilities of the estate of a deceased stockholder in a bank, and of his residuary legatee, and of such legatee's personal representa- tive, in equity for stock liability, and for fraudulent payments for the stock, without first proceeding in county court. 41. And as to fraudulent dividends not being so collectible in an equity action by creditors. See Claims. —Gaffer v. Paul, 111 W., 638, 646. 42. Chap 5, L. 1899, amending sec. 3845, allowing actions against executors, etc., when "the county court could not afford a remedy 'as adequate, complete, prompt or efficient as the circuit' ", "was mani- festly intended to put prior judicial rules on the subject into statute CONCURRENT JURISDICTION 211 law and furnish a definite legislative- guide in the administration of justice. In doing so the broadest possible view, so to speak, of the effect of the decisions of this court, was taken. 43. While "mere economy of time" is probably insufficient, yet it is held material, "by reason of peculiar circumstances", there having been delay of many years with various large property interests involved, authorizing jurisdiction in this action involving the validity of involved parts of a will, and estate interests of magnitude to be settled. —Becker v. Chester, 115 W., 90, 103. 44. As to a court of equity passing title to 'personalty in the hands of the administrator, directly to the heirs in a, suit by the latter. See Surviving Partners. — Bcnvell v. Howell, 122 W. 1, 9. 45. The circuit court has jurisdiction of a partnership accounting against a surviving partner. See Surviving Partner. —Stehn v. Eayssen, 124 W. 583, 587. 46. As to power of circuit court to construe will, notwithstanding estate pending in county court. See Construction op Wills. —Stephenson v. N orris, 128 W. 242, '253. 47. It is held, though the administration is pending, that "the fact that the question may arise in the county court on distribution is no objection to the determination of the question when presented in the circuit court for construction", — of a will in an original action there brought for that purpose.,, Miller v. Drane, 100 W., 1 (See Equity); (cases, supra) ". See also Construction of Wills. —Pabst v. Goodrich, 133 W., 43, 63. 48. In an action for discovery and accounting in circuit court, the rights of all the parties, should be determined, though administration is pending. See Discovery. —Eisentraut v. Cornelius, 134 W., 532, 538. 49. "In an action to construe a will the circuit court should, whenever possible under the issues made and presented, finally dispose of all ques- tions relating to the descent and distribution of the property." See also Vesting op Estates, etc. —Williams v. Williwms, 135 W. 60, 67. 50. "The principle" of Meyer v. Garth waite, 92 W., and other cases, supra, "is equally applicable to matters of guardianship, in which juris- diction has been extended to the county courts." See also Insane Persons. — Washington Go. v. Schrwpp, 139 W., 219, 222. 51. In a case "properly in the circuit court,, that court has jurisdic- tion to administer complete relief" where the county court could not, as to a preferred claim paid out of estate assets and not filed. See Actions by Extr. or Admr. -^-Merrill v. Comstock, 154 W. 434, 442. 212 PROBATE AND GENERAL LAW, CODIFIED CONDEMNATION. Benefits: to offset value, 1. Excess of laud taken, 2. Under different statutes, 22. When no damages, 24. Damages sustained, 23, 24. Depreciation, 5. Elements or items, 6. Liberal discretion, 7. Evidence in, 6, 11. Examination, 7. Liberal rule, 10. Expert testimony, 8. Value of other realty, 15, 16. Inducements of any kind, 19. Notice of time and place, 3. Not waived by demand, 4. Owner or occupant only, 25. Public good only, 17. Private considerations, 18. Hule of damages, 5., Value of land, 9. As between parties, 12. Other realty, 15, 16. Recitals in deeds, 11, 12, 13, 14. Verdict must contain, 23. View of premises, 8. Court's statement, 21. Use knowledge, 20. 1. "There exists no valid legal or constitutional objection" to con- demnation proceedings allowing the benefits of the land-owner, for the construction or widening of highways across his land, to be offset against the value of the land taken. 2. And the land-owner "could be charged for benefits over and above the value of the land taken, and taxed or required by law to pay for the same." (But, see Zwietuseh v. East. Mil., 161 W. post). —Holton v. Milwaukee, 31 W. 27, 40. 3. The constitutional provision (Sec. 2, Art. 11) that "no municipal corporation shall take private property for public use against the con- sent of the owner, without the necessity therefor being first established by the verdict of a jury", requires that the owner must have "notice of the time and place of the meeting of the jury to inquire into and deter- mine upon the necessity." 4. Such notice was not waived because claimant made a demand "for greater damages than were offered him by the trustees". — Seifert v. Brooks, 34 W. 443, 446. 5. "It is settled that the rule by which the damages to plaintiff's land adjoining the defendant's railway is to be determined, is the deprecia- tion of the market value of such lands caused by the" railway, "less any special benefits which may thereby accrue to the plaintiffs. 6. Also that witnesses may, after stating the amount of depreciation, testify as to the elements, or items which make up that amount", not "as the basis for assessment of damages, but only as aiding the jury to determine the weight they ought to give to the direct testimony of de- preciated value". 7. The court has a "liberal discretion in the matter of admitting or excluding such testimony", and "the party might, in this class of cases, test the value of the testimony of his witness by a sort of cross examina- tion". 8. Opinion as to "facts within the knowledge of the jury" obtained CONDEMNATION 213 from a view of the premises, "in respect to matters 'concerning which the jury could form an opinion as intelligently as could the witnesses", "are entirely outside the range of authorized ^expert testimony", 9. Objection to "competent witnesses to testify to the value of plain- tiff 's farm, and the depreciation in such value caused by the railroad, is not well taken ' '. —Neilson v. C. M. $ N. B. Co., 58 W. 516, 520. 10. "A very liberal rule of evidence prevails in this state in the investigation of values in condemnation proceedings. Great latitude is allowed in the examination of witnesses as to value, both on their direct and cross-examination; but there are limits to such examination". (Oases). 11. Recitals in deeds "of the consideration paid" "are nothing more than ex parte statements of the grantors and grantees that the consid- erations named were paid and received for the respective lots. 12. As between the parties thereto each of these conveyances would be evidence of the consideration paid and received, because it is an admission of the fact by all parties to it. 13. But it is not conclusive evidence. Either party may show that the true consideration was greater or less than that named in the deed". 14. "As to a stranger to the deed, however, such evidence is purely hearsay". —Seefeld v. C. M. & St. P. By. Co., 67 W. 96, 99. / 15. "To test the competency of the witness as an expert "/where he "gave an opinion, on his direct examination, of the value of the land condemned", he may, on cross examination be permitted to be asked, and to give, "his opinion, as to the value of other real estate in the same vicinity, without any showing that the same was similar in character and value to the condemned property." 16. As to the admissibility of such evidence ' ' on the direct examina- tion of an expert", "without proof that the other real estate concerning which he is interrogated is similar in character, location, and value to the land in question", it is said, "probably it is not. Washburn v. M. & L. W. Ry. Co., 59 W. 364". —Vniacke v. C. M. & St. P. By. Co., 67 "W. 108, 114. 17. "Highways are only, to be laid out when the public, good will thereby be promoted. i 18. Private considerations or inducements cannot rightly enter into the question in any degree". 19. "Bargains with public officers" and "inducements of any kind tending to influence their free* action", "not only are" "void as against public policy, but official action based thereon ceases to be based solely upon the public welfare;' and becomes tainted with some degree of pri- vate interest". —State ex rel. Bosch v. 1 Bycm, 127 "W. 599, 601. 214 PROBATE AND GENERAL LAW, CODIFIED 20. "The court and the jury viewed the premises and the machines in question. The knowledge which jurors acquired from such view they had the right to use in determining the credibility of the evidence offered. (Many cases). 21. This being so, they had the right to use such knowledge in deter- mining whether the court made a correct statement of fact". —Solberg v. Bobbins L. Co., 147 W. 259, 262. 22. "The special benefits" "charged" "in the proceedings for con- demnation under sec. 899, and the special benefits" "under see. 903", assessed for "this public improvement, embrace and cover the same thing", as to the owner's property, and such double assessment is held invalid, and the collection of the last enjoined. , —Stouffhton S. B. v. Stoughton, 159 W. 330, 332. 23. In village condemnation proceedings under sec. 899, "the verdict must contain two separate findings, namely, the value of the land taken and the damages. The last mentioned is followed by the relative clause 'in estimating which' they shall deduct therefrom the special benefits, if any'." ,24. While 'the value of the land taken' was found to be $600, yet "the jury having found no damage to the residue, there was nothing against which benefits could be offset ' ',— the offset relating back merely to the 'damage otherwise sustained' 'by reason of the taking thereof. —Zwietusch v. East Mil., 161 W. 519, 521. 25. The statutes 1 for condemnation proceedings require notice only "to the owner or occupant", and are held valid though there is "failure to require notice tp lienholders. (Many cases) ". — Gonnell v. Kauhauna, 164 W. 471, 489. CONDITIONS. See Bond foe Maintenance. Construction of Deeds. Construc- tion of Wills. Devises. Vesting of Estates, etc. CONSENT. See Agreement. Jurisdiction. Stipulation. CONSIDERATION 215 CONSIDERATION. See also Frauds, Statute op. Additional, parol evidence, 6, 14. Love and affection, 7. Antecedent indebtedness, 20. Part payment, 27. Consideration defined, 1. Burden or benefit, 27. Debt extinguished, 39. By operation of law, 40^ 41. Decedent 's notes, heir, 23. Extension of time, 21. Failure; parol evidence, 4, 18. Between original parties, 22. Immaterial, ' when, 37. Verbal agreement, 8. For value received, 11. Future sales, memoranda, 2. Husband to wife, 7. Care and attention, 35. Not a valuable, 36. Inadequacy of, 15, 31. Badge of fraud, 16. Exception to pay money, 34. Extreme case, 34. Inadequacy of— continued Fraud, makes void, 32. Prima facie valid, 33. Modify agreement, 17. Original illegal contract, 9. Past consideration, 10. Parol evidence, 4, 6, 8, 14, 22, 25.' Partial failure, pro tanto, 3. Particularly set out, 12. Proof of failure, 13. Additional, 14. Promise for promise, 44. Realty conveyance, 29. Recitals in deed, 5, 30. ! As having been paid, 42. Entire contract, 26. Inconsistent with, 25. Not conclusive, 24. Release of third party, 28. Service agreement, 38. Personal services, 43, Silent on subject, 19. Valuable, however small, 31. 1. "Consideration to support a promise * must be some matter of benefit to him who makes the promise, or of loss or disadvantage to him to whom it is made ; and * it must appear that it arose or was moved at the express or implied request of the promisor". —Eycleshimer v. Van Antwerp, 13 W: 546, 547. 2. Written memorandum signed and dated, 'I will be responsible for the purchase of goods from W. Co. for D. or by his order, until I give them notice to the contrary, ' held to be ' ' equivalent to saying, if you will sell D. goods, in consideration thereof, I will be responsible for the amount of the sales until notice to the contrary", and "that such memo- randums relating to future sales, do express * the consideration, and are valid." ' — Williams v. Ketchwiv, 19 "W. 231, 232. 3. "A partial failure of consideration is a good defense pro tarito to an action upon" a note. . 4. "Parol evidence to show a partial or total, failure' of consideration is, not within the rule which excludes such evidence to vary or contra- dict . the terms of a written contract". — Peterson v. Johnson, 22 W. 21, 26. 5. "The recitals in a deed are not conclusive between the parties as to the consideration or its payment." 6. "At least, where there is no question as to the rights of creditors, pai*ol evidence may be introduced to show an additional consideration to 216 PROBATE AND GENERAL LAW, CODIFIED that expressed, and consistent with it, for the purpose of sustaining a deed." 7. Where a valuable consideration expressed in a deed from husband to wife was attacked, the wife would not "be precluded, from showing that there was also a consideration of natural love and affection, although not expressed in the deed". — Harmon v. Oxley, 23 W. 519, 522. 8. "There was no error in receiving the evidence of the verbal agree- ment and understanding of the parties at the time of the making of, the note. The object; was to show a partial or total failure of .the considera- tion for the note; and for that purpose the evidence was admissible." —Smith v. Carter, 25 W. 283, 287. 9. On an account stated, or the giving of a new promise, "upon an original illegal contract," "the plaintiff must show that there was a demand on his side, which was acceded to by the defendant. The admis- sion must have reference to past transactions, that is, to a subsisting debt, or to a moral obligation founded on an extinguished legal obligation, to pay a certain sum". Oreenleaf Ev. 10. "It is a general rule, that a promise to pay for a past considera- tion, for which there is not and never has been any legal liability on the part of the party promising, does not make a contract binding in law. It is placed on the same footing with a promise which does not purport to be of any consideration whatever". (24 W. 204.) An excep- tion to this rule is, a subsequent promise as to a contract made on Sunday. See also Sunday. — Melchoir v. McCarty, 31 W. 252, 256. 11. "The words 'for value received', in a guaranty, sufficiently express the consideration". "The consideration of a guaranty need not pass between the parties to it." See also Guaranty. — DaMmmi v. Hammel, 45 W. 466, 468. 12. ' ' Here we have written instruments which set out particularly the consideration of the notes in suit, to- wit: the assignment of notes and mortgages, and of a contract to convey lands and to sell timber upon other lands. 13. The right to prove a failure of consideration would admit evi- dence of the failure of any consideration expressed in the writings, as that the title to any of the property thus sold or assigned had failed,' 14. But does not go to the extent of allowing proof of an additional consideration not expressed in the writings, and a failure thereof. To hold otherwise would be to destroy the rule which prohibits parol evi- dence to contradict or vary written instruments". See also Parol. —Hublard v. Marshall, 50 W. 322, 327. 15. The difference between $1300 the value, and $900 the contract price, was held not sufficient to defeat specific performance. See Specific Performance. — Conrad v. Scfowamb, 53 W. 372, 378. CONSIDERATION 217 , 16. "Inadequacy of consideration may be a badge of fraud". See Married Woman. —Fisher v. Shelver, 53 W. 498, 504. 17. Parties may modify an agreement or rescind it without a new. con- sideration, the original consideration applying. See Rescission of Con- tract. —Kelly v. Bliss, 54 W. 187, 191. 18. "It is always competent to prove that an instrument which ex- presses a consideration was in fact made without consideration,. .19. And it would seem equally competent to prove that an instrument silent on the subject was in fact executed upon sufficient consideration." So held. —Board of Trustees v. Saunders, 84, W., 570, 573. 20. "It is clear that> in case the note was taken as payment of the antecedent indebtedness, it was as full and ample consideration as the antecedent indebtedness, itself. The antecedent , indebtedness was its consideration. 21. Besides, it gave an extension of time on the old debt, which alone was a sufficient consideration to support it;" .,; —Studebaker Bros. Mfg. Co r v. Langson, 89 W., 200, 204. 22. "Want of consideration is" a: defense between original parties, and may be proved by parol. See Promissory Notes. ■ i . —Remmgion v. Detroit. D. M. Co., 101 W. 307, 309. 23. A surrender of decedent's notes "constituted a sufficient con- sideration, " for a new note by an heir. See- Promissory Notes. —Union & P. Bank v. Jefferson, 101 W., 452, 456. 24. "The general rule is that the consideration expressed in a deed is not conclusive; that parol evidence is admissible to show that the con- veyance was based upon a different consideration than that expressed. 25. That rule has this limitation : parol evidence is not admissible to show a different consideration than that expressed in the writing if it be inconsistent therewith. Powers v. Spaulding, 96 W.,,487." 26. In this case the "evidence rejected was directed to the establish- ment of the entire contract," and "it did not contradict the deed, be- cause the writing did not purport to evidence ; the entire contract. It was clearly admissible. Frey v. Vanderhoof, 15 W., 397 (See Parol) ; (other cases) ". —Cuddy v. Foreman, 107 W., 519, 526. 27. In a "part payment to release an indebtedness to take the trans- action out of -the common -law rule", "consideration, in addition to money paid, 'may consist of anything which might be a burden to the one party or benefit to the other.' (Cases).?? See^also Accord and Satis- faction. . — Herman v. Schlesinger, 114 W., 382, 401. 218 PROBATE AND GENERAL LAW, CODIFIED 28. "The assumption by the claimant of a (mortgage) debt for which he was not before liable, and the procurement thereby of the release of the testatrix from liability, is entirely sufficient as a consideration for the promise of the testatrix to pay him interest on the sum during her life. The agreement was not ' ' within, the statute of frauds. ^-Roberts v. Lamberton, 117 W., 635, 638. 29. A person may "prove by parol the consideration for a conveyance of realty and establish a legal obligation to pay the same." (Cases). — Halvorsen v. Halvorsen, 120 W., 52. 30. As to recitals of payment of consideration in an ordinary deed, binding "no one as to its correctness", etc. See Parol. —Jost v. Wolf, 130 W. 37, 43. 31; "Generally speaking, a valuable consideration however small is sufficient to support any contract; that inadequacy of consideration alone is not a fatal defect. (Many cases) ". 32. "Where the consideration to support a contract is so small as under all the circumstances to show fraud the agreement is void, but the defect consists in the element of fraud, not at all in the insignificance of the consideration. Blake v. Blake, 7 la., 46; Wolford v. Powers, 85 Ind., 294". ! 33. "The rule'-' "is that, in the absence of Satisfactory proof of fraud, the smallness of the consideration to support a contract, so long as it is large enough to be measurable, is immaterial, except in case of a contract to pay a sum of money". 34. Here, an agreement, ' in consideration of one dollar ', to pay one- fourth 'of the-net proceeds derived from the sale of 8000 acres of land, to be sold, resulting in many thousand dollars for such share, after some years, — was held valid as to consideration. — Bust v. FUzhugh, 132 W., 549, 557. 35. "Affectionate care and attention bestowed by" a wife upon her husband, "was simply the -performance of her duty as a wife, for which she did not ask and could not have demanded compensation, 36. And the services thus rendered cannot be considered a valuable consideration for the purchase of the lands/' (Cases). —Perkinsm v: Clarke, 135 W., 584, 591. 37. The owner of realty may as against the heir at law, convey it to another without consideration. See Escrow. — Schwnacher v. Draeger, 137 W. 618, 622. 38. ' ' There is no doubt but that the agreement to perform the services (teaching)- was a sufficient consideration for the note. (Cases) ". —Pierce v. Stolhcmd, 141 W., 286, 288. CONSTITUTION • 219 39; "The adjudications are to the effect that a debt which has been extinguished by< a voluntary agreement of the' debtor and creditor will not support a new promise, 40. And that one discharged by operation of law will support one." 41. A promise to pay a debt after "a composition after bankruptcy proceedings are instituted" is held to sustain recovery. — Cohen v. Laehenmaier, 147 W. 649, 652. 42. Kecital of a large consideration in a deed as having been paid, but not paid, and the deed given as a gift on account of a threatened action against the grantor,' — recovery of consideration named, denied. See Constbuction of Deeds. —Gross v. Arians, 153 W. 435. 440. 43. In "an agreement to render personal services on the one side and to make payment for them in a certain way on the other", "there is no lack of consideration even though ho money be paid at the time. 44. It is, a case of a promise for a promise ; each is the consideration for the other. Olson v. Olson, 149 W. 248 (See Services) ". —Huebner v. Huebner, 163 W; 166, 170. CONSTITUTION. Dower of non-residents, 9. Police power, 11, 12. Guardian appointment, 2. Powers of judges, 5. Insanity, jury trial, 10. Provisions, 6. i Judicial power of state, 4. Unconstitutional, 1, 12. Ordinance of 1787, 7. - Act not a law, 13. Kepeal of, 8. Waive rights, 3. 1. "To justify a court in declaring a law of tfr e legislature uncon- stitutional, the case must be clear and manifest." The compulsory ref- erence law is constitutional. • — Norton v. Booker, 1 Pin. 195, 204. 2. Appointments of guardians are not "cases at law" under the con- stitution as 'to jury trial. See Guardians, —Gaston v. Babcock, 6 W. 503. 3. Parties may waive constitutional rights. See Reference. — Home Ins. Co. v. Security Ins. Co., 23 "W. 171, 174. . ." s - ■ 4. "The constitution vests the judicial power of the state in courts which it establishes or authorizes to be established, to be, held by judges whose offices it creates or authorizes to be created. This exhausts the judicial power. 3 W. 805; 27 W. 119." 5. "And the judges of these courts take, under the constitution creat- ing their offices, the powers of judges of such courts at the common law, 220 PKOBATE'AND GENBEAL LAW, CODIFIED including the powers commonly possessed by them at chambers, at the time of the adoption of the constitution. 5 W. 185 ; 7 W. 405 ; 643 ; 20 W. 686". —In re KmdUng, 39 W. 35, 58. 6. Sections 8 and 14 of Article VII of the constitution set forth the provisions as to circuit, probate, and county courts. See Circuit Courts. Probate Court. — Lannon v. Hackett, 49 W. 261, 267. 7. As to the Ordinance of 1787 it is said, by Dixon, C. J., "that the adoption of the constitution of this state by the free will and vote of the people with, the assent of the government of the United States, and , the subsequent admission of the . state into the Union, jn our judgment,! abrogates entirely the provisions of the Ordinance wherever its provisions and those of the state constitution come in conflict. , ,8. Such adoption and ratification of the constitution was a repeal of the Ordinance 'by mutual consent', as provided for by the ordinance itself, and gave to , the legislature of the state .plenary powers of legis- lation, except as limited by the constitution of the United States and the constitution of this state". —Connecticut 31. L. Ins. Co. v. Cross, 18 W. 109, 115. 9. The statute, sec. 2160, descriminating as to dower against non-resi- dents, is constitutional. Se$ Dower. , —Bennett v, Harms, 51 W. 251, 261. 10. As to right of trial of insanity issue by jury in criminal cases. See Jury. Writ op Error. — Crocker v. State, 60 W. 553. 11. "The police power has been wittily defined as the power to pass unconstitutional laws, and some utterances of courts have seemed to justify such conception. It is nevertheless erroneous. 12.' An act which the constitution clearly prohibits is beyond the power of the legislature, however proper it might be as a police regulation but for Such prohibition". — State ex rel. Jones v. Froehlich, 115 W., 32^ 42. 13. "An unconstitutional act of the legislature is not a law". See also Law. • — State ex rel. Kleist v. Donald, 164 W. 545, 552. CONSTRUCTION OP CONTRACTS. See also Ambiguity. Consideration. Construction of Deeds. Con- tracts. Parol. Usage. Ambiguity, 13, 14, 15, 34, 46. Breach: specific price, 16. Conversations, etc., 39, 40. Personal service, 17. Surrounding circumstances, 39. Condition precedent, 6. CONSTRUCTION OP CONTRACTS 221 Conversations leading to, 34, 39. Explain ambiguity, 40. Decease of one party, 25, 29. Lease binds devisee, 32. Lease contract, 30. > Peculiar skill, 26. Perform in person, 27, 31. Due bill, specific, 8. Effect to every part, 48. Enumerations, 35, 36. Express over implied, 36. Forfeiture, 5. Grammar or punctuation, 33. Implied in express contract, 21. Correlative obligation, 22. Insurance division, 20. Intent of parties, 2, 3, 33. Law for the court, 7, 24. Lawful and unlawful, 19. Office of construction, 33. Oral contract,, vague, 23. Jury when, and court, 24. Parties' construction, 13, 38, 41, 42. Ambiguijty, 14, 15. Personal representatives, 28, '31. Devisees, realty lease, 32. Whether named or hot, 29. Printed form filled, 43.. "Written control, 44. Reading nothing in' or out, 48. • Surrounding circumstances, 12, 47. Ambiguous contract, 39. Evidence competent, 9. Nature of the subject, 12. Parol testimony, 10, 111 Reasonable construction, 4. Two papers as one, 18. i Several as one, 37. Two reasonable meanings, 45, 47. 1. Evidence showing condition of parties and surrounding circum- stances may be received. See Contracts. —Sigerson v. Gushing, 14 W. 527, 548. 2. To get at the intent, "the situation of the parties and the nature and object of the transactions,' may be looked at, but it * is not the business of construction to look outside of the instrument to get at the intention of the parties, * whether the instrument contains language sufficient to express it or not." —Farmers' L. & T. Co. v. Com. Bank, 15 W. 424, 438. 3. "The contract should be construed in accordance with the intention of the parties to it". 4. "The contract should have a reasonable construction, reference being had to the circumstances under which it was made". 5. "When the intent is doubtful, conditions providing for forfeitures, are to be construed strictly against those for whose benefit they were introduced". N 6. "The party to a contract who seeks to destroy its lobligation by reason of an alleged breach of a condition precedent by the other party, cannot establish the existence of such a condition by inference or con- jecture. ' ' —Morse v. Buffalo F. & M. Ins. Co., 30 W. 534, 538. 7. "The construction and effect of " a written contract is a "matter of law for the court to pass upon". —Famsworth v. Bfunquest, 36 W. 202, 206. 8. A due bill of railroad stock, where the company is named, is held to be specific See Legacy. —Wheeler v. Hartshorn, 40 W. 83, 102. 222 PROBATE AND GENERAL LAW, CODIFIED 9. That evidence showing the facts and circumstances "is competent, even where the whole contract is in writing, is well settled by the decisions of this court. 10. It was said by the late learned chief justice, in the case of Lyman v. Babcock, 40 W. 503-512, quoting from Greenleaf on evidence: 'As it is a leading rule in regard to written instruments that they are to be interpreted according to their subject matter, it is obvious that parol or verbal testimony must be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers. 11. Evidence which is calculated to explain the subject of an instru- ment is essentially different in its character from evidence of verbal communications respecting it. . 12. Whatever, therefore, indicates the nature of the subject is a just medium of interpretation of the language and meaning of the parties in relation to it, and is also a just foundation for giving the instrument an interpretation, when considered relatively, differing from that which it would receive if , considered in the abstract.' (Citation) ". 13. "Where there is any uncertainty or ambiguity in a written con- tract, the construction put upon it by the parties themselves is always received as evidence tending, to aid in its construction. i4. In such cases it is the intention of the parties which the court seeks to arrive at,, and this intention is best shown by the construction which the parties have placed upon it themselves. 15. It is true, the intention of the, parties cannot avoid or change the meaning of a written contract when the language used is clear and certain, but only when the language is uncertain and doubtful. 2 Pars, on Con, 494, 499". (Approved in Burton v. Douglass, 141 W. post). 16. "The rule in case of a breach of contract for doing a specific work for a specified price is the profit the person would have realized had he been permitted to perform the work, and not the difference between the contract price and the sum the contractor actually received from other employments during the time he would have been employed in completing the work. 17. The rule applicable to contracts for personal services does not apply to a case of this kind. 3 Pars, on Con. 781 ; Masterton v. Mayor of Brooklyn, ,7 Hill. 61; P., W. & B. R. R. Co. v. Howard, 13 How. (U. S.) 307, 344; 7 Cush. 516; 6 Barb. 419''. — Nilson v. Morse, 52 W. 240, 250. 18. Manifestly "two written instruments between the same parties, made at the same time, in pursuance of the same agreement, for the same common purpose, and in relation to the same subject-matter, must, upon well-settled principles, be construed together as constituting one paper in law. Winner v. Iloyt, 66 W. 234; Ilerbst v. Lowe, 65 W. 320". —Ilagerhj v. White, 69 W. 317, 323. CONSTRUCTION OF CONTRACTS 223 19. " It is well settled that ' where a contract is fairly open to two con- structions, by one of which it would be lawful and the other unlawful, the former must be adopted.' Hobbs v. McLean, 117 U. S. 576". — Watters v. McGwigan, 72 W. 155, 157. 20. The_ clause "the sole use of M. P. and children of G. P.", being a widow and three children, beneficiaries in an insurance policy, is con- strued as entitling each to one fourth of the proceeds. See Insurance. —Taylor v. Hill, 86 W., 99, 105. 21. "What is implied in an express contract is as much a part of it as what is expressed. It is a well-known rule of law that every contract must be construed as if those terms which the law will imply were expressly introduced into it (eases) j 22. That, where a contract is so framed that it binds the party con- tracting to do an act, it will imply a correlative obligation on the party to do what is necessary on his part to enable the party so contracting to fulfill his part of the contract (Hudson Canal Co. v. Penn. Coal Co., 8 Wall., 288; other cases)." — Manistee Iron Works Co. v. Shores Lumber Co., 92 W., 21, 28. 23. "Where the terms of an oral' contract are to be gathered from con- duct and conversations, or where they are in dispute, or are ambiguous or vague, the question as to what the understanding or agreement in fact was is a question for the jury. Becker v. Holm, 89 W. 86. 24. But ,where an oral contract is detailed by the plaintiff, and no other testimony is given concerning it, and it is clear and unambiguous in terms, it is the duty of the court to construe it". Tames v. Carson, 94 W. 632, 636. 25. ' ' The death of one contracting party does not operate as a release or discharge from the performance of his part of the agreement, where it is of such a character that it may be performed by his personal repre- sentatives. Hawkins v. Ball's Admr., 18 B. Mon. 816, 68 Am.' Dec. 755. 26. Where the agreement" involves "peculiar 'skill of an expert", and "distinctly personal considerations", "the relation of the parties is dis- solved by the death of him whose personal qualities constituted the par- ticular inducement to the contract. 27. If a party agrees to do that which does not necessarily require him to perform in person,'— that which he may, by assignment of his contract or otherwise, employ others to do, — it may be fairly inferred, unless otherwise expressed, that a mere personal relation was not contemplated. Billings' Appeal, 106 Pa. St., 558. 28. It is a presumption of law that the parties to a contract bind, not only themselves, but their personal representatives; 29. And executors, therefore, whether named in the contract or not, are liable on the contracts of the testator which are broken in his life- 224 PROBATE AND GENERAL LAW, CODIFIED time, and, with the exception of contracts in which personal skill or taste is required, on all such as are broken after his death. Chitty Cont. (13 Ed.) 130; Sibpni v. Kirkman, 1 Mess. & W. 418. 30. An ordinary contract of lease is not such a personal contract as is extinguished by the death of the lessor or lessee. Lockart v. Forsythe, 49 Mo. App. 654. 31.. The executors or administrators are in truth contained in the per- son of the testator or intestate, except in the case of a personal contract, — that is, a contract depending on personal skill, — in which is always implied the condition that the person is not prevented by the act of God from completing the work". Wills v. Murray, 4 Exch. 865; Hyde v. Skinner, 2 P. Wms. 196. 32. Held, that a contract "in the, nature of a lease", where the rents and profits are not required in the settlement of the estate, is binding on the devisees of the realty and that the administrator has no right of recovery of the realty. — Volk v. Stowell, 98 W. 385, 390. 33. "The office of judicial construction is to determine what parties intended by their written language. " " The intention being determined, words, sentences, and clauses are brought into harmony with that so far as the meaning reasonably attributed to words will permit, regard- less of mere rules of grammar or punctuation. Wis. M. & F. Ins. Co. Bank v. Wilkin, 95 W., 111". —Hunt v. Stinson, 101 W., 556, 558. 34. As to ambiguity, and mere conversations leading up to the agree- ment. See Ambiguity. — Johnson v. Pugh, 110 W., 167, 170. 35'. "It is well settled 'that general words in any instrument' are 'weakened by enumerations'. Sharpless v. Mayor, etc., 21 Pa. St. 161; Webster v. Morris, 66 W., 395 (see Construction of Wills.) ; McAlpine v. Foley, 34 Minn., 252. 36. As stated by the late Chief Justice Gilfillan, ' the definite and pre- cise must prevail over the indefinite, the particular over the general, and the express over what might otherwise be implied'. Quimby v. Shearer, 56 Minn., 538". —Spencer y. Holman, 113 W., 340, 343. 37. "The writings (note, mortgage, agency contracts) were all de- livered at the same time ; they related to the same subject matter between the same parties; and upon well-established principles so far as they can stand together they must be considered as one instrument. (Many cases) ". —Security T. & L. Ins. Go. v. Ellsworth, 129 W. 349, 358. 38. "Practical construction placed by the parties in interest upon doubtful or ambiguous terms in a contract will exercise a great and sometimes a controlling influence in determining the construction to be placed thereon by the courts. (Many cases) ". 39. "While evidence of surrounding circumstances and facts" "is receivable to aid in the construction of an ambiguous contract, many ' CONSTRUCTION OF DEEDS 225 eases hold that the rule 1 does not go to the extent of permitting a party to testify to antecedent or contemporaneous oral agreements or conversa- tions. (Many cases). 40. On the contrary, i there are a number of eases holding that sueh evidence is competent to explain ambiguity in the writing. Ganson v. Madigan, 15 W. 144, unqualifiedly so holds, and there are many cases" subsequently approving "the rule laid down in this case". (Cases). 41. ' ' The parties, here substantially agreed on the definition of an am- biguous term", and "parol evidence to establish that fact does not alter their written contract, and neither does it add to it. 42. It simply goes to show what the parties meant when they used the term 'vicinity' and what the contract now in fact means". —Burton v. Douglass, 141 W. 110, 114. 43. "It is a well recognized rule of construction that where a contract 'is written, in part and printed in part, as where it has been filled in upon a printed form, the parties usually pay much more attention to the written parts than to the printed parts. 44. Accordingly, if the written provisions cannot be reconciled with the printed, the written provisions control. Hicks P. Co. v. Wis. Central R. Co., 138 W., 584; (citations)". —Atlantic T. C. Co. v. Goetder, 150 W., 19, 24. 45. As to when choice is to be made between "two or more reasonable meanings", 46. And as to specific ambiguity cleared up by "looking at the writing ; in all its parts". See Marriage Contracts. Ambiguity. —Oesau v. Est. of Oesau, 157 W. 255, 261. 47. ' ' Where an instrument is capable of different construction, each of which does no violence to the language used, recourse must be had to the facts and circumstances ■ surrounding the parties at the time of the execution thereof, for the purpose of determining its true construction, and the intention of the parties, if at all consonant with the language used, must govern' its construction. 48. The court, if possible, must give force and effect to every part of the instrument, reading nothing into it and nothing out of it. (Cita- tion) ". —Polebtizhe v. John' Week L. Co., 163 W., 322, 324. CONSTRUCTION OF DEEDS. • See also, Ambiguity. Bond for Maintenance. Construction of Contracts. Deeds. Sale op Realty. Actual State of lands, 17, 35. Charge upon laud, 23., Ambiguity, absent, 27, 62. Conditions: place, 9. Ascertained beginning, 2. Precedent, defined, 10. Zimmerman — 15 226 PEOBATB AND GENERAL LAW, CODIFIED Conditions — continued Precedent, none, 44. Precedent, subsequent, 42. Belief by court, 43. Subsequent: found, 11. Subsequent not absolute; 12, 41. Subsequent, not favored, 13, 23, 24, 25. Consideration recital, 52, 54. Creditors' equities, 56. Evidence to explain, 53. Future payments, 55. Parties left statu quo; 58. Recovery of consideration, 57. Controlling influences, 3. Corporations nonexistent, 22. Court to construe, 20. Exception in deed, 38, 39. Not reservation, 46. Father to minor son, 47. Fee or use, uncertain, 36. Fixed landmarks, 6. Forfeiture not favored, 24. Future effect, valid, 48. Possession in future, 39, 50. Government surveys, 5. Highway or river, 1. ■Identity of persons, 4. Intent of parties, 26, 33. Meaning of language, 28, 29. Jury, as to description, 20. Omission of. grantee's name, 8. Parol evidence, 18, 21, 35. Consideration, 56. Intent testamentary, 51. Interpret description, 60. Not vary warranty deed, 63. Section omitted, 21. Surrounding circumstances, 59. Plat referred to, 6. Quit-claim deed, 7. Reservation in deed, 37, 39, 45. Distinction; exception, 46. Something in futuro, 40. Right of way, 15. Implied grant, 15. Obstruction thereof, 16. Subsequent control resumed, 14. Surrounding circumstances, 18. Interpret description, 60. Make deed definite, 19. , Not to vary, 59. Two conflicting clauses, 30, 34. Against the grantor, 31. Former shall stand, 32. Warranty deed, effect, 62. Excluding parol, 63. Free of incumbrances, 61. 1. "Where the boundary is a highway or a river, unless there be some express words in the grant limiting the, boundary to the bank of the river, or to the side of the highway, the center of the river or highway is to be taken as the boundary." 2. "Where there is a known and well ascertained place of beginning, in the description in a deed, that must govern, and the grant be confined within the boundaries given." 3. "What is most material and most certain in the description of the property granted, has a controlling influence. A river, a known stream, a spring, or a marked tree, will control as to courses, distances and quantities." —Gove v. White, 20 W. 425; 431. 4. Where two persons answer a description, evidence may be received ; not so in case of one only. See Construction of Wills. —Barton v. Babcoch, 28 W. 192, 198. 5. Government surveys and monuments "are to be regarded, rather than the number of acres". See Real Estate. —McEvoy v. Loyd, 31 W. 142, 145. 6. It is "well settled in the law", "that when a plat is referred to in a deed as a part of the description of the lands conveyed, such plat becomes CONSTRUCTION OF DEEDS 227 an essential part of the description itself, and that courses, distances, quantities and measurements must yield to, and are controlled by, natural or fixed landmarks". —Shufeldt v. Spavlding, 37 "W., 662, 668. 7. In a quit-claim deed, "its language naturally and properly relates only to the interest which the grantor owned in the land," and not to a power. —Towle v. Ewmg, 23 W. 336, 338. 8. "The omission of the grantee's name immediately after the opera- tive words of grant in the respondent's conveyance is cured by the habendum to the grantee, his heirs and assigns". 9. " 'Conditions regularly follow the habendum, but are good in law in any other place'. Horner v. Railway Co., 38 "W. 174. This was always the rule. (Case)." — Lawe v. Hyde, 39 W. 345, 355. 10. "It is familiar law that a condition precedent is defined to be one which must take place before the estate can vest". 11. A conveyance from parents to a daughter for one dollar "and the reservations and rents hereby reserved to be paid to us", with a condi- tion that "this conveyance is not to become absolute Until the decease" of the grantors, "and then only on this condition to-wit", that the grantee "shall deliver" to the grantors annually "one-third of the product", as specified, and work the land" in a gbqd and farmlike manner", is held to be "a grant upon conditions subsequent". 12. The language "not to become absolute, etc," "implies that an estate was intended to pass by the conveyance; if this were not so, it would seem inconsistent to state that the conveyance should not be abso- lute until those conditions were performed". 13. "It is a general principle, that conditions subsequent are not favored in law, and are construed strictly because they tend to destroy estates. (Cases). 14. The grantor having subsequently assumed control of the land deeded, to the time of his decease 1 , it is held that the presumption of "a mutual understanding" that he had "become seized as of his first estate", "would be destroyed by proof that the deceased acknowledged the rights of the defendants in the land, and did not claim it in his own right", and that such proof should have been admitted. — Brew, Admr. v. Baldwin, 48 W. 529, 532. 15. As showing "that the defendant had a rght of necessity, from his house to the public highway, over the lands of the plaintiff", "we are content to cite and follow", "Dillman.v. Hoffman, 38 W. 559, where it was held that 'in every deed 'of a part of the grantor's land, without express provision on the subject, there is an implied grant or reservation of easements of necessity for the enjoyment of the part conveyed, or of the part retained'." 16. "It is well established that if the owner of land which is subject 228 PROBATE AND GENERAL LAW, CODIFIED to a right of way obstructs the way, a person entitled to use the same may enter upon and go over adjoining land of the same owner, doing no unnecessary damage. Smiles v. Hastings, 24 Barb. 44; S. C. affirmed 22 N. Y. 217 ; Leonard v. Leonard, 2 Allen, 543 ; Kent v. Judkins, 53 Me. 160". -^Jarstadt v. Smith, 51 W. 96, 98. 17. "Deeds are to be construed with reference to the actual rightful state of the property at the time of their execution. Dunklee v. Rail- road Company, ,24 N. H. 489; 51 Me. 575; 12 Cal. 148; 14 N. Y. 589; 22 Wend. 148; Morgan v. Burrows, 45 W. 211; et al., . 18. For this purpose extrinsic evidence is often admitted in order to place the court in the position of the parties at the time of making the deed, and thus enable the court to intelligently; interpret the language used. 19. The law will not declare a deed void for uncertainty when the light which contemporaneous facts and circumstances furnish renders the description definite and certain. 20. It is for the court to construe a deed, but when so construed it is the duty of the jury to ascertain from the evidence whether the premises in question are : within . the description. ' ' —Messer v. Oestreich, 52 W. 684, 689. ■21. Oral evidence was admitted t6 explain a deed (long-time lease) where the section number was omitted, the grantees being in possession, and having fenced- the premises with the acquiescence of the grantor, and the deed was upheld on the authority of Messer v. Oestreich, 52 W. supra. 22. The grantor or his successors, "is in no position to deny that any estate passed by the lease, on the ground that there we're no such cor- porations in existence as therein named" as grantees. —Whitney v. Robinson, 53 W. 309, 314. 23. "Whether a provision in a deed or will, which, as a part of the consideration, requires the payment of money to third persons by the grantee or devisee therein, within a fixed time after the title and right of possession vest in him, will be construed to be a charge upon the land, or whether it will be construed to be a condition subsequent, depends upon the intent of the parties to the conveyance, or of the testator in case of a devise, and it will always be construed to make a charge upon the premises, unless a different intent is clearly apparent, or inlhe case of a deed the language is so clear as to leave no room for construction or doubt." 24. "The rule is well settled that conditions subsequent which work a forfeiture of the estate are not favored in the law, and no language will be construed into such a condition contrary to the intent of the parties when such intent can be derived from a consideration of the whole instru- ment, or from the circumstances attending the execution thereof; CONSTRUCTION OF DEEDS 229. 25. Nov will the language used be construed into such a condition subsequent, when any other reasonable construction can be given to it. (Cases)." t — Wier v. Simmons, 55 W. 637, 641. 26. The rule "that deeds and contracts should be construed in accord- ance with the intention of , the parties to them", "is subject to this other rule, 27. That if ; the instrument is free of ambiguity, such intention must be ascertained from the language of the instrument itself. 28. In such eases, as was tersely said by Lord Denman in Riekman v. Carstairs, 5 B. & Ad. 651, 'the question is, not what was the intention of the parties, but what is the meaning of the words they have used'. 29. Or, as was said with, equal terseness by the late Justice Paine, in Farmers L. & T. Co., v. Commercial Bank, 15 W. 438, 'the sole duty of construction is to find out what was meant by the language of the instrument'. ' See also IJubbard v. Marshall, 50 W. 322 (cited under Parol)". , , 30. "Where there are "two conflicting clauses in the deed", the ques- tion as to which should prevail must be determined by other rules of law. 31. "One of these rules is, that a deed is always construed most strongly against the grantor". 32. "Another is, that where there are two clauses in a. deed, and the latter is contradictory to. the former, the former shall stand. This is an application of the ancient rule or maxim that 'the first deed and the last will shall operate' ". 33. " If from the whole instrument the true intention of the parties can be gathered, that intention should prevail ; 34. But where, as in this, case, two conflicting intentions are plainly and unequivocally expressed, there is no alternative but to construe it by these rules, even though they may be arbitrary rules ' '. —Green Bay & M. C. Co. v. Hewett, 55 W. 96, 103, • 35. "It has often been held that a deed with a description otherwise uncertain should be construed with reference to the actual rightful state of the property at the time of its execution, and extrinsic evidence: of that state is admitted to aid in the construction. Whitney v. Robinson, 53 "W. supra; Messer v. Oestriech, 52 W. supra"., —McMillan v. Wehle, 55 W. 685, 695, 36. "Where, by the terms of the grant, it is uncertain which is in- tended", — "the temporary use of the buildings or in fee" — "and the point is left doubtful, it should be construed most favorably to the grantee. 3 Washb. 628. 37. If there, is a reservation in the deed, it being in effect a grant by the grantee, it should be construed most favorably, to the original grantor, by the. same rule". . 38. An exception — "a part of the thing included in the grant, to be 230 PKOBATE AND GENERAL LAW, CODIFIED taken out of it, and the part so taken out is in esse", "if of doubtful construction in respect to whether any part of the land in fee is excepted With the buildings, must, by the same rule, be construed in favor of the grantee, and against the grantor, who has granted the whole estate and sets up the exception against it. 39. An exception is none the less an exception because in the form and terms of a reservation. 40. A reservation is something in futuro in respect to the use of the land, as an easement or the like. These are familiar principles. 3 Washb. Real Prop. 640". —Green Bay & M. C. Co. v. Hewitt, 66 W. 461, 465. 41. A condition in a deed providing that upon the decease of the grantors, "the absolute title" "shall vest in" the grantee, "provided she has, fulfilled " the "conditions of the deed", but on failure, "then the said deed shall be null and void, and all rights conveyed herein shall revert to the first parties", is held to be a condition subsequent; 42. The question being, "Was the condition in the deed a condition precedent, such as must happen before title would vest in the grantee, or was it a condition subsequent, a breach of whieh might be taken advantage of, or operate, under its terms, to defeat the title already vested? 43. If the latter, a court of equity had ample power to relieve the defendant, upon equitable principles of compensation, from a forfeiture ; if the former, the court had no such power. 44. Failure to perform a condition precedent is an effectual bar to any remedy at law, and, in a case like this, to any remedy in equity as well. (Cases) ". Title held vested absolutely, subject to payment of compensation ' ' for failure to perform the conditions of the deed. ' ' —Donnelly v. Eastes, 94 W., 390, 393. 45. A deed which "excepts and reserves'* 'the two rods in width off the north side thereof, to be used as a right of way', "quite plainly imports that a fee was intended to be reserved. (Case) ". 46. "A marked distinction exists between the terms 'exception' and 'reservation' as used in deeds; the distinction being that a reservation is something taken back from the thing granted, while an exception is some part of the estate not granted at all. (Cases)". —Pritchard v. Lewis, 125 W. 604, 61.0. 47. "When a father executes and causes to be recorded" "a deed of his land to his infant child, brings this to the knowledge of the child, and the grant is beneficial to the infant, and the latter thereafter makes claim to the land under the deed, its acceptance is presumed and the delivery is complete. .(Many cases). 48. A conveyance of land in fee to take effect at a future time is valid in this state. Ferguson v. Mason, 60 W. 377 (See Deeds)." CONSTRUCTION OF DEEDS 231 49. A warranty deed containing after the description,— ' This deed is given upon the express condition that the title and possession of the property conveyed is not to pass during the life of the party of the first part, but is to be absolute at his death', — ., 50. Is "construed as a deed carrying a grant in fee simple to the grantee, to commence in possession and enjoyment after the death of the grantor. (Cases)." 51. "Such being the legal effect of the instrument, the oral evidence of the grantor to the effect that he intended a testamentary disposition was incompetent and unavailing. (Cases)". —Jones v. Ccrird, ,153 W. 384, 386. 52. "The mere recital of consideration in a deed, coupled with an acknowledgment of its payment, is some evidence of the amount of the consideration paid, or to be paid, where the obligation to pay is admitted or otherwise proven. 53. But it may not be evidence at all that the grantee promised to pay that sum. That would depend upon other facts in evidence. 54. Such recital presents nothing of a promise or contract, merely a declaration of the fact that this was the amount of the consideration, and the declaration is made by the grantor. Jost v. Wolf, 130 W. supra. 55. The assent of the graritee may be presumed from his acceptance of the deed, but" he surely did not assent "that there was a promise on his part to make future payment.' (Cases) ". 56. Where "no equities of creditors are involved", and nothing is in the deed as to creditors, but a recital of a large consideration as having been paid, none in fact having been paid, and parol testimony showing an indention to give the land as a gift, and that the deed was made in fear of a present action against the grantor, which was afterwards brought and dismissed,— 57. In an action, to recover the consideration named, by the adminis- trator of the grantor, judgment of recovery is reversed. 58. "In such case the law leaves the parties just where they put them- selves, and there is no promise implied to pay any other consideration than that agreed upon by and between the parties to the deed". —Gross v. Ariams, 153 W. 435, 440. 59. "Parol evidence of the facts and circumstances surrounding the execution of the deed, if they do not contradict, vary, or modify it, may be received to aid in determining what the writing was intended to express. (Cases)". 60. It is held that "the trial court properly received (parol) evidence to explain the subject matter of the grant and to interpret the descrip- tive part of the deed and ascertain the intent of the parties in relation to it". ^-Radtke v. Rothschild, W. P. Co., 158 W. 271, 276. 232 PROBATE AND GENERAL LAW, CODIFIED 61. "A contract to convey by 'a good and sufficient warranty deed' entitled the vendee to a warranty deed of the land 'free from all encum- brances'. Davidson v. Van Pelt, 15 W. 341". (Other cases). 62. "The' term 'warranty deed' in the contract", "being in its legal meaning free from ambiguity, calls upon defendant to convey the title to the lots by deed containing the usual covenants of warranty". 63. He "cannot complain of the court's ruling excluding parol evi- dence to show that the contract called for a conveyance of the lots by a deed with restrictive covenants and reversionary provisions", such as the kind of buildings, the purpose for which used, etc. See also Sale of Realty. — Neff v. Rubin, 161 W. 511, 515. CONSTRUCTION OP STATUTES. Adopted statute, 5, 14, 36. Not before construed, 40. Subsequently construed, 41. Ambiguous language, 26, 27. Unambiguous, 35. Colloquial meanings, 47. Common law changed, 24. Directory statutes, 7. Definition of, 8. Elliptical language, 10. Enumerations, 44. Equitable construction, 28, 29. Every: insane persons, 20. Inconsistent provisions, 37. Conflicts/ not favored, 46. Intent versus letter, 21. Limitation statutes, 2. Exceptions expressed, 2. Limiting words or clauses, 43. Mandatory: defined, 9. Natural justice: words, 22. Omissions or defects, 25. . Particular words, 1, 35. Practical construction, 18, 33. Primary object of law, 34. Prohibit living party, 4. Punctuation, 42, '43. Purpose of construction, 3, 26, 27. Legislative intention, 3. Re-enacted statutes, 17. Remedial statute, 30. Repugnant: intent, 19. Ab.surd words, 23. Revision, substitution, 32. Re- writing error, 38. Mere rule, not act, 39. Special provision, 6. Title of the act, 31, 45, 48. True construction rules, 11. Also to adopted statutes, 14. Every part with whole, 12, 29. Every word some force, 16. Genera] .system on subject, 13, 29. No clause superfluous, 15. Two affirmative; same subject, 49. 1. "It is a well settled rule for construing statutes that particular words ought not to be permitted to control the evident meaning of the context." —Williams v. McDonal, 3 Pin. 331, 334. 2. In " statutes of limitation, * general words are to have a general operation," with no exceptions unless "expressly mentioned." —Woodbury v. Sh-ackleford, 19 W. 55, 60. 3. "The purpose, and the only purpose,of judicial investigation in regard to the construction of doubtful provisions of statute law, is to ascertain the intention of the legislature which enacted the statute; and CONSTRUCTION OF STATUTES 233 when that is done, the intention is not "to he defeated either by a too narrow or too liberal application of the words employed. Words sus- ceptible of different applications are to he limited or extended so as to 'subserve the object which the legislature had in view." Dixon, C. J. 4. A statute which ' ' might, at first blush, seem to include every action in which an administrator or legal representative sues or defends ' ' as such, in excluding the administrator from testifying, held, "the object of the legislature" was only "to prohibit a living party from testifying in behalf of himself, when, by reason of death the other party" could not confront him. — Lawrence v. Vilas, 20 "W. 381, 386. 5. "It is a settled rule in the construction of statutes, that where a statute has received a judicial construction in another state, and is then adopted, it is taken with the construction which has been so given to it. Such is the presumed -intention of the legislature". — Draper v. Emerson, 22 W. 147, 150. 6. "Special provisions of a statute in regard to a particular subject, will prevail over general provisions in the same or other statutes, so far as there is a conflict". — State ex rel. Lutfrimg v. Goetze, 22 W. 363, 366. 7. ''Directory statutes are such as are not of the substance of the thing provided for". 8. "That which a public officer is directed by law to do for others, and 'which is intended for their benefit, and is beneficial to them, the law holds must be done. Mason v. Fearson, 9 How. U. S. 249." 9. "Statutes imposing a duty, and giving the means of performing such duty, are to be. : regarded as mandatory." — Wendel v. DurUn, 26 W. 390, 392. 10. Where "the language of the statute is elliptical", the rule per Dixon, C. J., is applied: "If in any law we find the omission of some- thing essential to it, or which is a necessary result of its provisions, and requisite to give the law its full effect, we may supply what is wanting but not expressed, and extend the law to what it was manifestly intended to embrace, but in its terms does not include". —Nichols v. Halliday, 27 W. 406, 409. • 11. ' ' The true rule for the construction of statutes is, to look" to the whole and every part of the statute, and the apparent intention derived from the whole, to the subject matter, to the effects and consequences, and to the reason and spirit of the law ; and thus, to ascertain the true meaning of the legislature, though the meaning so ascertained may some- times conflict With the literal sense of the words. Ryegate v. Wardsboro, 30 Vt. 746". 12. "This principle in the construction of a statute, that every part 234 PROBATE AND GENERAL LAW, CODIFIED of it must be viewed in connection with the whole, and, in addition, that it must be construed so as to make all the parts harmonize if practicable, and give a sensible and intelligent effect to each, and not to place one portion in antagonism to another, has been recognized and enforced in a great variety of cases, and is, in fact, elementary. (Many cases cited)." 13. "It is a well established rule of interpretation, that the general system of legislation upon the subject matter may be taken into view, in order to aid the construction of one statute relating to the subject, and that it is proper to consider other statutes in pari materia, whether they are repealed or unrepealed. (Many citations) ". 14. "This rule of construction extends to the statutes of other states or countries; which were the source or fountain from which the statute in question was drawn." 15. "One rule is, that a statute ought, upon the whole, to be so con- strued that, if possible, no clause, sentence or word, shall be super- fluous, void or insignificant." 16. "Another and kindred rule is, that every clause and word of a statute shall be presumed to have been intended to have some force and effect."' 17. "Another rule of construction is, that where a known statute has been reenaeted in terms, its interpretation will be presumed to have been also adopted by the legislature". t 18- "Long and uninterrupted practice under a statute, especially by the officers whose duty it was to execute it, is good evidence of its con- struction, and such practical construction will be adhered to, even . though, were it res integra, it might be difficult to maintain it. (Many cases.) ■ —Harrington v. Smith, 28 W. 43, 59. 19. "The rule now universally recognized and acted upon, is, that whatever else may be done with the words of a statute, they may never, in the language of Lord Bacon, ' be taken to a repugnant intent. ' ' ' 20. The words "every mortgage of real estate" are held to include those of insane persons or others under disability. — Encking v. Simmons, 28 W. 272, 276. 21. "It is our 1 duty to give effect to the intent rather than to the letter of a statute, where the intent is manifest. ' ' 22. "Words of a statute ought not to be interpreted to destroy natural justice. Rawson v. Bargue, Style's R. 81." 23. "Where words per se are repugnant and very absurd, what is necessary may be supplied by reasonable intendment and good con- struction. Dwarris on Stat. 726". —Haentze v. Howe, 28 W. 293, 295. 24. "A statute to abrogate or change" the common law "must be clearly expressed". See Common Law. — Orton v. Noonan, 29 W. 541, 545. CONSTRUCTION, OF STATUTES 235 25. "Courts cannot correct supposed errors, omissions or defects in legislation. ' ' 26. "The office of interpretation is to bring out the sense where the words used are in some manner doubtful, and where these are plain and unambiguous the court cannot depart from the language of the statute". 27. "It is only where the intention of the legislature is ambiguously expressed, so as to be fairly capable of two or more meanings, that inter- pretation or any latitude of construction is allowable. ?8. It is only in such cases that the courts are at liberty to accept or act upon what is termed the doctrine of equitable construction ' '. 29. "We are to look to the mischiefs to be remedied and the motives which led to the enactment, and to consider the whole and every part of the statute, and the apparent intention derived from the whole,* to consider the subject matter, the effects and consequences, and the reason, spirit, and policy of the law, and thus to arrive at the meaning of the legislature". ■< 30. "It being a remedial statute and its construction in doubt, we think we are at liberty to construe it liberally for the advancement! of the remedy and suppression of the mischief aimed at by the legislature ' '. 31. "In cases of doubtful construction the title of the act may also be referred to for the purpose of aiding in the interpretation. The act here was entitled an act further to protect laborers on railroads. " 32. In cases of revision or substitution of a new law for an old statute, "a change of language does not always indicate an intent to change the rule, but to express the same rule in shorter and more com- prehensive words". Shaw, C. J.„in Harwood v. Lowell, 4 Cush. 312. — Mwidt v. Sheboygan & F. By., 31 W. 451, 457. 33. ' ' The general understanding of a law and constant practice under it for so long a period (twenty years) by all the officers of government whose duty it has been to execute it, unquestioned by any suit brought or public or private action instituted to test or settle the construction in the courts, ought to be very strong, if not conclusive, evidence of its true meaning and application, and that they are such as it has thus received''. —Sccmlcm v. Ghilds, 33 W. 663, 666. 34. "Other circumstances being equal, or not preventing, that con- struction is always best which will best subserve the great primary object of the law-giver". ■■;■■'■>'■ 35. "Where the words of a statute are plain and unambiguous and such as are ordinarily incapable of different applications, or are. com- monly used in one general sense, we are bound to adhere to the ordinary meaning of them and to their grammatical construction, regardless of any equity which may be raised upon the statute, or of any public or private inconvenience or injustice which may follow". — State ex rel. S. B., etc., v. Com'rs, 34 W. 162, 165. 236 PROBATE AND GENERAL LAW, CODIFIED 36. "This familiar rule (Draper v. Emerson, 22 W. supra) in the construction of statutes is one whMi has been frequently recognized and acted upon by this court. ( Cases) ' '. —Westcott v. Miller, 42 W. 454, 461. 37. "If there be any inconsistency or conflict between the first para- graph of the section above referred to- (sec. 3935) and the provisions of-the subsequent paragraphs and sections thereof in the same chapter, then under subd. 15, sec. 4972, 'the section which is last in numerical order shall prevail, unless such construction be inconsistent with the meaning of the chapter'." —Baker v. Baker, Extr.,51 W. 382, 394. 38. In amending a criminal statute, in a restatement of the law as amended the omission of the words 'or more' after 'years', "and insert- ing the words 'or under', is a mere clerical mistake in engrossing or rewriting the whole section as amended, and does not affect the act, which merely struck out 'ten' and inserted 'twelve' ", there being no repealing clause. 39. "The rewriting and reenactment of the whole action with the amendment or amendments engrossed, is a mere rule of the legislature to secure a clearer and readier understanding of the place and effect of the amendment. It is no, part of the legislative act". — State v. Stillman, 81 W. 124, 126. ■ 40. Where the particular language of a statute adopted from another state has not "received judicial construction" there prior to such adop- tion, "this court is not bound to follow any subsequent interpretation there given, but may adopt such interpretation as seems to be most in harmony with the legislative intent. Rowan v. State, 30 W., 129 ; Hogan v. State, 36 W., 226. . 41. Nevertheless" such subsequent determination, long adhered to, "should be followed, unless it clearly appears that some other interpre- tation of the statute is more consistent with reason and will better effec- tuate the ; intent". — Paine v. Jones, 93 W., 70, 74. 42. "Punctuation or the lack of it cannot be allowed to override plain "rules of construction. 43. The rule is that qualifying or limiting words or clauses in a statute are to be referred to the next preceding antecedent, unless the context or the evident meaning of the enactment requires a different con- struction. (Citations) ". —Jorgenson v. City of Superior, 111 W., 561, 566. 44. " 'It is a universal rule of construction, founded in the clearest reason', said Black, C. J., 'that general words in an instrument or statute are strengthened by exceptions and weakened by enumerations.' (Cases)". —Glascott v. Bragg, ill W., 605, 609. CONSTRUCTION OF WILLS 237 45. "Titles of acts may be resorted to in eases of doubtful construc- tion. (Cases, supra) ". 46. "It is" "a cardinal principal of statutory construction that con- flicts, by implication or otherwise, between different statutes are not favored and will not be held to exist if they may otherwise be reasonably construed. (Cases)". — State ex rel. McManman v. Thomas, 150 W., 190, 194. 47. The words, of , a statute may be and are , construed not to "have their exact and precise meaning", but "given their colloquial and inexact meaning", where "the exact meaning would lead to unjust if not absurd results", — the general purpose of the law being also considered. . See also Promissory Notes, etc. —State Bank of L. v. Michel, 152 W. 88, 91. 48. Failure to insert in title the abolishing of a county court, held to invalidate the act. See Probate Courts. —State ex rel. Iiichter v. Chadbourne, 162* W. 410. 49. "Where there are two affirmative statutes on the same subject, one will not repeal the other if both can stand together. (Cases.) " — State ex rel. Boddenhaffeh v. C. M. & St. P. B. Co., 164 W. 304, 307. CONSTRUCTION OF WILLS. See also Advancements. Apter-boun Child." Ambiguity. Char- itable Trusts. Codicils. : Equitable Conversion. Legacies. Life Estates. Perpetuities. Precatory Trusts. Revocation. Trusts. Vesting op Estates, etc. Widow. Wills. Words and Phrases. Actions: for construction, 14. Condition: subsequent, 42. Action not necessary, 202. Attach and defeat, 200. Cloud on title, 235. ' Conditions void, 106. Equity: not in possession, 236. Determines in testator's life, 126. Partition suit, 168. - Impossible to perform, 85. Bemedy in ejectment, 88, 89. Precedent as to college, 77. Ambiguity: latent, 18. Precedent,! contingent, 198. Extraneous facts, 19, 183: Eepugnant to grant, 119. Intention unascertainabie, 144. Subsequent, defeasible, 264. Name of church society, 195. Subsequent is favored, 83. :' Necessary to construction, 241. . Time of payment only, 116. One-tenth of one-twenty-fifth, , 245, Vested or contingent, 199. 254. ' ' Death: without issue, 117. Patent, requiring rejection, 141, 143. After testator's death, 121, 122, 150. Three parts to four, 218, 220. During testator's life, 118,, 140, 269. Appeal: executor/ when, 35. Share go, by representation, 140. Error not appealed from, 187. Declarations: of testator, 21, 22. Cod^ejl: and original, one, 84-.- Evidence admitted, 23. -Revoked bequest, intestate, 181. Expressed at the writing, 56. Will as codicil, 120. Intention of scrivener, 57. 238 PROBATE AND GENERAL LAW, CODIFIED Defeasible devise, 210. Description: two lines, 18. General and particular, 74, 76. Lot 9 for lot 10, 24, 28. Northeast quarter as southwest, 255. Sec. 21 as sec. 22, .183. Devise : upheld if possible, 50, 52. Descent or purchase, 90. Fee, repugnant condition, 119. Several undivided, 100. Void in whole or part, 100, 101, 253. Discretion: of trustees, 206, 207. Must not be arbitrary, 208. .No person to determine, 225. Without words of bequest, 228. Doubtful cases, leanings, 86, 137. Heir to be favored, 25L Election: as to widow, 41, 47. Living person 's estate, 97, 98. Enumerations, exceptions, 66. Equitable, conversion: Pay over and deliver, 34. Realty treated as money, 12. Executor: appeal right, 35. Institute construction, 31, 204. , Six-year limitation, 44. Extrinsic circumstances, 1, 19, 46, 78. Changing descriptions, 19, 183. Inconsistent provisions, 27, 29. Meaning of words, 80. Name of church society, 195. Not to explain or add to, 25, 257. Not when unambiguous, 92. Position of testator, 157. Showing realty, circumstances, 258, 259. Will referring to another, 93. False assumption rejected, 53, 245. First duty in construing, 192, 193. From the will itself , 267. Paramount consideration, 246. Uncertainty of sense, 226, 241. Implied bequests, 177, 178, 265. Absolute silence in, 180. Court cannot reform, 180. Expressions in will, 179. Revoked bequest, intestate, 181. Inconsistent provisions, 27, 29, 212. ' Earlier vesting, than later, 215. Rule that latter prevails,, 214, 252. Indebtedness: to testator, 209. Barred by the statute, 209. .' ' Charge ' ', part of residue, 223. Intent of testator, 1, 11, 200. All-dominating rule, 136. First and great, rule, 62, 63. From the will itself, 26. Inconsistent with rules, 6. Intent of testator — continued Intent plain, uttermost limits, 260. Paramount consideration, 246. Surrounding circumstances, 60, 61. Technical meanings, 2, 153, 155, 158. Testator 's meaning out, 128. Vital thing is intent, 240. Intestacy: property, 4i, 169. Bequest revoked by codicil, 181. Complete disposition, 138, 156. Devise by implication, 177, 178. Absolute silence in, 180. Court cannot reform, 180. Expressions in will, 179. Facts of will; not intent, 174, 175. Physically written, 176. Presumption against, 75, 137, 191. Presumption not conclusive, 173. Joint tenancy exception, 102. Jurisdiction to construe: Actual contest unnecessary, 202. After assignment, county court, 237. Clouding the title, 235. County court, when, 16, 33. Courts of equity, 125, 201. Domicil state of testator, 48, 49, 72. Dower and homestead, 167. Ejectment, when, 88. Equity: trust or other equity, 234. Notice necessary, 17. Partition suit, 168. Pending administration, 201, 211. Statute not abridge equity, 205. Widow's intestate rights, 166. Keep in family, 263. Legacy, general, specific, 15. Construed not in specie, 188. Legacies: estate charge, 91. Future time certain, 197. Sale of remainder, 91. Life estate: in personalty, 7. Converted into money, 7. If one or the other dies, 121. Intent, specific bequest, 8. Power to sell and use, 82. Property left after death, 94, 96. Sold after decease, 9. Terminated before decease, 146. To trustee, to pay income, 147, 148, 151. Words of inheritance, 58, 59. Mutually agreed wills, 94, 95. Accept or reject, 97. Acts constitute election, 98. Living person's estate, 97. Trust declared therein, 99. Parties: executor entitled, 30, 110. Co-executor held essential, 111. CONSTRUCTION OF WILLS 239 Parties — continued Executor 's duly to act, 31, 32, 33, 204. Legatee not interested, 109. Trustee entitled, 203. Perpetuities, 103, 106, 149, 164. Phrases construed: Among his or her children, 127, 134. Annuity from proceeds, 43. As "trustee shall deem best," 206, 207, 208. Attend church regularly, 15 yrs., 194, 196. Charge upon land, 42. Contrary to public policy, 232, 233. Die without issue, 117, 150. Dispose of as they like, 87. Divided into 5 equal shares, 266. T>, Good moral character, 64, 65. "Household furniture & effects,'* 189, 190. If one or the other dies, 121, 123. If she survive me, 115, 116. Individual indebtedness, 79, 80. Inferential trust devise, 162, 163. In trust for, in popular sense, 154. In trust for, technically, 152, 153. Issue then living, 150. Money and, personalty, 36, 37. Moral and sober life, 146. "My lawful heirs", shall go to, 184, 185, 244. "Necessary for her needs", 228. "Needs it for his own use", 224, 225. Northeast quarter as southwest, 25fe. One-tenth as one-twenty-fifti, 245, 254. "Par value" to mean "face value," 238. "Payable to the legal heir", 262. Plan of division by thirds, 218, 219. Seem to him proper, llS. Such estate as may remain, 184, 186. Support and maintain, 81. Support charged on farm, 13. Surplus equivalent, 3., Three apparent parts to four, 219, 220. To pay and deliver, 146. "Treasury stock", held corpus, 216, ■ . • 217. Unfitness or unwOrthiiaess, 206. i "Unmarried at that date", 230, 23L Precatory words construed, 45, 112. Precedents, slight utility, 182. Adjudicated cases help, 242. Seldom control, 243. Reform wiU; cannot, 180. Rents and profits; not stated, 239. Residuary clause; effect, 38. Bequest revoked by codicil, 181. Residuary clause — continued Deceased sister's share, 266. Expressed in some form, 191. Future vesting thereof, 239. Intent to confine, 268. Void bequest, 108. Revoked bequest by codicil, 181. Became intestate estate, 181. Rules: none inflexible, 227. Broad as to contracts, 261. When not applied, 267. Several papers together, 73. Substitutional bequest, 114. Supplied or rejected, 70, 71. A "provision" supplied, 135. Bequest revoked; intestate, 169, 181. Clause, void, uncertainty, 112, 145. Language used and intent, 171. Law cannot unmake or change, 229. Northeast quarter as southwest, 255. One-tenth for one-twenty-fifth, 245, 254. Reconciled from will itself, 222. "Without issue", supplied, 83. Words not- added, intestate, 169, 170. Technical: meanings,' 2, 155. Courts will give name, 161. Not explicitly given, 162. Unnecessary in wills, 158, 160. Twb persons applicable, 4/5, 6. Two things applicable, 20. Vesting of estates: remainder, 103. As a future estate, 104, 148, 151. Condition precedent, 198. , Conditions void, 106. Estate' to trustees, 139, 147. Favor early vesting, 270. Future time certain, 197. Future, vested or contingent, 199. In fee, defeasible, 210. Intermediate death, 105. May never happen, 198. ' Vesting postponed, 163. Vests in first taker, 107. Without words of bequest, 228. Void: whole or part, 100, 101. Clause, for uncertainty, 142, 145. Conditions void, 107, 119. Construed 'valid if possible, 253. ■ " Part of residuum, 108. Widow, fails to elect, 41. Dower and homestead, 167. Insane, court elects, 47. i Intestate rights, 166. Will: speaks from death, 51, 52, 165. Ambulatory during life; 165. < Governed by law at death, 165. 240 PROBATE AND GENERAL LAW, CODIFIED Words construed: "All", is unambiguous, 172. "Capital"; accumulated profits, 40. "Children"; definition, 130, 133. Child, son, issue, 132: ' ' Heirs " of a living person, 185, 244. Illegitimates, as issue, 127, 131, 133. "Part" construed as fraction, 221. "Provision", after-born child, 124. "Provision", for widow, 47. ' ' Securities ' ', as to stock, 237. Words construed — continued "Stock" as animals only, 39. Words : Ordinary meaning, 54, 67, 213. Language molded to express, 250. ' Law and good morals, 129. Transposed or rejected, 249. Unless absurdity results, 55, 68, 69. Very broad and restrictive, 248. Words of will to subject, 256. Yield to peculiar sense, 127, 128. 1. "The rule is that the intent of the testator is to govern, and that to get at that intent, the instrument may be construed in the light of evidence, as to extrinsic circumstances and facts, which may enable the court to determine the true meaning of the words used." See also Ambiguity. —Hopkins v. Holt, 9 W. 228, 230. 2. It is "the familiar rule that the intention of the testator is the thing to be sought, and that, when found satisfactorily evinced, by the instrument as a whole, it is to govern, notwithstanding any technical or literal meaning of particular clauses to the contrary." 3. Held that the testator "used the phrase 'if that contract is consum- mated' as precisely equivalent to the phrase 'if there is a surplus of my estate after payment of the debts and legacies already given'." — Yearnshaiv's Appeal, 25 W. 21, 23. 4. If there are "two persons each fully and accurately answering the whole description, evidence might be received, or arguments from the language of the will and from circumstances might be adduced, to show to which of "these persons the will applied". 5. ' ' Where one person, and one only, fully and accurately answers the whole description, the court is bound to apply the will to that person". - —Barton v. Bdbcock, 28 W. 192, 198. 6. "The intent of the testator", "being consistent with the rules ^of law, must prevail. Smith v. Bell, 6 Peters 68." 7. "The general rule" is,— where there is a bequest of the personal estate, or residue thereof, "to one person for life 1 , with a remainder to others after the termination of the life estate, the whole property must be converted into money, and invested in permanent securities, by the executor, and the income only paid to the legatee for life". 8. "But if it can be gathered from the . will that the testator intended that such legatee for life should enjoy the property in its then condition, the bequest is specific, and the legatee is entitled to the possession and enjoyment of the property thus specifically bequeathed, although the bequest be made in general terms, and without any particular designa- tion of the property". 9. The bequest for life is general, but asithe property was tobe 'sold , ; , ; ■ CONSTRUCTION OF WILLS 241 after her death,' it is held that as to "the property which was of the character to be possessed, used, enjoyed and sold, that is, the personal chattels as distinguished from the choses in action, the legacy is specific", and that such legatee "was entitled to the possession, use and enjoyment of such chattels in specie, during her life". See also Life Estate. —Golder v. Little John, 30 W. 344, 350. 10, The word legatee in its broader sense is held to include a devisee. See also Legacy. '11. All "questions arising upon the proper construction of a will, must be determined by the intention of the testator, to be gathered from the terms of the will itself, as applied to the subject matter, and the surrounding circumstances. 1 Eedfield on Wills, 443". 12. "The testator intended that the proceeds of the sale of his real estate should be treated as money for all purposes, and hence", the dis- position thereof "is not a devise of real estate, but a 'bequest of money". —Chandler's Appeal, Est. of McCoy, 34 W. 505, 511. 13. The clause 'My good wife is to have a home and a good support as long as she lives on the home premises, board and clothing, money for reasonable expenses, or at her option $200.00 per year while she remains my widow, etc.', was held "to charge her support upon the home! farm" in the first instance, notwithstanding a subsequent trust provision for her "if all else should fail". —Estate of Goodrich, 38 W. 492, 496. 14. A suit for construction by a disinterested .executor, is in the nature of a bill of interpleader. See Interpleader. 15. Distinction between general and specific legacy of bonds given. See Legacies. .—Wheeler v. Hartshorn, 40 W. 83, 95. 16. "That the county court has jurisdiction to give construction to wills when that is necessary to the due administration of the estates of deceased persons, and may exercise the same as fully as can a court of equity, is settled in Brook v. Chappell, 34 W. 419" (See Jurisdiction). 17. There being no statute prescribing notice, and, ' ' although in Ruth v. Oberbrunner,40 W. 238, we held, "(following Bresee v. Stiles, 22 W. 120), that only those parties in interest who have notice of the proceed- ings are bound by, the order of the court in a case like this, ' ' yet, under the general statute (Sec.: 4044) for notice' in matters not specifically prescribed, under which the county'court gave three weeks general notice by publication by its order, it is held, "this gave the court jurisdiction of all persons interested in the proceedings, and binds them by the order, if such order is otherwise sufficient". (Notice now by statute, sec. 3791a) . — Appeal of Edw. Schaeffner, 41 W. 260, 264. 18. As to the north line of real estate devised to Mrs. B., there is no ambiguity in the will, "but when we look for her line, we find two .lines Zimmerman — 1 6 242 PROBATE AND GENERAL LAW, CODIFIED corresponding with the description in the will. Here we have an am- biguity, not in the will, but produced by extraneous circumstances. This is a latent ambiguity. ' ' 19. ' ' That such an ambiguity may be removed by proof of extraneous facts, is too well settled to be questioned or doubted." 20. Sir James Wigram states: " 'Where the object of a testator's bounty, or the subject of disposition (i. e. person or thing intended), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator.' (O'Hara's 2 Am. Ed. 188, Wigram Ev.). The principle of this rule has frequently been .asserted and applied by this court. (Cases) ". 21. "In Ganson v. Madigan, 15 W. 144, Dixon, C. J., discussing this question, says: 'If the evidence of surrounding facts and circumstances is admitted to explain the sense in which the words were used, certainly proof of the declarations of the parties, made at the time, of their under T standing of them, ought not to be excluded. (Cases) . 22. Such declarations, if satisfactorily established, would seem to be stronger and more conclusive evidence of the intention of the parties than proof of facts and circumstances, since they come more nearly to direct evidence than any to be obtained, whilst the other is but circum- stantial', (p. 154). 23. We are satisfied that the rule as here stated is supported not only by the great weight of authority, but by the stronger and better reasons. We therefore adopt it as the correct rule, and hold that the evidence of the declarations of the testator made when he executed the will, was properly received". — Morgah v. Burrows, 45 W. 211, 217. 24. On the question "whether the will admits of the construction that the testator therein devised lot 10", when in fact the will says "lot 9", which the testator did not own, and there is no other mention of lot 10, it is held that ' ' there is nothing in the will upon which to predi- cate" such construction, and that extrinsic evidence is inadmissible, under the rules of construction, following: "25. "One of the rules by which this question must be determined is, that evidence of the intention of the testator, extrinsic to the will itself, is not admissible for the purpose of explaining, construing or adding to the terms of a will ; 26. But such intention must be spelled out from the words of the will itself, read in the light of the circumstances surrounding the testator when he made it. 27. In cases where there are inconsistent provisions in the will, evi- dence of such circumstances is always admissible". (But, see also Will of Boeck, 160 W. post). , 28. "It might be otherwise had" there been other identification of the lot in the will, as: "For instance, had he devised to her 'lot 9 in block 20, occupied by A. ; ' or, ' which I purchased of B ; ', or even ' my lot 9 in CONSTRUCTION OF WILLS 243 block 20', and had it appeared that lot 10 alone was occupied by A, or that the testator purchased lot 10 alone of B, or that lot 10 was the only lot owned by the testator in block 20, in either case extrinsic evidence would be admissible to show the fact; and if established, the court would be justified in construing the will as a devise to the plaintiff of lot 10". ' 29. "This does not contravene the rule which rejects extrinsic evi- dence of the intention of the testator when offered to vary or add to a will; for in either of the cases above supposed, the will itself contains two inconsistent descriptions of the lot devised,, the one true and the other false; and the court would merely resort to extrinsic evidence to ascertain which was the true description, and would construe the will accordingly". See also Reformation. >' Sherwood v. Sherwood, 45 W. 357, 363. 30. "As a general rule, we suppose, whenever the provisions of the will are such as to render it proper for the executor to take the opinion of the court as to its construction and the rights of the parties under it, the executor is entitled to the aid of the court". 31. "In Heiss, Extr. v. Murphey, 43 W. 45, the chief justice observes that it was not the mere right, it was almost the duty, of the executor to take the opinion of the court upon the construction of the will and the validity of the disposition which it purported to make of the testator's property. 32. The remark is as pertinent and true in this case as it was in the case in which it was made. The executor had certainly the right to ask the direction of the court as to, who' took the residue of the estate under the will, in order that he might discharge Ms duty as trustee. 33. The question as to the meaning of the will came up on the final settlement of his account in the county court. That court had then necessarily to construe the will in settling its order of distribution". —Est. of Carl Schaeffner, 45 W. 614, 616. 34. The will contains a general power of sale, and uses the terms 'pay- over and deliver', as to definite sums and as to the residue, as to chari- table bequests, and it is held "the manifest construction of the will is, that it was the intention of the testator that his executors should convert ■all his realty, and execute his bequests in personalty only". See also Charitable Trusts. —Dodge v. WUliams, 46 W. 70, 97. 35. "Where all the persons interested in getting a different construc- tion from that given by the court having original jurisdiction, are parties to the action and have had their day in court", it is not the duty of the executor to appeal, except in case of parties who "are infants, insane, out of the jurisdiction of the court, or perhaps where, on account of poverty, they may be unable to carry on the litigation in their own .behalf"- 244 PROBATE AND GENERAL DAW, CODIFIED 36. Where "the testator had no estate except money and goods and chattels at the time the will was made, and at the time of his death," and a bequest is made to S. of '$100 in money; and all other personal property', it is held that, "the words 'personal property' in that clause were clearly intended to be limited to goods and chattels of ordinary kinds", the testator clearly indicating a distinction between money and personal property. 37. "Second. We think this clause was not intended to give to S. all the personal estate of the, testator, because there is another residuary clause in the will", which follows the specific bequests, , and which would become "void and of no effect if the bequest to S. carries all the personal estate". 38. ' ' Upon this subject Redfield says : ' One .of the most common grounds of inferring the limited signification of general terms, which might, in their more enlarged sense, include the general residue of the estate, or of the personal property, is, that in some other portion of the instrument a clearly defined residuary clause is found, which, as no testator would designedly create two residuary legatees, must very clearly show that one or the other was not so intended'. 2 Redf . on Wills, 113, and cases cited". —Wolf, Extr. v. Schaeffner, 51 W. 53, 59. 39. In a will devising a farm, to each of two sons, including to one 'all the stock, grain and farming utensils' thereon, and to the other 'all the stock and farming utensils' on his farm, with a residuary clause giving all the remaining real and personal property to the second son, it is held, that "the word 'stock' is used in a popular sense, as including the domestic animals, cattle, etc., raised and used upon a farm", and that it did not include "the clip of wool" from the previous year, stored upon the farm of the first son, but "that the wool in question" passed to the second son "under the residuary clause". —Baker v. Baker, Extr., 51 W. 538, 546. 40. Where the testator had original capital of $20,000 invested in a business, and some $23,000 additional .therein as accumulated profits, all having been used in the -business, — in a clause in a codicil, 'my present capital in said business to remain for a period of two years', and the executor collecting annually 'the net profits arising from said. business' for the benefit of the estate, 'capital' is construed to include only the original investment, and not the accumulated profits used in the business. — Dean, Extr., v. Dean, 54 W. 23, 30. 41. Where the widow fails to elect, she is not entitled to a share in intestate residue. See Widow. — Hardy v. Scales, 54 W. 452, 457. 42. A provision in a will should be construed as "a charge upon the land", preferably to a "condition subsequent", unless the contrary is "clearly apparent": See Construction of Deeds. — Weir v. Simmons, 55 W. 637, 641. CONSTRUCTION OF WILLS , 245 43. An ' annuity to be taken from the proceeds of my said farm each and every 'year', is held to mean "that the annuity shall be taken from the proceeds of the testator's farm 'each and every year','' and that he ' ' did not intend that surplus rents should be accumulated with which to meet any possible future deficiency in the rents to pay the annuity". 44. When, after provision as to the wife's annuity, the will gives to certain heirs "all the rest, residue and remainder" "of my real estate at the time of the decease of my said wife", no trustee being named, it is held that the estate vests in such heirs immediately, and that they have the right of immediate possession charged with the payment of the annuity, "the functions of the executor"' having ceased because of the statutory six-year limitation. — Est. of Pierce, 56 W. 560, 562. 45. As to words of entreaty, request, etc., construed. See Precatory Trusts. —Knox, Extrx. v. Knox, 59 W. 172. 46. Extrinsic evidence in general is not admissible.- It may be to place the court in the position of the testator. Where there is no latent ambiguity, it cannot be resorted to to control the meaning. See Wills. —Brimn, Extr. v. Schuett, 59 W. 260, 261. 47. The court elects for an insane widow and construes a "provision" for her, etc., in Gov. Washburn's will. See Widow. 48. Without determininjg the effect of such election on real estate in other states, ' ' this observation, however, may be made : 49. It is generally agreed by writers on the subject, and the rule has frequently been acted on by the courts, that the interpretation and construction of the will belongs to the tribunal of the domicil of the testator". ■— Van Steenwyck v. Washburn, 59 W. 483; 510. 50. ' ' The rules of construction are never strained to defeat a devise ; and when the instrument admits of a construction which will sustain it, it must be adopted". 51. "Another rule'V "is that the construction is not to be varied by subsequent events, but that the will speaks from the death of the testator, and its different clauses must be considered with reference to that time. 52. These rules for the construction of wills are found in the ele- mentary works on the subject, and are doubtless correct. (Citations) ". — De Wolf, Extr. v. Lawson, 61 W. 469, 476. 53. Where a "clause was evidently copied by mistake from a former will", referring to a daughter as unmarried, who was then in fact i married and had children, it is held' this "did not indicate the purpose to exclude her two children then living", and that the obvious intention "is not to be frustrated by a false assumption". "Like a false descrip- tion, othewise perfect, it may be rejected. Thompson v. Jones, 4 W. 10.6 ; Mann v. Pearson, 2 Johns. 37 ". '■'...■ 246 PROBATE AND GENERAL LAW, CODIFIED 54. This is in accordance with the universal rule ' ' ' that words are to be construed according to their plain ordinary meaning, ' unless the context shows them to have been used in a different sense, 55. Or unless the rule, if acted on, would lead to some manifest absurdity or incongruity". Thellusson v. Rendlesham, 7 H. L. Cas t 494". See also Vesting of Estates. —Scott, Extr. v. West, 63 W. 529, 551. 56. "In giving a construction to the words of the will", the court "was not at liberty to give any weight to the expressed intention of the testatrix at the time the will was executed, 57. Nor to the intention of the writer in drawing the will". 58. "Under the common-law rule the presumption was that only a life estate was intended to be conveyed, unless words of inheritance were used, or other words showing an intent to devise a greater estate". 59. This rule was changed, in England in 1837, and by our statute, sec. 2278, but "this act was not intended" to limit courts "to the words of the will alone in determining the extent of the estate devised, 60. Unaffected by the surrounding circumstances which may properly have force and be considered in construing the language used by the testator and thus determining the real intent of the testator by the use of such language". 61. "In the construction of the language used by a testator in his will, his manifest intention should be carried out, when it can be done without doing violence to the meaning of the language used. (Cases supra) ". —Dew, Extr. y. Kuehn, 64 W. 293, 297. 62. "It was said by Chief Justice Marshall in Smith v. Bell, 6 Pet. 68, that ' the first and great rule in the exposition of wills, to which all other rules must bend, is that the intention of the testator expressed in the will shall prevail, provided it be consistent with the rules of law '. 63. This rule has been asserted in a variety of forms, and enforced in all courts of this country and England whose decisions are authoritative, and it has never been shaken by adverse rulings". See also Life Estates. —Jones, Extr. v. Jones, 66 W. 310, 315. 64. As to condition as to "good moral character", and learning a trade, etc., see Policy of the Law. 65. "Manifestly the bequest tp H." on such condition, "is not to be held void on the ground of probability or improbability of the contin- gency on which it is limited to take effect. Sec. 2050 ; Scott v. West, 63 W. supra. The condition must therefore be held legal and binding". 66. " 'It is a universal rule of construction, founded in the clearest reason', said Black C. J., 'that general words in any instrument or statute are strengthened by exceptions and weakened by enumeration'. Sharpless v. Mayor, 21 Pa. St. 161. That rule has been applied by this court. Wis. Cen. R. Co. v. Taylor Co., 52 W. 90, 91". CONSTRUCTION OF WILLS 247 67. " It is now universally admitted that in construing a will the rule is to read it in the ordinary and grammatical sense of the words employed, 68. Unless some obvious absurdity, or- some repugnance or inconsist- ency with the declared intentions of the testator^ to be extracted from the whole instrument, should follow from so reading it. 69. 'Then the sense may be modified, extended, or abridged so as to avoid those consequences, but no further'. Abbott v. Middleton, 7 H. L. Cas. 115, and cases there cited. 70. 'Quite consistently with this rule, words and limitations may be supplied or rejected, when warranted by the immediate context or the general scheme of the will, 71. But not merely on a conjectural hypothesis of the testator's inten- tion, however reasonable, in opposition to the plain and obvious sense of the instrument.' Ibid;" and other cases, including Scott v. "West, 63 W. supra. "The foregoing principles" were applied in this case. See also Charitable Trusts. — Webster v. Morris, 66 W. 366, 389. 72. As to the law of the domicil governing in construction. See Domicid. 73. The three papers, the will proper and two "schedules A and B therein mentioned and thereunto attached", are to be construed together "as one instrument in law, and together constituting the will of the testator. (Cases) ' '. —Ford v. Ford, 70 W. 19, 45. 74. "Where the whole will indicates nothing to the contrary, a devise by words of general description is not to be cut down or limited by a subsequent attempt at a particular description. ( Citations ) . " 75. And "no presumption of an intent to die intestate as to any part of the estate is to be indulged, when the words of the will, fairly con- strued, are such as to carry the whole (citations) ",— ,76. And where the testator by a general clause disposed of 'all of my (his) real estate', and subsequently states 'the land so devised con- sists of one hundred and sixty acres', and undertakes to make a specific devise of one hundred and sixty acres, when in fact he owned two hundred and sixty acres, — it is held that all was devised, and that the additional one hundred acres were devised in common, in harmony with the foregoing rules of construction. — Will o/ Abram Ehle, 73 W. 445, 451. 77. A bequest, 'provided that the trustees have changed the name before my decease to Downer College, in memory of my husband,' is construed not effective where the name was not so legally changed before the testatrix deceased, being a condition precedent. —Merrill v. Wis. Female Col, 74 W. 415, 416, 248 PROBATE AND GENERAL LAW*. CODIFIED 78. "Extrinsic evidence of the facts and circumstances which will explain the language and show in what sense it was used by the testatrix, is admissible, though, of course, not to change the plain meaning of the words. 79. The words ' debt ' and ' indebtedness ' are not always used in the same sense ; that is, they do not always import a legal obligation on the part of one to pay another something due him. They often imply a mere moral or equitable obligation, as well as a strictly legal one ' '. 80. And it is held that parol evidence was properly admitted to show that by the words ' individual indebtedness ', the intention of the testatrix was to have satisfied an obligation which she may have been under no legal obligation to pay. (Cited approvingly as to latent ambiguity in Hanley v. Kraftczyk, 119 W. post). . .—Scott v. Neeves, 77 W. 305, 310. 81. A devise of realty to a son 'conditioned said son shall support and maintain my daughter A. out of said property' is held a charge on the property that may be complied with "by delivering to her specific articles necessary to her maintenance, having due regard to the condition in life of the testator and his family when he died''. —Dickson v. Field, 77 W. 439, 443. 82-. A will granting a life estate to the widow with power to sell and use proceeds- for support if necessary, construed. See Life Estates. —Larsen v. Johnson, 78 W. 300. ■ 83. Condition subsequent rather than condition precedent is favored and the words "without issue" are practically supplied to vest a trust estate in a child who was to receive the estate at the age of twenty-one, and she having previously died with issue, the issue takes. See Vesting of Estates. — Baker v. Est. of McLeod, 79 W. 534. i 84. "In construing the will we are to consider the original and the codicil as one instrument in law, and together as constituting the last will and testament of the testator. Ford v. Ford, 70 W. supra, In other words, every provision of the original will remains in force, except in so far as it was changed or modified by the codicil ' '. 85. As to vesting and divesting of an equitable estate, where conditions subsequent and precedent become impossible of performance, and 86. The rule of construction of wills, as to the leaning of the law, in various doubtful cases. See Vesting of Estates. — Burnham v. Bumhani, 79 W. 557, 564. 87. A holographic will of an illiterate old lady, stating, 'When I have done with my property, I want C. and his wife to pay' debts and make certain definite dispositions of personalty ; ' and the remainder to keep CONSTRUCTION OF WILLS 249 and dispose of as they think best*, — is held to dispose of to C. and wife, all ' ' the residue or remainder, absolutely, as their own property ' '. —Cheney v. Plumb,- 79 W. 602, 605. "i 88. In a suit in equity for construction, it is held that plaintiff has an adequate remedy at law in ejectment. 89. " 'So far as a will of real property bequeaths purely legal estates, and the devisees therein obtain purely legal titles to the land given, the enforcement thereof 1 belongs to the courts of law by means of the action of ejectment. The courts of law have full power to construe and inter- pret the instrument, and to determine the rights of the devisee. There is no necessity, and therefore no power, of resorting to a court of equity m order to obtain a construction of such wills.' 3 Pom. Eq. Jur. sec. 1155". See also Equity. — Kelley v. Eelley, 80 W. 486,' 489. 90. Whether by descent or purchase with a devise equal to what the law would give ? See Devises. ' ■ ■ ' 91. As to charge of legacies on both real' and personal residuary estates, and as to sale of remainder or reversion to pay legacies. See Legacies. — Will of Boot, 81 W. 263, 266. ' ' ' ! 92. It is held that as to the intent of the testator, the will ' ' is unam- biguous, in its terms, and hence that no testimony of extrinsic facts is admissible to aid in the construction thereof"; 1 93. While the will of the testatrix' husband, made at the same time, is referred to in hers, and indicated as being "substantially incor- porated" therein "as expressing a mutual 'agreement between them", and therefore not an extrinsic fact under the above rule, yet the court construed her will "by its own terms alone, without regard to the will executed by her husband (living) or any agreement with him". 94. A testatrix bequeathed to her husband ' my entire, estate^ both real and personal,' of every name and nature,' and 'further bequeath out of my and my husband's property such sum as may be necessary for the support, etc' of certain minors until majority, 'according to the • mutual agreement -between me and my husband, as is expressed in his will, ' and further 'after my death all the property that shall be left that was mine or my husband 's : shall be divided between his and my legal heirs, one-half to his. heirs. and one-half to mine,'. ,, • .t 95. The husband at the same time executed a similar will to his wife and such minors. She died first. , ' 96. "On the authority of the eases of Jones v. Jones, 66 W. 310 (See Life Estates), and Knox v.. Knox, 59 W..172 (See Precatory Trusts), it cannot be doubted that" the husband "A. took only a life estate in the property." ■;■: 97. "The will in terms disposes of the property of A., and gives him property belonging to the testatrix. The law is well settled that this put A. to his election whether he would take under the will, or reject 250 PROBATE AND GENERAL LAW, CODIFIED the provision made for him therein and stand upon his rights as they existed irrespective of the will". 98. Having propounded the will, qualified as executor, administered the estate, and claimed the residue, in the three courts, "we are of the opinion that these acts on his part are an election to take under the will. He must be held, therefore, to all the equitable consequences which result from such election ". " An election by him to take under the will binds him by all its provisions which affect him or his property". 99. The husband's estate must share in support of the minors, and at his death the two estates go to the distributees according to her will, ' ' and the court has ample power to declare, and should declare, a trust for their benefit in his estate, and has the power also to restrain him from squandering or otherwise disposing of his estate to the injury of such heirs". — Allen v. Boomer, 82 W. 364, 370. 100. Where, subject to a widow's life estate, a testator, gives all his real estate in "six sevefal devises" in undivided sixth parts, and some of such devises are void in whole or in part, by reason of conditions thereto annexed, the trial court's decision that all are therefore void because' "they altogether constituted 'a single scheme for the disposition' of the testator's" estate, is reversed; 101. And it is held, that as to three, that "they each took a vested fee of such devises, respectively, immediately upon the death of the tes- tator, subject only to the extinguishment of such life estate so vested in the widow. Dana v. Murray, 122 N. Y. 614; Scott v. West, 63 W. supra, and cases there cited." 102: The common-law change by statute as to "joint tenancy (sec. 2068), does not apply to devises made in trust (see. 2069), but this exception only seems to be applicable where the devises so made in trust are of the same estates so devised to two or more persons in solido or in common". - 103. The devise, subject to the wife's life estate, "to his 'said daugh- ter H., her heirs and assigns forever', the lands therein described, fol- lowed by this clause: 'But in case of her decease without issue, then in that case all the real estate so devised to her is to descend to my heirs at law living at the time of her decease, unless her husband shall survive her, in which case he shall be entitled to the same for and during the term of his natural life, in case he shall not marry again, and upon his decease or marriage the same shall descend to my heirs at law living at the time of his decease or marriage' ", it is held, — 104. "Immediately became vested in the said H. (sec. 2037), as a future estate limited to commencing possession on the determination, by lapse of time, of the precedent estate, created at the same time in the widow. Sec. 2034. 105. The mere fact that H. might have died prior to her mother did not prevent such estate from vesting in her immediately upon the death of her father. Scott v. West, 63 W. ; Webster v. Morris, ,66 W. ; Baker CONSTRUCTION OF WILLS 251 v. McLeod's Est., 79 W. supra. Such an estate is not only a free- hold, but 'may be termed a remainder'. Sees. 2029, 2035." 106. "Here the testator attempted by the conditions annexed to the devise (to H.) to suspend the 'absolute power of alienation' for a longer period than during the continuance of the 1 lives of his wife and daughter, and hence such conditions are necessarily void and of no effect". 107. And having reference to the statute (sec. 2041), "borrowed from New York", as construed in Purdy v. Hayt, 92 N. Y. 446, and other cases cited, as to a devise with a void condition vesting absolutely in the first taker, it is said: "This court has, in effect, held the same, thing. Scott v. West, 63 W. supra. We must hold that the devise to the daugh- ter (H),.'her heirs and assigns forever', vested the title in her, and that the unlawful conditions annexed thereto did not and cannot operate as a defeasance". —Saxton v. Webber, 83 W. 617,, 624. 108. If a bequest "be void the money bequeathed thereby passes under the residuary clause of the will, and becomes a part of the residuum of the state". Hawk. Wills, p. 40. 109. A legatee is held not ' ' a proper party to bring an action for con- struction of the clause of the will in question, not being in any way interested in any possible construction thereof, either as executor, trus- tee, or cestui que trust. Chipman v. Montgomery, 63 N. Y. 221 ; Bailey v. Briggs, 56 N. Y. 407. 110. The executor A., however, could rightfully bring the action, and he having answered to the merits and praying" judgment, jurisdiction as a court of equity is retained, construction being necessary. 111. However, J., one of two executors named, having declined to act- as such, but not specifically as trustee, and the executors as such being also ' ' nominated trustees of . a trust which was entirely distinct from the office of executor", it is held that J., is an essential party to the construction (cases), especially, as his- declination as trustee may "ren- der the execution of the trust impossible, because of the personal con- fidence reposed by the testator in the trustees whom he has named. 2 Perry, Trusts, 4th ed., 721, 729," —Sawtelle v. Ripley, 85 W., 72, 74. 112. A precatory clause of a will construed as merely advisory. See Precatory Trusts. —Tabor v. Tabor 85 W., 3l3, 317. 113. The mandatory effect of a trust to pay principal "as it shall seem to him proper, for her comfort and support." See Power. —Osborne v. Gordon, 86 W., 92, 95. 114. Where a testator provided a $6000 trustee bond and mortgage for his wife, the income thereof payable from his decease, 'as a suitable allowance', and, without referring thereto, afterward in his will pro- vided the income fpr her, from a like' amount, and some household furni- ture, etc., in addition, 'in lieu of all other allowance', — and she elected 252 PROBATE AND GENERAL LAW, . CODIFIED to takes under the will by not eleeting under the statute, it is held, that the bequest last made was substitutional", and not cumulative. ., —Graves v. Mitchell, 90 W., 306, 315. i 115. A will gives the wife. a. life estate in the whole property, and then states: "I will and bequeath to my son, J. f the sum of $200 to be paid to him by my daughter B. within one year after the death of my wife, if she survive me,.' ' the last four words being interlined, there being sev- eral such bequests; the wife died some. years before the testator; held,— 116. That the bequests "were not'intended to be dependent on" the wife 's surviving him. ' ' The bequest in each case is, in the first instance, absolute and unqualified; but it is to be paid by the residuary legatee within one year after the death of the life tenant, if she survive the testator". The conditions do not affect "the gift itself, but simply affecting the time of payment." 117. And after giving her the residue, the will states: "It is my further will that in ease my said daughter, B., shall die without issue of her body lawfully begotten, ■_ then and in that case the whole of my estate hereinbefore devised to her shall; be equally divided between my children," etc.; held, — that this vested "an absolute estate" in her. 118. "The rule is well settled that where there is a devise to one person in fee, and, in case of his death without issue, to another, the death referred to is death during the lifetime of the testator, unless there is language in the will which gives fair, clear, and reasonable ground for saying that the testator had a different intention. Washbon v. Cope, 144 N. Y. 287; Benson v. Corbin, 145 N. Y., 351." (Approv- ingly quoted and distinguished in Littlewood's will, 96 W., post.) —Lovass v. Olson, 92 W., 616, 618. 119. In a devise in fee "by apt and technical words, with a condition annexed to the effect that the devisees should not convey the same", "for a fixed period, ' ' the condition . is held ' ' void, because absolutely repugnant to the estate granted," and the devisees "took a fee-simple estate". (Many cases); Van Osdell v. Champion, 89 W.. 661; (See Devise). — Zillmer v. Landguth, 94 W., 607, 609. 120. Two wills construed as a will and codicil, and an apparent and named widow given dower right as the will directed. See Probate op Wills. —Dicke v. Wagner, 95 W., 260, 263. 121. A will gives the wife all the estate and appoints her guardian of the son, and just before the signature is added the words, "but if one or the other dies, the one that survives the other, take it all ' '. 122. Held, under the rule of Lovass v. Olson, 92 W. supra, "that the language of the entire will clearly shows that the testator contemplated that both his wife and his son would survive .him, and that the death which he referred to was a death after his (the testator's) death". : ;l 'CONSTRUCTION OF WILLS 253 123. The will, therefore, is construed "as giving the widow a life estate, which will be merged in a fee in case of the death of the son during her life, and, in the event of the widow's death prior to that of her, son, as vesting the remainder in fee simple in the son". —Littletvood's Will, 96 W. 608, 610. 124. As to the effect and meaning of a "provision" under the statute. See After-born Child. — Verrinder v. Winter, 98 W. 287, 290. 125. Courts of. equity construe wills "by reason of the jurisdiction of the court of chancery over trusts"., See Equity. —Miller v. Drome, 100 W. 1, 5. 126. A legacy with a condition precedent determining before the tes- tator's decease. See Vesting of Estates. . —Stark Extr. v. Conde, 100 W. 633, 640. 127. A testatrix bequeaths " 'one twelfth to the children of each of .my deceased brothers and sisters'; and 'in case of the decease of either, * I bequeath his* or her share to be equally divided among his or her children'." Subsequently she directs " 'that the money which,' by the foregoing distribution, would go to P., grandson of D.,' " a deceased brother, be placed in trust for him. " W. was an illegitimate son of a deceased grandchild of" a.deeeased sister; 128. "Words in the ordinary will yield to "some peculiar sense", "when it, is clear, from the instrument that. the latter meaning was intended", "the purpose of construction being not to get meaning into the language of the testator,' but to get the testator's meaning out of it; 129. That such meaning when ascertained is to govern, if not con- trary to law or good morals,, however strange it may be, or however much the rules of punctuation and the literal meaning of 'words, or even their arrangement in the writing, may be violated to reach it". 130. "The word 'children', when not rendered obscure by the manner of its use, has a plain and well-understood ordinary signification. It means the descendants of human parents in the first degree. That is its lexicographical as well as its ordinary legal meaning". 131. "Where there are no immediate children to whom the term can apply; or where it is manifest from other words in the will that ,it was used in the broad sense of issue or descendants, it may be construed to inelude\grandchildren, step-children, illegitimate children, or descend- ants, however remote. (Citations)". (Approvingly quoted in Est. of Sander,. 126 W. 660, 666; See Legitimacy). 132. '-'The description 'child', 'son', 'issue', and words of that nature, includes legitimates only. Cartwright v. Vawdry, 5 Ves. 530, is often quoted as a leading authority on that point", but "that is authority only to the point that a general bequest to children, without something to clearly give to the term an extended meaning,' includes legitimates only ' '. 254 PROBATE AND GENERAL LAW, CODIFIED 133. The same rule as to intention as to 'children' including other descendants, applies to "illegitimates, adopted children, step-children, or any other class to whom the term may reasonably apply", but "there must be some evidence to supplement the policy of the statute (sec. 2274) in order to warrant us in saying that the testatrix intended by the term 'children' to include the illegitimate son of" the deceased grand- child, and there being none he is excluded. 134. Held, that the testatrix intended the "shares bequeathed to the children of deceased brothers and sisters to go in the line of descent till it all reached a resting place, however remote, on a basis of absolute equality between the members of each class, the children of a deceased member of one class forming a new class to take per stirpes the share of such deceased member". — Will of Scholl, 100 W. 650, 655-662. 135. As to supplying an omission to express the testator's intention, and that a remainder so supplied is a 'provision'. See Apteb-boen Child. 136. "The comprehensive and all-dominating rule in construing wills is that the intention of the testator must be ascertained from the words thereof , in the light of all surrounding circumstances, and that intention be given effect". 137. And among the "multitudinous minor rules", relevant, are these: "first, that /in case of doubt such construction will be adopted as to support and give effect to the will, rather than to defeat it; 138. Second, that a testator is presumed to have intended a complete disposition of his estate, and a construction tending to that end will be preferred to one which results in intestacy as to any part. Mann v. Hyde, 71 Mich. 278; Given v. Hilton, 95 U. S. 591, 594". (But see Lawrence v. Barber, 116 W. post). — In re Donges's Est., 103 W. 497, 500. 139. An estate to trustees, with named children to have part of the income, and after the widow's decease, the corpus, — construed as vest- ing at once in the children, the share of a subsequently deceased child without issue going to his widow. 140. And the share of a deceased child to be by representation, is held to mean in case of decease before the testator. See Vesting op Estates. — Paitton v. Ludington, 103 "W. 629, 650. 141. An ambiguous will provides, in the first clause, for the paymenc of debts and expenses ' out of my real estate not given to my wife ; ' the 3rd clause gives specific personalty to the wife ; the 4th, and last, clause, gives a legacy to A. 'from the residue of my estate after my said wife has received her portion as above expressed,' and the 'balance of my said estate', to be divided among the children of deceased daughters. The 2nd clause reads: "I give and bequeath to my wife E., the undi- vided real estate of which I die seized. I also desire that my said wife CONSTRUCTION OF WILLS 255 shall control and have all the proceeds of said real estate until the same is divided either by the mutual consent of the parties interested or by the judgment of a proper court." The only realty was a homestead. 142. Held, that the 2nd clause "was void for uncertainty, but that the other portions of the will were valid," "leaving the homestead to pass as intestate property." 143. "The conclusion that there is a patent ambiguity in ,the will", requiring rejection of a portion, ' ' cannot be avoided. 144. No rules known to the law can be successfully resorted to for the purpose of determining what was intended by the language of the second clause." 145. "If that intention cannot be intelligently read out of the lan- guage used by the testator, such language must be rejected. Woerner Admn., 414". —Willey v. ,Clark, 105 W., 22, 23. 146. Where a will gave a life estate to the widow, one-third of the residue to each of two children, and the remaining one-third to a trustee for him ' to pay and deliver, deed or convey, ' to a son C, if he shall- ' for seven years from and after my death, or at any one continuous period of time, lead a moral and sober life in the opinion of the trustee, — and the son having so lived such a period, — it is held that "the trust is closed, and it becomes the duty of the trustee to turn over the' trust estate as directed in the will", notwithstanding the life beneficiary is still living. ^-Ordway v. Gardner, 107 W. 74, 80. 147. As' to a devise {subject to the wife's life estate) to trustees to manage, etc. 'for and during' the life of a son H. J., 'and to pay' him the income, 'and upon' his decease to convey the same to his issue then, living in fee, or, in case he shall die without issue, then in that case the same to descend to' the testator's heirs then living, in fee, — the son dying after the widow • without issue, a child having predeceased him, it is held : . 148. As decided in Saxton v. Webber, 83 W. supra, p. 631, the trust is valid under sec. 2081. 149. It " 'only ties up said estate so devised in trust during the life of said H. J., and hence is not repugnant' to" the perpetuity statute, sec. 2039. 150. '-' 'Issue then living' manifestly means living when H. J. shall die" and " 'die without issue', clearly means such issue as had just been mentioned as 'then living' ". 151. ' ' That H. J. was never seized of the fractional share of the lands so devised in trust, and hence that such lands could not pass, from him to his widow, the appellant". — Webler v. Webler, 108 W. 626, 629. 152. A will in effect apparently gives the whole estate to the wife' "in trust" for an only infant son, and "there are no appropriate words in the will which give a beneficial estate in the property to the wife" ; 256 PROBATE AND GENERAL LAW, CODIFIED 153. "The words 'in trust for' are technical words, and, if to be con- strued in a technical sense, would convey no beneficial estate to the wife"; 154. But the intent and surrounding circumstances, indicate that the testator, a university professor who drew his own will, used ''the word 'trust' in its popular sense", as "his belief or trust' that the devisee would carry out, his wishes", and it is upheld that he ''bequeathed to his widow both the legal estate and the beneficial interest in and to all of his property, subject only to the trust or burden imposed thereon for the benefit of the ' ' son. 155. "In construing a will, 'the intention etc.'," as stated in Yearn- shaw's appeal, 25 W. supra, "is to govern". 156. "A construction which gives effect to the will, and prevents either total or partial intestacy, is to be preferred. Lovass v. Olson, 92 "W. supra. 157. The circumstances surrounding the testator at the time of execu- tion — such as the condition of his family, and his relations to his rela- tives, and the amount and character of his property— should be taken into consideration, so that the interpreter may be placed as nearly as possible in the position occupied by the testator. Blake v. Hawkins, 98 U. S, 315 ' '. l —Demies v. Davies, 109 W. 129, 132. 158. "In construing wills, courts are not required to find apt and technical words- defining or creating the titles or rights conferred. 159. They are to find the intention of the testator from the will itself, and, that intent having been ascertained, are to adjudge such rights and title in the beneficiaries as give effect to it. (Cases, supra). 160. The testator may not know, and need not in terms declare, whether the estate to be taken by any shall be a fee, a life estate, or a trust ; 161. But, if he makes apparent the quality and characteristics of the . estate he intends to confer, the courts will give it a name and vitality, if not contrary to law". 162. Where a will devised the residuary estate after the death of the wife to the children "to have and to hold the same to them, and their heirs and assigns, forever," but none of the realty "shall be in any manner conveyed or sold until the expiration of twenty-one years from the date of this instrument", the executor to collect and divide the income, until such expiration, between the children, — the widow dying before such time, — it is held, That the will, "without saying so explicitly," provides that after "the death of the widow the real estate is vested in the executors named, as trustees to manage the same," and, 163. "That the remainder in fee devised to his children is postponed till the expiration of twenty-one years from the date of the will ; ' ' 164. And that under the statute as then (and now) existing, sec. 2039, the provision is not "an unlawful suspension of alienation," and "no term not exceeding twenty-one years is prohibited." CONSTRUCTION OF WILLS ■ 257 165. "A will is ambulatory during the life of its maker", "and is governed by the law existing at the time when it takes effect, upon the testator's death. ..Dodge v. Williams, 46 W., supra; De Peyster v. Clen- dining, 8 Paige, 295". — Will of Kopmeier, 113 W., 233, 237. 166. On petition to construe a will, "the county court did not have before it any question as to what were her (the widow's) rights in intes- tate property, • 167. And, indeed, the county court is by statute restrained from adjudging as .'to the existence of the right to dower and homestead." See also Widow. —Willey v. Lewis, 113 W., 618, 622. 168. Where "the parties claim title from a common ancestor", the construction of such ancestor's will being necessary to determine "the size of the interest of each", it is held that such construction may be properly had in an "action for partition". 169. Where, after a life' estate to the wife, ; a will gives one-half of the estate to one of three . children,, the other two children not being named and no disposition being made of the other half of the estate, such situation,, "is not sufficient to justify the presumption that he intended that property otherwise undisposed of should go to other heirs in equal shares, in absence of anything in the will to indicate such inten- tion"/ 170. Such remaining half goes to all the children as intestate prop- erty, and words to a different effect cannot be added to the will. 171. Baker v. McLeod's Est., 79 W. supra, and In re Donges's Est. 103 W. supra (See also AftbR-born Child), distinguished, as "in both cases the court construed the will according to the language used, and the intent of the, testator as gathered therefrom, in the light of surround- ing circumstances". — O'Hearn v. O'Hearn, 114 W. 428, 431. 172. ".The word 'all' ", "is too significant, definite, and unambiguous to warrant us in entering upon the field of interpretation and holding that, instead of all, only part was intended". 173. There is "a presumption that one who makes a will intends to dispose of all his property", "but this is inconclusive. 174. Intestacy and' the rights of heirs depend not on whether the testator intended such a situation should exist, or supposed it would exist, under his will, but whether he has, by the will, disposed of all his property". 175 "If as to any portion of the estate we are unable' to say that it is given by the will and the codicils, then intestacy results, no matter how averse the testator may have been thereto". (Cases). 176. "On the other hand, it is not absolutely imperative that the express and unambiguous words of gift and designation of beneficiaries should be physically written in the will, in order that the court may be able to find that the testator has thereby made donation". Zimmerman — 17 258 PROBATE AND GENERAL LAW, CODIFIED 177. "The duty of courts in raising devises by implication", "was not so carefully stated as. it should have been in the opinion in In re Donges's Est., 103 W. supra", but "was accurately expressed in O'Hearn v. O'Hearn, 114 W. supra, thus: 178. 'It is only admitted as a means of carrying out what the testator appeared on the whole to have really meant, but failed somehow to express as distinctly as he should have done. 179. In other words, a gift by implication must be founded upon some expressions in the will from which such intention can be inferred. 180. It cannot be inferred from an absolute silence on the subject. * The court cannot reform the will by changing its language, or add pro- visions not written therein. It can only construe the instrument as written'." ■-.<■< 181. "The mere revocation of a bequest to H. (by codicil), even accompanied by a confirmation of all of the rest of the will, probably would not, under the authorities, suffice to justify an implication of gift of tHat share to any or all the other beneficiaries, (cases) ", though there was a residuary clause which includes him. with the other children. 182. "As this court has declared, : however, precedents are of very slight utility in construing wills. (Cases)". See' also Power. ,; ' —Lawrence v. Barber, 116 W; 294, 304. 183. Extrinsic evidence admitted to construe sec. 21 as sec. 22, in the description of land in a will. See Mistake. —Eanley v. Kraftczyk, 119 W., 352, 358. \ 184. Where a will gives a life estate first to the widow and then to a daughter M., and 'such portion of my estate as may remain, shall be equally divided between my lawful heirs', and there were eight children at the decease of the testator, several of whom died, leaving children, before the decease of M. who also left children, it is held, — • 185. That by "my lawful heirs "', "the testator meant those persons who at his death were by law entitled to inherit his intestate real estate, to- wit, his eight children", and not those who would be such heirs had he "died at the time of the termination of the two life estates". 186. :The circuit court, without controversy, in effect held that the remainder vested absolutely in the eight children at the death of the testator, the descendants of decease^, children subsequently taking by representation ; however, it is indicated that such holding was erroneous and that the remainder should have gone "only to such members of that class as survivedi the period fixed for distribution and enjoyment", (Cassody, C. J., dissenting from this proposition only), 187. But "since those prejudicially affected rest content, and do not appeal, we could not reverse the judgment for such an error. (Cases) "- — In Re Cmdey's Will, 120 W. 263, 265. .;','! CONSTRUCTION OF WILLS 259 ; 1 188. It is held that the partnership interest was not to go to the widow "in specie", and that "the phrase 'all of my property of what- soever description, real, personal, or mixed, including my interest in the; firm, of K. H. & S.-etc.', did not dispose of that interest differently from any, of the other, property", in which she was given a ! limited estate, it heing so "mentioned merely for greater certainty": ; ,\ ; i : . . — Stehn v. Hcvyssen, 124 W. 583, 587. ■ 189,. Where a will, after, specifically disposing of the realty, and giving specific legacies, in its last clause bequeathed 'all the household furni- ture and, effects', and there being no further residuary clause, but a considerable remainder of personal estate, it is held, — ,190. That, under f'the rule ejusdem, generis'', the words 'and effects' "are limited to household: effects", and such remainder of personalty therefor is intestate property. : , , , . 191. As to a residuary bequest, "the intention to pass the whole estate must be expressed in some form", and "the presumption against intes- tacy" does not prevail "when the language of the will, fairly con- structed, is insufficient to carry the whole estate''. ' ' '■••< — Gallagher v. McKeague, 125 W. 116, 119. 192. "A will is not to be read in the light of rules for judicial con- struction merely because its 'meaning is challenged, and the challenge supported by reasoning on the assumption that such meaning is obscure". 193. "The first duty in examining a will for its purpose is to proceed as if it was unambiguously expressed. If, taking the will as a whole in the light of the: subjects dealt with, its meaning is plain, there is no legitimate room for' judicial construction, and none, should be attempted". (Approvingly quoted in Benner v. Mauer, 133 W. post). , ,, * -^-Mitchell v. Mitchell, 126 W; 47, 49. ; 194. A bequest to a son to be paid 'in fifteen annual payments', 'made conditional that' he 'attend the regular meetings* of worship of the E. church', and if he 'does not try in good faith to comply with' 'the above condition', 'I give and bequeath' the sum 'to the N. Lutheran H. & F. M. Assn.', — is held valid, and does not infringe art. 1, sec. 18, const., being the religious clause, and is not ' ' void for uncertainty and indef- initeness "..,,. , iii; -hi, , .,,,:,. 195. There being no society as named; but, "a society known as 'The H, & F. M. of the XL N. Lutheran C. of A\' ", '.'connected with the, E. church", at which testatrix attended,— "extrinsic evidence was admis- sible' to explain the ambiguity. (Cases, supra) ". 196. The "intention" is that the son "should, continue to perform the conditions of the will during the period of fifteen years while the bequest was being paid to him, and that, if during said time he should fail to do so, the remaining portion of the $1500 should be paid over to the society ", — the will! giving to the son a conditional and not an "absolute title", 260 PROBATE AND GENERAL LAW, CODIFIED 197. "It is true that legacies payable at a future time certain and not subject to condition precedent are vested, 198. While, on the other hand, legacies made payable on conditions which may never happen and placed in the possession and under the control of a trustee and subject to condition precedent are contingent. Scott v. West, 63 W. 529 (See Vesting of Estates). 199. And, when a future time for the payment of a legacy is defined by the will, the legacy may be vested or contingent as may appear to have been the intention of the testator upon a proper construction of the will. Stark v. Conde, 100 W. supra. 200. But in all cases the intention of the testator as expressed in the will must govern. And it is clear in the case before us that the testatrix intended the conditions should attach to the gift and defeat it upon failure upon the part of the legatee to perform", and that control "should remain in the executrix during the period necessary". — In re Paulson's Will, 127 W. 612, 615. 201. Notwithstanding the estate is pending, and "the questions involved will eventually arise for consideration in the county court", it is held that under its "plenary jurisdiction" in "chancery, over actions for the construction of wills, especially where trust powers are involved", the circuit court properly entertained an action for construction of the will. (Cases, supra). 202. Nor in such cases is it necessary that there should be an actual litigation begun or contest pending to justify the court in entertaining the action. 203. A trustee is entitled to the protection of the court in the execu- tion of his trusts, and, when real and serious doubts confront him as to his duty, is entitled to the advice of the court to guide him. 204. This court has said that in such a case 'it is not the mere right, it is almost the duty, of the executor to take the opinion of the court upon the construction of the will and the validity of the disposition which it purports to make of the testator's property'. Heiss v. Murphey, 43 W. 45." 205. "Ch. 163, L. 1905 (Sec. 3791a), passed after the present suit had been begun, gave formal and express recognition to the power of the county court to construe wills in a proceeding brought solely for that purpose; but it did not purport to abridge the already existing power of the circuit court to do that same thing". 206. The clauses 'giving to each of said descendants such portion thereof as my said trustees shall deem best', are construed as "entirely distinct from the discretion to withhold for unfitness or unworthiness under" a subsequent item of the will, -207. "And that this discretion (under the prior clauses) authorizes them to apportion equally or unequally, or to cut off one or more entirely and give the whole to the others". Sec. 2126. i 208. "It must be a sound legal discretion", and "there must be real CONSTRUCTION OF WILLS. 261 and substantial differences of situation germane to the subject and call- ing for difference in treatment in order to justify discrimination in amount". It must not be "arbitrary and capricious". 209. Obligations of indebtedness to the testator, provided in the will to be reckoned as part of the estate and charged to the i beneficiaries owing, though barred by the statute, are held properly so chargeable, though a beneficiary "obtained a discharge in bankruptcy" prior to the testator's death. See also Compensation op Admb., etc. —Stephenson v. Norris, 128. W. 242, 253.- 210. As to a devise vesting in ,fee, defeasible, on death without issue 1 , ■ and chargeable with legacy payment. See Vesting of Estates, etc.- — Korn v. Friz, 128 W.'428,i 431. 211. Though administration is pending, the circuit court has jurisdic- tion to construe, even on the question of distribution. See Concurrent Jurisdiction. , , 212. There being possible* conflict in two- paragraphs of a will, "the words in each paragraph" are "given such force and effect as to har- monize the whole instrument and permit all parts to stand together", (many cases) and so "carry out the intention of the testator. ■ > . 213. It is the duty of ; the court in construing wills to ascertain the intention of the testator, if that can be determined from the instrument itself. And in seeking out the intention words are to be given their plain and ordinary meaning. (Cases)." 214. In view of such possible harmonizing "upon its face," resort to "the rules of law that where two provisions : are in conflict, the latter prevails, 215. And the rule that the law prefers a construction in favor of the early vesting of estates, and a vested rather than a contingent estate", is rendered unnecessary. • .<-r >■ • >■•• 216. On the grounds, of "intention", and the facts, "the shares of stock purchased by the corporation", and held uncancelled as 'treasury stock', and "not i purchased with earnings or income", "must be regarded as outstanding and corpus of the estate and not income". (Cases) - ■ ' ' 217. "A corporation clearly has the right, to purchase its stock, keep - it alive, and treat it as assets". (Cases) See also Trust Funds. ■,'... . —Pabst v. Goodrich, 133 W., 43, 65. 218. In the will of Col. Gabriel Bouek, "an eminent lawyer", the residuary clause, — 'to be. divided into three parts; one thereof to R.' '& my niece M., such one part to be divided as follows; R. two thirds; of said part & M. one third of said part'; 'one of said three parts: to' M. M. ; 'one part to D' for life with remainder disposed of; 'to my nephew B. one part' etc. as to payment, — is, in harmony with the county and contrary to the circuit court, construed as* ' ,r <> i ;. 262 PROBATE AND GENERAL LAW, CODIFIED 219. "An intention that the plan of division was by thirds", and t6 ' ' dispose of one-third of the residue " to R. and M. together, R. to have two-ninths and M. one-ninth of the whole residue ; M. M. to have ' ' one- third of the residue of his estate ' ' ; and as, ' ' so far there is not much room for doubt" as to the meaning "expressed by unmistakeable words with reference to the disposition of the first two-thirds of the residue", 220. There "being the manifest intention" "to dispose of the whole residue by this' 8th paragraph, the quantity represented by the 'one part' to D. etc., and the 'one part' to B. must be determined by the number of persons between whom division is made and the fraction remaining undisposed of. This gives one-sixth of the residue to D. for life, remainder as stated, and one sixth thereof to B". 221. " 'Part' all through this paragraph is construed to mean a frac- tion, although in two instances, by apt words of reference the testator designated the value of this fraction, and in two instances he did not. (Citation)". 222. This construction "rejects no words as repugnant or meaning- less" (citation), and "also finds the intention of the testator from the will itself (Will of Kopmeier, 113 W. supra; other cases) ", and "recon- ciles all parts of the will, and it does not cut down, the clear gift of the first two thirds. (N. Y. cases) ". 223. An "indebtedness" made a ''charge' 'upon the bequest of B', "is to be considered part of the residue", and B's share of "the residue thus ascertained" "is then to be diminished by subtracting therefrom" such liability. 224. A clause that 'my executor can pay him the whole or part of the net income if satisfied that he needs it for his own use', "fairly con- strued, leaves the whole income of his portion to him, because it leaves him to determine what he shall need for his use, 225. The kind of use not having been specified, and no person being appointed to determine the needs of B. (Cases) ". — Will of Bmick, 133 W. 161, 163. 226. "Judicial construction cannot property commence except in the face of uncertainty of sense ; some fair doubt as to which of two or more reasonable meanings, if there be such, was intended". "We may well repeat what was said in Mitchell v. Mitchell, 126 W. supra". See also Equitable Conversion. Vesting of Estates, etc. —Benner v. Mawer, 133 W. 325, 329. 227. None of the rules of construction are "inflexible", the intention and circumstances governing. 228. A sum to be paid to the widow 'as it becomes necessary for her needs', without "words of bequest", held, absolute and vested. See also Vesting op Estates, etc. — Ohse v. Miller, 137 W. 474, 476. 229. "It is given to every person of mature years and of sound mind to make a will, and he having made one, legally, the law cannot unmake it ! : CONSTRUCTION OF WILLS , 263 or change it by injecting into it something the testator did not intend to put there. In re Moran's Will, 118 W., 177 (See Vesting op Estates, etc.) See also Adoption. —LkMer v. Thiers, 139 W., 481, 486. 230. A bequest provides for the support of an insane son, and that after his death the residue 'be divided, share and share alike,, to' my .nieces who may be unmarried at that da£e'i At the date of , the will, and of the decease of the testatrix and son, there were Jour nieces who had never married, and two who were married. Held, — • 231. "The gift is, in plain language, to such of testatrix's nieces as at the death of the son shall be unmarried", — the four; 232. That the question as to, whether the bequest "was contrary to public policy ' ', is undetermined, because the married nieces, appellants "are pot shown to have been the next of kin" or "beneficially inter- ested"; and, 233. That "it is obvious that the appellants were never, members of any" class, as "they could not at any time" "have received " ; the; bounty of the testator, "if this future estate was vested in a class". ,, ; , , — McMichael v. Petfenrwm, 140 W. 589, 590. 234. "A court of equity will not entertain a suit for, construction of a will where there is no trust or other independent ground of equity juris- diction. ( ( Citation)". ,,.-:.-,.. .< 235. Adverse claims clouding the title (quia timet) "gives that, court jurisdiction to proceed to construe the will so as to enable plaintiff (infant) to avail herself of her rights to the real property,, , , u 236. She has no remedy at law against these claimants who are' not in possession". ,, „. 237. As "the doubt as to ; title arose "after assignment of ,the estate, the county "court, did not have" "the adversary parties before; it", nor could it "bring in such adversary parties upon such an application". See also Infants' Sale of Realty.! .,..,, , —Rowley v. Rowley, 143, W. 325,; 327. 238. "While the word 'securities', construed strictly, does not cover corporate stock, but rather bonds or evidences of debt, it has undoubtedly acquired a much broader meaning by general usage", and it, is held here to cover stock certificate, and that by "the term 'par value' he meant 'face value' ". 239. As to "residuary estate" and future vesting thereof, and dis- position of rents and profits not specifically provided for. See Vesting of Estates, etc, — Will of Stark, 149 W., 631, 657, ,240. "In construing a will the vital thing is to ascertain what the testator meant, and his intention must be gathered from the instrument as a whole, read in the light of the circumstances which surround him when it was made. (Many cases, supra).. ;-.,.. , , • 264 PROBATE AND GENERAL LAW, CODIFIED 241. But construction of a will does not begin 'until uncertainty of sense is pretty clearly apparent'. Holmes v. Walter, 118 W., 409 (See Trusts.) 1 'We must have ambiguity before we can enter upon the field of interpretation or construction'. In re Moran's Will, 118 W., 177' (See Vesting op Estates, etc.) . 242. While adjudicated cases may be and some times are helpful in aiding in the construction to be placed on wills, 243. It is seldom that the language used and the surrounding circum- stances are so much alike in the case of two wills that the decision in reference to one establishes a precedent which controls the decision as to the other. (Cases)." 244. As to the' word 'heirs' of a person living, referring to the persons who were the heirs at -such .person's decease. See Heirs. — Flint v. Wis. Trust Co., 151 W., 231, 231 245. Where a will gives to four stepchildren, named as 'my children', 'to each an undivided one-fifth part of my estate and to' five named grandchildren, 'each an undivided one-tenth part of my estate', — it is held the testatrix intended to give ' ' one-fifth of her estate to each of the four members of the first class" and the remaining "one-fifth to be divided between the five members of the second class, or one-twenty-fifth to each, instead of one-tenth". 246. "In choosing between reasonable meanings of substantial equal dignity", the "paramount" consideration "is the rule that the intention of the testator should prevail so far as it can be read out of the language used to express it". 247. "The court has very great power" "to prevent failure of a testator's purpose, all in harmony with the rule that the legal intention of the testator is the one expressed in his language, though it may not be exactly the real intention he had in mind". 248. "Words may be given a very broad or Very restrictive meaning, going to the very limit of the boundaries of reason, . ' 249. Or may be transposed or rejected, or words not seen, may be read in place which are there by reasonable or necessary inference, or may vbe transposed or supplied, 250. Aild thus the language be moulded to express, so far as can reasonably be done, the testator's intention". 251. "The heir at law is to be favored" "in making a choice between reasonable meanings". 252. "Ordinarily, the last clause of two which conflict, is supreme, but it has no application where the effect would be to defeat the real intent". 253. "One of the most weighty rules for judicial construction is that of two reasonable meanings, one which will under a will void, in whole or in part, for uncertainty and one which will not, the latter is to pre- vail." 254. ' ' That she " " used the word ' one tenth ' by mistake, seems quite CONSTRUCTION OF WILLS , 265 plain. The improper definition of the fraction may be rejected", "and the will read as" indicated. In re Donges's Est.,- 103 W. supra. — Will- of Thiers, 155 W. 46, 48. ■ 255. Where "all the property, ; by specific mention, was distributed'' -except that one forty of , the two th,at the testator owned, being "the southwest quarter of the northwest quarter", — and he gave to a son, otherwise left out, "the northeast quarter of the northwest; quarter" which he did not own, it is held, in harmony with the county and against the circuit court's decision, that "the testator intended" such son to have such forty "not otherwise disopsed. of by his will". 256. "Uncertainty of moaning may arise as well by application of -.the words of a will to the subject with which it deals as from the words of the will themselves". 257. "While extrinsic evidence e,annot 'be resorted to for the purpose of changing or explaining a will, , 258. It may be for, the purpose of showing the circumstances character- izing its making and, , .„ , • , , , i 259. For the purpose of determining the meaning, in fact, and ' intended to be expressed therein, it may be read in the light of such cir- cumstances". And the quotation in Sherwood v. Sherwood, 45 W. supra, - "is in perfect harmony with what we have said", 260. "Where the intention of the testator is plain, the court may and should go to the uttermost limits of construction authority to discover it expressed in the language used to that end". 261. "In the field for judicial construction", "rules are just as broad in respect to wills as other instruments ' '. — Will of Boeck, 160 W. 577, 579. 262. Legacies 'payable to, the legal- heir', "in .ease of the death of" the legatee, is held, "under the peculiar circumstances" to "include legatees who had died prior to the making of. the will". See also Legacies. — Flemming v. Griem, 161 W. 608, 611. 263. Though ' ' some of the provisions in the will evince a purpose .to keep the property in the family of,, the testator, to prevent it from going to strangers to his blood", yet "the testator having made no limitation over to grandchildren we can make none". (Cases) 264. "The gift to the daughters" "is defeasible on condition subse- quent and in no event vests in the grandchildren. If a daughter had a child who attained majority living the daughter, the gift .vests in ,the daughter absolutely. There is no express gift over to grandchildren on the termination of the estate in a daughter. 265. A gift to a grandchild cannot be implied from a gift to a daugh- ter; defeasible if the daughter dies without children surviving. (Many cases) " —Will of Allis, 163 W. 452, 462. 266 PROBATE AND GENERAL LAW, CODIFIED 266. Where a will with various specific bequests directs the residue 'shall be divided into five equal shares', one "assigned to each of the five legatees or groups of legatees therein named", one being to a sister who "predeceased the testatrix, leaving no issue", — it is held, with the county court and against the circuit, that such share goes as testate estate to the remaining residuary legatees. Kerwin and Vinje, JJ., dis- sent. 267. "Rules of construction are not to be applied in ascertaining the true meaning of a will if that meaning can be* ascertained clearly from the will itself and the surrounding circumstances. Donges 's Est., 103 W. supra". Will of Ehlers, 155 W. supra. 268. "The fact that" "the residuary estate is divided into five equal parts, one of those parts assigned to each of the legatees or groups of persons therein named, is not inconsistent with the intentiqn of the testa- trix to confine the distribution of the residue of her estate to the persons or groups of persons named in such clause, and that is true irrespective of whether or not they constitute a class. Will of Reynolds, 151 W. 375 (See Descent and Distribution) ; Ives's Est., 182 Mich. 699". — Will of Waterbury, 163 W. 510, 514. 269. The general rule as to "death" of a child named in a will referring to "death occurring during the lifetime of the testator", — is found not applicable, 270. On applying the primary construction rule of intent, and the rule favoring early vesting. See Vesting of Estates, etc. — Will of Owens, 164 W. 260, 263. CONSTRUCTIVE TRUSTS. .See Implied Trusts. Trusts. CONTEMPT. Appeal: none in general, 1. Refusal to answer — continued Wilful disregard of order, 12. Disobedience of order, 7. Erroneous order violated, 9. Equity proceedings, 8. Court may punish, 9. Failure to admit, 4. Party cannot recover, 10. Proceedings, 3, 4. Party's right to hearing, 11. Punish for criminal contempt, 7. "While in contempt, 11. Eefusal established, 5. Refusal to answer, 3. Requiring him to answer, 6. Costs of proceeding, 8. Service defective, 2. 1. "The general rule in relation to convictions for contempt is, that there is no appeal," especially where the proceedings are "aimed at CONTEMPT 267 conduct which tends to interrupt the proceedings and impair the author- ity of the court." — State ex rel. Chappell v. (tiles, 10 W. 101. 2. An injunction being defectively served on defendant, held, "it is enough for us to know that he has knowledge that the injunction was granted. He was then bound to obey it. Advice of counsel cannot save him from the penalties of contempt. " —Mead v. Norris, 21 W. 310, 316. 3. "When the officer taking the deposition of a witness to be used in an action pending in a court of record of this state, reports to the court in which such action is pending, that the witness has refused to answer certain interrogatories propounded to him, the court; should, on applica- tion of the aggrieved party, grant an order that the witness show cause why he should not be required to answer such interrogatories. 4. On the return of the order, if the witness does not admit his refusal to answer, proper interrogatories in that behalf should be served upon him. 5. If it appear by his admission, or by his answer to the interroga- tories, or by proof, that he has so refused, the court will decide whether he ought to answer the questions which he has refused to answer ; 6. And if it is held that he ought, the court will make an order requir- ing him tq go before the officer and make answer thereto; and in such case the court in 1 its discretion may impose upon him the costs of the proceeding. 7. For disobedience, to such order the court should, on proper : ;pro- ceedirigs, punish the witness as for a criminal contempt: , 8. The practice here indicated prevails in courts of equity, and does not seem to contravene the provisions of any statute." 1 — State ex rel. Lamning v. Lonsdale, 48 W. 348, 370. 9. "That the court has the right, in vindication of its order, to punish the defendant for a wilful violation thereof, notwithstanding that the same ought not to have been granted, is unquestioned". >'■ 10. But a party not entitled to such in junctional order, can have no legal damages for a violation thereof, "not having shown to the court that she had any right which the court ought to protect by such order:" 1 11. "While "the courts will not grant him any favors" while in con- tempt, "a party against whom an injunction is issued upon an ex parte application, has the legal right to demand a hearing upon the question of the regularity and propriety of issuing the same (sec. 2781) ; and the fact that he may have Violated such ex parte injunction does not deprive him of that right. " —Kaehler v. Dobierpuhi, 56 W. 497, 501. 12. As to "an appeal from an order adjudging the appellant in con- tempt for the violation of an injunction", being "a wilful disregard of the order of the court, and is consequently a criminal contempt", it is 268 PROBATE AND GENERAL LAW, CODIFIED held, following In 1 re Murphey 39 W. 286, "not appealable" and "that this question of practice must be deemed settled". — T. of WUliamstoum v. Darge, 71 W. 643. CONTINGENT CLAIM. Accrues: unfailing test, 33. After become absolute, 12. Assets remaining only, 12. Balance from heirs, 13. Four years after time expired, 14. "Within one year, 14. After estate settled, 9. Allowed in county court, 22. Not in county court, 9. Remedy against heirs, 10. Agency contract bond; 21. After estate settled, 22. Before settlement of estate, 6. , After estate , settled, 22., Liability established, 5. Must become absolute, 7. Not after' estate settled, 9. "Which 'did not accrue, 8. Contingent: definition, 18, 35., Absolute, contingent, 27. Essential element of, 26. May ripen into absblute, 24. Uncertain as to. absolute, 25. Contribution : , action, 1. Contribution — continued As a contingent claim, 3. Filed after time expired, 36. One year after absolute, 4. Sureties right to, 2. 1 Covenants in deed, 29. Accrued when paid, 30. Action, nominal damages, 31. • Action, substantial damages, 32. Failure to present, 24. Fixed amount, definite time, 37. Joint notes not due, 17. Not contingent, 18. Provable as claim, 17. Partnership accounting, 34. Permissive statute, 19. Possible deficiency, 38. i Present as contingent claim, 11. Or after absolute, 11. Subscription contract, 23. Debt payable in future, 28. Surety's claim, 4, 15. Payment, absolute, 16. Trust funds not barred, 20. 1. Where an executor "was adjudged in default" Jan. 22, 1881, and died insolvent shortly thereafter without paying, and N. a surety, died thereafter, and the time for filing claims against N.'s estate expired June 6, 1882, and his co-sureties paid the -defaulted amount Dec. 7, 1882, — it was held, that an action brought by the co-sureties Apr. 15,. ,1882, in the name of the county judge, against N. 's executor, in circuit court for contribution; could not be maintained. See also Actions Against Extrs. & Admbs. 2. The co-sureties' right to contribution from N.'s estate, was a con- tingency, which became absolute when they paid the whole amount, and they "had two opportunities for proving their claim against N.'s estate for contribution. 3. First. They could have proved it within the time limited, as a contingent claim under sees. 3858, 3842, and 3859", and "insured the collection". "That can be done, as held by this court in Davis v. Mc- Curdy, 50 W. 569, where the claim against a surety on a guardian's bond was defeated by the discharge in bankruptcy, on the ground that it was provable against the estate of the bankrupt. CONTINGENT CLAIM 269 4. Second. The plaintiffs had one year in which to prove their claim after it became absolute, but under that section (3860) they would have been obliged to take their chances as to getting the amount out of the estate". —Ernst v. Nau, Extrx., 63 W. 134, 139. 5. The statutes as to contingent claims, sees. 3858-61, "refer to a con- tingent claim or liability which can be established by proof, and the amount ascertained. 6. Where a contingent liability exists, and the contingency happens so that the contingent liability beebmes an absolute debt which may be proven by the creditor before the settlement of the estate has been closed and the property distributed, there the statute bars the claim if not pre- sented", "within the time allowed!'. 7. The statutes refer to a contingent claim "which accrues and be- comes absolute before the administration upon the estate is closed". 8. "We do not think they were intended to-or do apply to a contingent claim like the present, which did not accrue and which was ineapable of being established by proof until years after the estate of B. had been fully'administered". ■■■■■■ 9. In this case where the deceased was surety on an administrator's bond, for license to selLthe realty, and the liability was not manifest until long after his estate was settled, it was held, "there was no remedy in" the county court : and, ,,.■..' 10. An action on the defaulted bond against the heirs, under- sees. 3274, et' al, was proper, and the heirs held liable for the amount of the default, and the costs of prosecution in both courts, but not counsel fees. ' . •'. —Mann, Judge v. Everts, 64 W. 372, 377. 11; The claim of a surviving partner being ' ' a contingent claim against the estate of the deceased partner, the plaintiffs had an option either to present the claim against the estate as a contingent claim, under sees. 3858, 3-859, or to delay until the claim became absolute by the settlement of the affairs of the firm, and then present the claim under sec. 3860, within one year after it shall become absolute. 12. When a creditor presents a claim under sec. 3860, he can only be paid out of the assets of the deceased still' remaining in the hands of , the executor or administrator not then lawfully distributed or < applied to the payment of other debts theretofore presented and allowed against the estate;" 13. "And sec 3861 provides that when, at the, time such claim is pre- sented under the provisions of sec. 3860, the executor or administrator shall not' have sufficient . assets to pay the whole of such claim, the creditor shall have the right to recover" the balance from the heirs or distributees who have received property liable for debts. See also Sur- viving Partner. ' —Logan v. Dixon, 73 W. 533, 538. 'it ... 14. The claimant W. "stood in the relation of suretyifor the" decedent L, "the liability of L. to W. was a contingent liability, and remained so 270 PROBATE AND GENERAL LAW, CODIFIED until W. actually paid money on account of his obligation." "The claim of W. then became absolute, and the, statute gave him one year from that date to present it to, the county court. Sec. 3860." And though filed nearly four years after time limited for filing claims had expired, but within such year, the claim was held duly filed as a contingent claim. 15. ' ' It was settled by this court in Ernst v. Nau, 63 "W., supra, that the claim of a surety against a principal debtor remains contingent until the surety pays the debt ; 16. And that, if the debtor has deceased, sec. 3860 gives the surety the right to present his claim, which by such payment became absolute, to the county court for allowance within one year thereafter. ' ' ■ — Webster v. Est. of Lwwson, 73 W. 561, 571. 17. Notes "not due until some years after the time" limited, severally and jointly payable, the claimant "not liable thereon as security", were held "provable as a claim against the estate within the time limited in the order", under see. 3843, and held not "a contingent claim within the meaning of sec. 3858, and hence provable within the time prescribed by sec. 3860 as construed by this court. (Cases supra)." 18. "A contingent claim, within the meaning of the statutes, is one where the absolute liability depends upon some future event, which may never happen, and which therefore renders such liability uncertain and indeterminable. Sargent's Admr. v. Kimball's Admr., 37 Vt. 320; Edwards v. Roepke, 74 W, 575 ; Foster v. Singer, 69 W. 392". —Austin, v. Savelcmd's Est., 11 "W. 108, 113. 19. In a suit against a trustee as to proceeds of the sale of lands in fraud of heirs, where the ' ' claim did not exist until the period for pre- senting claims against the estate of S. had expired", S. being the testate of the trustee, and the estate not having then been closed^ it is held as to sec. 3860, concerning such subsequently accruing claims to be proven in the county court within one year after accrual, that "the language of the statute is permissive, and it may be doubtful if the intention was to bar all actions on such a elaim unless the remedy in this section was resorted to;" 20. But, without deciding this question, it was indicated that this "claim for the proceeds' of the sale was not one strictly or solely against the estate of S", but that the proceeds in general "are trust funds, and he (the testamentary trustee) holds them as trustee" for the plaintiffs; "hence that the failure to present the claim for allowance against the estate of S. was not a bar to this action", and it was so held. —Bvron v. Scott, Trustee. 80 W. 206, 210. 21. In a bond "for the faithful performance of'/ an agency contract to termination, the amount due at such termination is "one indivisible claim", and "did not accrue" "before the termination of the agency, nor until after the time limited for the presentation of claims against the estate of W. (surety thereon) had expired. '»''!- CONTINGENT 'CLAIM 271 22. It was then a claim proper to be audited, under section 3860, after the expiration' of that time." So filed and allowed : after "his estate had been settled". —G. & J.Michel B. Go. v. Est. of Wightmcm, 97 W. 657, 660. 23. Sees. 3269 et al., "contemplate an action for money only", and it is held, that an action thereunder' is properly brought against the legatees, to recover on a "call for a payment upon the subscription con- tract" for stock held by the testator, being a claim that "was contingent till after the administration of the estate" was completed, and had not become absolute for filing in the county court. 24. "All claims not proper to be allowed, but which may be exhibited to the county court and may ripen into absolute; liabilities, are contingent, and a failure to present them while the contingent character exists does not affect the right of action under sec. 3269. Ernst v. Nau, 63 W. supra; Mann v. Everts, 64 W, supra". ■■}' 25. "If a liability exists 'but it is uncertain whether it will ever be absolute in the sense of being enforceable, it is contingent within the meaning of the statute. ' 26. The terms 'debt', 'absolute debt', 'liability'^ and 'absolute liability', are used" in connection with "the* fact "that the essential element of a contingent claim is uncertainty as to whether it will ever be enforceable, 27. True, so long as a debt is absolute it is not contingent, but it is not absolute if its enforceability is dependent upon a contingency that may ■ never happen". (Quoted and approved in Davis v^ Davis, 137 W. post). 28. A stock "subscription liability" "is a debt", "but not an absolute debt", being "payable in the- future". ■ "--■ • — South MUwaukee Go. v. Murphy, 112 W. 614, 620. 29. "Where claimant received title to realty "by deed with full cove- nants" through another party who had title "with full covenants" from the deceased, and, after much litigation -and foreclosure, he paid the incumbrance, thereon, and' filed his claim against the estate, ten days after payment, but four years after expiration of the time for filing general claims, it' is held : 30. That as against the deceased, his "cause if action did not accrue till he 'paid' off 1 the incumbrance", and that "his claim was seasonably filed", under sec. 3860. 31. While ' ' an action for nominal damages accrues in the circum- stances of this ease as soon as the deed is given", " ' 32. "But until eviction in such a case, there is no opportunity to recover substantial damages. such as in this instance, the' amount paid to remove the incumbrance, till payment occurs". (Cases). 33. As to when "the cause of action accrues", "the unfailing test is, in the absence of some statute to the contrary, whether the' party assert- ing the claim' can successfully maintain an action to enforce it". (Cita- tion). Recovery sustained. — In re Est. of Hmlm> 133 W., 140, 144. 272 PROBATE AND GENERAL LAW, CODIFIED 34. "The mere fact that an accounting (of a partnership) is neces- sary to determine the amount due does not make a claim a contingent claim. 35. A contingent claim is one which may never accrue. 9 Cyc. 73. A contingent claim is one where the liability depends on some future event which may or may not happen and therefore makes it uncertain whether there ever will he a liability. (Many cases). What constitutes a contingent claim is very clearly stated in the case of South Milwaukee Co. v. Murphy, 112 W. supra, (quoting as above)." See also Claims. « — Davis v. Davis, 137 W. 640, 648. 36. A claim for contribution accruing after payment, held properly filed after time expired, under sec. 3860. See also Contribution. —Est. of Ryan, 157 W. 576, 579. 37. "A fixed amount due at a definite time in the future is not a contingent claim within the meaning of sec. 3858 ' '. . 38. The "contingency" of a possible "deficiency after sale" on fore- closure, whether the note is due or not, does not make "the claim a con- tingent one". See also Mortgages. , —Schmidt v. Grenzow, 162 W. 301, 302. CONTINGENT INTERESTS. See Future Contingent Estates. Trust Variation. Vesting op Estates, etc. CONTRACTS. See also Agreements. Bond for Maintenance: Commissions op Brokers, etc. Consideration. Construction op Contracts. Cove- nants. Deeds. Entire Contracts. Frauds, Statute op. Joint Ob- ligations. Land Contracts. Marriage Contracts. Married Woman. Novation. Options. Parol. Rescission op Contract. Services. Unlawful Contracts. Writings. * Agreements merged in, 31. Benefit, etc. — continued Benefit of third party, 15, 107. Material man, 1Q2. After rescinded, 21, 22, 98. Realty and support, 96. Bond of principal, 102. Bight of action, 20, 105. Condition precedent, 110. Under seal, 16. Contract not reopened, 97. Bequeath property, 65, 95. Debt due to third, 106. Deed conveys merely, 46. Enforced by third, 83, 84, 103, 104, Executory contract, 12. 107. Express contract, 43. Land benefit, not money, 108. Failure to examine, 57. CONTRACTS 273 Foreign contract^ 52. Capacity of parties, 78. Expressed therein, 55. , Law governing, 53, 68, 72. Made in two states, 82, 90, 91. Married woman, 70. Payable where, 54.; .Performance, 52. Personal contracts, 73. Public policy, 69, 77, 79. Remedies, 74. Statute of Frauds, 89. Universal comity, 71. Validity, 75. Void when payable, 56. Form immaterial, 66. Informal contract, 85. Negotiations only, 87, 88. Preliminary only, 86. Proposal and assent, 67. Implied contract, 28, Infants' contracts, 8. Voidable, 8. Ingenious contract, 99, 100. Inheritance contract, 109. Letter: mailed, 19. Manual delivery, 58. Inoperative, 59. Parol evidence, 60. Married woman, 70. Foreign contract, 71. Note, evidence only, 47. Not executed, 93. , May be shown, 94. Offer: effect of, 17. Assent presumed, 35. Business failure, 38. By telegram, 37. Continuing one, 32, 36. Ripened, 33: Signed by one, 18. Until revoked, 34. Option contract, 40. Administrator, 51.-'"' Option, etc. — continued ; Enforceable, 41. Parol contract, 4. Part performance, 4. Statute of frauds, 4. Parol variance of, 1. Additional consideration, 26. After statements, 25. Consistent with, 49. Deed or note, 48, 50. Delivery condition, 60. Executory to executive, 13. Fraud or mistake,, 7,. 30. Part performance, 42. Previous agreements, 23. Previous statements, 9. Partial contract, 45. Deed or note, 46, 50. Presumption, 48. Proved by parol, 49. Part performance, 42. Payments applied, 2. Plural form, 80. Single signer,, 81. Preliminary acts, 87, 88. , Quantum meruit, 6. Be-adopted contract, 61. Reasonable knowledge, 92. Reasonable value, 63. Contract conflict, 64. Recitals in deed, 62. Reform and enforce, 5. Rescind; for fraud, 11.. Consideration, 27. Unlawful contract, 12. Revenue stamp, 14. Services contract, 1. Stock corporations, 101. Unilateral contract, 17, 39. Void contracts, 29. Indivisible, 44. Presumption, 44. Valid acceptance, 29; Writing complete, 24, 26. 1. "A party to a written contract, cannot vary or control it by a parol agreement, made before the written contract was entered into, or simul- taneously with it". —Goober v. Tappcm, 4 W. 362, 369. 2. Creditor uninstrueted by the debtor may apply payments as he likes on admitted or provable contracts. See Payments. —Stones v. Tallot, 4 W. 442, 449. 3. Contract for services is not essential to recovery, where the ordinary relations of parent and child did not exist, and there was an under- Zimmerman — 18 274 PROBATE AND GENERAL LAW, CODIFIED standing that the services were not to be performed gratuitously, in the case of a child working after he becomes of age. —Fisher v. Fisher, 5 W. 472, 474. 4. "Part performance of a parol contract for the purchase of lands, accompanied by the delivery of possession, is sufficient to take the case' out of the statute of frauds," but "mere payment of a portion of the purchase money", even by tenant in possession as tenant, will not. — Blanehard v. McDougal, 6 W. 167. 5. "Courts of equity" will reform and decree specific performance in the same suit. See Reformation. Waterman v. DvMon, 6 W. 265, 273. 6. Where the contract is not complied with, but the work is accepted and used, compensation of reasonable value of the benefit can be re- covered. See Quantum 'Meruit. — Taylor v. Williams, 6 W. 363. 7. Fraud or mistake may allow prior parol agreement to vary a written contract. See PArol. — Reed v. Jones, 8 W. 392, 413. 8. Contracts of infants are voidable on their part. See Infants. . —r-Dwvies v. Turton, 13 W. 185. 9. A written contract "must be assumed to express conclusively the final intentions of the parties, and no evidence of their previous state- ments or negotiations is admissible for the purpose of contradicting or varying it in any dejgree." ' — Sigerson v. Gushing, 14 W. 527, 547. 10. Intent must be obtained from the language of the contract, and not outside See Construction of Contracts. —Farmers L. & T. Co., v. Bank, 15 W. 424, 438. 11. When rescinded for fraud it must be in toto. See Construction of Contracts. —Hendricks v. Goodrich, 15 W. 679, 682. 12. "It is only where the (unlawful) contract is executory, that a rescission and a recovery are allowed". See Unlawful Contract. —MiUer v. Larson, 19 W., 463, 467. 13. Contracts cannot be changed from executory to executive by parol evidence. See Parol. — Godfrey v. Germain, 24 W. 410, 416. 14. The omission without fraud of a revenue stamp does not invalidate a, written agreement, "although the law provides that it must be stamped." < — Smith v. Scott, 31 W. 437, 439. CONTBACTS 275 •' 15. "It is well settled in this state; that when one {person, for a valu- -able consideration, engages with; another, 'by simple contract, to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of. such engagement. (Cases cited)''. : : ■ . . ' . 16. It is here held that "this principle extends beyond mere simple contracts", and "is applicable to contracts under seal." 1 ' ■•> v —McDowell v. Laev, 35 W. 171, 175. 17. "An offer, unaccepted, is not a contract, because it is ex parte. "When accepted, it Ceases to be an offer and becomes a contract. 18. If the offer be in writing signed only by the party making it, and is merely accepted, not signed, by the other party, ' it becomes what civilians call a unilateral contract, binding both 1 parties". '',' —Huichmsonv! G. & N. W. By., 37 W. 582, 601. 19. A contract may be completed by a letter mailed but never delivered. See Writings. —Washburn v. Fletcher, 42 W. 152, 166. 20. ' ' Irt the i present case, the defendant, for a, valuable consideration; engaged with his father to pay the debt, which the latter owed the plaintiffs, and, within the above rule, (McDowell y. ; Ijaev, 35 W supra, approved) the plaintiffs may maintain this action to recover the unpaid balance of such debt. ' ' 21. "It is quite immaterial, if ; the defendant's covenant to pay his father's debt was, afterward rescinded by mutual agreement between the parties tq it,i Before that was, done, tp.e plaintiffs had been informed of the covenant, and made no objection thereto; indeed, the fair infer- ence from the testimony is, that the plaintiffs fully assented thereto". , 22. "Certainly, after such notice, ( and assent, the covenant. could not be rescinded to the prejudice of the plaintiffs, without their consent." — Bassett v. Hughes, 43 W. 319, 321. > 23. "No principle of law' is 'better settled than that a written con- tract cannot be varied or controlled by parol agreements or under- standings between the parties , made, previously to or simultaneously with the execution of the written: contract. , 24. 'When parties have deliberately put their engagements into writ- ing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner ■ of their undertaking, were reduced, to writing; .,- '25. And all .oral testimony of a previous colloquium between the parties, or of conversations or declarations at the time when it was com- pleted, or afterwards, as it would tend, in many instances, to substitute a new and different contract for the one which was really agreed upon, 276 PROBATE AND GENERAL LAW, CODIFIED to the prejudice, possibly, of one of the parties, is rejected.' 1 Greenl. Ev. Sec. 275." —Cooper v. Cleghom, 50 W. 113, 120. 26. "The writings purport to state the whole contract, and in the. absence of any claim of fraud or mistake they must be held to contain the whole contract", and evidence of additional consideration cannot be received. See Parol. Consideration. —Hubbard v. Marshall, 50 W. 322, 327. 27. May be modified or rescinded .without a new consideration. See Rescission., ,,''— Kelly v. Bliss, 54 W. 187, 191. 28. ' ' Circumstantial evidence, and evidence by which a contract might be implied in the absence of direct and positive evidence of an express contract, if sufficiently clear and satisfactory, may establish an express contract". —Pritohard v. Pritcfiard, 69 W. 373, 377.. 29. "The original contract is void, it being for the sale of goods of over $50, and no payment or delivery, and it not 'being in writing," and the subsequent "delivery of the organ on Sunday was also void." But it is held that 'there Was a subsequent admission of delivery and ac- ceptance, by the plaintiff afterward saying "that 'he liked it first rate,' and asked about the book and stool". —Schmidt v. Thomas, 75 W. 529, 531. 30. The law is "firmly settled in this state, to the effect 'that, in the absence of fraud or mistake, proof of antecedent or contemporaneous verbal agreements between contracting parties cannot be received to alter or control their written agreement'. Herbst v. Lowe, 65 W. 320; (other cases). 31.. 'This is on the theory that all such prior negotiations are either merged in or excluded by the contract finally made. The same is true in respect to any prior preliminary agreement, in so far as it is covered by, or in conflict with, the final contract'. Ibid," —BaUv. McGeoch, 81. W. 160, 171. ' 32. " In the language of a Massachusetts case cited : ' Though the writ- ing signed by the defendant was but an offer which might be revoked, yet, while it remained in force and unrevoked, it was a continuing offer during the time limited for acceptance; 33. And during the whole of that time it was an offer, every instant; but; as soon as it was accepted, it ceased to be an offer merely, and then ripened into a contract. ' Boston & M. R. Co. v. Bartlett, 3 Cush. 227. (As to this quotation, it is said Abrahams v. Revillon, 129 W., 235, 244, — i"that language has received the express sanction of this court"). 34. 'Willingness to contract once manifested is presumed to continue for the time limited by the offer, or, if not so limited, until expressly CONTRACTS 277 revoked, or overcome by a contrary presumption'. Mactier's Admrs. v. Frith, 6 Wend., 103, 115. ,35. In the opinion of the court in that case by Mr. Justice Marcy, it is in effect said that assent to a proposition may sometimes be presumed from a party's silence. >, 36. In a very recent English case it is said by Lord Herschell 'that a person who has made an offer must be considered as continuously mak- ing it until he has brought to the knowledge of the person to whom it was made that it is withdrawn', and he cites. several cases in support of the proposition. Henthorn v. Fraser, (1892) 2 Ch. 31.. See also, Stevenson v. McLean, 5 Q. B. Div. 351. ... 37. These decisions are an line, with our own, adjudications. Matteson v. Scofield, 27 W., 671 ; Washburn v. Fletcher, 42 W., supra ; Hawkinson v. Harmon, 69 W., 551. We must hold that the defendant's offer by ! telegram remained open until it was accepted. " 38. So held, though there was a business failure after the > offer chang- ing the commercial situation, both parties, being cognizant of the failure six days before the acceptance, during which time the offer might have been withdrawn. — Sherley v. Peehl, 84 W., 46, '52. , 39. "The mere fact that the contract i in question (an option) was only signed by the vendor does not prevent its enforcement against him and the land. Docter v. Hellberg, 65 W., 415. ' ' 40. "The contention is that the writing was a mere option, without mutuality, and gave the company (the proposed vendee) no interest in the land. But one having an option in writing for the purchase of land has an interest therein, within the meaning of the section of the statute cited (sec. 2304), as well as sec. 2302. Telford v. Frost, 76 W., 172. 41. Where the option is exercised, by electing .to purchase within the time prescribed, and entering into the possession of the land and expend- ing money thereon, there would seem to be no good reason why .such contract .should not be enforceable. , Kerr v. Day, 14 Pa. St., 112, ,53 Am. D'ee. 526." ■ •',,, ,, ., , , , 42. So held in this case, though there was also an oral modification of the contract^ — the fact of possession and expending money in ' '.perform- ance or pursuance of such contract so modified" obviating, the otherwise not permissible parol modification. — Watt v, M. Sf.'P- 8. S. R. Co., 86 W., 48, 56. 43. Definition of,, and evidence establishing, an express contract, mak- ing a note payment thereunder. See Promissory Notes, etc. —McDonald v. Provident 8.L.A. Sac, 108 W., 213, 218. :i 44. A contract void in part, being indivisible, is wholly void,' but may rebut the presumption of gratuitous services: ■- See Services.- ■''■■ ,:v.:' // i •*: • —Martin v. Est. of Martm, 108 W., 284, 289. 278 PKOBATE AND GENERAL LAW, CODIFIED 45. It is a " well-established rule that neither a simple deed of con- veyance nor a promissory note purports to express the> whole contract betweeen the parties. Nauman v. Ullman, 102 W. 92 ; Cuddy v. Foreman, 107 W. 519 (See Consideration). 46. The deed but purports to convey property in execution, partially or wholly, of some agreement; 47. The promissory note merely serves as convenient evidence of a promise to "pay money". > 48l As there usually are other elements involved^ "therefore no pre- sumption arises that the parties have attempted to embody their whole contract in either instrument". 49. "Of course, the additional < elements of contract which may thus be proved (by, parol) must be consistent with, and not in contradiction of, the effective part of the writing". 50. And it is held that evidence as to a settlement and release, and the giving of promissory notes, as a part of the agreement in connection with "a simple deed of conveyance" and the execution of the promis- sory notes covering the consideration named therein, should have been admitted,— L the case of Hei v. Heller, 53 W. 415 (See Paroi/) being "wholly distinguished from Cuddy v. Foreman, 107 W. 519 (See Con- sideration) ", as not involving "a mere deed of conveyance" but con- taining a bi-lateral agreement covering the whole contract. —Brader v. Brader, 110 W. 423, 431. 51. An option contract is enforceable against the administrator and heirs of the seller. See Options. "■ ■ i ■• —Mueller v. Nortmann, 116 W., 468, 470. 52. " 'When a contract is made in one state or country, to be per- formed in another state or country, it is to be regulated by the laws of the place of performance, without regard to the place at which it was written, signed, or dated, in respect to its nature, validity, interpreta- tion, and effect 7 (1 Daniel Neg. Inst. 865), 53. Unless it clearly appears that the parties intended the contract should be governed by the law of the place where it was made". 54. As to notes executed and delivered at New York City, on Sunday, payable at Boston, Mass., at B's office, resulting from a negotiation between G. of Wisconsin and B. as to the sale of the latter 's lands in Florida, to P.', — 55! ' ' Since the place of performance or payment is expressed in the notes, the presumption, therefore, is that the parties contracted with reference to the law of that place", 56. And the "notes made in violation of the law (of Mass.) which prohibits the making of such contracts on Sunday", were void. —Brown v. Gates, 120 W. 349, 356, CONTRACTS < 279 57. "Slight circumstances excusing*' "failure to examine" a contract is sufficient to enable consideration of redress. See Deeds. — Loyd, v. Phillips, 123 W. 627, 630. 58. "It seems to ibe firmly established" "that 'the manual delivery of an instrument may always be proved to have been on a condition which has not been fulfilled, in order to avoid its effect. 59. This is not to show any modification or alteration of the written agreement, but that it never became operative, and that its obligation never commenced'. Wilson v. Powers, 131 Mass. 539, 540." (Many cases). 60. So held;, and that parol evidence was admissible to so show, though the "written instrument enumerates (other) conditions precedent to its validity". —Golden v. Meier, 129 W. 14, 19. 61. As to parol evidence of a subsequent new contract re-adopting a plan discussed preceding a prior' written contract, 62. And as to recitals and consideration in a deed, varied' by parol. See Pabol. —Jost v. Wolf, 130 W. 37, 40. 63. "There must be a direct conflict as to the contract price of the thing", "to render" evidence of reasonable value admissible, and, .64. "The difference must be so great that the reasonable value thereof' from the standpoint of the parties when the contract was made may reasonably discredit the evidence of the one side and corroborate that on the other, affording some reasonable, ground for believing that the contract was at the price most in harmony With such evidence". —Anderson v, Arpm H. L. Co., 131 W. 34, 48. 65. Agreement to bequeath property, for "privilege of naming a child". See Legacies. — Freeman v. Morris, 131 W. 216, 218. 66. "Aside from the statute of frauds, no express formal stipulation is essential to create a'ebntract. Proposal and assent may take any form. 67. The question always is whether the parties ' understood and in- tended a contract based upon sufficient consideration, as in Ganger v. Pautz, 45 W., 449 ". V! " " —Kaley v. Vati Ostrand, 134 W., 1 443, 446. 68. "While "the general rule is that a contract is governed by the law of the place thereof'*, which "doctrine" "rests in comity", 69. Yet, where "a contract which is so contrary to the public policy of this state as to be void if made, here", both by 'the decisions and by the statute, it will not be "judicially enforced here if valid in the state where it was made or breached". —Fox y. Postal Tel. Co., 138 "W., 648, 651. 70. "A married woman's contract as accommodation maker of a promissory note, which is valid in the place where made", is held 280 PEOBATE AND 'GENERAL LAW, CODIFIED s "enforceable in the courts of this state, such a contract not being valid if made here". 71. "Being so valid, appellant (plaintiff) is entitled, as matter of right, by the universal comity," to enforce the contract here, it being "not contrary to any public policy of this state heretofpre, in the code of unwritten law, established by our court", and "not to be regarded as inherently harmful", p. 125. 72., "The proposition, in the main, is governed by a few quite ele- mentary principles:" 73. "Asito mere personal contracts the law thereof as to their validity and interpretation, is that of the place where they were made; the lex loci contractus, unless the parties thereto intended" otherwise; 74. "Matters respecting the remedies depend upon the law of the forum"; , ,, ; ,\ 75. "A contract which is valid in the place thereof is valid every- where " ; ' . . ; 76. ' ' The enforcement of a foreign contract which would not be valid by the law of the forum wherp its enforcement is judicially attempted, depends upon comity which is extended for that purpose, 77. Unless the agreement is contrary to the public policy of the forum"; 78. "The law, of the place of the contract" "applies to the capacity of parties, including that of married women". (Citations). , 79. A .contract "is not necessarily contrary to the public policy of a state, merely because it could not validly have been made there, nor is it one to which comity will not be extended, merely ' ' for such reason. —International H. Go. v. McAdam, 142 W. 114, 117. 80. ' ' The fact that a contract in the plural form is signed by only one person at the time of its manual tradition is not conclusive that it is an incomplete instrument. 81. Contracts of such form may be and often are treated by the parties thereto as complete, effective, and binding on the subscriber. 1 Randolph, Com. Paper, § 87 ". Held, a question on the evidence. —First Natl. Bank v. Wunderlich, 145 W. 193, 197. 82. Notes given for a loan "were dated and payable at Minneapolis". "The negotiations were begun, conducted, and concluded there". "The only act done outside of the state was the placing of the signatures of the defendants on the back of the note ' ' at Eau Claire. ' ' They were Min- nesota contracts and governed by the laws of that state", where such endorser is held as a maker. —E< L. Welfih Go. v. GiUett, 146 "W. 61, 63. 83. "A valid contract made with one person for the benefit of another may be at once enforced by that other regardless of any formal assent CONTRACTS 281 thereto prior to the commencement of the action". Tweeddale v. Tweed- dale, 116 W. 517. 84. "The law regards such a transaction as at once vesting in the third person a right to have the promise made for his benefit executed, which right cannot be changed by the immediate parties to the trans- action". ■ — Zwietusch v. Becker, 153 W. 213, 216. 85. "The law is quite well settled that where a contract informal, but complete in its terms, appears to have been made, it will take effect and be binding, 86. Notwithstanding the> fact that the parties anticipate that a more formal contract will be afterwards made embodying the terms of the formal contract. Cohn v. Plumer, 88 W., 622. 87'. It is equally well settled, however, that letters or telegraphic com- munications between the parties will not be construed as a contract when it is plain that they were intended only as preliminary negotiations, 88. 'To be followed by a formal contract containing material provi- sions not contained in or to be inferred from the preliminary letters or communications. (Cases) ". —Francis E. Leggett & Go. v. West Salem G. Co., 155 W., 462, 469. 89. An oral contract involving more than $50, made in Tennessee, "there being nothing inherently bad about" it, and being ''valid by the place of the agreement, it should be so treated here, regardless of our statute of frauds: International H. Co. v. McAdam, 142 W,, supra. ' ' 90. While ' ' in case of a contract being physically made in one place and mutually intended to/be performed in another, the presumption is" "that the place of performance is that of the contract", , 91. Yet, "the place of a contract is a matter of mutual intention", and, it is held, that such presumption is "one of fact", and may be overcome by evidence, circumstantial as well as direct. — D. Canccle & Co. v. Pamly & P. C. Co., 155 W., 541, 543. 92. "In matters of contract one must oibserve what he has reasonable means of knowing. The law for the protection of persons even against fraud will not be extended to those who 'having the means in their own hands neglect to protect themselves'." Mamlock v. Fairbanks', 46 W. 415." —Boss v. Northrup, K. & Co., 156 W. 327, 335. 93. "When the validity of a written instrument is. in issue it is always competent, in an action at law as well as in a suit in equity, to show that the instrument never was executed ; - 94. That its signature was procured either by fraud!! or duress, and therefore that it never had any legal existence as a valid instrument. Keller v. Ruppold, 115 W. 636 ; :Aukland v. Arnold, 131 W. 64". —Hevneman v. Old Nat. Bank, 157 W. 289, 291. 282 PROBATE AND GENERAL LAW, CODIFIED 95. An oraL agreement to give a legacy, and a written agreement to devise realty, there being valid consideration, are valid and enforceable. See Legacies. —DUger v. Est. of McQuade, 158 W. 328, 330. 96. A contract as to realty and support between two persons for the benefit of a third, having gone into effect and then mutually rescinded by the two, does not take away the rights of the third person for enforce- ment as to him. See Bond of Maintenance. —Wetutzke v. Wetutzke, 158 W. 305, 308. 97. Where M. and B., — the latter "indebted to plaintiff G.," — entered into a conditional contract, and the papers placed in escrow until the conditions were performed; and such performance failing, and B. released M. "from paying plaintiff's claim",, which payment was part of the contact, — it is held that G. could not recover from M. "since the con- templated one" "never ripened- into an agreement", — 98. And that the case is not ' f within the rule of Tweeddale v. Tweed- dale, 116 W: 517> and Wetutzke v. Wetutzke, 158 W. supra, where it was held that a valid agreement entered into between two persons for the benefit of a third cannot be rescinded or altered without the consent of such third person". — Gimbel Bros. v. McConnell, 159 W." 325, 329. 99. ' ' A contract is not to be condemned merely because it is ingenious. (Case). 100. Nor unless it contravenes some rule of positive law or conflicts with public policy. (Case). 101. All stock corporations, when not expressly or by implication forbidden to do so, have general power to make contracts furthering the objects of their creation". (Cases). —Jacobs v. Wis. Natl. L. Ins. Co., 162 W. 318, 321. 102. The sureties on the bond of the principal contractors are held "liable to a materialman who furnished material to the principal con- tractor", which material was used in the construction of the building in question", "upon the promise contained in the bond to pay claims in- curred in the construction of the building. 103. The rule is well settled in this court that 'when a person for a consideration paid to him by another agrees to pay, or cause to be paid, a sum of money to a third person, a stranger to the transaction, 104. The latter thereby immediately becomes possessed of the absolute right to the benefit of the promise, 105. And a right of action thereby accrues to him against the promisor'. Tweeddale v. Tweeddale, 116 W. 517; Wetutzke v. Wetutzke, 158 W. supra". 106. "If the contract be to pay a debt due to a third person, pre- sumably it is for his benefit unless it appears that the contract was not so intended". —Concrete S. Co. v. III. Surety Co., 163 W.- 41, 43. CONTRIBUTION 283. 107. Where a valid contract was made by two persons for the benefit, in part, of " a stranger thereto", and after performance for several years they ''sought to change it without the consent of " such party, a "right of action" accrued to such third party thereon regardless 1 of such change. (Cases, supra). 108. "The fact that the payment was to be in land and not in money does not affect the rule", and "since the promisor is dead", and the other party has ''title to 'the land, secured through breach of the original contract", they may "be compelled to convey to "^ such party. ^-Sedgwick v. Blanchard, 164 W, 421,.423i 109. A contract as to inheritance must be "clearly established" to be enforced. See Adoption. — Winhe : v. Olson, 164 W. 427, 431. 110. As to a 1 contract of conveyance between two persons involving payments to a third ''contingent upon a condition precedent". See Bond fob Maintenance! — Krahri v. Goodrich, 164 W. 600. CONTRIBUTION. See also Joint, Obligations. Sureties. Accrues wh^n paid, 15. Principles sfcatedj.ll. Between partners, 13. , Eight forfeited, 8. Illegal act, 13. Special advantage, 9. Mistaken conception, 14. Support: several parties, 1. Between wTong-doers, 12. ■ ■ . Against one or more, 3. Co-guarantors, 6. ■ •, , . . Agency of wife, 5. , ; Breach by deceased, 6. Household details, 4., Co-surety, quasi-trustee, 9. Largely by one, 2. Legal and equity right, 7. Wrong by co-surety, 10. 1. Where two husbands and their wives contracted to support the latters' mother during her life, she having "the right to live at the home of either the plaintiff,. or the defendants at such times and for such periods as she might desire", 2. And she having resided largely with the plaintiff, it is held, "the right tb ' contribution Under similar circumstances is well established and its enforcement' in legal actions has been sustained in the ' decisions of this court' ' and ' ' in other jurisdictions". (Many cases) . 3. "It clearly follows that plaintiff is entitled to enforce his alleged claim for contribution, and that he may do this by proceeding against one or more of the persons liable to him for their proportionate share without proceeding against all persons 1 so liable to him". 4. Beeause plaintiff's wife "attended to the details" of such support "in the usual course in the management of the household" "in the cus- tomary way", 284 PEOBATE AND GENERAL LAW, CODIFIED 5. ''It in no way tends to show that the relationship of. principal and agent existed as to these matters between the husband and wife", and objection by plaintiff to her testifying on the ground of agency transac- tions, was sustained, , — Payne v. Payne, -129 W. 450, 454. 6. To a claim filed on notes, the estate submitted an offset for con- tribution for money paid by deceased on an obligation in which the claimant and deceased were co-guarantors, and such set-off was disal- lowed because of "prejudicial breach of duty" of the deceased in the management, of the corporate property the payment of whose debts had been personally guaranteed by such guarantors as major owners of the corporate stock, such corporation having become insolvent durin'g the three years preceding his death that decedent had heen in control after having purchased claimant's. stock therein. 7. "While" "the right of contribution" "is an equity the right to the equity is legal as well as equitable, because the parties are presumed to have agreed that the right, shall exist, and so legal as well as equitable remedies are available to redress its violation. (Many cases) ". 8. "The right of contribution may be parted with to co-sureties by contract, or lost to the extent that prejudicial breach of duty to the co-sureties would otherwise proximately cause loss to them, and may be forfeited in some other ways definitely established in law." 9. "Both in law and equity, a co-surety is a quasi-trustee for his associates of all special advantages he acquires from the principal debtor, — either in adversary proceedings or otherwise, — for the benefit of the bearers of the common burden, with all the duties incident to such relation". 10. ' ' There is no rule better established in the law of suretyship than that, the co-surety whose wrongful conduct causes default, rendering resort to the guaranty necessary, and producing loss to the sureties, cannot have contribution, so far as loss was thus produced". 11. (Principles of contribution stated, and eases of illustration given.) "There, is dearth of such in the history of our own jurisprudence". — Est of Koch, 148 W. 548, 557. 12. ' ' The principle that there can be no contribution 'between wrong- doers is veryfamiliar and is very, frequently applied". 13. But "as between partners" "a claim for contribution will not be rejected unless the partnership is" illegal, "or unless the act relied on" ' ' was not only illegal, but the illegality such that it must or ought to have been known to the partner seeking contribution to have been illegal when it was committed. (Citations)". 14. Here the partners, attorneys, "were acting honestly and in good faith, but under a mistaken conception of the law, and hence the right of contribution exists". 15. It is held that the claim for contribution did not accrue until the judgment was paid, and hence a contingent claim proper to be filed under COSTS AND FEES 285 ( see. 3860, after expiration of the time fixed and "within one year after it accrues or becomes absolute ' '. See also Settlement: — Est. of Ryan, 157 W. 576, 578. CONVERSION. See Actions by Extr. or Admr. Discovert. Personal Estate. Services. .,•:■...-,, /,- '.,,:■ CONVEYANCE. See Construction op Deeds. Deeds. Fraudulent Conveyances. Mortgages. Sale of, Personalty. Sale op Realty. CORPORATIONS. See Charitable Trusts. Officers. CORPSE, RIGHTS TO. See Dead Bodies. COSTS AND FEES. See also Administration Expenses. Compensation of Admr., Extr., Grdn., & Trustee. Officers. Accrue, at judgment, 73. Circuit court — continued Administrator. See- Trustees. Discretion as to, 32, 34. Against: the heir, 62. Governed by sec. 2918, 32. Legatee proponent, 78. In lieu of costs, 50. Undertaking of, 63. Co-executor as legatee, 51. Appeal: from order, 65. Contest of will, 22. , , . Only from judgment, 66, As to sec. ,4041b, 55, 56, 57, 59. Associate counsel, 68. County and circuit, 23. Attorneys : liable for, 20. Eule in supreme court, 22. When not employed, 21. Contribution action, 5. Authoritative rulings, 29. Attorneys fees, 5. Before services rendered, 67.. Costs, statutory only, 2, 30. Circuit court, 31. Both out of estate, 39. As to sec, 4041b, 55, 56, 57, 59, 69, 76. Not supreme court, 3. Construction case, 39, 54, 61. Trust estates, 25. Contested -will, 43. Will cases, 9. 286 PEOBATE AND GENERAL LAW, CODIFIED Counsel fees: to trustees, 27, : 36, 37. Against the proponent, 78. , Construction case, 39, 54, 59. Contested will, 42, 43, 55, 56, 57, 76. Executor-named allowed, 77. • Executor-named, not extr., 44. In lieu of costs, 50. Not to other parties, 27, 35, 39, 40. Ostensibly for executors, 38. Stipulation as to, 45. County court, 33. As to sec. 4041b, 55, 56, 57, 59, 69, 76. Discretion as to, 34. Statutes controlling, 33. Definition, detailed, 8. . .^ Discretion: trial courts, 1. Allow or withhold, 26, 69. As to abuse of, 70. . Equity cases, 11, 12. Party or fund, only, 10. Supreme court, 3. Equity, limitation, 4. Discretion, 11. Statutory, only, -12. Executor named: not extr., 44. Bad faith of, 72. Costs not allowed, 68. Counsel fees against, 78. Counsel fees allowed, 77] Ordinarily as proponent, 71. Executor. See Trustees. Expert witness fees, 68. » ; Eraud, undue influence, 72. General question, of, 29. Guardian ad litem, 28. Compensation of, 59. Improvident appeal, 58. Guardian ad litem — continued Out of ward 's property, : 28. Personal liability, 52. Guardianship: incompetent, 16. Against petitioners, 46. Allowance denied, 75. Both contestants, 16. Consent: all parties, 74. Special proceedings, 46. Improvident appeal, 58. Limitation, in equity, 4. Priority over debts, 53. Probate fee is, 17. Stipulation: counsel fees, 45. Guardianship contest, 74, 75. ■'- Trustee; guardians ad litem ; 49. Supreme court, 3. Authoritative rule, in, 31. Both out of estate, 39.. Construction case, 41, 61. Contestant of will, 22, 47. Executor named allowed, 77. Justifiable contest, 31, 47, 64. Not .deprived, 3. Sec. 4041a does not apply, 23. Trust estate involved, 48. Under sec. 4041b, 76, Trustees, etc.; judgment, 13. Appeal in bad faith, 24, 26. Construction expenses, 7. Counsel fees proper, 27, 36. Method prescribed, 14, 19. Mismanagement, 18. : = '. Not personally, 15, 32. Ostensibly for executor, 38. Out of the estate, 14, 26. Witnesses',' two causes, 6. 1. The discretion' allowed the county 1 and circuit courts as to costs "is applicable only to the question for and against whom costs shall be awarded at all, and whether to be paid by the parties personally or out of the estate". 2. "But the costs to be awarded are only such as are authorized by the statute relating to costs in other cases, so far as the same may be applicable to cases of this character". 3. The contestants succeeding in the circuit court but reversed on appeal, it is held that the statute as to the supreme court ' ' does not deprive this court of all discretion in this matter ' ', and the contest being in good faith, the costs of both parties including the contestants are allowed "to be paid out of the estate." p. 365. — In re Jackman Will, 26 W. 143, 144. 4. The limitations of the statute of costs to twenty-five dollars, "relate to 'actions at law upon contract'. Equitable actions are subject to.no ! ' COSTS AND PEES 287 limitation, and the parties recovering costs therein may lawfully recover full costs, without reference to the amount of the judgment".; —Grace v. Newbre, 31 W. 19, 26. 5. In an action by a surety for contribution' against his co-surety, proportional attorney fees are held recoverable ; but the right to con- tribution is not "extended to the costs incurred by the plaintiff, or paid by him, in the action 1 brought in the circuit court" against such surety, presumably because "there is no special count in the complaint which would warrant any evidence to show that" the co-surety "was responsible for them". (Not approved, except on the 'ground stated. Boutin v. Etsell, 110 "W. 276. See Sureties. ) • • * I ■■ ■ r. ■■■'■■.■> —Shepard v. Pebbles, 38 W. 373, 380. 6. "We hold that a party is entitled to tax full fees for his witnesses in a court of record, though* the' same persons may have attended as witnesses for another party in another cause at the same term". ■>■ ■ ■ ■ —McHugh v. C. & N. W. By. Go., 41 W. 79, 82. 7. The authorities "clearly establish the general rule of courts of equity that an executor may always, in a proper case, take the opinion of the court upon the will, at the expense of the estate". > —Heiss v. Murphey, 43 W. 45, 48. 8. ' ' The costs are the expenses incurred hy a party in the prosecution or defense of an action or judicial proceedings", and "consist of the fees of attorneys, solicitors, or other officers of the court, and such dis- bursements as are allowed by law", according to all the authorities. ,.,,;' —Emericlc v. Krcmse, 52 W. 358, 360. 9. ' 'Whatever may have been the early rule in- England and some of the states, in equity cases, yet the rule seems to have been settled in will cases in this state, for quite a : number of years, that the amount of costs recoverable by a party is regulated wholly by the statute, 10. And that the only discretion given to the court is as to the party by or to whom the same shall be paid, and whether out of the fund or estate which is the subject of the controversy, or by the individual. In re Jaokman's Will, 26 W'. supra". - ;-< .,.,.-..., - 11. As to equity cases, the statute (subd. 7, sec. 2918) ■, contains "this general provision; 'But in all equitable actions (and special proceedings) costs may be allowed or not to any party, (in whole or in part), in the discretion of the court'. , : 12. "This discretion seems to be limited to allowing or disallowing to a party such costs as the other provisions of the statute, prescribe, and not to be a discretion to fix an arbitrary amount according to the trial judge's notion of justice and equity in the particular case." —In re Carroll's Will.. 53 W. 228,: 233. 288 PROBATE AND GENERAL LAW, CODIFIED 13. In former cases,: (not cited, supra) while "there may be some discrepancy, if not contradiction, ' ' yet ' ' the principle is sanctioned that in all cases where the administrator or trustee sues strictly in his repre- sentative right and in good faith, the judgment against him for costs as a party in form should be paid out of the estate. 14. T» now settle the question beyond further, dispute, we reaffirm the first decision on this question (Lightfoot v. Cole, 1 W. 36), and we hold . also that the present statute (sec. 2932) should be so construed as to require the judgment in form, in a proper case, to be against the party as administrator, trustee, , etc., to be chargeable upon and collected out of the estate, fund, or party represented, and that such direction should be inserted in the judgment itself." —Hei, Admr. v. HeUer, 53 W., 415, 420. 15. The presumption , is that the administrator, personally is not chargeable with costs. Hei v. Heller, 53 W. supra, approved. See Judgments. — Ladd, Admr. v. Anderson, 58 W. 591, 593. 16. Expenses of both contestants in an incompetent guardianship, to be paid by the guardian. See Incompetents. —Barbo v. Eider, Gdn., 67 W. 598, 607. 17. "A probate fee is manifestly a reward or compensation to a county judge or judge or register of probate for services rendered or to be ren- dered". L — State ex rel. Sanderson v. Mann, judge, 76 W., 469, 473. 18. "The judgment for costs is in form against" executors personally, and "is unauthorized, unless the court therein expressly directs the same to be paid by such executors personally for mismanagement or bad faith in such action. Sec. 2932 ; Ladd v. Anderson, 58 W. supra. 19. The judgment should have contained a formal direction for the payment of the costs out of the estate. Hei v. Heller, 53 W. supra". Reversed, incidentally, solely for such reason. —Wiesmann v. T. of Brighton, 83 W. 550, 552. 20. Attorneys are "liable for such costs, not as sureties merely, but as principal debtors", under sees. 2948, 2943, where they fail to protect themselves, and claims therefor are assignable. —Knowles v. Frawley, 84 W., 119, 122. 21. Recovery of attorneys fees from administrator, when not employed by him. See Liability. —Miller v. Tracy, 86 W. 330, 336. 22. "The established rule is, where the contestant of a will has acted in good faith in taking an appeal to this court, and the questions of law or fact involved are worthy of consideration, to order the costs taxed against such contestant paid out of the estate. (Cases). (Quoted and reaffirmed in In re DongeW's* Est:, Ib^ W. post. 1 Fdlldwed in Davis v. Davis 1 , 5 and'^n'l'kif Bierk'e, , 13f2 W.' post' ' Limited to "will contest or construction eases*', in Becker >vl' Chester, 115 'A^ - '. post.) ' 23. '"Se'cl 4041a 1 ,; relating to costs of 'Contestants, refers solely io county and circuit •cotirts'.' 1 It' does 'ilfilt' affect 'the ''rule 'which has always pre- vailed in this court". (Sec. 4041a, exists the sattie how 1 (1916) as then.' See'Oh. 663, s! 4$T, L, ISll).^" 1 " "' ^/O^esV.iJo&eMs, 96 W. 427, 433. ■'i..u " i'l t ' ' ;• i It'll I • l Hi , 'I r/m't'l l!r!>,-. t,il7/ ■ ' ' ■■ ' ■ -n. i'i'l-1 ■ ■ i . "il ■ 'Mi'Cdsts' held ''properly' adjudged 1 "against 1 the' 'executor 1 personally", vilfeerer the appeal w!a!s" found'' td ! be 'Ha'ken' in bad 1 'faith". Likewise ^6 adjudged in the supreme court. YliJMun - "' ni ,tm -<>», v/l h'Mo-ihiiEtfiib^R&bMW'ir.'WtMgTMl'W 'W.'£27,®32. •' " ■■'■ i'.'iii :. ; ' • . ■■' sy ii nn 'Jlimx ui i-i J-l fl< ■ / illlHri mi I il" ,' .' "in 'i,i;:r. '■ 2B. "Taxable tiosts/'sfeetly 1 so 4lll¥d ; i&'mase 1 'likfe this 1 (a Controversy & 1 a l %us¥ J malfe'),%iN»hGlfy^ : ■•<■"" ■ 26^fPh6 l cdurtbel'o'w hlay iw allow : or' •wdahalffctists"; and "'if' allowed against the trustees they ; ! are "payable' 'out lHredts i bec'a1«6 l 't}f bad' feMt'bh the 'part' of such trustees. Seel '2932: ' I ThW' applies to 'all «6urts l k t n& tb the "reasonable 'counsel' fees of 'the' 'trustees as' well 'fts' 1 taxable' cbsts/'ffie latter'mek& l i%- 'costs taxed ^erifflffig^to'the' 'statutory »fei interested' in the'^rust fund are noV^ecdverkble, 'either' frbm'>theitrilstebs 1 'pei'sdtoa'lly or out of siich f und. (Cases)". (Approvingly qtfoted ! WWre' ; Donges i » £| Estt| : 103 , 'W. post): vnq ot hAihiw gr sotwrtt -jih i^AMiffbtirfcr &■ B&tfrkttw/, 102 W., 1; 11. riil i. ,i. B'i'l /if niir' i '. Iji;'i il'iilv; - •:-. i. <> ri'inin i-.t!' ,. . ,-.• >■' ('"28? CoMp^ns'atiM'ahd expenses' bf a' guardian ad' litem 1 'are 'to 1 'be- paid out of the ward's property. See Compensation of AtoMfti, etc: lpi " •■ v(«li»(io^() ?')-jivi'w -io'r ^iirwollu ui-TysbW v . EicMrdson, 103' W! 397,^400. -HO<|l|0 'io 'J1IO lit fiylefni'l'l N')'j?l'> JIM, Ttlit;- ,i< llr- -I' ■ ■: >'i •: n! ' i'ili|(;ri 29. (The question •of' , aasts z Md' i eounM' ,( f€fes , iii^ p'rbbate matters/in feany case's 'prior* \& thte 1 'instant 1 'fe&s%,"has bean 1 treated in so variable and desultory a'"maM'er, ! and so 'many 'directions' have 1 here 'and'' hereafter b^en 1 Mentioned atidl 'disapproved', 1 ' that 'ma-nyi sSu'eh 1 p" ast ' adjudications h'^v^e' been here'fn' ignored, bnt l it A isbeliWed that the foregoing isolated rulings noted, are still effective. In the instant construction case, the geaeraliprincipte'8eem f io'ha'v , eibeeHVfor : iie jjktli time' fully and' authori- tatively 'iet' 'forth, 'and further 1 elucidated teWtifesequent decisions.) ; ' " '■ 30. The question- 'of CdsW'ayd'coiansellfde's'^'resolves'ifeelf'ijQto two very diStimfct parts'' yand^'as 1 'to the *ffoW«# these', lite -right' 'and liability- of litigants' W costs'; ' and 'tMe'-aW^nnii'thereSf/ -is- wholly Statutory. "In re Carroll 's 'Will',' 53' W. ' s'npra ; Mulberger- v: ' Beurhaus,' 102 W: supra ; "■■ -''81. -^As% i H6fe^*itt , this ,i ebu'rt, u 'thfe , 'allDwance of them 1 , in ciasesno >het|te3r right, to,;giv«,a]way :l thfr prop-, erty he' is>duty bqund td iconservei tha»,a guardian ad, litem,'', concerning, whom it ihas been so. decided. Kingsbury ,y, Rua^&r^ ,A.$4i !!,,,$. ,6&Q,;> (other, cases). —Beckw ( 4 1 f f I ■ :■. ,.i;iu).i iriic tlf\,i . ,i. ' , .!.. ,.i st: >' ■■.'!:;. 51. Where a co-executor ' ' appiealqdi.alone , under ; the provisions, -of sec. 4039,' as a legatee, tencbnot as executor' ',," see. ,42932 ihas- no applicajtion either, in circuit court orjifa this.-eourti'', andnco^ts wereiheld properly taxed against appellant'ipjersoaidtllyuoii.'fiM.irjtj,; «jj[ j,. wr ., • ,■ ,,, i Jy i,,ii;it|> 1 hnflt'-; 'il, i' y.'i'ji i'ic ' , i ■ r >lr "In •<■> i s k'/.'cu 1 1- 'iflT '"•(- v i, ,52. Sec. 2931, making! the guardian., :ad litem ,r£sp0naible,$»r ( th^eps^ against i an infant plaintiff, amd> providing .that, 6' payment f may be enioarced by attachment", is.iheldiivalid[ialid!>don5titU'tiapaJr.(tB('SeOii2931j subsequently repealed: by Oh. 325, Ia 1907, and iguardian! adi litem* placed on a par with executors,' etc., ;in, sec. ,2932,):. ,,t ;, 1 ••.;.(;, !,■:-.-' -.-•._ ,\ 1 . Mil, —Burbach v, Miiwwikwt JS.B. <& L. ; Go.,. 119 W., 384 !i ''i »!.<> 'V — ('Uloq 53. Costs in an action, adjudged against an administrator as such, have priority over ; de^btsiij See ApM'iiirisMATioNiEjypSiNSSSit , ,!T :" i .. iw(* i i; -^-Ferg^smi v.. Woods, 124, W.i 544, 546. '.". ' ■! '.' It fir. , ■ i ■' ' .i .j(M|ifi , mi |. ,.[ , ill : ; t ; 54. Judgment of the! ((circuit court i allowing!." attorneys i fees ini addi- tion to taxable^ costsl^ payable; "out qflthe estate 'Vi to parties other itliau the executors; in lanae^iojii for construction .of a .willy is reversed, because "the court below had no authority to make, the- !allowanc0",-^follAwing In re Donges's Est, 103 W.i supra, and other cases, — 55. Notwithstanding Ch. 397, L. 1901, quoted (as now, 1916, existing as subd. 1, sec. ,4041b, except that ithe^wordi; tt ar,ising", Ibetweenl "oon- tiests'f' and; " therein) ", was elimitaated iby , ch. 231, L.sl909,— renumbersetl as sec. 4041b by eh., 663, s. 447*, L. ,1911) y which ff applies. only to, con- tests: arising upon application. i£d# th«, probate of a 'will !,'.;, -.iii i. n,,, mi;<] ;.. \H4~Kronshagev. Varrell, 127 W. 597, 598. ! i,i56. Under ch. 397, iLj, 1901 (now seti. 4041b): "it is the court .wkeBein the* contest arises} the one i of first instance-i— thei county: icourWth&t.'iis given authority to allow the 'attorney's! fees ,and direct the payment thereof out of the estate'", — and ithe circuit ieourt has, no such authority! 57. ("The amendment of what is now sec. 4041b, by ch. 231, L. 1909, COSTS AND PEES 293 by dropping out the word 'arising', was evidently made to avoid the decision of this court in Gertsen's Will, 127 W.". — Estate of Bean, 159 W. post. See also Kronshage v. Varrell, 127 W. supra). — In re Gertsen's Will, 127 W. 602, 604. 58. "The concurring decisions of the two lower courts should have convinced the guardian ad litem of appellants that there was no such doubtful question of probability of a different result in this court as to make it. his duty to appeal", in the will contest, and therefore "respond- ent should recover costs in this court", such decisions being sustained. See also Probate of Wills. — Will of Arneson, 128 W. 112, 117. 59. Following In re Donges's Est., 103 W. supra, it is said: "Nor does -the change in,.,.the law made by Ch. 397, L. 1901 (subd. 1, sec. 4041b), with reference to allowances for counsel fees in applications^for probate of wills, , affect actions for construction of wills. Kronshage, v. VarrelL 127 W. supra". As to guardian ad litem, see Compensation of Adme., etc. — Stephenson v. N orris, 128 W. 242, 263. 60. Citing Jones v, Eoberts, 96 W. supra, costs in the supreme court to the successful respondent in construction of will, were "directed to be paid out of the estate"; 61. And costs awarded in circuit court to such respondent ' ' against the appellant", held "correct". —Davis v. Davis, 132 W. 54, 60. 62. Held, that costs in circuit court, against an heir personally, who appealed from a judgment of the county court, were properly awarded, 63. He having given the undertaking prescribed by sec. 4039. "That included 'all damages and costs that' might 'be awarded against him on such appeal' ". His. "liability" "necessarily follows". —Marx v. Marx, 132 W. 113, 120.. 64. Where the will, contested by "a sister of the testator", was sustained in county, circuit, and supreme courts, and the appeal was "in good faith, and questions involved are questions worthy of consid- eration by this court;", "respondent's costs" were directed "to be faxed and paid out of the estate". Jones v. Roberts, 96 W. supra. —Will of Bierke, 132 W. 165. i 65. "We think it very clear under the repeated decisions of this court that an order denying costs is not appealable. (Cases). 66. A judgment having been rendered without costs, the question of whether the defendant was entitled to costs could only be raised by an appeal from the judgment". — Mash v. Bloom, 133 W., 662, 663. 67. Not allowable "before the services have been rendered", as to guardian ad litem for prospective disbursements. See Compensation of Admr., etc. —Frame v. Plumb, 135 W., 24, 30. 294 PROBATE AND GENERAL LAW, CODIFIED 68. Where a will was disallowed in county and circuit courts, and the will sustained in supreme court, expert witness fees and associate counsel fees for services in the contests for the executor-named proponent, he being also a principal beneficiary, were disallowed by the county and circuit courts, and such disallowance, on the whole case, held "no abuse of discretion". (Many cases) 69. "Ch. 397, L. 1901, being sec. 4041a (now subd. 1, sec. 4041b)" "manifestly vests in the court having jurisdiction of the probate of the will discretion in making an allowance to the proponent in will con- 70. "In the view we take of the case it is not necessary to consider the power on appeal to review the discretion of the county court", because "there was no abuse of discretion". — Est. of MueUenschlader, 137 W. 32, 37. 71. "Ordinarily the proponent (executor named, here) of a will is entitled to recover his costs out of the estate whether he be successful of not, because it is his duty to present the will for probate. 72. But clearly a proponent who has been adjudged guilty of securing the execution of a will by fraud and undue influence should not be entitled to recover his costs from any source, but rather should be required to pay costs". So adjudged. See also Testamentary Capac- ity. — Deleglise v. Morrissey, 142 W., 234, 237. 73. "There is no vested right in costs. The right to them does not accrue until judgment. Until that time they may be abolished or changed in amount by statute". . — Huebl v. Scollard, 142 W. 589, 590. 74. On "the final order" where a guardian was appointed, the incom- petent having been represented in the matter in a series of dealings with him as to property rights, by three attorneys, and all parties "con- sented that in and by this order" "the circuit court should ascertain and determine the amount of attorneys' fees, if any, to which" such attorneys "might be entitled, 75. But did not agree that the finding on this subject should be conclusive or waive their right of appeal", — the circuit court allowed such fees in the amount of $5,000. Held, on the facts, "no allowance should have been made" "on the merits". Order reversed. —Grdshp. of Abel, 147 W. 467, 476. : 76. Since the amendment of "sec. 4041b by ch. 231, L. 1909, by dropping out the word 'arising 7 " — "it is at least proper for this court" "to fix the amount of attorney fees that shall be allowed for work done in this court. 77. The executor", — presumably merely named as such in the will, it having been disallowed in both county and circuit courts, and allowed in supreme court,— "is directed to pay his attorneys the sum of $100 COUNTY JUDGE 295 for such services besides aictual disbursements for prosecuting the appeal. No costs are awarded the contestants. ' ' See also Testamentary Capacity. —Est. of Bean, 159 W. 67, 82. 78. Judgment for "$250 attorney's fees to the contestant" against the unsuccessful proponent, she being legatee and executrix named merely, in the circuit court, is reversed as not permitted either under sec. 2932 or sec. 4041b. —Will of Lynch, 163 W. 466, 469. COUNTERCLAIM. See Pleadings. Set-oef. COUNTY COURTS. See Peobate Courts. COUNTY JUDGE. See also Court Commissioners. Custody and Commitment. Advice to litigants, 17. Assist district attorney, 17. Authority specific, 7. Counsel previously, 10. Court outside county, 27. Disability, disqualification, 33. Drafting papers, 17. Fees for child permits, 26. Fees to salary, 13. Filing of oath, 8. Guardian ad litem, 16. Improper fees collected, 32. Judge of a court, 15, 18. Appeal, statutory, 19. Jurisdictional limits, 22. Not common law, 18. Subject to review, 20. Writ of certiorari, 21. Justice of peace, 23. Incompatible,' 24, 25. Liability of, 5. Magistrate. , See Judge of, etc. Mandamus remedy, , 2. Office important, 4. Office in court house, 14. Pecuniarily ' interested, 5 28. Deprived of power, 29, 31. Minors not consent, 30, Orders absolutely void, 31. Personalty, charge of, 7. Powers of circuit' judge, 3. Refusal to qualify, 1. Retaxation of costs, 9. Salary ; during term, 11.; , Not from st^te treasury, 12. Statutory; qualified, 6. 1. Resignation on the last day of the old term to take effect on the first day of the neW term, held to be' equivalent to a refusal to qualify, and that a new appointment could be made forthwith. — State ex rel. Finch v. Washburn, 17 W. 6158: 2. Mandamus is held not proper to compel the county judge to sign' an order and fix an appeal bond, but the circuit court should be applied to. See also Bonds. State ex rel. Tallrhadgev: Flint, 19 W. 621, 623. 296 PROBATE AND GENERAL LAW, CODIFIED 3. "The powers of a circuit judge at chambers" are constitutionally conferred on a county judge. — In re Gill, 20 W. 686, 4. "The office of judge of probate is one of the most important * and its duties should be strictly and faithfully performed". — Humes v. Cox, 1 Pin. 551, 556. 5. It is a well settled principle of law, "that no judicial officer, acting within the scope of his jurisdiction, can be made liable in an action against him for an erroneous decision". — Eeeler v. Woodward, 3 Pin. 306. 6. "Probate courts are only in a qualified sense, the mere creatures of the statute". They are "the offspring of the common law". — Branson v. Burnett, 2 Pin. 185, 189. 7. There being alleged to be no person in this country who had the right to take charge of the intestate 's personal property, and the county judge having made an order authorizing one R. to take charge thereof temporarily, held of no force, there being "no statute authorizing the county judge to make an order like the one made in this case". —Mil's C. B. Co. v. Russell, 22 W. 178,- 182: 8. The statute requiring the filing of the county judge's oath with the clerk of the circuit court, not having been complied with, it having been filed with the treasurer, held that he "had not qualified as the law required", and that the office became vacant. —SMe ex rel. Lutfring v. Ooetze, 22 W. 363, 366. 9. As to retaxation of costs by the county judge in "view of the peculiar nature of the proceeding, it being a kind of appellate power exercised only by the court itself over its own taxing officer," it follows "that the county judge has no jurisdiction in the premises, and that his order was properly set aside for that reason ' '. —Schauble v. Tietgen, 31 W. 695, 698. 10. It is held, on the authority of Morgan v. Hammett, 23 W. 30, where it was decided, "that a county judge was not disqualified to grant a license to an administrator to sell real estate to pay debts of the intestate, because he had been counsel for some of the parties interested in such sale"; that such action "was not a mere ministerial, but a judicial act"; and that this case, where, "the county judge, before he , was chosen such judge, had been of counsel for the" appellant, stands "on the same ground, and should be determined by the same prin- ciple". —Appeal of Schaeffner, 41 W. 260, 264. 11. The constitutional provision, sec. 26, art. IV, 'nor shall the com- pensation of any public officer be increased or diminished during his COUNTY JUDGE 297 term of 'office', does not prevent the legislature from changing the salary of a county judge during his term of office. 12. "In the case of the Board of Supra: v. Hackett, 21 W. 613> it was expressly held that 'the word compensation as used in sec. 26, art. IV. of the constitution, above quoted, signifies a return for the services of such officers as receive a "fixed salary payable out of the public treas- ury of the state' ". 13. By chapter 121, laws of 1868, "the policy of paying fees instead of fixed salaries to county judges ' ' was changed, and the county boards authorized to fix the salaries. —State ex rel. Mao-tin v. Kalb, 50 W. 178, 184. 14. Where the county board "provides an office in the court house of the county for a county officer (in this case county judge), the duty of the county in that behalf is performed, and the officer can be compelled to occupy the office provided". If he rents elsewhere, he cannot fasten such "an additional burden on the county". — Waldo v. Manitowoc Co., 54 W. 71, 72. 15. "There can be no doubt but that a judge not presiding in court may do many and most things appertaining to mere judicial administra- tion not requiring a trial according to the course of the common law, especially by legislative authority". See also Custody and Commit- ment. — Wis. Ind. Sch. for Girls v. Clark Co., 103 W. 651, 663. 16. A county judge who prior to becoming judge had acted as guar- dian ad litem in a trust estate, is held not disqualified to act in subsequent proceedings in the estate. See also Guardian ad Litem. —Bichter v. Est. Leiby, 107 W., 404, 407. 17. County judges may be appointed to aid the district attorney in criminal cases ; ' ' they are simply prohibited from giving advice, to liti- gants in any matter pending before them or which they have reason to believe will be brought before them for decision, or drafting papers in such proceeding, except as expressly authorized by law (see. 2582) ". — Bliss v. State, 117 W., 596, 600. 18. A proceeding where a county judge acts as a "judge of a court of record", as under sees. 978, et al. relating to refusalto deliver over to a successor the books etc. of 'a public officer, "is not a special pro- 'ceeding in court, but One befdre a special statutory tribunal not proceed- ing according to the course of the common law, nor as a court". (Case). 19. And where no "method of appeal or other direct review has been provided, the action of the special tribunal is final, provided, of course, that it acts within and according to its jurisdiction. State ex rel. Cook v. Houser, 132 W. 534, 595. ' ! 20. In all eases, however, the acts of such tribunals as above described 298 PROBATE AND GENERAL LAW, CODIFIED are subject to review to the extent of ascertaining whether they are within the jurisdiction so conferred. ' (Cases)". 21. ' ' No doubt can be entertained of the authority of the circuit court to issue its writ of certiorari to bring before it the record of a proceeding under sec. 978 et seq., 22. To the end that it may examine Whether the magistrate has transgressed the jurisdictional limits imposed upon him." —State ex rel. Velie v. Morgan, 130 W. 293, 295. 23. It is held that a county judge vacates his office by accepting the office of justice of the peace, the offices being incompatible. 24. At common law, "if one office was superior to the other in some of its principal or important duties so that the exercise of such duties might conflict, to the public detriment, with the exercise of other important duties in the subordinate office, then the offices are incom- patible. (Many cases) 25. The decision of this case is, however, based upon State ex rel. Knox v. Hadley, 7 W. 700, by which we consider ourselves bound under the rule stare decisis". — State v. Jones, 130 W. 572, 575. , 26. :The county judge of Lincoln County is held entitled, under sec. .2454, to fees for issuing child labor permits. —Hoffman v. Lincoln Co., 137 W. 353. 27. Where, under sees. 3503, et seq., infant sale of land "proceedings were conducted before Judge C-, county judge of V. County, entirely in S. County from beginning to end", such proceedings were held void because of lack of "authority" "for holding any county court outside of the county." 28. "And further", where such "judge was pecuniarily interested", "as a stockholder in a brick company" which received "the title to one tract of the lands sold", this "would be fatal", under sec. 2579, , 29. Which deprives him of power "to hear and determine the action or proceeding, or make any order therein, except by consent of the parties, 30. The^e was no consent here, and could be none as to the interests of the minors. 31. This statute deprives ,the judge of power, and orders made in violation of, it are not only irregular but absolutely void, and hence subject to collateral attack. (Citations)". : — Mcintosh v. Bowers, 143 W. 74, 76. 32. The surety of a county judge is held liable for improper fees col- lected under sec. 2454 by such judge from the county, and the countv is the proper party plaintiff under sec. 984. ' ' The breach of official duty and the breach of the bond went hand in hand". —Forest Co. v. United Surety Co., 149 W., 323, 329. COURT COMMISSIONERS 299 33. Under a statute authorizing a municipal judge, 'in case of sick- ness, temporary absence or disability 6f said judge', to call in the county judge, it is held that the word 'disability' includes disqualification by reason of an affidavit of prejudice filed. —Eccles v. Free H. S. D., 162 W. 162, 164. COURT COMMISSIONERS. Appeal from power, 13. Mere judicial error, 12. Common law writs, 11. Powers, circuit judge, 1. Habeas corpus, 7. Preventing acting, 10. Remedies, as to, 8. Punish for contempt, 1, 2. Eestraining, 14. Remedies a,s to, 8. Judge at chambers, 3. ' Restraining of, 14. County judge, 4. Words "a judge," 4, 5, 6. Jurisdictional, 9. 1. Court commissioners have generally the powers of a circuit judge at chambers. They have no power to punish for contempt. County judge is distinguished as given more power in "discovery" than court commissioners. 2. (Court commissioners by subsequent statute "have power *_ to punish as for contempt, disobedience of any lawful order made by him- self etc.", subject to review in all cases by the circuit court. Sec. 2434). — In re Remington, 7 W. 643, 653. 3. " 'A judge at chambers' is simply a judge acting out of court", and a county judge can so act," under the statute, sec. 2815 r "in all actions or proceedings in courts of record", 4. ' ' Under this section this court has held that the word ' judge ', when used alone, may be construed to, mean county judge or a court commissioner. See Clark v. Bergenthal, 52 W. 103. 5. See also Woodruff v. Depere, 60 W. 128, 132. In this last ease it was held that the words 'a judge' should be construed to include a ' county judge or court commissioner '. 6. And so, in the case at bar, the words 'a judge at chambers' include a county judge or court commissioner of the same county", under the statute for deposition of the adverse party, sec. 4096. — Wkere.aU v. Ellis, 65 W. 639, 644. 7. "A court commissioner has jurisdiction upon habeas corpus to hear and determine the questions that may be appropriately presented for adjudication." 8. As to remedies concerning acts of court commissioners, "in the opinion of the court, these are the proper rules to be observed : 9. In case of an application to test the act of a court commissioner upon jurisdictional grounds, a writ of certiorari, as an independent 300 PROBATE AND GENERAL LAW, CODIFIED proceeding, or a motion in the proceeding challenged for review, is proper. In re Hammer, 113 W., 96 ; Longstaff v. State, 120 W., 346. 10. In ease of a proceeding to prevent a court commissioner from hearing any particular matter for want of jurisdiction, a writ of pro- hibition or other appropriate common-law writ, if any other there be to meet the ease, is proper. 11. In case of a proceeding in the circuit court under its power of superintending control, some one of the appropriate writs according to the practice at common law for the exercise of such control should be used and should be regularly obtained. State ex rel. Milwaukee Med. Coll. v. Chittenden, 127 W., 468. 12. To review the action of a court commissioner for mere judicial error, an ordinary motion in the proceeding in the circuit court for that purpose is the proper method of invoking the superior judicial authority. In re Hammer, supra ; State ex rel. Gaster v. Whitcher, 117 W., supra ; Longstaff v. State, supra. 13. In case of an appeal to the general equity power of the circuit court to prevent or redress a wrong, or for other relief, the method of approach should be by action in the absence of, any special statutory authorization." 14. "The application to the circuit court to restrain the court com- missioner from proceeding with the hearing upon habeas corpus", is held improper and a procedure "unknown to the practice." See also Jurisdiction. — Potter v. Frohbach, 133 W., 1, 5. COURT RULES. See Rules of Peactice. COVENANT. See also Construction of Deeds. Deeds. Landlord and Tenant. Benefit of third, 5. Not implied — continued Consideration, to, 9. Common law, 12. Under seal, 6. Partial title failure, 4. Incumbrance; free, 1. Pay to third person, 8, 9. Extinguished, 2. Grantor's liability, 10. Married woman, 7. Quiet enjoyment, 3. Not implied, 12. Eenewal privilege, 11. 1. "Covenant that the premises were free from incumbrances" is not ' ' one running with the land ' ', but is a personal covenant. 2. "The doctrine is well settled * if the plaintiff has extinguished the incumbrance, he is entitled to recover the amount paid for it ; but if he has not bought it in he is only entitled to recover nominal dam- ages." —Pillslury v. Mitchell, 5 "W. 17, 21. < I a H l< CREDIBILITY'! ^WITNESSES ''" i'l '301 ' 3. A covenant for tjtiidt en v Joym»mHs Mplefl at common law ; and by statute "in ease the term did not exceed three years". .■■mi 7/ ../,-. 551. 4. On a pajt^a] >| f^ | ij.^re^| j ti^le, a proportionated recovery may be had. See Deeds. .m:',i,,. „.',, >,,.,,! . ', r' —Messer v. OestreicJi,'^^', 684, 696. 5. "The rule ( is , > l th^ot6ughly l Established in this state 'and elsewhere, that when one person, ipr $, y^uable consideration^ engages with another to pay money to or dOiany othter act for the benefit of &t third person, the latter may maintain an 1 actiota against such promisor for a breach of his engagement. ' (Many cases)'. (ij - ; ' . "" ^ ^ 6. This rule, f. applies as '.well) to covenants unfler', ;seal , as ', to : .sample ' contracts. MeDttwell v. Law,' 35 W. 171 ; Bassett v. Hughe's,! 43 W.-319 ' '. 7. The acti^' hased. on the covenant "may be 1 ' maintained against" a married woman>',as. well.rSS'jagainst her husband, "on, their covenant to support her nitfther^'l ■>' u-M — Houghtor&w. Mil~burn/54:>W . 554, 561. 8. "A covenant by. a^ grantee/ />f land to pay the consideration therefor to a third person/i^-nrini this case payment of a mortgage, .on the, land as a part of the purchase* price^is upheld as binding, .r ,-< ••-•'■ ... - 9. "In this' s);at^ : 'tKc^ liability' Msts upon the dqatrine that where" one person, for a .valuable,. consideration, engages with another to 4°.j$ftW act for tM benefit of" in third person, the latter may maintain** an. i action against th'e 1 promi'soFfbtf'the ttfe'aleb of the agreement"-: ('Oases) ":'i^ 10. "No question '.pfjSi^brpgaiion or novation is "involved",' and "'*','j;he fact of whetherithe. grantor i was liable for the debiteor not is held imma- terial. (Cases')^!"' 1 ' ■■•: ■ 'it-'/- — Enas v. /8toitgrer>> 96 newi leas*'- with the same terms, ,«iseept astoithis privilege. •' '^S'e'e' ' DANbtbRD .'AiTD ^e!& ant. " "•'■'"'•'" ■■■!■■:' • k,T —Kollock v. Scribv,er,^8^f. 104,^8. 'il2. ; Sec. i2i204,'tf)'r;eiverseditheiiiuile/ofi that. common, law, and provided that f no cbVenafflt'shaU 'be'dpniipliednin, any conveyance of real (estate','' %Mcli fl is held,- 'under sec. 2242, to include leases for imore than 1 three •years,' and "'our declaration in- Shaft vi Cafeyy 107 W.'j- 2731' to the .con- trary, is withdrawn. '"^ Koehtr V.< Svhwte, 108 '"W,),' 497, 500. in e,\< !, >\i 'Jill" v_fi< i ol :-!■,-,■ '■, , .([•'ifi It.) I'l ll"i|l ',■! -■!,•' |, , .;',"„'. ■ . ■;■>!■:! !!'.,•■.!; (I- ' CHEDIBIIIlTY OP IWITNESSlSS. ff'Tf.-l '[•-nifil)'.' i)MW!;|-".-i.-f, -'1 II l/li , ■■nlfd.l ..'i .r. .>!,■ :/j S'6'e 1 ' 'mMl6Mm$ W WffiMffi." ' ' #itn ; esses'. " ■ ■ '»•// — ,1'tmr) /iiiiio-i ydt '!<> id-ihio-' ')il; I'llrni' '■..!• ■■ ,-, 302 PEOBATE AND GENERAL LAW, CODIFIED CREDITORS' ACTIONS. See also Actions by Extb. oh Adme. Husband and Wife. Action against executor, 35. County court , control, 37. Executors exempt,' 38. Garnishment rule, 36. Administrator discharged, 50. ( Administrator to bring, 1; Existing creditors only, 24. Reasonable diligence, 7. All property liable, 39. Alienation power, 42. Personalty in trust, 40. Statute, realty only, 41. Trustees liability, 43. Certify to county court, 56. Cloud on title, 6. Restore records,' 6. Conveyance: to third, 15, 23, 46. Husband to wife, 23. One void, one valid, 23. Two papers as one, 23. Creditor may bring, 1. Compel executor, 1. . , , . Pursue; heirs, 8. Delay subsequent creditor, 20. Deficiency of assets, 2. ■ Adjudication, 3. Apprehension of, 2. . Equity of redemption, 4. From inventory, 7. Execution return, 32, 53. Fraudulent purpose, 21. Heirs: liable when, 8, 25. Attachment in, 26. Equitabl'e action; 26. Grantees, trustees, 28. Incidental matters, 27. .limitation statute, 29. May bring action, 19. Heirs — continued Surviving partner, 17. Title had passed, 30. Title of minors, 31. Husband and wife, 23, 32. Personal judgment, 33. Void as to creditors, 48. Wife colluded, 47. Inadequacy of price, 9. Insolvent: good faith, 10. Conveyance to children, 16. Conveyance to third, 15. Inadequate price, 9. Non-resident creditor, 22. Not a judgment debtor, 45. Preference to creditor, 12. May be relative, 13. Pending litigation, 14. Purchase; from insolvent, 9. At sheriff's sale, 54. Satisfaction effect, 54. Other creditors, 11. Realty first exhausted, 34. Receiver appointed, 49. Stay of proceedings, 18. Surviving partner; heirs, 17. ! Transfer between parties, 44. Trust: conveyance, 5. Resulting from; ' 15. ' Uninventoried property, 2. Action for: claimant, 18. Pending appeal, 18. Widow in active fraud, 51. Not for support, 52. No right to proceeds, 51. Will forged;, t;o set aside, 55. Tested in county court, 55. 1. In insolvent estates, and conveyances in fraud of creditors hy the deceased, "the creditor may now, in a proper case, compel the executor or administrator to bring the action (under sec. 3832), or bring it himself (under sec. 3835)," to recover such real or personal property, or property not included in the inventory. 2. "On just apprehension of a deficiency of assets to pay the debts of the deceased, before the fact is definitely ascertained", the creditor may bring such action under sec. 3835, and have "the benefit of his lis pen- dens", to secure "the fruits of the litigation if he prevails", 3. "But he can go no further until it is ascertained whether such deficiency exists", and as "the administration of the estate is, peculiarly within the cognizance and under the control of the county court, — we CREDITORS' ACTIONS 303 think, the conclusion is inevitable that the fact of insufficiency of assets must be ascertained by the adjudication of that court". 4. In such an action, the debts having been judicially determined in the county court, and "there was an outstanding equity of redemption in lands", ''available to the administrator", "the county court should have required" the sale thereof, and an accounting by the administrator, "and the order or judgment of the county court thereon would be an 'adjudication", from which to determine whether the action should be tried in the circuit court. — German Bank v. Leyser, 50 W. 258, 264. 5. On a suit under see. 3832, a conveyance by an intestate for his own use, and to benefit heirs, was held a trust, void under sec. 2306, as against creditors, there being deficiency of assets. See Bond for Maintenance. — Severm, Admr. v. Eueckerick; 62 W. 1,6. 6. the inventory of the property and the; claims presented, whether there will probably, be a deficiency of assets in his hands: or not", and he should "proceed with reasonable diligence to recover" and "it is not necessary that the deficiency of assets should be ascertained by claims against the deceased allowed by the county court." !.;,.! ,,, ; ■ ,, .■,[., — Andrew v. Hindermcm, 71 WJ 148, 150. 8. Creditors, having claims allowed in the county court, .may, under sees. 3274, et al., pursue the real estate for 'payment thereof after three years, the limitation of sec. 3873a applying only to the county court. See also Claims. Lien. Real Estate. :,., ii • — Fisk v. Jenewem, 75 W. 254, 257. 9. "An actual purchase from an insolvent debtor for a valuable consideration may be found to have been made with an intent to hinder, delay, and defraud, creditors, but in such cases there is generally an inadequacy of price, or an intent to put the consideration paid beyond the reach ! of the vendor's creditors; but nothing of the -kind here appears. 10. This court has repeatedly held, in effect, that an insolvent debtor is at perfect liberty to pay in good faith some of his creditors in full or in part, and others not at all, and that this can be done without any intent jto hinder, delay, or defraud creditors, within the meaning of the 304 PROBATE AND GENERAL LLAfW, CODIFIED statutes. Seosii'2320, l2323i; Hoeyi v, Pienron,ii67i"Wu'262.;i.Landauer V. Victor, 69 W. 434'; Ingram Vj Osborn, 70 fW. 184; Greene ,& Buttod (Do; .v. Remington, 72, W.; 654/' Andso held- here: where an insolvent . debtor paid, debts, to a brothers by a conveyan.ee of land to Him.. . ■ vtn: ■<■• <:evidieia:cei ion the subjects of such intent,, it canntxt itself be iregarded as sufficient evidence >to> establish such intent":; m; -»jI j I -, ninnr ,^>ErSall v. Atiboodi? 79: ~W\. 1,,.7. _ V._ ,-'no-> jiu-niv -' in ijvi i ; 12. "The right of a creditor to take a mortgage or other security lupon the. property of ihisfdefetorv /which, by reason, of , ihis I superibf dili- gence, will amount tola preference (overall his other : Creditors, although the, debtor: may or I ill failing cirfcumsitiahces, Or, judgments are- about to be taken against him, where no assignment for the benefit of creditors is made or contemplated and there is no fraudulent intent, cannot be ^denfcedi iMehlihopilv.' Pettabone,i 54 iW.» 656 ; -Stevens' v. Breen, 75 W. ,595; Anstedt v.iBentley, 61 Ws, 629. ' •. ,<;!•■ 13. The fact that: the parties, are relatives does not reader- the mortgage or other; securityjjpresumptively fjiauxibulent, butgustlyisabjeetsitheikrans- actionitpi close scrutiny >". ■■: • , i ,^-<"-t: '.;,u,'Ai>> -yui-.xl iluA 'i« 'fi.iiiivri'fg < 14; Held' accordingly and the circuit reversed on the facts, wheteftithle mortgage was given two days after verdict, but before entry of judg-, ment (for another creditor) jvthaftiit wasothoughti^ieoessary te-iredord it at ■ once ' ■' ; ■ i where >the ' debtonr , refused to, pay: the > claim sued oh ' 'rbeqause she" did , not think , it Was an honest < debt ; ?| ' ; a'n-d where i ithe I property, including*; ai homestead; mortgaged Iwas worth several. ^ times the amofuhtt of the claim secured; and it was >ai debt Idfc long standing. ■>:• > , : hunk . .: ,','! : Mii«jv. .,.,, I ! I.-.-' —BmrnMer v.-iHfe%)«;lJ81t W. 256, )259. i'ii'i i vilt 7,(1 l,...ull)'i hnaG'j'iMjj ,,i, jr.iii./yu 15. Wh'eh ia decedent, A., /for. three- years prior to his decease and while insolvent, paid the consideration, but caused the conveyance of therealty to be madeto a third persoWu-in-whom "the 1 title 'to the land vested 'V"by sec. 2078,isuAA ? ;iaridil'Vl(ii| ''it-t-n; ,', ' " 1' ,( i16l iA conveyance by an insolvent father to i his children, of his farm : including: a homestead, -■ for il adequate consideration including also an !agre&ment:to support the father, itherftibeing a small * equity 'besides 1 'the homestead for the support consideration, is held not' fraudulent' as 1 to creditors. —Torrey Cedar Co. v. Etd, 95 W. 615. ■iui-l' !. ' :■■ : ■ -il-. ni .Ill-ill vl! -M,"" ..,:! : •!"■ .-n!': >, 17. Action by a surviving partner 1 against the. heirs,' before settlement of partnership affairs, for ai debt, not sustained. ' See Surviving 1 Part- ner mI ' . - - 1 ■ : . ^BUleely V; Smock, '&6"Wl 611, 613. CREDITORS' ACTIONS 305 18., A county judge having filed and obtained allowance of a claim against a deceased surety's estate pending, in another county, it was held, that pending an appeal from such allowance, ' he might, under sec. 3835, bring an action in the circuit court to obtain uninventoried assets, notwithstanding the stay in county court by reason of such appeal. Smith v. Schreiner, 86 "W. 19, 23 (See Res Judicata). See also Stay of Proceedings. , — Bichter, J. v, Leiby, 99 "W. 512, 517. 19. In an action by heirs to set aside a fraudulent conveyance of the husband to a second wife, it is said, that "while their standing court may not be as meritorious as creditors' would have been, yet they are entitled to protection against the undue influence and secret frauds proved in this case". Deed set aside. —Diseh v. Titmm, 101 W., 179, 192. 20. As to the statute making a fraudulent conveyance void, (sec. 2320) "a conveyance made with intent to delay a subsequent creditor comes within the statute., Hoffman v. Junk, 51 W., 613." 21. "It is not the honesty of the debt secured by, ,but the purpose of, the conveyance, to which the statute has reference. The mortgage in suit is none the less void .though given to secure an honest debt, if given and received With intention to hinder and delay creditors. David v. Birchard, 53 W., 492 ; Sweetser v. Silber, 87 W., 102 ; Bleiler v. Moore, 94 W., 385. " —Zimmerman v. Bamnon, 101 W., 407, 412. ,22. A non-resident creditor is "governed by the same rule" as to proceedings for claims as a resident. See Claims. —Winter v. Winter, 101 W., 494, 496. 23. A voluntary transfer of -personalty .by a husband to wife, and a conveyance of. realty at the same time through a third person, retaining a life lien for his personal support, must be "construed as one instru- ment," and the latter, under section 2306, ; being, void as to creditors, the reservation making the conveyance a "gift in trust" for the husband's benefit, — therefore both are void as to, creditors. —Stapleton v. Branncm, 102 W., 26, 28. 24. ' ' There can be no right in the administrator, under sec. 3832, to attack" a conveyance made long before even if made "iwith intent to defraud" a creditor of that time, and he can only do so "for intent to defraud the existing creditors, who alone are represented by him". —O 'Medley v. O 'Medley, 102 W. 639, 640. ' ; 25. In an action on a note, by a creditor ,of a, deceased non-resident, against the heirs, under sec. 3274, et al., it is, in effect held : 26. That "this is. an equitable action requiring an accounting, and an attachment is not allowable in such an action". The heirs, "are not Zimmerman— 20 306 PROBATE AND GENERAL LAW, CODIFIED liable in excess of such property (realty), or liable at all upon contract", and such, provisional remedy is only applicable to enforce debts due on contract. 27. That there is "but one cause of action", notwithstanding other \ ' incidental matters may be connected with the primary right, rendering other parties than the main defendant proper or necessary" parties to a complete settlement or for the protection of the rights of parties as between themselves. 28. That fraudulent grantees and their privies, if "either is in pos- session of any of the fruits of the fraud, he is" "a trustee thereof for the plaintiff", and they are proper parties to the suit. ' 29. "The plea of the statute of limitations upon the enforcement by action of a liability created by law, cannot avail the defendants, because the heirs were out of the state when the plaintiff's cause of action arose, and so continued. That prevents the limitation statute from running in their favor. Sec. 4231". 30. The "title to the property" "passed to the grantee" of the adult heirs, and whether "a voidable title passed or not depends" upon the good faith of the transfer. 31. The title of the minor heirs, by a foreign guardian, without author- ity from the courts here, did not pass to the grantee. See also Foreign Guardian. Pleadings. -^-Adkins v. Lo-ucks, 107 W. 587, 592. 32. In "a creditor's bill" to reach a debtor's interest in the realty and personalty of his deceased father's estate, conveyance of which by him to his wife was held void, a "return upon execution that no property can be found establishes, prima facie at least, the exhaustion of legal remedies. ( Cases ) ". 33. Personal judgment against the wife and administrator of the father's estate was held erroneous, though otherwise sustained. (But see Williams v. Smith, 117 W. post.) 34. And "the legal rights should be first exhausted against the real estate, to the exoneration of the personalty claimed by others," but the claims being more than both, the reverse order is undisturbed. See also Husband and Wife. — Oppenheimer v. Collins, 115 W., 283, 288. 35. On judgments against S., a reeeiver was appointed and com- menced suit to collect against S. and the executors of the will of S. 's wife, by which will S. was bequeathed the income of personalty to be paid by such "executors and trustees", — the estate being "in process of settlement in the hands of her executors ",— and it is held : ' 36. Though sustained in Oppenheimer v. Collins, 115 W. supra, "where no objection was raised", the question "appears never to have been raised or decided in this court", and following the analogous rule in garnishment cases (See Liability), it is now determined, — 37. That "either upon proceeding supplementary to execution or CREDITORS' ACTIONS 307 upon a creditors' bill, the donduct of executors can" not "be controlled by a court other than that from which they, derive their authority"; , 38. That "they are exempted from the broad language of sees., 3029, 3035", and that "supplementary proceedings" "cannot be .maintained as against these executors", and the injunction proceedings interfering with their disposition of such income, "should have been dismissed''. 39. However, "it may be stated generally, that, except for express statute, all property of a debtor is liable for his debts". ,. . 40. "We have been referred to no statute exempting! personal prop- erty held in trust, nor the proceeds nor income thereof, .when the debtor is absolutely entitled thereto, so that he can sell, or assign. , 41. Sees. 2083, 2089" "apply only to real estate", contrary to New York statutes, and "we cannot view these sections, as exempting from liability for debt the income of the> personal estate held in trust for appellant -S., which is payable to him absolutely and without condition. , 42. Being, so payable, his power of transfer and alienation. is abso- lute. Lamberton v.- Pereles, , 87 W. 449, 461 (See Trust Variation). He could by his own volition transfer this valuable property right to the judgment creditor or to the receiver, in part satisfaction of the judgment. 43. It is competent for a court of equity, acting upon the debtor per- sonally, to compel him to, make such transfer, or, in lieu thereof, to effectuate that result by its decree. Such transfer can be as complete and of as full effect as any the debtor could make, to vest in the assignee complete ownership and right to demand payment from the trustees, and to hold them to liability in case they disregard his rights after proper notification and demand". (Approvingly quoted in Mangan v. Shea, 158 W. 619, 625; See Trust Variation);. —Williams v. Smith, 117 W. 142, 144. 44 "A transfer of property in fraud of creditors is. good as between the parties, and as to all persons except the creditors defrauded." —Zahl v. Billings,. 118 W., 459, 461. 45. Where in an action between. plaintiff and defendant to construe the will of defendant 's wife, plaintiff was adjudged the owner of an obligation against defendant arising out of the wife's estate but not due until defendant Vdeath, the latter was not "a judgment debtor by virtue of the judgment^ in" such action, 46. Hence "plaintiff was at most a mere general creditor, Twithout lien of any kind upon" defendant's "real, estate, /and cannot , attack the transfers" of defendant to a third party, on the ground of fraud,— in a creditor's action. * —Mitter v. Drane, 122 W. 315, 317. 47. Where ah insolvent "conveyed his real and personal property; to his wife", "without consideration a'few days prior to his death with intent to defraud his creditors", and his wife "colluded with; him to 308 PROBATE/ATCD GENERAL LAW, CODIFIED ca'rry out such purpose"; and plaintiff 1 had filed Ikrid^hadfiaMowedo^is claim 'in administration proceedings which 1 '-'have* been "Closed'"',' there being no assets to' pay ; the debts,— --it is held:' >z'> '^R v/jrlt joriT >.{; <>o 48/ In an Action 'to set aside the 'transfer " the court properlyiawa^del judgment 1 pursuant to sees. - 3835 ■ and ■' 3836, 'declaring-"'' 'the- iflirajiKfer "void asto the creditors of the deceased and subjecting #id property: to the payment Of' the debts''; < ■•■ww% b-ituJn •»< ■.<•■" ti ' i-ivw/oll (:;. 49. Through "a receiver, with 1 the- usual powers 'and' 'duties, tontafee possession", sell' it "and apply the proceeds" to suoh payment// .01- 'i"50:' The administrator having' been discharged;" " has 1 no ' ihWares$i in this litigation'l', "is> not a 1 proper 'party'', 'aiid '"is mot' 'entitled to appeal", axtttoo , "atutea ln>2.6;>29. .Jl!3I'iyii|lj. 53,i M An execution being returned unsatisned"(iVis,(the> pi-ime gsfeen- tialiof iaiereditor's suit (Harriganvi. Gilchrist; 121iiW."li27.,:2X8)..7i[i;(i(w o ' 54: «Where a (careditto purchased at an j execution i sale, ohtainingt-'-'ithe sheriff's certificate thereon", this "must be! >eonisidered in ettetct/a&cais&i- isfaieibioln of i the judgment''; i The 'full ran alleged . lorged wilb be. set' aside upon suiKmeffilbflwBte BetiJfe^iiJpat is, held that the county court having, ''properly s&ssum&d jurisdiction of the estate''; there "fpitetarily should 1 be tested" the question raised; 56. And under sec. 2836b, the court directed the circuit court "to certify the '< '< proceedings >-1 '>to 'the eduuty court ' ' i '1i or< ''further,' pf oteeed- ings". .I)')l;UK'('loi Kiohl i ,-^-KffmorowsM v.- JacUotuski; 164i Wv:254j 237. .tat ,Gci4 ,.'// HII ..v.vni'vWtii. .v Un\— ... to ...vm^li •,, ,;-,' W P 'iWW»Vk ,• hiui.ii- ijee, Remand Profits, . Jo ,, [f0 a , lim)! tnahu^f, to vd 'loid-ih f[i'»iiiilii([. R" Jon v.v.!i •)'v.' i- ( Hli>')f) • tiifil ., t ' . t ., , CROSS EXAMINATION.™":^ [fill tllOflil// .-liiJll)')'!!) .:; : > ,■ .:■ , 1 I,i,;, tlllfriil 9fI See" also Di&6ovEkY.\ Examination 0F i 'WrrN^Es\'''JkpEACHMErfr' Of Witnesses:. , "' rjo ' 1 - ■'' ■?" - ! "'"i ; ,i,!i |; '' ! -'-'"<-''l '!> '" "*•. ■' "V ' i' '• 2LT. ,™w(\ .V •nWiAf.- ' .iioit-u; a'-iotifm- i; fii Adverse party examined, 41, 42. Browbeat, etc., 40. ,Biasiof witnesses, , 2. „, J JtU3 | H ,,., MU | f,,, Confined tp,,dirRct,,5, Jg, .22,,??.. vt n , Discretion of ,court, .3, 10. , ,•),,. „ Broader as to. party, 23; 33. v -i 11 'Enmity or friendship,!, 10, 2'7.' "", b " 'Sttect when not, if " • ''*'" T lJ ' Terriptatibti, t l,;; " '" '' *"' •><•« . Not ''too' limited/ 35.- ' i ' ,, ' ot • totlI( CROSS EXAMINATION 309 Credibility, 4. Associations, etc., 4. Interest in suit, 8. Discretion of judge, 3, 19. Large measure of, 20. Party rights, 12, 13. 'Regulation necessary, 30, 31. Disgrace of witness, 21. Matters irrelevant, 37. Party imputed, 28, 36. Impeachment, 38. Prior examination, 39. Liberally indulged, 18. Limit of examination, 7. Nominal party, 34. Objected to or not, 40." Party: different rule, 7, 12, 23. . Disgrace insinuations, 28, 36, 37. Party — continued Fraudulent transfer, 24. Ill-feeling between, 27. Nominal party, 34. Not absolute right, 13, 14, 25. ,. Payment' defense, 26. Purpose of examination, 11. Truth aids, 17, 29. Right: restrained, 3, 19. Absolute within limits, 1 30. Regulated from bench, 31. IJule of cross, examination, 5. Examined in chief, 5. Not applied to party, 7, 12. Not beyond this limit, 6. Testing memory, etc., 5. Written , such a thing, 9. . , Must exhibit, 9. 1. "On the cross-examination of a witness, anything which shows his friendship or enmity to either of the parties to the suit is commonly a proper subject of inquiry." 2. "So also is anything which tends to show that, in 'the circumstances in which he is placed, he (the witness) has a strong temptation to swear falsely." 3. The right "must of course be restrained within reasonable limits, * subject to the discretion of the judge. ' ' —Kellogg v. Nelsdn, 5 Wi ! 125, 131. 4. On credibility of witnesses, ' ' questions tending to show the present or recent places of residence, occupation, association and acquaintances * are proper and cannot be' considered as irrelevant," on cross-exami- nationi — Kirschner v. State, 9 W. 140, 144. 5. ' ' The rule is, that cross examination is to be confined to the matters about which the witness was examined in chief, subject to the latitude allowed for the purpose of testing his intelligence, memory, credibility and fairness". 6. "And neither party should be allowed, in cross-examining his adversary's witness, to go beyond this limit, and introduce independent matters tending to establish his own side of the case". >'<« 7. But the reason therefor "would seem to < fail > entirely where^the question relates to the examination of a party to the suit". "It is^vfery doubtful, therefore, whether a departure in such a case from the'f ordi- nary rule of cross-examination would be sufficient, even thougW'the objection were made upon that ground, to reverse the judgment '. ! 'i — Knaappv. Schneider, 24 W. 7 ' • 27. "It was entirely competent to show by' cross-examination that there was ill-feeling between the plaintiff and defendant, or that trouble had occurred between them, and the general character T>f the trouble; 28. But it was not competent for counsel to inject into the case, by statement or insinuation, charges of lying, theft, and perjury," and "the mere sustaining of objections, without fitting rebuke is no adequate remedy for the evil." , —Sullivan v. Collins, 107 W. 291, 295. 29. "Cross-examination is regarded as ; one of the most efficient meaiis of discqvering the truth, and so long as there is any reasonable ground to suppose that it is being pursued legitimately it should not be dis- turbed". 30. "The use of it is not a mere privilege subject to discretionary judicial authority, — it is a right. The judge may regulate its use, stop- ping just short of any disturbance of the right itself. To go further is improper^ , 31. The right is so valuable to litigants and the opportunity to abuse it is so constant and often embraced that some regulation thereof from the bench is necessary". — III. S. Co. v. Jeka, 123 W. 419, 429. 32. "Ordinarily the cross-examination. of a witness should be confined to matters brought out upon the direct examination. 312 PEOBATE AND GENERAL LAW, CODIFIED 33. In case the witness is also a party to the action, a somewhat broader range, is allowed. Sullivan v. Collins, 107 W. supra. 34. While the witness 'here", the plaintiff, a trustee seeking "direc- tion from the court", "was a party to the action, he was only nominally such ; and it may well be doubted whether, in the application of the rules as to cross-examination, he should be considered as in any different class from the ordinary witness." — Winn v. Itzel, 125 W. 19, 28. 35. "A party should not be deprived of this right by so limiting the scope of the cross-examination' that the value and weight of the evidence given. on direct examination may not be fully tested". —Montanye v. Northern Elec. Mfg. Co., 127 W. 22, 34. 36. "Cross-examination to discredit a party", is not "any different from, that in respect to any other witness". 37. "Matters 'utterly irrelevant' " "cannot be proved on cross- examination for the purpose of impeachment", or "established by any method for any purpose. 38. A witness may be asked on cross-examination if he has not been convicted of the commission of a criminal offense for the purpose- of discrediting his evidence, because it is competent to prove such convic- tion as an independent ,f act for the same purpose", it being relevant as to credibility. (Citations). 39. "True, proof of independent ;f acts of the character stated must ordinarily, first, as a matter of justice to the witness, be preceded by his examination in .respect, thereto, but such examination is permissible because the facts spught to be elucidated are. not wholly irrelevant". 40. "When questions are merely asked to browbeat, so to speak, or to annoy or confuse, or to create mere suspicion, they, should not be allowed whether objected to or not. (Citation) ". —Schwantes v. State, 127 W. 160, 182. 41. Where an adverse party is called for cross-examination under sec. 4068, "his counsel has no right to re-examine him". (But, see par. 42, post). See also Discovert. , — 'Day v. Meyers, 147 W., 549, 558. 42. Where plaintiff called defendant's employee for cross-examination under see. 4068, "the defendant has a right to re-examine such witness immediately after the examination by plaintiff's counsel as to all matters tending to explain or qualify the testimony already given ' ', and may ask impeaching questions, but not examine "as to new matters", — and O'Day v. Meyers, 147 W. supra, is modified accordingly. See also Dis- covery. —Guse v. Power & M. M. Co., 151 W. 400, 406. CURRENCY. See Money. CURTESY 313 CURTESY. Actual seizin of wife, 6, 7. Common law: definition, 3. Four things requisite, 4. Seizin in fact, 6. Statute change, 5. Conveyance to exclude, 9. Creditor's right: dower, 10. Curtesy subjected, 11. Dower and curtesy, 12. Sis children only, 1. Husband's interest, 8. None before death, 13. Remainder or reversion, 14. Dower estate outstanding, 14. Statutory modification, 5. Tax deed title, 2. 1. A surviving husband is entitled to an estate by curtesy in the real estate descending to his children by the wife only, where the wife left children by a former marriage and dies intestate. -^-Kingsley v. Smith, 14 W. 360. 2. A tenant by curtesy cannot get title in himself by tax ; deeds for unpaid taxes either for the period before or after his tenancy com- menced, i ' — Phiekmv. Boylam,, 25 W. 679, 3. "An estate by the curtesy", at f common law "is commonly defined to be the interest to which the husband is entitled upon the death of the wife, in the lands or tenements of which she was seized in possession, in fee simple or in tail, during their coverture, provided they had lawful issue born alive which might by possibility inherit, the same estate as heir to the wife. 4 Kent. 29. 4. Four things were requisite .to the existence of this estate, namely: marriage, actual seizin of the wife, issue, and death of the wife. 4 Kent. 28 ; 1 Washb. on Real Prop. 127 et seq. 5. Under our statute, the birth of issue is not essential to 'the existence of the estate (Sec. 2180), though, if the wife at her death leave issue by any former husband; to whom the estate might deseend, such issue takes the same discharged from the right of the surviving husband to hold the same as tenant by the curtesy." 6. "By the strict rules of the common law, there must" not only be a legal seizin in the wife, but seizin in fact, or actual entry taken — pedis possessio, — or the estate would not vest, though the former strictness in this respect has' been relaxed." ' 7. "In' some eases, especially of wild and incumbered land, it has been held that actual seizen in the wife was not essential] but that legal seizen or ownership, with the right of entry on the part of the wife, or construc- tive possession, was a sufficient seizen to give the ; husband curtesy. (Cases)." i ■ ■• .,,.',■ 8. "The husband's interest in the wife's land is not the land itself." "When actual possession is acquired, then his marital rights will attach, whatever they may be ' '. — Westcott v. Miller, 42 W. 454, 465. 9. A conveyance to a married' woman to exclude curtesy of her hus- band upon her death, held valid* See Devise. —Van Osdell v. Champion, 89 W., 661, 665. 314 PEOBATE AND GENERAL LAW, CODIFIED 10. Though "the dower interest of the wife cannot be reached by creditors of the husband" on his decease, 11. Yet it is held that on her decease, "the right of her creditors to have her estate subjected to the payment of her debts is paramount to the right of" the husband to curtesy. 12. "There was a close analogy between dower and curtesy at common law, but this analogy has been destroyed by statute. Curtesy initiate has been abrogated in this state. Sees. 2342 and 2180". 13. "The husband acquires no interest in the lands of his wife prior tp her death. She may convey or devise her lands and entirely defeat his right to curtesy". — Schmidt v. JRaj/m^nd, 148 W. 271, 273. 14. ( ' ' The husband cannot be tenant by the curtesy of a remainder or reversion of his wife expectant on an outstanding particular freehold estate, unless the particular estate falls ■ into the inheritance during coverture.,. "Where the wife is heir in fee to real estate subject to the dower of ber mother, the husband will not have curtesy in such estate if the mother is living at the death of his wife". N. Y., Mass., and other cases cited. 8 R. C. L. 398, and 11 L. R. A. 826, note, — to the same effect.— 12 Cyc. 1011.) CUSTODY AND COMMITMENT. See also Infants. Parent and Child. Constitutional, 11, 18. Magistrate powers, 2, 4. Equity jurisdiction, 2. Unknown to law, 4. Guardianship, 2, 5, x 13. Maintenance delegated, 9, 10, 12. Not police power, 15. Police power, 1, 3. Helpless persons, 1: Equity not, 15. Industrial school, 1, 6. State guardianship, 11. County expense, 7. State public school, 16. ■Judges can commit, 8. Judge of court, 17, 18. Parent's right, 1," Substitute for parent, 11. Court appointed, 13. 1. "It is the duty and policy of the state to provide efficient means, in its discretion, for the care of all destitute and helpless persons within it", and commitments of destitute children with the care and custody to the plaintiff, organized under "the industrial school act, ch. 325, of 1875" (now sec. 1786), are upheld, as not being, "imprisonment", and not "intended to foreclose the right of a parent, when competent, to resume the custody and care of his child". See also Policy op the Law. Paupers. — Milivaukee Ind. Sch. v. Milwaukee Co., 40 W. 328, 338. 2. The proceeding before a county judge, as magistrate, and the orders of the judge as to the custody of the child, under the statute as to abused and neglected children, Ann. Stats, sec. 4587b (now sec. 4052b, in sub- CUSTODY AND COMMITMENT 315 stance), "did not constitute any valid objection to the jurisdiction, of the circuit court to hear and determine" a petition for the appoint- ment of guardian of such child, and consequent custody of person and estate. 3. The statute, like sec. 1786, as to commitment to an industrial school ' ' is founded upon the police power of the state ' ', and is valid. Milwaukee Ind. Seh. v. Milwaukee Co., 40 W. supra. •; ... 4. "The proceeding before the county judge, although judicial in its character, was before him as a magistrate, and was not one in any court 'known to the law. It was, therefore, no bar to the appointment of a guardian by the circuit court, in the proper exercise of its general equity jurisdiction over infants." 5. While a court of equity should not lightly "exercise its juris- diction" (Meyer v. G-arthwaite, 92 W. 571, 573; see Concurrent Juris- diction), yet, "in the present case, when the petition was presented to the circuit court, no application had been made to the county court to appoint a guardian for the infant, and there was no obstacle to the exercise by the circuit court of its concurrent jurisdiction",. , : .:'■ — In re Gdnsp, of Klein, 95 W. 246, 249. 6. As to the commitment of children to the Wis. Industrial School for Girls, by judges of courts of record, it is held : 7. That while the statutes, sees.' 1547, 1786, are not explicit, the ex- pense of maintenance is properly payable by the- counties ; 8. That "judges of courts of record" may constitutionally make such commitments ; 9. That "the duty of maintaining dependent children, so far as assumed and exercised as a function of government", may be "dele- gated to a private corporation to be performed at public expense". 10. That "children hot paupers or restrained of their liberty as punishment for crime" can "be maintained at public expense by a private corporation". 11. "Every statute which is designed to give protection, care, and training to children, as a needed substitute for parental authority and performance of parental duty, is but a recognition of the duty of the state, as the legitimate guardian and protector of children where other '-guardianship fails. No constitutional, right is violated ". i —Wis. Ind. School for Girls, v. Clark Co., 103 W. 651, 654. 12. Following In re Klein, 95 W. supra, where a child was awarded to the mother in divorce [proceedings in circuit court, and guardianship and custody was afterwards given to a society, by the county court, after a hearing under sec. 4587b (now sec. 4052b), such child being sub- sequently released by habeas corpus proceedings, — 13. On later application by an uncle, the circuitf court appointed an aunt guardian and took the custody from the mother, she and the father and the uncle, all being unfit to have the child ; 316 PROBATE AND GENERAL LAW, CODIFIED 14. Thereafter, on habeas corpus issued out of the supreme court, such appointment was sustained. "The circuit court, in dealing with the subject of guardianship and custody 1 of minors, acts as a' court, and judicially, in the broadest and highest sense of that word", 15. And its "order is not dependent either upon the police power of the state, or upon the right of either parent as against the other, but rests upon considerations of the welfare of the child itself". — In re StiMgen, 110 W. 625, 628. 16. While sec. 573f, as to commitment of dependent children, to, the state public school, "provides that the proceeding shall be before the county judge", 17: "We are of the opinion that had the proceedings been before the county judge sitting as a court they would have been valid". 18. "It is settled in this state that the county judge has jurisdiction of such proceedings", and "that the granting of such power to the county judge is not unconstitutional". Wis. Ind. Sch. v. Clark Co., 103 W. supra; (other cases, supra) — State ex rel. Spritka, v. Parsons, 153 W. 20, 22. CUSTOM. See Usage. CY PEES. See also Charitable Trusts. Elizabeth statute, 2. Liberal construction, 4. Judicial power only, 1. Sovereign power, 3. 1. The courts of this state cannot exercise this prerogative, and are not "clothed with other than strictly judicial power". See Charitable Trusts. —Heiss v. Murphey, 40 W. 276, 292. 2. As to the extent involved in 43 Eliz. applicable, and not in force in this state. See Charitable Trusts. —Webster, Extr. v. Morris, 66 W. 366, 391. 3. "The doctrine of cy pres, so called, is not recognized and acted upon by the courts of this state. That doctrine is enforced by the English court of chancery, and by some courts in this country. But this court has held that the doctrine of ey pres rested upon prerogative or sovereign power, and was not strictly a judicial power, and consequently the courts of this state could not enforce it.. Ruth v. Oberbrunner, 40 W. 238; Heiss v. Murphey, 40 W. 276. " —Will of Fuller, 75 W, 431, 434. U 'A l''i Hi' > '■ ■ iDJUIfiMMSS ■ / /. M 'IV ■ ' 317. r ,;,&:> ',' T'heieyipaieM doctrine, as. jiiiadaJaativ.e' ek 4), it does. prevail", -t Syl, by Marshall, J., andiiifiullrddsfaussion. . 1 ;m -: ■.■< -'■ — HatfrAngtxm v. Pier, 105 W. 485. j ■ 'It ■){( t Ot J> .' < • ,l1 ,.') ' : ' . ' ' -j 1 1 iv.n i. 1 ^i; 'l'i[(x -JO ! '.\- ('ili'M'irn — . . t ,.■■ — r: ,1mm ..I0il U> rioitfili'jffl'iini.'i 'uli ,,: ii-riii i.i; ii '' lo tlfM'ft '.JdBdo'iq '.ill ^ PAMAQE^ in .8L*9 ,t!ti) .W iC ,.o' > .d WW,, t. / v.n . ;, , See also Actions by Bxtr. oe Adme. Executory contract .rule, 6. liquidated: 1( tiorftfem'p t ia l tS6n t o'f tpHttitoJ, 9: ; :l ' l,r Fixed 11 (Carriages, 2. IiJHadTejtiv. BaKendalet/i».''! • <• <> : Money payment, 1. Market, price,. 6>l7 r , rl .,;. .„■,-,, „ f0 ) Irit'fffiWlty 1 when, 2, 3. ^u^pflftjs ^eatj^-^j , ,,,;. ,,, j,, , ,. ,,„! Substantial breach, 16. Widow may 'settle, 141.15. / ' Mitigation, 12. '''^iio^s^tt^nti'll 1 '"' ' f "' '■' ' " ;i ' : Spe6ifie work, breach, 5, 10. Infant, death of, 4. Profit ascertained, 11. Ifl&&njtyfi|wbce©iingB,i.'10.i , ^ tit Bini'/tsh ■> id 'f'liw'i'l 'lift ; . . .liu'i /llti'ifjj.iiri b(ij 1. JlPie /doctrine iqi; liqujd&ted damages is not applicable to agree- ments for the payment of money merely''. i 2»,Hg]^ [1^at K ! Inhere ithje^daWiagBSi were uncertain and incapable of d^fin^e., aspgrftai.nm 1 ent,| t the dapages, fixed in the contract would not be gonsidjefi?d,flm ^beoQa-ture 1 of ft penalty^ but might be recovered". v . 3. ; ^ju^^/iwbejetjfriomrthefVgryi nature of the, provisions of the contract" the actual damage may be accurately ascertained and may be trifling, it Vijll(.'ii})te,.epnsfi(jesedia^ a, penalty",! ^FMzpatrick v. Cottmgham, 14 W. 219, 221. -cm i ')d.t vd noi r ,:. iu; ui -piv. ■ . : .y, ,-4, ( IJa;if§agiejS , for, fd08-tih \ off tinf ant L ,are recoverable. See , Infants. " ,i io Hluni 'llyi s.If -r.il ■»> va-bPotter v. C. & N. W. By., 21 W. 372. ,-t;fVIB(J 'ID 7/ ill'// .blllill^lxl '>■: i •"■-' : 5. The rule of damagesi in, ,', 'breach of contract for doing a specific TgQrJi'ijtJg stysttedj, .and: differ^ from th e ru le in case of "personal services". See Construction of Contracts. iIobHb rifi> >.o S «f"Bb f)'jii;l>nipii ^iW—Nilson v. Morse, 52 W. ,240, 255. ilvji'i'id JBfJimi^iliir. ji io '. :''"'- i'y;>' . > , niii-t ff-tBhe giene|Fajf(jplg in actions , to recover; damages for the breach of an ^xejqUitQJly'icon^ac.t' toirS^Uiandj deliver goods, is that the difference between the marked, price )ftf , the goods at the time and, place specified ig^i;hej)^}ontrAe1;rfp?Hd^Jiy^ring. the isame, and the contract price, is the measure of "damages". -i;f7Mi$»>t thiS;EW(i6 qLo:es,,not apply ''if no such goods can then be obtained at that place", -:>;,;,;(' | A ./ lL c ! >■■■ • ■ .0;$, "Jn tb/eiieadrng^se q£ Hadley v. Baxendale, 9 Exch. 341, (S. C. 26 Eng. Law & Eq. 398), the doctrine of which has been adopted by 318 PEOBATE AND GENERAL LAW, CODIFIED this and many other courts, the rule applicable to this ease was thus stated by Baron Alderson : 9. 'Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it '. " —Cockburn v. Ashland L. Co., 54 W. 619, 623. 10. The rule as "recently laid down by this court in Nilson v. Morse, 52 W. supra," is "that 'the rule in case of a breach of contract for doing specific work for a specified price is the profit the person would have realized had he been permitted to perform the work'. 11. This profit, of course, is ascertained by the difference between the contract, price and the cost of doing the work. There can be no other rule of ascertaining it". 12. "It is affirmative with the defendants to mitigate or lessen the damages which approximately and naturally followed the breach of their contract. (Cases) ". ' — Nash v. Hoxie, 59 W. 384, 389. 13. While "an action to recover damages for the wrongful killing of her husband", must be 'brought by the personal representative of the deceased,- yet the widow may bring an action "to recover the note and mortgage' whic'h the defendant executed in settlement of the damages for wrongfully killing plaintiff's husband. 14. It seems to us there can be no doubt but the plaintiff had authority to settle with the defendant for these damages". 15. Being the beneficiary, entitled to recover in an action by the per- sonal representative, "we can therefore see no possible objection to sus- taining a settlement made by her, and giving her the full fruits of it". (By amdt. of ch. 186, L. 1913, to sec. 4256, the husband, widow or parent, may now bring such action for damages directly). —Schmidt v. Beegm, 69 W. 300, 303. 16. "Before any liability to pay the liquidated damages can attach to the party in default, he must have been guilty of a substantial breach of his agreement, — a breach Which has resulted in something more than mere nominal damages to the other contracting party. This rule is so manifestly just that no discussion of it is necessary". — Hathaway v. Lynn, 75 W., 186, 189. 17. As to damages awarded against petitioners for insanity examina- tion, on dismissal of proceedings. See Insane Persons. —Manz v. Klippel, 158 W. 557, 560. See Time. DEAD BODIES DAY. 319 DEAD BODIES. Administrator, etc., 9. Funeral charges, only, 10. Adult child, parent, 15. Attitude personal, 6. Cemetery lot, 1. Close personal intimacy, 5. Died remotely, 4. Friendship eliminated, 11. Nearest relative, 2.. Legal right, 3. Order of right to, 8. Parent to minor, 14. Statutory recognition, 7. Wife surviving, first, 12. "Relatives" includes, 13. 1. " 'Where one is permitted to bury his dead in a public cemetery, by the express or implied consent of those in prbper control of it, he acquires such a possession in the spot 1 of ground in which the bodies are buried as will ' entitle him to action against the owners of the fee or strangers, who, without his consent, negligently or wantonly disturb it ' ' '. Bessemer L. & I. Co. v. Jenkins, 111 Ala. 135. So applied. ■—Hotlman v. City of Plattevitle, 101 W. : , 94, 97. 2. The rights of relatives being undetermined here, ' ' from the authori- ties above cited, and from original reason, the conclusion seems to us irresistible that in the nearest relative -..of one dying, so situated as to be able and willing to perform the duties of ceremonious burial, there rests the right to perform it, . 3. And that this is a legal right, which, as said in some of the cases, it is a wrong to violate, and which, therefore, courts should protect and vindicate". 4. "While in the case of one who died remote from those of closer affinity the mere relationship of. contract may suffice to arouse such duty in absence of statutes giving charge to some public officer, 5. In normal conditions of human relationship common consent and custom recognize the right and the duty- to rest upon those who, bore to the deceased in life the . closest personal intimacy of acknowledged and lawful relationship . " ' • 6. "Fiction it may be, but hone the less actual, that the attitude 1 of the widower in conferring upon the body of his. departed wife — the parent to that of his child — is personal". i 7. "Our statutes give general recognition to this idea by directing bodies of strangers or convicts to be delivered to their 'relatives or friends'. Sees. 1437, 4926. 8. From this point of view, we think, are justified certain conclusions as to which, among'the survivors, bear this duty and enjoy t ( he|right, which seem to be supported by the general current ..of authority. . ". 9. First among these is, that the right is not vested in executors and 320 PROBATE AND GENERAL LAW, CODIFIED administrators, as seemed to be suggested in some English cases quoted somewhat inconsiderately in this country." 10. As to such representative, the matter of payment of the funeral charges "is the only relationship which such an official has to the sub- ject". Samuel v. Est. of Thomas, 51 W. 549. 11. "In all normal and ordinary situations, mere intimacy of friend- ship should be eliminated, or at least subordinated to relations of kinship, as too intangible and indefinite for the law to lay hold of . " 12. "We have no doubt that, save for very exceptional, conditions,, the right of burial of a dead body rests primarily with those connected) with the deceased, in life, by some ties of legal relationship, and we 1 agree with the great weight of authority that foremost and closest' Juj such relationship stands the surviving spouse. ' ' 13. "We cannot doubt that the word 'relatives', in the aboverci^ed statute, includes the surviving spouse, though in' other statutes it .may not. Cleaver v. Cleaver, 39 W. 96." " 14. "That the duty and right of the parent toward the body pf,the minor child dying a member of his household, 15. Or of the adult child toward his widowed parent, either) a, member of the child's family circle, or not a member of any other, seems too clear to warrant discussion." — Koerber v. Patek, 123 W. 453, 459. - ^Jjvgh oilT ,L .h'-yfto «jvix()i -hi DEATH. -...it -.rr < , ■,., See Birth, etc. Construction of Wills. Presumption, jof Death. Vesting of Estates. ' " '. 1 ■ i/f ^noi ii (.i ti .'''itfi'jihuiv orlt nt olirlW " .i- DEBTS ' n tmni 0( '* Y.tiififtB See also Claims. Setoff. 'i.isj 'io 9-)ii'mUi ni vinl) Iiifirioii ill .ti Agreement to take part, 6. Presumption of, 3J : > ,-f ln'tv/ul bittt Definition,!. Allowance, etc,,, ,13. , , ,„,;.,„ :rj ■ > ^ ■nhhr -M-ft Due deceased, non-resident, 16. Intestate estafe, 12. Executor's: own debt, 2. Rights fixed dt 'death*, 15] Due the deceased, 10, 17. Testate estate, ll, 1 14. ' ! '! ni In , Foreign estate settled, 4. Two creditors agree, '7. , ■ , , Gratuitous agreement, 9. Executor one of tfiem,,, 8., . ' i , . , Jurisdiction given, 16. ' " '- ' f -osH nine-, i' 1. " 'Debt' itself is commonly and generally used to describe all' obliga- tions to pay money, whether arising from contract, or imposed' bVitfw* as a compensation for injuries". ''' "'• " , ' i "' f —Smith v. Om&his,' 17 W.395 1 , 3)96. DEBTS 321 2. Executor cannot, in equity, sell or pledge assets for his own debt. See Executors and Administrators. — Weir v. Mosher, 19 W. 311. 3. "There can be no legal presumption that the testator died in debt, and, in the absence of such presumption the burden of proof is neces- sarily upon the plaintiff, who asserts the fact, to prove". 4. In case of a foreign estate duly settled at the place of domicil, held, that "evidence that the will was probated and the estate fully administered upon in the county where the testator lived at the time of his death, would be sufficient prima facie, to show that there were no debts remaining; and would change the burden of proof". —Markwell v. Thorn, 28 "W. 548, 562. 5. Authority to sell, "confers no power to* sell or transfer in payment of the debts of the principal". — Butts v. Newton, 29 W. 632, 640. 6. "The law is well settled, that if, on the faith of a creditor's agree- ment to accept a part of his debt in full satisfaction, other creditors are induced to relinquish their demands on the debtor, the creditor who thus agrees cannot recover the balance of his debt, as it would be a fraud on the other creditors". 7. Held likewise applicable where two creditors each agree to re- linquish their entire debts, and one does so on the faith of the other's promise. 8. Where the releasing debtor does so as executor of an estate, held that "prima facie the release of the executor is valid, and comes fully within his general power to dispose of the effects of the estate", the burden being upon the complainant to show that such release was illegal. 9. An agreement ' ' to surrender and discharge all his debts against the defendant, providing the defendant would, within a reasonable time, pay its indebtedness to its former pastor, ' ' which agreement was accepted and complied with by the defendant, "at a good deal of trouble and expense", was without consideration, and "was a mere gratuitous en- gagement, and void at law". —Davenport v. First Gong. Soc., 33 W. 387, 390. 10. As to debts of an executor due the deceased. See Inventory and Appraisal. -^-Lynch v. Divan, Extr., 66 W. 490, 492. 11. "Upon the death of a person his property, not exempt, at once becomes ' chargeable * with the payment of all his * debts', whether he dies testate or intestate. Sees. 2270, 2277, 2281. If 'he leaves a will, then, subject to the payment of his debts, the rights of parties under it become vested immediately upon his death ; Scott v. West, 63 W. 552 ; Newman v. Waterman, 63 W. 616. 12. If he dies intestate, his personal property, not exempt, must he Zimmerman — 21 322 PROBATE AND GENERAL LAW, CODIFIED applied and distributed in the manner and in the order described by statute. Sec. 21935. 13. Out of such personal estate certain allowances are to be made to widow and children, and only the excess is to 'be applied to the payment of the debts of the deceased, with expenses of administration and funeral charges'. Ibid, 14. The same is true, to a certain extent at least, where the deceased dies testate. Ibid ; Baker v. Baker, 57 W. 382 ; Est. of Henry, 65 W. 551. r 15. Thus it appears, that immediately upon the death of E. the rights of all his creditors at once became fixed, and the laws of distribution at the same time fastened down upon his entire estate". See also Set- off. —Union Nat. Bk. v. Hicks, Admr., 67 W. 189, 191. 16. "Debts due the deceased" nonresident are deemed "personalty suitable for conferring local probate jurisdiction". See Jurisdiction. —Bragg v. Gayner, 85 W., 468, 485. 17. Debt of the executor personally to the deceased, how treated. See Executors and Admrs. — Est. of Robinson v. Hodgkin, 99 W. 327, 332. DECLARATIONS. See Admissions. See Judgments. DECREE. DEEDS. See also Construction of Deeds. Realty. ' Delivery. Power. Sale of Absolute: not in trust, 2, 52. Acknowledgment : Different counties, 44. Different days, 44. Presumptions, 45, 46. Purpose of, 48. Administrator: signature, 8. Deed and record thereof, 42. Defective publication, 22. License not signed, 41. Presumptively regular, 20, 41. Proof of record, 21. Adverse possession, 11. Benefit of third party, 18. Between the parties, 15. Acknowledgment, 48. Witnesses, statute, 1839, 15. Centre of highway or stream, 4. Confidential relation, 30. Burden of proof, 31. Consideration : Parol evidence, 50. Contract presumption, 56. ' ' Conveyance ' ' includes mortgage, 36. DEEDS 323 Court recitations, 6. Presumptive, administrator, 7. Prima facie evidence, 6. Signature, administrator, 8. Covenants: with land, 58. Peaceable possession, 59. Delivery: to register, 1. Parting with control, 12. No set ritual, 19. Effect in future, 37. Failure to examine, 57. Fraudulent release, 63. Life tenant takes deed, 64. Mortgage by parol, 2. Name of grantee, 65. Person intended, 66, 67. Notice: constructive, 16, 23. Affected with notice, 27. Index notice, 24, 25. Put upon inquiry, 26. Without notice, 28. Omissions : Administrator, 8. .Authority to fill, 17. Date in certificate, 9. Date omission,. 33. Of grantors in. body, 43. Power of attorney, 51. Effect of sealed power, 62. Notice imported, 61. Not recorded, 51. Not to mortgage, 53, 54. Revocation of, 60. Strictly construed, 55. Quit claim deed, 38. Common law effect, 39. Grantee, no remedy, 68. Title of grantor only, 40. Eecitals: consideration, 47. , Sheriff >s : dower, 10. Subsequent purchasers, 16. Information sufficient, 35. With knowledge, 34. Title: fails in part, 29. Claim as deviseej 32. Trustee's deed, 5; : Trust violation, 5. Variance^ from power, 49. Vendor to prepare, 3. Witnesses: signatures, 13. Absence of, 16. At common law, 14. 1. Delivery of deed to register for the grantee with subsequent assent of the grantee, is a valid delivery. - —Cooper v. Jackson, 4 "W. 537, 553. 2. That a deed may be shown to be a mortgage by parol, is said to be ' an invasion of the statute of frauds on principle, and can be sustained if at all only on authority, and cannot further be extended to create an express trust from a deed. See Parol. —Basdall v. Basdall, 9 W. 379, 392. 3. "As a general rule, it is the duty of the vendor to prepare the deed", but the vendee must demand, before the vendor is in default. —Seetey v. Howard, 13 W. 336, 338. 4. The center of the highway or stream, or known place of begin- ning, and the most certain description controlled. See Construction op Deeds. -rGove v. White, 20 W. 425, 431. 5. ' ' Conveyance by a trustee having the legal estate * the title passes although the conveyance is in violation of the trust", but a trustee "acting under a power simply" does not pass title "unless the power is pursued". — King v. Whiton, 15 W. 684, 688. 6. A deed reciting "that the sale was made in pursuance of an order of the county court", with other data of the proceedings for sale, and 324 PEOBATE AND GENERAL LAW, CODIFIED purporting to be made by an administrator is "prima facie evidence that the title of the decedent had passed to and vested in the grantee named in it, and the same should have been received in evidence". 7. Such deed "was presumptive evidence that the person (adminis- trator) so executing was such officer, until the contrary was shown by the party claiming adversely to the deed". 8. "The objection that W. did not sign and seal as administrator is untenable. He, did not write the words showing that he was adminis- trator after his signature, but that was unnecessary. The deed recited that he executed as administrator, and that was enough; and besides, the acknowledgment showed the representative character in which he acted". 9. The omission of "the year when the execution of the deed was acknowledged" from the notary's certificate, is held to be immaterial, the day and month being the same as in the deed, and the acknowledg- ment is "assumed to have taken place before the recording of the deed". ■ —Chase v. Whiting, 30 W. 544, 547. 10. A sheriff's deed not purporting to include dower, does not bar it. See Dowee. 11. The ten year adverse statute does not "protect the person in possession unless the premises claimed were included in the written instrument", and dower is held not to be included if not mentioned. —Cowan y. Lindsay, 30 W. 586, 590. 12. Parting with complete control, is essential to delivery. See Escrow. —Prutsinan v. Baker, 30 W. 644, 646. 13. Where only one witness signed "in the usual place", and "another at the left hand, beneath the certificate of acknowledgment," it was held that "the deed was sufficiently witnessed to entitle it to be recorded; and, as a matter of course, the record thereof was competent evidence". .—Webster v. Coon, 31 W. 72, 73. 14. "At common law a deed was valid without attesting witnesses". 15. "And this being the case, we are of the opinion that, under the statute of 1839 (there being "no negative words in the statute of 1839 which declare that a conveyance, to pass title even as between the parties, must be witnessed and acknowledged"), it was in no wise essential to the validity of a conveyance as between the parties, that it should be attested; and that, consequently, the mortgage in the present case was effectual to create a lien upon the mortgaged premises". 16. "As the mortgage had not been witnessed, the record thereof would not have been constructive notice to a subsequent purchaser". —Gilbert v. Jess, 31 W. 110, 115. DEEDS 325 17. The grantor may authorize an agent "to insert the name of the grantee" after execution; but this does hot authorize putting in a stranger 's name. See Omissions. —S chintz v. McManamy,3B W. 299, 302. 18. A deed fraudulently obtained ostensibly for the benefit of a third party, held not void, but in equity held in trust for such party. See Trusts. —Lombard v. Cowham, 34 W. 486, 491. 19. "There is no set ritual of. delivery" of a deed. See Delivery. —Bdgie v. Bogie, 35 W. 659, 667. 20. The administrator's deed "when read in evidence, raised a pre- sumption that all the proceedings in the county court preliminary thereto were regular, and that it conveyed, the title to the premises in question". 21. But when the record is introduced, and it is made to appear affirmatively that there was nothing on file or of record, "to show that the will had been proved", the presumption then was that no will had been probated, unless it appeared "that a portion of the records or papers" may have been \o&\. — Chase v. Ross, 36 W. 267, 272. 22. An administrator's deed, where publication or' posting of notices was defective, is invalid. See Sale of Realty. —McCrubb v. Bray, 36 W. 333, 340. 23. "It is a familiar rule, that an instrument must be properly exe- cuted and acknowledged so as to entitle it to record, in order to make the registry thereof operate as constructive notice to a subsequent pur- chaser". 24. "The manifest intention of the statute seemed to be to make the index notice of all proper entries from its date, and also of the instru- ment itself till it was registered in full". 25. "The registration and index entries being incomplete, because showing that the mortgage had no subscribing witnesses, constructive notice could not be presumed of such a record. For the principle 'that the registry is notice of the tenor and effect of the instrument recorded, only as it appeared upon that record', fully applies". 26. Where the purchaser of the lots heard "that there was a defective railroad mortgage upon them", but did not look for it "because his abstract did not show it", this "was sufficient to put him upon inquiry", and he is held to have had actual notice. . 27. "The rule is well settled, that a purchaser affected with notice may protect himself by purchasing of another who is a bona fide pur- chaser for a valuable consideration." 28. "For a similar reason if a person who has notice sells to another who his no notice and is a bona fide purchaser for a valuable con- 326 PROBATE AND GENERAL LAW, CODIFIED sideration, the latter may protect his title, although it was affected with the equity arising from notice in the hands of the person from whom he derived it". —Pringle v. Duwn, 37 W. 449, 460. 29. "In the absence of fraud, we conclude that where the title fails to only a part of the land conveyed, the grantee may recover in an action on the covenants of seizin and right to convey, or upon an agree- ment, to convey", a fractional proportionate "part of the whole con- sideration paid as the value at the time of the purchase" and "interest thereon during the time he has been deprived of the use of such frac- tional part, but not exceeding six years". —Messer v.. Oestreich, 52 W. 684, 696. 30. Where A., occupying a confidential relation, is entrusted with money by B., for the purpose of buying land, and A. makes the pur- chase, taking the deed to himself in the assumed surname of B., his stepfather, "it must be presumed that" A. "took such conveyance to himself by mistake or inadvertence, and without the knowledge or con- sent of" B., "or in fraud or violation* of the trust so imposed". 31. "A party claiming the money so entrusted was in fact a loan, gift or advancement, has the burden of proving it". 32. "A party claiming title as devisee of" A. "is not entitled to the protection of a bona fide purchaser for a valuable consideration, espe- cially where " B. " was, at the time of making the devise and of the death of the devisor, occupying the premises with his family as a homestead". —Kluender v. Fenske, 53 W. 118, 126. ,33. "A date is not essential to a deed." " 'The real date of the deed is the time of its delivery'. Kent, C. J., in Jackson v. Schoonmaker, 2 Johns. 234". —McMidiael v. Carlyle, 53 W. 504, 506. 34. The statute (sec. 2241) protecting "subsequent purchasers in good faith," does not protect "those who purchase with the knowledge of an outstanding unrecorded conveyance. 35. In such case, to purchase in good faith is to purchase without knowledge of the outstanding incumbrance, or any information sufficient to put the purchaser upon inquiry. Mueller v. Brigham, 53 W. 173. • 36. There can be no question that the term 'conveyance', as used in that section, includes a mortgage." —Rowell v. WUliamvs, 54 W. 636, 639. 37. "The conclusion is inevitable that, if otherwise sufficient, a con- veyance of land in fee, to take effect at a future time, is valid, and will vest the fee in the grantee according to the terms of the conveyance". —Ferguson v. Mason, 60 W. 377, 385. 38. A quitclaim "deed passes to the grantee only the interest of the grantor in the lands conveyed, DEEDS 327 39. Its effect at common law is probably the same as that prescribed by statute to a quitclaim deed in statutory form" under sec. 2208. 40. In such deed the grantee "took only the title which the grantor had, and is not in a position to claim protection as a bona fide purchaser, without notice of the plaintiff's interest in the lot. Oliver v. Piatt, 3 How. 333 (410) ; May v. Le Claire, 11 Wall. 217; Dickerson v. Colgrove, 100 U. S. 578. These observations have no reference to the effect of the registry laws". • — Martin v. Morris, 62 W. 418, 428. 41. "Under sec. 4154 (see Chase v. Whiting, 30 W. supra; Bhle v. Brown, 31 W. 405), the administrator's deed is prima facie evidence of the regularity of the proceedings prior - to the sale, and is therefore a eloud upon the plaintiff's title, which he may have removed by pro- ceedings in a court of equity. (Cases) ' ' In this case the license was not signed by the county judge. 42. "The deed and the record thereof, under the statute above cited, being presumptive evidence of a valid title in the grantee therein named, creates such a cloud" as authorizes an "action to have the same declared void". —Hoffman v. Wheelock, 62 W. 434, 438. 43. Where two of several grantors were "not named in the body of the deed as grantors", but duly signed it, the deed "was effective as a conveyance" of their interest. 44. "The deed purports to be acknowledged by some. of the grantors on different days, in different counties, and before different officers, while there are only two witnesses. 45. But non constat the grantors were not all together when they executed the deed. 46. It would be a most 'violent and unreasonable presumption' in the absence of all proof to sustain it,, to assume that they were not together ' '. —Hrousha v. Jam-he, 66 W. 252, 255. 4 47. As to effect of deeds and recitals therein as to consideration, as evidence. See Condemnation. —Seefeld v. G. M. & St. P. By. Co., 67 W. 96, 98. 48. "Attestation and acknowledgment are formalities required by the statute to enable the deed to be recorded so as to operate as notice to the subsequent purchasers, but are not essential to transfer the title as between the parties," and so held as to a deed neither witnessed nor acknowledged. (Many cases) . — Leinenkuffel v. Kehl, 73 W. 238, 241. 49. A deed and mortgages given by the interested parties, but not as expressly provided in the will, were ■ on their application, declared a nullity. See Power. —Goebel v. Thieme, 85 W., 286, 289. 328 PROBATE AND GENERAL LAW, CODIFIED 50. "The evidence showed in what manner the consideration named in the deed was to be paid, and parol evidence was clearly competent for that purpose.. (Me., Mo., Mass., cases) ; Hahn v. Doolittle, 18 W. 196". —Booker v. Knudson, 36 W., 14, 18. 51. While "a power of attorney to convey lands must have the same requisites as a deed", "it is not essential" "that it should be either attested or recorded to be a valid power to convey lands, any more than the deed itself to be a valid conveyance. This has been repeatedly held by this court in respect to deeds. (Many cases) ; Hewitt v. Week, 59' W. 449 ". : — Slaughter v. Bernards, 88 W. Ill, 120. 52. "In the absence of a showing of such facts", — "fraud, accident, or mistake"—" the rule is universal that the grantor in a deed will not be permitted to prove that a deed absolute on its face was given in trust for his benefit. Fairchild v. Rasdall, 9 W. supra; (other cases)". 'Also, sec. 2302. —Fillingham v. Nichols, 108 W. 49, 52: 53. The power of , attorney from wife to husband 'to sell and convey any real estate", "was a mere power to sell and convey, importing authority to sell out and out for cash and not power to mortgage. That is elementary. (Many cases) ". 54. A mortgage so given on a homestead, "with the wife's signature affixed thereto by her verbal request (by the husband), for the purpose of obtaining money for her use, together with a full execution of such purpose ' ', is held not to bind her by estoppel, and ' ' the judgment estab- lishing the validity of the mortgage is reversed ' '. 55. "Language cannot be judicially extended beyond its reasonable scope in order to effect the intent of parties, however obvious that intent may appear", — there being "no ambiguity in the language of the power of attorney in question." See also Homestead. —Minnesota S. Co. v. McCrossen, 110 W., 316, 320. ' 56. A simple deed of conveyance is held not presumed to contain the whole contract. See Contracts. —Brader v. Brader, 110 W., 423, 431. 57. "Slight circumstances excusing" the grantee's "failure to examine the deed before accepting it are sufficient to prevent its being held, as a matter of law, that he was inexcusably negligent in that regard pre- cluding any successful appeal on his part to the courts for redress. (Citation) ". —Loyd v. Phillips, 123 W. 627, 630. 58. Whether ' ' covenants of seisin and of freedom from encumbrance ' ' "run with the land or not" strictly speaking, 59. There is no doubt that tbe warranty to the original grantee, his heirs and assigns, of peaceable and undisturbed possession, does so. (Citations)". —Patterson v. Gappon, 125 W. 198, 201. DEFAULT , 329 60. As to a power of, attorney and a revocation thereof, , each duly recorded in the office of the register of deeds, it is held that, as "the common law required that a revocation of such authority be brought to the personal notice of , the agent", > therefore, ■ > > ,;;■ 61. Actual, notice of revocation to the agent was necessary! to-be effectual, the statute not providing that recording was notice ,. to , him. (However, by amdt. of ch. 393, L. 1907, to sec. 2246, such recording "shall import notice to all persons, including the agent"). . _-^-Best v. Gunther, 125 W. 518, 520. 62. An action for services performed and money expended under a sealed power of attorney, "is upon the implied promise" to pay, "and not upon the- sealed instrument", governed therefore by the six year statute of limitations. — Pierce v. Stitt, 126 W. 62, 64. 63. Recording a release fraudulently obtained, is no protection to innocent purchasers. See Claims. — Franklin v. Killilea, 126 "W. 88, 98. ,64. As to presumptions where a life tenant takes a deed pursuant to land contract in his own -name, instead of in the remaindermen. See Peesumptions. — Perkinson v. Clarke, 135 W., 584, 589. 65. "While "a deed or grant to a person who does not exist at the time of the grant is void", 66. Still "it is recognized" "that if the court can find a certain person was intended as grantee, it matters not what name is given in the deed'''. (Cases). 67. Held, on the facts, "that, the intention was to use the name of E. D. P. (deceased) to designate E. S. P. in his capacity as executor" of such deceased grantee. — City Bank v. Plank, 141 W., 653, 657. 68. "It is the settled doctrine of most courts in this country that a grantee in a quitclaim deed, in the absence of fraud, has no remedy either in law or in equity against the grantor for failure of title. (Many cases)." So held here. —Droit v. Stevens, 163 W. 571, 573. DEFAULT. Against executor, etc., 1. . Negligence of solicitor, 2. Infants, non-residents, 3. Discretion of court, 4. 1. "Judgment by default against executors and administrators is not an admission of assets". — Chouteau v. Hooe, 1 Pin. 663, 666. 2. Negligence of solicitor is not sufficient to set aside default, if the party himself is negligent. See Attorney and Client. — Bdbcock v. Perry, 4 "W. 31, 40. 330 PROBATE AND GENERAL LAW, CODIFIED 3. On default, "in the absence of denial the allegations of the com- plaint stand confessed in nonpresence of infant or nonresident de- fendants, 4. Although a discretion rests in the trial court to require proof thereof before rendering judgment if he shall think necessary to safety. Sibley v. Weinberg, 116 W. 1". —Wis. Nat. L. & B. Asso. v. Pride, 136 W. 102, 104. DEFINITIONS. See Words and Phrases. DELIVERY. See also Deeds. Escrow. Gift. Deceased grantor, 5. Escrow attempted, 19. Grantee's evidence, 5. Possession by, 34. Declaration of trust, 12. Destruction by grantee, 11. Effective delivery, 11, 14. Escrow; attempted, 19. Execution includes, 6. Express or tacit, 2. Tacit effective, 3. Grantee's access to, 14. Grantor's direction, 33. Husband and wife, 38. Immediate strife, 3. Intention question, 35. Manual delivery, 22. Condition precedent, 22. Mental reservation, 27. Mutual reliance, 30. Forgetfulness, 31. Mistaken delivery, 32. Note and mortgage, 1. No set ritual, 2. Object of making, 13. Official bonds, 18. Parent to minor, 16. Precluded, 17. Possession by grantee, 9. At grantee's decease, 23. Circumstances; testimony, 10. Delivered after its date, 24. > Presumption rebutted, 10. Presumptive delivery, 9. Possession of maker, 7. No delivery, 34. Safe-keeping, 8. Presumption: at date, 15. From execution, 36. Grantee's possession, 9. Grantor's control, 37. Recorded: prima facie, 20. Grantee's inference, 33. Grantor's direction, 33. May be rebutted, 21. Revocation attempted, 3. Stranger for grantee, 4. Title: passes by, 25. Attorney's intent, 30. ' Conditions in, 28. Intent effective, 27. Mutual reliance on attorney, 30. Not revested, 26. Transaction, incomplete, 29. 1. "Delivery of the note was essential" "to pass title and give effect to the gift" of a note and mortgage. — Wttson v. Carpenter, 17 W. 512, 516. DELIVERY 331 2. The "authorities establish that there is no set ritual of delivery; that when a deed is executed, and the minds of the parties to it meet,' expressly or tacitly, in the purpose to give it present effeet, the deed is validly delivered; and that such meeting of minds may be gathered from acts or signs, words or silence, in multitudinous variety of cir- cumstance". Ryan, C. J. 3. Where deeds were drawn in the presence of the parties after acquiescence in the agreements, and the scrivener handed the documents to the parties, saying, 'I suppose these belong to you, John, and these to you, Mr. Bogie; you want to take care of them'; "no one directed him to do so. But he did it according to his habit in such cases, without dissent or comment from either of the parties. And each of them took the papers so handed to him, apparently in silence"; this was held to be' a valid delivery, and effective notwithstanding an "immediate strife for the possession of the deed in question", which "came in some way into the" other party's hands; the court further held "he cannot revoke his deed, though he may have intended to revoke it, and however diffi- cult of explanation his subsequent conduct may be, however soon and sore 1 he may have repented of what he had done, nothing in his subsequent conduct — nothing in the subsequent conduct of both parties, even in concert, far less in controversy — can avail against the foregoing de- livery". —Bogie v. Bogie, 35 W. 659, 667; 4. "A deed may be delivered to a stranger for the benefit of the grantee, who may be ignorant at the time that it has been executed. If the grantee, when informed of the fact, assents to and accepts the conveyance, the deed takes effeet, providing the rights of third parties have not intervened". — McPherson v. Feather stone, 37 W. 632, 641. 5. Testimony by grantees as to the delivery of a deed, by a deceased grantor directly, is inadmissible. See Transactions with Deceased Persons. —Stewart v. Stewart, 41 W. 624, 628. 6. "Without delivery, there could not be a making or execution of the note, for a promise to pay the sum named in it", as alleged in the com- plaint. "Hence, by necessary inference, the complaint alleges and the court found a delivery of the note". i 7. "The statement in the complaint that after its execution the note was left in the possession of the maker, does not rebut the inference of due delivery thereof to the payee ; 8. For certainly the holder (wife) of a note may leave it in the hands of the maker (husband), for convenience or safe keeping, without thereby cancelling the note, or destroying the effect of the original delivery thereof to the payee". — Wochoska v. Wochoska, 45 W. 423, ,426. 9. "Undoubtedly the possession of the deed by the grantees is pre- sumptive evidence of the delivery thereof by the grantor, and the onus 332 PROBATE AND GENERAL LAW, CODIFIED probandi is on him who denies the delivery, to rebut the presumption by prooF '. ■10. Circumstances, the relative position of the parties, failure to record until after the decease of the grantor thirteen years later, assessment of the land to the grantor with tax receipts in his possession, negotiations of the grantor as to sale, apparent want of consideration, etc., is held to rebut the presumption of delivery, and to outweigh the testimony of the grantees ' ' to the effect that the grantor often admitted that he had conveyed the land to the appellants (grantees) ". — Stewart v. Stewart, 50 W. 445, 448. 11. The formal delivery of a deed by a father to his son, and the deed then placed with the papers of both, is held immediately ' ' effectual, and vested the legal title to the land described in the son," notwithstanding that the father got the deed;from the joint papers and destroyed it. 12. And the grantee is not affected by a declaration of trust of the grantor in a separate, paper, at the time placed in the same package but not mentioned in the deed nor assented to by the grantee. —Rogers v. Rogers, 53 W. 36, 38. 13. "The mere fact that one object" in making a deed, "was to save the expense and trouble of , administering his (the grantor's) estate after his death, does not qualify the delivery or change its legal effect". 14. "Neither is the character of the delivery affected by the fact that Mrs. L. (grantee) placed the deeds, after delivery, where her husband, equally with herself, could have access to them". Rogers v. Rogers, 53 W. supra. — LeSaulnier v. Loew, 53 W. 207, 209. 15. Where there is "no testimony bearing upon the question, the legal presumption undoubtedly is that the deed Was delivered at the date of its execution". — Wheeler, Admr. v. Single, 62 W. 380, 386. 16. Where the father furnished the funds, directed a note and mort- gage therefor to be made in the name of his minor daughter, and received and' kept the instruments in his possession, "such delivery inured at once to the benefit of his daughter, 'the mortgagee named therein, by way of advancement to her, 17. And he is precluded from asserting any trust therein, or in the debt secured thereby, resorting to him", under section 2077, abolishing such resulting trusts". —Cerney v. Paivlot, 66 W. 262, 266. IS. On the matter of a questioned delivery as to "official and probate bonds", acted upon by the approving officer, a stricter rule is applied as against the sureties. See Bonds. —Belden v. Hurthut, 94 W., 562, 570. DELIVERY 333 19i Giving a deed to a third person, to be delivered to the grantee on the grantor's decease, but to be returned to the grantor, if she recovers, is a nullity. See Escrow. —Williams v. Dmbner, 103 W. 521, 523. 20. "The fact that a deed is duly recorded is prima facie evidence of its due delivery. 1 Devi. Deeds (2d ed.) § 292. 21. But this is a presumptive fact, merely, which, may be rebutted by other evidence showing, as matter of fact,, that there was no de- livery. Id." — SmjMi v. Smith, 116 W., 570, 57,3. i ' 22. "Manual delivery" of a contract, may be proved to have been a condition precedent, by parol. See Contracts. ,,,/,. — Golden v. M eier, 129 W. 14, 19. 23. "Possession of the deed (unrecorded) by respondent's wife at the time of her death, in the absence of any other , evidence raises a. pre- sumption that- it was delivered to her ; to take teffect according to its import at the time, of its execution, 24. And" the fact "that the instrument was not delivered until some years after its date raises a presumption that it was intended. to take effect when so delivered." See also. Admissions. ; , ;,. , —Chase v. Woodruff, 133 W., 555, 559-. 25. "As a general proposition it is true that delivery of a deed with intent to" pass title does pass the title,, 26. And that the ; surrender or cancellation of such deed does not revest the title in the vendor. Slaughter v. Bernhards, 97" W. 184','. 27. "It is the intent to pass title which makes the delivery effective, although mere mental reservation on the part of the grantor cannot affect the question. Rogers v. Rogers; 53 W. supra. , , 28. When, however;" it is "understood- by both parties", that "con- ditions" are first to be performed by "the grantee, a mere manual tradition of the deed under the mistaken supposition that these pre- requisites had been fulfilled, when in fact they had not, will not pass title irrevocably. 29. In such case the whole transaction is incomplete, and" "a court of equity has ample power to cancel the apparent conveyance". DeVoin v. DeVoin, 76 W. 66. < ! *' ,it > ■ ■ 30. Where the parties, "mutually relied on C," the attorney, as to the method of carrying ' f out their understanding" and to, "prepare the papers", and he decided upon a deed and bond back by the grantee to be signed also by the latter 's wife, and he intended "the transaction should not be completed until she did sign", "his intention was in legal effect the intention Of both parties, • 31, And his forgetfulness and. consequent mistake in handing over the papers before" such "material';' signing by the wife,, "was the for- 334 PEOBATE AND GENERAL LAW, CODIFIED getfulness and mistake of both parties, for the correction of which a court of equity will afford relief by the cancellation of the deed". 32. "The subsequent delivery of the papers to C, with directions to deliver the deed to Z. (the grantee) when his wife had executed the bond and mortgage ' ', does not ' ' constitute a valid delivery in escrow ' '. Camp- bell v. Thomas, 42 W. 437 (See Escrow). —Zoerl v. Paetz, 137 W. 59, 64. 33. Where the grantor delivered the deed "to the scrivener for the purpose of having the same placed on record, but" "at the suggestion of the grantee it was not recorded 'until after the grantor's death", — held a valid delivery. —Bates v. Winters, 138 W. 673, 676. 34. Where decedent three years before his decease "executed a war- ranty deed of this farm to his wife", and kept the deed locked in a box where he "kept his money and valuable papers", until after his decease, — on the evidence it is held "that there had been no delivery" though she knew of the deed, and the testimony showing no word "' ' or act which evinced an intention on his part to vest the title" in the wife, "except to make a deed". Three JJ. dissent. 35. "Delivery is largely a question of intention. (Cases). It may be accomplished by words without acts" or "conversely." (Cases). "But the grantor must part with his dominion and control over the deed with intention to pass title. (Cases). 36. There are authorities which hold that when it is shown that a deed has been properly executed a presumption of delivery arises. Jones Ev. (2d Ed.) 50 (44). Delivery may also be implied from circumstances. 21 Gyc. 1290, and cases cited. 37. The presumption of intention to deliver that might arise from the execution of a deed is overcome by showing that the grantor had the deed in his possession and under his control at the time of his death. Schetler v. Stewart, 133 la. 320; Fisher v. Hall, 41 N. Y. 416". 38. It is not decided "that a lesser degree of proof of delivery is required between husband and wife than in other cases". —Butts v. Richards, 152 W. 318, 319. DEMAND. Foreign guardian, 7. Note or bill — continued Not on sureties, 7. "Not elsewhere," 5." Money to be refunded, 1. Unnecessary, 4. Note or bill, 2. Presentation; services, 1. Defense matter, 2. Refused to pay, 8. English statute, 3. Implies demand, 8. 1. The doctrine of demand before action is commenced "does not apply to an action for money loaned, but is confined to a case like this, where DEMURRER 335 the money has been paid as the price of something sold and delivered to the vendee or payee, and where, because of some fact or circumstance not contemplated by either party to the transaction, the money so paid ought to be refunded". —Stoclis v. City of Sheboygan, 42 W. 315, 316. 2. ' ' The law seems to be well settled in this country, that a demand at the place named in the contract, bill or note, before suit, is not neces- sary; but that no such demand was made is a matter of defense on the part of the debtor, that he had funds at the place named, and was ready to make payment on demand at that place, and has suffered damage in consequence of the failure to make such -demand, but not in bar of the suit". 3. "In the English and some of the American courts," the doctrine of demand is held more stringently as to commercial paper; the Eng- lish "statute has entirely changed the rule in England, and made a demand upon the acceptor personally sufficient in all eases, except when the contract designates the place of payment with the additional words, and not elsewhere. (Cases) ". 4. "But the exception was made to qualify the English statute, with- out which that statute would be in harmony with the rule almost uni- versally recognized in this country, that demand at the place named before suit is not necessary. (Cases)". 5. "The words not elsewhere, inserted in the contract, do not make the payment conditional upon a demand at the. place named. U. S. Bank v. Smith, 11 "Wheat. 171; (cases)". —Gom'l Nat. Bank v. C. M. & St. P. By. Co., 45 W. 172, 176. 6. Where all liability is denied, the presentation of a bill is no evidence of the value of the services. See Services. — Hmton v. Coleman, 45 "W. 165, 171. 7. In a suit by a foreign guardian on a bond, "a demand upon the sureties is not requisite. Elwell, J. v. Preacott, 38 W. 274" (Cited under Bonds). — Vincent, Inf., by Gdn. v. Storks, 45 W. 458, 463. 8. In an action for money received from plaintiff's assignor, an allega- tion "that 'the defendant refuses, and has ever refused, to account for or pay-over' the indebtedness sued for", is held sufficient, on demurrer, to imply "a previous demand". —Brossard v. Williams, 114 W., 89. 90. DEMURRER. See also Pleadings. After trial on merits, 17, 18. " Capacity to sue, 23, 24. By way of answer, 27. Demurrer ore tenus, 25. 336 PROBATE AND GENERAL LAW, CODIFIED Capacity to sue — continued Not general demurrer, 26. Special demurrer, 23. Character of action, 2. Counterclaim: answer, 5. Counterclaim only, 10. County court, 8. Petition in proceedings,; 13. Treated as objection, 14. Different cause of action, 22. Excess of parties, 9. Joint demurrer, 3. Motion to quash, 8. Petition: county court, 8. Objection to evidence, 1, 11. Nature pf action, 2. Not appealable, 20. Ore tenus demurrer, 4. Appealable when, 20, 21. Capacity to sue, 25. Equity jurisdiction, 19. More latitude, 15. Objection, to evidence, 1, 11, 20. Preliminary proceedings, 16. Beaches back to first, 6. Counterclaim; answer, 7. Counterclaim only, 10. Striking out, frivolous, 12. 1. "The objection to any evidence being received on the ground that the complaint does not slate facts sufficient to constitute a cause of action, is in the nature of a demurrer ore tenus to the complaint; and upon such a demurrer, as upon any other, the court, must determine from the facts alleged what the cause of action stated, or intended to be, is, and whether .such statement is sufficient ' '. 2. "It (the court) must determine whether the action is in tort or uppn contract, or whether a proceeding in equity was intended ; and for this purpose none of the allegations material as showing or tending to show the character of the action or the intention of the pleader can be overlooked or rejected as surplusage". —Rathe v. Bathe, 31 W. 570, 572. 3. ' 'The rule is, that a joint demurrer by' two or more defendants, on the ground that the complaint does not state a cause of action, is bad, if the complaint shows a cause of action against one of them". —McGonigal, Judge v. Colter, 32 W. 614, 625. 4. In a demurrer ore tenus "the objection being taken for the first time at 'the trial, . a more liberal rule of construction prevails in sup- port of the pleading than if it had been formally demurred to"; "and the defendants can take no more advantage of their answer than if it had not been put in". —Lutheram, E. Ch. v. Grist gau, 34 "W. 328, 334. 5. "A demurrer lies to an answer containing a counterclaim, when it appears upon its face that it does not constitute a counterclaim to the action." 6. It is a "familiar rule that a general demurrer to any pleading reaches back in its effect through the whole record and attaches to the first substantial defect in the pleadings". 7. Whether or not this rule applies to "a demurrer to a counter- claim alone ' ', it is held' to apply when the ' ' demurrer is not only to the answer as a counterclaim, but as a defense also"; and the court, therefore, must determine, "whether the complaint states a cause of action". —Dietrich v. Koch, 35 W. 618, 626. DEMURRER 337 8. "The motion in the county court to quash the citation and dismiss the proceedings" being on a petition "to vacate and set aside the pro- bate" of a will, "is equivalent to a demurrer on the same grounds or for the same reasons, to a complaint in an ordinary civil action", and is a proper and convenient practice. — In re Estate of Eolden: Meadows' Appeal, 37 W. 98, 103. 9. An excess of parties "cannot, in general, be reached and corrected by a demurrer. Willard v. Reas, 26 W. 540, and cases cited. The exception to this rule is where a wife is improperly joined with her husband as plaintiff." —Marsh v. Board of Suprs., 38 W. 250, 253. 10. A counterclaim "is certainly a pleading to the complaint. And the old rule that demurrers reach back to the first defective pleading still applies where the complaint discloses want of jurisdiction or fails to state a cause of action (cases) ; and demurrers to returns to original writs go back to the petition or information on which the writ issued. (Cases) . So the demurrer here (to the counterclaim) reaches the merits of the complaint". ■ ,. ; — Lowe v. Hyde,. 39 W. 345, 355. • 11. "Rejecting, all evidence under the answer is equivalent to sustain- ing a general demurrer to the answer interposed ore tenus at the trial". —Strong v. Eooe, 41 W. 659, 670. 12. "There is now no distinction in the practice as to striking out a demurrer as frivolous, and overruling it, since the privilege of answer- ing is allowed in either case. (Cases)". —Malone v. Boby, 62 W. 459, 462. 13. A petition to have administration proceedings declared void, and for proper administration, being demurred to as to jurisdiction and failure of the facts to constitute a cause of action, ' ' as though it were a complaint in an action", it is said, that while this is not its nature, and that "it is more in the nature of a motion in an action"; 14. Yet "the demurrer" may "be treated as an objection" to award any relief, and that "the material questions in the ease are, perhaps, as well brought to the notice of the court in the form of a demurrer to the petition as in any other way". It was so treated and considered in all three courts. — Est. of Leavens, 65 W. 440, 445. 15. In the case of a demurrer ore tenus ' 'it has long been settled in this court that, where the sufficiency of the complaint is thus raised for the first time, more latitude of presumption will be 1 indulged to sustain it than where the objection is taken by regular demurrer. Teets- horn v. Hull, 30 W., 162; Hazleton y. Union Bank, 32 W., 34." —Hagenahv. Geffert, 73 W., 636, 641. Zimmerman — 22 338 PEOBATE AND GENERAL LAW, CODIFIED 16. Where it is contended that "the effect of certain preliminary pro- ceedings in the action is to establish the validity of the answer," which was demurred to, it is held that on the "demurrer we cannot consider anything but the complaint and answer. ' ' # — Pritzlaff Hardware Co., v. Carlson, 76 W., 33, 35. 17. On demurrer and then answer to the merits, in the county court, to an application to set aside a final judgment for fraud, that court tried the case on the merits, but on appeal it was tried on the demurrer only; 18. "While we do not recommend the practice of resorting to a de- murrer after a trial upon the merits", yet, it is held, that "the demurrer" was properly overruled. See also Fraudulent Orders. —Creamer v. Ingalls, 89 W. 112, 119. 19. Objection to jurisdiction of a court of equity, and by demurrer ore tenus. See Jurisdiction. • — Meyer v. Garthwaite, 92 W. 571, 572. 20. A ruling, though "embodied in a written order," "upon an objec- tion to evidence, although for convenience it is called a demurrer ore tenus, is not a demurrer within the meaning of the statutes," sec. 3069, and "no appeal is allowed from such a ruling." 'Smith v. Kibling, 97 W., 207, 208. —Mamdelert v. Superior C. L. Co., 104 W., 423, 425. 21. In distinguishing Mandelert v. Superior C. L. Co., < 104 W., supra, it is held that a judgment, dismissing the complaint on a demurrer ore tenus, "based solely upon the insufficiency of the complaint," is appeal- able. —Dow v. Deissner, 105 W., 385, 388. 22. "If facts are stated constituting a good cause of action, though not the one the pleader intended, the pleading is good as against a gen- eral demurrer. (Cases.)" — Bieri v. Fonger, 139 W., 150, 153. 23. "It having appeared by the complaint" that plaintiff "was appointed administrator on a legal holiday, and no objection to his legal capacity to institute the action having been raised by special demurrer, the right to object thereto is waived. 24. If want of legal capacity to sue does not appear by the complaint it may, of course, be taken advantage of by answer. Sec. 2653. 25. A demurrer ore tenus was interposed in this case, but such a demurrer goes to the cause of action and does not reach plaintiff's want of legal capacity to sue. (Case). 26. The objection that plaintiff has not legal capacity to sue cannot be taken by general demurrer. (Case). It can be taken only by special demurrer or answer. (Cases)". 27. An answer alleging the appointment "is wholly void" because of DEPOSITIONS 339 lack of jurisdiction, "may be said to be a demurrer by way of answer, but such a pleading is not recognized in ,this state. (Cases)." — Jenks v: Allen, 151 W. 625, 628. See also Discovery. DEPOSITIONS. Admit whole or part, 37. Party as a witness, 48. Adverse examination, 38. Adverse party, not first, 46.. Door not opened, 42, 43. Either party may use, 44, 47. Make party his witness, 48. Other party, same subject, 45, 47. Parts as desired, 48. Appearance: waiver, 4. Benefit of both parties, 7. Certificate, defective, 16. Technical objection, 17. Commission depositions : Admit or suppress, 26. Commissioner's duty, 19. Competency, 8, 9. Consul of TJ. S., 23. Court rules govern, 8. Cross-examination, 36. Defective certificate, 34. Defects and irregularities, 25. Exact place, immaterial, 1. Form of oath, 31, 34. Last interrogatory, 27, 28. Oath, circuit court rule, 32. Oral interrogatories, 18. Without the state, 18. Only to another state, 22. Parties and attorneys, 1. ■ Presumption as to oath, 33. Reading interrogatories, 13. Eeturned for correction, 20. Statutory rules, 8, 9. Strictness of rules, 24. Commission, etc. — continued Unofficial persons, 21. Want of notice, 14. Competent at time, 5. Contempt proceedings, 15. County cpurt: Non-contested matters, 51. Evidence, when offered, 38. For party offering, 38. Notice and certificate, 50. Objections of party, 40. Opposite party's, 39. Status changed, 41. Opposite party's use, 6, 11. No different status, 41. Objections by other party, 40. Bead whole or part, 30. Eight of either party, 12. Bead portion only, 29. Either party may, 44. Opposite, party, 30. Other party, same subject, 45. Reason still exists, 3, 4. Residence objection, 10. Judicial notice, 10. Taken during trial, 49. Transactions with dec'd., 42, 43. Venue, want of, 2. Whole testimony, 7. Without the state, 18. Cross examination, 36. Notice or commission, 35. Witness in court, 3. Discretion in use, 3. Impeach or contradict, 3. 1. Deposition by commission and interrogatories need not necessarily be taken at the exact place designated, and "the presence of the parties or their attorneys is an impropriety", and they "could put no questions * and could not in any way interfere". —Sayles v. Stewart, 5 W. 8, 12. 2. "The want of a venue or statement of the place where it was taken * does not invalidate it". — Fisk v. Tank) 12 W. 276, 299. 340 PROBATE AND GENERAL LAW, CODIFIED 3. ' Where the reason for taking deposition still exists, it may be admitted or not in the discretion iof the court if the witness is there present; in such case "the other party has the right * of a viva voce" cross examination; and if excluded, "the deposition might be used to impeach or contradict" the witness. — Thayer v. Gallup, 13 W. 539, 541. 4. "If a party appears and cross examines or appears and objects to questions put or the evidence given by the witness, he thereby waives all objections which he might have urged on account of any defect or want of notice*'. Dixon, C. J. ■■ Miller v. McDonald, 13 W. 673, 674. 5. Deposition is received as proper, where the witness was competent at the time of taking it, and the subsequent marriage to the party ' ' did not affect that testimony, the cause for taking the deposition still exist- ing". ' — Cameron v. Cameron, 15 W. 1, 5. / 6. Where not used by the; party taking, deposition may be read in evidence by the Opposite party' 'dgainst objection. 7. The statute is "clearly designed to enable the whole testimony of a witness to be secured for the benefit of both parties in one deposition", and both have "corresponding rights of examination and cross-examina- tion at the taking", though the party producing cannot impeach the witness as to credibility. — Juneau Bank v. McSpedon, 15 W. 629, 631. 4 I 8. The strict technical statutory rules for taking a deposition within the state do not apply to foreign or commission depositions, which are governed by the court rules, subject however to the same objections as to incompetency. 9. The statute "was not intended to prescribe or regulate the manner of taking depositions without the state, but rather relates to the nature and competency of the evidence, when taken ' '. —Horton v. Arnold, 18 W. 212, 220. 10. An objection that "it did not appear that the witnesses resided more than thirty miles frofai the place of trial" is not sustained: "The place of residence of each witness is stated in his deposition; and the court, taking notice of .the geographical divisions of the state, must know that they resided more than that distance from the place of trial". - —Hinckley v. Beckwith, 23 W. 328, 332. 11. A deposition "may be read in evidence by the opposite party, if the party at whose instance the same was taken declines to read it." 12. "The rule seems to substitute the deposition for and in place of the deponent, and to give to either party the same right to use the deposi- tion that he would have to call the deponent as a witness, were he per- sonally in court". — Hazleton v. Union Bank, 32 W. 34, 44. DEPOSITIONS 341 13. "Permitting a witness to read the direct and cross interrogatories before giving his testimony tended to defeat the entire purpose of a cross examination, by enabling. a witness to think out and prepare in advance his answers", yet "there was no error in refusing to suppress the depositions", though "a deposition taken under such circumstances was not entitled to the same weight as a deposition taken where the witness had not studied the interrogatories in advance of givfng his testimony". — Allen v. Seyfri^d, 43 W. 414, 418. 14. "The objection of the appellant to the depositions for the want of notice", of the taking or of the affidavit , on, which founded, "was waived by his joining in the commission and. submitting cross inter- rogatories. (Cases)". — Benhamy. Purdy, 48 W. 99, 100. 15. The proceeding when witness refuses to answer, outlined. See Contempt. —State ex rel. Landing ,v. Lonsdale, 48 W. 348,, 370. 16. An objection to depositions at the trial, because the certificate of the commissioner stated that they were to be used "in the county court of said county, whereas this cause was pending in the circuit court", is overruled as coming too late, the court saying : 17. "The objection was simply technical, and if it had been taken before the trial commenced it could have been obviated by an amend- ment of the certificate of the officer before whom the same were taken. See Sec. 4091." • —Wmsau Boom Co. v. Plmm&r, 49 W. 118, 119. ■ : ■ ■ i .< 18. Where a deposition is noticed for oral interrogatories without the state and plaintiff's attorney appeared, but defendant sent written cross interrogatories, the latter made the commissioner his agent for putting such interrogatories. 19. "If a given interrogatory, and especially one involving several questions, was not fully or was evasively answered, he (the commis- sioner) might have repeated it, and called the attentiqn oji the witness to the particular part of the interrogatory not answered,, or to the part wherein a direct answer had been evaded". But such evasion, or failure to. answer is not ground for suppression of the, deposition., —Trcnvoridge'v. SicMer, §4.W. 306, 309. ,.• .. - • , ; : " ... .J 20. Where "depositions were returned to the commissioner in Canada for correction by signing his name as a commissioner instead, of consul of the United States, this was not error. (Cases). , , , 21. It is suggested, but not decided, that the statute authorizing com- missions, contemplates their issue to unofficial persons not otherwise authorized to take depositions, , , ; ; 22. And the issue of commissions only to persons in another state or territory of the Union. 342 PROBATE AND GENERAL LAW, CODIFIED 23. Consuls of the United States are authorized to take depositions without a commission, and a commission is needless. (Cases). 24. And it is questionable whether the strict rules of taking deposi- tions by commissioners ought to be applied in such a case, where the proper notice, as in this case, was given of the examination of certain witnesses whose residence is given in a notice before a consul Of the United States in one of the provinces of Canada, and the time and place are also given in the notice. ' ' 25. "Defects and irregularities in taking depositions, and in the examination of witnesses thereon, will be disregarded if they are merely formal, and do not affect the rights of the parties. (Cases). 26. And it is a matter of discretion to admit or suppress depositions taken under a commission, even where there has been an irregularity in the examination of witnesses. Wanzer v. Hardy, 4 W. 229". 27. " The strict rule laid down by some authorities, that if this last (general) interrogatory is not answered the deposition will in general be suppressed", "must rest upon the other rule that it must appear that by such an omission the opposite party might have been prejudiced. 28. It is doubtful if there is no appearance on the other side, and no cross interrogatories, whether the opposite party can complain of the omission". — Semmens v. Walters, 55 W. 675, €81. 29. Counsel may "read only a portion of" a deposition taken at his instance; if the opposite ' party "desired to have the remainder of the deposition read to the jury, he was quite at liberty to read it". 30. In Juneau Bank v. McSpedon, 15 W. supra, "a party offered to read a deposition taken at the instance of the opposite party, but was allowed to read only his own cross examination of the deponent. It was held that he had the right to read the whole deposition, and the judgment for the opposite party was reversed because he was denied that right". — Morrison v. Wis. Odd Fellows Ins. Co., 59 W. 162, 171. 31. "The statutes nowhere prescribe the form of an oath" in case of deposition by commission. : "Sec. 4112, has no reference to" such deposition.' ' '-- :i! ' ■''•'■ 32. But the circuit court Rule 17, Sec. 5, "does prescribe the form of such oath, and in order to make the deposition admissible as evidence the oath should be administered substantially in the form prescribed". 33. When the commissioner according to the rule certifies "that the witness was duly sworn or affirmed before giving his evidence", "it will be presumed that he administered the # oath in the form prescribed by the rule." (Cases). 34. But when the commissioner certifies the oath he administered, in this case "to tell the truth, and nothing but the truth", and not in the form prescribed by the rules, the defect appearing "affirmatively on the face of" the deposition, "it was clearly irregular and defective, and should have been suppressed on motion of the defendant. (Many cases) ". —Cross v. Barnett, 61 W. 650, 653-4. DEPOSITIONS 343 35. "A party may take the deposition of his witness out of the state in a proper ease, either on notice and oral interrogatories, or on com- mission and written interrogatories, at his option: 36. If he elects to take the same in the latter mode", it is held that the adverse party cannot "cross-examine the witness orally", and.it is immaterial that the witness is a party. See also Discovery. —Neeves v. Gregory, 86 W. 319, 321. 37. As to whole deposition otherwise inadmissible, being admitted on introduction of a part thereof by the opposite party. See Evidence. —McNailly v. McAndrew, 98 W. 62, 65. 38. An adverse party or other "deposition or examination taken out of court does not become evidence for a party taking it, or any party to the cause, till offered and received as evidence, and (that) it is then evidence only for the party who offers it. 39. In all cases where a party offers in evidence a deposition taken by the opposite party, he makes it his own evidence; 40. The latter can then object to his own interrogatories therein, the same as if propounded by the former, and can object to the competency of the witness the same as if the deposition were taken for his adversary. Jones Ev., 703. 41. The use of a deposition by one party, taken by the other, gives it no different status in the case than the evidence of a party, or of a witness called into court in his behalf, when called to the stand by his opponent. Hazleton v. Union Bank, 32 W., supra." 42. The mere fact of a party being "examined otherwise than as a witness," as to transactions with a deceased agent through whom the opposite party derived his title, the testimony being incompetent under sec. 4070, "did not open the door for" the first party "to testify on the trial. 43. The foundation for the examination of a party as to transactions with a deceased agent must be laid by the opposite party". —MaUaner v. Smith, 102 W., 30, 39. 44. "The prevailing rule is, as we think, that either party may read such parts of a deposition as are relevant and relate to any distinct transaction, 45. And that the other party may introduce such other portions as relate to the same subject and tend to explain that which has been read. Jones Ev., 703 ; Parmenter v. B. H. T. & W. R. Co., 37 Hun, 354; Parker v. Chancellor, 78 Tex., 526 ; Dawson T. & G. Co. v. Woodhull, 67 Fed. Eep., 451; (other cases) ". 46. "Of course, in examinations of this kind, the plaintiff (the adverse party examined) would have no right to offer the deposition so taken in the first instance ; 47. But should the defendants offer a portion relating to a given 344 PROBATE AND GENERAL LAW, CODIFIED subject, the other side would have the right to read additional portions as explanatory thereof". —Wunderlich v. Palatine. F. Ins. Co., 104 W., 382, 385. i 48. "Where plaintiff had taken defendant H. 's deposition, such witness being "present and sworn at the trial", a ruling "to the effect that,, if the deposition was offered in evidence (by plaintiff), it would constitute H. the plaintiff's witness, subject to the ordinary rules against impeach- ments",: and he was subsequently "allowed to introduce such, specific portions of it as he did offer", or desired to offer. Held, not error. —Spuhr v. Kolb, 111 W., 119, 121. 49. "Refusals, by the court to permit the use in evidence of a deposi- tion taken and filed during the progress of the trial, ' ' are upheld under sec. 4090. , —Hermm v. Schlesmger, 114 W., 382, 395. 50. It is indicated and assumed that the "notice and certificate" attached to a deposition, were improperly admitted in evidence to show by inference the location and imprisonment of the witness at the time the deposition was taken. —Jakopac v. Newport M. Co., 153 W. 176, 185. 51. (For the procedure in county court in non-contested matters, as to depositions within and without the state, and forms applicable thereto, — see Zimmerman's Probate Practice, §§ 421-426.) DEPUTY. See Officers. DESCENT AND DISTRIBUTION. See also Heirs. Judgments. Settlement. Survivorship. Administrator 's right, 3, 5. Agreement modifying, 30. Action for property, 31. Approved in part, 33. Contrary to the will, 45. Creditor's rights, 32. Election of widow, 44. Stipulation disregarded, 41. Blood of ancestor, 12, 13. Ancestral blood or not, 14, 15. Descends to next of kin, 13. None ancestral, 16. Certificate: joint owner, 46. Improper recital, 47. Of descent; unknown heirs, 48. Degrees of kin: Grandmother, uncles, 19. Descent, next of kin, 12, 13. Ancestor blood or not, 13, 15. Equally to next of kin, 28. Inherit equally, 14. No ancestral blood, 16. Not to personal estate, 17, 18. Devisees: from death, 4. Same amount as law, 25. Homestead descent, 49. Husband sole heir, 37. Intestacy presumed, 38. Kindred of half-blood, 1. Blood ancestral and not, 1"5. DESCENT AND DISTRIBUTION 345 Kindred, etc. — continued Inherit equally, 14. Bules of civil law, 12. Lands descend on death, 2, 5. Vest, subject, to rights, 3. Legacies : Sale of remainder, 26. Negative testate proof, 37. Intestacy presumed, 38. "Parents": definition, 21. Father and mother, 29. Personal estate, 17, 18. Does not descend, 20. Not inheritable, 20, 24. Eesidue: definition, 35. Agreement, on objection, 41. Held in trust, 40. Intention as to, 42, 43. Widow's election, 36. Take as a class, 27. Unmarried infant, 6. Blood of ancestor, 12. Brothers and sisters, 7. No other direction, 39. No other i^sue, 11. Personalty case, 23, 24. Sold by guardian, 10. Sold during lifetime, 9. Statute construed, 8. Widow: into«tate residue, 22. Deceased, leaving another, 34. Election; agreement, 41. Election; another widow, 34, 36. Election; not affect residue, 44. Failing to elect, 22. Will assumed valid, 50. Judgment upheld, 51. , 1. The statute, sec. 2272, providing that "kindred of the half-blood shall inherit equally with those of the whole blood, in the same degree", applies in all cases including those, "where the intestate leaves issue, or a widow, father, mother, brother or sister". —Perkins v. Simmids, 28 W. 90, 92. 2. ' ' By the common law the real estate descended to the heir immedi- ately upon the death of the ancestor;" the personal representative had nothing to do with the lands, rents or profits. 3. The legal title still vests in the heirs, subject to be divested on sale for debts, etc. Stark v. Brown, 12 W. 572, 582; and subject to the rights of the personal representatives for the purposes of administration enumerated. See Real Estate. — Jones v. BUlsteih, 28 W. 221, 227. 4. Under a will the devisee takes from the death of the testator after probate of the will. See Title. —Bridge v. Ward, 35 W: 687, 692. 5. "On the death of M., intestate, the lands described in the complaint descended immediately to his heirs, and the administrators subsequently appointed took no interest therein except the mere right of possession pending the administration", and the latter are not proper parties in a suit to restrain the issue of tax deeds on the lands. —Marshy. Board of Suprs., 38 W. 250, 252. 6. The real estate of an unmarried infant, ' ' which he inherited from his mother, descended to his surviving brothers and sisters;, in equal shares". (Sec. 2270, subd. 5) 7. "In Perkins v. Simonds, 28 "W. 90, we held, after much investiga- tion, that in such a case the surviving brothers and sisters. inherit from the ancestor and not from the deceased child. As applied to the present case", the plaintiff took "in the same manner in which he wpuld have taken it had F (the infant) died before his, mother". 346 PROBATE AND GENERAL LAW, CODIFIED 8. The statute "was borrowed from Massachusetts", is substantially the same in the statutes of 1839, 1858, and at present, received such prior construction, and the court says, "we must adhere to the rule thus estab- lished". 9. If, however, such real estate had been sold during the lifetime of the infant, "for his Support and maintenance, or for his education, as it might have been under the statute", then "the purchaser at the guar- dian's sale would take the title". 10. "The existing condition of the title is regarded; and when the property has been sold at the guardian's sale for the benefit of the infant, the provision regulating descent does not apply". — Wiesner v. Zaun, 39 W. 188, 204. 11. The statute (substantially Subd. 5 & 6, sec. 2270, before amended as to 'testamentary gift' by ch. 219, L. 1883, and as to personalty by ch. 23, L. 1893), "considered in Perkins v. Simonds, supra, has no application to this case, notwithstanding the decedent died under age, not having been married, for the reason that her mother left no other issue", and the infant, "and not her mother, is the person from whom the succession to the estate in controversy is to be traced, " i. e. whether to "paternal grandmother" or maternal uncles. 12. -With reference to the statute (sec. 2272) providing for inher- itance "according to the rules of the civil law", held "we cannot adopt" the view that "the foundation principle of our statute of descents is to confine the descent of ancestral estate to those who are of the blood of the ancestor from whom the same descended." 13. But the "leading, controlling principle" is that "where no other provision is made, the same shall descend to the next of kin to the intestate, whether of the blood of such ancestor or not". 14. "We think the plain- grammatical construction of the clauses (sec. 2272 and subd. 4, sec. 2270) under consideration is, that kindred of the intestate of the half blood shall inherit equally with those of the whole blood in the same degree, in all cases, except that if the estate is ancestral, only such kindred of the half blood as are of the blood of the ancestor from whom the state came, shall inherit. ' ' 15. "The Michigan statute of descents is like ours, and the supreme court of that state has held that where some of the next of kin to the intestate are of the blood of the ancestor, and others of them are not, the statute excludes the latter from the inheritance of ancestral estate. 16. But if none of the next of kin are- of the blood of the ancestor, they shall inherit to the exclusion of the kindred of the blood in a more remote degree from the intestate. Ryan v. Andrews, 21 Mich. 229". 17. ' ' Thus far we have considered the case on the hypothesis that sec. 2272 is applicable to the distribution of personal estate which came to the intestate from an ancestor"; 18. But it is held, "that the limitation in sec. 2272, upon the descent of ancestral estate, is not applicable to the distribution of intestate per- DESCENT AND DISTRIBUTION 347 sonal estate, but that the same must be distributed in all cases in accord- ance with the general rules of the statute of descents ; that is to say, to the next of kin of the intestate, whether of the half or whole blood, without regard to the source from whence the estate came". 19. The paternal "grandmother is one degree nearer of kin than the •uncles" on the mother's side, and she is held to take in preference to the uncles. 20. ' ' Ordinary personalty has no heritable quality. It does not descend to the heir". See also Personal Estate. — Est. of Kirkewdall: Cramer's Appeal, 43 W. 167, 172. 21. "The word 'parents', both by derivation and common under- standing, means the natural parents". So held as to adopted child in reference to descent of its estate. See also Adoption. — Hole v. Rollins, 53 W. 514, 520. 22. A widow failing to elect, cannot share in intestate residue. See Widow. —Hardy y. Scales,. 54 W. 452, 457. 23. Where one of two minors, who received personalty from the intestate estate of their mother, died, unmarried and intestate, leaving her sister and father surviving, it is held under subd. 6, sec. 3935, that such personalty should go to the father under the general rule of subd. 2, sec. 2270, and not to the sister under subd. 5, sec. 2270. (This was before the amendment of subd. 5, sec. 2270, by ch. 23, L. 1893, adding, "and all personal property which belongs to such deceased child by reason of distribution under subd. 6, see. 3935.") 24. ' ' The difficulty is that mere personalty is not heritable,' — does not descend to the heir, — and has not the qualities of 'ancestral estate". Kirkendall's Est., 43 W,, supra,xas to descent and distribution, discussed and approved. —Shwnian v. Shuman, 80 W. 479, 482. 25. Whether by descent or purchase, where the devise in quantity is the same as under the laws. See Devise. 26. As to sale of remainder or reversion, to pay legacies before the expiration of a life estate. See Legacies. — Will of Boot, 81 W. 263, 266. 27. " 'It is a general rule that those who take property as a class of persons described, where there is nothing in the law making the appro- priation to distinguish their respective rights, take, equal shares'. Reeve, Descent 105, 123; Knapp v. Windsor, 6 Cush. 156; (other cases)". 28. Where realty descended to the father and mother, under the stat- ute (Terr. 1839, p. 184, sec. 38), 'equally to the next of kin in equal degree', "as they took by descent, and not by purchase, as by grant or devise, we think that they took as tenants in common and by moieties, and not by entireties, and therefore that upon the death of the mother 348 PROBATE AND GENERAL LAW, CODIFIED her interest did' not go to the father, her husband, by right of survivor- ship", but to her heirs. 29. "The father and mother' of B. (the intestate) inherited his estate equally, by reason of the relation of each to him, and not by reason of their relation to each other as husband and wife. The right of each is separate and distinct, and is in no way 'dependent upon the right of the other". See also Kin. — Brown v. City of Bamboo, 90 W. 151, 154. '30., A will gave the widow and children the property with control in the widow during life. A written agreement by all modifying, the terms of the will was filed, in which the widow "waived her right to control the estate, except $12,000.00 thereof", of which she was to have the income and the principal if 'necessary for her comfortable support', with power of sale but not to devise. Judgment was entered approving the agreement, and assigning the residue and the remainder "undisposed of at the death of" the widow, to the children, and the executor dis- charged. 31. In an action of replevin by the 'administrator of the widow's estate against the admr. de bonis non of the testator's estate who had posses- sion of the property, held, — 32. That "ho further administration of" the testator's estate was "necessary or prober", the distributees already having title and "right to the possession thereof subject to the rights of " the widow's "cred- itors, and subject to the expense of administering her estate. 33. The administrator of her estate is entitled to such possession till all claims" "contracted for her 'comfortable support'," "and the expenses of the administration shall have been paid. The remainder will then be distributable" to those entitled thereto under the assign- ment in the testator's estate. — Hmn v. Gersten, 122 W. 222, 227. 34. Where a will provided that the "residue" be given one-fourth to each, being to a named wife, to two brothers, and an adopted son, the wife' predeceasing the testator and he leaving another wife, who elected to take under the law, it is held, — 35. That the word 1 'residue' used in "its usual and legal meaning", was what was left after payment of debts and expenses, and after pay- ment of the widow's share under her election; 36. And that of such residue, each of the two brothers received one- fourth, the son one-fourth and that the remaining one-fourth to such deceased wife having lapsed, became intestate property, and went also to the son as such, he being the testator's sole heir. — In re Bradley's Will, 123 W. 186, 193. 37. "The uncontroverted evidence that" a husband was his wife's "sole heir at law proved his succession to whatever title she had. He was not called upon to show negatively that she did not die testate. 38. As the primary right of succession is by the law of inheritance, DESCENT AND DISTRIBUTION 349 plaintiff was entitled to rest on the legal presumption of intestacy until that was rebutted by evidence. IfcClanahan v. Williams, 136 Ind., 30". —Chase v. Woodruff, 133 W., 555, 558. 39. Where, under a will, estate was assigned to a minor child, and he afterwards dying under age without issue, leaving a mother, "brothers and sisters and issue of deceased brothers and sisters, children and grand- children of" the testator, it was held, under subd. 5, sec. 2270, that there being "no direction" in the will for other disposition, such estate descended to such children and grandchildren. ~B,owher v. Shields, 140 W. 330, 332. 40. Where a will provided, certain legacies and annuities, and that all the residue be held in trust for ten years, and then to be distributed to numerous legatees, including thirty per cent to the widow, on objections filed by the heir, 41. Adjustment of the contest was made by written stipulation signed by all interested, except a Home for the Aged and the guardian ad litem for minors, in which the widow elected to take under the law, and it was stipulated that the thirty per cent to her under ^he will became intestate property and descended to the heir, — it' was held : 42. That the testator as to the residue, "treated it throughout as a separate quantum of his estate", and intended it "should go to the residuary legatees generally, without restriction of a particular part thereof to each one"; 43. "That the intention must be gathered from the four corners of the instrument under the facts and circumstances surrounding him," 44. And "while the widow's renunciation may affect the quantity of the residue, it cannot affect his disposition thereof ",, and the whole belongs to "the residuary legatees after the widow dropped out," and none "become intestate property". 45. Therefore, "the stipulation of the parties for a distribution of the estate contrary" to the will "must be disregarded," and the will executed ' ' in accordance with' its terms. Will of Dardis, 135 W., 457 ; Will of Rice, 150 W., 401; (See Probate op Wills)/ See also Vesting op Estates, etc. — Will of Reynolds, 151 W., 375, 382. 46. An ex parte proceeding in county court as to survivorship of land to the wife, a joint 1 owner, on the death of her husband, brought by a grantee of the wife, the latter testifying at the hearing, — 47. A recital in the certificate issued as to the' conveyance by the wife to such grantee and that she " 'is now the owner in fee simple' of the premises conveyed", is held not res adjudicata and that it "had no place in the certificate, added nothing to it, and concluded no one". : —Erueger y. Buel, 153 W. 583, 589. 350 PROBATE AND GENERAL LAW, CODIFIED 48. Certificate of Descent under sec. 2276a, and quit claim deed, for ten-year adverse possession, upheld as against unknown omitted heirs. See Title. —Bourne v. Wiele, 159 W. 340, 343. 49. The homestead descends and vests in the widow and ' ' then living heirs", at the death of an intestate. See also Homestead. —Miller v. Hart, 161 W. 611, 614. 50. "Where executors and trustees for a period of years acted as such on the assumption that the will was valid, and also in accordance with agreements of the interested parties, and the "parties interested par- ticipated in and assented to the various transactions and the adminis- tration of the estate resulting in the order of distribution and dis- charge", 51. Such judgment is upheld, regardless of whether the will was valid or not. —Will of ALUs, 163 W. 452, 459. DEVISES. DEVISEES. See also Consteuction of Wills. Vesting of Estates, etc. Condition: not to alien, 9. Curtesy of husband, 10, 11. Debt liability, etc., 12; Dower, profits, waste, etc., 10. Not convey for time, 14. Definition, 1. Bequeath, devise, 2. Eeal estate, 2. Devise of son's lands, 3. Son's devisee rights, 3. Executed oral contract, 18. Intestacy avoided, 17. Legacy lien not trust, 20. Lost writing to devise, 19. Quantity as by descent, 4. Quantity, etc. — continued Common law rule, 5. Devise or descent, 6. Remainder, reversion, 4. Residuum, void legacies, 16. Intestacy avoided, 17. "Unless contrary intent, 16. Void; legacy to residue, 7. Because patent ambiguity, 15. Conditions, what void, 9, 10, 11, 12. Converted realty, 7. Devise, undecided, 8. Fall into residuum, 16. Not convey for time, 14. With power of sale, 13. 1. A devisee is "one who takes real property, under a will". 2. "Real estate is devised to a devisee", and bequeath is used for a legacy; "yet, according to Webster's Dictionary the verbs 'bequeath' and 'devise' are synonyms". —Chandler's Appeal: Est. of McCoy, 34 W. 505, 509. 3. The fact that a father devised to another, lands claimed and owned by a son, "does not prevent the son from claiming" other lands demised to him, "under the will, without abandoning his claim to the lands DEVISES. DEVISEES 351 described in such will, and which were owned by him by a title paramount to that of the testator." . — Allen v. Allen, 58 W. 202, 211. 4. The devise to heirs being the same in quantity as by descent, it is said: "If they take under the will, undoubtedly they take an estate in remainder; but if by descent, they take an estate in reversion. And whether it be one or the other, it is a vested estate. Sees. 2033-37. For reasons which Will presently appear, the question is not important (here). 5. It may be observed, however, that at common law the rule seems to have been well settled in England, and in many, perhaps most, of the United States, that a devise to the heir at law of precisely the same estate he would take by descent were there no devise, is void, and the heir takes by descent in such case and not by purchase. 4 Kent Comm. 507. The rule was changed in England by statute 3 & 4 ¥m. IV, ch. 106. 6. Were it necessary to decide the question, we should probably be constrained to hold that, notwithstanding the residuary clause in the will, the heirs of the testator in this case take their estate in the city property by descent, because they would take the same estate therein had the will contained no residuary clause; and hence, that the estate is a reversion." See also Legacies. — Will of Boot, 81 W., 263, 266. 7. It seems that in case of "a void legacy of personal property, it would pass under the residuary clause, to the residuary legatees"; and it is so held here as to realty converted into personalty by equitable conversion ; 8. "But it is claimed that a void devise of real estate is subject to a different rule, and that the property covered by it will not go into the residuum, but will pass to the heirs as intestate estate. This doctrine, certainly, has the support of many courts". See cases in 13. Amer. & „Eng. Enc. L. p. 40, n. 3. It is not "necessary to decide whether it is in force in this state". — Milwaukee Protestant Home v. Becker, 87 W. 409, 413. 9. "It is laid down as a general rule that 'a condition, annexed to a conveyance in fee or by devise, that the purchaser or devisee should not alien, is unlawful and void. * 10. If the grant he upon the condition that the grantee shall not commit waste, or not take the profits, or his wife not have her dower, or the husband his curtesy, the condition is repugnant and void, for these rights are inseparable from the estate in fee '. " 4 Kent Comm. 131 ; 2 Redf. Wills, 287, 290. 11. ' ' But is has been held that land may be conveyed to a married woman so as to exclude her husband upon her death from becoming tenant of the premises by the curtesy. Haight v. Hall, 74 W. 152". 12. A devise "upon the express condition that the premises should 352 PROBATE AND GENERAL LAW, CODIFIED 'in no wise ever be subject to any debt, liability, execution, or attach- ment against him, existing at this time or at any time hereafter' ", being "unlimited in point of time," is held void. , — Yon Osdell v. Champion, 89 W. 661, 665. 13. A widow as residuary, devisee, with power of sale as executrix, took title at once, personally, to the realty. See Title. — Eiles v. Atlee, 90 W. 72, 78. 14. In a devise in fee, with, a condition not to convey for a period, the condition is void. See Construction of Wills. . '] —ZUlmer v. Landguth, 94 W. 607, 609. 15. Void devise because of pjatent ambiguity, causing intestacy as to such portion. See Construction of Wills. —WiUey v. Clark, 105 W., 22, 23. 16. "Generally, void legacies fall into the residuum of the estate and go to the residuary legatees. .. The only exception, is where there is a clear intent manifested by, the will to the contrary. 17. The mere, fact of making a will is so inconsistent with any other intent than that to provide for a disposition of all the property of the testator, that very strong and clear language is required to show a contrary intent. Fqr that reason a residuary bequest in general terms is held to carry void and lapsed legacies, ' ' to avoid intestacy as to such estate. See also Equitable Conversion. —Harrington v. Pier, 105 W., 485, 497. 18. An oral contract to devise lands for services, where the services were performed and possession given of the lands, might be enforced. See Parol. — Rodman v. Rodman, 112 W., 378, 384. 19. An agreement in writing to devise realty is held valid and enforceable, though the writings be lost. See Legacies. —Dilger v. Est. of McQuade, 158 W. 328, 330. , 20; A devisee of land subject to legacy lien, is "not a trustee of an express trust", and the lien may be barred by the statute. See Legacies. —Nolan v. First Nail. Bank, 161 W. 22, 25. DICTUM, JUDICIAL AND OBITER. See Rules of Practice. DISCONTINUANCE 3,53 DISCONTINUANCE. Absolute rights to, 1, 2, 3, 7. Cause necessary, 22. Modified to discretion, 18, 19, Affirmative decree, 9. Attorney's authority ended, 16, 17. Code does not affect, 3. Common law right, 1. Counterclaim and reply, 4, 6, 18. Defendant, affirmative decree, 9. Permit to restore, 5. Refusal to strike off, 5, 8. Court may deny, 13, 14. Equity practice, 2. Judicial action necessary, 10. Allow or deny, 11, 19. Judicial action, etc. — continued Discretion upheld, 19. Oral order sufficient, 10. Order denying effective, 13. Rights of others, 12. May substitute another, 14. Order on stipulation, 15. Real controversy, 22. Cause necessary, 22. Stipulation, not bar, 23. Oral testimony, 25. Special authority, merits, 26. Without costs, 24. Voluntary dismissal, 20. No practical difference, 21. 1. ' ' 1st. At common law, a plaintiff had the absolute right to discon- tinue his action before or after issue joined, and without leave of court". 2. "2nd. In suits -in equity, under the former practice, the plaintiff might, in like manner, dismiss his bill, but such dismissal did not carry with it a cross bill interposed ' by the defendant. 2 Barb. Ch. Pr. 128 and cases citedJ" 3. "3rd. The right of discontinuance is not affected by the code, but remains the same, both in legal and equitable actions, as under the former' practice". (But, see Boutin v. Andreas, 161 W. post). 4. "The discontinuance of his action by the plaintiff left the issues made by the counterclaims and the reply thereto, pending in court and for trial". See also Set-off. 5. "The court correctly ruled in refusing to strike the cause from the Calendar", and on application "should^ under the special circum- stances of the case, permit' the plaintiff to vacate the order of discon- tinuance so entered by him, to the end that the whole controversy between the parties may be adjudicated in this action." —Bertscty v. McLeod, 32 W. 205, 210. 6. The rule is established in this state- (apparently contra to the New York practice) that the court cannot properly "grant the plaintiff leave to discontinue the whole action, in a case where the defendant has inter- posed a counterclaim". — McLeod v. Bertschy, 33 W. 176, 179. '7. "The plaintiff had an undoubted right to discontinue his action," and there was "no error in that portion of the order". —Damp v. Town of Bam, 33 W. 430, 434. 8. It was held in this, case : (32 W. 205, and 33 W. 176) and now adhered to on principle, as 1 well as because res adjudicata, "that the plaintiff could not discontinue the whole action, even with the leave of Zimmerman — 23 354 PROBATE AND GENERAL LAW, CODIFIED court, where the defendant had interposed a icounterclaim consisting of a substantive cause of action against him". —McLeod v. BertsChy, 34 W. 244,, 248. ) i 9. The rules of McLeod v. Bertschy, supra, quoted and adhered to, and applied in an action for accounting between partners, the plaintiff's intestate not being allowed to discontinue, on the theory that the defend- ant in such action "is entitled to an affirmative decree therefor, although he has not interposed a cross-bill or counterclaim". —Hutchinson, Admr., v. Paige, 67 W. 206, 209. 10. The "efficacy and the necessity of judicial action to completely accomplish discontinuance", is recognized in the decisions, "upon plain- tiff's application, or even on consent of all parties to the record. (Many cases)". An oral order, entered in the minutes, is held sufficient, in Juneau v. Hooker, 67 W. 322 (See Records). 11. " Varied and numerous considerations may need to be weighed by the court before reaching its conclusion whether to. allow or deny effect to such i attempt. 12. The effect of the termination of the suit upon others, either the defendant or third parties, or sometimes the public, is to be considered, and, if 'any prejudice to such persons is discoverable, whether it is such as to warrant retention of the suit. ' ' 13. An obiter dictum in Noble v. Strachan, 32 W. 314, " 'that the order denying the application for leave so to discontinue is a nullity, and may be, disregarded entirely', is inaccurate", "and must be over- ruled ' '. — State ex rel. City of Milwaukee v. Ludwig, 106 W. 226, 232. 14.. "That, the court had jurisdiction to refuse to allow the plaintiff to arbitrarily discontinue the case, and also jurisdiction to allow another plaintiff to be substituted in his place, was decided 'by this court in this very case. State ex rel. Milwaukee v. Ludwig, 106 W., supra". —Linden Land Co. v. Milwaukee E. E. & L. Co., 107 W., 493, 502. 15. Where "in exact conformity" to a stipulation, on "motion of defendant's attorneys", an "order was entered", "that 'the action be and is hereby dismissed without costs to either party'," "that certainly ended the proceeding (2 Wait, Prac. 515), leaving nothing further for appellant's (defendant's) attorney to do in regard thereto". 16. "The termination of the litigation, not by a closing thereof, by judgment, which of, course : might leave the attorney, for the time being at least, authorized to stand for respondent (plaintiff) in any further proceedings upon the judgment, 17. But by removing the litigation entirely from the court, ending it for all purposes, necessarily ended the authority of the attorney". See also Vacating Judgments. — Wawrzyniakowski v. Hoffman & B. Mfg. Co., 137 W., 629, 632. DISCOVERY 355 18. "A plaintiff, before submission of his case, has" not "an absolute right to dismiss without prejudice to the trial of the issue on the coun- terclaim in case of there being one ' '. State ex rel. Milwaukee v. Ludwig, 106 W. supra; Anderson v. Horlick's M. M. Co., 137 W. 569. 19. "Earlier cases, such as McLeod v. Bertschy, 33 W. supra, to the effect that a plaintiff, as to his own claim has an undoubted right to discontinue, are modified by the later ones holding that the court may, in its discretion, refuse a request therefor, as in this case". 20. "In this case", "it was a voluntary dismissal which was sought, a mere discontinuance, leaving the plaintiff free to again resort to a judicial remedy for the -same redress as before. , 21. There is no practical difference between a voluntary dismissal and discontinuance". 22. There being "a real controversy", "and an issue is once duly made", "the plaintiff should not be allowed to trifle with judicial admin- istrative facilities by discontinuing without cause". — Boutin v. Andreas, 161 W. 152, 153. 23. "That a stipulation to dismiss does not constitute a bar to the action was held in Bishop v. McGillis, 82 W. 120". 24. And it is held ' 'that a (stipulation for a dismissal without costs would have no broader or different construction than a mere stipulation +« dismiss". 25. "Assuming, but not deciding, that parol testimony was admissible to show the agreement entered into between the attorneys for the respec- tive parties", it is held, — 26. That "an agreement by an attorney to dismiss an action upon the merits is" not "valid without evidence .of special authority so to do." Kelly v. Wright, 65 W. 236. — Seymour S. Bank v. Rettyer, 164 W. 619. DISCOVERY. See also Depositions. 'Writings, Administrator: in equity, 35. All rights settled, 39. Circuity of action, 37, 38. Disbursed on claims, 41. ■ During administratipn, 36. Find separate liability, 44., ; , Held in abeyance, 43. Parties brought in, 42. Proof from county court, 43. Sums paid to heirs, 40. Adverse party, sec. 4096, 3. Admissibility, different, 11. Adverse party — continued As admissions, 12, 27. Not of employees, 27. Party examined, not offer, 26. Admission, nature of, 12. "Adverse party": definition, 51. Affidavit for order, 61, 62, 64. Counter affidavit, 63.. All material issues, 9. Broad as cross-examination, 7. Cannot otherwise prove, 9. Cross examination nature, 66. 356 PROBATE AND GENERAL LAW, CODIFIED Adverse party — continued Discovery bill extended, 8, 9. Foreign: without state, 45. As other depositions, 47. General deposition statutes, 46. Letters rogatory, 50. Oral or commission, 49. Guardian: ad litem, not agent, 76. Father of minor, 77. Minor real party, 76. Not general guardian, 78. Liberally construed, 17, 61, 67. More ample remedy, 18. Not strictly deposition, 10. Oral interrogatories, 24. As other depositions, 47. Foreign: oral or commission, 49. General deposition statutes, 46. In all cases, oral, 48. Non-resident party, 24. Order, if before issue, 6. Pleadings, limit, 5. Production of papers, etc., 28. Physical objects, 70. Same rule, other witnesses, 68. Substitute for bill, 17. Whatever is relevant, 4, 69. Bill of discovery, 2. Abolished here, 3. Adverse party, sec. 4096, 3. Filed in equity, 19. Form and substance, 18. Broader than equity, 70. Compelling inspection, 29. Credible denial, 32. Compelling inspection— continued Not duty to gain control, 33. Papers of third party, 30. Possession rebutted, 31. Possession, whereabouts, 34. Concurrent jurisdiction, 35, 36, 37. Contempt proceedings, 1. County court: adverse examination, 20. Before court commissioner, 23. Filing of claim,- 21. May be had therein, 23. Under sec. 4096, 22. County court procedure, 13. Action for recovery, 25. Admissibility as' evidence, 74. Compel examination, 14. Equity concurrent, 36, 37. Executrix of dec'd, extr., 16. Governor National Home, 53, 54. Nature of discovery, 13. No remedy to enforce, 25. Order therein, 13, 15. Cross examination at trial,. 52. Employee called, 55. lie-examined close of, 52, 55, 59, 60, 65. Discretion of judge, 58, 59. Impeachment questions, 57. Not new matters, 56, 59. Incriminating evidence, 71. ' Avoiding civil liability, 71. Opinion of witnesses, 72. Trial court's discretion, 72, 73. Violation of primary law, 75. "Plead", may mean claim, 29. Eefusal to answer, proceedings, 1. 1. The proceedings when a "witness has refused to answer certain interrogatories", — outlined. See Contempt. — Lannmg v. Lonsdale, 48 W. 348, 370. 2. "The old bill of discovery was commonly used in aid of the juris- diction of some other court". "It was not a matter of strict right, but depended upon a case being made coming within the proper discretion- ary powers of the court. The cumbersome nature of the proceeding finally lead to statutory enactments, even before legal and equitable jurisdiction were vested in the same court". 3. "In this state a bill for discovery was abolished, and provisions made for compelling an adverse party to testify at or before the trial, by sees. 54, 55, ch. 137 R. S. 1858", now sec. 4096. 4. "It seems to us that the object of our statute, as it now stands, is to elicit a full and complete disclosure of Whatever may be relevant to the controversy, 5. To be ascertained, in case the pleadings are r in, by the issues thereby made, DISCOVERY 357 6. And, 'in case the, issues have not been joined, then by such order limiting, the subjects to i which such examination may extend". : 7, V This court has already held that the scope of such examination may be as broad as that on cross examination. Stuart v. Allen, 45 W., 160." 8, It is not "limited to cases where discovery might have been had in equity under the old practice ' '. — Kelly v. G. & N-W. By. Co., 60 W. 480, 484. - 9. "The statute, (sec. 4096) undoubtedly goes further than the bill of discovery, and not only allows an examination of the party as to those matters which the party seeking the examination cannot prove by other witnesses or testimony, but it allows an examination as to all the material issues in the action. 10. This examination of a party at the instance of the opposite party is not strictly the deposition of a witness taken in an action, . 11. .And its admissibility as evidence on the trial is not governed by the provisions of sec. 4089 ' ', as to not being used when the reason there- for no longer exists, etc. 12. "The examination of a party is in the nature of an admission so far as, his answers are material to the issues in the action, and such admissions are always admitted as original evidence against him". And the refusal to admit the adverse examination evidence on the trial, was held material error, not cured by such party being present in court. —Meier v. Paujus., 70 W, 165, 170. 13. Under sections 3825, 3826, in the nature of discovery proceedings in the county court as to concealed, embezzled, etc., property, the court is "of the opinion", that "not order can properly be made, in regard to the property,, if any, in the hands of the appellant, and concerning which his examination may be taken under said sections. " 14. And following Massachusetts and Michigan decisions, under similar statutes, "the only thing provided for by the statutes is the examination of the party charged, and power to compel him to submit to such examination, and there the power granted ends." 15. , (Under the subsequent amendment by chapter 23, L. of 1901, an order may be made "as shall be just and proper " but as such "order shall not prevent the bringing of any proper action," probably an order should not ordinarily be made, unless there is practically no contro- versy as to the result of the examination, or unless the parties acquiesce) . —Sa&dwigton's Est. y. Hewitt, 70 W. 240, 248. 16. A n executrix of a deceased executor "may be compelled by the county court, upon application of some person interested", "to make a disclosure upon ,oath of any money, property, or effects, belonging to the estate" of which the deceased executor was executor, "which may 358 PROBATE AND GENERAL LAW, CODIFIED have come into her possession or under her control as executrix", or otherwise, under sec. 3825. See also Accts. of Extrs. and Admbs. —Reed v. Wilson, Extrx., 73 W., 497, 504. 17. "This court has frequently held that the examination thus author- ized (by sec. 4096) was intended as a substitute for a bill of discovery under the old practice, and, being remedial, should be liberally con- strued. Cleveland v. Burnham, 60 W., 21 ; Kelley v. C. & N. W. R. Co., 60 W., supra. 18. The object of the section was to abolish not only the form, but also the substance, of the old bill of discovery, and to enable the party to obtain the benefits of the bill, and also a more ample remedy, by taking the deposition of the adverse party as a witness in the case upon all questions involved in the issues. Whereatt v. Ellis, 65 W., 639. 19. The old bill of discovery was filed in a court of equity in aid of proceedings in another court of separate and independent jurisdic- tion. Clark v: Berganthal, 52 W., 106 ; Kelley v. C. N. W. R. Co., 60 W., supra. 20. Here the discovery sought is in aid of the defense to the allowance of the plaintiff's claim in the county court. 21. The presentation of the claim to the county court is to be deemed the commencement of an action, within the meaning of the statutes of limitation. Sec. 4242; Boyce v. Foote, 19 W., 199; Jones v. Keep's Est., 23 W., 45. (Cited under Claims). 22. It seems to be, in effect, a civil action or suit at law. Clark v. Bever, 139 U. S. 96; McBride's Appeal, 72 Pa. St., 480. If it is not a civil action or suit at law, it is at least a 'proceeding' within the meaning of that clause of sec. 4096, which authorizes the taking of the 'deposition at the instance of the adverse party, in any action or proceeding' ". 23. And it is expressly held that sec. 4096, for such adverse examina- tion is applicable in the trial of a claim in the county court, and that the examination may be had for such purpose before a court commissioner as in other cases. — Frawley v. Cosgrove, 83 W., 441, 443. 24. The clause of the statute for "oral interrogatories", applies "to every examination Under sec. 4096, whether before or after issues joined, or within or without the state", and the applicant has a right to insist on such oral examination of a non-resident party. — Neeves v. Gregory, 86 W. 319, 320. 25. On discovery, under sec. 3825, in the county court, "there is no remedy to enforce its delivery" but "another action must be brought for its recovery, in a court of general jurisdiction", for the property sought. Saddington's Est. v.Hewitt, 70 W. supra. See also Concur- rent Jurisdiction. —Meyer v. Garthwaite, 92 W. 571, 577. DISCOVERY 359 26. Party examined "would have no right to offer the deposition so taken in the first instance. ' ' See Depositions. —Wunderlich v. Palatine F. I. Co., 104 Wis., 382, 386. 27. The admission of depositions of mere employees of -a defendant corporation, on adverse examination under sec. 409.6, as amended by ch. 244, L. 1901, offered by plaintiff, and "read against the objections of the defendant", the witnesses being "present in the court", was held error, the rule of Meier v. Paulus, 70 W. supra, applying only to a "party" as "admissions". —Hughes v. C. St. P. M. & 0. R. Co., 122 W. 258, 269. 28. A plaintiff may be examined "as an adverse party, under sec. 4096, in the proceedings instituted by the plaintiff to compel the defend- ant to produce its books and papers for inspection or to furnish foreign copies thereof ", under sec. 4183. 29. As to adverse examination before issue joined, "the word 'plead' as thus used in the statute (sec. 4096), is not limited to a complaint, answer, or reply, but may extend to a claim urged in defense of a pro- ceeding instituted by either party in aid of an action or defense, and which may be put in issue and tried". —Ellmger v. Equitable L. A. Soc, 125 W. 643, 646. 30. As to compelling production of private books or papers of a third party. See Inheritance Taxes. —State ex rel. Pabst B. Co. v. Carpenter, 129 W., 180, 189. 31. An order to produce books and papers under sec. 4183, should be vacated "if the prima facie showing made in the moving papers for such order, that such nooks were in the possession or under the control of the plaintiff, was fully rebutted". ,. 1 32. "So an unqualified credible denial" of the allegations of the "petition as to such possession and control necessarily, constituted a full answer thereto, and called for a vacation of the order as requested". (Cases) -..-. 33. It was not "the duty of appellant, if he did not have control of the papers and records, to gain such control, since he was the rightful cus- todian, for the purpose of complying with the order", (Bradstreet v. Bailey, 4 Abb, Pr. 233), 34. Though there would be "some basis to rest upon," if the papers had "been shown to have come to appellant's possession", to require him to ' ' produce them or show what had become of them ' '. ( Cases) . —Sehlesingerv. Ellinger, 134 W. 397, 400. 35. "An action in equity by" an administratrix, "for a discovery of" estate property "and for an accounting", where she "alleges her 360 PEOBATB AND GENERAL LAW, CODIFIED ignorance of the amount, the condition, and the nature of the estate" "withheld by the defendants under a claim of ownership," 36. Was held properly instituted "in the circuit court during the pendency of the administration of the estate in county court. 37. Though discovery in the county courts may be had under such circumstances pursuant to sec. 3825, 38. Yet the necessity of bringing an action, either at law or in equity" "to enforce delivery or restoration", "results in such circuity and multiplicity of action that it is in itself sufficient grounds for suing in equity. (Cases) ". 39. When the circuit "court has entertained the cause it should retain it to settle the rights of all the parties interested in the litigation. 40. This necessarily entitled defendants to litigate their claims respect- ing the allowance of credits for any sums they claim to have paid the heirs of the decedent out of the estate which came into their hands, 41. And for any other sums they have properly disbursed in payment of claims against the deceased or his estate". Gianella v. Bigelow, 96 W. 185 (See Concurrent Jurisdiction). 42. It is "appropriate" "to make such persons parties to the action and to litigate the question of his right thereto, if it is controverted by any interested party". 43. Proof from the county court may "be adduced" for such deter- mination, if available, or the action held "in abeyance until such facts may be shown ' ' from the county court proceedings. 44. Where "the proof discloses that the property for which recovery is sought was held separately by the two defendants", the judgment should find "separate liability", and not joint. — Eisentrcmt v. Coriielius, 134 W. 532, 537. 45. "A party residing in a foreign country is 'without the state' and comes clearly within the statutory provision", for adverse party exami- nation under sec. 4096. 46. The general provisions of sees. 4110, 4113, 4114, "and the rules of court thereunder", providing "that depositions taken in foreign coun- tries shall be taken by commission", and "written interrogatories", 47. And "the provision in sec. 4096, requiring depositions thereunder without the state to be taken in the same manner that other depositions are taken", 48. Do not "over-ride the special provision of sec. 4096, to the effect that in taking a deposition thereunder 'the party examining shall in all cases be allowed to examine on oral interrogatories'," 49. And mean the taking of such adverse examinations in foreign countries "in the manner other depositions may be taken without the state as provided in sec. 4110, which is either on oral interrogatories or by commission ' '. Neeves v. Gregory, 86 W. supra. 50. "Letters rogatory were issued to 'any judge or tribunal of the city of Geneva having civil jurisdiction'," to issue process and compel DISCOVERY 361 attendance, and, it was held "within the discretion of the trial judge to order that such letters be issued". — Kite, v. Kerne, 137 W. 625, 626. 51. VThe term 'adverse party' used in this section (4068) means a party whose interests are adverse to those of the party seeking to call him, and the fact that both may be named in the pleadings as plaintiffs or defendants is immaterial." Crowns v. Forest L. Co., 99 W., 103. 52. "Where a party is properly called under the statute for cross- examination ; his counsel has no right to re-examine him at the close of such cross-examination." "Counsel can call him as his own witness at the proper time, and then examine him fully upon all the issues." ("Modified" by Guse v. Power & M. M. Co., 151 W. post). —O'Day v. Meyers, 147 W. 549, 557. 53. It is held that the governor of the National Home for soldiers at Milwaukee, may properly be cited to submit to an examination in county court as to the effects of a deceased inmate of the home. 54. As the governor was "obliged to comply with the order or suffer the penalties imposed for failing to do so", "he was an aggrieved party" under sec. 4031, and the order appealable. (Cases). , —Mallory v. Tf heeler, 151 W., 136, 144. 55/, Where plaintiff called defendant's employee for cross-examina- tion under sec. 4068, "the defendant has a right to re-examine such witness immediately after the examination by plaintiff's counsel as to all matters tending to explain or qualify the testimony already given, 56. But not as to new matters not brought out by plaintiff's counsel and constituting part of the defendant's defense. 57. So he may ask 'the witness questions proper for the purpose of impeachment upon a statement that he does not thereafter intend to make the witness his witness. 58. The scope of such re-examination is largely in the discretion of the trial judge, 59. But it should not be so extended in any case as to interject the defense into the plaintiff's case at this stage of the hearing. 60. So far as O'Day v. Meyers, 147 W. supra, may be understood to the contrary, it must be deemed modified by this decision". —Guse v. Power & M. M. Co., 151 W. 400, 406. 61. Sec. 4096 is "remedial" and "to be liberally construed". (Cases). On "examination before issue joined", "it is not necessary that facts sufficient to constitute a cause of action be stated" in the affidavit. 62. It is "sufficient to show that plaintiff may be entitled to recover", and he need not "know that a cause of action exists. (Cases) ". 63. A "counter affidavit" which "denies some of the allegations of the plaintiff's -affidavit", "is not sufficient to defeat the examination 362 PEOBATE AND GENERAL LAW, CODIFIED based upon an affidavit made by the plaintiff in compliance with the statute. (Cases). 64. True, if the affidavit of plaintiff negatived the existence of a cause of action the examination would be denied. ( Cases) ' '. —Sullivan v. Ashland, L. P. & St. B. Co., 152 W. 574, 578. 65. The principles of Guse v. Power & M. M. Co., 151 "W. supra, re-stated, followed, and violation thereof held reversible error. — Adams v. Bucyrus Co., 155 W. 70, 75. 66. The "examination under sec. 4096 is in the nature of a cross- examination. 67. The statute has been given a liberal construction", "so as to accomplish full disclosure". 68. "The examination of the witness" is "subject to the same rules as that of any other witness,. 69. The only restriction being that he could not be compelled to disclose anything not relevant to the controversy". (Cases). 70. "Discovery under sec. 4096 is broader than in equity", and pro- duction of "physical objects" may be required. Points discussed and ■determined. -^Horliclt's M. M. Co. v. A. Spiegel Co., 155 W. 201, 208. 71. While "a witness cannot invoke the privilege", — as to "his giving incriminating evidence", — "for the purpose of avoiding civil liability", (sec. 4077), he cannot be compelled to answer in a civil action where his answer might subject him to liability in a criminal action. 72. "While the opinion of the Witness" as to the effect of his answer as to tending ' ' to criminate him is not conclusive, upon the trial court, 73. Yet the witness should not be compelled to answer it unless it appears reasonably clear that the answer, whatever it, may be, can have . no such effect. (Many cases). — Karel v. Conlan, 155 W. 221. 225. 74. The evidence of a defendant "examined at the instance of the" idverse party under sec. 3825, when offered by the defendants, ' ' was properly excluded, we .think, under the rule of Maldaner v. Smith, 102 W. 30 (See Depositions)." —Hilton v. Rahr, 161 W. 619, 624. t 75. In an adverse party examination under sec. 4096, it is held the party "could not be compelled to answer" questions tending to show " that he was guilty of criminal violation of the primary law". — State ex rel. Schiurnacher v. Markham, 162 W. 55, 56. 76. "A guardian ad litem is not an agent of the minor within the meaning of" sec. 4096, and while "technically a party", "still the real party in interest is the minor ' ' ; DIVORCE 363 77. And though "the guardian ad litem is the father of the minor, and the latter is of such tender years that he cannot be examined", yet it is held he" is not "subject to examination under seq. 4096". 78. "A general guardian of a minor is no more his agent within the meaning of the statute than is the guardian ad litem, and cannot be examined as such, or- as a party. O'Shea v. Wilkinson, 95 Cal. 454", —Bohleder v. Wright, 162 W. 580, 581. DISMISSAL. See Discontinuance:. See County Judge. DISQUALIFICATION. DISTRIBUTION. See Descent and Distribution. Judgments. See Trust Funds. DIVIDENDS. DIVORCE. Attorney's services for wife, 6. Action against husband, 6. Authority statutory, 3. Deceased husband's estate, 4. Action against admr., 5. Alimony enforced, 4. Judgment unimpeached, 11. Not county court claim, 5. Dower cut off, 1. Minor children support, 7. 1. Divorce cuts off dower. Prohibition of marriage, 10. Not extra-territorial, 10. Property division, 8. Wife estopped, 9. Testimony: divorced wife, 2. Not confidential, 2. Within the year, 12. Judgment dissolves marriage, 14. Not wife's husband, 13. See Dower. —Burdick y. Briggs, 11 W. 126, 132. 2. "After the relation of coverture has ceased, the divorced wife is competent to prove a communication not private or confidential, but which, from the nature of the case, the husband must have intended should be made public". -.-Crook v. Henry, 25 W. ,569, 572. 364 PROBATE AND GENERAL LAW, CODIFIED 3. "It is an undoubted general principle of the law of divorce in this country, that the courts, either of law or equity, possess no powers except such as are conferred by statute". —Barker v. Dayton, 28 W. 367, 379. 4. A divorced wife after the death of her husband "can only enforce payment of her judgment for alimony out of the estate of the judgment debtor, by proceeding in the manner prescribed by the statutes' in that .behalf". 5. (And this is probably not "by proceeding as for a claim against the decedent's estate" as indicated in the syllabus of this case, but "the case remains within the continuing jurisdiction'' of the court which rendered the judgment, and the wife "has an undoubted right to revive it (the action) against the personal representatives of the deceased husband", as stated in G-uenther v. Jacobs, 44 W. 354, 358). — Appeal of Ernestine G%enther, 40 W. 115, 119. 6. An attorney cannot recover in an action against the husband, for services performed for his wife in a divorce action, there being no "express promises" to pay. * —^Clarke v. Burke, 65 W. 359. 7. There being nothing in the judgment to the contrary, the father is primarily and the mother secondarily, liable for the support of the minor children as before the divorce. —Zilley v. Dunwiddie, 98 W. 428, 433. 8. "On a final division of property between the parties to a divorce action, regardless of the character of the decree, as to whether limited or absolute, the relations of the parties as to property shall thereby be forever terminated except as recognized by the decree. ' ' Sec. 2369. 9. Independent of the statute, a decree of division of the estate, "accepted by her, operates by way of estoppel, upon her surviving the divorced husband, to lawfully bar her right of : dower and all other widow J s rights of property. ' ' So held, in a divorce from bed and board. —Gallagher v. Gallagher, 101 W., 202, 207. 10. There was "no legal impediment to the marriage of the testator" in Wisconsin, though being divorced in Louisiana, where such marriage was prohibited. Such prohibition "has no extra-territorial force". —Frame v. Thormann, 102 W. 653, 672. 11. "While" "the divorce judgment" "stands unimpeaclied plaintiff (the divorced wife) has no interest in the estate (of her former hus- band), and for that reason" "can maintain no action with reference thereto. "_ —Vecker v. Thiedt, 137 W.; 634, 636. 12. Where after a divorce action started by the husband, the wife in her will gave property to him if he 'is my husband at' my decease', DOMICIL 365 and she died after a judgment of divorce granted, but before the ex- piration of the year thereafter, under see. 2374, stats, of 1911, it is held, 13. That "she meant that she gave her property to him if no divorce was granted", and that he "was not, at the time of" her death, "her husband within the meaning of the will". " 14. It is indicated but not decided, ' ' that it was the intention of the legislature that the entry of judgment should dissolve the marriage contract, subject to the conditions prescribed by the statute". (But, see subsequent admdt. of sec. 2374, by ch. 229, L. 1917, denning the effect.) —Rogers v. H Mister, 156 W. 517, 523. DOCUMENTARY. See Evidence. Writings. DOMICIL. "Acquired domieil", 13. Former Louisianian, 24, ( 'Change of domieil, 24. Circumstances for change, 24. Citizens' rights, 25; Essential , requisites, 26. Intent future return, 27. Temporary returns, 28. Construction of -wills, 18. Realty intent of will, 19. Foreign: testatrix claim, 6. Proceedings in rem,, 29. Guardianship, 20. .Residence another county, 20. Husband can change, 11. Husband's is wife's, 22. , Wife cannot change, 23., , Without wife's consent, 11. Immaterial, 29. Proceedings in rem, 29. Intention: often material, 4. Future return intent, 27. I Mental resolution, 5. Removal must accompany, 9. Jurisdiction, 21. 1 Estate here, 29. Proceeding in rem,29. Payment presumption, 1. Personal property transfer, 2. Bequest validity, 17. Execution and power, lex loci, 17. Law of domieil, 14. "Proper residence", 12, 13. Not special, 13. Eeal property, lex loci, 14. Devise by will, 15. Execution and power, 16. "Residence", '.'domicile", 7. Attendance at school, 35. Residence conditions, 35. Definition, test, 8, 32. Every person can fix, 34. One only at a time, 33. Purpose and removal, 9. Signifies what, 32. Taxation purposes, 10. Purpose and removal, 10. Temporary purposes, 31. Voting not conclusive, 30. Wife separate, when, 3. Cannot change, 22, 23. 1. Residence within the state is not necessary for application of the common law presumption of payment- — Scmderson v. Olmsted, 2 Pin. 224. 366 PROBATE AND GENERAL LAW, CODIFIED 2. The rule of transfer of personal property follows the law of the domicil of the owner. — Mowry v. Crocker, 6 W. 326. 3. "The wife, for the purpose of bringing suit for a divorce, may acquire a residence separate from her husband". —Craven v. Craven, 27 W. 418, 420. 4. While "the 1 intention of the party often becomes material", and "is sometimes the decisive fact", yet "a person having already a fixed residence or place of abode cannot change it by intention merely ' '. 5. "Mere mental resolution or determination, or the party's own affirmation that he has changed his residence, will not have the effect to change it, if there be no actual removal, or if the party continued the use and occupation of the same house and home with all the indicia and circumstances of continued residence therein". — Carter v. Sommermeyer, 27 W. 665, 666. 6. The residence of a foreign testatrix at the time of her death must be averred in the complaint on a claim in an estate here. —Smith v. Peckham, 39 W., 414, 418. 7. "We use the words 'residence' and 'domicile' interchangeably, as synonymous terms under our statute. Hall v. Hall, 25 W. 600. And, ; in the language of Shaw, C. J., (3 Gray, 493, 495), we say: 8. 'The general rule, and, for practical purposes, a fixed rule, is, that a man must have a habitation somewhere; he can have but one; and therefore, in order to lose one, he must acquire another. This is the test, the practical test; 9. One of the fixed rules on the subject is this: that a purpose to change, unaccompanied by an actual removal or change of residence, does not constitute a change of domicile'." 10. The residence of a party "for the purpose of taxation" for many years at 0. "must be deemed to have continued until he had acquired a new residence elsewhere. Abandonment of O. with the intention of taking up his residence in C, and even the removal of his property there- from, is not" sufficient, so long as he did not actually acquire a new residence or domicile there. This is a just, wise rule, founded in. reason and supported by authority ' '. — kelloggy. Supers. Winnebago Co., 42 W. 97, 107. 11. A husband can change his domicile, and change his homestead and his wife's rights therein, without her consent. See Homestead. —Godfrey v. Thornton, 46 W. 677, 683. 12. "Where a person takes up his abode in a county with the present intention of remaining there, where he expects to reside, where he would exercise his political right to vote, if an elector, where his personal DOMICIL 367 property would be taxable in the county, he might justly be said to have a 'proper residence' ". 13. " That is, the place where a person has voluntarily fixed his abode, not for a mere special or temporary purpose, but with the present inten- tion of making it his home", is his 'proper residence' or .' acquired domicil'. See Hall v. Hall, 25 W. 600; Dutcher v. Dutcher, 39 W. 651. —State ex rel. Wood Co. v. Dodge Co., 56 W. 79, 86. 14. Personal estate is governed by the law of the domicil; real estate by lex loci. See Ancillary Proceedings. Construction op Wills. — Van Steenwyck v. Washburn, 59 W, 483, 510. 15. "The validity of every devise or disposition , of real estate ;by will must be governed by the law of the place where the land is situated.,, 16. And this includes not only the. form and mode of the execution of the will, but also the 1 lawful power and- authority of the testator to make such disposition; (Cases) ". 17. The last foregoing paragraph applies to personalty also, , the validity of a bequest thereof, however, "must be governed by the law of the testator's domicd at the time of his death. (Many cases) ". 18. "The same rule, as to the law of the testator's domicil, governs in the interpretation, or construction of wills. Story, Confl. of Laws, §§479a-479c; Van Steenwyck v. Washburn, 59 W. Supra". Quoting from Story, wills "are supposed to speak the sense of the testator accord- ing to the received laws or usages of the country where he is domiciled". 19. "The general rule is the, same respecting* real estate: whenever the object is merely to ascertain the meaning and intent of- the testator from the language employed in the- will. Ibid". — Ford v. Ford, 70 W. 19, 44. 20. Where the county court, and the circuit court and a, jury therein, found that the testator was a resident of S. county, it is said: "We do not feel authorized to set aside such determination, merely because the testator's property; and person has :been, placed, under guardianship in C. county" about three and one-half years before his decease, ''but which guardianship, so far as his person was concerned, was prac- tically abandoned" about fifteen months before his decease, "if not before," • > ■■:..■ <'•, v • ■■. . „• , ■. >.t >' . ,21. And as "such jurisdiction cannot be contested in any other, action or proceeding, such determination must be regarded as conclusive." ■ —Will of Slmger, 72 W. 22, 26. ; 22.. "In, contemplation of law, the domicile of the husband is; the domicile of the wife ; his homestead is her homestead ; 23. And its character is not changed, because the wife, for a suffi- cient reason, or for nO reason, has seen fit to lqave, it and live separate from her husband." —Herron v. Knapp, S. & Co., 72 W., 553, 557. 368 PROBATE AND GENERAL LAW, CODIFIED 24. On his acts as to his property, and change of residence a year and one-half or more before decease, and statements in regard thereto, the testator, a former resident of Louisiana, was held to have "acquired a domicile and residence ' ' here. 25. The circumstances, including an opportunity to legitimatize and legalize his family relations, denied him where he was, stimulated "a desire to change his residence and- domicile as he did. In doing so, he was merely exercising the right of an American citizen. 26. To effect the change, it was only essential that such removal should be accompanied by an intention to thereafter make W. his perma- nent residence or home. State ex rel. Wood Co. v. Dodge Co., 56 W. 79 ; Kempster v.JMilwaukee, 97 W. 343; (other cases). ' 27. Even if there was an intention to return at some future indefinite time, yet that would not" have prevented the change from being effec- tual. Holmes v. Greene, 7 Gray 299; Sleeper v. Paige, 15 Gray 349; Kempster v. Milwaukee, supra; Jacobs, Domicil, §§ 159, 171." 28. "The mere fact that he went there with his family for the winter", to his former place of residence, and died there, "or that he kept a bank account there, or that" he desired to be buried there where an expensive tomb had' been erected, most of his children residing there, "is not inconsistent with such change of domicile", 29. As to the effect of an unnecessary decree as to domicil in a pro- ceeding in rem like this. See Foreign Judgments. —Frame v. Thormann, 102 W. 653, 666. 30. ' ' The mere act of voting at a particular place is not conclusive on the question of residence." See also Homestead. —Minnesota S. Co. v. McCrossen, 110 W., 316, 324. 31. "Residence is not lost by leaving it for temporary purposes, where the intention remains to return when such purposes are accomplished". (Cases; also Kellogg v. Suprs., 42 W. supra, stated.) 32. "Residence signifies a person's permanent house and principal establishment, to which whenever he is absent he has the intention of returning. (Citation)". See also Presumption of Death. —Miller v. Sovereign, Gamp W. 0. W., 140 W. 505, 508. 33. ' ' The general rule is that a man must have a habitation or domicile somewhere and that he can have but one at the same time for one and the same purpose, and that in order to lose one he must acquire another. Miller v. Sovereign, Camp W. O. W., 140 W. supra; Opinion of the Justices 5 Met. 587, 589. 34. Every person can fix his own residence provided he makes it reasonably permanent by intending to return thereto when a tempo- rary job 1 is finished. (Cases): 35. Attendance at an institution of learning for the sole purpose of DOWER 369 acquiring an education is not of itself sufficient to establish the student as an elector. (Cases)." Much depends upon whether the student is " 'emancipated' from his family so far as looking to them for a home or a place to which to return or for means of support. (Many cases) . ' ' —Seibold v. Wahl, 164 W. 82, 85. See also "Widow: DOWER. After ten years, sheriff's deed, 7. Allowance from personalty, 8. Before assignment of, 4, 13. Possession right retained, 70. County court's power, 26. i Bight not disputed, 26. , Continuation from husband, 9. Curtesy subject to debts, 73. Damages for withholding, 6, 35. Against husband's alienee, 37. Gross sum in lieu of, 44. Money .judgment for, 39. Seizure limitation, 36. Vesting of husband's title, 37. Demand therefor, 5. Damages from demand, 35. Belief from damages, 6. Divorce cuts ,pff, 1. Election: right secured, 27. Also as to personalty, 23. Homestead and dower vests, 53. Must account for will estate, 24. Will ineffective, 27, 53. Equitable estates, not, 64, 66, 68. At common law, 64. Husband no paper title, 71. Many states changed, 65. Where legal in effect, 68, 69. Estopped, by fraud, 72. Fraudulent, conveyance, 30. Ignorance of intended wife, 52. Prospective husband's deed, 38, 45, 51. Bevives in wife, 58. Widow, claim dower, 31. Wife active in fraud, 59. Free from unsecured debts, 54, 73. Gross sum in lieu of, 40. Action in equity, 41. Estoppel of withholder, 44. Held in trust, 42, 43. Homestead: right in, 2. Not in remainder, 46, 49, 50. Possession without assigned, 70. Bight on election, 53. Zimmerman — 24 Husband cannot divert, 17. Ignorance of intended wife, 52. Non-resident wife, 18. , Prospective husband, 38, 45, 48, 51. Inchoate dower right, 3. Before assignment, 4, 13. Computed on land contract, 74. Expectancy till deathj 19. Fraucl, as to, 3. , Ignorance of intended wife, 52. Incumbrance on land, 56. Mechanic's lien suit, 15, 78. Not a future estate, 32. Prospective husband's deed, 38, 45, 48, 51. Belease to stranger, 34. Relinquishment, 33. Wife bring, action, 57. Law greatly favors, 11. Lease, wife joins, 55. Rents after decease, 55. Legal status only, 66, 69. Living separately: fraud, 72. Marriage: proof of, 16. License to sell realty, 29. Validity determined, 28. !" Me^ne profits from, 12. Assigned or not, 13. In rents, lease, 55.' Recovery thereof, 14. Non-resident: wife, 18. , Lands conveyed by husband, 22. Statute from Michigan, 75. Time Of husband's death, 21, 77. Time of the conveyance, 75, 76, 77. Widow, different right, 20. Possession with children, 70. Belease to husband, 27. Ineffective, also personalty, 23. Bemainder : life estate, 46. After estate for years, 63. Conveyance without wife, 47. Reversion or remainder, 62. 370 PEOBATE AND GENERAL LAW, CODIFIED Resident aliens, 19. Seizin: necessary, 46. At common law, 61. Homestead estate excludes, 50. Seized during coverture, 60. "Seizin" defined, etc., 61. Seizin — continued Subjeet to life estate, 47. Sheriff's deed, 7. Trust for years, 67. Vests from death, 10. After amount fixed, 10. 1. "It seems that a divorce from the bonds of matrimony cuts off the wife's right of dower". ' —Burdick v. Briggs, 11 W. 126, 132. 2. The widow is entitled to residue of the real estate". 'dower in the homestead, as well as in the —Bresee v. Stiles, 22 W. 120, 126. 3. ' ' The wife has an interest upon which an action may be maintained, ,where an attempt has been made to defeat her right by act of gross fraud" as to "an inchoate right of dower". —Madigan v. Walsh, 22 W. 501, 504. 4. "The right of dower before assignment, being an inchoate right, cannot be so transferred by the widow to a stranger as to enable him to set it up as a defense to an action of ejectment by the heirs-at-law ". —Howe v. McGivern, 25 W. 525, 532. 5. The bringing of an action for dower "is a sufficient demand", and "the right to maintain the action does not depend upon a previous demand therefor". 6. "The only effect of the want of such previous demand" is relief "from the liability to pay damages for withholding such dower in- terest ' '. 7. A sheriff's deed purporting only to convey a husband's interest, does not include the wife's "dower interest, and hence cannot be made the basis of an adverse holding of her dower interest in the premises, so as to bar her right of action to recover the same after the lapse of ten years ' ', under the statute. — Cowan v. Lindsay, 30 W. 586, 588. 8. "The circumstances that Mrs. F. (the widow) receives an allowance out of the personal estate of her deceased husband pending administra- tion, does not destroy or impair rights accruing her by virtue of her right of dower in the real estate of which he died seized." 9. "A dower interest is a continuation of the estate of the husband, and is held of him by appointment of law. 1 Pick. 189 ; 4 Me. 67. 10. Hence, although certain proceedings may be necessary to ascer- tain and fix the extent or amount of the interest, when that is done, the interest must necessarily vest, by relation or otherwise, from the death of the husband." 11. "The law greatly favors dower, and no widow .should be deprived of it in lands owned by her husband during coverture, without clear authority of law. DOWER 371 12. The same rule applies to mesne prpfits which grow out of and are the incident of dower." 13. "Although a right of dower, before assignment, may be but an inchoate or imperfect right, and, strictly speaking, not an estate in the land, (Howe v. McGivern, 25 W. 525, supra), yet, the right being ad- mitted (as it is in this case,) no good reason is perceived why the respondent (widow) should not have the mesne profits which the law gives her as incident to the right". 14. "Probably she could only recover the. profits of the heirs in an action for her dower; but when they are in the, hands of the adminis- trator, no good reason occurs to us why he should not be directed to pay them over to her". —Farnsworth v. Cole, 42 W. 403, 405. 15. A wife's. right to defend, in a mechanic's lien suit, on account of inphoate dower and homestead rights, apparently upheld, but later criticised. See Homestead. — 'W est on v. Western, 46. W. 130. 16. "In an action for dower" proof of actual solemnization of a mar- riage is not required, but the proof must show a lawful marriage. See Marriage. — Williams v. Williams, 46 W : . 464, 475." 17. "The husband cannot, by his own, act, divest his wife's right of dower, because it is an estate". See Homestead; , —Godfrey v. Thornton, 46 W., .617,, 683. 18. The foregoing quotation from Godfrey v. Thornton, : supra, is . held to be " correct in all cases where ,the statute . purports to secure dower tc the widow ' ' ; but it seems not to apply to the case of a, non- resident wife. 19. "The right of dower in lands within this state, while it remains inchoate — a mere expectancy, — and until it becomes consummated by the husband's death", is under legislative control except "that; there can be no distinction 'between resident aliens and citizens'," under the constitu- tion (see. 15, airt. I),' which "provides, that 'no distinction .shall ever be made by law between resident aliens and citizens in reference to the possession, enjoyment or descent of property.'." 20. But there may be; "discrimination against .those who are neither citizens nor residents", and the r statute ; (sec. 2160) providing "dower only of lands of her husband, being in this state, of which he; died seized," in case of a non-resident widow, is constitutional. , . ;; ;,,,(.; , 21. "The .non-residence : intended by this statute, is at the time qf;the death of the husband, and not at the, time of the conveyance, qf , the land." (Overruled, in Ekegren v. Marcotte, 159 W;.post). .22. "A woman who is neither a citizen, nor resident of this state, at the time of her husband's death, is not, entitled to dower in lands, within this state.,, not being a homestead, which jhe conveyed during, their,; mar- riage without her signature". — Bqnnett v. Harms, 51 W. 251, 255. 372 PROBATE AND GENERAL LAW, CODIFIED 23. Notwithstanding the deed of release during coverture, set forth in the will, the widow also is entitled to her election as to personalty, "ancl the testator was powerless to exclude her therefrom by the terms of his will". 24. But "if she insists upon her right to a share of the personal estate under the statute, she must account for and be charged with what she. has received by the provisions made for her in the will. 25. And, for that purpose, we must hold that the $500 mentioned in her deed of release, with' the express reference to it 1 in the will, must be construed as a provision made for her in the will". See also Wilber v. Wilber, 52 W. post. — In re Mary E. Wilber, 52 W. 295, 297. 26. "The county court has power to assign dower to a widow only in cases where her right thereto 'is not disputed, etc' Sec. 3869. Here the plaintiff's right was disputed, and hence she was forced to proceed in the circuit court". 27. "The right of election, being secured to the wife by statute, can- not be taken away from her by deed of release to her husband during coverture, nor can such right be taken away from her by the will of her husband". — Wilber v. Wilber, 52 W. 298, 300. 28. It is held that the question of the validity of the widow's marriage, and to bar dower, cannot be determined in a suit of the administrator on " a bill quia timet to clear the title ' ' to the intestate 's realty, needed to pay debts; nor under Sec. 3832 as to recovery of fraudulently con- veyed realty. 29. It seems that ' ' the question as to the validity of the marriage might be raised on an application for a license to sell the real estate to pay debts", in the county court, — "to determine a disputed right to dower". —Paige v. Fagan, 61 W. 667, 668. 30. A widow can "claim dower in lands which she joined her husband in conveying to her daughter, but which conveyance has been set aside as fraudulent and void as to her husband's creditors": (Approved in Huntzicker v. Crocker, 135 W. post) . 31. The question being "a new one in this court", and "as the pre- vailing current of authority supports the right in a case like this, we are disposed, as we have said, to yield to that authority." 32. "We think that an inchoate right of dower is not a future estate, within the meaning of Sec. 2034. 33. The wife's interest is contingent, does not become vested until the death Of her husband, and cannot be conveyed or relinquished except in the manner pointed out by the statute. Wilber v. Wilber, 52 W. supra. 34. The wife cannot, during coverture, convey or release her inehoate right of dower to one having no interest in the land except that which he derived from her release, or to a stranger to the title, (cases) ". 35. The wife is held to "recover damages for the withholding of her DOWER 373 dower", "from the' time of making demand", "in writing that her dower be assigned toiher", — the husband's interests in the lands having been sold by the assignee in bankruptcy. r 36. "We think the statute (sec. 2175) does not limit the widow in recovering damages to the cases where t"he husband died seized. ' ' 37. Construing all the statutes together; "the intent is manifest to allow the widow to recover damages against the alienee of the husband, and against one who has become vested of the husband's title by opera- tion of law. See Thrasher v. Tyack, 15 W. 256; Gowan v. Lindsay, 30 W. supra". — Munger v. Perkins, 62 W. '499, 502. 38. Where the prospective husband on the day of, but before, his mar- riage, deeds his real estate to his father, from whom he first obtained it, for the purpose of preventing the Vesting of his wife 's inchoate dower therein, such deed after the husband's death, was held fraudulent and his wife entitled to dower in the premises from the time of filing 'her answer. — Jones v. Jones, 64 W. 301. 39. ' ' It seems to be the general policy of the 1 statutes cited, not only to allow a money judgment by way of damages 1 for withholding dower, 40. But, on the distribution of estates subject to dower, to allow, with her consent, a gross sum in lieu of dower." 41. ' ' That a widow entitled to dower may in equity have a gross sum in lieu of dower, where the property has been actually sold and con- verted into money, would seem to be elementary. (Citations). ■ 42. The same would seem to be true Where the property is held in trust, and sold by ■ the , trustee; who bids in the property for his own benefit, and the widow acquiesces in such purchase. 43. It is said, in effect, in these authorities, that in certain 1 cases a gross sum may be accepted and allowed as compensation in lieu of dower, without any sale being made". 44. And it is here held that "the plaintiff having wrongfully with- held the widow's dower," is estopped from now not "responding in damages for the value of such dower in gross thus converted". —Jones v. Jones, 71 W. 513, 523-4. 45. A defendant widow had a homestead and dower interest in parts of several lots exceeding a homestead; her son C. D., the remainderman, afterward married and died intestate leaving the mother living, and the plaintiff widow his sole heir at law, having ten' days before his mar- riage, and without his intended wife's knowledge until after his decease, given a quitclaim deed, with nominal consideration, of the property to his mother, the same having been recorded the same day ; held, — 46. "The defendant held her dower interest in the property, and a life-estate by homestead in the south haif or improved portion of it. She was seized of that life-estate, and therefore C. D. (the son) did not die seized of it, and the plaintiff could have no dower in it." 374 PROBATE AND GENERAL LAW, CODIFIED 47. "C. D. had the same right to convey the fee before as after the marriage. It must be the expectation of present possession and enjoy- ment that is defeated. Her ^plaintiff's) dower in the homestead was not defeated by the deed, for she could have none in it. 48. The defendant had dower in the unimproved portion of the prop- erty. That would leave to the plaintiff one one-third dower interest in tworthirds of that." 49. "The homestead descended to the defendant as a freehold estate for life, and on the death of W. D. (her husband) she became seized of it in fact and in law. Sec. 2271. (Citations.) 50. This homestead estate' of the defendant excludes the possibility of the plaintiff 's dower in those lqts. See. 2159. It is an estate in possession and actual occupancy in one alone for life, inconsistent with dower in another person. Browning v. Harris, 99 111., 456 ; Hafer v. Hafer, 33 Kas., 449". 51. "It is her (plaintiff's) dower right only that she lost by this ante- nuptial deed, and that is all she could recover in this case, under any cir- cumstances," recovery here being denied. 52. "The reasonable doctrine seems now to be well established that the deed is not necessarily fraudulent if not disclosed to the intended wife, but that the facts and circumstances may be taken into considera- tion as to whether a fraud was actually intended." —Dudley v. Dudley, 76 W. 567, 575. 53. Where the widow, sole devisee, elects,, "the will immediately became inoperative as to the real -estate (including the homestead), the title of which at once upon such election, if not upon the testator's death, became vested in the heirs, subject to the mother's right of dower (and homestead) and the payment- of the testator's debts". 54. ' ' And she could take free of :claims for unsecured debts her dower estate in the remaining real estate'', aside from her homestead rights. Melms v. Pfister, 59 W., 186. See also Widow. —Melms v. Paibst Brewing Co., 93 W., 140, 146. 55. "Where a married woman joins with her husband in a lease and he dies during the term, she is entitled to be endowed of the rent. Her- bert y. Wren, 7 Craneh., 370". So held as to a ninety-nine year lease. —Ludinffton v. Pattern, 111 W., 208, 261. 56. "An outstanding inchoate right pf dower is an incumbrance on land", (Wright v. Young, 6 W., 127), 57. And "is such an interest in land as will enable the wife to bring an action to remove a cloud thereon ", under sec. 3186. (Cases). 58. "Where a wife simply joins her husband in a deed of his land, which deed is fraudulent and void, as to creditors, her right to dower is revived as against such creditors or their assigns when such deed is set aside. (Many citations) ". DOWER 375 59. So held and applied, though the wife "became an active- par- ticipant in" the fraud. —Huntziclcer v. Crocker, 135 W., 38, 40. 60. "Our Statute gives a widow dower in all lands of which her husband was 'seized of an estate of inheritance' at any time during coverture. 61. By 'seisin' is meant a fixed vested right of enjoyment of the estate either immediately or at the termination of an intermediate estate. 1 Wash. Real Prop. (6th Ed.) § 116. 62. At common law there was no dower right in a reversion or remainder after a free-hold estate, unless the free-hold estate terminated during the life of the husband; 63. But there was dower in a reversion or remainder after an estate for years. lb. § 365. '64. At common law, also, there was no dower in an equitable estate. The husband must have had legal title. lb. §374. i; .: 65. In England and in many of the United States this latter rule has been changed by statute, and dower given out of equitable estates. lb. § 375. 66. Our statute, however, says nothing of equitable estates, and doubt- less is to be regarded as simply giving dower out of legal estates, as was the case at common law. Sec. 2159; (citation)". 67. Bower is allowed in a ' 'vested ' ' estate subject to a trust for years. See Vesting op Estates, etc. --"Witt of Prosper, 140 W. 92, 96. 68. Recognizing Will of Pr>asser, 140 W. supra, it is nevertheless held that "where the husband dies seized of the full equitable title and the owner of the whole beneficial interest, with only the mere legal title, out- standing in a person having no duty to perform in respect to the prop- erty, as in this case, but to convey it to; the, equitable owner, 69. The estate is to all intents and purposes a legal estate, — an estate of inheritance, within the meaning of the statute, in which the wife is entitled to dower". 70. And the widow "with her children in possession" "may retain such possession by virtue of sec. 3872, without having such dower, as- signed ' ' ; and likewise by reason ' ' of her homestead right ' '. 71. So held, where the husband had no paper title whatever, but was in possession and had made improvements, in compliance with "all the conditions of the gift" of the grantor. ,_•/■• ., ,: —Hurley v. Harley, 140 W. 282, 288. 72. A married woman living separately from her husband, held es- topped from claiming dower where she had acquiesced in a void marriage of the husband to another woman. See Estoppel. — H. W. Wright L. Co. v. McCord, 145 W. 93, 104. ,376 PROBATE AND GENERAL LAW, CODIFIED 73. While the dower interest cannot be reached by the deceased hus- band's creditors, the curtesy interest is subject to the payment of the deceased wife's debts. See also Curtesy. —Scktnidt v. Raymond, 148 W., 271, 273. 74. The value of the wife 's inchoate dower computed and withheld on specific performance of land contract which she did not sign. See Land Contract. —O'Malley v. Miller, 148 W., 393, 394. 75. In Ligare v. Semple, 32 Mich. 438, "the court holds that a wife who is a non-resident of the state at the time the husband makes an absolute conveyance of land, divesting himself entirely of his seizin and estate, has no right of dower under the statutes of Michigan", from which our statute, sec. 2160, "was taken". 76. "We think it clear that the doctrine laid down in Ligare v. Semple, supra, is the correct doctrine and rules the instant case". 77. "So far as" Bennett v. Harms, 51 W. supra "holds that the non- residence intended by the statute is at the time of the death of the husband the case is overruled". ' "We think the 'residing out of the state' mentioned in the statute refers to the time of the conveyance". —Ehegren v. Marcotte, 159 W. 539, 541. 78. Where "it was neither proven nor found that" the wife "knew the improvement" "was being made or that she consented thereto", it is held "the mechanics lien statute was" not "intended to reach an inchoate dower right and cut it off" in such case. — W. E. Pipkorn Co. v. Tratnik, 161 W. 91, 96. DRUNKENNESS. See Incompetents. DURESS. •See Unlawful Contracts. ELECTION. See Remedies. Widow. EMANCIPATION. See Parent and Child. 1 EMINENT DOMAIN. See Condemnation. ' ENTIRE CONTRACTS ENDORSEMENT. See Promissory Notes, etc. 377 ENTIRE CONTRACTS. Absent for short time, 6. Continuation services, 15. Eoth parties to act, 16. Defined: as to payments, 18. Difficulties arising^ 23. Election of remedies, 27. Exeusal of performance, 2, 3, 4, 10. Prevention for cause, 17. Unexpectedly impossible, 23. Unseasonable service, 13, 14. Wrongful discharge, 25, 26. Future commencement, 21. Statute of frauds, 21, 22. Payment : refusal of part, 8. At stated periods, 18. End of period, 9. Performance: general rule, 1, 17. Act of God, law, party; 2, 10. Eecovery quantum meruit, 4. Sickness or death, 3. Personal services, 3,. 5. Sickness of wife, 5. Quantum meruit^ 4. Contract being void, 22. Refusal to pay part, 8. Wrongful discharge, 25, 26. Sale contracts, severable, 28. Absence of intention, 29. ' " Special contract for work, 11, 12. Statute of Prauds, 21, 22. Violent storm destruction, 24. Void in part, 7. Realty and personalty, 30. Statute of Prauds, 21. Waiver: receiving back, 6. Consent to discharge, 19. Letters as evidence, 20. Of remedies, 27. Wrongful discharge, 25, 26. 1. "The general rule doubtless is, that when a contract is entire, operating as a condition precedent, it is necessary for a party to show full performance on his part before he can maintain an action upon it. ' ' 2. "The authorities, however, recognize certain exceptions to the rule, as where the performance has been rendered impossible by the act of God, by the act of the law, or by ,the act of the other party". 3. "And where the act to be performed is one which the promisor alone is competent to do, the obligation is discharged if he is prevented by sickness or death from performing it. (Cases)." 4. "In other words, sickness or death is generally regarded as an act of God in such a sense that it excuses ,the; non-performance, and a re- covery is allowed upon a quantum meruit". ,; 5. In this case the services were to be that of a husband and wife for a year, "he upon the farm and she in the house, for $300". Held, to be an entire contract for personal services, and that upon the wife stopping work at the end of about four months to be confined that "the sickness, or anticipated sickness, of the wife furnished no excuse for the failure to perform the contract", and that "the case does not come within the reason of the rule that sickness excuses". — Jewnmgs v. Lyons, 39 W. 553, 556. 378 PEOBATE AND GENERAL LAW, CODIFIED 6. Where "an employe for a fixed period", "absents himself for & short time", his employer waives the right to forfeit, where he receives the employe "back into his service without objection". See -Services. — Bast v. Byrne, 51 W. 531, 535. 7. "The whole contract, being entire and indivisible, falls to the ground", the part as to oral realty sale being void. See Quantum Meruit. — Clark v. Davidson, 53 W. 317, 321. 8. Where the contract was that the plaintiff's "son was to work on the farm of the defendant six months from April 1st for $16 per month", and "the son worked under this contract for four months only, and then left the service of the defendant solely on the ground that the defendant refused to pay him for such four months, or from month to month," this was held to be an entire contract, and plaintiff was not entitled to recover quantum meruit, or otherwise. 9. The contract "was an entirety, and no recovery could be had with- out proof of full performance, or performance excused, and the com- pensation was to be paid only* at the end of the six months, on full performance by the plaintiff". 10. No recovery could be had on the contract without showing, "that the son left the service of the defendant, not because he refused to pay him from month to month, but by the fault of the defendant in some other way, or by the act of God, and by such act of God as the plain- tiff could not have reasonably anticipated when he entered into the con- tract". (Authorities discussed): p. 470. —Diefenbach v. Stark, 56 W. 462, 463. 11. A special contract to work "for the period of seven months from April 8, 1881, for the sum of $14 per month", is held to be entire. 12. "Being entire, the plaintiff could only recover upon showing full performance on his part, or some valid excuse for non-performance. Jennings v. Lyons, 39 W. supra; Diefenback v. Stark, 56 W. supra". 13. A request to perform "unseasonable service would not of itself justify the servant in quiting the employment. 14.' Nor would the refusal to perform such unseasonable service justify his discharge." —Koplitz v. Powell, 56 W. 671, 672. 15. "Where one serves under a contract for an entire year, and con- tinues his services into the next year without any new arrangement, it will be presumed that both parties consent to the continuance of the service for another year" on the same terms. 16. The contract ' ' could not be changed by one of the parties without the consent of the other". — Dickinson, v. Norwegian Plo>w Co., 101 W., 157. Entire contracts 379 17. "The rule that' an action cannot he maintained by an employee upon an entire contract without first fully performing on his part, does not apply where such performance is prevented by the employer, though such prevention be for cause". Diefenback v. Stark, 56 W., 'supra; Mechem, Agency, 635. Contra : In England. 18. "The rule in England and this country is thus stated by Wood on Master & Servant, at sec. 84: 'If the contract is for a term, although the rate of compensation is at so much a day, week, or month, yet if the contract is silent as to the time of payment, it is entire and indiyisible, and full performance must precede the right of recovery', in the absence of circumstances showing that the contract was not under- stood by the parties as entire". Cases discussed, and rules stated. ' —Hildebrcmd v. American F. A. Co., 109' W., 171, 178. 19. Where the employe was discharged before the completion of an alleged binding contract for a three-year term, arid subsequently made a claim for wages for the balance of the term,' but ' ' consented to the termination of his relations with defendant (employer) when he was dis- charged", he is not entitled to recover. •..■■■. •••,<■• - v : : -,■ 20. Letters written subsequent to his discharge, and before the 1 end of the term were held properly received in evidence as admissions, on the acquiescent termination of the employment. — Bell v. Gund, 110 W., 271, 272. 21. An oral contract to work for a year for a definite sum, to begin at a date subsequent' to the making of the contract, is void under sec. 2307, and "a part performance did not relieve the difficulty", furnish- ing no ground either for action or defense. 22. " ' In such case the parties must stand as though no express con- tract was made, and the plaintiff may recover upon a quantum meruit for the work done 'upon an implied promise of the defendants to pay what the services are reasonably worth.' Salb v. Campbell, 65 W., 405; (other eases. See Quantum Meruit) ". ', — Draheim v. Evison, 112 W., 27, 29. 23. "He who contracts to perform an entire work at an entire price can recover no compensation without completion of the work, although it becomes unexpectedly difficult, or even impossible, without fault of the other party. (Many cases) ". 24. Where under an oral contract to build a barn for a given sum. the owner to furnish the materials, the barn when partly completed is destroyed "by an extraordinarily violent storm "; and was rebuilt and completed, without a new contract as to price, recovery pan be, had only for the original sum, — the case being distinguishable from one to "merely do work upon the building belonging to the other party". 1 —Vofft v. Hecker, 118 W,, 306, 308. 38,0 PROBATE AND GENERAL LAW, CODIFIED 25. An employe under an entire contract, wrongfully discharged, can "declare the contract rescinded, and recover upon quantum meruit for any services actually rendered; 26. Or bring his action at any time before or after the expiration of the prescribed period of service fixed by the contract for the damages actually resulting to him from the breach". 27. "He was required to elect which remedy he would pursue, and whichever one he adopted was in itself a waiver of the other. ' ' ( Cita- —Ornstem v. Yahr <% L. D. Co., 119 W., 429, 434. 28. "Contracts for the sale of goods like the present", — "a quantity of gloves of different kinds at "fixed prices", — "which are naturally severable, will not be held entire contracts, 29. In the absence of express or implied provision to that effect in the contract, qr persuasive circumstances showing the intention of the parties to make it entire ' '. —Nat. Kntitwg Co. v. Boutm& G. Co., 141 W. 63, 65. 30. As to part performance as to the realty of a void entire contract for the sale of realty and personalty, entitling performance of the whole. See Pkauds, Statute op. Parol. Specific Performance. — Kipp v.' Lawn, 146 W. 591, 597. EQUITABLE CONVERSION. Date of death, back to, 3, 17. Deprive of vested rights, 38. Discretionary authority, 13, 22. "As soon as practicable", 14. General purposes, 20. Void in- part, 19. Implied conversion, 9. Apparent ^Erom will, 11. Express and implied, 29 Necessary implication, 12. Plan or purpose fails, 16. Treated as though done, 10. Mandatory : not in power, 2. Execution difficult, 24. Express or implied, 23. Sale intended, 2. Money for all purposes, 17. Though not necessary, 18. Phrases construed: "As soon as practicable ' ', 14. Distributed as money, 28. Division after decease, 26. Invested in fund, 21. Phrases construed — continued. "Pay from time to time", 30. "Payment", use of, 25. "Pay over and deliver", 1. Property "put on interest", 27. "Within five years", 15. Void devise, 15. Principle of doctrine, 4. Devise with direction, 5. Money with direction, 5. Perpetuity statute, 7. Taking place at death, 6. Really a fiction, 34. Deem done which ought, 36. No real conversion, 35. Not in fact become so, 37. Eealty ; with personalty, 8. Trust for masses, 31. Unnecessary to carry out, 33. Though if necessary, 32. Void: devise, 15. Particular purposes, 19. Part of general, 20. ( . , < EQUITABLE CONVERSION 381 1. A general power of sale, with the term ''pay over and deliver" used as to the distribution, is held to imply an equitable conversion. 2. "When a will contains a power of sale, not mandatory in terms, but it is apparent from the general scope and tenor of the will, that the testatpr intended all his realty to be sold, the power of sale will be held imperative, and the doctrine of equitable conversion applied. 3. Courts of equity will deal with the estate as personal from the death of the testator. Chandler's appeal, 34 W. 505 (See Construc- tion of Wills) ; Dodge v. Pond, 23 N. Y., 69 ; Craig v. Leslie, 3 Wheat. 563". See also Charitable Trusts. Construction op Wills. —Dodge v. Williams, 46 W. 70, 97. 4. "The principle on which the doctrine of (equitable) conversion rests is that whatever, in a will or other instrument, is directed or agreed to be done, is in equity considered as actually performed. (Cases). 5. A conversion may take place where, by a will, land is devised or money given to a trustee, with directions in the one case to sell the land and pay over the proceeds to the beneficiary, and in the other, to invest the fund in the purchase of land to be conveyed to him. (Citations). 6. The general rule is to date the conversion in these cases as taking place on the death of the testator, unless there is something special, in the power of sale making its exercise or performance depend on the hap- pening of some event or contingency to arise subsequently, or on the discretion of the executor or trustee to sell or not,, 7. But under our statute the execution of the power cannot be made to depend on any event which might possibly carry it beyond" the limita- tion of the statute of , perpetuities. , ..(Cases). — Be Waif v. lawson* 61 W. 469, 478. 8. Where a will authorizes executors as trustees to purchase real estate "with the proceeds of the personal property, it would seem that the real estate so purchased must be treated as real estate after it is so purchased". N. Y. cases, and Dodge v. Williams, 46 W. supra. — Scott v. West, 63 W. 529, 558. ' 9. Where, except, as to a few specific bequests, "the will treats the .entire estate as personal property", "the direction to so pay in money gave to the executors, by necessary implication, the authority to convert all real estate not so specifically devised into money. Dodge v. Williams, 46 W. supra; Scott v. West, supra; Going, v. Emery, 16 Pick. 107. 10. Such real estate, therefore, must be treated. the same as though it were personal property, on the doctrine of equitable , conversion. (Cases)". See also Charitable Trusts. — Webster v. Morris, 66 W. 366, 399. 11. While it has, been held that the direction must be positive and direct, .'« the better, opinion seems to be as in effect held in Dodge v. 382 PROBATE AND GENERAL LAW, CODIFIED Williams, 46 W. supra, that whenever a direction to convert is apparent from the whole will, whether expressed or implied, then the duty and obligation to convert is imperative, and the doctrine of equitable conver- sion applies. (New York cases)." 12. "But the will must, in terms or by necessary implication, disclose an intent to convert, in order to sustain the theory of equitable conver- sion. Hobson v. Hale, 95 N. Y. 605". , 13. Where a discretion is given to either sell or use for other purposes, ' "this mere discretionary authority can in no sense operate as an equitable conversion, — certainly not until an actual conversion should in fact occur". 14. But a ' ' direction to so convert is not prevented from being impera- tive by adding 'as soon as practicable after' his death, and thus giving some discretion as to the time or times of such conversion ' '. —Ford v. Ford, 70 W. 19, 47. 15. Where a will directs "the executors to dispose of the testator's real estate within five years after his death ' ', though part of such realty is covered by a void devise, "the doctrine of equitable conversion will (therefore) apply, as laid down in Dodge v. Williams, 46 W. supra. The property will be treated as personal property from the death of the testator. ' ' -^Milwaukee Protestant Home v. Becker, 87 W. 409, 414. 16. Equitable conversion is not implied when the particular "plan or purpose fails". See Power. — McHuffhv. McCole, 97 W. 166, 175. 17. A direction to convert the real estate into money for all purposes, "worked ah equitable conversion" of the realty into personalty to be treated as such "in law and in effect, as of the date of the death of the testatrix." 18. "As said in Given v. Hilton, 95 U. S., 591, the blending of real estate and personal property in one fund for all the purposes of the will is generally regarded as evidencing intent that the whole estate shall be treated as personal property even though a necessity therefor does not exist, but such evidence is not conclusive on the question." 19. When the direction for conversion is "in aid of a particular" but void purpose, as in MeHugh v. McCole, 97 W., supra, the doctrine of equitable conversion does not apply. 20. But when, as "here, the general scheme of the testatrix was to distribute her estate as personal property," and not merely for "a par- ticular purpose named, which failed," equitable conversion will still prevail. See also Charitable Trusts. —Harrington v. Pier, 105 W., 485, 491-6. 21. Realty "to be invested in a fund" for prescribed purposes, "amounts to a direction to convert" into money. See also Charitable Trusts. —Hood v. Borer, 107 W. 149 152. EQUITABLE CONVERSION 383 22. Quoting approvingly Dodge v. Williams, 46 W. supra,, it is said : "A mere optional or discretionary purpose to convert— that is, discre- tionary authority as to whether to convert or not — is not sufficient. 23. There must be a mandatory direction, express or implied, to con- vert; but the time of the execution of the purpose may be left, dis- cretionary. ' ' 24. "When the execution of the scheme" is impossible, or unreason- ably difficult without conversion, then "a direction for such conversion will be deemed imperatively expressed in the will by necessary implica- tion, to the same effect as if expressed in words". 25. "Significant use of th« word 'payment' ", "has/uniformly been regarded as indicating a purpose that realty shall be f administered as personalty. ( Cases, supra, et al) ". . —Becker v. Chester, 115 W. 90, 117, 123. 26. Division after death of wife, and provision in ease of decease of a remainderman, and no provision for sale, held' an implied equitable eon- version. See Vesting of Estates. — In re Albiston's Est., 117 W. 272, 274. 27. Where the will provides that 'all my property shall be put on interest', and 'the interest of my property shall be paid annually', — "the doctrine of equitable conversion applies", 28. And ' ' the testator expressly or by necessary implication directed his estate to be administered and distributed in the form of money. (Cases, supra)." 29. "Moreover", "the will could not be executed without treating the property as personalty, therefore "" such express direction is rein- forced by an implied one". See also Trustees. —Benner v. Mauer, 133 W., 325', 329. 30. Trustees 'discretion to pay from time to time' until it 'is all paid' to the cestui que trust, held to imply and necessitate conversion for pur- poses of descent. See Vesting op Estates, etc. —Williams v. Williams, 135 W., 60, 67. 31. As to equitable conversion applying to a trust of real estate given for masses. See Charitable Trusts. — Will of Kavanmpk, 143 W.- 90, 102. 32. While "the whole estate may be regarded as equitably converted into personal property", "if the, scheme of the will could not reason- ably be carried out" otherwise (Becker v. Chester, 115 W., supra), 33. Yet, where it is not "necessary to dispose of any of this real estate in order to discharge the specific legacies, etc.," "the fiction of equitable conversion cannot be indulged in,' especially in the absence of, 384 PROBATE AND GENERAL LAW, CODIFIED any definite provision in the will looking in that direction". See also Vesting op Estate, etc. —'Will of Stark, 149 W., 631, 654. 34. ' ' The doctrine of equitable conversion is really a fiction by which, for certain purposes, the most frequent of which is to carry out the pur- pose, of a testator, realty will be treated as personalty. 35. It has been well said that ' it should never be overlooked that there is no real conversion ; the property remains in fact realty or per- sonalty as it was, but for the purpose of a will, so far as it may be necessary and only so far, it is to be treated in contemplation of law as if it had been converted'. Yerkes v. Yerkes, 200 Pa. St., 419." 36. Where "the law would not or could not carry out" a trust in a will as to realty, but could as to personalty, "the law will, in order to effectuate the purpose of the testator; deem that done which ought to be done and treat the property devised as personalty even before its actual conversion. Dodge v. Williams, 46 W. (and other cases) supra. 37. But the real estate does not in fact become personal property until its actual sale and conversion into money". 38. "The doctrine of equitable conversion is not to be invoked to deprive persons of vested rights". See also Homestead. —Foote v. Foote, 159 W. 179, 183. See Lien. EQUITABLE LIEN. EQUITY. See also Circuit Court. Concurrent Jurisdiction. Fraudulent Orders. Jurisdiction. Laches. Mistake. Reformation. Specific Performance. Accounting, 21. Discovery necessary, 34. Actions : law and equity, 5. Equity nbt enlarged, 6. Forms only abolished, 5. Inherent differences remain, 5. Legislature cannot affect, 7. Adequate law remedy, 36. Construe will: ejectment, 39, 52. Decide land recovery, 40. Failure to object, 38. Must be as efficient, 49. Objection by answer, etc., 37. Objection by demurrer, 43. Objection seasonably taken, 41. Objection waived, 42. Time, expense, multiplicity, 50. ' All-pervading principle, 55. Amendment: law to equity, 56. Charitable trust, 21. Condition: subsequent, precedent, 48. Construe wills: trust power, 51. Not legal rights only, 39, 52. Contract: meeting of minds, 44. Not on terms expressed, 45. County Court jurisdiction, 20. Co-extensive in estates, 20. Enforce oral bequests, 20. Party misled by court, 35. Set aside probate, undecided, 19, 22. Demurrer: ore tenus, 36. As to law remedy, 37. Enjoin: sheriff's sale, 24. Apply in same suit, 33. Not in another suit, 32. Not other equity process, 31. EQUITY 385 Forfeiture relief, 48. Gross laches, 10, 22. Improvements: title failure, 4. Jurisdiction; secure, 7. Trust gives construction, 51. Jury, when to try, 26. Court decides whole case, 30. Court may adopt, 28. Particular, issues, 27. Set aside verdict, 29. Law judgment relief, 2. Lost or destroyed will, 13. Natural justice, 3. Not limited to set rules, 12. ^Rescission of deeds, 23. Settlement of estates, 47. Jurisdiction taken, when, 47. Title: present and future, 53. In being, not in being, 53. Tried by the court, 25. Court decides whole case, 30. Issues by jury, when, 26. Unadministered assets, 46. Unreasonable delay, 11, 22. Vacating judgments, 1. Void administrator's sale, 4. Purchaser's improvements, 4. Will construed, at law, 39. Will probate : setting aside, 8, 13, 15, 17. Any probate fraud, 18. County court's power,' undecided, 19. Exclusive- in county court'/ 9, 16, 19. > Fraudulently obtained, 8, 9, 14. Unreasonable , delay, 11, 22. "With clean hands", 54. . 1. The same rules in "actions at law or in equity" are applied in the vacation of judgments. See, Vacating Judgment., —Mtna Life Ins. Go. v. McCormick, 20 W. 265, 268. 2. The rule stated, when equity "will relieve against a judgment at law." See Fraudulent Orders. — Siowell v. Eldred, 26 W! 504, 507. , . ' , . > •■ - 3. "The question is not alone, What, is the natural and inherent jus- tice of the case? but it is, are the principles and rules of equity juris- prudence, as recognized and enforced by courts of equity, sufficiently broad and comprehensive tp reach the ; case?" Lyon, J. 4. In a void administrator's sale of realty "perhaps the leading case on the question", is Bright v, Boyd, 1 Story 478, where Justice Story "held the broad doctrine-, that 'a bona fide purchaser for a valuable consideration, without notice, of any defect in his title who majkes im- provements and meliorations., upon the estate, has a lien or charge there- upon for the increased value which, is thereby given to the estate beyond its value without them, and a court of equity will enforce the lien or charge against the true owner, who recovers the estate in a suit at law against the purchaser'." See also Sale of Realty. — Blodgett, v. ' Hitt, 29 W. 169, 183. 5. "We observe, what all the, adjudications since the enactment of the code maintain, that although the distinction between actions at law and suits in equity, ;and the forms of all such, actions and suits, hereto- fore existing, are abolished, yet this only relates to the forms of action, and does not touch or affect their inherent qualities and differences, Which, from the nature of things are unchanged and unchangeable, "i 6. "The change i in the form of; the action , has not changed, the nature of the action itself.. It has not enlarged the jurisdiction of equity, nor abridged that of the law. " Zimmerman — 25 386 PROBATE AND GENERAL LAW, CODIFIED 7. Under "the provisions of the constitution of the state"', "it has been repeatedly held by this court to be incompetent for the legislature to take from the original or primary jurisdiction of equity and give to the law, or to do the reverse. ' ' —Deery v. McCUntock,. 31 W. 195, 202. 8. The court, while conceding that numerous authorities sustain the view that "a court of equity has no power to relieve against the judgment or order of the probate court admitting the will to probate, although the same was fraudulently obtained,-' does not decide the question. 9. It is stated also that Judge Story sustains the view given, and that "in Gaines v. Chew, 2 How. 619, it is said: 'In cases of fraud, equity has concurrent jurisdiction with a court of law ; but in regard to a will, charged to have been obtained through fraud, this rule does not hold. It may be difficult to assign any very satisfactory reason for the excep- tion. That exclusive jurisdiction over the probate of wills is vested in another tribunal, is the only one that can be given'/' 10. "A court of equity will never entertain a" bill for relief, even in cases of assented fraud, if the plaintiff has been guilty of gross laches or unreasonable delay". 11. And.it is held that the plaintiff was "guilty of .unreasonable delay ' ', having had notice of probate, and of various subsequent proceed- ings, and' noli beginning her action "until nearly five years had elapsed;" though the court finds also that the testator (plaintiff's husband) did not have testamentary capacity at the making of the' will. —Holden v. Meadaivs, 31 W. 284, 289. 12. "Equity does not limit itself by set rules nor by precise definitions, particularly in matters of fraud". See Fraud. —K'welkamp v. Hidding, 31 W. 503, 508. 13. Equity has jurisdiction to establish a lost or destroyed will, though probably not to set aside the probate of one fraudulently obtained. See Lost Wild. —Hall V. Gilbert, 31 W. 691, 694. 14. " In the' present state of the authorities' it is believed that no such claim can be made successfully", to-wit, "that equity has jurisdiction to set aside a will fraudulently obtained, after the same has been ad- mitted to probate by a competent court". 15. A court of equity has no "power to set aside the probate of a will where such probate has been obtained by fraud", in which "the fraud charged consists in concealing the fact that the will was obtained fraudulently ; hence, if it was not so obtained, there could have been no fraud in procuring the probate thereof". 16. ' ' Before the court can adjudge that there was fraud in procuring the probate of the will, it must adjudge that the will was fraudulently obtained^ This, as we have seen, a court of equity has no power to do, such power being exclusively in the probate court". EQUITY '••. 387 17. The court in referring, to "Barnsley v. Powel,i 2 Vesey, Sen., 284> decided in 1749,'' as the "single ease" in which this was: done, states that unlike that case, ' ' we find in the present case no grounds ■ distinct from the will itself for the exercise of the jurisdiction of a court of equity". 18. The court does not decide whether equity would take jurisdiction in any case of fraud in the probate, such fraud not involving the ques- tion of the fraudulent obtaining of the will itself. 19. Nor does the court "decide that the county court has power to set aside the probate of this will" because of fraud in the probate thereof, though Dixon, C. J., in a concurring opinion acquiesces in the decision of non jurisdiction "only on the ground that the plaintiff has adequate" remedy by application to the probate court to open or set aside the- decree admitting the will to probate. ' ' — Archer v. Meadows,. 33 W. 166, 169. 20. "The jurisdiction here conferred (Sec 2443) is co-extensive with that possessed by any court of equity or of law in a case of this descrip- tion, which clearly relates to the settlement and distribution of the estate of the testator ' ' ; relating to a trust to enforce oral bequests by the testator to be paid by a residuary legatee. See also Jurisdiction. Prayer for Relief. — Brook v. Chappell, 34 W. 405, 413. 21. "Account is an ancient and familiar branch of equitable jurisdic- tion." Equity has jurisdiction of a charitable trust.- See. Charitable Trust. v — In re Taylor Orphan Asylum, 36 W. 534, 543. 22. In a proceeding in the probate court to set aside the probate of the will (Hoi den v. Meadows, and Archer v. Meadows, supra), the court does not decide ' ' the question of power in the county court to grant the desired, relief", but holds that the proceeding should have been dis- missed because the petition discloses "laches fatal to this proceeding". — In re Est. of Holdeii: Meadows' Appeal, 37 W. 98, 104, 107. 23. Equity has jurisdiction of rescission of deeds, etc., which "is the converse of a specific performance." See Bond for Maintenance. —Bogie v. Bogie, 41 W. 209, 217. 24. Equity will enjoin a sheriff's sale to prevent a cloud on the title. See Title. —Goodell v. Blumer, 41 W. 436, 442. 25. "In all equitable actions the ease must be tried by the court, and, before judgment can be entered, the court must find that all the facts necessary to entitle the plaintiff to a judgment have bqem established by the evidence. 26. If either party desires that any issues of fact which have been made by the pleadings should be tried by a jury, and the judge deem such issues proper ones to be submitted to a jury in order to aid him 388 PROBATE AND GENERAL LAW, CODIFIED in -the determination of the same, he may direct them to be so tried ; or the judge may upon his own motion, direct cey tain issues to be so tried. 27. In every such case, the particular issues which are to be tried should be fixed and agreed upon before the jury is called. The jury then try only the issues so submitted, and not the whole case. 28. When the jury have given their verdict, the case is then to be taken up by the court ; and if the court is then satisfied with the deter- mination ;of the jury upon the issues submitted to them, he adopts their findings as to such issues. 29. If he is not satisfied with the findings of the jury, he may, either upon the application of a party or of his own motion, set aside such verdict and submit such issues to another jury ; or, if he is satisfied that no aid will be obtained by such further submission, he may proceed to decide the issues without any further intervention of a jury. ' ' 30. After the verdict and after testimony on other issues, if any, then the court upon all the testimony, "including that given upon the trial of the issues by the jury, disposes of the whole case, and, by written findings of fact and conclusions of law, decides all the issues, and directs the clerk to enter the appropriate judgment." —Staid v. G&tzenberger, 45 W. 121, 123. 31. ' ' One court of equity will not enjoin the process of another. One suit in equity will not lie to enjoin process issuing in another. 32. The objection is fatal, whether the second suit be brought in the same or. in another court, by a party or by a stranger to the firs,t suit. 33. The proper course by _ either party or stranger to the first suit, is to apply by petition for relief in that suit". —Endter v. Lennon, 46 W. 299, 300. 34. "Whether the accounts between the parties are mutual or not, where a discovery is a necessary part of the acocunting, as in this case, the jurisdiction of the court of equity is unquestionable" notwithstand- ing Sec. 4096 as to discovery. — Schwickerath, Admx. v. Lohen, 48 W. 599, 601. 35. "The equitable powers of the county court to relieve a party misled by itself, seems to be ample. Brook v. Chappell, 34 W. supra" and other cases. — Gardner v. Est. of Callaghan, 61 W. 91, 96. 36. In an equitable action, where the defendants answered to the merits, and at the trial "objected to the introduction of any testimony" because a cause of action was not stated, "the demurrer ore tenus does not go to the point that the plaintiff has an adequate remedy at law, but only raises the question, Does the complaint state a cause of action in equity? We have seen that it does. . 37. It has frequently been held by this court that in, matters of equitable cognizance the objection that the plaintiff has an adequate remedy at law must be taken by demurrer or answer. EQUITY 389 38. If the defendant answers to the merits without making the objec- tion, it ceases to be available to him. In such case the court will adjudge on the merits of the action, without regard to the fact that there is also an adequate remedy at law. (Cases)". —Sherry v. Smith, 72 W. 339, 342. 39. In a suit in equity to construe a will (after settlement of the estate), where a demurrer was interposed "that the plaintiff had an adequate remedy at law", and' for dismissal, the circuit court overruled the demurrer, and such ruling reversed on appeal, on the ground that the plaintiff has "a full, adequate and complete legal remedy by eject- ment to recover the land which she claims". 40. Both parties claiming title under the will, and the defendants being in possession, "a court of law can determine her (plaintiff's) rights under the will, and decide whether she is entitled to recover the land, as effectually as a court of equity". ■ 41. It is "a well-settled rule that a court of equity will not entertain or exercise jurisdiction where the party has a complete and adequate remedy at law, when the objection to such jurisdiction is seasonably taken. 42. "Where equity can grant the relief to which the plaintiff is entitled, and the objection is not duly taken,' it is deemed waived. 43. But where the objection is taken by demurrer, as here, that the party has a complete and adequate remedy at law, it is held that the objection must prevail. (Many 1 cases) ". ; See also Construction op Wills. — Kelley v. Kelley, 80 W. 486, 488-9. 44. It is a "well-established rule that courts of equity will interfere and grant equitable relief where, in making the contract, 'the minds of the parties did not meet, 45. Or when in the case of a written contract they did not meet on the terms expressed in the writing, but did meet oh other terms, not there appearing'." "The proposition quoted has been sanctioned by this court," in Green Bay & M. C. Co. v. Hewitt, 62 W., 316; Silbar v. Ryder, 63 W., 106, 108 (see Reformation). See also Lusted v. C. & N. W. R. Co., 71 "W., 396 (See Mistake) ; Hagenah v. Geffert, 73 "W., 641. See also Homestead. —Whitniore v. Hay, 85 W., 240, 251. 46. An administrator de bonis non may recover unadministered assets, in the case of a deceased residuary legatee executor. 47. "When the circuit court will, in general, take jurisdiction in the settlement of estates. See Concurrent Jurisdiction. —Meyer v. Garthwaite, 92 W. 571, 573. 48. As to relief from a condition subsequent or precedent, in a deed, from forfeiture. See Construction of Deeds. , —Donnelly v. Eastes, 94 W., 390j 393. 390 -PROBATE AND GENERAL LAW, CODIFIED 49. "In order to exclude the exercise of the equitable functions of the court, it is not enough that there is a remedy at law, but it must be' plain and adequate, or, in other words, as practicable and efficient to the ends of justice and its prompt administration as the remedy in equity. Gullickson v. Madsen, 87 W., 19. 50. Jurisdiction in equity will be sustained when time, expense, and a multiplicity of suits will be saved by it, and the rights of all con- cerned will be settled in one litigation. ' ' 51. "It is by reason of the jurisdiction of the court of chancery over trusts that courts having equity powers, as incident to that juris- diction, take cognizance of, and pass upon, the interpretation of wills. 1 Beach, Mod. Eq. Jur., 210. 52. They do not take jurisdiction of actions brought solely for the construction of instruments of that character, and when only legal rights are in controversy." . Bailey v. Briggs, 56 N. Y. 413; Catlin v. Wheeler, 49 W., 520; (see Concurrent Jurisdiction). , ; , —Miller v. Drcme, 100 W., 1, 4. 53.' The judgment of a court of equity as to realty, acts upon the whole title, present and future, as to those in being, if parties, repre- senting those not in being. See Trust Variations. —Buggies v. Tyson, 104 W., 500, 506. , 54. While, one appealing to equity, must 'come in "with clean hands", yet not literally himself "without fault". See Sale of Realty. .! 55.; "All" equity "rules are subsidiary to the all-pervading major principle, 'Equity opens its doors whenever necessary to prevent fraud and: injustice and where the relief asked conforms to the principles of rectitude and honesty'. Warden v. Fond du Lac Co., 14 W. 618, 620". —Keilly v. Severson, 149 W. 251, 256. t 56. An action at law may now be changed by amendment to one in equity. See Pleadings. — Jilek v. Zahl, 162 W. 157, 161. ERROR, WRIT OP. See Writ of Error. ESCROW. See also Delivery. Agent merely of grantor, 28, 29. Conditions — continued , Agency terminated at death, 30. Future uncertain event, 19. Conditions: deed, 5, 12. May rest in parol, 13. Contained in deed, 15. Mfiraorandum of grantor, 33. '.Future certain event, 17, 18. Proved by parol, 13. ESCROW 391 Consideration unnecessary, 37. Deed contains conditions, 15. Delivery: absolute, 1, 2. Contingent or conditional, 3, 5, 17. Effective double delivery, 32. Oral direction to deliver, 36, 38. Possession and control, 4, 16, 17. Returned on recovery, 27. Through still another, 31. Title does not pass, 19. Title passes, first delivery, 18. To escrow after decease, 34. To husband to grantee, 36. Directions to deliver, 36. ' Disposition of lands, 7. A.t death : three methods, 7. (1) Reservation of life estate, 8, 11. (2) Delivery to third person, 9. (3) Control, effected by will, 10, 11. Escrow: defined, 5. Certain drafts, 25, 26. Deed delivery, 21. Note and mortgage, 20. Understanding, 21. Friend, without consideration, 36. Oral directions to husband, 36. Valid against heir, 37. Future: certain event, 17, 18. Uncertain event, 19, 35. Grantee: not hold deed, 12. Grantee's deed from deposit, 21. Grantor : divest power, 1. Authority and control, 2, 4. Contingent or conditional, 3, 5, Not beyond his control, 27, 28, 29'. Prevent by silence, 26. Until future condition, 3. Husband to wife, 22. Homestead consideration, 23* Subsequent destruction, 24. Note and mortgage, 20. Oral : agreement to sell, 15/ Deed and mortgage, 16. Directions to deliver,! 36, 38, Subject to recall, 6, 14. Subsequent destruction, 24. Through executor,' 33. Title passes: first delivery, 18. Does not pass, 19. Escrow to executor, 34. Grantees deed from deposit, ,21. Grantor 's present deed, : 34. "• ' Subsequent destruction, 24. Trustee of grantee, 21. 1. "To constitute delivery good for any purpose the grantor must divest himself of all power and dominion over the deed. 2. To do this he must part with the possession of the deed and all right and authority to control it, either finally and forever, as where, it is given over to the grantee . himself or some person for him, which is called an absolute delivery; , 3. Or otherwise he must part with all present or temporary right of possession and control, until the happening of some future event or the performance of some future condition, upon the happening or not happening or performance or nonperformance of which, his right of possession may return and his dominion and power over the deed be restored, in which case the delivery is said to be contingent or condi- tional' '. Dixon, C.J. . 4. "An essential characteristic and indispensable feature of every delivery, whether absolute or conditional, is, that there must be a part- ing with the possession, and of the power and control over the deed by the grantor for the benefit of the grantee at the time of delivery". \, 5. "A conditional deed, that is, one delivered conditionally, is not, a deed, but an escrow, a mere writing having the form, pf a deed, but the effect of which depends wholly upon the happening of the conditions or events upon which it is to be delivered to the grantee. If these come to pass it becomes- a deed, otherwise it is a mere nullity". , 6. If as in this case, "the deed is subject to be recalled by the grantor, 302 PKOBATB AND GENERAL LAW, CODIFIED before delivery to the grantee, it is no delivery on the part of the grantor ' ', and conveys no title. 7. "As observed in Cook v. Brown (34 N. H. 460), the owner of land desiring to make disposition of it at his death, has three courses open to him, either of which he may adopt according to circumstances and as will best suit his convenience and intentions;' 8. (1) 'If he desires to convey the same, but not to have his deed take effect until his decease, he can make a reservation of a life estate in the. deed, ; ' 9. (2) Or it may be done by the absolute delivery of the deed to a , third person,' io be passed to the grantee upon the decease of the grantor ; the holder in such case being a trustee for the grantee. (10. (3) But if he wishes- to retain the power of changing the dis- position' of the property at his pleasure, that can only be properly effected by a will. 11. So long as he retains the instrument, whether in the form of a N deed or will, in his power, the property is-his'." — Prutsrnan v. Baker, 30 W. 644, 646. 12. "If the grantor does not intend that his deed shall take effect until some condition is performed, he should keep it or leave it with a stranger"; he cannot' deliver it to the grantee "to remain in escrow". —Lowher v. Connit, 36 W. 176, 184. 13. In case of a deed deposited as "an 'escrow, we have no doubt the conditions' upon which the same was to be delivered" to "the grantee named therein, might lawfully rest in parol and be proved by parol". 14. If the 1 grantor of the deed, "notwithstanding the deposit, retained control of it, it was not" an escrow, "and he might lawfully reclaim it or prevent a delivery to the plaintiff (grantee)'. See Prutsrnan v. Baker, supra." '■ ' ' " '; 15.' "If a person who has made a parol agreement to sell land sign an instrument in the form of a conveyance of such land, to the vendee, and deposit it in escrow, if such instrument contains the terms of the parol agreement, including the consideration, it is a sufficient compliance with the requirements of the statute of frauds". 16. Where the parties "agreed verbally" to the sale and purchase "oil certain terms, which included the execution of a mortgage on the land, by the plaintiff (grantee), to secure the payment of a portion of the purchase money", and the deed was placed in the hands of a third party H. to be delivered to the vendee two days later upon compliance with certain conditions including the giving of the mortgage, and rescinded by the grantor's i directions, and a tender back of the money already paid to the grantor, at the appointed time of completion, it is held, "that there was no valid contract", "for the purchase and sale of the land; that the deed deposited' with H. was not an escrow, but remained under the control of" the grantor; "and that H. properly ESCROW 393 refused to deliver it to the plaintiff (grantee), after suck delivery had been forbidden". ,, , 17. "Where the deed has been delivered by the grantor to a third person with instructions to deliver the same to the grantee on the hapi pening of a future certain event — as the death of the grantor or of some other person-^-, and such conditional ; delivery is 'assented to by the grantee; in such a case, if the grantor reserves no control oyer the deed, he cannot after such delivery recall it, but the grantee is entitled to it upon the happening of the event, although' there is no valid- execu- tory contract to support it. , ,,, 18. The reason of this is, that the first delivery of the deed passes to the grantee the title to the land, and thus relieves him o'f ; the obligation to make title through any contract other than, that expressed in the deed itself", p. 449. 19. "But by all of the authorities a deed so deposited with_ a third person to be delivered to the grantee on the happening of some event in the future which may or may not happen, does not pass title tor the land described in it to the: grantee until such event occurs, and then only from that time, or perhaps from the actual delivery offthe deed, to the grantee after the event has occurred. .' ' . . ; —Campbell v. Thomas-, 42 W. 437, 440, 20. Where a note and mortgage were delivered by defendant to A, "he to keep them until the plaintiff should execute' and ^tender to him her release for damages, and then deliver them to her, ", . is ,held to/be delivered as in escrow, following Trutsman v. Baker, 30 W., supra, quoted. — Schmidt v. Deegan, 69 W. 300, 305. 21. ' ' Where a deed is duly executed and delivered by the grantor to a depositary in the presence of the grantee, and without any reservation of control, with the intention and understanding that such depositary is to retain the custody thereof until the grantor's death, and then deliver the same to the grantee, it is such grantor's deed, in present! from, the time of such deposit, and such depositary thereby becomes the trustee of the grantee. Foster v. Mansfield, 3 Met. 412; (other eases) ". Pruts- man v. Baker, 30 W., Campbell v. Thomas, 42 W-, supra.; , (Approvingly quoted in Wells v. Wells, 132 W. post.) 22. In this case, of a deed from husband to wife, it "is admitted to be good and enforceable in equity,, under the decisions of this court, when based upon a valuable consideration. Putnam v. Bicknell,,18 W.,333; Hannan v. Oxley, 23 W. 519: (cited under Husband and Wipe)." , 23. And this being a homestead, there being no children, "not made to defeat or defraud any one," it is held that the wife's "right to the homestead, in the case ,at bar, furnished, in our judgment, a meritorious consideration for the 'settlement of the same upon her by, way , of the" deed to her from her husband, and by him delivered tp the .depositary as stated". ■,,,■- ■ "'i--*'^' '» ; ' ■ ■■"•' 394 PROBATE AND GENERAL LAW, CODIFIED ' 24. The subsequent destruction of the deed by the husband "did not divest the title which" the wife thus acquired, and her reluctant acquies- cence in this case "must be regarded as having been procured by undue influence, if not by coercion ' '. — Albfighi v. Albright, 70 W. 528, 533. . 25. " To make a good delivery in escrow, the maker must part with the possession and divest himself of all power and dominion over them (certain drafts) ; otherwise there can be no escrow. Prutsman v. Baker, 30 W. supra". t&. Where there were certain drafts deposited with H, an employe Of a garnishee, to hold "until he was ordered by the garnishee to turn them over to tAe defendant, there was no delivery in escrow, because the garnishee retained absolute control over them, and could, by keeping silent, prevent their delivery for all time". ' —Lehigh C. & I. Co. v. West Superior I. & S. Co., 91 W. 221, 225. '"'27. Where a decedent, while ill, made a will giving a life estate in realty- to. her mother, and the remainder to her brother, and afterward, "to save the expense of the probate of said will", executed and gave deeds of like estate to a third person to be delivered by him to the grantees "after I am dead", but she also saying, "if I recover, I want them back again", it is held, as to the deeds, following Prutsman v. Baker, 30 W. supra, and other cases, that, — "no legal delivery thereof has or can be made". 28: "The principle emphasized is that the delivery of the deed not being absolute, or conditional so as to be beyond the grantor's control, and the depositary being a mere agent, the instrument is revocable at any time before the grantor's death, and is therefore a nullity". —Willia'ms v. Daubner, 103 W. 521, 523. 29. Where deeds and bills of sale made in apprehension of death, were left with a depositary, to be delivered after the death of the grantor, but he retaining the right to recover them, the papers are held merely as agents. 30. "Such agency is terminated by the grantor's death, and delivery thereafter to the grantee is unauthorized and of no effect. (Cases, supra) ". —Ward v. Russell, 121 W., 77, 79. 31. Deeds delivered to the wife with the direction by the grantor to 'keep them in your possession as long as you live, arid then give them or deliver them to the boys', "without the knowledge" of the grantees, were, after the death of the grantor eighteen days later, with the knowl- edge of the grantees, deposited by the wife "with the cashier of a bank, with directions to deliver them to the named grantees upon her death", and were so delivered five months later; held, — 32. 'A valid and effective delivery conveying title, and : that such delivery to the depositary is effective "as against the grantor, although ESTOPPEL 395 some condition is imposed, precedent to final delivery to the grantee, which may serve to prevent vesting actual title in him meanwhile, cer- tainly if such precedent event is one sure to happen". (Cases, supra, and others). —Kittoe v. Willey, 121 W. 548, 552. 33. Following Albright v. Albright, 70 W., and other cases, supra, it is held that the delivery by the grantor W. of his deed, "annexed to a written memorandum or direction signed by" him, "to the effect that the same should, five days after his death, be delivered by the executor L. to his son T., or his heirs at law, and that he have possession of the property described therein", and on the envelope "was written at the direction of said W: 'In escrow to L., with directions to deliver as within stated'," and "then in pursuance of his written directions he (L.) delivered the same to the" grantee "as mentioned", — 34. Held, "that upon such delivery to L. the deed became the present deed of W., and that upon the delivery thereof by L. to" the grantee, "the title to all of the real estate therein described became vested in him absolutely and in fee". , — Wells v. Wells, 132 W. 73, 79. 35. ' ' Directions to deliver the deed to Z. when his wife had executed the bond," does not "constitute a valid delivery in escrow." See also Delivery. —Zoerb. v. Paete, 137 W., 59, 65. 36. "Where "there was neither fraud or undue influence", a deed of her realty, executed on the day of her death by the grantor M.,' to a friend D., unrelated, with oral directions to the grantor's husband, "to deliver" "at once after the death of" the grantor, and the delivery was so made and the, deed recorded,, after the decease, it was held valid, and "that the deed was in fact delivered", "within the rule of Wells v. Wells, 132 W., supra." . , ,...,,, 37. "The real estate in question belonging to M., she might, as against'the plaintiff, her heir at law, convey it by deed to D. or to any person as a gift without consideration. (Cases)". See also Trusts. —Schumacher v. Draeger, 137 W., 618, 622. 38. The delivery of a deed to a third person with oral directions to deliver it to the grantee upon the death of the grantor, is a valid delivery, there being 'no reservation or right to recall'. Bates v. Winters, 138 W., 673, (See Delivery). —Klabunde v. Casper, 139 W., 491, 493. ESTOPPEL. Account: more than bill, 5. Admissions: judicial, 24. Of payment, 26. Out of court, 24. Admitted without objection, 25. Agents ' unauthorized act, 29. Beneficial interest in will, 30. Confirms whole will, 31. 396 PROBATE AND GENERAL LAW, CODIFIED Change, of position, essential, 42. County court: enforced in, 7. Doctrine of equitable, 7. Equitable estoppel rules, 14. Constructive fraud, 15. Deception in conduct, 14. Deception in declaration, 14. Gross negligence, ,14, 15. Means not available, 17. Negligence, without fraud, 15. Owner directly apprised, 20, 21. Title known to both, 18. , ,,:True state of title, 17. Title of record, silence, 19. Estoppel in pais rule, 16. Definition of, 43. Executor as guardian, 38. No privity between, 38. Executors and heirs, acts, 9. Attorney's influence,, 10., Defective, probate, 9. Ratified acts, 10. Heir appears and participates, 39. Infant void marriage, 32. ■ [ Fraudulent age declared, 32. Influenced to act, 23, 28. Inventory, failure to object, 35. i Not estopped, as to sureties, 35. Married woman: bounds, 11. , L Direction to sign for her, 36. Married woman — continued Husband marries another, 40. Dower after his decease, 40. Mortgage on homestead, 36. Must be pleaded, 22. Natural justice principle, 27. Oral land surrender, 33. Action necessary, 33. Offer not accepted, 34. Owner: sees property sold, 8. Third person must act, 13. Title claimed by another, 12. Remainderman, proceeds, 41. Deed of fee by life tenant, 41. Representation made, 45. Settlement by heirs, 44. Note, consideration, 44. Title: shown by party, 1. Claimed by another, 12. Gross negligence; 4. Ignorance of true statd, 2. Known to both, 18. ■ < Owner directly apprised,, 20, 21. Record of title, silence, 19. . Third person must act, 13. Wilful concealment, 3. Trustees and heirs; widow, 37. Wards after age, 6. Void realty sale, 6. Widow: rights undisclosed, 37. Trustees and heirs, 37. 1. "It would be most unreasonable to exclude a party from showing his title, because of his participation, without fraud or deception, in a transaction notoriously void, from which it was well linown no legal or equitable right could arise". — Edwards, v. Evans, 16 W. 181, 185. 2. ' ' Oiie essential element in every equitable estoppel, by which a man is to be precluded from claiming what is his own, is that the purchaser and party claiming the benefit of such estoppel should have been ignor- ant of the true state of the title". 3. "Ignorance of the true state of the title on the part of the pur- chaser must doncur with wilful misrepresentation or concealment on that of the owrier". 4. "It must appear that the party to be estopped was acquainted with his title and wilfully concealed or misstated it, or that he was guilty of such gross negligence and indifference to the rights of others as, under the circumstances, to be equivalent to actual and premeditated fraud". —Gove v. White, 20 W. 425, 430. 5. A party is not estopped from recovering more than the amount of a bill presented to his debtor, if he later demands and proves more. See Accounts. — Nauman v. Zoerhlaut, 21 W. 466, 469. ESTOPPEL 397 6. Wards after arriving at age are not "estopped by the unlawful acts of the guardian" in making a void sale of real estate. — Wilkmson v. Filby, 24 W. 441, 445. • ■' * : , 7. "The doctrine of equitable estoppel' may be recognized, and its principles enforced, as well by the county court, as by the court of chan- cery." See Jurisdiction. —Brook v. Chap-pell, 34 W. 405, 412. 8. "Where an owner of property stands by and sees a third party sell it as his own, without asserting his own title or : giving the pur- chaser any notice of it, he is estopped, as against such purchaser, from asserting it afterwards". Vilas v. Mason, 25 W. 310. —McLean v. Dow, 42 W. 610, 614. 9. Where the executors named, being also heirs, took administration under a defective notice of probate, made sales, received proceeds, "and made final settlement with the county court", it having been '"their duty to give the requisite notice" of probate, it is held that they "cannot now be allowed to say that the proceedings were void". See Jurisdic- tion. 10. "And even if they claim that they acted under the direction and undue influence of their attorney E., they subsequently, with full knowl- edge of the facts, voluntarily, fully and finally confirmed and ratified all the proceedings, and are now estopped from questioning them". — O'Dell v. -Rogers, 44 W. 136, 173. 11. " < Whatever may be the rule concerning the formalities needed to bind married women, there is no doubt but that they may be estopped by their deliberate conduct as well as any one else '. Norton v. Nichols, 35 Mich. 148." (Approved in Wright v. MeCord, 145 W. post.) —Godfrey v. Thornton, 46 W. 677, 690. 12. "In order to make it the duty of the owner to break silence and assert his title when another makes claim to it, he must know, or have good reason to believe, that some third person is about to act upon the claim made by such other in a way that he would not, be likely to act if he knew the real state of the title. 13. In such case, if the third person acts upon such claim of title so that he will be prejudiced if the p^arty having the title be permitted to assert it, an estoppeljmay be claimed; against the real owner. Certainly no evidence .short of this can sustain an estoppel as to title in any case." 14. "In Brant v. Virginia Coal & Iron Co., 93 U.S. 326,, The supreme court of the United States use the following language: 'It is difficult to see where the doctrine of equitable estoppel comes in here. ' For the application of, that doctrine there must generally be some intended deception in the conduct or declarations of the party to be 398 PROBATE AND GENERAL LAW, CODIFIED estopped, or such gross negligence on his part as to amount to con- structive fraud, by which another has been misled to his injury. 15. 'In all this class of cases', says Story, 'the doctrine proceeds upon the ground of constructive fraud or of gross negligence, which in effect implies fraud; and therefore, where the circumstances of the case repel any such inference, although there may be some degree of negligence, yet courts of equity will not grant relief'.' 16. This court has adopted the foregoing rule as to estoppel in pais, substantially, in Norton v. Kearney, 10 W. 443, 453 ; Vilas v. Mason, 25 W. 310, 323, and McLean v, Dow, 42 W. 610." 17. Another rule stated in the Brant case, supra, is the following: " 'It is also essential for its application with respect to the title of real property, that the party claiming to have been influenced by the conduct or declarations of another to his injury, was himself not only destitute of knowledge of the true state of the title, but also of any convenient or available means of acquiring such knowledge. 18. When the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there can be no estop- pel'." 19. "The eases in the supreme court of Pennsylvania which are cited by the supreme court of the United States as sustaining this rule, hold that when the plaint jff's title appears of record in the proper office, mere silence on his part, when another makes claim of title to the same with a view to have a third person act upon such claim of title, will not estop the plaintiff from asserting his title against the person acting upon such claim of title to his prejudice. ' ' Knouif v. Thompson, 16 Pa. St. 357. 20. "When, however, the owner is directly apprised of the ignorance of the buyer and of his purpose to act in such ignorance, he cannot claim the benefit' of this principle, because good faith then requires him to speak. 21. This last rule was held in Markham v. O'Connor, 52 Ga. 183, and is, perhaps, a qualification 'of the rule stated in cases cited from the supreme court of the United States and of Pennsylvania, and is more strictly in accord with the decisions of this court also above cited". —Kingman v. Graham, 51 W. 232, 241. 22. "It appears well settled by the decisions of this court, that an estoppel must be pleaded in order to enable the defendant to avail him- self of it on the trial. (Cases) ". —Warder v. Baldwin, 51 W. 450, 459. 23. "It is an essential principle of estoppel that the conduct of a person has been influenced by the statements or conduct of another, and because so influenced he shall be protected and the other estopped". 24. ' ' The principle is elementary that estoppel must rest upon one of these requisites.": That "estoppel by admissions in judicial pro- ceedings" rests "upon the requisites that others are party or privy ESTOPPEL 399 thereto, or influenced thereby, and estoppel by other admissions, upon the latter requisite alone". , —Dahlnum v. Foster, 55 W, 382, 385. 25. Though "no estoppel was set up, in the answer", where the evi- dence "tending to establish that defense was admitted without objec- tion", it is too late to insist that it "was not admissible under the answer. Mowry v. Mosher, 16 W. 48." ;.,,, , ,>,,,,, 26. "It is essential, to create an estoppel, to show ; Jhat the., defendant was induced by the admission of payment to do. something to his preju- dice if that admission .should be withdrawn or contradicted". 27. "The law of equitable estoppel is familiar, and is said to rest on the principles of natural justice and equity. 28. Where a person does ■ or says something to influence .the conduct of another, and that other person acts upon the faith of such a,ct or representations, the former is precluded from, denying its truth to the injury of the latter". — Guichard-v.BraTtde, 57 W. 534, 537. 29. A principal is bound by the act of an unauthorized agent, where he fails to affirm or disaffirm within a reasonable time after notice. See Principal and Agent. , — McWhinne v. Martin, 77 W., 182, 197. 30. Where T. contracted to give by will certain estate to his brother on certain performed conditions, and then devised and bequeathed a different estate, such, will being probated with the acquiescence of the brother who accepted the conditions for twelve years, and then brought a suit in equity on the contract, he was then under these and other facts stated, held estopped from recovery. 31. ' ' The case is governed by the well-established rule in equity that 'a person who has taken a beneficial interest under a will is thereby held to have confirmed and ratified every other part of the same, and he will not be permitted to set up any right or claim of his own, however legal or well founded it may otherwise have been, which would defeat or in any way prevent the full operation of the will'." Bigelow Estop. (5th ed.) 674 —Towle v. Towle, 79 W. 596, 601. 32. "The rule of law is, we think, that an infant, incapable' for want of age to enter into a valid contract of marriage,' is incapable also to estop himself by a fraudulent declaration of his age to assert the inva- lidity of the marriage in an action for the annulment thereof". So held. ' — Eliot v. Eliot, 81 W.; 295, 299. 33. The oral surrender of an interest in a land contract being in question, it is said, that "It is essential to such estoppel that the party to whom such surrender by act in pais or operation of, law is made shall have acted upon the faith 'of it in some material respect. ( Cases) ' '. Here there was no possession to give, nor a written release given. ■ 34. 'The statement by the vendee that he did not want the land and 400 PROBATE AND GENERAL LAW, CODIFIED had 'got to lose' the $100 paid, thereon, and the statement of the vendor that he 'must see about it', made two years before without other action, ' ' was at most a mere offer to relinquish the lot, which was not season- ably accepted," and could thereafter be retracted when attempted to be accepted. — 'Donnell v. Brand, 85 W., 97, 101. 35. Failure of interested parties to immediately object to the inven- tory, though present when it was made, for refusal of the executrix to inventory a mortgage, though claimed to be a part of the estate, is held not to estop them, "as against the sureties on" the executrix's "bond from claiming this money to be a part of the estate", and "no act or omission to act on their part is shown to have been induced by the acts of the residuary legatees". ■ — Murray v. Kluck, 87 W. 566, 571. 36. A married woman is held not estopped, by obtaining the fruits of a mortgage on the homestead, made by the husband under power to sell and her direction to sign her name thereto. See Deeds. '^Mmnesat® S. Co. v. McCrossen, 110 W., 316, 320. 37. Equitable estoppel applied as against trustees and heirs, for fail- ure to inform a widow of her legal rights, on contracting with her for a less share. See Trustees. — Imdington v. Potion-, 111 W., 208, 229. 38. There is no privity between the same person as executor and as guardian. See Insurance; —SMI v. Mutual B. L. I. Co., 115 W., 558, 565. 39. Where an, heir appears and participated in the settlement of the estate, "she is estopped by the court's decrees from raising the question of the irregularity of the proceedings in the county court which are involved in" a collateral foreclosure litigation. (Cases). — Wis. Trust Co. v. Chapman, 121 W. 479, 489. 40. Where a married woman living separately from her husband, and "knowing that her husband had publicly married another woman.' was proclaiming her , as his- wife, was transacting business every day with people who supposed the second marriage was legal and valid, she allowed this state of affairs to continue without a word of protest" "The "principles of estoppel must be held to apply" upon her claim, subsequent to his decease, of dower in lands conveyed by him and his supposed wife to, innocent parties. —H. W. Wright L. Co. v. McCord, 145 W. 93, 104. » 41. A remainderman accepting her share of proceeds of conveyance of the fee by the life tenant, is held estopped to question such deed. • See also Life Estates. —Hovely v. Herriak, 152 W. 11 17 EVIDENCE 401, 42. r " A change of position by one in reliance upon' the conduct of another is essential to create an estoppel in pais. Somers v. Germania Nat. Bank, 152 W.» 210; 219 (See Waiver) ; (other cases) ". — Zwietusch v. Luefcring, 156 W-, 96, 113. 43. "Estoppel in pais is where a party is not- allowed to assert an otherwise conceded right because by words or conduct he has misled the other party with respect to the existence or assertion of that right in such a manner and to such a degree that the position of the parties can- not be equitably restored". ' —Jm&dorf v. Little Bice, 156 W. 466, 469. 44. Makers of a note were held "estopped from asserting the. defense > of lack of consideration" therefor. See Settlement. . . 45. "One cannot deny a representation which he has made, when by such denial injury would result to another who, having the right so to do, has relied on the representation and based his own conduct thereon". —Schoe.VfW&tter y. Sclvoewwetter, 164 W. 131,, 135. EVIDENCE. . See also Admissions. , QbQ?s-Examination. Depositions. Discqyery,. Examination of Witnesses. Execution op Wills. Expert Testi- mony. Handwriting. Husband an,d , Wipe. Impeachment op Wit- nesses. Leading .Questions. Objections. Parol. Privileged Com- munications. Rebuttal., Res, (Jestae. Testamentary Capacity., Transactions with Deceased Persons. Undue Influence. Writings. Accounts : Defective, as memoranda, 23. Memorandum of contract, 33. Mistake, name over, 22. Party not impeached, 4. Settlement of mutual, 11. Admissions: of agent, 26. Advancements : Final judgment proof, ,30. , , Oral evidence of writing, 30. Appearance of persons or things, 60. Baptismal certificate, 69. Burden of proof : shifting, 62. Certificate: clerk's seal,, 16. , . Falsifying; burden, 45. Certified copies: Admr. letters and bond, 25. Originals in court, 5. Circumstantial; defined, 2?. ' , Establish express contract, 40. Material fact proven, 51. Competency ruling, 68.' ' Zimmerman — 26 Competent when tendered, 6. Construe contracts, 19. , Conveyance only a part, 20. < Deceased: party's evidence, 35. Adverse evidence, sec. 4096, 36. Part admitted: whole, 37. Justice's minutes, 35. . Deceased witness: same parties,- 39. game action or issues,, 63. >■ Disclosing of defense, 3, Enmity: or friendship, 13. Impeachment purposes, 64. Husband and wife, 1. , j Personal violence, 1. . . Wife acting as agent, 21. Inherently improbable, 34, 38. Lucid interval, burden, 17. Marriage:, ..•<>. " r ,, v Prpved by persqns present, 2j , Negative ■ testimony, 24. ; ' Failure to observe, 53. . Near enough -to hear, Gl. 402 PEOBATE AND GENERAL LAW, CODIFIED Negative — continued Observation, affirmative, 54. Notice to produce : at trial, 18. Secondary evidence, 18. Objectionable, competent, 27. Photographs: improper, 41. Immaterial as to time, 52. Properly identified, 47. Prior trial evidence, 46, 66. Absent or deceased witness, 66. Preponderance, 42. Proportion of sum, 49. Seasonable inference; jury, 50. Rebutting evidence, rule, 9. Direct, in discretion, 9, 29. Eemarkable state of facts, 32. Representative capacity, 25. Res gestae: Communications at time, 15 Return of sheriff, 12. Testimony to prove, 31. Trial by court, 42, 44. Improper evidence, 65. Undisputed, reasonable, 43. Not opinion, or weak, 56. One witness, party, 43, 55. Special knowledge of judge, 57. Usage, not favored, 14. Value: of services: question, 7. Bearing on contract price, 48. Other individual parcels, 58. 1 Record of other transfers, 59. Skill; customary rule, 8. Without the state, 67. Question of fact, 67. Witness absent or deceased, 63, 66. Prior trial evidence, 66. Written proof: Oral given, excluded, 10. 1. "As a general principle of law * husband and wife cannot be witnesses for or against each other".. One exception "is that a wife may- be a witness against her husband in cases of personal violence to her, and that from necessity". 2. Marriage may be proved by witnesses present at the marriage supper. — Mills v. V. 8., 1 Pin. 73, 74. 3. "It is not necessary for a party to disclose his whole defense, in order to entitle him to the admission of evidence having a tendency to prove it". —Def ranee v. Hazen, 2 Pin. 228, 230. 4. Acocunt books verified by oath of party are prima facie evidence of their contents, and such witness cannot be impeached. — Winne v. Nickerso-n, 1 W. 1. 5. Certified copies should be received though the opposite party has the originals in court at the time. — Foiike v ; Ray, 1 W. 104, 108. 6. ' ' The party offering evidence, must render the same competent, in the order in which, and at the time when, it is tendered". —Jones v. Lake, 2 W. 210, 214. 7. "The true question" for value of services is "not what A or B would charge for, like services," "but, what were those services really worth. 8. The value of service requiring the exercise of professional or artistic skill, may be proved by common usage" but "not what one or another" "would charge, but what is the usual or customary rule of compensation". —Pfeil v. Kemper, 3 W. 315, 317. EVIDENCE 403 9. ".The general rule doubtless is that after" the defendant rests, "the plaintiff will be confined to rebutting evidence. But the rule is not inflexible. . It is in the discretion of the judge whether the plaintiff may or may not produce original or direct evidence on his part ' '. 10. Parol proof given should be excluded where it develops the party has proof in writing. — Campbell v. Moore, 3 W. 767, 771. 11. Evidence of a prior transaction where a settlement of mutual accounts between parties was had, is inadmissible, except on impeach- ment for mistake or fraud. —Martin v. Beckwith, 4 W. 219. 12. Sheriff's return is "generally conclusive evidence". See Service. —Knowlton v. Bay, 4 W. 288, 291. 13. Cross examination is proper as to enmity or friendship of parties, and is in the discretion of the judge as to its liimts. See Cross Exami- nation. — Kellogg v. Nelson, 5 ~W. 125,131. 14. Evidence of usage is not favored but it must be clear and explicit, uniform and notorious. -^Power v. Kane, 5 W. 265, 268. 15. Communications between parties concerning and at the time of the transaction are, in general, admissible as part of the res gestae. , , —Eastman, v. Bennett, 6 W. 232, 239. 16. The certificate of the clerk and not that of the judge must have the seal attached to entitle document to admission as a record. —Kwsckryir v. State, 9 W. 140, 145. 17. Burden of proof to establish a lucid interval is on the party claiming it. See Insane Persons. —Ripley v. Babcock, 13 W., 425, 429. 18. "Notice to produce the original (writing) was only given at the trial", and "is undoubtedly insufficient to justify the admission of sec- ondary evidence, where it appears that the party notified has not the paper in his possession at the trial". —Barker v. Barker, 14 W. 131, 150. 19. May be received to show condition of parties and surrounding circumstances, in interpreting written contracts, but not to vary or ■contradict their terms! See Contracts. —Sigerson v. Gushing, 14 W. 527, 548. 20. Parol evidence may be received to show consideration and the "whole transactions where the conveyances constitute only a part". See Parol. —Frey'v. Vanderhoof, 15 W. 397, 401. 404 PROBATE AND GENERAL LAW, CODIFIED 21. Evidence of "wife acting as the agent of her husband should" be received. v See Husband and Wife. —Birdsall v. Dunn, 16 W. 235, 241. 22. Evidence may be received to explain mistake in name over entries of accounts. 23. Defective accounts may be used as memoranda to assist memory. ' See also Account Books. - • ■ -^Schettler v. Jones, 20 W. 412. 24. ' ' The rule of law is, that the positive testimony of one credible * witness to a fact is entitled to more weight than that of several others who testify negatively, or at most to collateral circumstances merely persuasive in their character. 3 Greenl. on Ev., § 375". —Ralph, v. C. & N. W. By., 32 W. 177, 182. 25. Certified copies of letters and bond, held sufficient, prima facie at least, to prove representative capacity of an executor. See Extrs. & Admbs. — Wittmann v. Watry, 45 W. 491, 493. 26. Declarations of an agent, when part of the ; res gestae and made within the scope of his authority, may be admitted against the principal. See also Admissions.' 27. "The introduction' by the defendant of evidence which would render the objectionable testimony (theretofore erroneously received) competent, had it been afterwards offered", "cures the error" of improper admission. --—Bounsavell v. Pease. 45 W. 506, 510. 28. "Circumstantial evidence is denned to be, where the proof applies immediately to collateral facts supposed to have a connection, near or remote, with the fact in controversy. Eberhardt v. Sanger, '51 W. 78". —Bouck v. Enos, 61 W. 660, 663. . 29. It is on occasion discretionary with the trial courts as to the allowance of original evidence of plaintiff to be admitted, after the close of defendant 's case. See Rebuttal. — Eagerly v. White, 69 W. 317, 323. 30. Final judgment is held "competent evidence to prove" advance- ments; and the fact of a written acknowledgment of advancements may . b,e testified to orally. See Advancements. —Liginger v. Field, 78 W. 367, 374. , 31. "Proof of a fact may tend to show the existence of another fact, indeed may preponderate over all testimony to the contrary, and yet be entirely insufficient to prove such other fact. Gores v. Graff, 77 W., 174- Dunbar v.McGilL 64 Mich., 676." —Heath v. Paul, 81 W., 532 537! EVIDENCE 405 32. "A remarkable and exceptional state of 'facts may be satisfactorily proven, and if so proven a court cannot refuse belief simply because it is out of the usual course of events". See also Husband and Wife. • '■ — Marston v. Dresen, 85 W., 530, 540'. 33. As to memorandum of a contract in a book of account. See Writ- ings. —Hazer v. Streich, 92 W. 505, 508. 34. Evidence "not specifically contradicted," held properly disre- garded as "inherently improbable;" See Claims; '''■'■ —Daniels v. Smith, '95 W.,. 639. 35. Where "the second trial is between those who represented the parties at the first trial by privity, in blood, in law, or in estate," the executors representing the deceased plaintiff, then the justice V minutes of the deceased's testimony were not "competent evidence'';', though the justice "was a competent witness" to prove his testimony, "aridi'he might use or refer to the minutes of such testimony taken by himself to refresh his recollection." — McOeach v. Carlson, '96 W., 138, 140. 36. Plaintiff's attorney testified as to an assignment, that the defend- ant "had, in his deposition itaken under sec. 4096 (adverse party exami- nation), testified that no consideration had been paid. The court there- upon held that the whole deposition had become admissible 'by' >u introduction of part of it in evidence by the plaintiff, and it was all received in evidence"; 37. Such testimony related to a transaction with a deceased person, presumably otherwise inadmissible. Without determining the question, it is said, that "In re Hess' Estate, 57 Minn. 282, and Jones Ev. § 792, and cases cited'in the notes, seem to support this ruling". ! - ' —McNally v. Mc Andrew, 98 ■ W. ' 62, 65. 38. As to evidence "inherently improbable", and not directly con- tradicted. See Impeachment, etc. ' ;: - — Zimmerman v. Bamnori, 101 W. 407, 412. 39. "The rule is that evidence given under oath in ; i,a judicial pro- ceeding is admissible in a subsequent action, or a subsequent proceeding in the same action, where it is shown that the witness is dead, and the parties and the issue are in substance' the same. Jones Ev. §§339,' 340; McGeoch v. Carlson, 96 W. supra". Evidence given before a county board committee, "does not come within the rule", to admit it in a subsequent action. — Dunck v. Milwaukee Co., 103 W\ ^371, 372. 40.' As to circumstantial establishment of an express contract. See Promissory Notes, etc. ' ' ''" —McDonald v. Provident S. L. A. Soc, 108 W:, 213,218. 406 PROBATE AND GENERAL LAW, CODIFIED 41. Photographs "of any private part of the body of any party, male or female," as evidence at a trial are "grossly improper", and should not be tolerated. —Guhl v. Whitcomb, 109 W., 69, 76. 42. "There is a wide range between mere preponderance of evidence and that preponderance necessary to overcome the decision of a trial judge on controverted questions of fact." —Endress v. Shove, 110 W., 141, 149. 43. "The undisputed reasonable evidence of one witness, though a party interested, should be given controlling weight in determining a question of fact. Burnham v. Norton, 100 "W. 8". —Hwrigan v. Gilchrist, 121 W., 127, 383. 44< "The rule is, well established that in a case tried by the court, as here, the improper admission of evidence, is not available as error upon appeal. (Citation). If the. evidence properly admitted supports the findings, it is sufficient". —Currie v. Michie, 123 W. 120, 127. 45. As to falsifying officer's certificate, burden, and inference, of proof, in fraud; cases. See Undue Influence. -r-Winn v. Itzel, 125 W. 19, 25. 46. Testimony-" taken, on the first trial was improperly admitted", — though the reporter testified that it was a correct copy 'of the minutes, etc., — because it "was not certified to by such reporter, as required by this, statute (sec. .4141 ) i nor was proof made of the facts required to be so certified". , —iWelis v. Chase, 126 W. 202, 207. 47. Held that "photographs were properly admitted in evidence", they having been sufficiently . identified. —Hupfer v. Nat. D. Co., 127 W. 306, 311. 48. When evidence of reasonable value is admissible as bearing on the contract price. See Contracts. — Anderson v. Arpin, H. L. Co., 131 W. 34, 48. 49. "It is neither, opinion; evidence nor 'guess-work' for a witness to give an estimate of what proportion of a given sum was derived from one source rather than another;" So held, where the question asking for such answer was, — not ' exact, but we want your opinion, your judg- ment on the, matter'. — Berge v. Eittleson, 133 W., 664, 666. 50. "Where there is any credible evidence from which a reasonable inference can be drawn in support of the claim of either party the question is for the jury. (Cases). 51. A material fact in a, civil or criminal case may be established by * EVIDENCE i> 407 circumstantial evidence, when the circumstances are: such as to lead fairly, and reasonably to the conclusion sought to be established". —Sanborn, v. Walters, 145 W. 84, 86. 52. It is held immaterial as to the time of taking photographs intro- duced in evidence, it being shown "that they are correct representations of the premises at the time of the injury?'. —Mahar v. Montello G. Co., 146 W. 46, 52. 53. "Testimony can be said to be truly negative only when it tends to prove the nonexistence of the facts by reason of a mere failure to observe or remember its existence. , ■ , 54. If it asserts an observation as to its: existence and a recollection of what that observation was, a denial of its existence based thereon is as much affirmative evidence as is an assertion that it did exist. (Cases)." —Gael v. Green B. T. Co., 147 W. 229, 234. 55. "The uncontradicted, positive, consistent evidence of one witness, who personally knows whereof he testifies, even though a party, is con- trolling, 56. If not affected by any inherent weakness materially impairing its credibility, and not purely opinion evidence in the field of common knowledge, . ■ < . . ■ , ; ■ 57. Or the special field which the judge, presumably, has the special knowledge of an expert. " • < i ■' » —Gender, P. & F. Co. v. Milwaukee, 147 W., 491, 495. 58. The "exclusion" of "evidence in chief" "to show what price: had been paid for individual parcels of other lands" on the question of "market value of the land" in question, is held "not error. (Cases). 59. The court also properly excluded the record of transfers purport- ing to show the price for which other lands in the same town as that in question were sold. (Cases)". — O'Day v. Meyer's, 147 W., 549, 553. 60. As to "conclusions of fact", and "leading questions" as to appearance of persons or things, being "not always inadmissible". See Examination of Witnesses. —Schidtz v. Frankfort M. A. & Pj(?i Ins. Co., 151 W. 537, 550. 61. Where witnesses have testified to hearing statements, and other witnesses "each testified that he was near", "and that in his opinion he was near enough to plaintiff to have heard them had they been made", and "did not hear" them, it is held that the instruction' was proper that 'the positive testimony, if otherwise credible, is usually entitled to more weight than negative testimony". >■■■■'■ ! ><■ — Dixon v. Russell, 156 W. 161, 171. 408 PKOBATE AND GENERAL LAW, CODIFIED 62. The burden of proof does not shift from plaintiff, on making a prima facie ease, but "it remains with him to the end" of the trial. See also Promissory Notes, etc. —Murphy v. Est. of Skinner, 160 W. 554, 564. 63. 'The testimony of any deceased witness, or any witness who is absent from the state, taken in an action ' under sec. 4141a, is held admis- sible only at the "retrial of the same action or 'other actions or proceed- ings' invoking the same issues and between the same parties". (But see, this point overruled, in Illinois S. Co. v. Muza, 164 W. post). 64. Evidence as to a witness' "personal animosity against" a party is ' ' admissible for purposes of impeachment only ' ', in the regular man- ner. See also Impeachment of Witnesses, etc. —Pfeiffer v. G. & M. E. R. Co., 163 W. 317, 320. '■ '>'■,, i - , i 65.- "Improver evidence taken m a court case under objection, is to be presumed not to have been given weight unless the contrary clearly appears. Harrigan v, Gilchrist, 121 W. 127, 312, 314." —Johnson v. Bank of Wis., 163 W. 369, 373. '66 "We are now convinced that we erred in construing this statute (sec. 4141a) in" Pfeiffer v. C. & M. E.'-R. Co.,. 163 W. supra, and "that the terms 'retrial, other action, or proceeding' were intended to include actions and proceedings by any person against the same party wherein the issues were substantially the same as in the action or proceeding in which' the testimony was given" by a deceased or absent witness, "and in so far as the Pfeiffer Case conflicts with the views here expressed it is overruled". —Illinois Steel Go. v. Muza, 164 W. 247, 252. 67. "Whether" a witness "was out of the state or not, so as to render admissible his evidence taken upon the first trial, was a question of fact for the court to decide". If in; fact out of the state, such evidence was competent. SebJ 4141a. \<> 68. "It requires a pretty strong case to warrant overturning the ruling of the trial court on a mere question of competency Emery v State, 101 W. 627, 648": 69. A "baptismal certificate" is held inadmissible "to prove the date of birth". See also Birth, etc. —Lambrecht v. Holsaple, 164 W. 465, 466. EVIDENCE AGAINST DECEDENTS. See Transactions with Deceased Persons. EXAMINATION OF WITNESSES 409 EXAMINATION OP WITNESSES. See also Cross-Examination. Evidence. Impeachment,, etc. Leading Questions. Objections. Witnesses. A ' M ,, , Conclusions of fact, 8. Leading questions, 9. Criminate witness: rule, 2, Appeared; /' frightened, " etc., 10 7j - Court, as to effect, .3, Permissible, when, 9. Objection; not attorney, 2. Trial judge, examine, 4. Witness as judge, 3. Betray bias or prejudice, 5. Hostile or adverse witness, 7. Limits indicated, 6.. Discretion of court, 7. , , Interruption: without, 1. Interest; written, 1. 1. A party as 'a general rule has a right to examine his witness without interruption. He may be interrupted as to "interest of the witness" or "inquiry as to written evidence" on the same subject. "' lX — Rowlands v. Jenks, 7 W. 57, 58. 2. "The correct practice", where he wishes to protect himself from answers which could criminate him, "is for the witness to say on his oath he believes the answer would tend to criminate him; and if he says that he does, his answer is generally taken as conclusive." It is not sufficient for the attorney to make such, objection for him, : j : / ; 3. "Although the witness is the judge of the effect of his ; answer, , and is not bound to disclose any facts or circumstances to show howi the answer would affect him, * yet the court is to determine * whether such is the tendency of the question put to him, and whether he shall, be required to answer." Dixon, C. J. ., .. • ., ■. , —JLirstfmer v. State, 9 ,W, 140, 143. 4. "The right of a trial judge, in the exercise of a sound discretion, to examine or cross-examine a witness cannot be doubted. 5. It is a right that is sometimes most valuable in the administration of justice, but it should be most carefully exercised, and the questions put should not betray bias or prejudice; nor carry to the jury the impression that the judge has made up his mind as to the facts.: ■ 6; The questions should be. framed to make clear that which was not clear. Within these limits, there can ba no just fault found with the fact that the trial judge asks some questions of the witness. (Cases) ". • - tu-, ■■ l— Komp v. State, 129 W. 20, 24. 7. A party has the "right to examine a hostile or adverse witness independent of the statute, and the form of questions in such a case is largely within the discretion of the court". —Ryan v. Oshkosh G. L. Co., 138 W., ! 466, 473. 410 PROBATE AND GENERAL LAW, CODIFIED 8. "Conclusions of fact -are not always inadmissible, and so far as they relate to collateral facts not directly in issue save much delay and circumlocution. 9. The same is true of leading questions. Ordinary conversations and ordinary writings abound in conclusions of fact. Most of these are permissible in testimony. 10.' To refuse to permit a witness to testify that one appeared 'fright- ened' or 'insolent' or 'overbearing' or 'enraged' has the effect merely of shutting out the testimony of all eyewitnesses of tliese conditions who had not extraordinary powers of description. .Cross-examination will in all such cases sufficiently disclose what bases the witness has for his con- clusion". —Schultz v. Frankfort M. A. & P. O. Ins. Co., 151 W. 537, 550. EXECUTION. Deceased judgment debtor: . Estate settlement; county court, 4. Heirs and administrators, 1. Not execution issue, 4. Prerequisites to issuance, 2. Under claim statute, 4. Suspension of judgment, 3. 1. After the expiration of one year from the death of a judgment debtor, under the statute (substantially as sec. 2978,) the motion being in the supreme court on a judgment therein, held, "no execution should be awarded until the heirs and administrator have an opportunity afforded them to pay the judgment without execution"; 2. And that "if they fail to do so on proper demand, it should still be made to 'appear, before leave to issue execution be granted, that the respondent (decedent) died seized of property which has come to the , hands of his heirs or administrator; and which is chargeable by law with the payment of the debts of the deceased"; so held, though the statute does not seem to specifically prescribe either condition. • ' —Eaton v. Youngs, 41 W. 507, 508. 3. Under sees. 2978 and ,2902, "if the entry" on the judgment docket, of suspension of the judgment by reason of the decease! of the judgment debtor, "be not made the running of the statute is not inter- rupted." 4. ' ' Except for the purpose of enforcing an existing lien ", " our stat- utes do not contemplate the issuance of an execution against the property of a deceased judgment debtor, but. rather that the whole estate should" ' ' be administered under the direction of the county court, upon proper presentation of claims to that effect". Sec. 2978; Eaton v. Youngs, 41 W. supra. — QelU v. Boss, 164 W. 392, 394. EXECUTION OF WILLS EXECUTION OP WILLS. See also Privileged Communications. MENTAEY CAPACITY. UNDUE INFLUENCE. Probate' of Wills. Wills. , 411 Testa- Attestation ; subscribing, 6. Acts, physical, mental, 51. Attesting is what, 9. Different things, or not, 7, 52. Distinctions given 8. Nature of instrument, 11, 40, 52. Presumptive evidence, 31, 81, 82. Of all essential acts, 78, 82. ; Proof of signatures, 32, 77. , Subscribing is what, 9. Without certificate, 33. Certificate : Against witnesses, 85, 88. All the essential facts, 77, 81, 82. Convincing proof against, 35, 64, 73, 85. Insufficient proof, 73, 74, 83, 90. Vague testimony, 65, 66. One wit. dead : two against, 58, 83. Will sustained,, 90. Presumption therefrom, 23, 56, 63, 77, 81, 85. Proof without certificate, 32, 33. Testator, mark signature, 82, 84. Want of recollection, 25, 26, 42, 83'. Witnesses all dead, 24, 77, 79. Codicil: no valid will, 49. English statute adopted, 1. Exception as to blind, 3. Testator's conscious presence, 2. Weight of authority, 4. Joint: will, 83. Not lightly set aside, 87. Presumption: of regularity, 34, 81, 82s Both witnesses dead, 77, 79. Convincing proof, 35, 63, 72. Vague impressions, 65, 66, 74. Memory of scrivener, 70. Memory of witnesses, 42, 83. , Uncertain guide, 88. ^Signing before testator, 37, 39. Privileged communications, 46, 67, 75. Publication : By signing only, 18. Nature of instrument, 11, 40, 61, 62. Silent declaration, 19, 62. Testator fully apprised, 20. Requisites : valid will, 53. Scrivener as witness, 46, 67. Absence of mempry, 70. Signing. of testator: Affixing mark, 12. Manner of making, 84, 89. Name, in adjoining room, 76. Testimony of one witness, 55. Witnesses deceased, 79. Direction to another, ''12. Follows certificate, 91. Not in witness' presence, 50, 60. Obliterated signature, 92. Testamentary writings, 47, 49. Both form a codicil, 49. First adopted in second, 48. Second witnessed : first- not, 47. Two instruments, 47. , . , Testimony : Contest; one witness, 55. Courts below disagree, 15, 44, 84. ■ i Foreign language used, 45, 72, 79. Many years later,: 83. . . , Uncertain, . guide, > 88. Physician attending, 67, 75. Mental competency, 71. Proponent, beneficiary, 43. Bead and. explained, 44. Closer scrutiny, 45. Testator German, 44. Witnesses disagree, 44. Rules : non-contested cases, 56. Contested cases,: 56. General evidence, 80. Signatures proved, 32, 33, 77. ' Signing before testator, 35, 36, 37, 39, ■'<■'- 59.' ' "'' Upheld against one or both, 16, 17, 41, , 59,84. , Will itself strong, 66. Not lightly set aside, 87. Witnesses disagree, 13, 14, 44, 59, 83. Witnesses : Adjoining room, 5, 28. Attorney and scrivener, 46, 67, 75. Attending physician, 67, 75. Scrivener merely, 69. Waiver of competency, 46, 68. ' Blind testator exception, 3. Each other's presence, 38. English statute, .1. Hear and see read, 21. Nature of instrument, 11, 40, 52, 61. Present want of memory, 22, 25, 83. 412 PROBATE AND GENERAL LAW, CODIFIED Witnesses — continued .:"'..(. . Witnessfcg-^continued Proponent, beneficiary, present, 43. Testator's conscious presence, 2, 74, Incompetent as party, 43. , 76\ Interpreter 1 at making, 44. Weight of authority, 4. See if he chose, 2, 5, 29; 30, 74, 76. Wife of executor, 54. Signing before testator, 35, 39, 59. Written in lead pencil, 76. Special request: unnecessary, 27. ■■•...< Implied from circumstances, 53, 74. 1. "The provision of our statute (sec. 2282) which makes it essen- tial to the validity of a will that it shall be attested and subscribed by witnesses in the presence of the testator, is taken from the English stat- ute of 29 Car. II, c. 3, § 5, which has also been adopted without material change (except as to the number of witnesses required) in most of the states of the union". (By amendment, ch. 120 L. of 1895, the witnesses must also sign "in the presence of each other"). 2. "The English; courts have uniformly held that .unless the instru- ment be subscribed by the attesting witnesses in the conscious presence of the testator— that is, unless he may, if he choose, see the act of sub- scribing, — it is not a subscribing in his presence within the meaning of the statute.- 3. An exception to this rule is made of necessity in ease the testator is blind; but in 1 such case it is held that the subscribing must be where the testator could see the act if he were not blind". 4. "We find , an .overwhelming weight of . authority in favor of the English rule", and "we must hold, therefore,, that the instrument pro- pounded as the last will 1 and testament of the deceased was not sub- scribed in his, presence by the two witnesses whose names are appended to it, but only by one of them; and hence, that the same should not be admitted to probate". . , •>• 5. The defaulting witness "affixed his name to the instrument in the room adjoining that in which the deceased was, and the latter could not see that act. of signing. from the bed on which he was lying", though he "then went into the other room, sat on the bed of the deceased, with the instrument in his hand, and said to the deceased that he had signed it, as he supposed, in accordance with his wishes; and deceased replied that it was all right". (Statement of facts.) 6. ." The distinction between attestation and subscribing is well stated in Swift v. Wiley, 1 B. Mon. (Ky.), 114, as follows: 7. 'To attest the publication of a paper as a last will, and to subscribe to that paper the names of the witnesses, are very different things, and are required for obviously distinct and different ends. 8. Attestation is, the act of the senses, subscription is the act of the hand ; the one is mental and the other mechanical ; 9. And to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publica- tion ; 10. But, to subscribe a paper published as a will, is only to write on the same paper the riame of the witness, for the sole purpose of iden- tification '. " i EXECUTION OF, WILLS 413 11: One, of the witnesses being ignorant of the nature of the instru- ment, "without deciding the point, we : are inclined to think the law is, .that there must be some word spoken, or some act done, by 'the testator in the presence ,; of the witnesses, showing that the instrument was intended by him to be his will^omething to. show the nature of the instrument,— or there can be no valid attestation". (But, see Allen v. Griffin, 69 W., and. Skinner v. American B.Soc.'y, 92. W. post). — In reDownie's.Will, 42 W. 66, 72. 12. As to the signing of the will, ' 'it is sufficient to :say that, under our statute of wills (sec. 2282), it was a valid signing by the testatrix if R. wrote her name thereto in her presence and by her express direc- tion, or if she affixed her mark, 1 thereto''. ■■<■ . 13. One of the witnesses "testified to a state of facts, which, if not' negatived by other proofs, shows beyond a reasonable doubt V> the proper execution and mental , capacity, ''within the rule laid down by this court in Holden v. Meadows, .31 W. 294" i (See Testamentary Capacity), "corroborated by other evidence"!;: • .. 14. And/ "the other attesting witness, testified to a, state of facts which, if true, shows that the ; instrument was not legally executed",' and that the testatrix did not have mental capacity, which "testimony is also corroborated"; and, , . 15. The county court upheld the will and the circuit court did not, the cause being "remanded for a new trial". :; .' 16. Held that it was error to refuse probate "because the two attest- ing witnesses did not concur in testifying to ah execution and ; attestation of the instrument in the manner required by the statute". ,i ■ 17. "The law is well .settled, that a will may be < supported against ithe testimony of some, or even of all, of the subscribing witnesses thereto, if their testimony is overborne by other evidence. ' Tarrant v. Ware, 25 N. T. 425, and cases cited". — Will of 'Susan Jenkins, 43 W. 610, 611.. 18, Where the scrivener .testified, that, after drafting the will accord- ing to instructions, in an adjoining room, he called the witnesses "to come into .the presence of the deceased for' the purpose of witnessing the will", "read the will of the deceased in the presence of ithe witnesses, and asked him if he was satisfied with it, and if he could sign' it ; and that the deceased immediately took the pen and signed his ! name to 1 the paper in the presence of the witnesses,, who afterwards subscribed their names thereto as witnesses", it is held a sufficient publication. 19. " If it be necessary that the deceased should declare that the writ- ing so signed was his last will and -testament at the time of his signature, in the presence of the attesting witnesses, the circumstances as shown accompanying the signature are a sufficient declaration of that fact. (Jarman and Redfield cited)." ■•'<>< • , 2.0. " 'It is a sufficient publication if it be made to appear by compe- tent evidence that the testator was, at the time of the execution of the 414 PROBATE AND GENERAL LAW, CODIFIED instrument, fully apprised of its contents, that he knew it to be his will, and intended it as such.' Swett v. Boardman, 1 Mass. 258; Cilley v. Cilley, 34 Me. 162." 21. Where both witnesses and the scrivener swear to being in sight and hearing when the will was # read to the deceased, and could have heard and seen what was done, 'and being there for that express purpose, "it is a fair presumption that they did, both hear and see". , 22. ' ' Their present want of memory as to what then took place in their sight and hearing does not negative the conclusion which is to be legiti- mately drawn from the facts admitted to exist at the time; especially as this conclusion is fully supported by the evidence of" the scrivener and another witness. 23. Where the witnesses signed a certificate,, it is held, as to state- ments therein, that "their subscription of this certificate raises a pre- sumption that the testator did declare at the time that the paper so subscribed by him was his will and testament, and that they signed the same at his request and in his presence. ' ' 24. "In case of the death of, all the witnesses, this .presumption would, be sufficient to prove the valid execution of the will, upon simple proof of the signature of the testator and of the witnesses". 25. " The want of recollection of the witnesses as to these facts, when called upon to prove the execution of the will, would not, standing alone, be such evidence of a non-compliance with the requirements of the statute as to justify the court in refusing the probate of the will ; 26. Much less would such want of recollection defeat the will when there was other evidence showing that all the acts necessary to a proper execution of the will were in fact performed. ( Cases) ; ' ' 27. "No special request by the testator to the witnesses to sign the will as witnesses thereto, is necessary. If they sign in his presence, and without objection on his part, he knowing the fact that they are sign- ing as witnesses, it is sufficient. (Cases) ". 28. "The fact that the witnesses subscribed in an adjoining room, and not in the room where the testator was, is wholly immaterial, so that it ' appears it was done in his view ' '. 29. " It is not necessary that the evidence should show that the testator in fact saw the witnesses subscribe their names ; it is sufficient if he could have seen them from the place where he was sitting ' '. 30. "In other words, if the testator being in a position where, by the mere act of volition, and without materially changing his position, he can / witness the attestation, it is sufficient. 1 Redfield on Wills, 247, note, and cases there cited". — Will of John Meurer, 44 W. 392, 396. 31. ' ' The instrument is attested as a will in due and usual form. Such attestation is of itself not only prima facie evidence that the instru- ment was properly executed, but it raises a strong presumption that it was so executed. 32. Had the witnesses deceased before the probate of the instrument , EXECUTION OF WILLS 415 mere proof that the attesting signatures were their handwriting would have established the will. 33. And the rule would be the same although the signatures of the witnesses were not preceded by any attesting clause or certificate. 34. To defeat probate, the strong presumption of regularity thus appearing upon the face of the instrument must be overcome by proof. Remsen v. Brinckerhoff, 26 Wend. 325; Ela v. Edwards, 16 Gray, 91; 1 Greenl. on Ev. 126 ; Burling v. Paterson, 9 Car. & P. 570". (See also approval in W. of Hawkinson, 143 W. post). 35. " In the present case, if the fact that the witnesses subscribed the instrument before the testator defeats the probate thereof as the will of the testator, the fact should not be found, against the presumption of regularity, without very clear and convincing proof". 36. Where the scrivener "twice testified positively that the testator signed first", and later was "uot positive now", and one subscribing witness' testimony inferred, without ''any direct statement that they (the witnesses) did sign first", and the other witness "alone swears positively that the witnesses signed first", no other witnesses testifying as to the order of signing, it is held, — ' 37. "That the positive testimony of B. (the scrivener) that the testator signed first (notwithstanding his subsequent inability to recollect the fact), outweighs the adverse testimony of" the two witnesses, and "that the presumption that the will was legally executed is not overcome by the oral evidence". — In re Michael Lewis's Will, 51 W. 101, 113. 3&. It is held that it is not essential' that the witnesses subscribe "in the presence of each other". (Changed by amendment of ch. 120, L. 1895, to sec. 2282, requiring such signing after Jan. 1, 1896). — Will of J. B. Smith, 52 W. 543, 547. 39. "We think, in the absence of clear proof 1 that the witness or witnesses signed before the signing of the testator, it should be presumed that the testator signed first. This would be the usual order of signature. This view of the case seems to be sustained by the authorities". 40. The authorities (many cases) so hold, and "the reason for holding that, under a statute like ours, the witnesses need not know the nature of the instrument (will) to which they attach their names as witnesses to the signature of the "person who has subscribed the same, is entirely satisfactory to us". —Allen v. Griffin, 69 W. 529, 533. 41. Both attesting witnesses were examined, and ' ' the substance of the testimony of each of them is contained in that of the witness S., as follows : 'I have no recollection of signing that instrument; not .the least. I don't remember signing it. All I know is that it is my signature.' " 42. Held, after citing with approval, cases supra, that "the pre- sumption arising from : the attestation and the attesting clause to the effect that it was subscribed by the witness in the presence of the tes- 416 PROBATE AND GENERAL LAW,i CODIFIED , tator, is not overcome by ■ proof. Hence, the instrument was properly probated". (Followed in Will of Hawkinson, 143 W. post). — Will of O'Hagan, 73 W. 78, 80. 43. "Where the proponent, principal; beneficiary, and also a residuary legatee, was present and ' ' acted or participated in the matter of making the will", was present at the execution and "confessedly he was with his father to 1 aid in the making 'of the will ", he was held incompetent under sec. 4069, as to being a party in interest in a transaction with a deceased person, from testifying, "on the. point that the will was read and explained to the testator before he signed it", and "from testifying as to what took' place" at the making and execution. 44. The testator was Germain and did not understand English, the scrivener, one of the two witnesses, understood German perfectly, the other witness disagreed with, the scrivener that the will was read and explained to the testator, and the proponent acted as interpreter at the making of the will. The county court admitted the will to probate, the circuit court and the jury found* that the testator did not understand its contents, and the judgment disallowing the will was sustained. 45. An instruction that "it calls upon you to investigate the whole transaction with more scrutiny, closer than you would if the transaction had been in the English language, which all the parties understood," was held unobjectionable: and proper. ..■■■,.■; —Goerke v. Goerke, 80 W. 516, 519. 46. "Where the testatrix requested' her attorney, the scrivener "to sign the will which was the result iof the communicdrtion between them, as a subscribing Witness", " this must be held to be a waiver of objec- tion to his competency (under section 4076), so as to leave the witness free to perform the duties of the position, and to testify to any matter in relation to the will and its execution of which he acquired knowledge by virtue of his 'prof essionar relation, including the mental condition of the testatrix at the time. In re Will of Coleman, 111 N. Y. 220; Alberti v. N. Y. L. E. & W. R. Co., 118 N. Y., 85. (Cited and approved • in Boyle v. Robinson, 129 W., 567, 579) . —McMaster v. Scrwen, 85 W., 162, 168. 47i> An instrument, of a testamentary nature, creating a trust, but not stated to be a will, was signed by L., with one witness signing, and dated. Nine years after, a second instrument, dated, and of like nature, was written on the same sheet, referred to the first, and was sighed by L., witnessed by two' witnesses. The county and circuit courts disallowed them, as wanting testamentary character, and for defective execution; held, — ■ 48. That, 'though the first "was never so executed as to become a will", yet, the second was, and "has so adopted and incorporated into itself the former writing as that it had become a part of the latter instrument. EXECUTION OP WILLS , 417 49. Both are testamentary in character, and both together form a codicil to the last will and testament of L. Baker's Appeal, 107 Pa. St. 381 ; Brown v. Clark, 77 N. Y. 369 ; Vogel v. Lehritter, 139 N. Y. 223, 235; Cassoday, Wills, 601-5". Directed to be admitted "as a codicil to the last will and testament of L." 50. "It was not necessary that she (the testatrix) should have affixed her signature in the presence of the witnesses. Cassoday, Wills. It was subscribed by two competent witnesses, in the presence of the testatrix", as well as of each other. 51. As to attestation and subscription, "no physical act is required in the one which is not also required in the other, and it is not clear what mental act or fact appropriate to the one is absent from the other ' '. 52. "Since it is well settled in this state that it is not necessary to the validity of a will that the witnesses, at the time they attest it, shall know the nature of the instrument they are attesting (Allen v. Griffin, 69 W. supra), it is not clear what, if anything, attestation is intended to add to the mere fact of subscription. 53. However that may be, it is well settled that an instrument in writing, signed by the testator, and subscribed in his presence and at his request, which may be implied from circumstances, by two competent witnesses, is prima facie, and so far as formality of execution goes, a valid will. Anything further, in mere form, is not contemplated, and would be mere supererogation". (Of course, since Janaury 1st, 1896, the witnesses must also sign "in the presence of each other". Sec. 2282). —Skimmer v. Amerkcm B. S.oc'y, 92 W. 209, 212-3. 54. Where the wife of the executor was a witness to a will, it is said, "the executor was not beneficially interested so as to affect the com- petency of the wife to testify either by common law or by statute. (Cita- tions). She was competent to testify to the facts at the time the will was executed, and that satisfies the universal test. (Citations) ". —In re Will of Lyon, 96 W. 339, 340. 55. "We hold that where a person executes his will by signing by his mark, and it is otherwise properly executed, it may be established, even when contested, by the evidence of one subscribing witness and the testimony that the other actually signed as such, together with cor- roborating evidence sufficient to satisfy the court of all the statutory requisites, if the absence of the witness not produced is satisfactorily accounted for". • 56. "Our statute (sec. 3788) only provides a rule that the court may be governed by in non-contested cases, leaving all others as governed by the established practice on the subject". "The New York statute" is different. —Jones v. Roberts, 96 W. 427, 432. 57. Where three witnesses, two being lawyers one of whom is deceased, signed the attestation clause which states that the witnesses signed in Zimmerman — 2 7 418 PROBATE AND GENERAL LAW, CODIFIED the presence of the testator, while such statement "raises a strong pre- sumption that they did so sign, and such presumption should prevail unless overcome by clear and satisfactory evidence", 58. And while the fact that the deceased witness "was a lawyer of large experience in his profession is a strong circumstance in support of the truth of the attesting clause signed by him",— yet,, on the testimony of the two surviving witnesses, that one of them and the deceased wit- ness did not sign in the presence of the testator, and the fact so found by the county court, and by a jury and the circuit court,— the supreme court "are unable to come to the conclusion that the fact" "was found wrong". — Adams v. Rodman, 102 W. 456, 460. 59. Where "one of the subscribing witnesses testified that he signed before the testator", "but the other subscribing witness testified that he drew" the will, and as to the regularity of the signatures, the will and other testimony corroborating such regularity, probate was sustained. (Cases, supra). 60. "It is not essential that the testator sign in the presence of the witnesses, if he has in fact signed prior to the time they do. (Cases.) " —Flood v. Kerwin, 113 W., 673, 679. 61. "This court has decided that it is not necessary to the validity of a will that the witnesses thereto should know the nature of the instrument they are signing ; 62. Nor is it necessary to the probate thereof that they should testify that the testator declared it to be his will. (Cases, supra) ". — In re Noon's Will, 115 W v 299, 303. 63. "The rule of law is thoroughly well established in this state that the subscription and attestation of a will by witnesses who declare, over their signatures, > acts essential to the due execution of the instrument, raise a strong presumption in favor of the fact, 64. And that such presumption can be overcome only by clear and convincing proof to the contrary, and that mere indefiniteness of recol- lection will not suffice. (Cases, supra)". 65. On "vague impressions of acts or omissions inconsistent" with the attestation clause, in ' ' the testimony of the only surviving witness ' ', eleven years thereafter, indicating uncertainty whether the testator signed first or "in the presence of the two witnesses", and saying, "what the exact facts are, I am not now prepared to say", — • 66. "We cannot hold that such testimony constitutes a clear or over- whelming preponderance of evidence against that offered by the instru- ment itself. — In re Gillmor's Will, 117 W., 302, 303. 67. With reference to the testimony of an attorney, as scrivener and a Subscribing witness, the other witness being the attending physician, it is said: "This court has held, in effect, that a subscribing witness EXECUTION OF WILLS ' 419 to a will is necessarily expected to give testimony as to the execution of the same. Alberti v. N. Y., etc., R. Co., 118 N. Y. 77; McMaster v. Scriven; 85 W., supra". 68. "All the authorities, including the two recent adjudications from this court, agree that the section of the statute in question (4076) is nothing more than a reenactment of the common law. Koeber v. Somers, 108 W. ! , 504 (See Privileged Communication's) ; (other cases)." 69. But it is here held that the attorney "neither gave nor attempted to give him any advice— much less, 'in the course of his professional employment'," and "in drawing the written instrument in controversy he acted in the capacity of a mere scrivener, and his testimony was clearly admissible. (Cases)." See also Testamentary Capacity. —In re Downing's Wjll, 118 W.,' 581, 591. 70. As to absence of memory by a scrivener and presumption of attestation clause. See Testamentary Capacity. - —Hartley v. Kraftczyk, 119 W., 352, 366. 71. As to " exclusion of attending physician's testimony'-' on mental competency. See Privileged Communications. —Will of Hunt, 122 W. 460, 465. 72. As to will in language the testator did not understand^ being admissible, ' 73. And presumption of attestation clause to be overcome by affirma- tive testimony. See Probate op Wills. 74. Where a witness after signing, "said to the other witness within hearing of testator, 'H. you sign this', which she did in the same room", this does not ' ' overcome the presumption ' ' of the attestation clause as to signing, "as witnesses at his request and in his presence", though ' ! 'the testator's eyesight was so dim that he did not 1 actually see the act of writing". '■ —Will of Arneson, 128 W. 112, 116. 75. As to testimony of attorney and physician, witnesses to a will. See Testamentary Capacity. — Boyle v. Bobmson, 129 W. 567, 579. 76. Where a will "was drawn in lead pencil, executed by testator (in bed) by his mark", and his name and witnesses' signatures written on "a table in an adjoining room", "within the observation of the testator", it was, on the evidence, sustained. — Donovan v. Hyde, 141 W. 41. 77. "Upon proof of the authenticity of the signatures of deceased or necessarily absent attesting witnesses; there is a legitimate inference or presumption of fact that those acts which they purport to attest did occur. 78. Those acts include the signing or acknowledgment by the testator in the presence of the witnesses, his declaration of his purpose, his 420 PROBATE AND GENERAL LAW, CODIFIED request to the witnesses to attest, and their signing for that purpose in his presence and in presence of each other." 79. So held, there being "a full attestation clause'', the will being signed by mark, both witnesses being dead,- and the "testator could not read or write the English language", but was "of average intelligence," and "had lived in this country thirty years". 80. "The decisions in New York (contra) are, by reason of their statute, of little or no weight in "Wisconsin, where we have no statute to modify general rules of evidence in case of contested wills, sec. 3788 having no application. Jones v. Roberts, 96 W. supra". 81. "As to wills", "the attestation itself is prima facie proof of all facts essential to due execution, to which attesting witnesses should depose if present, 82. Including the authenticity of testator's signature, whether auto- graphic, by mark, or in hand writing of another, also his volition in signing and his mental capacity and understanding of his act. (Many cases) ". —Will of Hawldnson, 143 W. 136, 139. 83. A joint will of C. G. and M. his wife, executed in 1887, was shortly thereafter probated as to C. G., M. being executrix and she mak- ing no change in the will prior to her death in 1909. At this time the scrivener of "considerable experience" and one of the three witnesses was dead ; the 2nd. W. was eighty and apparently ' ' had no recollection of the transaction", said "he never signed" and later "did not know whether" the "signature was his or not", and was positive "that he had never been in" the house where the will was signed; the 3rd wit- ness D. testified that he signed, "but that neither C. G. nor his wife signed the will in his presence", nor the scrivener B., nor was the witness W. "in the house while he remained there". 84. An expert T. testified that "the will, the name of M., her mark, and the name of B. as witness appeared to have been written with the same pen and the same ink and at the same time and by the same person". Will disallowed by the circuit, but allowed by county and supreme courts. 85. "The recitals in the attestation clause show due execution of the will, and there is a strong presumption of the truth of these recitals, which must prevail unless overcome by clear and satisfactory evidence. (Cases, supra). 86. The correctness of the trial court's decision must be tested by this rule and not by the one ordinarily applicable to findings of fact. 87. Wills should not be lightly set aside where there is no question of mental incompetency or undue influence, and where, as here, there is no doubt whatever that Mrs. G. intended to make and supposed that she had made a valid will. 88. The testimony of witnesses as to the details of the transaction such as witnessing a document that took place twenty years before, is a EXECUTORS AND ADMINISTRATORS 421 very uncertain guide, where it directly contradicts their written state- ment made when they signed the instrument". 89. "It is the common and usual practice for the scrivener to make the mark, the party merely touching the pen while it is being made ' '. 90. "As we read and interpret the evidence, instead' of impeaching the attestation clause in a clear and satisfactory manner, it hardly raises a suspicion that the will was not properly executed". —Will of Grant, 149 W. 330, 333. 91. ' ' If otherwise properly executed, published, and declared, the fact that the signature (of testator) is followed instead of preceded the attestation clause would not invalidate the will. 92. And where we have an obliterated signature (at the usual place, .here) which was not witnessed and an admittedly genuine one (at the end of the attestation clause, here) not tampered- with which was duly witnessed, the obliterated signature does not prove revocation. In re Wood's Will, 11 N. Y. Supp. 157". Such will allowed. . —Gale v. Freemtm, 153 W. 337, 340. EXECUTORS AND ADMINISTRATORS. See also Accounts op Extrs. & Admrs. Administration. Adme. de Bonis Non., Adme. with Will Annexed. Compensation of Adme., etc. foreign e.xte. & adme. liability. paeties. public adme. Removal. Representative Capacity. Special Admr. Trustees. Trust Funds. Account: court's motion, 7. Acting as trustee, 68. Advance : own risk, 8. Appointment rights, 47. Assets: for own debt, 19, 58. Breach of trust, 20. Party also liable, 21. Authority: evidence of, 40, 44. Claims: pay not purchase, 6. Co-executors : authority, 18. Act together, in general, .65. Eight of appeal, 76. Two for, one against, 52. Competency of executor, 69.. Appointment mandatory, 70. Control only by county court, 68a. Conversion: sue for, 10. Cost liability, 11. Conveyance: authority, 31. Defective notices, 35. To admr. personally, 36. Through third party, 36. Costs: estate chargeable, 46. Debtor of deceased, 17, 54. Debt assets of estate, 56. Debt inventoried, 50, 57. Discharge of debt, 54, 55. . Default judgment against, 3. Discharged, pending appeal, 74. Still rights as such, 75. Erroneous judicial advice, 2. Executor-named, 59. Authority of, 60, 61. Common law; curtailed, 59. Not executor, 64. Undertaking on appeal, 62. Irregular administration, 4. Letters, as proof, 48. Liable for trust property, 77: Liability to heir, 14. Bond, cumulative, 14. Personalty residue, 30. Convert to money, 30. Prior to administration, 37. 422 PEOBATE AND GBNEEAL LAW, CODIFIED Property of a stranger, 27. Possession: devised realty, 5. Action for occupation, 39. After six years, 45. Technically, against equity, 15. "When estate settled, 32. When not needed, 38. Qualify: necessary, 24. Bealty: not trustee of, 9. Refusal to act, 16. Regarded as trustee, 71. Removal, not without notice, 1. Rents and profits, 13. Entitled to, against heirs, 13. Not chargeable for, when, 38. Representative capacity, 40. Descriptive of office, 28, 41. Effect of word "as," 43. Proof of same; 1 40, 44, 48. Statutory bond, 42. Sale of personalty, 12. Without previous order, 12. Sale of realty, 36. Cannot purchase, 53. To himself: remedies, etc., 73. Settlement by heir, 72. Six-year limitation, 45. ' Speculate, estate funds, 66, 67. Sue: as representative, 22. Accruing after decease, 23. Cause arose in lifetime, 22. Note payable to bearer, 29. Support of deceased's mother, 25. Mother's administrator, 26. Title: of devisees, 33. Vindication of, 33. Trust nature of office, 49. Undertaking on appeal, 63. Widow, trustee for, 51. Will not proved, 34. 1. An executor, it is held, cannot be removed for non-residence, with- out notice. — Humes v. Cox, 1 Pin. 551, 554. 2. The judge having erroneously "directed the administrators" to appraise a claim "as assets" and the administrator having paid out funds on the strength thereof and the court having thereafter cor- rected the error on discovery as was its duty, .the administrators would not be held with "that culpability which naturally attaches to the idea of a devastavit," and "Would be entitled to the fullest indulgence of the law." —Bowen v. Burnett, 1 Pin. 658, 662. 3. "A judgment by default against executors or administrators is not an admission of assets. ' ' — Chouteau v. Haoe, 1 Pin. 663, 665. 4. Administration granted to stranger within thirty days of decease "was in the highest degree, irregular, though not perhaps entirely void." The court could correct arid annul the administration and it was its duty so to do. — Branson v. Burnett, 2 Pin. 185, 188. 5. Executors are held entitled to the possession and control of property specifically devised or bequeathed, as against the devisee or legatee, until the estate is settled and delivery ordered. — Philips v. Slemher, 3 Pin. 457. 6. Administrator's duty is to pay not to purchase claims. See Pay- ment. , —Gillett v. Gillett, 9 Wis. 194, 197. 7. Administrator may be required to account after a year, on the court's own motion. — In re Hugh Campbell, 12 W. 369. EXECUTORS AND ADMINISTRATORS 423 8. Administrator may, at his own risk assign as an advance to heir, a note and mortgage. See Personalty. —Williams v. Ely, 13 W. 1, 6. 9. An administrator is held not the "trustee of the heir," of real estate not necessary to be sold for the payment of debts, and may pur- chase such estate in his own right from the heirs. — Barker v. Barker,, 14 W. 131, 149. 10. May sue as individual or representative for conversion of his intestate's goods after the decease and before administration, granted. 11. Whether the administrator is liable for costs individually or as representative "depends on the question whether he has been guilty of mismanagement or bad faith in bringing the action." — Knox v. Bigelow, 15 W. 415, 420. 12. Administrator may sell notes and mortgages without previous order. — Cleveland v. Harrison, 15 W. 670, 674. 13. "Until the estate was settled or delivered over by order of the county court to the heirs, the administrator * * was entitled to the possession and the rents, issues and profits of the premises in dispute, as against the heirs and their vendees." —Edwards v. Evans, 16 W. 181, 184. 14. Administrator is liable to an action by the heir for the latter 's share of the estate. Action on the bond is a cumulative remedy. See Liability. — Williams v. Davis, 18 W, 115. 15. "Assuming the entire correctness of the plaintiff's (administrator) claim that he is, as a matter of technical legal right, still entitled under the statute to the possession of the estate, on the ground that he has not been discharged nor the estate assigned to the heirs," "equity will not restrain a party (heir) in possession from disposing of the crops which he had raised, in favor of one who has only a technical legal right to the possession, without any beneficial interest, this being wholly in the party sought to be restrained." —Converse v. Ketchim, 18 W.- 202, 206. 16. ' ' The law is perfectly well settled, that a person appointed executor cannot be compelled to act, hut may refuse to qualify, or make a valid renunciation * before he has done any act which indicates the inten- tion to accept the trust," though, "it is said," that he "cannot resign". 17. "Assuming the general rule of law to:be that if a creditor appoints his debtor his executor and the debtor does not renounce the trust, then such appointment operates as an extinguishment or release of the debt," yet "whenever from the Whole will, it appears that it was not 424 PROBATE AND GENERAL LAW, CODIFIED the intention of the testator to discharge the debt by making his debtor his executor, then such appointment will not have that effect." —Finch v. Houghton, 19 W. 149, 156. 18. "The satisfaction of the mortgage by the deceased (co) executor S., is prima facie valid—* it may be voidable, but is not void. It was competent for S. to release the mortgage without the assent or signature of" his co-executor. 19. "However it may be at law, it seems to be now well established in equity, that, generally speaking, the executor or administrator can make no valid sale or pledge of the assets as a security for, or in pay- ment of, his own debt ; on the principle that the transaction itself gives the purchaser or mortgagee notice of the misapplication, and necessarily involves his participation in the breach of duty". —Weir v. Kosher, 19 W. 311, 316. 20. "Generally speaking, whenever an administrator sells, mortgages or pledges any of the personal property of which the intestate died seized or possessed, in payment of or as security for his own individual debt, he is guilty of a breach of trust". 21. "And every person who receives any" part of the personal assets in payment of or as security for his private debt, is a party to such breach of trust and is responsible therefor, (Story's Eq., 581; Colt v. Larkin, 9 Cow. 320)," — to the creditors and distributees, but the admin- istrator or administrator de bonis non, cannot avoid such sale or pledge. —Stronach v. Stronach, 20 W. 129, 133. 22. ' ' Upon a cause of action which arose in the lifetime of the testator or intestate and upon which he had a complete right of action, the executor or administrator must sue in his representative capacity". 23. "But upon a cause of action accruing to the executor or adminis- trator after the death of the testator or intestate, the executor or admin- istrator may sue, either in his own name, or as executor or admin- istrator". —Lawrence v. Vilas, 20 W. 381, 385. 24. "Under our statute, the executor must do something more than interfere with the effects of the deceased, to show that he accepts the appointment; he must signify to the county court his acceptance of the trust and give the bond required. Before he docs this he cannot be said to have qualified", and suit to enforce a trust will not be enter- tained. 25. The executor after qualifying, will be required by ' ' an order from the county court" to "pay over" funds to support the mother of the deceased whose support is chargeable to the estate under the will. 26. "And of course the administrator of the mother can obtain the same relief from the county court, if it appears that his intestate left EXECUTORS AND ADMINISTRATORS 425 any debts which should... be paid by this provision made for the mother in the will". —Batcheldor v. Batcheldor, 20 W. 452, 453. 27. ' ' If an administrator takes possession of the property of a stranger", claiming it as belonging to his intestate, if he detains it from the true owner after a demand, he would be liable to an action to recover it". —Lill'sC. B. Co. v. Russell, 22 W. 178, 182. 28. " 'Sole executor', 'executor aforesaid', or 'hereinafter named', are regarded as descriptive of the person of the trustee, and not as implying that the testator intended to annex to the office of executor, any powers or duties which by law do not belong to it". — In re Besley, 18 W. 451, 456. 29. ' ' It seems to be well settled that an administrator, whether foreign or domestic, may sue in his own name upon a note payable to bearer, although such note was transferred to his intestate in the lifetime of the latter. (Cases cited) ". — Sanford v. McCreedy, 28 W. 103, 106. 30. As a general rule, it is the duty of the executor to convert the whole of the residue of personal estate charged with a life estate into money and invest it in permanent securities. See Construction of Wills. Life Estates. — Golder v. LitUejohn, 30 W. 344, 351. 31. An administrator's deed is presumptive evidence of his due ap- pointment and authority to convey as set forth therein. See Deeds. ♦ —Chase v. Whiting, 30 W. 544, 548. 32. "If the estate is settled", whether "through the instrumentality of formal proceedings", or otherwise, "the executor or administrator has no longer any right to the possession of the real estate". See Real Estate. Settlement. 33. "It is no part of the legal functions of an executor or adminis- trator to vindicate the title of devisees to lands devised by the testator, especially if such title has been clouded or complicated by acts which occurred long after the same vested in the devisee under the will, and to subject the estate to the expenses thereof, as he necessarily must if he does so". — Flood v. Pilgrim, 32 W. 376, 380. 34. Where the will "was not proved and allowed as the last will and testament of the. deceased, it seems clear that the court had no power to appoint" either an administrator de bonis non or administrator with the will annexed. —Chase v. Ross, 36 W. 267, 272. 35. Where publication or posting of notices is defective, either of them would "invalidate the administrator's deed." See Sale of Realty. 36. A conveyance to the administrator personally through a third 426 PROBATE AND GENERAL LAW, CODIFIED party who bid off the premises, would also "invalidate the adminis- trator's deed". —McCrubb v. Bray, 36 W. 333, 340. 37. A person loaning money, on a note, of an estate of which she afterward became administratrix, may eleet to have the note enure to the estate, and beginning an action thereon as administratrix "suffi- ciently shows that she adopted the note as administratrix". —Kalckhoff, Admx. v. Zoehrlmt, 40 W. 427, 430. 38. It is not the duty of the administrator to take possession of the real estate, if not "needed in the settlement of the estate," and he, "is only chargeable with (such) rents and profits while the land remains in -his possession". 39. If the proceeds of the land are not needed and are not chargeable to him, he cannot maintain an action for use and occupation. See Real Estate. — Filbey, Admrs. v. Carrier, 45 W. 469, 471. 40. In an action by an executrix, where, to prove representative capacity, certified copies of the letters testamentary and of the bond were submitted, and it was claimed there should also have been "introduced in evidence the will and the probate thereof", it is, said, "We think the proof sufficient (prima facie at least) to show her right to maintain the action". — Wittmarm, Extrx. v. Watry, 45 W. 491, 493. 41. "It is true that courts have held that the words 'administrators, etc., ' placed after the name of a person in a contract, may be treated as descriptio personae, and that, notwithstanding such words, an action upon such contract may be maintained by or against the party in his individual name; 42. But this rule would not apply to a bond required by statute to be given to them in their representative capacity in a judicial proceed- ing. The circumstances under which the bond was given would, in such case, give it a different construction ; ' ' 43. "The administrators as such could maintain an action thereon. The meaning of the bond is quite as clear as though the word 'as' had been inserted between their names and their title, 'administrators, etc' " —Kasson v. Est. of Brocker, 47 W. 79, 86. 44. The letters and the order granting "are prima facie evidence of the authority to make the appointment. ' ' See Adme. de Bonis Non. —Oakes v. Est. of Buckley, 49 W- 592, 599. 45. The right of an executor to possession of lands, after six years administration, was denied. See Limitation op Actions. — In Est. of Pierce, 56 W. 560, 564. EXECUTORS AND ADMINISTRATORS 427 46. The administrator is presumed not personally chargeable with the costs, and the judgment should specifically make the estate chargeable. See Judgment. —Ladd, Admr. v. Anderson, 58 W. 591, 593. 47. As to rights of parties in appointment of administrator. See Administration. —Est. of Sargent, 62 W. 130. 48. Where the letters are "under the seal of the court" and "tested in the name of the judge thereof, and signed by him officially, and is in due form", the objection that this document was "nothing more than the act of the judge", "is unfounded in fact??, and it "was properly received" as proof. — Parish, Admr. v. T. of Eden, 62 W. 272, 281. 49. ' ' The office of an executor is in its nature a trust, in the discharge of which he acts as trustee". He takes title "subject to the trust and duties imposed by law".-: See also Vesting of Estates. —Scott, Extr. v. West, 63 W. 529, 555. 50. As to executor 's release from payment of his own debt, inventoried. See Inventory and Appraisal. —Lynch v. Dwm, Extr., 66 W. 490, 492. 51. After election by the widow, the executor "became her trustee as to her share of the personal estate, and must be held to an honest discharge of his duties as such trustee". See also Administration. Widow. —Beem v: Eimberly, 72 W. 343, 368. 52. Where two of three executors have contracted to sell realty under a power in a will, the third executor refusing, equity will not compel a specific performance, and the conveyance Required the action of all. See Power. — Crowley v. Hicks, 72 W. 539, 541. 53. Executors or administrators cannot become purchasers personally from themselves in sales of realty. See Sale of Realty. —O'Dell v. Rogers, 44 W. s 136, 177. 54. "When a creditor makes his debtor the executor of his will, the right of action for the debt is said to be discharged, for the reason that the executor cannot sue himself. 55. But, while this is so, the debt itself cannot be said to be dis- charged in any case where creditors of the estate wilt be 'prejudiced, nor where the will shows an intention that the debtor is not to be dis- charged. 56. In all such cases, it is settled in Massachusetts and here, "that the note or security becomes assets in the hands of the executor, for which he must account", and "to be treated as money in his hands. (Mass. cases) ; Finch v. Houghton, 19 W. supra. 428 PROBATE AND GENERAL LAW, CODIFIED 57. Nor can the executor escape this liability by failing to charge him- self with the debt in his inventory. Tarbell v. Jewett, 129 Mass. 457. 2 Wms. Extrs. (7th Am. Ed.) 624". Lynch v. Divan, 66 W. supra, so distinguished (See Inventory and Appraisal). — Est. of Robinson v. Hodgkm Extr., 99 W. 327, 330. 58. An executor may pledge estate assets on his personal loan, and the pledge be valid if the pledgee is innocent of the conversion. See Col- lateral Security. — Hemmy v. Hawkins, 102 W. 56, 60. 59. "The almost complete common-law powers. of one named executor before probate have been, greatly curtailed both by. the letter and the policy of the modern statutes vesting in certain courts, control over estates of testators". 60. Our statutes "provide (sec. 3794) that he shall give bond 'before he shall enter upon the execution of his trust.'. In.Batchelder v. Batch- elder, .20 "V7- supra, it is held he is not exercising any trust until that has been done". 61. In the statutes, before letters are issued, he is referred to as " 'the person named as executor', and in substantially all cases where the word .'executor' is used its .obvious significance is an executor con- firmed by appointment and fully installed in his office ' '.■ 62. And it is held that the circuit court did not obtain jurisdiction, on an appeal by the proponent and executor named in a will, denied pro- bate in the county court, on his failure to file an undertaking under sec. 4032. 63. "The reason that such officers (executors, etc.) are exempted from bond or undertaking is that they are already under bonds, — Stinson v. Leary, 69 W. 269 (see Appeal) ". , — 'Will of Somervaill, 104 W. 72, 75. 64. An executor named is not an executor until regularly appointed. See Costs and Fees. — Fox v. Martin, 108 W. 99, 101. 65. As to joint executors, in general, being required to act together, but t^hat one, in certain cases, may properly appeal. See Trustees. — In re Luscombe's Will, 109 W., 186, 195. 66. While in general ' ' an administrator will not be permitted to specu- late with the funds of his decedent's estate", •' 67. Yet where a "claim against defendant was sold and assigned to plaintiff (as administrator) for a valauble consideration", and "de- fendant had no interest in the estate represented by plaintiff", the transfer being valid, "defendant had no interest to inquire further. Chase v. Dodge, 111 W., 70; Sheridan v. New York, 68 N. Y., 30." Demurrer overruled. — Brossard, Admr. v. Williams, 114 W., 89 90. EXECUTORS AND ADMINISTRATORS . 429 68. Executor acting as trustee for many years, is accountable as executor and his bondsmen liable for default. See Trustees. — Wallber v. Wilmanns, 116 W., 246, 249. 68a. Executors cannot "be controlled by a court other than that from which they derive their authority". See Creditors' Actions. — Williams v. Smith, 117 W. 142, 144. 69. Where an executor named in the will was "legally competent", objections "that he abused his stepmother, was obnoxious to the object- ing heirs (the widow and ten children), and that his character was not such as to inspire confidence and trust", — "go to his temper, his dis- position, his habits, and his moral character, rather than to his capacity to do business", and are held insufficient, and that he "was legally competent" under sec. 3792, 70. As the "statute was mandatory and required the county court to give effect to the expressed wish of the testator by appointing him as such executor". —Saxe v. Sdxe, 119 "W., 557, 560. 71. "In all essential respects" "an executor or administrator" "is regarded in courts of equity as a trustee. (Citations) ". See also Trustees. 72. A settlement by a sole heir and beneficiary, as to an estate claim, is held binding on the administrator afterward appointed. See also Settlement. —McKeigue v. C. & N: W. R. Co., 130 W. 543, 546. 73. As to invalidity, laches, good faith, remedies, accounting, etc., on sale of realty by an administrator to himself through another. See Trustees. —McGlear v. Boot, 147 W. 60, 63. 74. Where the executors "completed their duties as such and were, in due form, discharged by the county court", "pending the appeal" in a special proceeding to revive an action, 75. "The personal representatives at the time of the appeal, are still such as regards the matter here". —Harris v. Welch, 148 W., 441, 445. 76. As to an executor's, and a co-executor's right to appeal from an order allowing the final account. See Appeal. —Will of Hyde, 157 W. 462, 464. 77. "The title, to personal property of the testator vests in his personal representatives", and the executors and their sureties are liable as such, for trust property, on failure to qualify as nominated trustees. See also Trustees. —Karel v. Pereles, 161 W. 598, 604. 430 PROBATE AND GENERAL LAW, CODIFIED EXEMPLIFICATION. • See Authentication. EXEMPTIONS. See also Homestead. Animals; year's food, 5. Annexation: homestead, 2. Debtor and family, 10. Earnings; also team, 11. Farm implement, 12. Not farming, 20. Fraudulent purchase, 19. Gift of exempt property, 13, 14. Government securities, 15. Laws not vested, 3. Liberally construed, 9. Occupation or business, 4. Pension money: taxes, 16. Converted to other, 21. "Span of horses," 1. Stock in trade; use, 22. Intention to engage, 23. Trade or business, 8. Tradesman; merchant, 17. Undivided interest, 6. i Personalty; homestead, ' Wagon: hearse, 20. Waiver of selection, 18. Year provision support, 10. 1. "'A span of horses' is two animals which may be connected together or united for the purpose of a team" and as such is within the exemption laws and a young colt cannot be one of a span. — Ames v. Martin, 6 W. 361. 2. An exemption of a homestead is changed from "agricultural lands" to a city exemption, after legal annexation against the owner's consent. 3. Exemption laws are not vested, and the legislature may change: them though not wholly abrogate them. — Ball v. Conroe, 13 W. 233. 4. "Nor do we think, as was contended, that a person, by multiplying his employments, can claim the exemption for such. It was designed for the benefit of persons engaged in either occupation or business singly". —Bevitt v. CrmdaU, 19 W. 581, 583. 5. Under the statute exempting from levy certain animals and a year's food for them, the debtor' is not entitled to the food exemption for animals he did not possess, unless "He had the present bona fide inten- tion and purpose of at once acquiring them so as to need the food for their support". — Cowan v. Main, 24 "W. 569, 572. 6. It "seems to be the principle underlying the exemption laws", "that the exempt property is necessary for the support of the debtor and his family". "But it is obviously impracticable to apply that principle to an undivided interest in a horse or buggy, which the debtor cannot claim to hold to the exclusion of his co-tenants". 7. It seems that the principle of no exemption to individual tenants in an undivided interest in homestead real estate, is "applicable to an undivided interest in personal property," not in its nature severable. —Wright v. Pratt, 31 W. 99, 104. EXEMPTIONS . 431 ,8. "Upon full consideration we are of the opinion, and so hold, that the term 'trade or business,' as used in the" exemption statute, "must be construed to mean some lawful trade or business, and that no person who is engaged in any business which is, prohibited by law, is entitled to any exemption of his tools, implements or stock in trade used and kept for the purpose of carrying on the same", unless specially exempted. —Walsch v. Call, 32 W. 159, 161. 9. Exemption statutes "are to be liberally construed." 10. "The debtor and his family", is held to include a son over twenty- one years of age as "head of the family", of "his mother, brothers and sisters" dependent on such son for support, so as to allow as exemptions, provisions "necessary for one year's support". — Connmghion v. Sands, 32 W. 387, 391. 11. "The earnings" of a laborer are construed to include "the earnings of his team" which was also exempt, as such statutes are to be liberally construed. — Kuntz v. Kfomey, 33 "W. 510, 513. 12. It is held that one, "who is not a farmer, and who, when the levy was made, was not engaged in any business requiring; the use of a mower", was nevertheless entitled to the exemption under the statute. — Humphrey v. Taylor, 45 W. 251, 254. 13. The owner of exempt property may make a sale or "gift of the same, and when completed by a manual delivery of the property, it may be held as against the creditors of the vendor or donor ; 14. But where, after such sal,e or gift, through change of circumstances the property would no longer be exempt property, Ryan, C. J., holds that the transfer must be bona fides. — Carhart v. Horsham, 45 "W. 340, 349. 15. "Congress has exempted from local taxation the securities of the government, held by its creditors, and now no one questions the power to do so. 16. The power to exempt pension money from seizure from debt rests on the same principle; and if it exists in one case, it must necessarily exist in the. other." — Folschow v. Werner, 51 W. 85, 89. 17. "A tradesman or merchant who is not a mechanic is within the protection of the statute", and is entitled to $200 worth of exemption of his goods as "stock in trade". 18. While the general rule is that the exemption must be claimed at •the time of the seizure by the officer, yet if "the officer refuses to give the debtor an opportunity," or "denies his right to any exemption what- ever, the actual, selection is waived or excused, and the want of it will not be a waiver of the debtor's right". —Wicker v. Comstack, 52 W. 315, 317. 432 PROBATE AND GENERAL LAW, CODIFIED 19. Where an insolvent debtor sold notes, not exempt property, and has purchased with the proceeds "other property" "with the intention of holding the property so purchased as exempt, and thus preventing his creditors from collecting their debts out of his property", he can hold such exempt property. See also Fraud. —Comstock v. Bechtel, 63 W. 656, 660. 20. "The privilege of claiming a wagon as exempt is not confined to persons engaged in agricultural pursuits, nor any particular class of business", and a hearse is held exempt as a wagon. —gpikes v. Burgess, 65 W. 428, 430. r 21. Following Mcintosh v. Aubrey, 185 U. S., 122, pension money is held not exempt 'when converted into other property', but presumably only 'when due or to become due', and Fblschow v. Werner, 51 W. supra, if "followed at all it should not be extended". —Joyce v. Russell, 140 W. 583, 588. 22. The exemption of subd. 8 of sec. 2982, "does not extend to cases where the stock in trade is not actually used or kept for the purpose of carrying on the business in which the party has been engaged. ( Cases) ' '. 23. While "some authorities hold that the right to the exemption is not lost by a mere temporary suspension of the business", it is held that where the owner, "retail liquor "dealer", after his license expired "was offering and endeavoring to sell his stock in bulk and in fact had sold some of it", this negatived "the contention that these goods were used or kept for the purpose of carrying on the business", and were therefore not exempt. — Hettinger v. Well's, 161 W. 640, 642. EXPERT TESTIMONY. Comprehended facts, 10. Credibility not, 4, 50. Discretion of court, 76. Disregarded; little weight, 48. Evidence as heard, 2, 3, 5, 56. Conflicting, complicated, 56. Hypothetical, when, 57. Many witnesses, 27, 56. Similar ease stated, 2. Single witness, 3, 6, 26. Understanding of facts, 18. Fees: ordinary witness, 84. Preparation contract, 85. General merits of cause, 24. General rule: witnesses, 1, 54, 72. Converse of rule, 54. Honesty or dishonesty, 31. Hypothetical case, 2, 5, 15. x All material facts, 67. Claims to be facts, 21, 71. Evidence before or after, 42. Eacts fall, answer falls, 69. Foundation in evidence, 70. More appropriate, 16. Preponderance unnecessary, 20. Sufficient facts, 68. Reason for preference, 17. Eules stated, 19, 49, 50. Sufficient material facts, 68. When not necessary, 56. When necessary, 57. EXPERT TESTIMONY 433 Insanity: act of, 25. Direct inquiry, non-expert, 78. Insufficient facts, 46. Court's discretion, 47. Non-expert, how examined, 79. Prevent confusion, 80. Non-expert impressions, 77. Latitude of inquiry, 9. Leading questions, 58. Medical books, 14. Mental capacity, 52. Non-expert; testify, 52, 63. Discretion of court, 61. Eccentricities merely, 63, 64. Exception to rule, 53. Familiarity only, 59. First state facts, 52, 63, 89. Lengthy conversation, 60, 61. Specific facts: impressions, 89. True field of opinion, 89. Value of opinion, 64. Trained nurse, 66. Non-expert: weather, 8. Daily occurrence matters, 37. Description difficult, 38. Insanity impressions, 77. Insanity opinion, 78. Insanity questions, how, 79. Prevent confusion, 80. Mental capacity, 52. Acquaintance, familiarity, 59. Based on conversation, 60, 61. Qualify himself by facts, 53 59. Observation knowledge, 36. Special knowledge, 35. Value of property, 11, 12, 13, 34., Object of all rules, 4. Opinion: on facts, 22. As to ultimate fact, 49. Not decide fact issues, 50. Not necessarily expert, 73. Physician: examines party, 41. Derived from statements, 45. Pacts in evidence, 42. Not leading questions, 58. Party's medical adviser, 45. Abortion case, 95. Criminal case, 94. Statements of party, 41. Testify as to license, 65. Precise fact, from letters, 93. Proverbially unreliable, 86. Lack of knowledge, 88. Little or no data, 87. Science, art, skill, 1, 54, 72, 81. Scientific investigation, 51. Testify directly, 51. ' ' Skill, ' ' broadly used, 74. Special knowledge, 75. Any subject, 81. State of weather, 8. Ultimate fact in ease, 49, 55, 90. Precise fact, from letters, 93. Science, art and skill, 91, 92. Very ppint in issue, 82, 91. Unsatisfactory nature, 7. Value of property, 11, 12, 13, 28. All having experience, 30. Common witnesses, 34. Competency examination, 32. 33 Cross-examination, 33. Hypothetical case, 32. Not conclusive, 97. Real or personal, 39. Second hand article, 96. Special knowledge, 29. Trees cut down, 40. Value of services, 43. Advisory, not conclusive, 44, 62. Executor's, not binding, 43. Want of ordinary care, 23. Weak and inconclusive, 83. 1. ' ' The general rule that the opinions of witnesses are confined to men of science, art or skill in some particular branch of business, is well settled". (But, see Zarnik v. C. Reiss Coal Co., 133 W. post). 2. An expert's opinion on the evidence as heard by him, is not proper. "The facts, as given in evidence, might have been stated to the witness, and then his opinion upon them would have been competent; or he might have given his opinion upon a similar case, hypothetically stated". —Liming v. State, 2 Pin. 215, 219. 3. "The decided weight of authority seems to be in favor of the rule" for the "admissibility of questions" to the expert "upon the evi- dence given on the trial, if he heard it, viewing it as a case stated". In this case approved as to a single witness' testimony heard, the court Zimmerman — 28 434 PROBATE AND GENERAL LAW, CODIFIED saying as to this rule, — "for ourselves, we can see no reasonable objec- tion to it". 4. "The sole object of all rules upon the subject is, that the questions shall be so framed as not to require the expert to give an opinion upon - the credibility of the testimony and truth of the facts, which are purely questions for the jury". 5. "The case stated— ' supposing K.'s statement to be truthful' — was purely hypothetical, and in this respect seems to us to be fully in har- mony with what should be the legal rule in such cases. And so we under- stand", the case of Luning v. State, 2 Pin. supra, (quoting the extract there given). —Wright v. Barely, 22 W. 348, 354. 6. Held that an objection "on the ground that the witness should not base his answer on the testimony of " another witness whom he heard testify, had "been properly overruled". —Buttrick v. G&mcm, 22 W. 356, 358. 7. "The unsatisfactory nature of such evidence (expert) is well known. The facility with which great numbers of witnesses may be marshalled on both sides of such a question (handwriting), all calling themselves experts, and each anxious to display his skill and ingenuity in detecting the false or pointing out the true, and equally honest and -confident that his own theory or opinion is the only correct one, and yet all on one side directly opposing all on the other, admonishes us of the fallibility of such testimony, and of the great degree of allowance with which it must be received". Dixon, C. J. —Darnels v. Foster, 26 W. 686, 693. 8. "The state of the weather, as to heat or cold" is "a matter of such common experience, that any witness of ordinary intelligence and having knowledge on the subject", is "competent to give his opinion as to whether the weather was so cold on a day remembered" that vegetables would be likely to freeze under certain conditions. 9. "In the examination of such witnesses (experts), considerable latitude of inquiry and interrogation must necessarily be indulged, and counsel are not to be limited by any narrow or stringent rules either in obtaining the opinion of the witness upon all the facts disclosed, or in ascertaining his skill and competency, or the want of them, to give such opinion". — Leopold v. VanKirk, 29 W. 548, 554. 10. The widow, being his attendant during his illness, and giving reasons, was allowed "to express her opinion as to whether her husband comprehended the facts", his sanity being in question. See Insane Persons. —Burriham, Admr. v. Mitchell, 34 W. 117, 134. 11. "In regard t6 this class of facts" — "in respect to the value of property or damage done to it, or the identity of a chattel or person, EXPERT TESTIMONY 435 or facts of that nature" — "a witness can only testify by using language which amounts to little more than giving his opinion about them. 12. But this kind of evidence is admitted in that class of cases from necessity, because it is impossible, by any mere words of description, to give the jury a proper understanding of the facts. 13. But, of course, the general rule is that a witness cannot testify as to his qpinion, but is limited to stating facts". 14. Where an expert gives an opinion, founded upon examination, and "testified from his own knowledge and experience, it was not proper to read from medical books to contradict him". ,, , —Knoll v. State* 55 W. 249, 254. , 15. "As to the propriety of allowing expert witnesses to give an opinion upon a hypothetical case stated, the practice has frequently been approved by this audi other courts, (Cases, supra, et al)=. 16. And it is clearly a more appropriate way than to allow ; the expert witness who may have heard the evidence in the ease to give his opinion upon his understanding of the evidence so given. : , ,, , 17. The reason for permitting hypothetical questions", instead 1 of giv- ing an "opinion from hearing the evidence", is stated in Bennett v. State, 57 W. 85, and it is there also said : , , , , 18. " 'If it be proper, in any case, to permit an expert who has heard the testimony of a particular witness or of all the witnesses to give his opinion upon such evidence, and there be any conflict of evidences or any doubt as to what the evidence is, he should be required to s1;ate fully his understanding as to what. facts are established by such testimony' ". 19. The rule "must be that, in propounding a hypothetical question to the expert, the party may assume as proved all facts which, the evi- dence in the case tends to prove, 20. And the court ought not to reject the question on the ground that, in his opinion, such facts are not established by the preponderance of the, evidence." . 21. "The party has the right to the opinion of the expert witness on the facts which he, claims to be the facts of the case, if there be evidence in the case tending to establish such claimed facts". , —Q%inn v. Higgins, 63 W, 664, 669. 22. "An expert must give an opinion upon facts. .He may be asked whether certain thingsare properly or skilfully done, ,, .,,... 23. ; But not whether the defendant was guilty of want of ordinary care or of negligence in the doing of such .things. 24. When scientific men are called as witnesses, they cannot give their opinions as to, the general merits of. the cause, but only their opinions upon the facts proved. 1 Greenl. Ev. § 44Q. ,. ; ■ .,, 25. It would be improper to, ask an expert witness whether a. certain .act was an act of insanity. Rex v. Wright, Russ. & R. 456." —Seliger v. Bastiian, 66 W. 521, 523. 436 PROBATE AND GENERAL LAW, CODIFIED 26. The question was raised as td v "the propriety of asking an expert witness to give his opinion upon the evidence of another witness who has testified in the case, and whose testimony was heard by the expert witness whose opinion is called for. That it is proper to propound such a question to the expert witness, and have him answer the same, was decided by this court. Wright v. Hardy, 22 W., supra. 27. This case has not been overruled by any subsequent decision of this court," and while the rule does not apply "in Bennett v. State, 57 W., 82, where " " the evidence bearing upon the question of insanity was very voluminous, elicted by the examination of a large number of witnesses", "the rule in Wright v. Hardy" was not overruled; and was also subsequently approved in Gates v. Fleischer, 67 W., 504. —Allot v. Dwinnell, 74 W., 514, 520. 28. " 'It is not necessary, in order to qualify one to give an opinion as to values, that his information should be' of such a direct character as would make it competent of itself as primary evidence. 29. It is the experience which he acquires in the ordinary conduct of affairs, and from means of information such as are usually relied on by men engaged in business for the conduct of that business, that quali- fies him to testify.' Whitney v. Thaeher, 117 Mass.y 523". 30. "The safest course is to permit the examination of all having experience in or acquainted with the thing to be valued, leaving their authority to be tested on their cross-examination". In this case a banker having general knowledge of the value of municipal bonds, was permitted to 'testify as to Atlanta City bonds, in which he had never dealt "and had no special knowledge as to their market value", and it was held no error. — Murray v. Norwood, 77 W., 405, 410. 31. "The honesty or dishonesty of a sale and purchase Of goods", attacked as fraudulent "is in no way a question for experts, and cannot •be established by the opinion of witnesses who were present and assisted in making the sale". — Bindskopf v. Myers, 77 W. 649, 651. 32. It was held "certainly not improper" to allow witnesses to give an opinion as to the value of "lands and the damages thereto on hypo- thetical statements of the testimony, as if they were experts". "The opinion of witnesses as to values may be given without any previous examination as to the grounds of it or their competency to give it. 33. Then, on cross examination, they may be asked their reasons or as to their knowledge of the property; or their competency to give an opinion may be first shown. 34. They are not experts having special skill and experience in a par- ticular trade, business, or profession. They are common witnesses. The value of their opinions must depend upon their knowledge of the sub- ject". —Moore v. C. M. & St. P. By. Co., 78 W. 120, 124. EXPERT. TESTIMONY 437 35. "Ordinarily a witness cannot give his conclusions from facts", ' ' but an opinion can be given in evidence by a non-expert as to matters with which he is specially acquainted but which cannot be specifically described. .36. In. speaking of the admissibility of such opinions as evidence, Judge Redfield says : ' Opinions of witnesses derived from observation are admissible in evidence where, from the nature of the subject under investigation, no better evidence can be obtained.' " Redf. Wills, 136. 37. "Opinions concerning matters of daily occurrence and open to common observation are received from necessity (Comm. v. Sturtivant, 117 Mass., 122.) ; 38. And the ground upon which they are admitted in such cases is that from the very nature of the subject in issue it cannot be stated or described in such language as will enable- persons not eye-witnesses to form an accurate judgment in regard to it (DeWitt v. Barly, 17 N. Y. 340; Snyder v. W. U. R. Co., 25 W., 66) ". 39. "It is always competent to prove value by the opinion of wit- nesses who have requisite knowledge, whether the subject be real estate or personal property. Clark v. Baird, 9 N. Y. 183 ; Kellogg v. Krauser, 14 Serg. & R. 142, 40. The witnesses were not asked to state what damages the plaintiff had sustained by cutting down and taking away, the trees. ; They were asked, only, what was the value, of the trees to the lot owner for certain purposes", "as a shelter and a windbrake, etc." Held proper and cases discussed, citing and quoting approvingly also Moore v. C. M. & St. P. Ry. Co., 78 W., supra. — Andrews v. To-uimans, 82 W. 81 s 83. 41. A physician who examines a party solely for the purpose of testify- ing as an expert, cannot testify as to statements made by the party, nor give an opinion based on such statements. Such testimony is "simply 'hearsay evidence', never admissible by any rule, except as a part of the res gestae, or ex necessitate". 42. "The. facts embraced in a hypothetical statement upon which an opinion of a medical witness is asked must be in evidence and sworn to be true, in the case, either before or afterwards. (Cases) ". — Abbot v. Heath, 84 W., 314,. 319. 43. Held not "absolutely binding .on the court", as to value of execu- tor's services and extra compensation. . See Compensation of Admr., ETC- —Ford v. Ford, 88, W. 122, 130 44. "Opinions of experts on the value of services" are not conclusive, but "such opinions are advisory only". See also Services. —Moore v. FAlis, 89 W. 108, 111. 45. Where the doctor's relation to the plaintiff was simply "as a medical, adviser and not for the purpose of being a witness," it is said 438 PROBATE AND GENERAL LAW, CODIFIED that "so far as the knowledge of plaintiff's condition was derived from the plaintiff's statements to him as a medical man for the purpose of receiving advice and treatment, the testimony was not incompetent", as hearsay. Quaife v. C. & N. W. R. Co., 48 W. 513 ; Davidson v. Cornell, 132 N. Y. 228. It "is not within the principle of Stewart v. Everts, 76 W. 35, and Abbot v. Heath, 84 "W. supra". — Block v. Milwaukee St. B. Co., 89 W. 371, 375. 46. Evidence by a witness that he worked "a few days, cutting ice" aj month before his death, with the deceased, who "became quarrelsome and got mad at the witness because, as he said, witness did not drive a horse straight while he (deceased) was holding the ice plow", was held insufficient "facts upon which to predicate an opinion as to insanity" of the deceased "at the time". 47. "It is the province of the court, in the exercise of a wise, legal discretion, to decide whether the facts on which a non-expert's opinion as to a person's sanity is based entitle him to express his opinion to the jury. Denning v. Butcher, (la.), 59 N. W. Rep. 69". See also Insane Persons. (Approvingly cited in Bucher v. Wis. Cent. R. Co., 139 W. post.). —Boorman v. N. W. M. B. Ass'n., 90 W. 144, 150. 48. Testimony of "non-experts, and some by experts" held properly disregarded as of "little or no weight". See Testamentary Capacity. —Jones v. Boberts, 96 W. 427, 430. 49. "Where evidentiary facts, upon which the fact in issue depends, are in dispute, opinion evidence as to the ultimate fact must be given upon a hypothetical case. (Cases, supra.) 50. The rule is that experts are not to decide issues of fact, hence all questions calling for opinion evidence must be so framed as not to pass upon the credibility of any other evidence in the case, else it will usurp the province of the jury or the court. Jones Ev., 374". —Maitland v. Gilbert P. Co., 97 W., 476, 484. 51. "Where the only point as to which opinion evidence is directed is properly a matter of scientific investigation, an expert in that line may testify directly thereto on personal investigation." (Marshall, J., Syl.) —Green v. Ashland Water Co., 101 W., 258, 271. 52. The opinion of a nonexpert witness "may properly be given as evidence on the subject of mental unsoundness, but only upon the wit- ness first qualifying himself by stating facts within his personal knowl- edge and means of personal observation, such as to satisfy the court of his ability to give an intelligent opinion liable to be of some assistance to the jury in coming to a correct conclusion. 53. Such evidence is an exception to the general rule which confines a 'nonexpert witness to a statement of facts only. The exception applies EXPERT TESTIMONY 439 solely when the qualification of the witness is first satisfactorily shown v Lf T* md l cated - Burnham v. Mitchell, 34 W., supra; Jones Ev., 366; Rogers, Expert Tes., 6". — Crawford v. Christian, 102 W., 51, 53. 54/ "It is well, settled in this state that 'the opinions of witnesses Which do not relate to matters of science, art, or skill in some particular matter or department of business, are not admissible in evidence'" Lumng v. State, 2 Pin. supra; (other eases). So the converse "seems to be Well settled. (Gases)". 55. "Of course, such opinions must be based upon proper questions; but they are not objectionable merely because they cover one of the ultimate facts to be determined by the jury, as stated by Mr. Justice Marshall in" Maitland v. Gilbert P. Co., 97 W. supra. — Daly v. City of Milwaukee, 103 W. 588, 590. i. 56. "From a careful comparison of the decisions of this court, the following rule may be formulated : Where the evidence- given is not conflicting, and not so complicated or voluminous as to make a difference of understanding of material ■facts probable, an expert witness who has heard it all may be asked to predicate his opinion thereon, on the assumption of its truth, without rehearsing it in a hypothetical question ; " 57. And that, unless such conditions exist, a question should be put, embodying the facts on which he is asked to base his opinion". —Cornell v: State, 104 W. 527, 537. 58. As to leading questions to "physicians testifying as experts," it is said "the evidence of such witnesses is so liable to be biased and to promote injustice, that courts should confine questions put to'' them within the rules with considerable strictness." —Nicoud v. Wagner, 106 "W. 67, 76. 59. Non-expert testimony not complying with the rule of Crawford v. Christian, 102 W., supra, as founded only on "proof of acquaintance and familiarity", was held properly disallowed, on the question of com- petency ; 60. But one question, "a witness having related a lengthy conversa- tion", — " 'Q. Did you, from your conversation with him, based upon that,form an opinion as to whether he was competent, and had been, to do business?'," — "might well have been allowed; 61. But its exclusion was not such error as to necessitate reversal. The admission of such opinions is largely discretionary with the trial court. Boorman v. N. W. M. R. Assn., 90 W. supra". See also Incom- petents. —In re Gdnsp. of Welch, 108 W., 387, 394. 440 PROBATE AND GENERAL LAW, CODIFIED 62. "The question of the value of professional services is one as to which opinion evidence is not conclusive, especially when the tribunals which try such questions consist of lawyers, themselves presumably capable of exercising judgment and forming opinion as to value of the various facts and circumstances established. (Cases) ". —Remington v. Eastern B. Co.,. 109 W., 154, 162. 63. "Non-experts may give their opinions as to the soundness of a person's mind," after showing satisfactory "personal intercourse," (cases supra), but when "the acts and conversation" "show merely mental eccentricities, as distinguished from weakness of mind or delu- sions affecting testamentary capacity, 64. It is very evident that the opinion of the witness that the person in question is or was incapable of making a will must have very little probative force". — In re Butler's Will, 110 W., 70, 76. 65. Physicians may testify as to being licensed to qualify them as experts, but whether the statute, sec. 1436, "in terms prohibiting prac- ticing physicians from testifying as experts unless their qualifications be established by diploma or license as therein defined", is purposed "to confine all expert testimony upon medical subjects to persons having the statutory qualifications", is not determined, — 66. The question being as to expert testimony of a trained nurse, and there being numerous physicians supplied ' ' much more likely to be safe guides". "In that situation" the court's ruling refusing "to permit this witness to testify further on the subject" is held not error. —Allen v. Voje, 114 W., 1, 13. 67. "The objection" that in a hypothetical question, "all material facts in evidence bearing upon the subject of the inquiry must be pro- pounded to the expert", "is not well founded under the rules governing opinion testimony". 68. ' ' The rule is that each party to the action may frame hypothetical questions embracing sufficient facts for the expert to form an intelligent opinion concerning the inquiry, upon the theory that there is credible evidence for the jury to pass upon in support of the assumption. 69. The observations upon the subject in the opinion of Zoldoske v. State, 82 W. 580, explain the grounds of this practice: .'The rule in relation to hypothetical questions is that, if the facts upon which the hypothesis is based fall, the answer falls also (citation) ; 70. That an expert cannot be asked as to an hypothesis having no foundation in the evidence in the case, but may be asked his opinion of a similar case hypothetically stated; 71. And it seems "that counsel may assume the facts as they claim them to exist, if within the possible or probable range of the evidence'. (Citing)". —BcUssler v. State, 122 W. 365 374. EXPERT TESTIMONY 441 72. .Opinion evidence "may have no appreciable connection whatever with 'science, art, or skill', in a technical sense, and yet be admissible just, as clearly as if it possessed such connection. t 73. All opinion evidence is not expert evidence in the technical sense, but all expert evidence is opinion evidence in any view' of the matter, and all admissible opinion evidence is expert evidence in the general— the legal — sense of. the term. 74. The term 'skill', as used in the quoted expression, must be regarded in its broadest signification, not applied necessarily only to mechanical or professional knowledge. It includes every subject sus- ceptible of special and peculiar knowledge derived from experience". 75. "This court" "has distinctly said that any subject wherein a person may become specially learned is within the .broad field of expert evidence, 76. The question as to the subject and the special qualification in each instance to be solved by the trial court in passing on the competency of the witness, in which field, within all reasonable limitations, its judg- ment is to be respected. (Cases)". —8chwcmt.es v. State, 127 W. 160, 186. 77. Because of the difficulty of non-experts describing detailed acts, as to sanity or insanity, "the rule has grown that the ordinary observer - may so state his impression of his interview" with the subject. 78. "And a declaration of opinion generally that the person was sane or insane, and a direct inquiry as to such opinion is now sanctioned by the weight of authority, with which the expressions in our own decisions agree. , 79. The subject received lucid treatment at the pen of Harlan, J., in Conn. Mut. L. Ins. Co. v. Lathrop, 111 U. S. 612, which case presents ideal illustration of the best manner of propounding the proper question to the witness. - After a conversation had been narrated, the manner described as agitated, face flushed and expressionless, the question was propounded, : substantially, 'What impression was made upon your mind by the conduct, actions, manner, expressions, and conversation which you observed?' This was fully approved. 80. We do not mean that there would be error in the direct inquiry as to the witness's opinion as to the person's sanity, based,, of course, on what he saw and heard; But the form quoted above is much more likely to prevent confusion in the mind of the witness and to impress the jury with the significance of the testimony". —Quthey v. State, 131 W. 178, 187. 81. "The scope of expert evidence is not restricted to matters of science, art, or skill, but extends to any subject in respect to which one 442 PROBATE AND GENERAL LAW, CODIFIED may derive by experience special and peculiar knowledge. Hamann v. Milwaukee B. Co., 127 W., 550. 82. ' Opinion evidence may properly be given as to the very point the jury are to decide', when such point is within the field of expert evidence, when the questions are based upon undisputed facts or assumed facts warranted by the record. (Oases) ". —Zarntit v. C. Beiss Goal Co., 133 W., 290, 301. 83. As to expert evidence being "weak and inconclusive", on incom- petency to care for property. See Incompetents. — In re Deleglise, 134 W., 41, 51. 84. As to expert .witness being entitled to only ordinary witness fees for testifying. 85. As to preparation for testifying, other private compensation may be implied or contracted for. See Witnesses. —PUller v. Waukesha Co., 139 W., 211, 213. I 86. ' ' The testimony of experts is proverbially unreliable at best, even when the experts are learned and competent, because bias is almost unavoidable on account of our mode of selecting experts, and bias requires small basis upon which to ground an opinion. 87. But where this unreliability is accentuated by a showing that the expert has little or no data upon which to base the opinion (Strong v. Stevens, 62 W. 255), And the subject upon which he expresses an. opinion is" "of great doubt and difficulty, 88. Or Where the alleged expert demonstrates his lack of knowledge by his testimony, such testimony will not be sufficient to support a verdict which to this court seems unjust or excessive. (Case)". —Bucher v. Wis. Cent. B. Co., 139 W. 597, 611. 89. "The true field of opinion from the non-expert" witness is "to testify as to specific interviews and the impression left upon his mind as to" "mental peculiarities exhibited in such interviews", when tes- tifying as to "mental capacity", and "there was no error in excluding the opinion" of such witness. — Bobvnson v. State, 143 W. 205, 208. 90. ' ' It has been held that expert evidence which covers the ultimate facts to be decided by the jury and which is not based on a hypothetical case is not competent. (Cases). 91. It has also been held that opinion evidence as to the ultimate fact may be given by experts in regard to matters of science, art, or skill in some particular calling, when based on a hypothetical question made up of facts that are not in dispute. Maitland v. Gilbert P. Co., 97 W. supra ; (other cases). 92. We do not understand that these cases have been overruled by EXPRESS TRUSTS 443 what is said in Lyon v. Grand Rapids, 121 W. 609. (In the latter case, it is said, p. 620, that holding an expert's testimony "not necessarily objectionable because the tendency of the answer is to pass upon some ultimate question", — "is somewhat dangerous ground. The safer way is to go no further than to show by the opinion evidence that the particular circumstances proved or assumed are a sufficient producing cause for the effects complained of".). 93. Held "that no error was committed" in allowing experts "to read the letters and then say whether they contain a charge of a 'precise fact'," rather than "calling for the same kind of an answer to a hypo- thetical question which embodied the facts stated in the letters", — the question of libel by the letters being at issue. Site v. Keene, 149 W. 207, 212. 94. "This question", — as to whether sec. 4075 as to not permitting attending physicians to testify as to information obtained professionally, has any "application to criminal prosecutions", — "was mooted but left undecided in Smits v. State, 145 "W., 601. We leave the question still open and undecided". 95. It is held "in the instant, case" that "the provisions of" see. 4078d "take away, in prosecution for abortion, the privilege conferred by sec. 4075". — State v. Law, 150 "W.,, 313, 325. 96. ^here "plaintiff introduced opinion evidence as to its value", of "a second-hand" feed mill lost in transit, it "was error" to exclude defendant's evidence "that the mill was bought about the time' of ship- ment for $15," "the property not having a specific market value". (Cases). 97. Such opinion ".evidence is not conclusive" and the' jury "were at liberty under it to find a lower or higher value than the undisputed evidence showed". Moore v. Ellis, 89 W., supra; (U. S. Cases)". • — Maas v. Chicago & N. W. B. Co., 156 W., 44, 45. EXPRESS TRUSTS. See also Trusts. Trustees. Lands, in writing, 1. Ostensible partners, 5. Statute of frauds, 2. Penal bond for proceeds, 3. Limitation statute, 4. 1. Express trusts in lands, or such as are created by agreement of the parties, must be evidenced by writing, and parol proof is not admis- sible to establish them. ' —Pratt v. Ayef, 3 Pin. 236. 444 PKOBATE AND GENEEAL LAW, CODIFIED 2. Express trusts ' ' come within the intention and words of the statute (of frauds) which requires that all such agreements shall be in writing," but implied trusts ' ' are not affected by the statute ' '. —Whiting v. Gould, 2 W. 552, 585. 3. A penal bond given to account for proceeds and sale of lots, is held to be an express trust, and it is said: "As the object of the trust here was that D. should sell the lots in which he and Mrs. B. had an equal interest, and was to account for one-half the proceeds to her, to that extent at least he was a trustee, and she was the cestui que trust". 4. "The statute of limitations has no application" to express trusts not denied. — Bostwick, Admr. v. Est. of Dickson, 65 "W. 593, 597. 5. Ostensible partners are trustees of an express trust as to dormant partners. See Surviving Partner. —Piatt v. Iron Exchange Bank, 83 W-, 358, 360. FACTOR. Definition, 1, 6. Sell on credit, 2. Factor, or auctioneer, 9, 10. Specific property in goods, 4. Interest in proceeds,^ 11. Sue for purchase price, 7, 14. Paying before receiving, 12. Factor control, when, 14. Principal paid in advance, 13, 15. Principal control suit, 8. Lien upon goods, 4. Sole interested party, 15. Possession until paid, 5. Trustee of express trust, 7. Sell in own name, 3. 1." "An agent employed to sell personal property entrusted to his possession by or for his principal, for a compensation commonly called factorage or commission, is a factor. 2. As such he may sell on credit unless contrary to his instructions or custom. 3. He may sell for his principal in his own name, and then sue in his own name for the price. 4. He is entrusted with the possession, management, control, and dis- posal of the goods to be sold, and has a special property in them and a lien upon them. 5. He may retain possession until his advances, expenses, and com- missions are paid. (Citations) ". — Edgerton v. Michcls, 66 W. 124, 130. 6. "A factor is said to be 'an agent employed to sell or to purchase , and sell goods or other personal property intrusted to his possession, for a' " commission. 7. "He is", "as to the principal, deemed to be a trustee of an express trust under the provisions of the statute (Section 2607 ; other citations), FINAL SETTLEMENT 445 and as such is authorized to sue for the purchase price by the exception to sec. 2605". 8. "The principal can control the litigation if he sees fit, subject to the due protection . of the factor's special interest." (Questions dis- cussed). —Beardsley v. Schmidt, 120 W., 405, 408. 9. "The general rule is that the person employed to sell another's property at auction, 10. Or a factor to whom property has been consigned, for sale, 11. Has an interest, upon a sale being made, in the proceeds, entitling him to sue and recover the same in his own name and, 12. In case of his paying the net proceeds and delivering the property before receiving payment from the buyer, as in this case, 13. And the principal accepts and retains the money, the agent is entitled to recover of such buyer for his own use". 14. "While ' ' a factor, the same as an auctioneer, is entitled to sue for the sale price in his own name and control the litigation if the principal does not prohibit* it, (Beardsley v. Schmidt, 120 W. supra), 15. In case of the principal receiving full payment from the agent in advance of the latter obtaining payment from the purchaser, the agent is the sole party in interest", and "the principal has no concern in the matter between such agent and purchaser". —Progress B. B. F. v. Chicago H. S. Co., 153 W. 249, 251. FEES. See Costs and Pees. FEME COVERT. See Married Woman. FINAL JUDGMENT. See Judgments. FINAL SETTLEMENT. See Accounts of Extrs. & Admrs. Descent and Distribution. Judgments. Settlement. • 446 PROBATE AND GENERAL LAW, CODIFIED FIXTURES. Agreement, of all parties, 9. Consider personalty, 9. Chattel mortgage, 2, 22. Fence: permanent, 15. Other 's land, by mistake, 17. Bails along: intended for, 1. Bails laid as fence, 16. Intention: improvements, 12. Machinery, fastened, 14, 18. Primary importance, 13, 19, 24, 30. Grantor and grantee, 24. Landlord and tenant, 25. Mortgagor and mortgagee, 24. Vendor of personality, 24. Landlord and tenant, 3. Attached at entry, 26. Counters, screens, furnace, 25. Icehouse, lessee built, 28. Landlord, etc. — continued Surrender before removal, 27, 28. Lease : lessor no title, 4. Foundation immaterial, 5. Hostile to true owner, 7. Mortgage: fixture vendor, 2. Chattel mortgage, 22. , Machinery placed, 2, 23. Subsequent accessions, 21. Pass with realty, 8. Physical annexation, 13. Of little importance, 18, 29. Bemoved without injury, 20. Solid foundation, personalty, 31. Trespasser affixes, 7. True fixture rules, 6, 10, 20. Intention, main test, 13, 24. Three elements, 11. 1. "Where rails have been placed along the line of an intended fence, for thejDurpose of being made into, the fence, though not, actually applied to that usej they pass by a deed of the land, there having been a manifest appropriation to the use of the land". — Conklin v. Parsons, 2 Pin. 264, 267. 2. If a mortgagor or his tenant place a fixture, stationary steam engine, upon the mortgaged premises with the consent of the fixture vendor, who retains title by chattel mortgage, the fixture* cannot be removed as against the prior mortgage, by the mortgagor, tenant or vendor, it becoming a part of the freehold. 3. Ordinarily "as between landlord and tenant (the fixture) would be subject to removal by the latter during his term, if annexed by him". v : — Wremkland v. Moulton, 5 W. 1, 5. 4. One who enters upon land, under a lease from another having no title, erects a dwelling house thereon used as a part of his adverse enjoy- ment of the land, has no right to such building, or to remove the same, as against the land owner, though the same rest only on wooden posts upon the surface and not let into the soil. 5. The notion that such a building must be "built upon a brick, or stone or other foundation let into the ground," or that "any such physical attachment is necessary in order to constitute a fixture, which once prevailed, has been almost entirely abandoned". 6. "The true rule now for determining whether a thing is to be regarded as a fixture or not, is said to be, to consider the character of the act by which the structure is put in place, the policy of the law connected with its purpose, and the intention of those concerned in the act. Meigs' Appeal, 62 Pa. St. 28." FIXTURES 447 7. " A mere trespasser," hostile to the true owner,: erecting a build- ing "for his permanent use and enjoyment", though with, an ''intention at some future period to remove it, or his agreement with a stranger that he might do so", has no right as against' the true owner to remove the building, it being a fixture. i — Huebsckmann v. McHenry, 29 W. 655, 661. 8. "That which is in its nature otherwise personal, when physically attached to the soil, or constructively attached by its use or intended use with the soil, Vill pass with the title of the realty, (Citations) ; Oonklin v. Parsons, 2 Pin., supra". —Jenkms v. McCurdy, 48 W. 628, 629. 9. "When all the parties, as in this case, the owner and the mort- gagees, have seen fit to treat what might otherwise be fixtures (machinery in a mill) and part of the realty as personal property, by their agree- ments, and thus sever them from the freehold and license their, removal, the law will consider such fixtures, as between the parties, personal property to all intents and purposes. ( Cases) ' '. —Smith v. Waggoner, Admx. 50 W ; 155, 162. 10. "These rules are unquestionably correct, and form the true criterion for determining in all cases whether the constructions in ques- tion are fixtures:" , i 11. "(1) Actual physical annexation to the- realty; (2) application or adaptation to the use or purpose to which therealty is devoted; (3) an intention on the part of the person making the annexation to make a permanent accession to the freehold". (Quoted with approval in Bar- inger v. Evenson, 127 "W. 36, 40). 12. "The verbal promise of the defendant C. before the written con- tract (of real estate purchased) was entered into, and as an inducement thereto, that he would build" a shop and put machinery therein for manufacturing purposes, their character and the use of the improve- ments, "clearly evince an intention to make such improvements, includ- ing such machinery, permanent fixtures and a part of the realty. 13. This matter of intention is coming to be the main test in such cases, and the matter of physical annexation of comparatively little importance. Huebschmann v. McHenry, 29 W. supra". 14. In this case "a steam boiler and engine", "on a stone 'foundation let into the ground" and also "the line shafting" adapted to the build- ing_and "connected with the engine by a band from the main wheel" bolted and fastened by hangers, "a circular saw and frame. and jig saw and frame", "a mortising machine, a planer, a borer and header, and a turning lathe, all securely fastened to the building", "became a part and parcel of the establishment for the manufacture of wooden articles", and are held to be fixtures. — Taylor v. Collins, 51 W. 123, 127. 448 PROBATE AND GENERAL LAW, CODIFIED 15. "The building of a fence upon land as a permanent structure, in the absence of any" agreement to the contrary with the owner of the land, ' ' would necessarily convert the material of which it was built from personal property to realty. (Cases). 16. Rails laid into a fence upon land are a part of the freehold, even though not otherwise attached to the land than by their weight. (Cases) . 17. The mere fact that the fence in question was built by the plaintiff upon lands not his own, by mistake, did not prevent its becoming a fixture to the real estate as soon as it became attached to the soil. Sey- mour v. Watson, 4 Blackf. (Ind.) 555". (Modified by ch. 202, L. 1883, as to such a fence built before a boundary line has been established by the county surveyor. See Scholl v. Kinitzer, 83 W. 308,). — Kimball v. Adaims. 52 W. 554, 556. 18. Quoting the rules of Taylor v. Collins, 51 W. supra, and referring to Second National Bank v. 0. E. Merrill Co., 69 W., 501, where it was held that ' ' all the machinery " in a foundry building, ' ' over and beyond the water-wheel, much of which was attached to the building", and held to be "not permanent fixtures, but personal property, which the tenant who placed the machinery there had a right to remove ' ', it is said that "the mere fact of attachment to the freehold is" of little importance, "so long as the identity of the property remains, and its capacity to be removed and used elsewhere. 19. The principal consideration in such cases is the intention of the party putting in the machinery ' '. —Walker v. G. B. Flouring Mill Co., 70 W. 92, 97. I 20. The rules of Taylor v. Collins, 51 W. supra, are followed, and machinery was held realty "although it was capable, of being removed without injuryto the-building. (Cases)." 21. The lien of plaintiff's realty mortgage covered all, including sub- sequent accessions, "unless, by a valid agreement to which it was a party, the character of personal estate was impressed thereon. McPad- den v. Allen, 134 N. Y., 489. 22. The contemporaneous execution to the plaintiff of the chattel mortgage to secure the same debt did not per se operate to impress upon such property the character of personal estate." —Homestead Land Co. v. Becker, 96 W., 206, 211. 23. Following and citing with approval, Frankland v. Moulton, 5 W., and Homestead Land Co. v. Becker, 96 W., supra, and N. Y. cases, a dynamo exciter and belts placed in a building of an electric light com- pany, as between the purchaser at a realty mortgage foreclosure sale and the vendor of the machinery, are held to have become fixtures, though at the time of purchase, later "the company intended to purchase a larger dynamo." —Gunderson v. Sivarthout, 104 W., 186, 192. FOREIGN EXECUTORS AND ADMINISTRATORS 449 24. Following the principles of cases supra,- and quoting Taylor v. Collins, 51 W. supra, it is said, — "Intention is to be regarded of primary importance as between grantor and grantee, mortgagor and mortgagee", and "as between the owner of the realty and the vendor of personal property who sells the same with the intention of having it permanently annexed to the freehold and it is so annexed". 25. As "between landlord and tenant" here, as to certain articles of shelving, counters, screen doors, and furnace, removed by the tenant, — held, the question whether fixtures, should have been submitted to the jury. 26. Such articles as were attached when the tenant entered, in the absence of evidence to the contrary, are the property of the landlord. — Baringer v. Evenson, 127 W. 36, 41. 27. "If a lessee surrenders possession of the premises before removal of a fixture, without express reservation of the right of' removal, he loses all right to remove it. (Cases)." 28. An ice house built by the ; lessee, "located and attached ; to the ground as icehouses usually are built", having "characteristics of per- manency ' ', is held a fixture, ' ' and that the lumber composing it did not retain its former status of personalty", and not removable after the term. ' — Phelps v. Ayers, 142 W:, 442, 445. 29. "While physical annexation is an important consideration in deter- mining whether an article or building is a fixture, 30. The intention of the parties is the controlling consideration in determining the question. ( Cases) ' '. 31. Building ''built on a solid stone foundation embedded 'in soil", on the evidence, is held personalty. ' ' —Brobst v. Marty, 162 W. 296, '300. FORECLOSURE. See Mortgages. FOREIGN EXECUTORS AND ADMINISTRATORS. Action by: in our courts, 1. Action by— continued ' Advantage by abatement, 5. Same footing as domestic, 12. Assets, immaterial, 12. Subsequent filing,. 6. , Demurrer or abatement, 9. Waiver of filing, when, 7. Filing foreign letters, 4, 12. When, may sue, 2, 12. Mortgage: -foreclosure, 8. Wrongful death here, 13. Power of sale in mortgage, 10. Appeal under sec. 4031, 14. Not want of title, 3. Non-resident administrator, 11. Zimmerman — 29 450 PEOBATE AND GENERAL LAW, CODIFIED 1. "Foreign administrator cannot maintain an action in our courts" without the statute. 2. (Foreign administrator or executor may sue and otherwise act upon filing authentication if "none shall have been appointed in this state." Sec. 3267). —Johnson v. Wilson, 1 Pin. 65, 67. 3. "Whatever difficulty there may be in the question elsewhere (Story's Conn. 507-529), there appears to- be no doubt here that the disability of a foreign executor or administrator to sue in the courts of this state, is mere disability and not want of title. ' ' 4. "The filing of the foreign letters (Sec. 3267) here is purely minis- terial, requiring no action of the court here, and giving it no jurisdic- tion." 5. "Even before the record (of filing), the disability can be taken advantage of only by way of abatement. ' ' 6. The foreign authentication, on a claim contest in county court not having been filed until just before issue was rejoined in the circuit court, and the question there "first raised by the demurrer," was held a suf- ficient filing; Smith v. 1 Beckham, 39 W. 414, 417. 7. "The dictum in Moir v. Dodson, 14 W. 279", "that the capacity of a foreign executor to sue in this state must be taken advantage of by demurrer, or the question will be waived, must be held to apply only to cases in which such, legal incapacity appears on the face of the complaint, which is the language of the statute". See Foreign Guardian. — Vincent, an Inf. by Odn. v. Siarks, 45 W. 458, 462. 8. "We think the authorities are clear that an executor of the will of a mortgagee resident in another state, and to whom letters testamentary have been granted by a court of competent jurisdiction in another state, may proceed to foreclose a mortgage by advertisement in the state where the mortgaged property is situated". See also Mortgages. 9. "The title of the foreign administrator or executor to the money due and personal estate of a person resident in and dying in another state depends upon his appointment in that state ' ', and an action to recover the same "in this state", "may regularly proceed to judgment without filing any certified copies of his appointment in this state, unless objection to his proceeding in the action be taken either by demur- rer or plea in abatement. 10. If a foreign executor may foreclose a mortgage by action in this state, we see no reason why he may not execute the power of sale given to him by contract in the mortgage", p. 518. — Hayes v. Frey, 54 W. 503, 514. i 11." It is the manifest policy of the statute not to favor the appoint- ment of a non-resident as administrator". See Administration. — Est. of Sargent, 62 W. 130, 133. FOREIGN GUARDIANS ' 451 12. When the ''original, appointment, or a copy thereof duly authen- ticated," under section 3267, "is duly filed in any county court, the foreign administrator or executor is placed upon the same footing as a domestic administrator or executor, .so far as capacity to sue in our courts is concerned", and it is immaterial "where there are assets or where the suit is to be brought". — Murray v. Norwood, 77 W., 405, 408. 13. An administrator appointed in another state may bring an action in this state for wrongful death here, under sees. 4255-56, the deceased and interested parties being residents of such foreign state. —Robertson v. C. St. P. M.& 0. B. Go., 122 W. 66. 14. Whether a foreign administrator can appeal under sec. 4031, "may admit of doubt". See Appeal. — Will of Durkee, 164 W. 41, 43. FOREIGN GUARDIANS. Action by: Action by — continued Appointment authority, 2. . Not jurisdictional, 1. Demurrer or abatement, 1. Title: sell lands here, 4. No guardian in state, 3: Statutory authority, 5. 1. "The incapacity or disability of a foreign guardian to sue in this state can only be taken advantage of by way of abatement, and is. not jurisdictional; and if such disability appear upon the face of the jcom- plaint, such question in abatement of the suit may be raised by demurrer. Smith v. Peckham, Extr., 39 W. 414" (See Foreign Extrs. and Admrs.) 2. "Where suit is brought by a foreign guardian by authority only of his appointment in another state, the disability to sue in this, state is apparent on the 'face of the complaint, and the omission to allege the filing of an authenticated copy of such appointment not only shows that such guardian has no right to sue in this state, but it is a violation of the statute requiring such allegation". (Sec, 2, ch. 265, L. 1875, apparently since omitted as to guardians.) 3. "But the condition in question, that no guardian has been appointed in this state, is a negative condition ' ', not to be set up in the complaint, but "should be shown by way of plea or answer in abatement". —Vincent v. Storks, 45 W. 458, 460. 4. A foreign guardian cannot "pass the title to lands of his ward situated in this state without first obtaining authority so to do from the courts here. " 5. "Sec. 4281 gives to foreign guardians, under the conditions stated therein, the same power to sell the real property of their wards situated 452 PEOBATE AND GENERAL LAW, CODIFIED in this state as guardians appointed by the state court possess", "by procuring special authority", "as provided in ch. 151, stats. 1898". —Adkins v. Lou&hs, 107 W. 587, 596. FOREIGN JUDGMENTS. Administrators, against, 5. Independent; different states, 6. Principal; ancillary, 7. Appellate jurisdiction, 34. Claim: barred; other state, 13. Allowed; Mich, judgment, 24. Disallowed in Minn., 14. Effect in other states, 17. Parties and privies, 23. Property in other state, 18. Eesidence; other facts, 23. Pull faith and credit, 1, 9, 15, 31. According to law of state, 2. Effect in such state, 3. Highest evidence of credit, 32. Proceeding in rem, 16. Jurisdiction, 1. Administration proceedings, 19. Actual locus of property, 20, 21. Domicil finding unnecessary, 21. Jurisdiction — continued Administration, etc. — continued Proceedings in rem, 22. Property in own state, 19. Pace of record, 11. Foreign country, 12. Necessary facts to give, 10. Proceedings in rem, 11, 16. ^Supreme court~of Iowa, 33. Power to review, 34. Mortgage on Iowa lands, 25. Judgment on note here, 25. Substituted service, 25. Service in other state, 8. Substituted service, 25. Speeial jurisdiction court, 26. Authenticated transcript, 27. Force here and Minn., 30. No proof of Minn. Statutes, 29. Prima facie jurisdiction, 28. Vacating judgment on, 4. 1. "Judgments of other states to which full faith and credit are required to be given, * are only those in which the courts rendering them had jurisdiction of the suits and parties ; and such jurisdiction has been allowed to be questioned by the party against whom such judgments are set up". 2. "The constitution and act of Congress require the effect and credit of judgments to be determined according to the law of the state where rendered". —Eape v. Heaton, 9 W. 328, 332. 3. Judge Story's rule, "if a judgment is conclusive in the state where it is pronounced, it is equally conclusive everywhere; if re-examinable there it is open to the same inquiries in every other state", approved. —Brown v. Parker, 28 W. 21, 25. 4. A domestic judgment, based on a foreign judgment afterward reversed, was vacated. See Vacating Judgment. — Aetna Ins. Go. v. Aldrich, 38 ,W. 107, 111. 5. "The rule seems to be universal, that, where there are several administrations of an intestate, in different jurisdictions, a judgment against one administrator does not bind another". FOREIGN JUDGMENTS ' ,453 ! 6. " 'Where administrations are granted to different persons in differ- ent states, they are so far deemed independent of each , other, , that a judgment obtained against one will furnish no right of action against the other, to affect assets received by the latter in virtue of his own administration ; for, in contemplation of law, there is no privity between him and the other administrator.' Story's Conflict, Sec. 522". 7. Where each of two administrations in different states, assumes to be the principal one, "the court cannot hold the judgment in Indiana as even prima facie evidence against the administrator in, Wisconsin". —Price v. Mace, 47 W. 23, 26. 8. "The authorities are very uniform that a personal judgment, founded alone upon service of process in another state or foreign country, is void". —Smiih v. Grady, 68 W. 215, 218. 9. "In this country it is prescribed by constitutional, compact 'that full faith and credit must be given in each state to the public acts, 'rec- ords, and judicial proceedings of every other 1 state ;, , 10. And yet it is well settled; that the 'record of a judgment ren- dered in another state may be contradicted as to the facts necessary to give the court jurisdiction, 11. And if want of jurisdiction appear upon the face of the record, or is shown either as to the subject matter or the person or, in proceed- ings in rem, as to the thing, the record will be regarded as a nullity. Thompson v. Whitman, 18 Wall., 457i; (many other. cases) ; Renier v. Hurlbut, 81 W., 24. 12. The rule is 'certainly as strong if not stronger, when applied to a judgment rendered in a court of a foreign eountry, : toward which no such duty is enjoined, and especially, where the jurisprudence of such foreign country is in no sense based upon the common law." Here, a divorce granted as to a resident of this state is .held a nullity. —St.Surey. Lindsfelt, 82 W-, 346, 349. 13. A claim was disallowed in a probate court of Minnesota, and such disallowance affirmed on appeal in the district court of that state, because "barred by the statutes of limitation of Minnesota." Thereafter' the claimant petitioned for administration on realty of the decedent, in a county court of Wisconsin, and such application "was denied "principally on the ground that said judgment of the probate court" of Minnesota, as there affirmed, "is conclusive upon the rights of the plaintiff, and forever estopped him from asserting any claim on said judgment against said estate". While reversed in the circuit court, such judgment of the county court was affirmed. ,14. The judgment of disallowance of the Minnesota court has "the same force and effect in this state that it has in that state." U. S. Const, sec. 1, Art. 4 ; Marshall, C. J:, in Hampton v. McConnel, 3 Wheat. 235; Judge Story's rule, supra; (other cases). —Sanborn v. Perry, 86 W., 361, 365. 454 PROBATE AND GENERAL LAW, CODIFIED 15. "It has been and is the settled purpose of this court to give full faith and credit to the. public acts, records, and judicial proceedings of other states". Const, of U. S. art. 4, sec. 1. Sanborn v. Perry, 86 W. supra ; ( other cases) . ■ 16. "But to entitle a judgment of a court in another state to such full faith and credit in an action or proceeding in rem, like the case at bar, it must appear from the record thereof that the court rendering the same had jurisdiction of the subject matter of the action or pro- ceeding. Rose v. Himely, 4 Cranch, 241 ; (other U. S. oases). " 17. Thus it is held in one of the eases cited that; 'Records and judicial proceedings of each state affecting property or estate within it have in every other state the force and effect which they possess in the state of their origin; "18. But, as to similar property or estate situated in another state, they have no greater or other force than similar records or proceedings in the courts of that state'. Robertson v. Pickrell, 109 U. S. 608". 19. While in administration proceedings in Louisiana, "that court, it may be conceded, had jurisdiction as to any tangible property actually located in that state ' ', yet ' ' there was no attempt in that court to adjudi- cate as to property situated in Wisconsin, nor as to the domicile of the deceased", 20. And "certainly -there was no adjudication in the Louisiana court which precluded the county court of Waukesha County from taking jurisdiction and admitting the will to probate and administering so much of the estate as was actually located in Wisconsin, and this in- cluded the bonds, mortgages, and evidences of debt" there deposited. 21. (This case is affirmed in Thormann v. Frame, 176 U. S. 350, s. c. 44 L. ed. 500, it being said of the Louisiana administrator appointment, that " as a judgment in rem it merely determines the right to administer the property within the jurisdiction"; that in this instance a finding as to domicil was "unnecessary to jurisdiction, and is not to be pre- sumed"; and that there was no such finding. 22. And it is approvingly said, by Chief Justice Fuller : "In De Mora v. Concha, L. R. 29, Ch. Div. 268, it was held that the decree of a probate court was not conclusive in rem as to domicil, although the fact was found therein, because it did not appear that the decree was neces- sarily based on that finding"). See also Domicil. —Frame v. Thormann, 102 W. 653, 670. 33. "The record of the proceedings in the Minnesota court" as to naturalization and citizenship, was held admissible and conclusive to show a year's residence there prior to the application, "by the rule that a judgment is binding upon parties and privies as to the final result pronounced and the facts established or assumed upon which it is based". — State, ex rel. Atkinson v. McDonald, 108 W. 8, 13. FOREIGN JUDGMENTS 455 24. The owners of a foreign judgment obtained against the deceased, as represented by his sureties in a replevin act, according to Michigan law, ' ' were entitled to have the claim allowed against the estate because the matter was res adjudicata". —Button v. Cole, 109 "W.. 247, 253. 25. As to an Iowa judgment on a note here and mortgage on lands there, with substituted service, being effective as to the mortgage but not as to the note. See Foreign Jurisdiction. —Fitch v. Huntmgton, 125 W. 204, 207. 26. "In an action brought upon a judgment of the municipal court of S., Minnesota," "the complaint averred that" such 'judgment was duly- given and made by, said court in favor of the plaintiff and against the defendant', on the date given, and is unsatisfied, valid, and subsisting, with "no other averment ".respecting jurisdiction. The answer con- tained a general denial, and allegations of fraud in obtaining. Under the statute, sec. 2673, as to courts of "special jurisdiction," it is held: 27. That "when the plaintiff put in evidence the duly authenticated transcript of the judgment roll, (under title 13, ch. 17, sec. 905, R. S. of U. S.), including the judgment showing that this court of M. was a court having a judge, a clerk, a seal, and records, and that the defendant appeared in the action, 28. The, plaintiff lifted the burden of proof thus thrown upon him and established prima facie that the Minnesota court had jurisdiction of the person of the defendant and of the subject matter of the action. (Many cases) ". 29. Though it does not appear that proof of the Minnesota statutes as ■to the jurisdiction of such courts, was properly made, , , , , 30. Yet, as "no evidence was offered" "sufficient to impeach the judgment" so proven if it "had been a judgment of a court of the state of Wisconsin (Uecker v.'Thiedt, 133 W., 148), hence no evidence sufficient to impeach the Minnesota judgment (Const. U. S. art. 4, sec. 1; Maxwell v. Stewart, 22 Wall. 27). * It follows that the court below erred in directing a' verdict for defend- ant." — Christiansen v. Kriesel, 133 W., 508, 510. 31. "We are required to give the judgment (of an, Iowa lower court) sued upon such faith and credit as it has by law or usage in the courts of Iowa. Sec. 905, ch. 17, R. S. of U. S. > - , 32. The highest evidence of what faith and credit a judgment has in the state of its origin is the .decisions of the court of last resort of that state. Laing v. Rigney, 160 U. S. 531. 33. We may readily acquiesce in the generality that if the court of Iowa which pronounced the judgment of reversal had no jurisdiction, that judgment would be ineffectual and void and the judgment sued oil would be in force." 34. "Not deciding that we have power to review a judgment of the 456 PROBATE AND GENERAL LAW, CODIFIED supreme court of Iowa upon a question of its appellate jurisdiction, still',', on the record, "we assume that the faith and credit this reversed judgment had in Iowa was zero." Will of Madden, 104 W. 61 (See Appeal)". See also Jurisdiction. ■ —Free v. Western U. T. Co., 158 W. 36, 38. FOREIGN JURISDICTION. See also Foreign Judgments. Administration : Domicil immaterial, 7. Property in each state, 7. Debt, foreign legatee, 13. Enforce: foreign laws, 8. Liberal, proper cases, 9. Protect our people, 9. Foreign inferior cOurt, 14. Guardianship: letters, 2. Appointed for nonresidents, 4. Fair on its face, 3. Mortgage on Iowa lands, 10. Action in rem, 11. Mortgage, etc. — continued Discharge of debt in Iowa, 10. Ineffective as to note, 12. Note, estate assets here, 10. Service in nonresident state, 1. Stockholders liability, 8. Statutory right: Coupled with remedy, S. Enforceable where created. 8. Substituted service,. 12. Title to lands; other state, 5. Conversion of such lands, 6. Will and residence here. 5. 1. "If a citizen of one state goes into another, and is there served with its process, he ; is bound by the judgment, though he did not reside there". —Rape v. Heatan, 9 W. 328, 343. 2. "The burden of showing that the foreign letters of guardianship were void, rested upon the parties attacking the validity of the sale (of local real estate by guardian) on that ground. " 3. "The foreign guardianship record, if fair on its face and dis- closing no facts showing a want of jurisdiction, must be taken as prima facie authoritative and valid". 4. Guardians may be appointed for resident non-citizens, or non-resi- dent owners of estate here. See Guardian and Ward. ■ ''■■' —Parrington v. Wilson, 29 W. 383, 399. 5. Under a will made here, the testator also being a resident, the court disclaims "jurisdiction to determine the title to any of the lands outside of Wisconsin, or the legality of accumulations of rents and profits therefrom". 6. Also as to the "validity of the proposed conversion of lands in other states". See also Domicil. —Ford v. Ford, 70 W- 19, 68. 7. As to jurisdiction of courts of different states to administer the property, of a deceased, therein located, and domicil being immaterial to such jurisdiction. See Foreign Judgments. • —Framie v. Thormann, 102 W. 653, 670. FOREIGN LAWS 457 8. In the matter of individual liability of stockholders of a bank, where the Minnesota law, similar to ours, was refused application to a Wisconsin resident, in our courts, — it is stated that "the ultimate ques- tion under consideration',', >'was definitely passed upon in May vj Black, 77 W. 101, where it was said that a statutory right, coupled with a remedy to make ineffective, is enforceable only within the jurisdiction of its creation,- and the statutory remedy is exclusive ' '. Pollard v. Bailey, 20 Wall. 520; (other cases). 9. "A liberal course in the enforcement of the laws of other states in proper cases should be the rule, but the paramount duty of our judicial system is to safeguard our own state policy and prevent injus- tice to our own people within reasonable limits. (Cases) ". —Finney v. Guy, 106 W. 256, 266', 277. 10. Where a Wisconsin executor held as assets a noto payable to his testatrix from a legatee in Iowa, which note was secured by a mortgage on Iowa lands of the legatee's husband, — and in an action brought in an Iowa court by such legatee 's ■ husband, the executor being served' by publication and making no defense/ judgment was there entered ; dis- charging and satisfying such note and mortgage "as a gift by the testatrix, in her lifetime", — in the estate proceeding, it is held, — 11. That, being "an action in rem", and the land being "within the jurisdiction of the Iowa court", "the effect, of the judgment is to relieve the land of the lien" of the mortgage; , > ; 12. But, as the Iowa court "has no jurisdiction for mere purposes of personal adjudication against a non-resident upon substituted service alone", the judgment "had no effect upon the personal liability or the note", 13. And judgment charging the amount of the note against the legatee 's share of the estate was upheld. —Pitch v. Huntington, 125 W. 204, 207r 14. As to proof necessary to show jurisdiction of a foreign inferior court. See Foreign Judgments. — Cftristianson v. Kriesel, 133 W., 508, 510; FOREIGN LAWS. Enforce: statutory rights, 6. Judicial notice not taken, 2, 3. Must be proved, 7. Decisions also, 7, 9. Method of proof, 7. , Stipulation of parties, 8. Presumed the same, 1, 2. Common law states only, 4. In absence of proof, 2, 3. Presumed, etc. — continued Not, of penal nature, 5. Similar statute, 9. Question of fact, 10. • Oral proof, for jury, 12, 13. Statute, for court, 11. Swiss limitation statute, 14., Should be pleaded, 15. Similar statute; decisions, 9. 458 PROBATE AND GENERAL LAW, CODIFIED 1. "Whenever it becomes necessary for the court of a country to determine any question according to the laws of another, in the absence of any proof' to the contrary, those laws are presumed to be the same as its own". — Bape v. Heat on, 9 W. 328^ 338. 2. "We have held that we will not take judicial notice of the laws of other states, but will presume them to be in accordance with our own until the contrary appears". So held where the decision of the other state was submitted to the supreme court showing the difference, but proof thereof was not made in the lower court. — Walsh v. Dart, 12 W. 635, 638. 3. In a suit on a replevin bond, executed in an action in Minnesota in which a judgment was rendered which has not been paid, it is decided, on the authority of Rape v. Heaton, 9 W., supra, and other eases cited, "that the trial court was not bound to take judicial notice of the law of Minnesota regulating the action of replevin,; but in the absence of all proof on the subject the presumption would be that it was the same as the law of this state." (Followed in Elmergreen v. Weimer, 138 W., 112, 117). —Osborn v. Blackburn, 78 W., 209, 213. 4. "Presumptions as to foreign laws are generally confined to those states and countries in which the common law is the law of the land, as in the several states of this country and Great Britain ; 5. And even then they do not extend to such statutory enactments as are penal in their nature. Hull v. Augustine, 23 W., 383; Murphy v. Collins, 121 Mass., 6; (other cases)". —St. Sure v. Lindsfelt, 82 W., 346, 351. 6. As to non-enforcement of foreign statutory rights, coupled with a remedy, against residents. See Foreign Jurisdiction. —Finney v. Guy, 106 W. 256, 266. 7. "The statutes of another state and the decisions of its courts as well can only be considered by the courts of this state, when material to prove some fact essential to a cause of action or defense, when put in evidence in the way pointed out by our statutory rules of evidence (sees. 4136, 4138), 8. Unless some other method is adopted by stipulation of the parties". 9. In the absence of proof of foreign (Ky.) decisions, as to a foreign statute (proved), "we must^ presume that our own law on the same subject, and such foreign law," similarly worded, have the same meaning. Slaughter v. Bernards, 88 W., 111". See also Sunday. —Howe v. Ballard, 113 W., 375, 378. fact 10. "The question of what a foreign law is, is always a question of FOREIGN WILLS 459 r 11. Where the only proof of a foreign law is some statute which has been offered in evidence, a number of courts hold that its construction is for the court. 12. But where, as here, oral testimony is taken in which there is a sharp conflict and where the case must practically be decided upon this oral testimony, 13. The authorities are well nigh harmonious to the effect that the disputed question of fact presents a jury question in a ease triable by a jury, and not one that can be taken from the jury, and be decided by the court." So held. 14. "Here, there is conflicting parol testimony as to what the effect of the Swiss 'limitation statute is", and as "no satisfactory inference can be drawn from the statute itself ",— it is held to be a question for the jury. — Hite v. Keene, 149 W., 207, 215, 15. "Strictly speaking, foreign law should doubtless be pleaded before evidence thereof is admissible. (Cases) ". — Dean v. Dean, 162 W. 303, 306. FOREIGN WILLS. Action to compel probate, 8. Admitted : without letters, l. s Passes title to realty, 2. Authenticated copy, 25. Authority of executor, 5, 25. Certificate defective, 18. ' ' Compared with original, ' ' 20. Defined judicially, 21. Federal statute, 22. Executor with sale power, 25. Informality of probate, 17 ; Jurisdiction must appear, 19. Not proof of death, 5. Decree of Nevada, 7. Eealty located here, 7. Enforcement of trust, 10. Circuit court, 12, 13. Partial relief, county court, 12. Evidence of no debts, 2. ; 1. A, duly authenticated foreign will, admitted to probate here, without issuing letters, passes the title to real estate. See Title. 2. The settlement. of such an estate at the place of domicil, is prima facie evidence "that there were no debts remaining". See also Debts. —MarkweU v. Thorn, 28 W. 548, 559. 3. A "properly authenticated copy of a will, devising lands in this state", proved and allowed in another state, recorded in the proper Foreign law essentials, 24. Not validity here, 24. Guardian ad litem, failure, 23. Independent proceedings, 14. Authority given, sec. 2295, 15. Authority required, sec. 3267, 16. -. Probate required, sec. 3789, et al., 18, 23. Letters, where no debts, 11. Probate necessary, 18, 23. ; Probate or recording, 6. Probate unnecessary: Lands devised in trust, 9. Power of sale in will, 25. J Recording passes title, 3, 9, 14. Title effect on realty, 4, 9. Sec. 3267, in county court, 16. Sec. 2295, register's office, 15. ) 460 PROBATE AND GENERAL 1 LAW, CODIFIED county here, (under See. 2295), "is as valid and effectual to pass, the title to such lands as though the will had been duly proven and allowed by the proper court of this state. 4/ So far as the devise of real estate is concerned, the provision super- sedes the necessity of proving anew a foreign will by making the record of the duly certified copy operate as an original probate". 5. But this statutory provision does not "prescribe a rule of evi- dence, nor declare what should be legal proof of death, or of the authority of an executor to act", and such authenticated copy of a foreign will, and such record thereof, is not proof of death, or of the authority of the executor to act. — Hayes v. Lienlakken, 48 W. 509, 511. 6. A foreign will devising lands in this state to an executor in trust for the payment of debts, and the probate thereof in the state of the testator's domicile, can have no effect as to the lands here without compliance with our statutes for probate thereof, or the proper filing of a certified transcript of the foreign will and the probate thereof. Sees. 2295, 3790,- 3793. 7. "The decree of that court (Nevada), as to realty certainly, can have no extra territorial effect. It cannot affect for a moment the title to real estate in Wisconsin^, This is elementary law. Robertson v.- Pickrell, 109 U. S., 608".' 8. An action by a creditor to compel the executor to prove, such will in this state, "cannot be maintained, for the reason that the plaintiff, as a creditor of W-., (the testate), has the same right" as the executor to "procure its allowance". Sees! 3790, 3793. —Wells, Fargo & Co. v. Walsh, 87 W. 67, 71. 9. Under sec. 2295, "the recording of a certified copy of a foreign will and its probate passes the title to the lands devised by the will as effectually as if the will had been probated in the proper court of Wisconsin", and so held as to "the title to the ; lands" to a trustee "in trust to pay the creditors of" the deceased non-resident. 10. And, it is held that a foreign creditor can "by action, enforce the performance of that trust, when the trustee refuses to do so". 11. While it is;npt decided whether, under sec. 3793, letters may be issued on such foreign will "where there are no debts due to residents of this estate", it is held, 12. That the enforcement of such a trust "is one which calls for the exercise of the general equity powers of the circuit court, notwithstand- ing the fact that the plaintiff, by proceeding in the county court, might obtain some part of the relief which it seeks"; and especially because the trustee "procured to be issued to herself a tax deed upon" the lands and claims title thereunder, and to obtain relief therefrom "brings the case within" Hawley v. Tesch, 72 W. 299 and Lamberton v. Pereles, 87 W. 449 (See Concurrent Jurisdiction). 13. "The trust now existing in this land in favor of the creditors" FOREIGN WILLS 461 may be administered in the circuit court which has full and plenary, power in such matters, and "other creditors" "may be made- parties to the action". —Wdls, Fargo & Co. v. Walsh, 88 W. 534, 536. 14. The construction of sec. 2295 in Wells, Fargo & Co., v. Walsh, 88 W., supra, is approved, and that section and sec. 3267, "are independent sections, intended to cover different situations. 15. Sec. 2295 is intended to cover cases where, by the terms of the will, lands are devised, or authority given to convey", 16. ''While sec. 3267 is intended to provide for cases where the executor or administrator must obtain judicial authority to sell or convey lands". 17. A will duly authenticated as ' ' admitted to probate by the proper court of Pennsylvania", where "it appears by a decision of the supreme court", "introduced in evidence" (Holliday v. Ward, 19 Pa. St., 485), "as well as by the testimony of a member of the Pennsylvania bar, that a formal decree of probate is not usual in that state, and that the papers here presented would be ". admissible there, — is. held to be likewise effective here, upon proper recording in the register's office. Sec. 1, art. 4, U. S. Const., Parker v. Stoughton M. Co., 91 W., 174. —Mcintosh v. Marathon L. Co., 110 W., 296, 303. 18. In proceedings to probate a foreign will, ' by duly filing an exempli- fied copy of said will and of the record admitting the same to probate', sec. 3789, — "immediately following the copy of the will in the record are these statements; 'Will proved and admitted to record in open court this (date, name, and title 'Probate Judge'). State of Illinois, county of Cook, ss. i In the Probate Court of Cook county. Proved and admitted to record in open court this (date, name, and title 'Clerk') ;' " then "follows 'Letters testamentary to J. H.' as executor, purporting to be issued by and under the seal of the probate court", signed by the clerk. "Then come" "certificates under the seal of said probate court, all under" the same date, and the same date as the two foregoing dates, the first by the clerk, then by the judge, and then again by the clerk. Held, that such record does not give the county court jurisdiction. 19. "In order to entitle such records or proceedings" of the courts of another state, to full ' ' faith and credit it must appear, in the manner prescribed by law, that the court rendering the same had jurisdiction. (Many cases) ". 20. "There is a certificate: by the clerk that a paper in the record is a true copy of the will, but there is nothing in the record indicating that the same had 'been by him compared with the original '," as pre- scribed by sec. 4140. Sec. 4145. 2J.. Under the statutes, sees. 3789, et al., as to probate of foreign wills, and sees. 4140, 4145, as to authentication, "such 'exemplified copy' clearly means a duplicate or transcript of the records or proceedings of the probate court of Cook county admitting such will to probate, ' duly 462 PEOBATE AND GENERAL LAW, CODIFIED authenticated' under the seal of that court and duly certified to by the custodian of such records and proceedings". This record fails to so comply. 22. "The same is true as to the mode of authentication" under sec. 905 R. S. of U. S., "from which some of the sections of our statutes were taken". —In re Box's Will, 127 W. 264, 270. 23. Under sec. 3790, where "the foreign probate was made by a court of competent jurisdiction", and ''the exemplified copy" "is regular in every respect", it is held, that the foreign will be admitted to probate, notwithstanding "no guardian ad litem was appointed to represent the minors in the" foreign proceeding. 24. The statute "is mandatory", and provides for the "essentials" in the foreign state and not as "to the essentials of a valid original probate of a will in this state". — In re Gert sen's Will, 127 W. 602, 604. 25. "A duly authenticated copy" of a foreign "will and the probate thereof", recorded, without probate here, "was presumptive evidence of the authority of P. as sole surviving executor to convey the land under the power of sale contained in the will. See. 2295". —Ill S. Co. v. Konkel, 146 W. 556, 570. FORFEITURE. Equity: never favors, 2, 7, 8. Not enforce or insert, 6. Reasonable meaning, 9. Bequires what is just, 2. Ignorance, not construed as, 3. Promptness required, 5. Settled law, avoidance, 9. Waived: rent acceptance, 1. Tender of amount due, 4. 1. Forfeiture is waived by acceptance of rent after breach. See Landlord and Tenant. — Gomber v. Hackett, 6-W. 323. 2. "Equity never favors a forfeiture,' and will not, unless bound down by statute, lend its aid to enforce one,: but will, as a condition of relief, hold the party to the performance of what is just and equitable". Dixon, C. J. — Fay v. Lovejoy, 20 W., 403, 405. 3. ' ' Courts will not construe ignorance or misapprehension of the true nature or existence of a right into a forfeiture: of the power to enforce it". See Estoppel. —Gove v. White, 20 W. 425, 434. 4. In an action for wages, with a defense, of forfeiture, "prior to the first trial there was a dispute as to the amount due, and the defendant offered and tendered judgment for the amount which he considered due,' with costs of action. Such offer and tender were competent evidence, FRAUD :•;_, 463, and authorized a verdict of waiver of all forfeiture under the contract. Cahill v. Patterson, 30' Vt. 592, (et al). 5. A party who prbposes to insist upon a technical forfeiture should act promptly, and consistently with the right claimed." See also Services. — Bast v. Byrne, 51 W. 531, 538. 6. "Precisely the same reason why courts of equity will not take juris- diction to declare and enforce the forfeiture clause already contained in a deed, would have equal force against courts of equity, entertaining a complaint for the purpose of inserting a forfeiture clause in an abso- lute deed; 7. And that reason is, that forfeitures are not favored. 'Neither penalties, forfeitures nor re-entries for conditions broken are favored in equity.' Willards Eq. Jur. 56; Story's Eq. Jur. 1319". —Mills v. Epansvillfi. Seminary, 52 W, 669, 671. 8. "When it is,said that forfeitures are not favored ajjd will not be enforced if they depend upon judicial construction, if a meaning can be found within the scope of the language involved which will justify avoiding it, ,-,■;.,.: 9. The meaning intended by the proviso is: "if a meaning can be so found reasonably, — found in accordance with settled law for the de- termination of contractual intention from the language used by the parties". —BehMng v. N. W. Nat. L. Ins. Go., 117 W., 24, ,27. FRAUD. See also Equity. Fraudulent Orders, ; Undue Influence. Abuse of trust relations, 19. Conveyance— continued "Confidence reposed, 20. Valid between parties, 3, 34, 35. Inadequate sale price, 19. Without wife's knowledge, 47. Actual; constructive, 22. Election of remedies, 10. Attendant circumstances, 38. Definite decision, 13. Burden on party charging, 39, 40,, 41, Upon discovery, 12. 51, 52. Evidence inherently , improbable, 38: Inference of fraud, 41, 46, 51. Equity: no limit rules, 15. Seasonable certainty, 40, 53. "Way open to punish, 16. Clear and satisfactory proof, 31, 39, 4p, Exempt property purchase, 32. 46, 52. • Remedy on the fraud, 33. Reasonable certainty, 39, 53. False statements, 6. Consideration: third person, 26,. . Fraudulent securities, 5. Ignorant of the fraud, 26. Husband and wife, 36. Contract signed in blank, 28. Fraud known to g^tee, 50, Conveyance: defraud creditors, 3 34. Homestead exemption, 36. Husband pnvy mth grantee, 50. from rec 4g Husband to wife, 36, 47. , Bm , , Q . Except as to homestead, 36. As to creditors .49. Trust for party intended, 23_. Without wife's knowledge, 47. 464 PBOBATE AND GENERAL LAW, CODIFIED Knowing- incapacity, 9. Misrepresentations: stated, 14. Confusion of mind, 17. Pour questions to consider, 29. Fraud without exception, 30. Signing note or contract, 44. Guilty of no negligence, 45. Negligence of note maker, 42. Once a fraud committed, 25. Positive fraud, defined, 1, 30. Knowledge or negligence, 2. Specifications given, 21. Presumption: in selling, 2. Knowledge or negligence, 2. Presumption of innocence, 40. Probate matters; equity: Executor 's fraudulent accounts, 11. Executor's fraud conveyances, 11. Praud relating to will, 27. Fraudulent probate, 11, 18. Laches shown, 24. Relationship not badge, 37. ' Closer scrutiny, 37. Rescinded in toto, 7. Sue for damages, 10. Reversing names in will, 43. Attorney charged with, 43, Vary written contract, 4, 52. Clear evidence, 52. Parol evidence, 4. Vitiates everything, 8. 1. Intentional misrepresentation of a material fact, or false- impres- sion created to mislead another, or to entrap or cheat him, or to obtain undue advantage of -him, is positive fraud. « — Smith v. Mariner, 5 W. 551, 575. 2. "The party selling must be presumed to know whether the repre- sentation which he makes of it is true or false. If he knows it to be false, that is fraud of the most positive kind ; but if he does not know it, then it can only be from gross negligence; and in contemplation of a court of equity representations founded on mistake, resulting from such negligence, is fraud. ' ' Smith v. Richards, 13 Peters, 26. —Miner v. Medbury, 6 W. 295, 309. i 3. "Conveyances of property, and agreements between parties, to defraud creditors, though void, as to creditors, are nevertheless valid and binding on the parties themselves and their personal representa- tives". —Fargo v. Ladd, 6 W. 106, 118. 4. Fraud or mistake may allow a prior parol agreement to vary a written contract. See Parol. — Reed v. Jones, 8 W. 392, 413. 5. Acceptance of fraudulent- securities does not vitiate a lien for purchase money on the sale of real estate. See Lien. —Tobey v. McAllister] 9 W. 463. 6. False statements "to constitute legal fraud, must not only be false, but must operate injuriously to the party". —Castlemwn v. Griffin, 13 W. 535, 538. 7. Contract on account of fraud must be rescinded in. toto. See Rescission of Contracts. — Hendricks v. Goodrich, 15 "W. 679, 682. 8. "Fraud -vitiates all contracts and proceedings, even records and judgments of the most solemn character". • FKAUD 465 9. "Any person; who, knowing the incapacity of parties so situated (non compotes mentis), takes unjust or improper advantage of it, is deemed in the law to perpetuate a meditated fraud". See also Insane Persons. EncMng v. Simmons, 28 W. 272, 280. 10. In ' ' an action in equity for a rescission of the contract on the ground of -fraud" either as to, real or personal estate, "the plaintiff must make his election, either to rescind the contract by restoring all that he obtained by it", or "sue for damages sustained by reason of the alleged fraud. But he cannot affirm so much of the contract as may be advantageous to him, and rescind as to the residue". ' , -^■Qrwtit : v. Law, 29 W. , 99, , 104. 11. While, "In McLachlan v. Staples ,(.13 W. 448) a bill in equity was sustained" to set "aside certain fraudulent accounts which the , executors., had procured to be allowed", and in Bassett v. "Warner, (23: W. 6) an action was sustained "to, sel; aside certain fraudulent conveyances made by the administrator under licenses granted, by the proper probate court"; yet the court does "not decide whether the: decree of the county court admitting the will to. probate may or may not be reviewed in this action by reason of frauds charged", "to, have been committed at the probate" five years before. ■ — Holden v. Meadows, 31 W. 284, ,290. 12. "The law is w,ell settled that a party must elect as soon as he dis- covers the fraud, practiced upon him, whether he will abide by the con- tract or not. ,, , r, 13. He cannot adopt the contract if it, proves to be, beneficial and profitable, and also have the right to repudiate it if it proves to be a bad speculation". — Qrannis v. Hooker,, 31 W. 474, 476. 14. "The general rule in equity, , or the most frequent form of mis-' representation met with in the books", may be conceded to relate "to the quantity, quality,; situation or value of the property sold, or the : pecuniary responsibility of the purchaser, or tp something, of , that nature; otherwise equity will not grant relief on that ground". 15. However, "equity does not limit itself by set rules nor by precise definitions, particularly in matters is sustained by a large pre- ponderance of the decisions of other eourts upon similar statutes. (Many cases)." —Davy v. Kelley, 66 W. 452, 457. 36. As to conveyance by husband, through a third party, to the wife, held in fraud of creditors except as to the homestead, it is said: "This court has decided that fraud cannot be alleged as of a conveyance of the homestead. Fraud cannot affect the homestead or other exemptions in any manner whatever. (Many cases) ". —Rwek v ; RedzinsH, 87 W. 525, 531. 37. "Relationship of the parties to a transaction is not considered in the law as a badge of fraud". Bump, Fraud. Conv. (3d ed.) 56. "Rela- tionship is simply a circumstance proper to 1 be shown, and which, when shown, calls for closer scrutiny and clearer explanation of the transac- tion". So held. —Blotter v. Moore, 88 W. 438, 440. 38. "Facts and circumstaneesy small and inconsiderable in themselves, often lead to unerring conclusions," in cases of fraud. The story of witnesses may sound plausible, but may become improbable by circum- stances. The uncontradicted statement of a witness, ' ' may 'be impeached by the attendant circumstances. ' ' See also Impeachment of Witnesses. - — Zimmerman v. Bavmon, 101 W., 407, 411. 39. "He who alleges fraud must establish it by clear and satisfactory evidence. Only reasonable certainty of the existence of the fact is required, the same as in case of any other fact in a civil action. 40. Nevertheless the presumption of innocence and fair dealing among men is so persuasive," that fraud "must be established by clear and satisfactory evidence or there can be no recovery." ' —Muielaner v. Smith, 102 W., 30, 34. 41. "The true rule is", as to fraud and undue influence, that the burden is upon the party charging, but circumstances suggesting fraud,' in law, may, shift the burden-to meet the prima facie case. See Undue Influence. ■ -^Small v. Champeny, 102 W. 61, 68. 42. Negligence of the maker of a note, is held to make him liable on a fraudulent promissory note in the hands of an innocent holder. See Promissory Notes. ^Keller v. Schmidt, 104 W., 596, 601. 43. In a contest; where the will gave a son R. a large portion of the estate, and a son J. none, evidence of "witnesses to the effect that they had heard the testator declare on many occasions that R. should have no FRAUD 469 more of his property, and by the assertion that. the testator was unable to understand, enough English (he being a Welshman) to comprehend the will, in question," though "met by mueh., evidence to the. contrary", "even if they stood undenied, without more to aid them", held insuffi- cient to justify belief "in the perpetration of so gross and unprofessional a /fraud by" the attorney, of reversing the names of such sons in the will. —Roberts v. Roberts, 107 W., 213, 215. 44. "The principle of law is that, if it be clearly and satisfactorily proven that a party signed a note or contract relying upon false and fraudulent representations as to its true character, 45. And was guilty .bjf.no negligence in failing to ascertain what the contract really was, he is not bound by it. Bowers v. Thomas, 62, W., 480". On the evidence, a verdict for defendant, the defense being fraud, was set aside and judgment for plaintiff directed, and sustained. —Dowagiaic Mfg. Co. v. Schr.oed,eHe has a perfect right to do so. 48. Nor is it per se fraudulent as against a wife, to withhold such a conveyance from record, either negligently or by agreement between the husband and the grantee. ' ., 49. As to her the reasons fail which have led < the,, courts to declare such act by agreement fraudulent as to creditors who are likely to be induced to extend credit 6n the face of the record: : 50. The fraud, in the case, if any exists, can consist only in the pur- pose to defeat her rights, and even such purpose entertained by the grantor is ineffective unless also shared or at least known by the grantee". —Richmond v. Smith, 117 W. 290, 293. 51. As to "burden of proof", and proof raising "inference of fraud", and cases discussed. • See 1 Undue Influence. — Winn v. 1 Itzel, 125 W. 19, 32. ' 52. "The claim of fraud" to allow parol testimony td vary a written agreement, "should not be allowed to prevail unless established by clear and satisfactory evidence". '; ' ; ' •■ ■■' ••'■>, "■'. 53. "He who alleges fraud" "must establish his claim" with "that ordinary degree of certainty" "something less than beyond a reasonable doubt", "yet something more than mere reasonable certainty which may be grounded on a bare 'preponderance of the evidence". (Cases). See also Parol. ; i ' — Lepley v. Andersen, 142 W. 668, 670. 470 PEOBATE AND GENERAL LAW, CODIFIED FRAUDS, STATUTE OP. See also Part Performance. Acceptance: void contract, 18. Answer for another's debt, 7. Advantage must be object, 21. Father, minor son's, 43. Incidental advantage, 20. Incidental not object, 22. In form, not in effect, 33. New consideration, 7, 16. A. requests B. to pay C, 14., Between seller and buyer, 49. Contingent: human life, 11. Support during life, 12. Contract fully executed, 27. Deed to be mortgage, 4. Devise realty and personalty, 23. Father, pay minor's debt, 43. Guarantying payment, 10. Party's own transfer, 10. Implied consideration, 8. Implied trusts, not, 2. Indemnify surety; oral, 13. Land contract: Grantee need not sign, 19. Order, vendor not sign, 45. Parol antenuptial contract, 36. Parol executory contract, 15. Payment subsequently, 15. Price $50 or more, 15. Valid from delivery, 17. Parol land sale void, 9. Parol modification, 47. Written within year, 46, 47. Parol, to buy jointly, 49. Partnership: in lands, 26. Part performance: Either party terminate, 32. Part payment: possession, 3, 25. Realty and personalty, 40, 41. Unexecuted fraction, 42. Recover reasonable value, 32. Shipping of portion, 45. Verbal land sale, 5. Personalty and realty, 38. indivisible, void, 38, 39. Promise and consideration, 1, 48. Reiterated within year, 50. Repurchase stock sold, 34. Part of original contract, 35. Statute: English; states, 6, 24. Memorandum: land sale, 19. English: party charged, 19. Wis.: party who sells, 19. Simply not actionable, 6. Wis. and New York, 6. . Contracts void, 6, 25. Statutory defense, personal, 37. Strangers no right, 37. Time within year, 11. Continuous service, 31. Excess of two days, 28. One year from performance, 29. Possible death before, 30. Written within a year, 46. Parol modification, 47, 48. Type-writing signature, 44. 1. To take the case out of the statute, not only the promise but the consideration must be expressed in writing. —Tacylor v. Pratt, 3 W. 674, 698. 2. The statute does "not apply to implied trusts" but does to express. See Trusts. ' —Whiting v. Goidd, 2 W. 552, 585. 3. Part payment without delivery of possession of realty, even by tenant in possession, will not take the case out of the statute. —Blanchard v. McDongal, 6 W. 16T. 4. Deed shown to be a mortgage by parol, without fraud or mistake at its inception, held to be an invasion on principle to be held on authority only, if at all. See Parol. —Basdall v. Rasdall, 9 W. 379, 392. FRAUDS, STATUTE, OF 471 5. A verbal contract for the sale of lands is a nullity, without part performance, and mere payment of part of purchase money is not such part performance. 6. The English statute and that "of all the states excepting five, among which are Wisconsin and New York" as to such 1 contracts "make them simply not actionable," while ours "is entirely silent as to the bringing or maintaining of actions" but, makes the contracts void. —Brcmdeis v. Neustadtl, 13 W. 142, 147. 7. ' ' The promise of one person, though in form to answer for the still subsisting debt of another, ,if founded upon a new, and sufficient con- sideration moving from the creditor and promisee to the promisor, and beneficial to the latter", not in writing or subscribed, is not "within the statute of frauds," as evidenced by decisions "for more than a cen- tury". Dixon, C. J. —Dyer v. Gibson, 16 W. 557, 560. 8. Consideration not . necessarily expressed in exact . terms, if the promise is implied, may make the agreement valid. See Consideration. —Williams v. Ketchum, 19 W. 231, 232. 9. "Our statute of frauds makes a verbal agreement for the sale of lands not merely voidable but void". -r-Madiganv. Walsh, 22 W. 501, 505. 10. "The ease of a party transferring for value securities which he owns, and, as a part of the contract, guarantying their payment or col- lection, is" not within the statute. . —Wyman v. Goodrich, 26 W. 21, 23. 11. "An agreement or promise, the performance of which is contingent upon the duration of human life, is not. within the statute, because by the death of the person within one year, upon the happening of which the performance is to take place, a valid execution or ^performance may be had within that time according to the very terms of the contract. The fact that the performance may be thus, by possibility, be required within the year, relieves the contract from the operation of the statute". Tilson v. Gilbert, 26 W. 637, 642. 12. An oral contract to support during life is valid, because it "might have been entirely performed within a year". , ; , —Heath v. Heath, 31 W. 223, 229. 13. An oral promise to indemnify a surety is valid. See Sureties. —Vogel v. Melms, 31 "W. 306, 311. 14. "If A. requests B. to pay C. $100 on, a purchase of real estate, and promises to repay the money advanced, as between A. and B. the 472 PROBATE AND GENERAL LAW, CODIFIED transaction is essentially a loan of money, and does not involve any question under the statute of uses and trusts, or under the statute of frauds." —Whitman v. Lake, 32 W. 189, 194. 15. "A verbal executory contract for the sale of goods for the price of $50 or more, is void by the statute unless some part of the purchase money be paid at the time the contract is made, ' ' and ' ' payment at a subsequent time will not render the contract valid". —Paine v. Fulton, 34 W. 83, 85. 16. Answering for the debt of another under a new consideration, valid; Dyer V. Gibson, 16 W. supra, approved. — Young v. French, 35 W. Ill, 116. 17. Where an executory contract was within the statute, "''the con- tract was valid from the time of delivery, although it may have been within the statute so long' as it remained unexecuted." — Mason v. H. W. Co., 35 W. 164, 167. 18.' Acceptance of goods un/ler a void agreement, validates the eon- tract. See Part Performance. — Amson v. Dreher, 35 W. 615, 618. 19. Our statute for the sale of lands (Sec. 2303) provides that the memorandum "be subscribed by the party by whom the sale is to be made", contrary to the ; English statute which requires it "to be signed by the party to be charged"; and a land contract to be binding need not necessarily be signed by the grantee. See Land Contract. • —Lowber v. Connit, 36 W. 176, 182. 20. "The mere fact that an advantage may result incidentally to the promisor is not alone sufficient to take the agreement out of the statute", as to a promise to pay the debt of another. 21. "The resulting advantage to' him must be the object of his promise — the consideration upon which it was made. 22. -We are n6t aware of the existence of any rule of law which authorizes the inference that, merely because the promisor may be inci- dentally -benefited by his promise, his object in making it, and the con- sideration therefor, is such incidental benefit." ■ '■■ ■ ■>■ —Clapp v. Webb, 52 W. 638, 642. 23. A parol agreement to devise both real and personal estate "is indivisible, and, failing in part, the whole fails." See Services. — Ellis v. Gary, 74 W., 176, 184. 24. "The English statute 29 Car. 2, and the statutes of many of our states copied from it, do not make the contract void, but only void- able." FRAUDS, STATUTE OF 473 25. "Under a statute (see. 2304) like, ours, the authorities uniformly hold that such a contract is void, a^d that , nothing will take it;. out of statute except such part performance qn the part of the purchaser, by entering into the pqssession of the premises, as would render, him a trespasser if the agreement is held void, and even in such a case the relief can be sought only in a court of equity.". Camerqn v. Austin, 65 W., 652; Popp v. Swanke, 68 W„ 364; Brandeis v. Neustadth' ,13 W., and other .cases, supra. So held. See also , Quantum ^Meruit. —Koch v. Williams, 82 W., 186, 189. ,26, "This court, at an early, day (Bird v. Morrison, 12 W. 138), adopted the position that a contract of partnership for dealing in, lands was within the statute, and has, adhered thereto ever since. (Cases) ". 27. "In applying the statute of frauds, courts long since recognized an exception, or more properly a distinction, in, cases where a contract void by the statute has been fully iexecuted, and, one party sought to retain the fruits of the dealing in defiance of his promises. Such situa- tion was declared to be not within the purpose of, and so not sheltered by, the statute. (Many cases) ", ; — Smith v.,Putnam, 107 V. 155, 162. 28. In an oral agreement "madejOct. 29, 1903, for .services to be ren- dered for the period of one year, commencing on the 1st, day of November following", "the excess of two days was just as efficient as a longer period to render the agreement void under subd. 1, sec. 2307", as 'not to be performed within one year from, the making thereof '.- 29. ' ' The fact that the period of service agreed upon was to extend one year from the time performance commenced, does not take, the case ou,t of the statute, for where performance is tp commence in the future, for the purposes of , the statute, the, period, tp "be considered is that beginning with the, date qf the agreement. ., (Many cases)". 30. Though "the death of the servant ends his term of service with- out breaking his contract", "leaving the employer liable upqn the con- tract for the time service was actually rendered", such, fact is "not presumed to have. in mind the, termination of, the agreement in that way", and does not take the contract out of the statute. , ,,. 31. A contract for "continuous service terminable upon a stipulated contingency, as to support another for the remainder of his natural life" is different, and "not within the statute because by it§ terms it ceases with the death contemplated. Heath v. Heath, 31 W. supra". 32. "Partial performance of a contract void under the statute of frauds does not save it. Either party can terminate, the services, at any time and the employee recover, as he did in. this case, the reasonable value of the work done. (Many cases) ". —Chase v. Hinidey, 126 W. 75, 77. 33. "A promise, in form, by one person to guarantee payment of the debt of another, where such promise is in fact to pay such person 's own debt, is hot within the statute because not collateral. (Cases) ", —Kaufer v. Stumpf, 129 W.' 476, 482. 474 , PEOBATE AND GENERAL LAW, CODIFIED 34. Where defendant sold plaintiff mining stock at fifty cents a share, and agreed to repurchase the same within a year at $1 a share, the con- tract is held to be "one entire contract, which had been fully per- formed by the delivery of the shares and the payment of the original purchase price", 35. And the plaintiff "is entitled to recover the price stipulated upbn a return of the stock as part of the original contract", — neither sec. 2307, nor sec. 2308, applying though the contract was oral. (Cases). — Vohland v. Gelhaar, 136 W., 75, 77. 36. An oral antenuptial contract, reduced to writing after marriage, held void under the statute. See Marriage Contracts. —Bowell v. Barber, 142 W., 304, 306. 37. The "statutory defense", as to validity of a contract under the statute, "is held to be personal and is not available to strangers to such agreements". (Cases). — Draper v. Wilson, 143 W. 510, 512. 38. "The oral contract" as to sale of personalty and realty, "was void as to the real property under" sec. 2302, "and, being entire and indivisible, was under this statute also invalid as to the personal prop- erty. Clark v. Davidson, 53 W. 317, (See Quantum Meruit). 39. It was also ""void under the statute of frauds relating to per- sonal property (Sec. 2308). 40. But," later, on "the execution and delivery of the so-called receipt" as to payment and possession of the realty, and "entering into possession of the real estate" under deeds delivered, and "plaintiff's listing" the personalty, "there was, when all taken together, 41. Such part performance of the entire contract as to take the contract out of the operation of the statute of frauds. 42. The status quo was altered to an extent that to then hold void the unexecuted fraction (as to the personalty) of this entire contract would operate as a fraud upon the plaintiff, and the damage if any which the law Could allow him would be inadequate compensation. (Cases) ". See also Parol. —Kipp v. Lav.n, 146 W. 591, 601. 43. An oral promise by the father "to pay his (minor) son's debt" "was clearly void under the statute of frauds". See also Ratification. —Fisher v. Lvtz, 146 W. 664, 666. 44. In an "order for lumber" subscribed by. the vendee corporation "in type-writing", "the signature is, sufficient to meet the calls of the statute," sec. 2308. (Cases). ' 45. Nor is such contract "void under the statute of frauds because it is not signed by the" vendor, because the shipping and acceptance of a portion of the order "was a sufficient part performance to take the case out of the statute. (Many cases) ". —Garton T. Co. v. Buswell, L. & Mfg. Co., 150 W., 341, 348. FRAUDULENT ORDERS 475 46. Where "under the terms of the original (written) contract the entire work might have been completed before the expiration of the year from the making thereof", "the contract must therefore be treated as not within the statute of frauds. (Sec. 2307),, 47. Under these facts of the case the trial court properly received parol evidence tending to show that the parties at the time alleged made an agreement which modified the written contract. 48. The parties to the contract could by mutual agreement modify it without any new consideration. Schoblasky v. Rayworth, 139 W. 115 (See Parol) ". —Foley v. Marsoh, 162 W. 25, 30. 49. "An oral agreement" to buy jointly, is held not within the statute, which is "applicable only to contracts between seller and buyer". See also Sale op Personalty. —Stack v. Bath Bros. Co., 162 W. 281, 286. 50. A contract "void under the statute of frauds because not- in writ- ing", being "not to be performed within a year", and "not in writing" is not void under the statute,, sec. 2307, if it "was reiterated" within the year. —Huebner V. Huebner, 163 W. 166, 170. FRAUDULENT CONVEYANCES. See Actions by Extr. or Admr. Creditors' Actions. Dower. Fraud. Frauds, Statute op. Husband and Wipe. Incompetents' Sale of Realty. Infants' Sale of Realty. Married Woman. Sale op Realty. Undue- Influence. FRAUDULENT ORDERS. See also Fraud. Mistake.- Settlement. Vacating Judgments. Acts of opposite party, 13. Administrator's false pretenses, 17. After appeal expired, 21. After minor's majority, 23. Broad rule stated, 1, 2, 32. Acts of opposite party, 2'. Defense not available, 1. Fraud or accident, 2. Ignorance of fact, 1. '; , Prevented from availing, 2. Without fault or negligence, 2. Burden on the trustee, 16. Compel new accounting, 8. Constructive fraud, facts, 24. ' Contrary to equity, 1. Default judgment against ward, 27, 28. Laches: heir's interest, 29. Payment, been admitted, 2,8. Prior to ward's decease, 27. Defense prevented, 13. Directly induced judgment, 30. Not merely conditions, 31. Estate, on,e-third value, 16. , Estate to wrong persons, 5. Exception, confirmed rights, 4. Limitation statute, 4. 476 PEOBATE AND GENEEAL LAW, CODIFIED Failure of guardian ad litem, 25. Not grant specific, relief, 9. Final judgment, five years, 10. , Obtained by fraud, 3, 11. Administrator's false pretense, 17., One year limitation, 22. Application year later, 17,18. Parties lived at distance, 10, 18. Laches of petitioner, 10. Probating will, vacated, 25. Marriage concealment,' 10. Begardless of circuit court, (>, 19. Fraudulent . concealment, 14, 15, 17, 18, Releases, mere conveniences, 18. 26. Rule, elastic, restrictive, 32, 83. Ignorance of the fact, 13, 14, i5. Settlement not opened, 20. Inequitable; ignorance, 12. Only order complained of, 20. Irregularity entered, 3. ■•'■ Vacate orders; proceedings, 3. Laches: of applicant, 2, 13, 21^, , ... Without fault or negligence,. 13. Heir 's interest developed, 29. ' Wrongful administration, 5, 17, 18. New York; Massachusetts, 7. 1. "The rule seems to be quite well settled, that chancery will relieve against a judgment at law on the ground of its being contrary to equity, when the defendant in the judgment was ignorant of the fact in ques- tion 'pending the suit, or it could not have been received as a defense, 2. Or when he was prevented from availing himself of the defense by fraud or accident, or the. acts of the opposite party unmixed with negligence or fault on his part. (Cases) ".' (In Laun v. Kipp, 155 W., post, it is said that this "broad rule", "is the law of this forum"). —Stowell v. Eldred, 26 W., 504, 507. 3. "This court has repeatedly held that the, county court may set aside its orders and proceedings, when they have been irregularly en- tered; or when i they have been , obtained through the fraud of parties obtaining the same. See in re Fisher, 15 W. 511, (cited under Mis- take; other cases). ,,, 4. We see no reason for limiting this jurisdiction, except, as was done in the case of Betts.v. Shotten, 27 W. 667, so as to prevent disturbing rights which have become confirmed, under the order of proceedings asked to be set aside, by the running of the statute of limitations in favor of those claiming under them". 5. ' ' The petition in"" this case, if true, shows that there has been a wrongful administration of the estate, and a direction of the court to deliver the estate to 1 persons who have no right to any part thereof". See also Demurrer. 6. "The fact that" an. action might be maintained in circuit court, "is no reason for holding that the county court cannot and ought not to remedy the wrong done by its own order". 7. "A like rule has been adopted for the probate courts of New York (many oases) ; also by the.'courts of Massachusetts (cases)". 8. It is indicated, without being decided, that the county court could compel a new accounting by the administrator who procured the fraudu- lent order, and "if the money or property is still in the possession of such person (who wrongfully received it) enforce such order under sec. 2460". FRAUDULENT ORDERS 477 9. Because the county court might not; grant the specific relief sought, is not sufficient reason for dismissing the 'petition. — Est. of Leavens, 65 W. 440, 446. 10. An application, five years after its ; entry, to set aside the 'final judgment in the estate of T. assigning all the estate to the widow, on the allegation of fraud on her part as to concealment of a former mar- riage without a valid divorce to enable re-marriage, was denied on the facts showing an absence of fraud whether the divorce was valid or not (undetermined), and'on the laches of petitioner in not having '" made the discovery long before" and in "not having made any inquiry even of S. (the widow) herself, when they ought to have made it", the judgment having been "rendered without fraud and on due personal notice to all". Rogers v. Van Nortwick, 87 W. 414 (see Laches). 11. "The power of ithe County court to vacate a final order shown to have been procured by fraud is well settled in this state. Est. of Leavens, 65 W. supra." '''■■'. 12. ' ' The relief will be granted when ' the former 1 judgment is ' ine- quitable, and the defendant was ignorant of the fact in question pending the former suit; 13. Or was prevented from making his defense by fraud, accident, or the acts of the opposite party, unmixed with negligence or fault on his part. Stbwell v. Eldred, 26 W. 504; Tucker v. Whittlesey, 74 W. 74; Marine Ins. Co. v. Hodgson, 7 Cranch' 332. It is obvious that the ignor- ance of fact which' will afford grounds for relief must be intentional or negligent ignorance". 14. "Whether, therefore, we regard the proceeding as founded upon fraudulent concealment of fact by.'Mrs. T. or mere ignorance of fact by the petitioners pending the settlement of the estate, 15. In either case, if their failure to defend was wholly or partially the result' of their own intentional' or negligent ignorance of fact, they cannot now be granted relief". -: —Tkomas v; Thomas, 88 W. 88, 93. 16. Where the ''legatees and devisees' all lived at great distances'', and their information was acquired only from the administrator with the will annexed to whom they assigned their whole interest in the "estate, both real and personal, for about one-third its value", "the burden is upon the trustee to show that the cestui que trustent knew at the time all the facts relating to the -value of the property and their rights therein. Leach v. Leach,' 65 W: 284;. ("other cases) ". 17. A final order '■■ assigning the whole estate, on such' assignments; to the administrator personally, entered May 20, 1890,— on petition filed Oct. 26, 1891, was held properly set aside, on the ground that the assign- ments "were' procured by his false pretenses and fraud", and to require the administrator to account, though "the county court had no juris- diction to set aside the conveyance" "of the real estate" though, pro^ 478 , PROBATE AND GENERAL LAW,' CODIFIED cured, by fraud. Brook v. Chappell, 34 W. 405 (See Jurisdiction) ; Ei of Leavens, 65 W. supra; (other cases). — Creamer v. Ingalls, 89 W. 112, 11 18. Following cases, supra, a final, judgment of distribution is set asi< as being "procured by fraud", on petition to the county court near: a year later, by two elderly sisters of the testator, heirs, alleging the releases given. to one of the "apparent relation of adopted daughter on the representation that a large estate was largely given by the wi to such adopted daughter, which was untrue, and that such releas* were merely conveniences, that "they believed and trusted the inform tion given them"; the estate was in the Milwaukee county court, an the petitioners resided in Minneapolis, and neglected to make inquirie or search the records. 19. Such proceeding by petition was held proper though the circu court might have been asked to allow an appeal, and "that there ma be a remedy by a direct suit is no objection to granting this motio] Brook v. Chappell, 34 W. 405." 20. It is not "necessary to open or set aside the settlement of tl estate", but only the judgment of distribution complained of nee "be revoked or set aside" and such matter heard and adjudicated. —Est. of O'Neill, 90 W. 480, 485-' 21. While the county court may, even after the time for appeal hj expired, set aside an order, for fraud or mistake, "it will be denied if tr facts show laches on the part of the applicant. Thomas v. Thomas, 8 W., supra'; Case of Broderick's Will, 21 Wall., 503." — Weadock v. Bay, 111 W., 489, 491 22. "Where the order or judgment, (of the county court) is attacke on the ground of want of jurisdiction or fraud", "the one-year limits tion did not apply", to enable setting aside. 23./ Where "within about two months after the minor attained h: majority he promptly made application to the conuty court to have tin order probating the will" seven years before, "vacated", 24. His petition not alleging fraud, ' ' but the facts constituting a coi structive fraud are alleged", and "upon the undisputed facts the wi was entitled to probate", — 25. "The failure of the guardian ad litem to call the attention of th court to such fact, therefore, obviously was at least a constructive f rau upon the infant", and the probate order was held properly set asidi (Cases). See also Lost Will. —Parsons v. Balson, 129 W. 311, 31( 26. "It is well settled in this state that an order or judgment of th county court may be set aside for fraud or fraudulent concealment o the part of the prevailing party. (Cases, supra)." l 27. An administrator, being also the heir, brought proceedings to se FUNERAL EXPENSES 479 aside for fraud, a judgment obtained on a trial two years before the decease of the intestate, while under guardianship, and vacation of such judgment is sustained, — 28. There having been made "no objection" to such claim, though the "general guardian and his attorney had long prior to said allow- ance been informed that the claimant had repeatedly admitted that she had been fully paid and that the incompetent did not owe her any- thing." 29. The administrator, though heir, was held not "guilty of laches", because the claim had been "fully paid'' when he learned of it, and he "got no interest in the estate until the death of the intestate", and "until then he could not know whether he would get any interest". See also Admissions. — Scheer v. Ulrich, 133 W., 311, 316. 30. "Fraud which can be made the basis of an. attack upon a solemn judgment of a court of record must have directly induced the rendition of the judgment, 31. Not merely have induced or brought about a condition upon the real. existence of which the court acted as the basis of its decree". —Uecker v. Thiedt,137 W., 634, 636. 32. The rule of "Stowell v. Eldred, 26 W. supra, is the law of this forum, leaving administration thereof sufficiently elastic to meet the necessities of such serious situations as require a remedy, 33. And sufficiently restrictive as not to invade the wise public policy to, as generally as practicable, terminate litigation as to' a single con- troversy". —Lanm v. Kipp, 155 W. 347, 372. FUNERAL EXPENSES. See also Administration Expenses. Claims. Debt; applies to all estates, 6. Married woman— continued Estates liable for, 3. Husband ordered charges, 7. Not contract relation, 5. Near friend or relative, 2. Expenses, attending funeral, 1. Paid by party or stranger, ,2. Married woman: separate estate, 4. Before administration, 2, 9. Credit of the estate, 7. Ee-imbursed from estate, 2. Estate primarily liable, 8. Widow with estate funds, 9. iHusband liable or not, 7, 8. Bank and condition, 3. 1. The court does not "think the time has yet come when a request from one near friend or relative of a deceased person to another, to attend his funeral, will be construed as implying a promise on the part of the former to pay the latter for his time, trouble and expenses". —Rothe v. Bothe, 31 W. 570, 574. 480 PROBATE AND GENERAL, LAW, CODIFIED 2. "An heir, a legatee, widow w guardian, or even a stranger, who has paid reasonable burial expenses,, necessarily incurred before administra- tion", can be "reimbursed from the estate". See Administration , Expensed. ,^-Sqmuel v. Est., of, Thomas, 51 W. 549, 551. 3. "It, seems to be well settled that estates of deceased . persons are liable for funeral expenses such as are usually adopted, for persons of like rank and condition in society. (Citations) ; 4.. And this rule applies to married women leaving separate estates to be administered. (Mass., 0, & ;N> T. cases). , ,5. The liability! of, the 'estates in such cases does not rest upon con- tract relation, hut upon a charge which the law imposes upon the estate.: (Citations)". ,;.<,. - ■ , 6. Under sec. 3852, "funeral expenses are treated as a debt of the estate, and apply alike to all estates being administered". ,, 7. Where "the husband ordered" the funeral charges, but the services were rendered "solely upon the credit of the estate" of the wife, the husband 's liability is not determined, 8. But it is held "that the estate is primarily liable, and that the claim for funeral, expenses may be enforced against it without regard to the liability of the husband. (Citations)". , .—Schneider v. Est. of Breier, 129 W. 446, 447. 9. Recovery against a widow, denied for estate funds paid by her for funeral expenses before administration. See Action by Exte. oe Admb. —Merrill v. Comstodc, 154 W. 434, 443. FUTURE CONTINGENT ESTATES. See also Power. Trust Variation. Vesting of Estates, etc. Circuit eourt: Eemainder — continued Ninety-nine year lease, 8. Preserved as provided, 5. Pending administration, 7. Sale of portion or whole, 6. Loan and mortgage, 1. ,,.,,• Threatened destruction, 5. No means available, 1. Statute; not more power, 3.. To prevent sale, 1. , Merely provides method,, 2. Eemainder : to pay heirs, 4. , , ■ . . Ninety-nine year lease, 8. Balance for parties' benefit, 6. Not a trust violation, 8. Estate in solido, 6. , 1. There "being no means of payment available", and "to protect the infant's (and future-born children) interest and to prevent a sale of the premises in satisfaction : of ": ; a mortgage, "another loan to secure the money to .pay it" and a mortgage to secure it, is authorized. "Such a course is promotive; within the contemplation of ch. 300, L. 1899 (Sees. 3519c et al)i, of her interest in the property". See also Power. —Lueft v. Lueft, 129 W. 534, 543. GIFT 481 2. Ch. 300, L. 1899, Sees. 3519c, et seq., merely provides "a method by which the title to property of persons under legal disability can be alienated in cases theretofore well recognized in the law, for the promo- tion of the interests of such owners", and 3. "It was not intended to -confer on the courts additional powers to those now exercised for the sale of interests in lands". 4: Where "the object of the application" "is to dispose of the interests in' remainder for the purpose of separating them from those of peti- tioner's life estate", "upon, the alleged ground that he, as life tenant, is unable to discharge the liens and charges against the property", the order for sale is reversed. 5. To prevent "threatenect loss, and destruction" of the future estates^ following Ruggles v. Tyson, 104 W. 500 (See Trust Variation ), "the interests in remainder are to 1 be preserved, as nearly as circumstances will permit, as the creator of them has provided", 6. And "the, estate must be maintained in solido" "unless the court encounters some insurmountable obstacle" Held, "practicable to obtain relief either by mortgaging", or by "sale of a portion", or "the whole may be sold", the liens paid, "and the remainder be kept in lieu of the real estate," for the "benefit of the parties as intended". 7. "As to the propriety of this proceeding in the circuit court during the administration of the estate by the county court", — not determined. —In re Kingston's Est., 130 "W. 560, 562. 8. As to ch. 300, L. 18.99, not authorizing a leasing for ninety-nine years, nor a trust violation, though such leasing is sustained in an action in equity. See Trust Variation. -^-Upham y. PlanJcint on, -152 W. 275, 286. FUTURE DELIVERY CONTRACTS. See Unlawful Contracts. GARNISHMENT. See Liability. GIFT. See also Delivery. ssed against donor, 63. Causa mortis— continued Causa mortis: Donor survives; defeated, 13, 24. Conditional gift, 14. May be revoked,; 14,, 24. Definition, 13, 23. Not complete before decease, 11. Delivery also essential, 2, 12, 22, 67. Taken; pay donor's debts, 25. Zimmerman — 31 482 PROBATE AND GENERAL LAW, CODIFIED Custody, third person,; 76. Title actually passes, 77. Turn over after death, 76. Delivery essential, 1, 2, 49. At law -and in equity, 2. Causa mortis: completed, 2j 22, 67. Change of possession, ; 7, 8; 67, 69. Directed ; not effected, 9. Chattel or chose, 2. Circumstances excuse act, 64, 65. Constructive; 1 intent, 28. Delivered after decease, 9. Insurance policy; manual, 47. ■ Instrument, is of fund, 46. Inter vivos: completed, 2, 21, 43. Nature of property, 65. Promisor 's own note, , 50j Such as subject admits of, 45. To agent of donee, 74. Deposit box: with key, 54. 1 Contents after death, 54y 55, 56. Evidence : Declarations: afterward^ 59. , Character of possession, 60. Declarations of deceased, 62. Of donor to third persons, 70, 71. Self serving: in derogation, 78. Abortive will or eodicil, 79, 80. Donee of dec'd. donor, 81, 82. Donee's talk, dec'd. donor, 81. Opposite party not testifying, 82. Family circumstances, 5. Indefinite; held gift, 29. Large amount of personalty, 37. Grand-niece; paralitic uncle, 37. Large attorney's fee, 38. Large physician 's fee, 39. Large 'sums to relatives, 40. Not undue influence, 40, " ' ' J - ; Other circumstances, 41, 42. Bes gestae as to gift, 4. i Not hearsay, 4. Statements of parties, 6. "Was to pay for operation," 52. Fund: in bank, 27. Intent emphasized, 28. Inter vivos; causa mortis, 27. Symbolical delivery, 46. Infants: brother to sister, 4. Note, father to infant, 16. preditors; subsequent, existing, 19. Father, not invalidate, 20. Handed to mother, 17. In trust for child, 17. Irrevocable, 18, Irisuranee policy; manual, 47. ' Inter vivos: Absence of recovery hope, 14. Donee actual possession, 15, 43. Fully executed before decease, 10. i Effect irrevocably, 61. Intention to part with, 43. Land, parol, possession, 31, 35, 36. Ownership acts; will, 33. Title by will; not gift, 34. Unambiguous declarations, 35. Unmistakable evidence, 32. Valuable improvements, 31, 32. Negotiable instruments, 44. Without written assignment, 44. Note: and mortgage, 1, 73. Endorsement and delivery, 57. Name of absent son, 53. Note delivery essential, 1, 49. Payable after decease, 48. Promisor's note; promise, 50. Settlement: causa mortis, 68. Parent and child; scrutiny, 66. Promise without act, 3. Ee-delivery; special purpose, 30, 57. Endorsements erased, 57, 58. To collect interest, 75. Reservation for donor, 72, 75. Revocable until delivery, 1. Subjects and delivery, 26. Testamentary only, 51. Immediately after death, 51. Not if title passes, 77, 1. "A delivery of the note was essential in order to pass title and give effect to the gift" of a note and mortgage. "The note was the prin- cipal, the mortgage the accessory," and while the note remained unde- livered the gift was revocable. ,- — Wilson v. Carpenter, 17 W. 512, 516. 2. "Delivery is essential both at law and in equity to the validity of a parol gift of a chattel or chose in action; and it is the same whether it be a gift inter vivos or causa mortis. Without actual delivery the title does not pass". GIFT ' 483 3. "A mere intention or naked promise to give,' without 1 some act to pass the property, is not a gift. 2 Kent, 438". —RescJL v. Senn, 28 W. 286, 291. ' - > ■ * v. f j 4. A minor son of an insolvent father, may make a gift (piano.) to an infant sister, and "what was said; as well as what was done, on the occasion of the presentation or gift, were part of the res gestae, and not hearsay; 5. And the general circumstances of the family at the time of the pretended purchase, and gift were 1 prober to be shown, to sustain and corroborate and make probable the transactions". See Parent and Child. — Wambold by Gdn-. v. Vick, 50 W. 456, 458. 6. Statements by the parties as to ''the gift and possession", on the question of title are admissible. See Res Gestae. ■:>.'.- —Kellogg v. Adams, 51 W. 138, 145. 7. "We know of ho ease where a gift has been upheld when no act has been done tending to change the possession of 'the property which is the subject of the gift from the donor to the donee", 8. "To make a gift perfect, all the cases hold that the possession of the subject of the- gift must pass from the donor to the donee:" "See Wilson v. Carpenter, 17 W. supra ; Resch v. Senn, 28 W. supra' '. 9. In this case the deceased; three hours before he died, told the nurse to take from under the feather bed he was lying on, his pocketbook, and to give it with the money and papers therein to his wife when she came. .It was not so taken and delivered until some hours after his decease, and it was held no completed gift, and no title in the wife of a note in the purse, endorsed in blank, though she was the sole heir. —Wilcox v. Mattesow,' 53 W. 23, 27. 10. "Where a gift of personal property is made with intent to take effect immediately and irrevocably, and is fully executed -by complete and unconditional delivery, it is certainly binding upon the donor as a ,gift inter vivos, even if the donor at the time is' in extremis, and dies soon after. Tate v. Leithead, Kay, 658; McCarthy v. Kearnam, 86 111. 292. '■■ •• ". "''■''" ' - ''< 11. But where such intent is not manifest, and r the gift is otherwise made, under such circumstances it will ordinarily be regarded as a gift causa mortis. Rhodes v. Childs, 64 Pa. St. 23, 24; Grymes v. Hone, 49 N. Y. 17. 12. But even such a gift is not complete without delivery. Ibid. ; Wil- cox v. Matteson, 53 W. supra; Brunn v, Schiiett, 59 W. 260. 13. Such a gift may be denned as one made by the delivery of per- sonal property by the donor in his last sickness, and in expectation of death then imminent, and upon condition < that -it ■■shall belong to the donee if the donor dies, as anticipated, without revoking the gift, leaving 484 PROBATE AND GENERAL LAW, CODIFIED the donee him surviving, and not otherwise. (Gitations) But even such a gift is defeated if the donor survive such sickness. Staniland v. Willott, 2Macn.&G. 664." 14. In this case "in view of the apparent absence of any hope of recovery, it would seem that the note, mortgage, and satisfaction may be regarded as so delivered to the mortgagor as an absolute gift in presenti," but if the intent was not to make the . gift . unconditional "and he was at the time in his last sickness, and died soon thereafter, without revoking the gift, we must regard it as a valid and binding gift causa mortis." — Henschel Admr. v. Maurer, 69 W. 576, 580. 15. "A gift inter vivos doesnot become perfected so as to change the title to personal property until the donee gets actual, possession thereof, either by himself or his authorized! agent. Wilcox v. Matteson> 53 W. supra; (other cases)". ■:, —Wells v. Collins, 74 W., 341, 344. 16. As to a Christmas gift by a father to a minor son, of a note of $1000, placed in an envelope marked with the child's name thereon, and also written on the note by the father, handed to the wife and mother, "placed by her in a drawer in her- own room to be so kept", is held a sufficient delivery. 17. In the case of "a minor child of ten years of age," "the most com- mon and approved -method of perfecting the gift in such a case is by delivering it to the child's parent, guardian or friend in trust for the child." 18. "The gift having been made by the parent to the child, it was irrevocable. Kelloggv. Adams, 51 W., supra. 19. Such a gift is valid as against subsequent creditors of the donor, and as against existing creditors, also-, if made in, consideration, of natu- ral love and affection and when the donor was free from embarrassment, and the gift was but a small part of his estate, and it being a reasonable provision for the child, and, made without, intent to defraud. (Many cases) ". (Followed in Horn v. Horn, 152 W,., post.). 20. The gift having been exchanged for stock, and the stock with other valid consideration for land, it is said that the father ' ' could do nothing afterwards to invalidate- this gift i is too plain for argument or authorities. If he could do so, then it follows that he could revoke the gift at his pleasure, and that we have seen he could not do. He could not do indirectly what he could not do directly. He could do nothing, to invalidate this gift." —Second Nat., Bank v. Merrill, 81 W. 142, 148. 21. "A gift inter vivos must be completed by delivery of the subject of the gift. • ^ 22. A "donatio causa mortis must be completely executed, so far as delivery is concerned, in the lifetime of the donor, precisely as required in the case of gifts inter vivos. , 23. A donatio causa mortis is a gift absolute in form, made by the GIFT . 485 donor in anticipation of his speedy death, and intended to take effect and operate as a transfer of title only upon the happening of the donor's death". 24. "It may be revoked by the donor; and is completely revoked by his recovery from the sickness or escape from the danger in view of which it was made. 25. And, if not so revoked, the gift may be taken by the administrator of the donor, if necessary for the payment of his debts. 3 Pom. Eq. Jur., sec. 1146; Basket v. Hassell, 107 U. S., 609, 610; Henschel v. Maurer, 69 W., supra". 26. "So far as the subjects which may be disposed of by gift and the question of delivery are concerned, the law is the same in either case", inter vivos or causa mortis. (Cases). 27. As to a receipt signed by the cashier of a bank of four bonds "to be sold and the proceeds placed to her credit", given to A., and endorsed and signed by her, "Please let M., my nephew, have the amount of the within bill, and oblige, ' ' with the intent to give such fund, it is said, "equitably at least, if not legally, it possessed all. the characteristics of a regular certificate of deposit, ' ' and the transaction ' ' construed with reasonable liberality" must be held "a gift of this fund due from the bank to A.", to M., "and evidence would doubtless be admissible," "to show a gift of the fund either inter vivos or causa mortis." 28. (Cited and discussed in Dickson v. Bills, 144 W., post, where the intent was "found the contrary", and intent emphasized "in all such cases of constructive delivery.") —Crook v. First Nat. Bank, 83 W., 31, 36. 29. Where there was ' ' evidence tending to show that about two weeks before", her marriage to plaintiff W., "she was at his room, and he stated to her that he had bought her a present, and asked her to guess what it was ; that just then a man came with the piano, and placed it in his room ; and that she and he had both treated it as her piano ever since", it is held "sufficient to sustain the verdict" that it was hers as against the husband's creditor. (Cases supra). —Williams v. Hoehle, 95 W. 510, 512. 30. A gift of a mortgage and notes was made from father to son by "written assignment therein and delivery i the father "to have the interest on the notes so long as he lived"; subsequently the notes were given to the father "that he might receive the interest, and were found among his papers after his death. These facts are not necessarily incon- sistent with the hypothesis" that it was l 'to take effect, in presenti, as a gift". So held, on the evidence. , -; —McNally v. McAndrew, 98 W. 62, 65. 31. "Equity will protect and specifically enforce a parol gift of land if accompanied by possession,' and the donee, induced by the promise to 486 . PROBATE AND GENERAL LAW, CODIFIED give it, has made valuable improvements upon the property. Neale v. Neales, 9 Wall. 1. 32. Such a gift, however, must be established by certain and unmis- takable evidence and the fact that substantial and valuable improvements were made in reliance upon it must be directly and unequivocally proved. Dawson v. McPaddin, 22 Neb., 131, Pomeroy Cont. 130, 131." 33. On the facts, with about twenty years possession, receipt of the income, making valuable improvements, payment of taxes except three several years, but showing acts of ownership by the father in various ways, and "no direct evidence of any conversation in which the testator said to his son that he gave him the farm", and the testator having long after such possession willed the, son the farm charged with a legacy, it is held, — 34. ' ' That the testator placed the defendant on the farm with the intention of giving him title by will, but not with the intention of trans- ferring title by the gift itself. ' ' See also Legacies. —Hawke? v. Slight, 110 W., 125, 128. 35. Following Hawkes v. Slight, 110 W., supra, it is held, under circumstances of over twenty years possession,, payment of taxes^ etc., "and unambiguous declarations of the alleged grantor", as to the lands, and reversing the circuit court,— 36: "That a parol gift, followed by complete possession and exten- sive and valuable improvements in reliance thereon, is proved", and that judgment be entered accordingly. . ,. —Kelley v. Crawford, 112 W., 368, 377. 37. Where, on the evidence of the deed of gift and order for delivery of a large amount of personalty, from an old man of 88 years to a grand-niece, he suffering from paralysis, it was found that the proceed- ings were in all respects valid, and that the donor was fully competent and not influenced,. . • 38. It is held, that paying an unduly large fee to a young attorney for his services therein, by the donee with the knowledge and consent of the donor, and that the donee also paying, 39. An unduly large fee to the physician of the deceased in attend- ance-, "may excite suspicion", — but that such facts, 40. And the payment by the donee, "six days after the death" of the donor, voluntarily, of large sums to the heirs and other relatives, "and took back releases from them, respectively, — is no evidence that she exercised undue influence over the deceased in procuring such deed of gift". 41. And money deposited in the name of the donee, by the hotel- keeper to whom it was given by the donor for safe-keeping, and paid out by the donee for expenses during the lifetime of the decease, and at his direction, was held spent, "really -for his use and benefit"; 42. "But even if it were to be regarded as a gift, yet the delivery GIFT 487 seems to have been sufficient to satisfy a gift inter vivos", and it did not belong to the estate or administrator. (Cases). —Citizens' L. & T. Co. v. Holmes, 116 W. 220, 234. 43. "To consummate a gift inter vivos, there must be an absolute delivery of the subject of the gift by the donor, with an intention to par,t with his interest in and dominion over the property sought to be transferred. > 44. The rule seems well settled that bonds and other negotiable instru- ments for the payment of money can be transferred by delivery to the intended donee as a gift without a written assignment. 45. The essential requirement in eases of gifts is that such a delivery shall be made as the nature of the subject sought /to be bestowed reason- ably admits of", and "many of the strict requirements" of the earlier cases have been relaxed. Crook v. First Nat. Bank, 83 W., supra. 46. "The delivery of the instrument . is a symbolical delivery of the fund, and the contract or gift becomes executed and completed, vesting title in the person receiving it". 47. A gift to a fiancee of an insurance policy, payable to the insured's executors, by manual transfer without regular assignment, was held valid and effective. See also Insueance. — Opitz v. Karel, 118 W., 527, 529. 48. A claim against an estate on a promissory note -payable after my demise, out of my estate', is held "no valid claim", the note being "without consideration", and "a mere promise to make a gift in the future", and as such "cannot be enforced. 49. Actual delivery of the property- is essential to the validity of a gift, 50. And delivery of the promisor's own note is not delivery of the property, but a mere promise to deliver it". ' —Tyler v. StiU>12T iW. 379/381. 51. A proposed gift by one in "extremis, in writing, of furniture and certificates, stating, 'that the above written order shall be in full force immediately after my death', "was purely testamentary, arid only to take effect after her death and not in presenti", and "the transaction was not a valid gift causa mortis", nor a "gift inter vivos". (Cases, supra.) ' —Schidtz v. Becker, 131 W., 235,1240. . 52. In an action by the father of defendant's wife, to recover on alleged express contract, for a surgeon's bill for an operation on defend-" ant's wife, a declaration by plaintiff to a third party "that he was to pay for the operation because the defendant had had expense enough," was held competent testimony against him, to show gift. 20 Qyc, 1222. —Fallon V. Vandesand, 136 "W., 246,, 247. 488 PROBATE AND GENERAL LAW, CODIFIED 53. A note and mortgage on money loaned by the father Joseph, w, taken by him in the name of his absent son John, and "it is establish* by the evidence that Joseph never gave nor intended to give the note at mortgage to John and that John never knew of the execution thereo and that there was no acceptance on the part of John : therefore, thei was no gift. (Many cases)." —Tobin v. Tobin, 139 W., 494, 49 54. On the evidence, including a signed writing to a safe depos company to 'give over contents of her deposit box to her brother, deli ered to him with the "two keys of the box", during her illness, but 1 "did not present the writing of surrender" "until after her death ' there being also oral testimony, it was held, 55. That "the acts of both parties furnished evidence that" "an change in the situation" "was probably not intended to be done durin the lifetime of the donor, 56". But that the delivery should take place pursuant to said ord< after her death", (cases), such being the "finding of the trial court' Crook v. First Natl. Bank, 83 W. supra, distinguished. ' ' The admini tra'tor recovered," and such judgment affirmed. —Dickson v. Bills, 144 W. 171, 171 57. Where K. during his lifetime transferred, by endorsement an delivery, a note to S., also "expressing satisfaction that he had mac said gift", and after such delivery the note "was delivered back" to I to allow "him to collect the interest thereon", he having "reserved tl: interest for himself" during his life, and his "executor found sai note among the papers of deceased ' ', and ' ' erasures were made over tl endorsement" without the authority of S., — 58. On claim being filed therefor by S. and disallowed by the count and circuit courts, such disallowance was reversed, the note being hel a valid gift. 59. Testimony of "declarations of K., several months after the tiro of the alleged gift, affecting the validity of the gift of the note" an involving intent, of gift, was held '"hearsay and self-serving and nc competent", 60. And not within any "exception to the general rule", "the ques tion involved" not being "one of character of possession, but of title t the note", and not 'part of the res gestae'. Griswold v. Nichols 12 W. 401. 61. "Where a gift of personal property is made with 'intent to tak effect irrevocably, and is fully executed by unconditional delivery, it i a valid gift inter vivos. Henschell v. Maurer, 69 W. supra". See als 'Transactions With Deceased Persons. — Will of Klehr, 147 W. 653, 65£ 62. On the evidence "of the declarations of the deceased and of th facts and circumstances showing the relations of the deecased and hi son L.", a gift of horses to the latter is sustained, GIFT 489 63. And on petition of. the son, personal property purchased by him from the avails of such horses, was stricken from the inventory of the estate, and such order upheld, though the property was assessed against the father. 64. The father being a paralytic and father and son residing together, "under these circumstances a delivery of the horses to L. required no, act from the father aside from the declaration that he then gave them to L. and surrendered dominion over them, and aside from his regarding them thereafter as the property of L. " 65. "The question of the delivery of this property and the transfer thereof is controlled by the nature of the property and situation of the parties at the time. 66. While the relationship of parent and child requires close scrutiny of the evidence of transfer of property by way of gift, yet when it is clearly shown by evidence it becomes irrevocable. (Cases, supra)". —Horn v. Horn, 152 W. 482, 486. 67. "A gift, inter vivos, requires a completed transit of the subject of the transaction inter partes, and" "the same is true of a donatio causa mortis. Schultz v. Becker, 131 W. supra. ' ' 68. A promissory note for a given sum, payable at a definite- time, to the order of Gr. R. S., signed by W. J. S., containing a clause, 'shpuld G. R. S. die first this to be a gift to W. J. SI.',. the payee dying before the note was due, it being given in "settlement" as a "completed transac- tion ",— has "the characteristics of" "a donation causa mortis", and such clause "took effect" upon such decease, "leaving nothing due" on the note. See also Promissory Notes, etc. —Miller v. Slater, 154 W. 35, 38. 69. "A purpose to make a gift of property can only be consummated by the donor actually parting with possession of and dominion, as owner, over the subject by an absolute delivery thereof to the donee, or some one for such donee, and an acceptance by the latter". (Cases). 70. "Declarations made by V. to third persons that she had given the property in question to C. were proper. Pritchard v. Pritehard, 69 W. 373 (See Admissions) ; Taylor v. Thieman, 132 W. 38 (See Services). 71. In the first, of those cases, the court said, that statements made by a deceased person to a third party that he had made a gift of specific property to a person named, are competent evidence in an action between the donee and the administrator of the estate of the deceased". 72. "Where "L. was made by C, her bailee of the securities, V. to have the income so long as she lived and such of the principal as neces- 'sary for, her support", that "would not defeat the purpose to make a gift", such benefit being "reserved, and without any authority in V. to resume control as owner. 73. So the case does not fall within the , doctrine that the mere delivery of the assignment of a mortgage does not constitute delivery of the note 490 PEOBATE AND GENERAL LAW, CODIFIED signed thereby so as to pass title and execute a purpose to make a gift to the assignee". 74. "Delivery to the agent of a donee to control the title for him, the agent being actually put in possession and control as- such, is sufficient to complete a gift. (Cases)". 75. And the fact of the bailee ''letting V, take the securities, if she desired," is construed,, "not that she might take as owner but merely to collect the interest reserved for her benefit". (Cases). 76. "Title to property may be vested by one person in another, as donee, and custody remain in a third person, as bailee, conditioned to turn the subject over to the donee, after the death of the donor. (Cases) . 77. And "the transaction" is not "testamentary in character, so long as the title actually passed to C, ' ', the donee. , —Pirie v. LeSauLnier, 161 "W. 503, 507. 78. "Selfservmg declarations" and declarations "in derogation of" a gift, "are incompetent". See also Admissions. 79. It is nqt decided: "when the alleged acts and words of gift are so ambiguous that. the transaction might be either a gift or a bailment, 80. Whether the declarations of the alleged donor contained in an abortive attempt by him to make, a will or codicil are competent as verbal acts and part pf the res gestae ' '. ,81. "We discover no, error in excluding the testimony of" the alleged donee, ' ' relative to transactions or communications personally had with his deceased father", the donor, as to the gift, on certain dates, 82. There .being no witnesses of the opposite party "examined in their behalf concerning the communications of" those dates, although examined "with reference to other transactions or communications between appellant and his father, deceased". Sec. 4069. Anderson v. Anderson, 136 W. 328 (See Transactions With Deceased Persons). — Hilton v. Bohr, 161 W. 619, 623. GUARANTY. Collection of debt, 1, 7. Exhaust other' remedies, 7. Consideration; expressed; 1. Expressed by implication, 4. Satisfies statute, 5. Fails to express^ 8, 10. "For value received," 1, 2. Need not pass, 3. Creditor's own debt, 6. Note of third person, 6. Definition, 1, 12. Collection: payment, 1. "Guarantor," ordinarily, 13. Other meanings, 14. Infant's guarantor, 11. Unenforceable contract, 11, Liability limit, 15. Exception; disability, 16. Notice of acceptance, 9. Promise to pay debt, 10. 1. Guaranty may be (1<) for payment which "is an absolute under- taking" to pay and (2) for collection which requires the guarantee to GUARANTY 491 first "diligently prosecute the principal debtor". Must be in writing, for consideration which may be expressed' " for value received". (Dili- gence, waiver and guaranty discussed). — Day v. Elmore, 4 W. 190. 2. "The words 'for value received', in a guaranty, sufficiently express the consideration required by the statute of frauds. ' Day v. Elmore, supra; Watson v. McLaren, 19 Wend. 557". 3. ' ' The consideration of a guaranty need not pass between the parties to 'it. It is enough if a benefit arises to the party for whom the guar- anty is given; and forbearance and extension of credit on the original indebtedness is sufficient. (Cases) ". — Dahlman v. Hammel, 45 W. 466, 468. 4. A written guaranty of ' payment for all goods A. and B. may buy from C expresses the consideration "by necessary and inevitable impli- cation from its terms", that being that if C. "will sell and deliver goods to A. and B. upon credit, the defendant will guaranty payment of the price". 5. It is held to satisfy the statute, sec. 2307, requiring the considera- tion to be expressed, and to cover goods purchased of the plaintiffs by either A. or B. —Young v. Brown, 53 W. 333, 335. 6. Where a debtor takes in settlement from his creditor, a note of a third person, the property of the creditor, with a guaranty 1 of the latter not expressing the consideration, such guaranty is for the payment of the creditor's own debt, and is not within the statute of frauds. —Eagle M. & E. M. Co: v. Shattuck, 53 W. 455. 7. The guarantee in the collection of a debt must exhaust "all the reemdies" he has against the principal debtor, including the security in case of a note and , mortgage, "before he can proceed against the guarantor," and the latter is "not liable to a judgment for a deficiency in the foreclosure action." , —Cottrell v. New London F. Co., 94 W., 176, 178. 8. Where "at the foot of " a valid guaranty to pay for, goods to bo purchased of plaintiff, the defendant signed an agreement that he 'agrees to assume one half of S.'s liability under the above 1 guaranty' it is held: 9. ' ' We express no opinion upon the somewhat vexed question whether, notice of acceptance by the plaintiff was necessary to charge the defend-, ant with liability as a guarantor. 10. In our judgment it is certain that the written instrument fails to express any consideration, and hence is void under subd. 2, sec. 2307, because it is at best merely a promise to answer for the debt of another person. (Many cases)". —Klee v. Stephenson; 130 W., 505, 506. ' 11. Guarantor of infant's unenforceable contract, held not liable. See Infants. —International T. Co. v. McKone, 133 W., 200, 204. 492 PROBATE AND GENERAL LAW, CODIFIED 12. "The nature of the instrument should determine its character rather than the name which the parties applied to it ". 13. "While the word 'guaranty' ordinarily means an undertaking t< answer for the debt or the performance of a duty by another in case sue] other fails to pay or perform, 14. Colloquially it is frequently used in reference to an original under taking. The cases recognize the fact that the word is often used as i synonym for 'promise' and to denote an absolute agreement (Cases) " — Drovers' D. Nail. Bank v. Tichenor, 156 W. 251, 255 15. "While it is the general rule" "that the liability of the principa debtor measures and limits the liability of the guarantor", 16. An exception "is where the principal contractor is an infant. This and other instances where the principal contractor is incapaci tated to contract are excepted from the. general rule". —International T. Go. v. Mabbott, 159 W. 423, 425 GUARDIAN AD LITEM. See also Compensation op Exte., Adme., Gedn. & Teustee. Accountable; attorney only, 39. Administration; voidable, 17. Valid as to others appearing, 52. Void as to the minors, 51. Admr. de bonis non, 36. Nunc pro tunc guardian, 37. Appeal; without leave, 21. Duty to; not affect costs, 35. Leave to perfect, 22. Permission unnecessary, 28. Appointed: during trial, 15, 54. Attorney; court matters, 38, 39. Continued until discharged, 24. Appointed in lower court, 28. Court, where prosecuted, 23. Circuit court, same appointee, 54. Not necessarily so, 53. Notice; not required, 16. Other parties; no interest, 16. Attorney's fees; expense, 20, 41. Attorney to be appointed, 13, 38, 39. Claim contest; party, 43. Irregularity, waiver, 44. Common law, 7. Continued until removed, 18, 24. Counsel employed; leave, 41. Disqualification: county judge, 40. Former guardian ad litem, 40. Duties and powers: Appeal without permission, 28, 31. Appearance when necessary, 46. Continues throughout, 28. Court matters only, 38, 39, 49. Examine into case, 26. General guardian ignored, 21, 34. Illy advised; court interferes, 33. Take advice of court, 29. May proceed without, 29. At his peril, 30. Not perfunctory merely, 27, 31. Ordinarily passive only, 47. Power limited; property rights, 48. Protect infant's interest, 25, 31, 45. Protect testamentary scheme, 45. Quasi-official character, 49. Stimulate, executors, attorneys, 46. Advisory capacity, to them, 47. Stipulate; no right, 50. Supported by counsel, 32. Under control of court, 25, 49. General guardian, adverse, 8, 21. After guardian ad litem, 18, 21. Guardian ad litem necessary, 10, 23. May be guardian ad litem, 12. Not affect guardian ad litem, 18, 21, 34 Practice; foreclosure, 11. Usually guardian ad litem, 13. GUARDIAN AD LITEM 493 Infant : not bound, 2. Appeal, signed by attorney,. 14. ( Consent, ratification, 2. Defendant: guardian ad litem, 23. Disaffirm after age, 4. 'No laches charged, 2. Seasonable diligence, 5. , Inference; other court, 19. General guardian, 21. Liability: in damages, 25. Necessary where notice, 1. Neither person nor property, 39. Probate of wills, 1. Subsequently, insufficient, 3. Widow elects; no guardian, 9. Removal; no cause, 21. Stipulation; judgment, 50. Ward's property rights, 50. Subsequent appointment, 3, 6. Disaffirm notwithstanding, 4. Jurisdiction, not cured, 6. , , Prior proceedings, 3. . Trustee of property, not, 38, 48. Trust estate; new appointee, 42. Void: on failure, 1, 51. Valid as to others, 52. Voidable only, 17. Waiver of irregularity, 44, Not formal notice, 55. 1. "Although the statute is silent as to the appointment of guardian (ad litem) to represent infant heirs and other persons under disability at the probate of wills, such appointment is incidental and necessary in all cases where notice to persons interested in the estate is required ; and, if not so represented/the proceedings as to such persons will be void". 2. "If the notice had been sufficient as to all persons of proper age, and the : proceedings otherwise regular, the infant heir would not be bound unless represented by guardian, and such infant could not be charged with laches, consent or ratification during- the time of minority''. 3. Where the infaht ward H. was not represented at the probate of the will, "if a guardian' was appointed for H. at the time of the settle- ment of the estate, and acted in her behalf in such settlement and in receiving the proceeds of the sales under the will, and in executing receipts and acquittances therefor, this would not make valid the prior proceedings, in which she was not represented ; 4. And there can be ho question that, within a reasonable time after becoming of age, she could disaffirm all such proceedings and ask the court to declare them void as to her and set them aside on the ground of her infancy alone. Bresee v. Stiles, 22 W. 120. ' ' 5. "A minor is bound to disaffirm her contracts within a reasonable time after obtaining her majority". See also Infants. —O'Dell v. Rogers, 44 W. 136, 173. ,6. ; Where defective service v on infants was had, "the subsequent appointment of guardian ad litem was clearly irregular, and did not cure or aid such want of jurisdiction".,. See Service. — Helrtis v. Chadboume, 45 W. 60, 69. 7. By the common law, the legal designation of a person representing an infant was "next friend". See Words and Phrases. — McKimiiey v. Jones, 55 W. 39, 46. 494 PROBATE AND GENERAL LAW, CODIFIED ' 8. A guardian ad litem to appeal for an incompetent, should be appointed, where the general guardian is adversely interested. See Guardian and Ward. —Marx v. Rowlands, 59 W. 110, 114. 9. Probate proceedings are held valid where the widow elected and minor heirs were not represented or harmed. See Jurisdiction. — Mekns v. Pfister, 59 W. 186, 193. 10. "Still, notwithstanding these general provisions of the statute", as to the general powers and duties of a general guardian, "the appoint- ment of a guardian ad litem is generally deemed necessary, and made", in "proceedings in ordinary actions in court". . — Van Steenwyck, Exit. v. Washburn, 59 W. 483, 504. 11. In a foreclosure of action, — of a note and, mortgage "given to the general, guardian" F., who was succeeded before commencement of the suit by K. as general guardian, — br.ought in the name of the infant wards, "by,K i ..,thejr guardian ad litem", it is hejd,that,t;here„is no "valid objection to the practice adopted, either in the appointment of the guardian ad litem or the method of bringing suit. 12. The, court, or judge thereof, had. authority under the statute to appoint the general guardian as guardian ad litem, if it was deemed, proper to do so.. , Sec. 2613; Foster, v, Hammond, 37 W. 185. ; , 13. The person appointed as guardian; ad. ( litem is usually the. gen- eral guardian, unless special reasons exist for" appointing another per- son ". (But, see sec. 4052a subsequently enacted, as to the guardian ad litem being an attorney). — Straka, by tifdn. ad litem v. Lander, 60 W. 115, 117. 14. Where a minor's claim was disallowed in county court, and an appeal, signed by her attorney, taken to the circuit, the appeal was not dismissed, where a guardian ad litem was appointed before the hearing. 15. "The case is ruled by that of Sabine v. Fisher, 37 W. 376", where, ' ' the court appointed a guardian for her during the trial, when it was disclosed that she was a minor". , 16. Notice for such appointment was hot required as "the defendant had no more interest in it than a party has in the selection of an attorney by his opponent". ' ; —Hepp by Gdn. ad litem) v. Huefher, Admr., 61 W. 148, 151. 17. Where a minor heir was unrepresented in administration proceed- ings, and after he came of age and after the final order of distribution, he began proceedings to have such administration proceedings set aside for fraud of the administrator, it is said, that ! ' while he is not bound by the order of distribution", "on account of his minority and want of proper nptice of it when it was made, it is not clear that the appoint- ment of the administrator was void as to him, though a minor", because ' GUARDIAN! AD LITEM 495 neither the statute nor, court rule, in terms provided for a guardian ad litem at such hearing. —.Est, of Leavens, 65 W. 440, 449, 18. In a divorce action against an insane .wife, held to be .still pending after judgment, as toicustody and support, itis said ''that the guardian ad litem appointed by the (circuit) court at the commencement of the action continues to be such guardian, until removed: by the, court which appointed him, and the appointment by the county, court : of. a general guardian of Mrs. H. . cannot operate to; suspend any •, function of such guardian ad litem. , ; ;,.., . - . 19i Mrs. H. is the ward of the circuit, court,; and, no other court or tribunal has any , authority to supersede the guardian, appointed by it, or interfere with its orders and judgments affecting her custody and support." ;,.,,;..,, _ Hicks v. Hicks, 79 W., 465, 470. 20. "Attorney's fees and, disbursements. '?,,, of guardian ad litem,. in general litigation of the estate. See Compensation of Admb.j etc. ; . , , ..' , — Ford y. Ford, 88 W. 122, 134. 21. On the facts in this ease, showing good faith and; diligence, the court refuses to dismiss the appeal of the guardian ad litem from the adverse judgment of the circuit ' court "because leave was not, granted to take it, or because improvidently granted, or to ■ discharge the guardian ad litem and appoint another in his place ' ', though after nptice of appeal, a general guardian appointed, presented a, petition stating ''in .effect, that, after a full investigation made , by him, it is hisibelief that there is no merit in the appeal". ... .. 22. The appeal not having been perfected by the filing of the under- taking, for lack of facilities, the motion, to; file, such undertaking in the, supreme court is denied, but, leave' is granted, to,, allow the appeal to be perfected in the circuit court, and to be served, filed and certified to the supreme court thereafter. ,,,; .,'• ,23; "An infant defendant can only appear as defendant by a guard- ian ad litem appointed by .the court in which, the action -is prosecuted,; or by the judge thereof . Sec. .2613.- 24. The appointment of such guardian is for all the purposes of the action. It is necessary on account of the disability of the minor, defend- ants. For that reason it continues till such disability ceases, unless the guardian is sooner: discharged j by the court. ;.,,-„■ > ; ; 25. While such guardian. is at all-times under the control of the court, the responsibility of protecting the infant's interest wholly devolves upon him, and he is answerable in damages for negligence in that regard. 26. It ishis duty to examine into the case,; and to, use all ., the usual methods for the protection of the interests., of , the minor which the exer- cise of reasonable care and prudence would dictate. 1 Wait, Prac. 486 ;, Stunz v. Stunz, 131 111. 210. , ,n 27. The mere perfunctory performance of duty does not meet the 496 PROBATE AND GENERAL LAW/ CODIFIED requirements of the position. It is the duty of the guardian to use all reasonable means to thoroughly master the minor's case, and to make a vigorous defense, if in his judgment the circumstances are such as to demand it for the 'protection of the interests of such minor. 28. To that end the guardian appointed in the lower court continues throughout all stages of the case unless discharged. Sec. 3, rule 30 (now 29), circuit court rules; rule 7 (now rule 54 chap. 8) supreme court rules. The idea advanced by the respondent that the general powers of the guardian are limited to defending in the court where appointed; that he cannot take an appeal from a judgment against the minor with- out permission, is contrary to the nature of the office and to the uniform practice. Thomas v. Safe D. & T. Co., 73 Md. 451 ; Sprague v. Beamer, 45 111. App. 17. •"■ >■ 29. He may, and often prudence requires that he should, take the advice of the court, and act under its direction in proceedings to main- tain the rights of the minor ; but he* may proceed without such advice or direction if he sees fit. 30. But, whether he proceeds or fails to proceed, unless under the direction of the court, he does so at his peril of being held responsible for a reasonably prudent and intelligent performance of duty. 31. In the , performance of such duty he may interpose a defense, affirmative or otherwise, set up a counterclaim, or may appeal from an adverse judgment, as in his judgment the exigencies of the situation may require, in order to fully maintain the rights of the minor." 32. In this case, especially being supported ' ' by the advice of eminent counsel", "it was not only his right, but it was his duty", to proceed. 33. ' ' Cases may arise where the proceedings of the guardian ad litem, are so obviously illy advised, and not in the interest of the infants, as to require the interposition of the court for their protection; 34. But where the only objection to proceedings is raised by the adverse party, or a general guardian, however eminent and honorah-le, appointed at the request of such party (the mother), apparently for the purpose, among others, of preventing a review of a judgment in his. favor", — the guardian ad litem will be retained and sustained in his acts. —Tyson v. Tyson, 94 W: 225, 228-31. 35. The fact that a guardian ad litem "took the appeal without leave of court, does not affect the question of costs". It was his right, and, in a proper case, "his duty to do so". Tyson v. Tyson, 94 W. supra.' —Jones v. Roberts, 96 W. 427, 434. 36. .Appointment of an administrator de bonis non, without notice and without guardian ad litem as to minors. 37. Appointment of previous guardian ad litem, who was present by nunc pro tunc order, held ' ' without significance. ' ' See Admk. de Bonis Non. —Huboard v. C. & N. W. R. Co., 104 W., 160, 165. GUARDIAN AD LITEM 497 ■■38. "A guardian ad litem" is not a "trustee charged with the duty of caring for property 1 or looking after some interest then pending" requiring accounting. ' ' He is an attorney appointed to conduct or care for a particular matter in court. 39. He neither has charge of the person nor of the property of the infant, and is accountable to the court only as an attorney is always accountable for the faithful discharge- of his duties". 40. And a county judge is held not disqualified; 1 under 1 section 2447; referring to his disqualification when interested" as" executor or admin- istrator" or as "guardian of any ward", to act in a trust estate because he had been a guardian ad litem there three years before becoming county judge. — Bicktcr v, Est. of Lciby, 107 "W., 404, 407. 41. As to amount of compensation and employment of counsel, with- out leave of court. See Compensation of Admrs.; etc. » — Richardson v. Tyson, 110 W., 572, 583. 42. In a trustee's sale of realty, "the appearance, without appoint- ment, by one who had been such guardian in the then fully completed proceedings for settlement of the estate, could serve no purpose. ' Hub- bard v." C. & N. W. R. Co.,' 104 W., supra". —Blow v. Smith, 112 W., 340, 347. ' 43. A guardian ad litem is not a necessary, nor adverse, party, nor entitled to recognition in appeal proceedings, in a contested claim hear- ing in county court. 44. However, with the court's permission, he may "waive any irregu- larities there might have" been"." See Parties. „ -* —Est. of Koch, 148 W. 548, 571. 45. It was "his duty as guardian ad litem" for minors, "to protect the wards' interest in the -testamentary scheme if it was valid, not endeavor to obtain the same or a greater interest by destroying it": : 46. "Had" he "merely entered appearance whenever necessary" "to make a hinding and orderly termination, stimulated the executors and their attorneys to do their duty, . . 47. And occupied an advisqry or adversary attitude toward them as' occasion required, and otherwise remained passive in the' administration proceeding, unless there was reasonable necessity to do otherwise, he would have performed his whole duty. 48. His power was very limited. It did not extend to dealing at all with his wards' property rights. 49. He was in reality an assistant to the court . in the administration, with duties of a ■quasi-official character". 50. "To stipulate away a ward's property or consent to any judg- ment or order adverse to his interests is utterly beyond the guardian's Zimmerman — 32 498 PROBATE AND GENERAL LAW, CODIFIED jurisdiction. Will of McNaughton, 138 W. 179 (See Compensation op Administrator,! etc. ) ". , See also Probate of Wills. — Will of Bice, 150 W. 401, 473, 475. I'M. 51. "It has been held that probate proceedings as to minors for whom no guardian ad litem was appointed when letters testamentary or, of administration were first issued, are void as to the minors; that is, they are not bound by them. 52. As to others who appear therein the proceedings are valid. (Cases)". See also Administrator de Bonis Non. —Jenksv. Allen, 151 W. 625, 629. 53. See. 2613 which "provides that the guardian may be appointed by the, court in, which , the action is, prosecuted", "does not require that a guardian must be so appointed". 54. The guardian ad litem having been "app6inted by the county court", and on objection raised "the circuit court named the appointee of the,, county cpurt, as guardian i and ordered the trial to proceed", — "}f there was any irregularity about, the appointment", the court "had the right" to proceed as, it did. (Cases). —Green, y. Appletm W. M., 162 W. 145, 149. 55. .(Formal statutory notice should not, and probably can not ef- fectually, be waived by a guardian ad litem. See Zimmerman 's Probate Practice, §§ 472, 473). GUARDIAN AND WARD. See also Accounts of Guardians. Bonds. Guardian ad Litem. Incompetents. Incompetents' Sale of Realty. Infants. Infants' Sale of Realty. Insane Persons. Parent and" Child. Special Guardian. ,, Sureties,, Trustees., Trust Funds. Accounts,: v , , , ! Board charge, without order, 30. Settled before action, 26. Actions: '" ' ■ •''>) ' ' • Name of ward, when, 8. , Admissions^ : of spendthrift, 6. Before and after, 6. Appeal; adverse party, 5. Bar of , claims, 68. ' < ;■."• Bond: conditions prospective, 43. Acts before appointment, 43. Additional, cumulative, 44. Circuit court: Accounting and damages, 9. Appoint and remove, 7. Circuit court — continued, County court custody order, 54. Extraordinary cases, 9. Domicil of ward, 28. Four-year limitation, 49, 63. Accounting later, 63. Includes any bond, 63. .Legal capacity to sue, 64. Funds of ward: Authoritative rule, 33. Deposit own credit, 34. Guardian's personal loss, 34. Question of good faith, 35. Without indicia, 34. GUARDIAN AND WARD 499 Funds of ward — continued Certificate, guardian personally, 31. Did not show trust, 32. Failure of .bank, 31. Guardian accountable, 31. Invested in trade, 36. Guardian's property, 37. Personally liable, 36. Profits of the trade, 37. Ward at age; elect, 37. Guardian also executor, 23. Benefit policy monies, 57. Guardian ad litem, appeal^ 24. Incompetent's son's rights, 25. Insolvent guardian, 56. Probate of will, 23. Ward's money, as estate, 57. Guardianship : Acts before appointment, 45. Authority solely from court, 41. Jury trial inapplicable, 3. ■■■..'' Proceeding: not case, 2. Eecord, absolute verity, 42. Record sole evidence, 42. Indebted to ward, 38. Intermeddling: property, 43,. 48. Jurisdiction-: Citizenship: nationality, 11, 12. Persons without state, 13. Mixed settlement with ward, 39. Non-contractual services, 69. Notes, by and to guardian, 59. Order irregularity made, 19. Past defalcations, 59. Release: disputed balance, 20, 21. Religious faith as ward, 53. Sale of personalty: Inadequate price, 14. " Sale of realty: Bond not formally, approved, 4. Covenant: incumbrances, 1. Waiver by guardian, 40. Stranger assumed to act, 46. '"' Guardian not estopped; 46. Infant not estopped, 46. Not as extr. de son tort, 48. Same person appointed, 47. Terminates: at' decease, 16, "49, 50. Pinal account settled, 27. ' - Meaning of ''discharge," 49, 50. Other wards;, same order, 61. ; ,, Trust relation; settlement, 52. Ward at twenty-one, 27, 49, 50, 60, 62. Testamentary : Divorced mother^ custody, -55, 66. Married woman; person, 65. Appoint^ holds as trustee, 67., Volunteer, ward services,' 58. Ward after at age, 15. ' Accounts settled before ' action/ 26. Collect on guardian's failure, 15. Four months' delay, 17. Reasonable time, 18. Release : disputed balance, 20, 21. Ward's decease,' after, 16. ' ' ; Accqunting; administration, 22. ■' Guardian powerless, ,16. . ,., Will; under guardianship, 29. 1. In the sale of real estate, the guardian of an incompetent cannot bind his ward's estate in a covenant to remove incumbrances. See Real Estate. — Person v. Merrick, 5 W. 231,, 239. ) \ 2. "Cases at law are : properly controversies between parties, ,and not, the appointment of guardians for minors or insane persons'.', within the, meaning of the constitution. , ,, ,. fj M , ff 3. "The right of trial by jury shal^ remain inviolate" refers "to the state of the law as it existed at the formation of the constitution, and" that it shall remain as it was at that time. ; , — Gaston y. Babcodc, 6 W. 503, 50,6, •A.< The sale of real estate by a guardian is valid, though the bond was "not formally approved". See Bonds. —Emery v.Vraman, 19 "W. 689, 700. 5. After the guardian has qualified. he is the proper "adverse party", and. not the petitioner, ,tp whom, to execute the appeal bond. See Bond. —State ex rel. TalVmadge v. Flint, 19 W. 621, 623. 500: PEOBATE AND GENERAL LAW, ' CODIFIED 6.\"The debt the admissions tended to prove was contracted before the guardianship, and proved by evidence other than his admissions". Held, the admissions of a deceased spendthrift were competent and would have been had the debt "been contracted during the guardian- ship ' ', it appearing to have been contracted for necessaries. —McNight v. Estate of McNight, 20 W. 446, 448. 7. Circuit courts may appoint, and remove guardians. See, ■ Cirquit Court. : — Glasscott v. Warner, 20 W. 654. 8. The guardian of an incompetent cannot bring an action' of unlaw- ful detainer on a valid lease executed by the ward before the guardian- ship, in his own name as guardian, but such action "should have been brought in the name of the ward." —King, Odn. v. Cutts, 24 W. 625, 626. 9. Courts of equity have concurrent jurisdiction over guardians in "extraordinary cases," to compel an accounting and give damages for mismanagement and waste. See Concurrent Jurisdiction. 10. " The guardian is but a trustee, and is amenable in that character for a violation of his trust to a court of equity,; like other trustees". ■■ <' —Willis'v. Fox, 25 W.-646, 648. 11. "The power and jurisdiction to appoint guardians do not depend at all upon the citizenship or nationality of the wards ' '. 12. "The courts of one country may appoint guardians for persons resident therein, who are citizens of another country, or who have a different nationality". 13. ' ' So the courts of one state or country may appoint guardians for the estate or property, situate therein, of persons residing in any foreign state or country, and who are citizens thereof." —Farrington v» Wilson, 29 W. 383, 400. 14. Where the guardian in the sale of an infant's interest in a patent, took advantage of his fiduciary relations, and sold at an inadequate price, the sale was set aside. See Fraud. — Leonard v. Barnwm, 34 W. 105, 109. 15. "If the guardian fails to collect a demand or to recover property belonging to his ward, no good reason has been suggested why the ward may not recover therefor after he attains his majority".. —McCrubb v. Bray, 36 W. 333, 341. 16. "After the death of his ward" the guardian is powerless "to charge the estate with an expense for which there was no immediate or pressing necessity", and he could not "bind the estate". —Sanrnel v. Est. of Thomas, 51 W. 549, 553. GUARDIAN AND WARD 501 • 17. Where a ward delayed four months after becoming of age, before commencing proceedings to set aside an order irregularly made during his minority, he "did not lose his right to the relief prayed by the delay". 18. "It is sufficient to say that the respondent (ward) commenced; this proceeding within a reasonable time after he became of , age, 19. And that the county court may at any time, in furtherance of justice, revoke an order which has been irregularly made. In re Fisher, 15 W. 511". 20. Where the ward after becoming of age, pending the proceedings, received a portion of a fund, and released the, guardian "from, all fur- ther liability on account of such guardianship", it is held, that he is not estopped from recovering a balance of disputed funds. 21. "It would be a strange application of the doctrine of estoppel to • hold that unless he left the money, which was undisputably his, in .the hands of his guardian until he established his right to the balance of the purchase money, he would lose his right to recover such balance". 22. Accounts of the guardian of a deceased ward, probably can only be adjusted in administration proceedings. See Accounts of Guar- dians. ' —Israel v. Silsb ee, 57, W. 222, , 228'. 23. Where the general' guardian of an incompetent, is also executor and residuary legatee of the will of such incompetent's mother, he cannot properly represent such ward on' the probate of, the will, though "ordi : narily, it is true, the insane party would be represented by his general guardian". 24. "Under the circumstances it was clearly the duty of the court to appoint a guardian ad litem to prosecute the appeal against the general guardian, who was acting as executor of the will and whose interests were hostile to the interest of his insane ward in that litigation". 25. While the son of the incompetent could not himself appeal from an order admitting the will to probate, it is held, that after his own appeal was dismissed, and after the sixty days in which to appeal, had expired, he could properly "petition for leave for his. insane mother to appeal" and for the appointment of, a guardian ad litem for that pur- pose." — Mar x,v. Rmvlands, 59 W. 110, 113. 26. Accounts must be settled before the ward can bring an action at law for recovery. Also generally in equity. $ee Accounts of Guard- ians;' ' — Kivgler v. Trim, 62 W. ; 248, 250. 27. "While the guardianship might be said practically to continue only until the ward arrived at the age of twenty-one years, still in law it did not terminate until the guardian had settled his final account, and had been discharged". (But see,' distinguished in' Paine v. 1 Jones, 93 W. post ) —Stins&n, v. Leary, 69 W. 269, 270. 502, PROBATE AND GENERAL LAW, CODIFIED 28. An incompetent ward was held to be a resident of the county in which he died and had been located a year or more, though having been under guardianship in another county of which he had been a resident, the guardianship as to person having been practically abandoned. See Domicil. 29. The mere fact of being under guardianship does not incapacitate a ward from making a valid will. See Testamentary Capacity. • —Will of Slinger, 72 W. 22, 26. 30. As to a guardian charging for board of his ward, before and after appointment, ' without a previous order, effect of annual accounts as to estoppel, etc. See Accounts of Guardians. —Olseti v. Thompson, 77 W., 666. 31. W., the guardian of the minor, sold realty of his ward, the grantee paying the balance due through H., who left it in a bank at W. 's request, and gave the latter who received it, a deposit certificate dated January 24th, reading, — "H. has deposited in this bank two thousand dollars, payable to the order of W. in current funds, on the return of this cer- tificate properly endorsed". W. held the certificate for use February 12th at his final settlement. On February 8th "the bank broke, and the money was lost ' '. On- the settlement, the county court allowed the guardian a credit for this $2000, and this was sustained by the circuit court, which decisions are set aside and the guardian held accountable for the sum. 32. "It could not be known by the books of the bank that this was trust money, and not his own. 33. The rule may be technical and arbitrary to some extent, but it is based upon the soundest principles of business economy and integrity, and approved by the highest courts of this country and of England with such a unanimity of -judgment as to make it an established principle of law, 34. That if a guardian deposits the money in his hands belonging to the heirs in a bank in his own name and to his own credit, without any earmarks or indicia to distinguish it as the money of the heirs or of the estate or trust funds, and the bank fails, it will be held to be his own personal loss, and not that of the heirs. 35. No circumstances will justify it if such is the character of the deposit. It is not a question of good faith or of integrity — it is a ques- tion of naked fact — which determines its legal character". Williams v. Williams, 55 W., 300 (See Trustees). —Booth v. Wilkinson, 78 W., 652, 654. 36. Where a guardian invested his minor ward's funds in a drygoods business, it is said that he "had no right to put his ward's money into trade. When he did so he converted his ward's estate and became per- GUARDIAN AND WARD 503 sonally liable for the amount. The goods bought did not become the' property of the ward. 37. The ward, when he became of age, could demand his money, or he could elect to take the property which his money had purchased, if still in the hands of his guardian, together with the profits of the trade, if any. Until such election, the title to the property purchased was in the guardian". 38 "It is a well-settled principle of law that when one assumes the office of guardian who is at the time indebted to his ward, the indebted-' ness becomes assets in his hands, to be accounted for. as property. Win- ship v. Bass, 12 Mass., 203 ; Neill v. Neill, 31 Miss., 36 ; Griffin v. Bonham, 9 Rick Bq., 77." 39. Where a guardian B. "in effect, sold" goods "to B. in considera- tion of a release of his liability as guardian of B., and the assumption by E. of B.'s liability to G.", another ward not yet of age, — "this created a valid obligation on.E.'s part to pay G., which was not affected by the statute of frauds. Hoile v. Bailey, 58 W., 434 (cited under Trusts) ". As to the assent of G., perhaps necessary to bindiB., there was "an inchoate or contingent liability on the part' of E.^ subject to be made absolute by G., when he became of age", which it is held he did and which is covered by the guardian's bond. —Martin v. Davis, 80 W. 376, 378. 40. The statutory proceedings specified in sec. 3919, cannot "be waived by the guardian. " See Infants' Sale of Realty. : — Weld v. Johnson Mfg. Co., 84 W., 537, 543. 41. "A guardian of a minor derives his authority entirely from the act of the court appointing him such, and this must be evidenced by matter of record — by the record of the court. 42. The appointment cannot be shown in part by the record and in part by matter in pais ; and of necessity the record itself is the sole and > conclusive evidence of the facts, and cannot be contradicted or varied by parol evidence. It imports absolute verity, and no allegation can be ' admitted against it. " 43. Under the statute, see. 3966, "all the prescribed conditions of the bond are prospective, and none of them have any relation to what has occurred in the past. The bond is therefore no protection or security to the ward for any interference or intermeddling with his property by his guardian before he was appointed such." 44. (Quoted and explained in Brehm v. U. S. Fidelity. & G. Co., 124 W. post, in which it was said as to this case that "the question of 'the liability of a surety on an additional or cumulative bond of the guardian' was not there involved, and of course was not adjudicated"). 45. The appointment of guardian, ' ' could not relate iback so as to validate acts done by him in relation to the property and estate of his wards previous to such appointment, and when he had no authority 504 PKOBATE AND GENERAL LAW, CODIFIED over it., Huntsman v. Pish, 36 Minn. 148. Wiswell v. Wiswell, 35 Minn. 371. 46. The fraudulent or mistaken representations, even, of one who without authority assumes to act as guardian for an infant, ■ afford no foundation for an equitable estoppel against the infant or his guardian subsequently appointed, so as to bind the infant or charge his property] Sherman v. Wright, 49 N. Y. 228. 47. And if the same party is appointed, guardian his rights and authority as such are the same as of one appointed who had made no such representations. 48. The case of one acting as guardian for an infant without authority is not analogous to that of an executor de son tort, or of acts done by an exeeutor or an administrator before letters are issued to him, as no one can make himself guardian for any purpose by wrongfully inter- meddling with the property or affairs of an infant." • ' i —Holden v. Gurry, 85 W. 504, 510. 49. As to "the meaning of the term 'discharged', as used in sec. 3968", limiting the time for action against the sureties to " 'four years from, the time the guardian shall have been discharged'", following Massa- chusetts and Michigan decisions, from which states the statute was adopted, .(after-distinguishing Stinson v. Leary, 69 W. supra, as there involving only the continuation of the guardian "in the sense of being trustee of the estate, so that such estate still stood as security for obliga- tions lawfully incurred in godd faith as such trustee")., — it is said: 50. "We hold that the term 'discharged', as used in see. 3968, is synonymous with 'termination of the guardianship', — not of the rela- tion of trustee and cestui que trust, but of the office, of the right to be guardian; — 51. And that such termination occurs in the event of the death of the guardian, the arrival of the minor ward at the age of twenty-one years, >r by any other event by which the office of guardian, strictly so called is brought to a close, 52. Though the. trust relation in respect to the property may still con- tinue up to the time of the settlement and discharge in respect to such 'elation". (Followed in Weseott v. Upham, 127 W. post). — Paine v. Jones, 93 W. 70, 76. 53. "While it would have been desirable to have appointed as guardian some one of the same religious faith as the parents and blood relatives >f the infant, yet it does not appear that any such person, competent md suitable, offered to accept the trust," and the court "exercised a- vise and just discretion." 54. As to appointment of guardian by the circuit court, the county udge having made an order as to custody. See Custody and Commit- ment, — In re Gdnsp. of Klein, 95 W., 246, 249. i GUARDIAN AND WARD 505 55. It is not determined, whether a divorced mother having custody of the child, has a right to name a testamentary guardian, but the fact may properly be considered 'in appointing such guardian. See Parent and Child. ~I n re Gdnsp. of McChesney, 106 W., 315, 321. 56. In an action against sureties on the bond of the mother, a deceased insolvent guardian of minor children, it is held : 57. That where moneys of the wards came into the widow's hands and was applied to the account of the estate, she being both executrix 4nd guardian, "she must be chargeable therefor", as guardian, and likewise her sureties, though she received the moneys under a benefit policy as trustee for the beneficiary minors and herself. See also Accounts op Guardians. —Hutsm v. Jenson, 110 W., 26, 35. '■■'-." ■' i 58. Where "the guardian had made provisions for the wants of" his incompetent ward, as to necessary personal .attentions, ' ' a mere volun- teer, who assumed to perform the services without the authority or knowledge of the guardian, cannot recover for them. ' ' v —Schrairkek'v'. Shepeck, 120 W., 643, 644. 59. As to guardian and surety liability for past defalcation's, and as to individual notes by and to the guardian. See Bonds. —Brehm v. U:S. F. & Guaranty Co., 124 W. 339, 349. 60. "The guardian is discharged, within the meaning of this statute (sec. 3968), when the ward attains his majority. Paine v. Jones, 93 W. supra. 61. The fact that the same person is also guardian of „Qttier minors, although appointed such by the same order and the performance of his duties secured by the same bond, is no obstacle to this conclusion. 62. Obviously, when a minor attains his majority,' his former guardian ,is no longer such. Probate Judge v. Stevenson, 55 Mich. 320". 63. % In the four-year limitation in which a surety may be sued, under see. .3968, the action accrues at the ward's majority, regardless of a later or "protracted" accounting, and includes "action 'on any bond given by a guardian* ", including bonds under sec. 4004, as to ward's sale of realty. 64. "We; deem it clear that want of legal capacity to sue, as used in this and other statutes of limitation, refers to some characteristic of the person disqualifying him in some degree from acting i freely for the protection of his rights, not to an impediment to the suability of the particular cause of action. (Many, citations) ". See also Stay of Pro- ceedings. — W escort v. Vpham, 127 W. 590, 593. 65. It is not decided "whether a married woman had the right to appoint a testamentary guardiau over the person of her children. 506 PROBATE AND GENERAL LAW, CODIFIED 66. Whether the absconding of the father, or the award of the custody of the children by the judgment of divorce to the mother, was sufficient to authorize her to make the testamentary appointment as to the person of the minors, we need not and do not decide". 67. Such appointee is held "entitled to take and hold the property for the minors during minority" "as a trustee for the minors". See also Life Estates. —Otjen v. Frohbach, 148 W. 301, 314. 68. ' ' Sec. 3995b is the only statute providing for bar of claims against persons under guardianship, and this statute plainly has not been com- plied with in the instant case; hence the claim was not barred". 69. A claim for non-contractual personal services for six years prior to the decease of Y. was allowed against his estate, there having been a guardianship over him for over a year immediately preceding his death. —Gardner v. Young's Est., 163 W. 241, 245. GUARDIANS' ACCOUNTS. See Accounts of Guardians. HABEAS CORPUS. Certiorari, for record, 5. Not change of venue, 3. Court commissioner's right, 6. Not remedy, mere error, 1. Jurisdictional defects Only, 1, 2, 4. Reaches body, hot record, 5. Merits not considered, 2. 1. "For mere error, no matter how flagrant, the remedy is not by writ of habeas corpus". "Nothing will be investigated on habeas corpus except jurisdiction defects, or illegality, as some courts and authors term it; by which is meant the want of any legal authority for the detention or imprisonment". — In re Crandall, 34 W. 177, 179. 2. ' ' The learned circuit judge before whom the writs of habeas corpus were heard, is understood to have declined consideration of the merits, and to have passed upon the question of jurisdiction only. In this he was undoubtedly .right. 3. When a prisoner is held by legal process, the writ of habeas corpus does not operate-, so to speak, by way of change of venue from the court or officer issuing the process of arrest, to the court or officer issuing the hajbeas corpus. , , 4., The latter writ, in such a ease, raises only the question of juris- diction of the court or officer to issue the process of arrest. If anything HANDWRITING 507 can be settled by long and uniform series of decisions in this court, this is. Re Booth 3 W. 1; (many cases)." — In re Eld,red, 46 W. 530, 539. 5. "A writ of habeas corpus reaches the body but not the record; it also reaches jurisdictional matters, but it does not reach the record", which latter is the office of certiorari. See also "Writ* of Certiorari. —State ex rel. Gaster v. Whitcher, 117 W. 668, 672. 6. As to the right of a court commissioner to act, and not to be restrained. See Court Commissioners. —Potter v. Frahbach, 133 W., 1, 3. HANDWRITING. Conlparison of writings, 4. Already in the case, 4, . 13, 15. Ancient; writings, 4. English, old rule here, 5, 14. Genuineness admitted, 1, 13, 15. True rule given, 13. ( Adopted here, 14, 15. Correspondence knowledge, 6. Cross-examination : Not admitted or denied, 1. English and American, 2. Deceased persons : Common law presumption, 34. Overcome; clear evidence, 33. ' Execution and contents, 33. Guarantor's execution, 33. Endorsements, statute: Not apply to guarantor,, 32. Experts, unsatisfactory, .3. ,. , Fraudulent insertion, 23. Innocent holder, 23. Not admitted or denied, 1. Signature : Affidavit, party or not, 22. Signature— continued Deceased; proof required, 29, 30, 33. Common law rules, 33, 34, 35. 1 Though not denied, 29. Denial as a witness, 11. Denied, before trial, 12.- ■ During trial, 21. .. ; t Perhaps before noticed, 12. ; Denial must be specific, 10. Denial not specific, 8. Direction; mark signed,) 24. Sealed instrument, 31. "Execution" and "executed," 17. Execution only, denied, 7. Fraud, without denial, 18. Inference insufficient, 10. , , Mark; , without witnesses, , 24j , 28. Can write or not, 25. Practice to witness, 28. Prima facie genuine, 27. Statute likewise applies, 26. Not alleged; forgery, 9. Object of statute, 16. > Summons, printed, 19. Testimony, interested, 20. ^General, not specific, 20. 1. It is held that "the party denying the signature may" not, "upon the cross-examination of witnesses who have testified.) that they know his hand writing and believe the signature to be genuine, lay before them papers purporting to have been signed by him, the genuineness of which is neither admitted nor denied, and ask -them whether they believe the signature to be his, for the purpose of testing their knowl- edge of his handwriting, by the agreement, or disagreement of their testimony on this point". 508 PROBATE AND GENERAL LAW, CODIFIED ; '2. "Upon the question thus narrowed; we believe the decision of the court below" overruling objections to such proceeding, "is not sustained by a single authority, English or American." Opinion by Dixon, C. J. — Pierce v. Northey, 14 W. 9, 12. 3. "The unsatisfactory nature of such evidence (handwriting experts) is well known". See Expert Testimony. —Daniels, v. Foster, 26 W. 686, 693. 4. In Pierce v. Northey, supra, "the court evidently favored the rule which prevails in England and in many of the states, that a comparison of hands by juxtaposition of -two writings is wholly inadmissible, either as primary and sufficient or as corroborating evidence, except when the writings are of such antiquity that they cannot be proved in the ordinary way, or where the other writings, clearly proved, are already in the case and before the jury for some other purpose." 5. "It is true that a different rule has-been adopted in several other states., but we think the English rule is sustained by the stronger and better reasons, and ought to be adopted in this state ' '. —Eazleton v. Vpkm Bank, 32 W. 34, 47. 6. A local agent had been in correspondence with a. general agent for a year and a half, "knew nothing about the handwriting" of the general agent otherwise, but "thought the signature to the letter was genuine"; held this "was sufficient proof of the genuineness of the letter in ques- tion to entitle it to be received in evidence". —Parker v. Amazon Ins. Co., 34 W. 363, 368. 7. As "the statute (Sec. 4192) requires a denial of the signature in order to put the party to a proof of the same", it is held that an affidavit denying "that he executed the note" without specific denial of the signature, does not put the latter in issue. — Snyder v. Van Doren, 46 "W. 602, 61 5 8. ' ' The answer of the defendant did not specifically deny the signa- ture of the note, and for the want of such denial the genuineness of the signature was not put in issue. 9. It is true, the answer alleges, upon information and belief, that the note was a forgery; but such answer is not a specific denial of the defendant's signature, within the meaning of" sec. 4192. 10. "This court holds that in order to put the plaintiff to the proof of the defendant's signature, or to put the fact of his signature in issue, there must be a specific denial thereof upon oath or affidavit, or verified answer; and an answer which only denies the same by inference is not sufficient". 11. "Nor is it sufficient to put the plaintiff to the proof of the defend- ant's signature to the contract (note) upon which suit is brought, that >i :; ,-•; HANDWRITING 509 the defendant, after plaintiff has made his proofs, goes upon the stand as a witness in his own behalf and denies such signature". , , ,,-;,- , 12. "The reasonable rule is, that the signature must be denied before the trial is commenced, and perhaps before the cause is noticed for trial ; otherwise such . denial cannot be made , except upon leave of the court first obta ined for that purpose". , —Smith v. Ehnert, 47, W. 479, 480: 13. ' ' The true rule ' ' in comparison is : " ' The jury may form their ^opinion as to the genuineness of a document by a /comparison of it with any other document already in evidence before them, and shown to be the genuine : production of the person whose handwriting is in question'. Roseoe's Crim. Ev. 5. , 14. This was the English rule, until changed by statute; of 28 Victoria, and is the rule adopted by this court"., , : , .,.; -,. ,, i .,j 15. ' ' The rule as stated by this court is explicit, that such a compari- son will not be allowed except with writings 'clearly proved and already in, the case, and, before the jury for some other purpose '. Pierce v. Northey, supra; Hazleton, Admr. v. Union Bank, supra". ,;,■■■' .. ' — State-, v. Miller, 47 W. 530, 533. 16. "The only object of that. statute! (sec. 4192) clearly is, if complied with,, to dispense with proof, of the signature to a written, instrument?'. 17. While the word 'executed,' also appears, "hereafter let it be under- stood that the, words 'execution' and 'executed' as used in the, section, mean nothing at all, and f;hat the section should be read and construed as if these two words were both left out, and that neither is in it ' \ 18. Proof of fraud in misreading the time when a note becomes due, may be made without a previous denial under oath, of the signature. , , , —Nielsony. Schuckmam,, 53 W. : 638, 1343. J9.,The statutory provision (sees. 2629,-30), that the summons 'shall be subscribed',.. does not ; mean ', written signature' (subd, 19; 4971), and as "the summons is not; a; writ or process, of the court, but , is , simply a notice to -the defendant", the signature of the attorney thereto may be made by others, or may be printed. , r,, ,, ■,.',,. -r-Mezcheny.More, M W. 214, 215. 20. Held], that an interested party may testify as to the signature of a deceased widow to an election, "especially if her opinion was based upon her general knowledge of the handwriting, and not upon the fact , that^he saw her write ,the particular, signature in question. , See Daniels v. Foster, 26 W., supra." —Beem v. Kimberly, 72 W.' 343, 363. ,'21. In harmony with Wallis v. White, 58 W-, 26 > it is held that, the court may properly allow the affidavit denying the signature to be interposed ( during the trial,, ., ;, 1, ,.,.■, ,,. : '' 510 PROBATE AND GENERAL LAW, CODIFIED 22. And as to the affidavit of the witness, "it is immaterial whether such person is or is not a party to the action". —ParrosU v. Goldberg, 80 W., 339, 342. 23. A homestead description fraudulently inserted by the husband in a blank mortgage signed by the husband and wife, is held binding as to innocent holder. See Omissions. —Nelson v. McDonald, 80 W., 605, 607. 24. "The statute (subd. 19/ sec. 4971) expressly provides that if a person is unable to write his signature may be written in his presence by some 1 other person by his direction, or he may sign by his mark. It does not require that the mark shall be witnessed. ' ' ' 25. ' ' ' Except as controlled by statute,' a mark made for one 's signa- ture is good whether he can write or not, and whether witnessed or not. (cases)." 26. Sec. 4192, as to presumption of signature, until specifically denied as provided, applies where "signed by a party by making his mark, precisely the same as if signed in any other way. • 271 A paper so signed prima facie establishes its genuineness ; that is, if signed by a mark, that the signer was unable to write his name, and that he therefore made his mark for the purpose of adopting that in lieu of a written signature, and that the mark was made by the person by whom it purports to have been made." 28. There is no necessity, though "the general practice," of having 'it witnessed. — Finlay v. Prescoli; 104 W., 614, 617. '29. "No defense except a general objection to the allowance of the claim Was offered 1 in the county court," and no denial as to signature being made, the notes being received in evidence as proof of the claim, was held error. 30. "The alleged maker of the noteS being dead, the rule of the common law applied, and proof of his signature was necessary before they could be received. Campion v. Schinniek, 93 W., Ill (See Claims"). — Peering H. Co. v. Johnson, 108 W., 275, 278. 31. Where an "instrument was executed by plaintiff's son in plain- tiff's presence and at his immediate parol direction, then the execution is 'the act of the plaintiff and the instrument has Validity as a properly- executed sealed instrument". — Mariner v. Wiens, 137 W., 637, 639. 32. Sec. 4193, as to presumption of endorsements, "applies only" to "an endorsee", and not to "a guarantor". (Cases). 33. And, under sec. 4192, where the signer "deceased before the trial", "common-law proof of the execution and contents of the guaranty Was necessary. (Cases)". 34. When such "proof of the signature was given", then as to time of HEIRS, HEIRSHIP 511 signing, "that, properly, called on the common-law presumption" "that the writing was, when signed, in the form appearing at the time of its production in a proceeding to enforce it, 35. And such presumption should prevail till overcome by clear and satisfactory evidence. Maldaner v. Smith, 102 W. 30 (See Altera- tions)". -+Ripm H. Co. v. Haas, 141 W. 65, 68. HEIR-LOOMS. 1. Heir-looms "descend to the heir like real estate,' and usually retain their distinctive character and identity. ' ' — Est. of Kirkendall; Cramer's Appl, 43 W. 167, 175. HEIRS, HEIRSHIP. See also Birth, etc. Descent and Distribution, Legitimacy. Action for his share, 2. Action for personally, 24. An existing executor, 24. Foreign heir bring, 25. No administration, 25, , Bond of .administrator, 3. Certificate of descent, 31. Contract as to heirship, 32. Creditors : against heir, 4. Ancillary administration, 16. Claim not filed, 16. Executor not appointed, 4. Not barred by see. 3873a, 6. Ejectment preceding administration, Fraudulent deed set aside, 7; . . "Heir": in will, unambiguous, 28. , Heirs of, living person, 29. , Entitled, on his death, 30. "Heirs at law" term, 9. Legal sense, 10. Heirship, before settlement, 8. Indians; federal laws, 14. : Administration; allotted lands, 17. Heirship question stipulated, 18. Illegitimate son as heir, 22, , Judgment; not transfer title, 20. Jurisdiction; county court, 19. Parents' declarations, 23. Paternity by preponderance, 22. ■ U. S. may recognize, or l not, 21. , "Legal heirs," technically, 11. Benefit certificate; widow, 13. Personalty transfer, 12. Bealty succession, 11. i Bealty:, possession, 1. . , ,. „, ; ,-,;,;,,. Conveyed without consideration,, 15. '"To her heirs in fee," 26. " v . ' Not mean children, 27. 1. The administrator is entitled to the possession and proceeds of real estate until the order of assignment, as against the heirs. See Executors and Administrators.- ■ ; : .j ■ > ^Edwards v. Evans, 16 W. 181, 184. 2. An heir has a right of action against the administrator for his share. 3. the heir has a right of action on the bond of the administrator as a cumulative remedy. — Williams* v. Davis, 18 W. 115. :512 PROBATE AND GENERAL LAW, CODIFIED ;; 4. Where, a will was a'dmitted to -probate, but no executor or admini trator was appointed, or further proceedings had, it is not necessai that further '-administration should be had of the estate of C. (tl .testator) before an action can be maintained by a creditor of the esta against the heirs, legatees. or devisees of the deceased' V the action mth case being brought five or more years thereafter. —McGonigal, Judge v. Colter, 32 W. 614, 62 5. "The heir may maintain ejectment", pending administratio: where the administrator is not in possession of the land. See Re; Estate. —Filbey, Admr. v. Carrier, 45 W. 469, 47 6. The remedy against the heirs as to realty under sees. 3274 et al, not barred by : the limitation of sec. 3873a. See Liens. Real Estate. —Fish v. Jenewein, 75 W., 254, 25 7. Heirs, after, their father's decease may have, a deed obtained I undue influence and fraud from him by his third wife, set aside. Si Undue Influence. — Disck "v. Timm, 101 W., 179, 19 8. The fact of *' the county court's acting in determining who are tl heirs of" the decedent, prior to, reaching "the stage for a final di tribution of the estate", is held proper, — due notice having been give ,,'-,' — In re UardianVs Est., 121 W., 526, 53 9. "The term 'heirs at law' is often used in its popular sense — tho upon whom the law casts title to realty possessed by the intestate at tl time of his death, and next of kin as well ' '. 10. "In their legal sense", the term refers to taking realty only, ai 'next of kin' to personalty. See also Kin. —Perry v. Scaife, 126 W. 405, 40 11. "The term 'legal heirs', in its technical sense as used in tl common law, includes all persons born in lawful matrimony who succei to estate in real property of an ancestor. (Cases)." l 12. "Unless a contrary intent is indicated, the words, when usi respecting a transfer of personal property, mean all persons designate as distributees by the statutes for the distribution of the property intestates. (Many cases)." 13. As to a benefit certificate' with the term 'legal heirs', "the wide was entitled to share equally with the decedent 's children in the avails pursuant to subdivision 6, sec. 3935. —Thomas v. Covert, 126 W. 593, 5£ 14. Lands of an Indian, as to heirship, are held '"subject to regul tions or control", not "by the law of this state", but of federal lav "and the condition of . the grant imposed by Congress, prohibits HEIRS, HEIRSHIP 513 alienation, is effective and controlling"., Illegitimates as well as legiti- mates are made heirs under the reservation allotment statutes. —In re Heirs of House, 132 W., 212, 217. 15. The owner of realty may as against the heir-at-law, convey it to another without consideration. See Escrow. —Schumacher v. Draeger, 137 W., 618, 622. 16. A creditor cannot proceed against an heir where he fails to file his claim in an ancillary administration had here. See Ancillary Proceedings. — Davis v. Davis, 137 W. 640, 647. 17. Where, pending administration of the estate of S., an Indian, there being "other property" "which authorized the administration", besides allotted lands, , 18. "The parties have by stipulation and mutual consent submitted to the state (county) court the question of whether a certain person was -the heir i at law of S., " — 19. "We perceive no valid ground for saying that the state court had no jurisdiction to make the order" finding heirship and assigning to such heirs "the entire interest of said S. in and to the lands in question", though allotted lands subject to federal control as to title. 20. "The order or judgment does not transfer the title or disturb the possession of the land in question. ' (Cases). 21. And the United States as trustee may recognize, or refuse to recog- nize, this order as evidence conclusive or prima facie. (Citation) ". 22. The finding of an illegitimate son as heir, where "the statute (federal) made illegitimate ' children lawful heirs", was a question "of pedigree or heirship, and not of legitimacy", and "therefore paternity is to be proved by a preponderance of evidence ' ' only. 23. Declarations of the father and mother, in the absence of more "convincing evidence", "must be held sufficient to form a basis for belief or mental conviction. . (Citation)." —Smith v. Smith, 140 W. 599, 601. 24. The questions (1) whether "an action to recover personal prop- erty, belonging to an estate, in any event" can "be brought by an heir," there being an existing executor, or not, 25. And (2) whether "a foreign heir" can "come 1 into the courts of this state to maintain such action, without ancillary administration or the filing of letters testamentary by the executor, "—are not decided. — Norton v. Clark, 149 W., 4, 6. 26. Where a will gave realty 'to my sister C, for life, remainder to her heirs in fee', she having at the time two children who died after the testator and before the mother, without issue, her heirs at her decease being nephews and nieces, it is held, Zimmerman — 3 3 514 PEOBATE AND GENBEAL LAW, CODIFIED 27. That the latter take the remainder, and that when "the testate, used the word heirs" he "did not mean children". . 28. "The meaning of the word 'heirs' when used in a will is no ambiguous, and" "the evidence must be clear and conclusive to shov that the testator made an inaccurate use of the word. 29. "It is not accurate to speak of a designated person as the heir o another person who is living, although it is customary enough to do sc 30. It is accurate to speak of the heirs of a living person when referenc is intended to be made to those unknown persons entitled to inheri his real property at his death under the laws of descent. See als Construction of Wills. Vesting op Estates, etc. —Flint v. Wis. Trust Co., 151 W., 231, 22Tt 31. As to effect on adverse possession, of certificate of descent unde sec- 2276a, on unknown omitted heirs. See Title. —Bourne v. Wide, 159 W. 340, 34; 32. A contract as to heirship must be "clearly established." Se Adoption. —Winke v. Olson, 164 W. 427, 431 HIGHWAY. See also Condemnation. Appeal bond: Inadvertent omission in, 6. Boards or bodies, 2. Aet judicially, 2. Failure to take oath, 4. Jurisdiction : Act judicially, 2. Commissioners appointed, 2. Jurisdiction — continued No consent or waiver, 2. Strict compliance, 2. Town supervisor, 2. River, public highway, 1. Time and place; meeting, 7. Slight discrepancies, 7. Two, make valid decision, 5. 1. A river "of sufficient capacity to float logs" is held to be "a publ highway". — Sellers v. U. Lumbering Co., 39 W. 525, 52 2. The town supervisors, the commissioners appointed by a justic and the commissioner appointed. by the county judge, as to laying out < discontinuing a highway, "three boards, or bodies", "the first actir originally, and the two last upon appeal, are tribunals, and act judiciall and can obtain or retain jurisdiction only by strict compliance with tl statutes, 3. And no consent or waiver can dispense with such strict complian with the statutes in matters of substance". — State, ex rel. Vos v. Hoelz, 69 W. 84, 6 HOLIDAYS 515 4. "Where one of the three highway commissioners appointed under sees. 1279 et al.,." failed to take a valid oath", he could not lawfully act, 5. But under subd. 3, sec. 4971, it is held that the other two could "make a valid decision". —Rogers v. Droves, 154 W. 23, 24. 6. As to inadvertent omission of the word 'not' in appeal bond, held not to invalidate it. See Mistake. 7. Commissioners' meeting at 10,:30 instead of 10, and meeting in the yard instead of in the house stated, and other slight discrepancies, are held "inconsequential matter". —Marlatt v. CKvpman, 160 W. 193, 196. HOLIDAYS. See also Sunday. Appoint administrator, 9. Judicial act prohibited, 5, 6. Authority to hear cause, 1. Deposition by notary, 7. Waiver not applied, 2. Not extra-territorial, 5. Contracts maturity on, 4. Not mere ministerial, 6. Next succeeding day, 4. As justice summons, 6. Court business suspended, 8. Jurisdiction: person, subject, 3. Judgment on, void, 2. Person "work or not," 8. 1. "The term holiday imports, dies non juridicus. Such. being the case, the court (justice) had no authority to hear the cause and render judgment on that day, and would not have had authority to do so, e\en though the express prohibition had been omitted from the statute." 2. The judgment was therefore void; "there was an absolute .want of authority to hear the cause and render the judgment, and it is not a case to which the doctrine of waiver can properly be applied." 3. "For that day the justice had no jurisdiction either of the person of defendant or the subject matter of the action for the purposes of trial arid judgment, and all that he did in the cause on that day was coram non judice". — Lampe v. Manning, 38 W. 673, 674. 4. "We are satisfied that the rule fixing the time for the performance of all contracts which by their terms mature on Sunday or on a holiday, should be uniform, and that no distinction in this respect should be made between commercial paper and other contracts. Hence, by analogy to the statute" providing that "commercial paper maturing on Sunday or on. a legal holiday becomes due and payable on the, next succeeding secular day", the rule is here applied to an ordinary contract to deliver hogs. —Siegbert v. Siiles, 39 W. 533, 535. 516 PROBATE AND GENERAL LAW, CODIFIED 5. "If it be conceded— a point we do not decide— that the taking of a deposition in this state is a judicial act, which is prohibited, - stiM it is plain our statute can have no extraterritorial effect"; and is held inapplicable to a deposition taken without this state on a holiday. 6. As to business of the courts on prohibited days, -the statutory "prohibition only relates to judicial acts, and does not apply to mere ministerial acts, — such as the issuing of a summons by a justice of the peace, — as this court has decided. Weil v. G-eier, 61 W J; 414. 7. It would be a most liberal, not to say forced, construction of language to hold that the taking of a deposition by a notary public was the act of a court, or a judicial act in the legal sense". 8. "On a secular day which is made a holiday the ordinary business of courts is suspended, and while the law does not require, its policy may favor, the appropriation of the day to rest and festivity. Still every man is left free to follow the dictates of his judgment and con- science in that regard. He may abstain, ,from work or not." ' —Green v. Walker, 73 W. 548, 550. 9. It is assumed "that the court had no authority to appoint" an administrator on a legal holiday. See also Demurrer. —Jenks v. Allen, 151 W., 625, 627. HOMESTEAD. Absence from home, 9. Himself rents elsewhere, 9, 89. Bent to a tenant, 8, 89. ' ' Agricultural purposes ' ' : Annexed to city, 3. Without regard to use, 87. Alimony: charge on, 135. Buildings construed: Four-story store, 2. Second story, saloon, 89. Several on quarter acre, -7, 75, 144. Occupied by family servants, 75. Stores, shops, offices, etc., 8. Three-story brick hotel, 61. Claim in supreme court, 42. Conveyance : Defective; effect, 65. Effect on husband, 67, 77, 109, 124. Bef ormation, now, 67. 143. Specific performance, 66. Devisee, before probate,' 29. Homestead; existing judgment, 29. Equity rights, against heirs, 103. Specific performance, 103. Husband, not wife, void, 76, 124, 125. Equitable, interest husband, 124. Bight reserved for grantor, 77, 109. Conveyance — continued Husband, etc. — continued Void now, without wife, 125. , , Husband to trustee for wife, 24, 41. Husband to wife; creditors, 19, 134. Without wife 's signing, 41. Not fraud to creditors, 26. Parol contract by husband, 38. Judgment before deed, 39. Wife ratifies by deed, 38. Passive trust for wife, 25. Presumed for new home, 37. Statute quoted as amended, 46. To son, reserving life est., 20.* Wife alone, occupying, 27. Wife; not witnessed or ack., 44, 4&. Creditors: equities against, 28, 91. All cases included, 28, 36, 70. Peculiar situation, 136, 137. Presumed to know fact, 83. Security or other property, 70. I! Third persons or husband, 69. : Decedent 's homestead : Exempt from his debts, 78, 154. Not heir's debt, when, 155. Exemption to only $5,000, 152. Family afterward broken up, 21. HOMESTEAD 517 Decedent 's, etc.— continued Interstate; widow life estate, 147. Disposition of proceeds, 150. "Expectancy," indeterminable, 149. On condition subsequent, 147. Proceeds, widow's interest, 148. Proceeds of, how disposed, 150. Sale to carry out will, 146. Reversioner 's proceeds, 146, 154. Not as to own debt, when, 155. Seven years, removed from, 89. Intent to return to, 89. Vendor's purchase lien, 112. ■ Whole title vests at death, 153. Widow's rights, sec. 2271, 79. Definitions, 4, 5. "Agricultural purposes," 87. As used in a will, 88. Compact as possible, 6, 72. Exempt only $5,000, 152. House and appurtenances, 54. Devised homestead: Legacy payments; reversion, 99, 105. Not specifically; charge on, 111, 126, 127. Adm. expenses, debts, etc., 111. Legacies by gen '1. directions, 129. Proceeds balance exempt, 128. Widow sole, elects, 106. Disconnected tracts, not, 5, 72. Crossed by public alley, 84. Divided by highway, stream, etc., 6. , Easement across tract, 73. ; j i Domicil: husband Change, 49, 53, 110, 121, 123. Abandoning family, 122. Ceases to be hometsead, 50. Dower: widow entitled, 14. Exemption; not descent, law, 145. Favored in the law, 69, 92. '' Embrace all cases, 70. Home: can have but one, 34, 74. /Intention of acquiring., 80. Overt acts in fitting, 80. Presumption where living, 35. .Purchase with intent,. 81, 82. , Belates back , of an execution ". —Kent v. Lasley, 48 W. 257, 261. i 58. "The homestead in controversy belonged to the husband: The wife had no estate in it by virtue of the homestead right. 59. She had only an absolute veto Upon the power of her husband to alienate it, which the statute executes for her until she sees fit to affix her signature to her husband's conveyance of it. Godfrey v. Thornton', 46 W. 677, supra. " 60. A defective mortgage by husband and wife of the homestead, can- not be reformed as to the wife. See Reformation. (But, see note to par. 67, post). —Petesch v. Hambach, 48 W. 443, 451. 61. Following Phelps v.'Rooney, 9 W. supra, a " three-story ' brick hotel building," covering with a court "less than one-fourth' of an acre", in the city of Green Bay, in which the owner "resided with his family", "claiming and intending it as his home", is held to be a home- stead. ' —Harriman v. Queen Ins. Co., 49 W. 71, 84. 62. "Where a homestead was abandoned to a tenant by removal to another which failed in effect, and "some two weeks prior to the judg- ment, a load of household furniture was taken" and placed in a room of the first house, where the woman "and her child remained for two or three days", it is held "that these things constituted a resumption of the homestead, even if it had been abandoned. 63. In Brettun v. Fox, 100 Mass. 234, it was held that storing furni- ture in a room of the dwelling-house was a sufficient occupancy within the meaning of their statute to retain the right of exemption. HOMESTEAD 525 64. In Phipps v. Acton, 12 Bush., 375, it was held that 'so long as the widow is in possession of the premises by herself, her agents or tenants, her Tight to the » homestead wil 1 ■ continue '. ' ?■ < • —Zimmer v. Pauley, 51 W. 282, 286.' 65. A deed of a homestead, defective as to description, executed by the husband and wife, ''(although it did not convey the land intended, must be treated in equity as an executory contract by ' ' the husband ' ' to convey such land. (Gases)". 66. ' ' While the land intended to" be conveyed remained the home- stead," there could be ! no "specific performance of such executory coil- tract, because, on the authority of the case last cited (Pietsch v. Ham- bach, ?48 W. supra), the wife., could not be compelled to sign the con- veyance, and without her signature it would be void ' '. 67. "Put it was undoubtedly a valid contract" as to the- husband, and he ''would probably have been liable: to respond to damages" for a breach. . (After 'the Amdt. Ch. 45, L. 1905, to Sec. 2203; see Gotfredson Co. v. Dusing, 145 W.,!ipost., But under the subsequent amendment by Ch. 222, L. 1911, the; : deed: can npwibe, reformed to bind both.) .. i —Conrad v. Sehwamb, 53 W. 372, 377. 68. The exemption of the proceeds of a homestead ' ' with the intention to procure another ' ', for two years under sec-. 2983, extends to a judg- ment debtor who has removed from ,thisi state, , and does not require "that his intention must be to, procure another homestead in this state". — Hewitt v. Allen,. 54 W. 583, 584. ,69. "The homestead right is favored in the law, and when it is made security for debt by the signature and consent of the wife, it is favored even more than a surety or the security given by a third person", including the husband. 7,0,: '-'This prinqiple is broad, enough to embrace all cases where the homestead is made security with other property, or security collateral to the security upon other property." 71. Where a homestead mprtgage "contains no provision for future , advances",, and there is no agreement or c.omsent to such by the wife, '.'it must be heldfthat the mprtgage was made to secure past indebtedness alone, if there .was any to which it could apply". —Dunnw. Buckley, 56 W. 190, 192. 72. The rule of Bunker v. Locke, 15 W T . supra, is approved that "a homestead under the exemption law cannot, consist of two or more disconnected tracts", however convenient to the owner, but must "con- sist of but one body or. tract of land". 73. "It seems clear, however, that the mere taking of an easement across "the homestead,* 1 by right of eminent domain/ does not divide the homestead into two separate and detached parcels". —Hornby v. Sikes, 56 W. 382, 384. 526 PROBATE AND GENERAL LAW, CODIFIED 74. Following Jarvais v. Moe, 38 W, supra, a debtor who "had a homestead right in actual possession" "on the west end of " a lot, "can- not have a homestead right in the house on the east end of the lot by construction and claim, (Phelps v. Rooney, 9 "W. supra, and other cases)," though the latter had some years before been his homestead. 75. "If there be two dwellings, or a dwelling and other buildings, on the quarter acre, one dwelling occupied as a homestead, and the other building leased to tenants, the houses so leased and the ground on which they stand are not exempt, unless in a case where the rented dwelling is occupied by servants who were employed in the family of the owner. This was so held by this court in Casselman v. Packard, 16 W. supra; Hoffman v. Junk, 51 W. 613". —Schoffen v. Lcmdmer, 60 W. 334, 337. 76. It is "the settled law of this state", "that a conveyance by a married man of his homestead, containing no reservation of the home- stead right, is null and void unless signed by his wife". 77. It is held, however, that such "conveyance by the husband without the signature of his wife, where the homestead right is ' ' reserved to the grantor", conveys his "reversionary interest in his homestead", and is valid to that extent. (Probably not, since the Amd't of sec. 2203, Ch. 45, L. 1905, quoted par. 46, supra.) N 78. Sec. 2271 "was manifestly inserted for the purpose of exempting the homestead, should the widow inherit it under the statute of descents, from liability to be sold for the debts of the deceased husband; and not to increase or extend her rights in the homestead as a homestead". 79. "It does not, we think, enlarge her estate, present or prospective, in the homestead as such. That terminates in every case when she marries or dies". (Quoted and followed in Van Matre v. Swank, 147 W." post) . ' —Ferguson v. Mason, 60 W. 377, 388. 80. "The bona fide intention of acquiring the premises for a home- stead, without defrauding any one, evidenced by overt acts in fitting them to become such, followed by actual occupancy in a reasonable time", gives them the character of a homestead; 81. "And the homestead exemption thus secured covers not only the land, but such materials so used thereon, and relates back to the time of purchase with such intent to make the premises a homestead. 82. This is in harmony with our own decisions, and is supported by the decisions of two courts for which we have great respect. Reske v. Reske, 51 Mich. 541; Edwards v. Fry, 9 Kans., 425". 83. The judgment creditors as "purchasers were presumed to know", ' ' what the plaintiff had done, and was then doing, on the land indicat- ing his intention of making it his homestead", and no notice to them was necessary to avoid waiver. — Scofield v. Hopkins, 61 W. 370, 372. HOMESTEAD ' 527 84. "The fact that a public alley crossed the land, cutting off from the rest a small parcel, on which stood the barn, does not defeat the homestead right to that parcel if the balance was a homestead". 85. In "a sale of the homestead and personal property, the value of the former, nevertheless is exempt, where, held for homestead purposes. 86. The fact "that he used a portion of such proceeds to pay his debts and maintain his family does not deprive him of the right to such exemption if he is otherwise entitled thereto". 87. "The words 'used for agricultural purposes', as employed in the statute", see. 2983, does not exclude the debtor "from the benefit of the homestead exemption therein given", "without regard to the uses to which the land appurtenant to his dwelling and residence might be put", under the statute and constitution, art. 1,' sec. 17. —Binzel v. Grogan, 67 W. 147, 149. 88. "The word 'homestead', as used in the will, manifestly means the house and all the grounds where the testator lived, and is not restricted to one-fourth of an acre mentioned in the statute". —Ford, Extr. v. Ford, 70 W. 19, 52. 89. Where a widow" with her children, shortly after the death of her husband moved out of the homestead, being the second story of a saloon building, and rented the same, in the meantime herself renting another building and keeping a boarding-house, intending to return to the home- stead when her daughters married, and seven years after removal deeded the property as security for money borrowed, it was held that her rights of homestead exemption from execution, had not been impaired, and that cases cited, supra, "and all subsequent cases in this court, make the facts of this case perfectly consistent with the homestead right" of the widow. — McDermoit v. Reman, 72 W. 268, 271. 90. A mortgage on the homestead by the husband without the signature of his wife is held absolutely void under the statute, though the wife was living apart from her husband, and the latter was old and infirm and the mortgage was given "for food and the necessaries of life furnished by the mortgagee". See also Domicil. —Herron v. Enapp S. & Co., 72 W. 553, 557. 91. "Where land is purchased' by the husband, held under contract, with a parol agreement by him that advances by the vendor for improve- ments shall be a lien upon the premises, the wife not concurring, the homestead right of the latter is paramount to such advances. 92. "The whole policy and spirit of the law are to secure the home- stead to the debtor and his family, in obedience to the express declaration of the bill of rights in the constitution; and it is a cardinal rule, which the court invariably acts upon, that exemption laws are to be liberally construed. Zimmer v. Pauly, 51 W., supra." —Chopm v. Bunte, 75 W., 361, 369. 528 PROBATE AND GENERAL LAW, CODIFIED 93. The use of a homestead for unlawful purposes, does not destroy the homestead exemption privileges. — Primce v. Hake, 75 W>, 638. 94. As under section 2203, "no valid conveyance of his homestead can be' made by a husband unless his wife signs the same," it is held, where a mortgage signed by the wife, intended to cover a homestead, and by mistake of description did not, that, the consent of the wife for reformation, in her answer,! "is not an effectual consent" and "is not equivalent to such signing", so as now to make the mortgage valid as to the homestead,, though the husband is deceased. 95. "Of course, she may not lawfully convey to the plaintiff, or any other person, her interest in the homestead; but such a conveyance would ndt affect the rights of the children" as remaindermen. 96. The fact that the note also signed by the wife "was for money and supplies" for the family maintenance, she having no estate, does not make, the mortgage valid, as "such (Suppprt and maintenance was a legal charge against" the husband alone. • • : 97. On the authority of Petesch v. Hambach, 48 "W., supra, it is^eld that the mortgage cannot "be reformed to include the homestead, as the parties to it intended it should". "Conrad v. Schwamb, 53 W., supra, is not, in conflict" (Cited, followed, and approved, after the amendment of eh. 45, L. of 1905, to sec. 2203!, supra in Gotfredson Bros. Co. v. Dusing, 145 W. post. But changed by subsequent amendment to sec. 2203, by Ch. 222, C. 1911). ^O'Malley v. Ruddy, 79: W. 147, 149. 98. Legal subdivision is held selected in the absence of other selec- tion, and the rule of Kent, v. Lasley, 48 W., supra, is expressly adhered to. —Martin v. C. Aultman & Co., 80. "W., 150, 155,. 99. In a devised homestead "there remains attached to the property no quality of a homestead which interferes with the sale of the rever- sionary interest therein to complete the payment ipf legacies". See also Legacies. . ---'Will of Boot, 81 W., 263, 267. 100. A house and lot received as consideration for a farm, including a homestead, the balance of the farm being more than covered by the mortgage, is "the proceeds of the sale of the farm," and is held exempt for homestead purposes for two years under the statute (sec. 2983). 101. Such lot, being: subject to a three year lease, and therefore not occupied by such purchasers, is their "hpmestead, although they may not have actually resided upon it, and may not do so until the expira^ tion of the lease", under sec. 2983. 102. "It is immaterial that plaintiffs did not assert any claim to the lot as a homestead until the commencement of this action", to set aside an execution sale, it not; depending upon any notice, and the lot being acquired "for use as his homestead, to be occupied as such as soon as the lease expired". —Hoppe v. Goldberg, 82 W., 660, 664, HOMESTEAD 529 i 103. In an ejectment action with an equitable counterclaim, where a deed from the father toison, was "void as a conveyance of the homestead, by reason of the failure of the wife to sign 'the same" (sec. 2203), but "was based upon a good and valuable consideration, consisting not only of services i. rendered and to be rendered;?' as agreed by a parol contract of the husband and wife with the son, and money, and through erroneous advice of a notary, the legal deed and written contract was not exe- cuted, — it is held that the son "is entitled to a specific performance of the same as against the heirs at law of the grantor. Thrall v. Thrall, 60 W., 503 (See Bond for Maintenance; Cable v. Cable, 146 Pa. St., 451; (other ' cases) ". See also Equity. < : —Whit-mare v. Hay, 85 W., 240, 249. , • . ' .'- ' ' 104. The widow's homestead- interest is not subject to partition and See Partition., — Voelz v. Voelz, 88 W. 461, 463. 105. As "the homestead may be . devised, such devise may unquestion- ably be charged with conditions such as the payment of legacies or debts." ''The power to charge it with conditions is a necessary part of the power to devise.'.' (Approvingly cited in Will of Madden, 104 W. post). — Turner V. Scheiber, 89 W. 1, 5. 106. When the widow as sole , devisee, elects, the fee of the homestead descends to the children. See Widow. —Melms v. Pabst Brewing Co., 93 W., 140, 146. 107. As to bona fide intention, etc. Scofield v. Hopkins, 61 W., supra, quoted and followed. —Shaw v. Kvrby, 93 W.,- 379, 380. 108. On a sale of premises including the homestead, on foreclosure proceedings, the nonexempt portion being worth less than the debt, the proceeds remaining, are held exempt for homestead purposes. (Cases, supra). ■ — Glqncey v. Alme, 98 W. 229. 109. While Ferguson y, Mason, 60 W., supra, allowing the husband to deed his reversion of the, homestead is upheld, the court does not "feel disposed to extend in, the least the doctrines," by any approval of a reservation short of absolute control in the grantor. (However, the amendment of Ch. 45, L. 1905, ; to sec. 2203, now undoubtedly invali- dates any such conveyance.) 110. While, "strongly , urged; to declare that the, wife's homestead right during her husband's life is an estate," "we prefer to ( leave the homestead right of the wife during her husband's life just, as it was left in Godfrey v. Thornton, 46 W., supra, namely, as a disability imposed upon her husband , in favor of , the wife, and not as an estate in land." (Kecognized and' cited in Prochnow y. M-, %■ Jrofl , Co., 156 W., 408 ) . —Town v. Gens'oh, 101 W„ 445, 449. Zimmerman — 34 530 PROBATE AND GENERAL LAW, CODIFIED , 111. As to administration expenses, debts, and legacies, a charge on the homestead not specifically devised. See Administration Expenses. — Will of Madden, 104 "W., 61, 65. 112. A homestead, after the deeease of the owner, is held not subject to a vendor 's purchase money lien. See Lien. —Berger v. Berger, 104 W., 282, 287. 113. A satisfaction of a land contract given with a deed, releases the deed of the homestead as a mortgage^ without a deed back. See Mortgage. — Cumps v. Kiyo, 104 W., 656, 659. 114. It was ruled in Cumps v. Kiyo, 104 W., supra," that the pro- tection which the law of this state throws around the homestead right is not exclusively for the benefit of married women, — that it extends to the whole family, rendering the homestead inalienable otherwise than in the precise manner indicated in the statute." 115. "The circumstance of voting in the {oreign jurisdiction was re- butted by the positive evidence of" the husband, "of his purpose in going to the state of Washington and his intention at all times to return", and other evidence "that the removal" was for the wife's health he having remained there three years until her decease, and his homestead right, here was maintained and established. 116. While the act of voting there several times, "was inconsistent with his possessing a homestead," here, yet "the mere act of voting at a particular place is not conclusive on the question of residence". (Many cases). 117. As to inability to mortgage, on a power of attorney to sell, and the wife not being estopped by oral direction to sign for her, and accepting the fruits. See Deeds. —Minnesota 8. Co. v. McCrossen, 110 W., 316, 322. 118. "Under our statute (sec. 2983), there can be no doubt but that a homestead may be secured in premises held under a lease. 119. It is also true that, in so far as leased property is susceptible of being conserved as a home, it is governed by the same rules that apply to homesteads based upon property held by more enduring titles". 120. Under sec. 2203, a written surrender of such leased premises without the signature of the wife, is held invalid as to her. 121. But the husband's "right to change his domicile, and to sur- render and abandon his former homestead by leaving the old one and secure a new one, has been recognized and admitted in this state. 122. This he may do in utter defiance of his wife's wishes or desires". Held, so legally done here, but not "{hat such homestead right can be defeated by the husband abandoning his family and leaving them to shift for themselves". HOMESTEAD > 531 123. He "had an absolute right", in good faith, "to change his home", ' 'and thus relieve himself from the disability of the statute. The refusal of the wife to follow him did not preserve the status of the homestead." —Beranek v. Bercmek, 113 W., 272, 275. 124. Following Conrad v. Schwamb, 53 W. and Ferguson v. Mason, 60 W., supra, it is held, that where the husband "in form by warranty deed, conveyed", the homestead, the wife refusing to join, such deed conveyed his equitable interest, and Upon the death of the husband and wife, the grantee ' ' became possessed of the legal title ' '. , 125. (However, "the amendment (ch. 45, L. 1905, to see. 2203) was passed as a direct result of the decision in Jerdee v. Furbush, and of the suggestion therein contained, in order to more completely protect the homestead estate and to render any alienation thereof by the hus- band, without the signature of the wife, void". Gotfredson Bros. Co. v. Dusing, 145 W., post). —Jerdee v. Furbush, 115 W., 277, 279. 126. "Where the testator gave all his personalty and realty "which should 'remain after payment of his 'just debts and funeral expenses'," to his widow, — under sections 3862 and 2983, ' ' there can be no question hut that the quarter of an acre constituting the homestead is exempt" from the payment of claims. — Pym v. Pym,, 118 W., 662, 668. 127. Where the testator, "after my just debts and funeral expenses have been paid," gave household furniture and $1000 to a son C, "and the rest of" the property equally to two sons A. and 'C, and the prop- erty finally, after mortgage foreclosure, consisted only of $1375, as home- stead surplus, it is held, 128. That, under sees, 2271 and 3862, such surplus is exempt from the payment of claims, not being expressly chargeable thereon, 129. But that the legacy of $1000 be first paid before division as there is nothing in the statute, sec. 3862, "to prevent legacies from , being made a charge upon the homestead by a 'general direction' in^a will, as that clause of the statute only relates to the payment of debts". —Euener v. Prohl, 119 W., 487, 490. 130. "During the husband's life he is the absolute owner and possessor of the homestead, and the effect of our statutes is no more than to impose a limitation upon his right to convey or incumber it, but in no wise to create a concurrent estate or possession in the wife". (Oases, SU p ra ). —Mash v. Bloom, 126 W. 385, 389. 131. The interest of a tenant in common,— in a hotel which he occupied "as his dwelling and left it because of ill health", "had no other homestead, and had no other up to the time of his death", put home- stead "proceeds into the hotel building ", ; 132. "Intended to keep the hotel as his homestead, and return to 532 PBOBATE AND GENERAL LAW, CODIFIED and reoccupy it as his homestead when able", and it' being of .val less than $5000,— is held to have been his homestead, and exempt frc claims. i » ■■ ■ 133. "The language" of the statute, sec. 2983, "'express or implie consent", was "intended to make acquiescence on the part of the c tenant" presumptively "sufficient without further proof''. 134. The conveyance of such homestead interest, for a nominal eo sideration, to the wife, shortly before decease, "was valid and> cann be set aside by his creditors nor the proceeds in defendant's (widow' hands subjected to their claims under sec. 3835.". See also Liens., ;- ,• . .. ■ ' —Bariie v. Battle, 132 W., 392, 39 135.: The divorce statute, sec. 2367, enabling alimony to be made charge upon any specific real estate of the party liable', is held include a homestead, under the language ■ of the exemption statute, sc 2983, 'except as otherwise provided in these statutes'. , . —Schultz v. Schultz, 133 W., 125, 12 136. Where a woman mortgaged a whole lot and with the money bui a house on the vacant half thereof, making this her homestead, ai afterwards contracted to remodel the old house on the other half f > which liens were filed thereon, and on foreclosure of the mortgage, it w held that "the portion of the premises not included in the mortgagor homestead" was properly sold "first for satisfatcion of the mortgai debt", '.,;.,. 1 137. "It is evident that when appellants' lien arose the mortgag D., had established her> homestead right to the premises she now oecupi and that she was entitled to all the benefits that inhere in a homestee right,-' which "is superior in equity to that of creditors". Olancey Alsme, 98 W., supra, —Eisner v. Dorn, 136 W., 73, 7 138. Notwithstanding* , under sec. 2983 as, now (1916) existing, tl homestead exemption extends 'to any estate less than a fee held by ar person by lease, contract, or otherwise, — ' it is held "that there mu be a present right of occupancy by title in the person claiming the hom stead, 139. And that, in the present case the right of occupancy and title being in the life tenant, the remainderman or reversioner ' ' has no presei right of occupancy sufficient to carry with it the privileges of horn stead rights during the life estate of his mother, 140. Even though permitted to live with her on the premises (Cases). — Reeves & Co. v. Saxton, 145 W. 10, 1 141. Following cases supra, the court refused to ,reform a mortga,{ which did not but was ' ' intended and supposed to cover ,their horn stead", and so declined notwithstanding the consideration of sec. 225 and of the amendment to sec. 2203 by ch. 45, L. 1905. HOMESTEAD (1 533 142. "The phrase in the amendment, ,' evidenced by her act. of join- ing in the deed, mortgage or other conveyance', is equivalent to the, phrase ' without the signature of the wife to ; ^he same ' in the law as it istood before". t .,, 143. (However, by the subsequent addition to sec. 2203, by ch. 222, L. ,1911, undoubtedly now reformation may be had 'when a mistake is made in the description of land occupied as a homestead'. See also Notes to O'Malley v. Ruddy, 79, W. and Jerdee v. Furbush, 115 W., supra). • — Gotfredson Bros Co. v. Busing, 145 W. 659, 662. 144. "We need not" "decide; this question", "but it is, not clear that the homestead was part only ,pf a tract of land" wn i cn "was less than a , quarter of an acre, and there were t^p houses on it." See also Sale of Realty. —Milwaukee T. Co. v. Clark B. Co., 146 W, 230, 236. 145. Ch. 134, R. S. 1858, "rewritten, and amended by ch. 270, L. 1864" (and said in Ferguson y. Mason, 60 Wi supra, "intended" "to be retained in sees. 2271 and 2280) , ' ' entitled ' An act relating to home- steads ' ", following Ferguson y. Mason, supra, as establishing "a rule of property", — is held "not a, statute of descent" but "an exemption law" only, and that the widow of an intestate who died in 1861, under the (then) statute of descent "took a life estate. in the homestead which was not affected by her second marriage" subsequently. , See, also Title. —VanMatre v. Swank, 147 W. 93, 96. 146. Where "title to this homestead passed" under the will, subject to "the widow's life estate therein", to the children, to be divided among them at the widow's decease, the mere fact that'^t became necessary" "to sell the homestead to carry out the will", did not take away the right of the devisees "to receive it free of all judgments , and claims" under sec. 2280, and the proceeds on subsequent sale thereof.'. See also Equitable Conversion. —Foote v. Foote, 159 W. 179, 183. 147. "The homestead that descends to the widow where the 'intestate leaves issue", M is a life estate on condition; subsequent that she does not remarry". Subd. 2, sec. 2271. Ferguson v. Mason, 60 W. supra. < 148. "The widow's interest in the proceeds thereof remains the same as in the land itself, namely, the right to the use thereof during widow- hood". • 149. It is indicated "that in Europe there are tables determining the 'expectancy' of widowhood at different ages, but that such tables are not in use in the United States", and that the length of widowhood is indeterminable. 150. "So, the court properly held -that the widow was entitled to the use of the proceeds of the homestead, less her dower interest therein if she elects to receive that presently, during her widowhood; and that 534 PROBATE AND GENERAL LAW, CODIFIED upon her remarriage or death the funds should become the property of her son", the heir. 151. While under a will, a "homestead" may include more than the statutory limitation (Ford v. Ford, 70 W. supra), yet, 152. In an intestate estate ' ' the statutory definition of the term ' home- stead' (sec. 2984a) applies as well to the descent of land as to exemp- tions. The widow, therefore, has a homestead right in only $5000". —Lands of Sydow, 161 W. 325, 326. 153. As indicated in Ferguson v. Mason, 60 W., and Lands of Sydow, 161 W., supra, it is held that sec. 2271, in connection with sec. 2270, "provides for the descent (and vesting) of the whole title to the home- stead at the death of the intestate owner, he leaving a widow and issue ; a conditional life estate to the widow and the reversion to the intestate's then living heirs". , —Miller v. Hart, 161 W. 611, 614. 154. Saying that "this proposition" "is ruled" "by Foote V. Foote, 59 W. supra," it is held that the remainder to children as well as the widow's life estate in a testator's devised homestead, passed "clear of all judgments and claims under the statute"; 155. That the share of one of such children "was exempt from any judgment rendered against her father or his estate, but was liable for any judgment against her, as it was not in any sense the homestead, she being at the time admittedly a resident of Chicago". —Polzen v. Polzen, 164 W. 18, 19. HOUSEHOLD FURNITURE. Clock is furniture, 2. Presumed husband's, 3. Piano is not, 1. Wife; proof of, 3. 1. "Although a piano more nearly resembles some articles of furni- ture than most other musical instruments do, and although it may be used at times for some of the purposes of an ornamental table, yet these facts do not divest it of its acknowledged character as a musical instru- ment. And it would be contrary to the common understanding to say that musical instruments are included in household furniture." —Tanner v. Billings, 18 W. 163, 165. 2. In an action to "recover the value of a clock", it is referred to by the court as " a very common article of household furniture. ' ' ' 3. Household furniture is presumed to be in the possession of the husband, and the wife as against his creditors "ought to be prepared to show, by some other evidence stronger than that of possession merely, that the property is her own". —Stanton v. Kirsch, 6 W. 338, 341. HUSBAND AND WIFE 535 HUSBAND AND WIFE. See also Creditors' Actions. Homestead. Implied Trusts. Insur- ance. Joint Tenancy. Marriage Contracts. Married Woman. Necessaries. Parties. "Adult persons" includes a wife, 201. Agency of husband: His skill, industry, etc., 145. Creditors not entitled to^ 145, 162. Not competent to deny, 62. Power same as of stranger, 47. Property as his own, 130. Fraud of creditors, 129. Sale of wife's property, 86. Agency of wife: Act, and bind husband, 12. Assumes to so act, 198. Adopts her act, 198. , Contract is husband's, 199. Signs his name, 199. Declarations as agent, 12, 13. Presumed in household, affairs, 23. Purchasing family supplies, 159. Her contract, her husband's, 160. Scope of employment, 14, 196. Testify to act within scope, 196. Third person with husband, 13. Business together ; wife 's, est., 87. Both became liable, 87. Common law: Changed by statute of 1850, 82. Estates; entireties not moieties,! 3. Equity sustained, direct from husband, 79. Husband owner of personalty, 81. Husband to profits from realty, 80. Partnership ventures, 135. Statute secured her separate .estate, 83. Wife could take realty or personalty, 78. Other than from husbd., 78. Wife not contract; property, 6. Wife's earnings, her husb's., 17. Witnesses: ground, public poliey> 30. Conveyances to others: Defectively executed; husband, 26. Homestead, invalid, both, 28. Not .enforced as to wife, 27. Wife alleges' undue coercion, 88. Evidence to be convincing, 88, 89. Without wife's knowledge, 172. Conveyance to wife : Chattel mtge. to secure debt, 56. Conditional, limitation to wife, 41. Consideration; homestead right, 110, 142. Conveyance to wife — continued Creditors; clear evidence, 120, 141. Equitable title in wife; husb. legal, 129, 219. 223. Estoppel as to creditors, 122. Ownership statement, 122. Homestead; through trustee, 48, 90. Homestead to wife; creditors, 37. Honest intent; no consideration, 105. Separate estate unnecessary, 106. Husband direct to wife, 19, 43, 101, 102, 168, 219. Consid., divorce, withdrawal, 168. Equitable title; legal, 124, 168, 219, 223. Giving her separate estate, 125, 168, 218. ,j ■ Her grantee gets same title, 124, 218. Husband retains legal, 126, 168, 217. Insolvent husband; consid., 168. Statute now, direct, legal est., 168, 218, 219, 223. Eraud ; one of fact, not law, 220. Husband's directions to wife, 57. Upheld against him, 57. Used as homestead for family, 57. Wife may convey, 158. Money not agreed to be repaid, 143. Non-exempt to the wife, 38, 55, 140. Creditors; existing, 39, 55, 140. Creditors; subsequent, 38, 90, 103. Not wife's separate estate, 40. Subsequent destruction of deed, 111. Consent by undue influence, 111. Consent must be voluntary, 113. Estop parol evidence, 112. Subsequent creditors; evidence, 90, 103, 105. Deed not recorded until creditors, 104. Third party to wife; husb. money, 118. , Creditors; clear evidence, 119, 120. Trustee unimportant in equity, 104, 219. While solvent: representations, 146. Corporators of company, 137, 201. Damages; for wife's injuries, 34. Husband's admissions, 35. Time and services of wife, "45. Medical attendance, • 45. 536 PROBATE AND GENERAL LAW, CODIFIED Debt of husband: Joint note; separate estate, 123. Note .and mtge.; his use,, 179. Mtge. held; note not, 180, 181. On estate of both, 179. Deposition; before marriage, 10. Discovery: wife > examined, 44. Property of husband, 44. Domicil; husband can change, 76. Employed by wife, 145, 161. Mixed with support, 225, 226. Skill, industry, profits, 145, 162. Substantial showing, 226. Expends money: wife's property, 203. No claim against the realty, 203. Presumed for her benefit,' 203. Feme sole: when not, 29. Furniture presumed husband's, 4. Gift from: exempt only, 139. As against creditors, 139. Fraud; fact not law, 220. Receive now; same rule, 219. Individual earnings: Boarder's money is not, 139. Husband defrayed exp., 138. Husband with help of wife, 221. Compensated for wife, 222. Not individual earnings, 222. Insurance: prior to 1891, 36. Joint tenancy: Execution; husband's interest, '25. Labor, creditors not control, 163. Lease with husband; interest, 176. Letters between; privileged, 152. Limitation statute : Between husband and wife, 128. Not run against wife, 127, 166. Payment of mortgage by wife, 195. Living apart: Cannot bind' husband; 182. justifiable cause, 183. Deed' for' maintenance, 2. "Living together," construed, 211, 212. Apart three years; "gives support, 213. Mechanic's lien; wife's house 7 , 85. Husband makes improvements, 85. Mortgage: and bond, both, 5. Both agreed to assume, 169. Deficiency judgment; wife, 5. Necessaries: See also Support. Absence; support for family, 52. Attorney's services for her, 51. Elopement; desertion, 24. Living apart; justifiable cause, 183. Obligation to support, 21, 49, 94. Separate ■ estate charged, 94. "Stoddard Lectures," are not, 200. Necessariesr-Hcontinued Third person supplies her, 50. Wife may testify as to, 184. Partnership; with husband, 133, 136. Or other perBon, 133, 135. \ Power of attorney: Wife to husband; his deed, 18. Power to bind husband, 20. Desertion without cause, 24. Household; agency presumed, 23. Implied, as to necessaries, 21. Not living apart; prima facie', 182. Sole ground of agency, 20. Temporary absence of husband, 22. Wife elopes; necessaries, 24. Promise to pay wife's debt, 197. Purchase with wife's money, 144, 157. Made large profits for her, 158. Subsequently conveyed to her, 157. Resulting trust, 144, 157. Purpose of statute; act, 134. Free from husband and his debts, 134. Separate estate, 134. ! Representing himself owner, 91. Wife, owner, present, silent, 91. Reconciliation contract, 209. Agree to pay : laudable, 209, 210. Separate estate: Acquire by contract, 132. Acquire entirely on credit, 84, 170. Bind herself by mortgage, 170. Bind herself at law, 131. 214. Husband acquires possession of, 205, Not 1 apply to joint deed, 215. Personal trust by parol, 216. Trust for her benefit, 206, 214. Husband's; in wife's name, 177. Person other than husband, 125. Rec'd from husband, 125, 217, 218. Signing with husband: Charge separate estate, 123. Innocent third party, 123. Lease for his benefit only, 176. Note and mtge.; his sole use, 179.' Mtge. valid; no deficiency, 180, 181. On property of both, 179. Support: See also Necessaries. Common law liability, 185. Husband cannot recover for, 202. Obligation to support, 21, 49, 94, 202. Apart; neglect or consent, 187. Confined in asylum, 189. Not shirk by contract, 224. Not while away from home, 188. Only home he selects, 186. Surety : Husband or third party, 32. HUSBAND AND WIFE 537 Title, in wife's name, 177, Undue influence: , Evidence to be convincing, 88. Wife's evidence insufficient, 89. As against creditors, 88. Voluntary separation agreement, 164. , Assignment of ins. policy, 165. Wife's property rights: Acquire by her contract, 132. Board men of husband's firm, 109. No reference to her estate, 109. Charge of her business; possession, 114, 145, 173. Deal with as his own, 115. Husband's creditors, 115, 145. Wife's title and possession, 174. Common law rights. See Common law. Contracts; separate estate, 11, 131. All others, in equity only, 11., ! Contract with husband ; separate estate, 107, 108. Crops, husband's work; not for his : j '■'■- debts, 77. Equity, before the- statute, 6. As to separate estate, 7. Gift direct from husband, 218. Fraud: of fact not of law, 220. Husband's possession; not title, 117. Husband works her farm, 42. Improvements on her realty, 9. Lien . by specific writing only, 15. Lien, on after acquired property, 15. May deal with husband, 53, 107. Closely scrutinized, 54. Permits husband, take income, 66. ' , Not compel accounting, 66. ■ . - , . Purchase realty wholly on credit, 84; Statute, rights and remedies, 8. Witnesses : Action for necessaries; wife, 184. Acts within scope of agency, '196. * Co-defts. : wives incompetent, 1 64. One nominal interest only, 204. Common law rule, grounds, 30. Competent as to necessities, 59. Coverture ceased; death, divorce, 153, ' 'V -154, 190. Witnesses^continued Coverture, etc, — continued. Confidence by marital relation, 155, 156, 191. Transactions with deceased, 191. Mental opinion on acts, , 194. Opinion based, thereon, 192. Uninfluenced acts, 193. Debarred in general;' exceptions, 60, 95, 96, 97, 147, 207. ' ' " i Directly for or against only, 175. Divorced party: non-confidence, 46, 116, 153, 154. Either may prove agency, 149. Either, of legatee or heir; will, lSl; ' Husband as agent for wife, 16, 61. Incompetent; generally, 63. Nominal party only, 93, 99. Not to deny agency, 62. Objection to general offer, 147. Offer should state, 148. Parties; inchoate dower rights, 65., Proper, not necessary party, 92. Representative capacity, for both, 100, Though not nominal party, 100. ■Representative capacity, wife, 171, 178. Rule as at common law, 95, 207. Directly for or against, 175, Except parties to suit, 95. Including separate estate, 95. Rules by court : two exceptions, 9'6. Agency for each other, 97. No other : exceptions; 98. Personal violence charge, 96, 167. Testify when parties, 31, 95. Though testified tq 20. The wife's "power to bind her husband by her contracts rests upon the sole ground of agency, she having as wife no original and inher- ent power to bind him by any contract made by her". , 21. "In certain cases the law implies an authority on the part of the wife to charge her husband in procuring necessaries for herself and family, growing out of his obligation to support her". , 22. Mere absence temporarily of the husband, does, not "imply that the wife had authority %o make the contract, or to let the horse to the defendant I for hire," and he, "must show that she had power to make it", or present facts implying authority. 23. "In the management of household affairs it is said that it will be presumed, until the contrary appears, that she acts as the agent of her husband (Pickering v. Pickering, 6 N. H. 120)". —Savage v. Davis, 18 W. 608, 613. 540 PROBATE AND GENERAL LAW, CODIFIED : 24.. "If the wife! elopes, though the tradesman has no notice of the elopement, if he gives credit to his wife, even for necessaries, the hus- band is not liable ' '. Same as, to desertion ' ' without cause ' '. —Sturtevant v. Siarin, 19 W. 268, 269. 25. The husband's life interest in a joint tenancy estate subject to execution. See Joint Tenancy. — Bennett v. Child, 19 "W. 362, 366. 26. "A deed (mortgage) defectively executed Or not acknowledged may be enforced as against a husband or other person not under dis- ability, as an agreement to convey". 27. "But as against a married woman; a deed hot acknowledged by her, or otherwise defective, will not be, enforced even in equity". 28. A imortgage defectively executed as to the wife, of lands including the homestead, "cannot be enforced against either of the mortgagors", as to the forty acres comprising the homestead, but^"is good only to convey" the husband's interest in the balance. (Overruled in Godfrey v. Thornton, 46 W. 677, 688. See Title. Homestead.) —Hait v. Houle, 19 W. 472, 475. 29. "Mere poverty, sickness, intellectual inferiority or physical inability of the husband, without being caused by vice, are not alone sufficient to enable the wife to act as a feme sole". , —Edson v. Hayden, 20 W. 682, 685. 30. "The common law does not exclude husband and wife from tes- tifying fqr or against each other solely on the ground of interest, or 'because they or either >of them are parties to the action, but on a prin- ciple of public policy, to prevent dissentions between them". 31. ' ' The statute has broken in upon the rule so far as to permit them to testify when parties to actions. We can go no further". —Fwrrell v. Ledwell, 21 W. 182, 183. 32. "Married woman having a separate estate," is liable as surety for her husband or third persons. See Surety. 1 —Leffingwell v. Freyer, 21 W. 392, 394. 33. Im an action by an orphan infant for services the defendant's wife was not a competent witness within the rule, she having been ' ' offered generally in the cause, and not to prove any understanding or agreement by her with the plaintiff in respect to wages, while acting as agent of the husband". — Mountain v. Fisket, 22 W. 93, 97. 34. In an action "by husband and wife, to recover damages for injuries done to the person of the wife, such damages, when recovered, are not the separate property of the wife, under the statute enlarging the rights of married women as to property." > HUSBAND AND WIPE 541 35. In such action for damages the husband's "admissions should be received". —Shaddock v. Clifton, 22 W. 114, 116. 36. Prior to the statute of 1891, it is held that "the husband having effected an insurance on his life for the benefit of his wife, and surviving her, can dispose of the insurance money by will or otherwise ' '". — Herman v. Howard, 23 W. 108, 111. 37. "A conveyance of the homestead by the husband to the wife can- not be held fraudulent as' to creditors". 38. "As to the portion not exempt, the conveyance must be regarded as a voluntary settlement upon the wife by the husband. And in regard to that, if it was not unreasonable in its character in view of the prop- erty and situation of the husband, and there was no fraudulent intent in fact, I think the law is that it cannot be impeached by a subsequent creditor". 39. "There are authorities that sustain the same rule as to existing creditors". Conveyance sustained, where the homestead was valued at $40,000., the excess thereof not exempt $5,000., and the husband other- wise -"worth $75,000., over and above his debts". 40. Such property of the wife "is not to be regarded as her separate estate as to which she has the powers and rights given by our statute in regard to the separate estate of married women, because she' derived this from her husband, while the statute applies only to real estate derived by married women from other sources"; — Pike v. Miles, 23 W. 164, 168. 41. A deed to husband and wife with a "conditional limitation" that the ' ' estate was granted to the wife on condition that she should continue to live with her husband, and was to expire and vest in her husband whenever she should cease to live with him, unless she had good cause for a divorce", was held valid, and entitling the husband to judgment removing "a cloud upon the title," she having deserted him and he having obtained a divorce. — Smith v. Smith, 23 W. 1 176, 182. 42. A married woman does not lose possession of her farm or the products thereof, merely because the husband lives on the farm and works it. -See Married Woman. Boos v. Gomber, 23 W. 284, 286. , :i ,. ; , ' i; . ,.i„ ■ ■• — Feller. v. Alden/ 23 W, 301, 304. 43 A "deed from the husband to the wife, directly is" good in equity. — Eannwn v, Oxley, 23 W. 519, 521. 44. In supplementary proceedings which "are a' substitute for a creditor's bill under the old practice", the wife "can be required to answer whether she has the property belonging to her husband in her 542 PEOBATE AND GENERAL LAW, CODIFIED possession and under her control"; and held impliedly, "that she mig be compelled to deliver it up." —In re O'Brien, 24 W. 547, 54 45. In an action by husband and wife for injuries sustained by t! wife for a defective highway, recovery can be had for "the loss of tir and services of the wife, and the expenses of nursing and medical atten ance during her illness. ' ' ■ — Kavanaugh v. JanesvUle, 24 W., 618, 62 46. A divorced wife may testify against her husband as to non-co fidential communications. See Divorce. —Crook v. Henry, 25 W., 569, 57 47. A husband's power as agent of his wife is no greater than agent of a stranger. See Principal and Agent. — Livesley v. Lasaiette, 28 W., 38, 4 48. The husband may through a third party (a trustee of -passr trust) make a valid conveyance of the homestead to his wife and childre without the signature of the wife. See Homestead. — Biehl v. Bingenhevmer, 28 W. 84, 8 49. ' ' The husband is under legal obligations to support his wife, ai nothing but wrongful conduct on her part can free him from such oh gation". 50. "If he fails to provide her with suitable and proper necessari< any third person who does provide her therewith, may maintain i action against him for the same". 51. A husband, prosecuting his wife living with him, to compel h to keep the peace, and failing to substantiate the charge is liable "to ; attorney for professional services rendered by him", on the retainer the wife, on the ground that "the services of the attorney are nece saries". — Warner v: Heiden, 28 W. 517, 51 52. In the case of the husband as "a mere absent owner", the wi has no implied authority to dispose of his property, except "for t' necessary support of herself or his family". —BuMs v. Newton, 29 W. 632, 62 53. "Where the wife has a, separate estate, she may deal with h husband; may loan him money and take a transfer of property fro him in payment thereof ; and she doubtless might buy property of hi: where the transaction is fair and honest, and where it appears that t husband does not convey it to her merely for the purpose of covering up and placing it beyond the reach of his creditors". 54. "But, on account of the great facilities which the marriage rel tion affords for the commission of fraud, these transactions' betwe ■ HUSBAND AND WIPE 543 husband and wife should be closely examined and scrutinized, to see that they are fair and honest, and not mere contrivances resorted to for the purpose of placing the husband's property beyond the reach of his creditors. ' ' 55. Conveyance of land from husband to wife through a third party, held fraudulent as to creditors. — Hoxie v. Price, 31 W. 82, 86. 56. "It was competent for the plaintiff to take a chattel mortgage from her husband to secure a debt which he owed, and which was con- tracted on account of her separate property". — Fenelon v. Hogoboom, 31 "W., 172, 179. 57. Where a husband purchases, pays for, and makes improvements on real estate on which by his direction before final execution, the deed was made out in his wife's name, equity, will not set the conveyance aside as "made in fraud on his rights. He saw lit to have the title of the property conveyed to her, which conveyance was in the nature of a voluntary settlement. Such settlements are valid in a court of equity, when not made in fraud of the rights of creditors". 58. The fact that ' ' this property was used and occupied as ,the home- stead of the family," does not prevent the wife from conveying it "without the consent of the husband" "with like effect as if she were unmarried". — Price v. Osborn, 34 W. 34, 40. 59. The wife is a competent witness in an action against the husband for necessities. See Necessities. 60. "In general the wife is debarred from being a witness for or against her husband; but to this rule there are exceptions at law, as well as in equity", "where, from the nature of the inquiry, the information to be expeeted is peculiarly within the knowledge of the wife, and where to exclude such evidence would occasion insecurity to that relation in society which it is the object of the rule to protect." — Bach v. Parmely, 35 W. 238, 240. 61. "No good reason is perceived why the husband may not testify to acts as the agent of his wife (the plaintiff), done by him in her presence, as well as in her absence". 62. Where "the plaintiff offered her husband to prove by him that he did not act as her agent in collecting" a mortgage, "clearly he was not a competent witness for that purpose." 63. Where the husband was offered "as a witness generally", and; not specifically as to agency, "it would have been error had the court rejected him without qualification. This was ruled in Mountain v. Fisher, 22 W., 93". ' —Menk v. Steimfort, 39 W. 370, 375. 64. In case of co-defendants, where the wife of each "was offered as a witness generally in behalf of the other defendant, and questions 544 PROBATE AND GENERAL LAW, CODIFIED were put to each which were pertinent to the issue", held that "the wife of a defendant is not a competent witness for the other defendant, unless there are special circumstances which would render her a competent witness for her husband also — as for example, where she is called' to testify to transactions as agent for the party calling her". 65. In a controversy over title to land in which the "wives have inchoate dower rights", they "would be proper parties thereto", and "had they been made parties, a different rule in respect to their com- petency as witnesses would prevail". , —Stewart v. Stewart, 41 W. 624, 626. 66. A married woman who permits her husband to appropriate the income of her separate estate, cannot compel him to account therefor to her. See Married Woman. •'" —Lyon v. Green Bay & M. R. Co., 42 W. 548, 553. 67. "Says Dixon, C. J. in O'Connor v. Hartford F. I. Co., 31 W. 160- 166 : ' It is well settled in this state that the wife; having acted as the agent of the husband, is a competent witness for him to prove, any aat done by her or fact transpiring within 'the scope of such agency' ". 68. The husband "when he went from home to be gone three months, he left the farm and everything on the same, including' the stock and the cow which was killed, in charge of his wife, with direction's for her to take care of everything in the same manner that he would if at home. 69. This shows an express delegation of authority to the wife to take care of the cow, and she could testify to 1 anything done by her in the execution of her agency". 70. ' ' Upon obvious grounds the : case is distinguishable from Meek v. Pierce, 19 W. 300, where there Was no authority, express or implied, given the wife by the husband, which would make her acts bidding upon him"; and where it was held that the wife was not a competent witness in his behalf, and that she was not his agent, so as to permit her to authorize a search. — Chunot v. Larson, 43 W. 536, 538. 71. "A wife is not a competent witness for her husband except' in respect to matters in which she has acted as his agent ; 72. And, whether she has acted in a given transaction, 'is a question to be determined by the court before her testimony is received". 73. "Probably she is a competent witness to prove the agency, but the agency must be proved before she can properly be admitted to testify in chief ". 74. "If the fact of agency exists, it can usually be proved by direct testimony elicited by direct interrogatories", and could, in the present, case. No indirection "was necessary or justifiable". 75. "She should have been as,ked whether she acted for her husband and by his authority in some transaction in controversy ; and the, court, HUSBAND AND WIFE 545 if satisfied that she did so 'act, would have admitted her to testify con- cerning such transaction". —Marsh v. Pugh, 43 W. 597, '600. 76. The husband can, by change of his domicil, free himself of his homestead disability, without his wife's consent. See Homestead. —Godfrey v. Thornton, 46 W. 677, 683. 77. The crops of a farm purchased by the wife on credit, carried on by her husband as agent "without any specific agreement", are not liable for her husband's debts. See Married Woman. 78. ' ' The doctrine is elementary, that at common law a married woman had capacity to take real and personal estate, by grant, gift or other con- veyance, from any person other than her husband. 79. Equity sustained conveyances to the wife direct from her husband, where the rights of creditors did not intervene. Putnam v. Bicknell,. 18 W. supra ; Pike v. Miles, 23 W. supra ; Hannan v. Oxley, id. supra. 80. As to the real property, at common law, Where no trust was created, the husband took the rents and profits during coverture, or for life where there was issue of the marriage; 81. While as to the wife's personal property, he became the absolute owner providing he reduced it to possession during coverture. 82.,But this rule of the common law in respect to the rights of the husband in the property of the wife was changed by statute more than a quarter of a century ago. See Ch. 44, L. of 1850, (Sees. 2340 and 2341.)." ' ' . 83. "This statute removed many of the disabilities which a married woman was under at the common law,, and secured for her the full use and enjoyment of. her separate estate. (Many cases, supra,)." 84. "Where the purchase by the wife is really bona fide, she being the real owner of the property, we do not think the law imputes fraud, or' condemns the transaction, "from the mere fact that the wife had no separate estate when she made the purchase, and therefore, from neces- sity, made it wholly on credit." — Dayton v. Walsh, 47 W. 113, 117. 85. Where the husband procured and charged to himself materials used in the improvement of the house, occupied by the husband and wife, but owned by the latter, and no agency is shown, the vendor of the materials cannot establish a mechanic's lien on the house for the value of the materials. (By the later amendment of Ch. 349, L. 1885, to Sec. 3314, such lien would attach where "such improvements are made, such owner having knowledge thereof and consenting thereto." See Clark v. North, .131 W. 599). —Wright v. Hood, 49 W. 235. 86. Where the negotiations for the conveyance of the wife's lands "were all between the defendant and the plaintiff's husband and agent," and "she had little or no part in the transactions further than to execute Zimmerman — 3 5 546 PEOBATE AND GENERAL LAW, CODIFIED the conveyance, she is bound therefore, by his acts and the, case stands as it would have stood had the husband been the owner of the land in controversy and the plaintiff in the action." —Lavassar v. Washburne, 50 W. 200, 202. 87. Where the husband and wife carry on a "business" with the wife's separate estate, she as well as he becomes legally liable. See Married Woman. — Krouskop v. Shoniz, 51 W. 204, 217. 88. To sustain a defense of the wife that she signed a note and mort- gage on the homestead and on her separate estate, for the debt of her husband, by reason of undue influence and coercion of her husband, she not having acknowledged the execution, with the proceedings ' ' perfectly regular and fair upon their face, the evidence must be perfectly clear, convincing and satisfactory ' '. 89. "We feel called upon to say that the wife's unsupported and uncorroborated testimony alone, however direct, positive and consistent in itself, is generally insufficient to sustain such a defense. We so hold both from reason and authority". — Smith v. Allis, 52 W. 337, 345. 90. In an action to set aside for fraud, a deed from husband to wife through a third party, by one who became a creditor subsequent to the delivery but before the recording of the deed, it is held that the evidence ' ' is not of that clear and convincing character which alone would justify the court in cancelling the conveyance. Layassar v. Washburne, 50 W. supra. ' ' See also Delivery. 91. Where the husband in his wife's presence endorsed his note "to the effect that he was then the owner of" land he had theretofore deeded to his wife, and she did not disclose her ownership thereof, and it was found that neither of them understood "that he was representing him- self to be the owner ' ', it is held, ' ' under such circumstances she was not required to assert her ownership, and is not estopped by her failure to- do so". —Le Saulnier v. Loew, 53 W. 207, 209. 92. "This court held in Hackett v. Bonnell, 16 W. 471, that, if hus- band and wife join in an action affecting only the wife's separate prop- erty, the husband, being a proper party to the action (although not a necessary party and perhaps not a party in interest), is a competent witness for his wife". 93. In this action, where the husband is only a nominal party under the present statute (sec. 4068), the court "adhere to the rule of Hackett v. Bonnell, and hold that the plaintiff husband was a competent witness in the action". —Snell v. Bray, 56 W. 156; 160. 94. "Her husband alone is liable for the board of" the wife "and child, unless she expressly made the amount chargeable upon her sepa- rate estate." —Israel v. Silsbee, 57 W. 222, 230. HUSBAND AND WIPE 547 '95. "The statute has made no such innovation upon the common law disability and incompetency of husband and wife to testify for or against each other as to allow them to be witnesses in such cases, even in respect to the separate property of the wife, except in one case, viz., when they are parties to the suit. Hackett v. Bonnell, 16 W. 471. . 96. The courts ex necessitate have made two other exceptions only: First, when either one is charged with personal violence upon the other (Mills v. U. S. 1 Pin., 73), 97. And second, when one has acted as the agent of the other, within the scope of such employment. Birdsall v. Dunn, 16 W. supra. 98. In all other eases the rule has been held by this court to be uniform in excluding them as witnesses for or against each other." (Approved in Kraimer v. State, 117 "W. 350, 353). — Carney v. Gleissner, 58 W. 674, 675. 99. The husband,* a nominal party to the suit of the wife, ''was a com- petent witness in the case so long as he remained a party to the record". (Cases, supra) . —Hoverson v. Noker, 60 W. 511, 515. 100. Husband and wife may each testify when he sues in a repre- sentative capacity in behalf of both, though not nominal parties. See Parties. — Strong Admr. v. City, of Stevens Point,. 62 W. 255, 262. « 101. A voluntary conveyance of realty from husband to wife "is effectual, as between the parties thereto, to pass to the grantee the equita- ble title to the land therein described. Putnam v. Bicknell, 18 W. ' supra," 102. "Such conveyance is also effectual as against the creditors of the grantor, unless it was -executed with intent to hinder or delay them in the collection of their debts, or unless the grantee has done, or omitted to do, some act which estops her to assert it as against them." Le Saul- nier v. Loew, 53 W. supra. 103. In this case, there were no creditors at the time, nor for nearly two years thereafter, and it is held there was no "fraudulent intent." 104. ' ' The fact that the deed was not recorded until after the grantor had incurred the' obligation is of no significance. The same fact occurred in the Le Saulnier v. Loew, supra, and yet the voluntary conveyance to the wife was upheld. It is true, in that case a trustee intervened; but, as we have already seen, that is unimportant in equity". 105. The conveyance being "with an honest intention and purpose", under the facts "the case is not one in which the wife must prove that she paid a valuable 1 consideration for the property in order to hold it as against a subsequent creditor of her husband. ' 106. Hence, she is not required to show that she had a separate estate out of which she paid for the land. See Putnam v. Bicknell and Le Saulnier v. Loew, supra". —Wheeler & W. Mfg. Co. v. Monahan, 63 W. 198, 201. 548 PROBATE AND GENERAL LAW, CODIFIED 107. "In this state it was settled, even prior to the enactment of sections 2343, 2345, in 1872, "that a married woman, having a separa estate, might deal with her husband respecting the same, loan him mone take a transfer of property from him in payment thereof, and hz property of him, provided the transaction was fair and honest and n in fraud of creditors. (Cases, supra) 108. The powers thus possessed by married Women are greatly enlarge by the enactment mentioned. (Cases) ". 109. Though the contract with a firm of which her husband was on for boarding men for the firm had no "direct reference to the wife separate estate", "if she had a separate estate at the_ time, she coul under the law as settled in this state, contract even with her husbar upon the faith and credit of that estate". —Brickley v. Walker, 68 W. 563, 57 110. The homestead right of the wife is held a sufficient consideratic for a deed from husband to wife, enforcible in equity. See Escrow. 111. A subsequent destruction of the deed by the husband, with reluctant acquiescence "procured by undue influence, if not by coercion of the wife, is held not to have divested the title after valid delivery i escrow. 112. "The only effect it could have would be to estop the wife fro: giving parol evidence of her title. (Many cases). 113. But to have that effect she, as the grantee, must have consents •to such destruction. Moreover, such consent must have been voluntaril given and clearly proved. Le Saulnier v. Loew, 53 W. supra". —Albright v. Albright, 70 W. 528, 53 114. "On account of this relation, the husband, if he had charge < the wife's business, as he might lawfully, would necessarily have tl possession of her property apparently, and would often deal with it i if he were the owner. 115. The business of dealing in horses would require the services < a man to look after them. The husband might perform that service f< the wife, and in so doing treat the horses as his own, without her know edge; but that ought not to estop her from asserting her title to tl property as against his creditors". — Green v. Walker, 73 "W., 548, 55 116. A divorced husband "is a competent witness against the plainti (his former wife), as to such facts as came to his knowledge durir such marriage by means equally accessible to other persons, and m disclosed to him in conversation with her. (Citations)". — Bigeloiv v. Sickles, 75 "W., 427, 42 117. "The mere fact that a husband happens to get into his hands < custody a note or note and mortgage" executed to and "received by h HUSBAND AND WIFE 549 wife (since deceased) raises no inference that she has transferred the title to him." —Clark v. Clark, 76 W., 306, 308. 118. "This is a contest between the creditors of the husband and wife where the wife claims to own property which there are very strong grounds for believing belongs to her husband," the land being pur- chased in her name, and the money therefor having 'been furnished by the husband. 119. "Under the circumstances she is bound to show, by clear and satisfactory evidence, that she purchased and paid for the property out of her separate estate. Horton v. Dewey, 53 W., 410 ; Fisher v. Shelver, 53 W., 498; (See Maeried Woman, for these two eases) ; Wheeler & W. Mfg. Co. v. Monahan, 63 W., supra; Hooser v. Hunt, 65 W., 71. 120. It is true this was not a purchase by the wife directly from the husband, as it was in the above cases, but a similar rule as to the nature and degree of the proof as to the purchase by a wife with her own money, should apply. (Rule changed by amdt. by eh. 86, L. 1895, of sec. 2342. Ripon H. Co. v. Haas, 157 W. post.) " —Gettelmcmn v. GHz, 78 W., 439, 442. 121. Where the equitable title to a lot was in the wife, and she allowed the legal title to remain in her husband ' because of business conveniences and considerations, ' without ' ' thought of defrauding any person, ' ' and the husband had substantially no other property, and having affirma- tively obtained credit on the strength of this title, it is held that as to other lots subsequently taken in the wife's name in exchange for this lot, she could not "be heard to assert such ownership against the superior equities of the plaintiffs", such creditors of the husband. 122. The fact that the husband did not himself assert such owner- ship, but referred the creditor "to a certain other person for the par- ticulars of his property and ' financial condition, ' ' who informed the creditor that the husband owned such lot, bound the husband with equal effect. (Cited approvingly, but distinguished by making affirmative statement of ownership and giving credit thereon, the gravamen of the estoppel, in Marston v. Dresen, 85 W., 530, 541, post, and Strong v. Gordon, 96 W., 476, 480.) —Hopkins v. Joyce, 78 W., 443, 445. 123. " ; By signing a joint note with her husband she clothed him with prima facie evidence of her intention to charge her separate estate,' " and "she sought not to be heard now to deny that apparent intention, as against an innocent third party who has advanced money upon the faith thereof." So held, and personal judgment against the wife ordered. See also Omissions. —Nelson v. McDonald, 80 W., 605, 608. 550 PROBATE AND GENERAL LAW, CODIFIED 124. A deed directly from husband to wife, "gave her only i equitable title to the land. Putnam v. Bicknell, 18 W. supra; Hannj v. Oxley, 23 W., supra ; ' ' and her grantee obtained no better title. 125. "That deed could not convey to her a separate estate under tl statute, for such estate must come from some person other than her hu band." The consideration here was merely "natural love and affection. 126. "That deed gave her an equitable interest in the strip as married woman, leaving the legal title and the possession in the husban Stroebe v. Fehl, 22 W., 337." (But, see amdt. of 1895, changing effec in Ripon H. Co. v. Haas, 157 "W. post). —Kinney v. Dexter, 81 W., 80, 8 127. "The statute of limitations does not run against a wife, ar presumption of payment by lapse of time does not prevail against he She ought not to be compelled to treat her husband as a stranger. Ar other policy would beget disagreement and distrust. Barnett v. ' Har barger, 105 Ind. 410; Dice v. Irvin, 110 Ind., 561." .128. (Discussed and upheld in Brader v. Brader, 110 W., post. 1 Charmley v. Charmley, 125 W., 297, 307, it is upheld but it is sa: that "we are constrained not to extend the doctrine thereof so as cover a cause of action not so arising" "out of a transaction betwet husband and wife.") 129. In a proceeding affecting property transactions between husbar and wife, and in fraud of the husband's creditors, decided against tl wife by the circuit court, the appellate court says : .130. "It is. said M. dealt in and managed all these stocks and not as his own, and not as belonging to his wife. If he did so, it will not affe her title. But he acted as her agent in what he did, and so they unde stood as between themselves. They were husband and wife, and had tl right to keep such a 'family secret', if it was one". And on the tesl mony of the husband and wife as to her ownership of the property, ar "that they had no intent to defraud his creditors," the creditors beir subsequent ones, the judgment of the circuit court was reversed. —Second Nat. Bank v. Merrill, 81 W. 151, 15 131. "The power of a married woman to bind herself at law is restricted one and limited to the making of such contracts and engag ments as are necessary or convenient to the use and enjoyment of hi separate estate. (Cases supra) ". 132. (Explained in Kriz v. Peege, 119 W. post, where it is said th "the statute gives them the same freedom to acquire separate estates t their individual contract as it does to unmarried women ' ', going f urth than the common law, or perhaps than above indicated)". 133. "The wife has not, (therefore), in our judgment, the power enter into an agreement of partnership with her husband, nor, as ft that matter,, with anyone else, if she has no separate estate, in respe HUSBAND AND WIFE 551 to which she can be considered as a feme sole, so as to bind herself at law". 134. "The principal purpose of the statute (married woman's) is to give the wife the power and rights of a feme sole as to her separate property, free 'from the disposal of her husband' and 'not liable to his debts'." 135. Contrary to the common law, "her right to enter into a partner- ship, if she has a separate estate, with a person other than her husband, is quite generally recognized, and is assumed to exist in Merchants' Nat. Bank v. Eaymond, 27 W. 569 ; 136. But we are not aware of any case where it has been held, under a statute in substance the same as our own, that she may embark her separate 'estate in partnership ventures with her husband". "The view we have taken of the statute is sustained by Lord v. Parker, 3 Allen, 127; (many cases) ;" and "is not in conflict with Krouskop v. Shontz, 51 W. supra, where the real estate upon which farming was conducted by husband and wife was her sole property, and she was held liable for that reason. No partnership was claimed to exist. ' ' 137. (Distinguished in Good Land Go. v. Cole, 131 W. post, as not extending to a case "in which she and her husband are corporators" in a corporation). —Fuller & F. Co. v. McHenry, 83 W. 573, 578. < 138. "The money received from Mrs. M's brother for board must be held to be the money of the husband, it appearing that the husband paid for the provisions and defrayed all household expenses. Hamill v. Henry, 69 Iowa, 752; Barnes v. Moore's Est., 86 Mich. 585". 139. They are not "the individual earnings of the wife", under see. 2343, and "she could not, as against his creditors, acquire title to them by gift from her hushand, unless, indeed, they were exempt moneys". ■ — Bloodgood v. Meissner, 84 W. 452, 455. ! 140. "The contest is between one of the husband's creditors and the wife, where the wife claims to hold the property in question by convey- ance direct from her husband, made after the indebtedness occurred. 141. In such case the wife has the burden of showing by clear and satisfactory evidence that she purchased and paid for the property out of her separate estate. Gettelmann v. Gritz, 78 W. supra. " 142. "The alleged release of dower and homestead rights is no con- sideration, for she cannot make such a release during coverture. Wilber v. Wilber, 52 W. 298 (See Dower); Leach y. Leach,. 65 W. 284 (See Widow)". 143. Nor can money given, without agreement of repayment, twenty years before, "be considered a . consideration as against the husband's creditors". — Le Saulnier v. Krueger, 85 W. 214, 216. 552 PROBATE AND GENERAL LAW, CODIFIED 144. A purchaser of land by the husband with the wife's money, creating a resulting trust, and out of the statute of limitations. See Implied Trusts. — Fawcett v. Fawcett, 85 W. 332. 145. A husband's creditors are not "entitled to receive payment of their claims out of the property accumulated, beyond the present needs of his family, by his skill, industry, and ability in managing and con- ducting the business ' ' ' 'as the agent of his wife ' ', especially ' ' where the husband has already been paid for his services, as agreed, by his wife ' '. —Mayers v. Kaiser, 85 W. 382, 394. 146. The case of Gettelmann v. Gitz, 78 W. supra, is cited and upheld, as is Hopkins v. Joyce, 78 W. supra, and distinguished, the conveyances being there upheld, as "there was no representation made by anyone, and the husband made the conveyance (to his wife) while entirely solvent", though the origin of the wife's separate estate was most "remarkable and exceptionable". — Marsion v. Dresen, 85 "W. 530, 541. 147. Where a wife, as a party, "offered her husband generally as a witness", an objection was properly sustained. 148. ' ' If there was any matter upon which the husband was a compe- tent witness, it should have been stated when the offer was made. Blabon v. Gilchrist, 67 W. 38". —Hoffman v. Joachim, 86 W. 188, 189. 149. The husband or wife acting as agent for the other may them- selves prove such agency. See Principal and Agent. —Roberts v. Northwestern N.Ins. Co., 90 W. 210, 212. 150. Wife 's evidence as the book-keeper, but not agent, of her husband relating to a contract entered by her in an account book. See Writings. —Hazer v. Streich, 92 W. 505, 508. 151. Husband and wife of a legatee or heir, in a proceeding to estab- lish a will, is not a competent witness. See Parties. — In re Valentine's Will, 93 W. 45, 52. 152. Letters between husband and wife, held privileged. See Privil- eged Communications. — Lanctot v. State, 98 W. 136, 138. 153. "When the relation of coverture has ceased, either from divorce or death, either party is a competent witness to such facts as came to his or her knowledge during coverture, even in the presence of the other, 154. If it be not by communication from the other which is confiden- tial or private in its nature. Crook v. Henry, 25 W. supra ; Bigelow v. Sickles, 75 W. supra. Such last named communications are still pre- served inviolate on the ground of public policy, but the rule goes no HUSBAND AND WIFE 553 further. Williams v. Baldwin, 7 .Vt. 503 ; McGuire v. Maloney, 1 B. Mon. 224." 155. On the question as to a gift of securities by his deceased wife, the husband was permitted to testify to seeing "the securities in a box in the bed chamber occupied by himself and the deceased the day prior to her death", as proper "because his knowledge was not acquired by any confidential or private communication from his wife. 156. There was no confidence reposed in him by the wife by reason of the marital relation, and this seems to be the test ' '. —Brown v. Johnson, 101 W. 661, 662. 157. Where a husband purchased lands in his own name, with his wife's money, as her agent, and reinvested and then conveyed to her, in good faith, it was held valid as an executed resulting trust, as against his creditors. See Implied Trusts. 158. The fact that he made large profits for her did not interfere, as "such increment can" not "be reached by the creditors of the husband. Mayers v. Kaiser, 85 W., supra; Ansorge v. Barth, 88 W., 553." — Martin v. Remington, 100 W., 540, 548. 159. A wife "in purchasing family supplies, was acting as agent of her husband ; 160. And hence any contract made by her (in such purchase) was in legal effect her husband's contract, and the rescission thereof could not affect her right in a tort action, ' ' resulting from eating diseased meat so purchased. — Haberman v. Gasser, 104 W., 98, 100. 161. While "a husband cannot screen the fruits of his own services and exertions under the mere name of another, be that other wife, son, or any one else, if those fruits of his labor are really his (Tripp v. Childs, 14 Barb. 85; Hyde v. Frey, 28 Fed. Rep. 819), 162. It has nevertheless been decided many times that if the enterprise is in fact that of the wife he may give or hire to her his skill and services, and the fruits of the enterprise will still be hers ; 163. That a man's labor cannot be coerced or controlled by his cred- itors, hut may be disposed of by himself, however insolvent he may be (cases supra; Aldridge v. Muirhead, 101 U. S. 397). These authorities insist on good faith". —Kendall v. Beaudry, 107 W., 180, 184. 164. "An agreement for voluntary separation is distinctly against such (legislative) policy, and for that reason must be held to be abso- lutely void." 165. An oral agreement, partly executed, by the husband, to assign an insurance policy to the wife, as part of an agreement to separate, "is contrary to the legal policy of this state, and' will not be enforced". — Bawm v. Bawm, 109 W., 47, 55. 554 PROBATE AND GENERAL LAW, CODIFIED 166. The rule of Second Nat. Bank v. Merrill, 81 W., supra, that the statute of limitations does not Tun against the wife is upheld, as a rule of property. —Brader v. Brader, 110 W., 423, 427. 167. "From early times the law has recognized the necessity of accepting the wife's testimony to prove personal assaults upon her by the husband, as an exception to the general rule excluding the wife from testifying for or against her husband. (Cases) ". —Goodwin v. State, 114 W., 318, 320. 168. Conveyance by an insolvent husband of realty and personalty to his wife, in consideration of the withdrawal of the wife 's action • for divorce, as not being "a valuable consideration paid out of her separate estate", held void as to creditors. (Overruled in Ripon H. Co. v. Haas, 157 W., post, as having overlooked the amdt. by ch. 86, L. 1895 to sec. 2342). —O^penheimer v. Collins, 115 W. 283, 286. 169. Where a husband and wife "purchased the mortgaged premises, and in the deed to them covenanted and agreed to assume and pay the mortgage as a part of the purchase price," it is held, that under amend- ments embodied in the statutes of 1878 as sees. 2340 and 2342, such agreement "is binding upon them, and that they are liable for any deficiency that may arise upon the foreclosure sale of the premises. 170. This is in harmony with the rule that a married woman without any separate estate may acquire land by purchase from a stranger entirely on credit, and bind herself for the payment of the purchase price. Dayton v. Walsh, 47 W., supra." See also Joint Tenancy. —Citizens' L. & T. Co. v. Witte, 116 W., 60, 62. 171. "The objection" as to the competency of a husband as a wit- ness, is held "not tenable, because the wife was defending in a repre- sentative capacity only. Strong v. Stevens Point, 62 W., supra." —Cordon v. SulUvan, 116 W., 543, 547. 172. Conveyance by husband without wife 's knowledge, ' ' is not per se fraudulent". See Fraud. —Richmond v. Smith, 117 W. 290, 293. 173. Land "was occupied, managed, and operated by her husband as the head of the family consisting of them and their children, as a part, of the farm on which they resided. 174. Such conduct by a husband with reference to real estate, the ostensible legal title to which is in the wife, must be referred to her title and be considered as her possession, in the absence of a showing to the contrary. (Cases) ". — -Hatch v. Lusignan, 117 W. 428, 433. 175. "The rule that neither husband nor wife can testify for Or against the other", is "confined to where the testimony, if given, would HUSBAND AND WIPE 555 be by one directly for or against the other, such other being a party to the litigation". — State v. West, 118 W., 469, 471. 176. As to a married woman without estate, acquiring an interest in a lease with her husband, for his benefit only. See Married Woman. —Kriz v. Peege, 119 W. 105, 120. 177. Where a husband "knowingly took", for debts owing to himself, "notes and mortgages in his wife's name", under sec. 2077, they "vested in" her and this "precludes him from recovering the debt as his". (Cases). ' — Meier v. Bel}, 119 W., 482, 486. / 178. The defendant being executrix of her father's will, held, that the testimony of her husband was properly excluded, he being, "offered as a witness generally in the case, and not as the agent of his wife". —Gwrrie v. Michie, 123 W. 120, 127. 179. Where a husband and wife signed a negotiable note, and exe- cuted a mortgage to secure the same, partly on her property and partly on his, the money being for the husband's use, and used by him in his business, 180. While "under her statutory power to contract with reference to her separate estate, she could make a perfectly valid mortgage thereon to secure this or any other debt, she could not bind herself to a legal liability by the mere promise to pay. ( Cases) ' '. 181. And ' ' she is under no such liability for the indebtedness repre- sented by this note, and the plaintiff is not entitled to any personal judgment against her for any deficiency". —Loizeaux v. Fremder, 123 W: 193, 200. 182. ' ' Prima facie, a woman living separate and apart from her hus- band has no power to bind him, 183. And it is incumbent upon the person furnishing necessaries to a wife so living apart from her husband to show- that she is so living for justifiable cause. (Citation) ". So held here, as to wife's physician bill. 184. "The general rule is that the testimony of the wife is admissible in an action brought against the husband to recover for necessaries fur- nished her." — Morgenroth v. Spencer, 124 W. 564, 566. 185. "We are not aware of any statute varying the common-law lia- bility of a husband to support his wife". 186. "The liability of a husband for the support of his wife by com- mon-law rules only requires him to do so in the matrimonial home, selected by him, — acting reasonably, — 187. Unless she is compelled to seek or accept support elsewhere because of his willfulneglect or refusal to perform his duty or her living apart from him by his consent. 556 PROBATE AND GENERAL LAW, CODIFIED 188. Generally speaking, the duty of the husband for the mainten- ance of his wife'does not extend to the support of her while she is away from his home. (Cases)". 189. Held, that a husband is not liable for the support of his wife, when taken "by due process of law" and confined in an asylum for the insane. (Subsequently changed by amdt. of Ch. 376 L. 1905 to sees. 604e and 604q.). —Bichardsm v. Stuesser, 125 W. 66, 71. 190. "When the marital status has terminated, the former wife is under no disqualification merely because her former husband or his estate is party to 1;he suit. (Cases). 191. Her Competency is only limited by sees. 4069, 4072; the former excluding testimony of a party as to transactions with the deceased in certain cases, and the latter prohibiting disclosure of confidential com- munications^ — 192. Probably, also, an opinion based wholly on such excluded trans- actions or communications. In re Hunt's Will, 122 W. 460 (See Privil- eged Communications). 193. But defendant (wife and executrix of her husband's estate) could have testified to acts, conduct, or transactions had by the deceased within her observation, if wholly unparticipated in and uninfluenced by her. (Many cases). 194. After narrating such acts, conduct, or conversation, she could have testified to her mental impressions as to decedent's competency derived therefrom. (Cases)." — Schultz v. Culbertson, 125 W. 169, 172. 195. As to payment of mortgage on homestead by wife, and repayment being barred as not a transaction between husband and wife. See Claims. Limitation of Actions. — Charmley v. Charmley, 125 W. 297, 303. 196. "In any situation, where an evidentiary fact is material as regards a party to an action, and the wife of such party acted as his agent in regard to the matter, her acts within the scope of her agency may be testified to by her. (Citations) ". —Schwantes v. State, 127 W. 160, 185. 197. "When a wife contracts an indebtedness on her own credit, then the mere promise of the husband to pay it is of no greater dignity than any -promise without consideration to answer for the debt of another. ' ' 198. If the "wife, assuming to act as his agent, ordered the books from respondent and received them, and he subsequently, with knowl- edge of the facts, adopted her act as his own by promising to pay for the property, or by accepting the benefit of the transaction, or in any other way, he thereby became liable for the indebtedness". HUSBAND AND WIFE 557 199. "If the wife signed the appellant's (husband's) name, assuming to act as his agent, ; and he afterwards adopted her act, the contract became, in legal effect, his from the beginning and was enforceable as such". * 200. A 'set of Stoddard's Lectures' are held "not necessaries". —Schuman v. Steinel, 129 W. 422, 426. 201. "The term 'adult persons', as used in sec. 1771, includes a mar- ried woman," and "she has the right to be a corporator of a corpora- tion". "The fact that" she "was a corporator", even though her husband was also one, "does not affect its legal existence". —Good Land Co. v. Cole, 131 W., 467, 471. 202. Husband is bound to support the wife, and cannot recover there- for on express or implied contract. See Marriage Contract. +-Ryan v. Dockery, 134 W., 431, 434. 203. A claim by the husband "that hepaid off a lien (mortgage) and , expended other moneys for the benefit of his wife 's property during her life and supposed he was a joint owner", "constitutes no claim, legal or equitable, against the real estate in question", it being "presumed to be expended for her benefit. ( Citations) ' '. —Scheiner v. Arnold, 142 W. 564, 569. 204. A wife is a competent witness for a co-defendant of her husband who has merely a representative or nominal interest. See also Parties. — Robinson v. McGinnis, 145 W. 476, 477. 205. "In the case of Stickney v. Stickney, 131 U. S., 227, the rule is well stated:" " 'We think that whenever a husband acquires possession of the separate property of his wife, whether with or without her con- sent, 206. He must be deemed to hold it in trust for her benefit, "in the absence of any direct evidence that she intended to make a gift of it to him'." Followed, as to money. — Harter v. Holman, 152 W., 463, 464. 207. "The general rule that the wife cannot testify on her husband's behalf, except as to matters in which she acted as his agent", "has been laid down and followed by this court since a very early day. (Cases) ". 208. "The introduction of competent evidence by the defendant as to his interviews with the wife (of plaintiff) can make no difference with the rule", nor make her evidence thereof competent. 209. A contract between the husband and defendant to pay the latter to aid the former in a reconciliation with his wife ' ' was a perfectly legal contract" and "laudable", 558 PROBATE AND GENERAL LAW, CODIFIED 210. And the fact that defendant with the husband, practicec "deceit" as to the amount of the husband's property, as an "induce ment for reconciliation", could not "deprive the defendant of the fruiti of his labors". —Kiepert v. Nugent, 153 W. 127, 129 211. The words 'living together', as to husband and "wife, under th< industrial commission act, ' ' was intended to cover cases where no breal in the marriage relation existed, and therefore physical dwelling together is not necessary". 212. ' ' There must be a legal separation or an actual separation in the nature of an estrangement, else there is a ' living together ' ' '. 213. So held as to an Austrian who had been here three years, leaving his wife in Austria, to whose support he had been contributing. — Northwestern I. Co. v. lnd. Com., 154 "W. 97, 102. 214. The rule of Harter v. Holman, 152 W. supra, as to implied trust in the husband of his wife's property received by him, is followed as to moneys received "in various ways". 215. "As applied to personal property it has a very general applica- tion, but trusts in real estate are of course all subject to the provisions of the statute", sees. 2077-79, and held not to apply to a joint deed. 216. "Trusts in personalty may be created by parol and are not affected by the statute of uses and trusts. (Citations) ". See also Joint Tenancy. —Friedrich v. Huth, 155 W. 196, 200. 217. The rule of Horton v. Dewey, 53 W. 410 (See Married Woman), and other cases prior to the amendment, that "a deed from a husband to his wife of real estate was void because the wife could not take by gift or grant from her husband", 218. Was changed by the amdt. of ch. 86, L. 1895 to sec. 2342, which "not only removes the disability formerly existing and allows married women to take by gift or grant from their husbands, 219. But with regard to a conveyance, transfer, or lien executed by the husband to the wife makes the same valid to the same extent as between other persons". 220. And it now makes "the question of fraud in a conveyance from husband to wife one of fact and not of law. Sec. 2323 ; Hyde v. Chap- man, 33 W. 391". —Bipon H. Co. v. Haas, 157 W. 466, 470. 221. Where the husband "was on his own behalf making the contract to do the work with the help of his wife", though when he "made the contract he spoke of both, he and his wife, doing the work," and "both were present when the contract was made and the talk was that 'they' ", ' ' would stay with the deceased and take care of him ' ', — it is held : 222. That he "should be compensated for the services rendered by his wife", and that the money for her services "was not the individual IMPEACHMENT OP WITNESSES. CREDIBILITY 559 earnings , of the wife (under sec. 2343), but belonged to her husband under his contract with deceased R. Emerson-Talcott Co. v. Knapp, 90 W. 34". —Rockwell v. Est. of Robinson, 158 W. 319, 321. 223. "That a wife may take title to property from her husband and hold it as her sole and separate estate is provided by sec. 2342 ' '. —Pfingston v. Pfingston, 164 W. 308, 311. 224. "Upon assuming the relationship of husband and wife the law requires the husband to support and provide for his wife, such require- ment being grounded upon principles of public policy, and the husband cannot shirk it even by an express contract with his wife. (Cases) . ' ' 225. "While it is true that the wife may lawfully employ her hus- band as agent or servant in the management of her separate property, 226. Yet where, as here, such contract would necessarily include so much of that which the husband is required by law to do for his wife without compensation, there ought to be a very substantial showing of any such agreement subsequent to marriage". See also Services. — Est. of Svmonson, 164 W. 590, 594. HYPOTHETICAL CASE. See Expert Testimony. ILLEGAL CONTRACTS. See Unlawful Contracts. ILLEGITIMACY. See Legitimacy. IMBECILE. See Incompetents. IMPEACHMENT OF WITNESSES. CREDIBILITY. Account booljs verified, 1. ■ Avocation of witness, 19 Admitted facts potent for, 42. "Believe him under oath," 2. No direct testimony against, 43. Court not bound to accept, 44. Adverse party, for examination, 55. Credibility : Attendant circumstances, 44. Credibility set forth, 34. 560 PROBATE AND GENERAL LAW, CODIFIED Credibility — continued Credit of adversary party, 36. May not impeach own witness, 33, 40. One witness, overcome several, 38. Party may show fact different, 35, 39. Produced by either party, 31. Independence of witnesses, 33. Not a criterion, 31. Purposes immaterial, 32. Crime: charge only of, 18. Cross-examination as to, 53. Procedure to so discredit, 53. Foundation for: Apprise witness exactly, 25. Insufficient to produce record, 24. Only proper, when material, 50, 51. Proved only as questioned, 26. Question, immaterial matter, 49, 50. Witness entitled to admit, 26. General reputation: Interrogatory propounded, 2, 6, 7. General reputation only, 5. Second question, 2, 6. Intervention, other residence, 47. Living in neighborhood, 20. Truth and veracity, 2, 7. Twenty-two months before, 46. Illegitimacy; bastardy, 45. Immaterial to issue, 14. Inherently improbable, 44. Intoxication, affected by, 41. Judgment, collaterally, 3. Official certificate, by official, 52. Order, collaterally, 4. Parties' testimony: Credibility determined, 17. Interested in result, 16. Not verities in case, 15. Party calling not impeach, 8, 33, 40. Mistaken, or unworthy, 10. Truth of particular fact, 9, 39. Personal animosity, 56. Foundation to be laid, 57. Preponderance : May not go with numbers, 38. Statements out of court, 11. Credibility from oath, 37. Evidence, when a party, 13. Foundation, must be laid, 27. But not to party, 29. Even as to an agent, 28. Impeaching credibility, 11, 12, 22. Not impeach own witness, 40. Show fact different, 39. Only evjdence on issue, 12, 48." Witness first interrogated, 23. Testimony of witness himself, 30, 54. Impeaching him, 30, 54. 'Uncontradicted testimony, 21. Court not bound to accept, 43, 44. Inherently improbable, 44. Not liable to question, 21. 1. Party swearing to his own account books, under sec. 4186, cannot be impeached. (See also approval in Winner v. Bauman, 28 W. 563, 566, under Account Books). — Winne v. Nickerson, 1 W. 1. 2. A witness "had stated that he knew his (a witness's) general repu- tation for truth, among his neighbors, and that his general character was bad." Held that having so testified he should have been permitted to answer whether "he would believe him under oath". — Wilson v. State, 3 W. 798, 804. 3. Judgment cannot be impeached collaterally if there had been juris- diction originally. See Judgment. — Woodward v. Hill, 6 W. 143, 148. 4. An order cannot be impeached collaterally merely because "made improyidently, or in a manner not warranted by law, etc", if jurisdic- tion was? had. See Collaterally. —Tollman v. McCarty, 11 W. 401, 406. 5. In the impeachment of a witness, "the interrogatory propounded to the impeaching witness should have been restricted to the general reputation for truth and veracity of the witness sought to be impeached. ' ' IMPEACHMENT OF WITNESSES. CREDIBILITY 561 6. "Greenleaf, * says that the regular mode in such eases is, to inquire of the witness whether he knows the general reputation of the person in question among his neighbors, and what that reputation is. It is understood that the latter part of the question is not admissible unless the witness testify that he is acquainted with such reputation". 7. But it is held that the question "is still an open one here", and indicated that "the interrogatory put to an impeaching witness should be restricted to the general reputation for truth, and veracity of the witness sought to be impeached". —Wilson v ; Ymtig, 31 W. 574, 577. 8. "The general rule doubtless is, that a party calling a witness to prove his case, will not he permitted, because the witness gives testi- mony adverse to him, to show that the witness's general reputation for truth is bad". 9. But it is held, as an exception, according to "Greenleaf: 'It is exceedingly clear that the party calling a witness is not precluded from proving the truth of any particular fact, by any other competent testi- mony, in direct contradiction to what such witness may have testified ; 10. And this is not only where it appears that the witness was inno- cently mistaken, but even where the evidence may collaterally have the effect of showing that he was generally unworthy of belief'.. 1 Green- leaf, Ev. Sec. 443". -^Smith v. Ehmiert, 43 W. 181, 182. 11. "The credit of a witness may be impeached by showing that he has made statements out of court contrary to what he had testified to at the trial ". " All text writers treat of it as one of the established methods of impeaching the credibility of the testimony of the witness. , (Cita- tions) "'. 12. "The unsworn statements of a mere witness in the case, given in evidence to impeach his credibility, are not received as evidence to prove either side of the issues in the ease, but to cast doubt and suspicion upon the truthfulness of the contradictory statement made by the wit- ness under oath ; ' ' 13. But when the witness ' ' is also a party to the action, such unsworn statements are received, not only for the purpose of attacking the credi- bility of the sworn statements of the party, but for the purpose of estab- lishing the truth of the unsworn contradictory statements themselves". —Warder v. Fisher, 48 W. 338. 344. 14. The rule, "that When a witness is questioned as to a matter which is not material as evidence tending to prove the issues in the case, his statements as to such matter cannot be contradicted by way of impeach- ing the credibility of the witness, is undoubtedly the true rule. 3 Wait's Pr. 140, and eases cited". —Kaime v. Trustees of Omro, 49 W. 371, 373. 15. The statements of parties, especially where "in some material particulars jthey are contradicted by other witnesses", "are not neces- sarily verities in the case". Zimmerman — 3 6 562 PROBATE AND GENERAL LAW, CODIFIED 16. "They are most deeply interested in the result ofthe litigation, and their testimony may he more or less influenced thereby. It is a circumstance to be considered". 17. ' ' Their credibility is to be determined ; and no tribunal is so competent to determine it as the trial court before which they, and all of the witnesses, gave their testimony in person". —Stewart v. Stewart, 50 W. 445, 448. 18. "It was not sought to prove a conviction of an infamous crime to impeach the witness, and a charge of crime is not in itself impeaching evidence ' ', though such charge is of record in a court. — McKesson v. Sherman, 51 W. 303, 311. 19. A "witness should not be discredited merely because" of his "avocation, if it be a lawful one". See Witnesses. —Connolly v. Straw, 53 W. 645, 651. 20. An impeaching witness is competent to testify as to the truth or veracity, without living in the neighborhood of the witness to be impeached. —Wallis v. White, 58 W. 26, 29. 21. "Testimony which is uncontradicted, and from a witness unim- peached, and which is not liable to any question by any of the rules or tests of credibility known to the law", cannot be rejected and ignored. — Engmcmn v. Est. of Immel, 59 W. 249, 252. 22. The rule is "well settled that you may impeach the credibility of a witness by showing that he has made statements out of court different from those made by him on the stand as a witness, 23. When the witness is interrogated as to such statements while on the stand as a witness, so as to enable him to explain, if he can, why such statements were made, or to deny the fact that they were made". —Welch, Admr. v. Abbot, 72 W. 512, 515. 24. Counsel asked a witness "if he was ever arrested for fast driving at B., and then offered to prove that the witness pleaded guilty to the violation of an ordinance of that city against fast driving, before a jus- tice of the peace, on the fourth day of January, 1889. " " The question asked was not a sufficient foundation for the introduction of the record to contradict the witness." 25. To impeach the witness, "it was necessary to lay the foundation for such a contradiction by first asking the witness if such an event occurred at a certain time and place, and the particulars thereof, so as to apprise the witness of just what they ought to show. 26. If he then denies it, it may be proved precisely as it is stated in the question, and not otherwise. The witness should have the privilege IMPEACHMENT OF WITNESSES. CREDIBILITY 563 of admitting it just as it occurred. . The rule is a familiar one, and unquestionable. Hinton v. C. C. R. Co., 65 W.' 323 ; 1 Greenl. Ev., sec. 462." —Sieber v. Atnunson, 78 W. 679, 681. 27. A witness can "not be impeached by showing that he made state- ments out of court in conflict with his testimony in court, without laying the foundation therefor by pertinent questions to" him. Welch v. Abbot, 72 W., supra. 28. ' ' So stringent is this rule that it extends even to the declarations of an agent not constituting a part of the res gestae. Stone v. N. W. Sleigh Co., 70 W., 585 : 29. But it is firmly established, and in fact elementary, that no founda- tion need be laid for proof of the admissions of a party against his own interest. Wis. Planing Mill Co. v. Schuda, 72 W., 277". —Hunter v. Gibbs, 79 W. 70, 72. 30. The scrivener, being a subscribing witness and executor named in the will, was held to have impeached his own testimony. See Testa- mentary Capacity. — Loughney v. Laughney, 87 W. 92, 101. 31. "The consideration that the witness was produced by one -party rather than the other was never deemed a criterion of the credibility of his testimony or the weight to which it is entitled. 32. It does not bear on the question of the credibility of his testimony that the party who produces him is held, for another purpose, to repre- sent him as a witness whose testimony is entitled to credence. 33. The purpose of the rule is to protect the independence of the witness. It prevents the party producing the witness from impeaching a witness whose testimony disappoints his expectation. 34. But the credit which is due to his testimony depends on his char- acter and intelligence, on his relation to and interest in the case, on his manner of giving his testimony, and on those considerations generally which are applied to determine the proper credit due to the testimony of witnesses, and not at all upon the consideration which party may produce him". 35. "The party producing the witness may always show the fact to be different from the statement of the witness. 36. And the rule as to holding out of the witness as one worthy of credit does not apply in its full rigor where the adversary party is the witness called." So applied. Newman, J. —Gamey v. Katz, 89 W. 230, 231. 37. "There is no such rule of law as that one who has previously made a statement, even purposely false, but out of court, of the matter in controversy, shall not be believed when he testifies, under oath and in court, to a different version of the same matter. It is considered that 564 PEOBATE AND GENERAL LAW, CODIFIED some element of credibility is imparted to the statement of the witness by the confirmation of his oath". 38. "No witness is, as a matter of law, altogether discredited because several witnesses have testified to a version of the affair which is incon- sistent with his testimony. The preponderance of the' proof may be with the one witness. Preponderance may not go with numbers. This has often been held". —O'Brien v. C. & N. W. B. Co., 92 W. 340, 343. 39. "While a party may show that the testimony of his own witness is incorrect or false in a matter material to the issue, 40. He cannot be allowed to impeach such witness by direct testimony either of his bad reputation or veracity, or that he testifies to one thing in court and asserts the falsity of it out of court. This rule is elemen- tary." Richards v. State, 82 W. 172, 180. —ColUns v. Hoehle, 99 W. 639, 647. 41. "Intoxication naturally tends to stupefaction, — impairing the mental faculties, including the memory, — and may exist to such a degree as necessarily to affect a man's capacity for business or his credibility as a witness. Gore v. Gilison, 13 Mees. & W. 623 ; Matthews v. Baxter, L. R.8 Exch. 132; 2 Greenl. Ev. 300, 374; Terrill v. State, 74 W. 286, 287". —Kuenster v. Woodhouse, 101 W. 216, 219. 42. "Admitted facts are sometimes just as potential to impeach a wit- ness as positive testimony. 43. A court is not bound to accept a statement as true because there is no direct testimony contradicting it. 44. It may be inherently improbable, or it may be impeached by the attendant circumstances. Courts are never bound to accept the state- ment of a witness which is against all reasonable probability. Roth v. Barrett, Mfg. Co., 96 W. 615 ; Groesbeck v. C. M. St. P. Ry. Co., 93 W. 505." — Zimmerman v. Bannon, 101 W. 407, 412. 45. "The fact of a woman's illegitimate pregnancy or of her making complaint for bastardy is" not "admissible as bearing upon her credi- bility" as a witness, under sec. 4073 or otherwise. (Citations). —Goodwin v. State, 114 W., 318, 323. 46. "We cannot doubt that a general reputation established and exist- ing twenty-two months before is not so remote as to be inadmissible on that ground alone". • (Many cases). 47. Nor is it inadmissible merely because of "the intervention of the subsequent residence, and establishment of a provable reputation there". — State v. Knight, 118 W., 473, 477. 48. "It is never admissible to attempt to impeach a witness by show- ing contradictory statements out of court, having no relevancy to any IMPLIED TRUSTS 565 of the issues in the case. (Citations.)" So held, on the question of credibility of the witness. — Barton v.. Bndey, 119 W., 326, 327. 49. "It is not reversible error to rule out a . question asked to lay the foundation for impeachment when it refers to immaterial matter. (Cita- tions) . 50. Every such question, upon objection being made, presents for con- sideration whether the statement suggested thereby to have been made and to be inconsistent with one made on the trial, is material. ' ' 51. "Of course, if the subject of the interrogatory is material", the trial judge "has no discretion as to whether or not to permit the founda- tion for impeachment to be laid, — it is a matter of absolute right, not a mere privilege. .Jones Ev. 855." — III. S. Co. v. Jeka, 123 W. 419, 431. 52. The testimony of a notary, "to falsify his own official certificate-", held admissible, but to "receive little weight". See Undue Influence. —Winn v. Itzel, 125 W. 19, 25. 53. As to cross-examination to discredit a party, not being different than as to other witness. Questions as to conviction of crime. See Cross- Examination. — Schwantes v. State, 127 "W. 160, 182. 54. As to a physician subscribing witness impeaching himself. See Testamentary Capacity. — Will of MnellenscMader, 128 W. 364, 372. 55. Held that "there was no error in the ruling", allowing counsel "to ask impeaching questions" of an adverse witness called by him for examination under sec. 4068, — the question here being as to his evidence on the former trial. — Sadowski v. Thomas F. Co., 161 W. 86, 89. 56. Testimony that a witness "made a remark indicating personal animosity against" a party, "was admissible for purposes of impeach- ment only, 57. And not then unless the foundation for it had been already laid by calling the attention of the witness sought to be impeached to the par- ticular statement claimed to have been made and asking him whether he made it. Ferguson v. Truax, 136 W. 637 ". —Pfeiffer v. C. & M. E. B. Co., 163 W. 317, 321. IMPLIED TRUSTS. See also Trusts. County Court; implied trust,' 23. Frauds statute, not apply, 1. Jurisdiction thereof, 24. Heir induced decedent, 14. Established by parol, 15. Heir profits by intestacy, 14. 566 PKOBATE AND GENERAL LAW, CODIFIED Heir induced, etc. — continued Property impressed with trust, 14. Refrain from disposing of, 14. Reliance by decedent on heir, 16. Husband uses separate est., 17. Trust implied: consent, 17. Investment, another's money, 18. Clearly traced thereinto, 19. Innocent persons; dealing, 20. In own name; trust, 18. Recovered out of property, 19. Statutory exception, 21. Limitation statute: Property surrender essential, 6. Resulting trust; effect same, 7. Since denial or repudiation, 5. Technical, continuing trust, 8. Trustee of express trust, 5. Realty, with wife's money, 2. As agent of the wife, 9. Deed in husband's name, 2, 9. Realty, etc. — continued Fully executed; consideration, 10. Heirs' rights the same, 4. Laches; twenty years, 3. Limitation statute, effect, 7. Not enforceable under statute, 10. Resulting trust in wife, 3, 10. Sold and reinvested, 9. Was an extreme case, 13. Wife estopped; joint fraud, 12. Resulting trusts: Abolished by statute, 11. Against creditors of trustee, 11. Executed by trustee, 11. Valid, absence of fraud, 11. Voidable trust, 11. Widow against husband's extr., 22. Institute in county court, 23. Legal claim; to establish trust, 22. Pending administration, 22. 1. "The provisions of the statute of frauds do not apply to implied trusts, or those which are raised or created by operation of law, and not from the agreements or contracts of the parties, which would render the trusts express. The latter come within the intention and words of the statute which requires that all such agreements shall be in writing, but the. former are not affected by the statute". —Whitingi v. Gould, 2 W., 552, 585. 2. "Where a husband purchased land with his wife's money, took a deed in his own name contrary to her directions, which she discovered the next year and at once requested that the title be vested in her,, but he neglected so to do, and they together occupied the land as a homestead until his death more than twenty years thereafter, and he in his will gave his property in general terms to his widow and heirs, and it does not appear that he ever asserted his or denied her ownership of this land, it is held, — 3. That, "under the circumstances", laches should not be imputed to her, and that "she is entitled to enforce a resulting trust in the land", and had the absolute title. 4. '.'The heirs of her husband have no greater equities against the en- forcement of the trust than her husband would have had". 5. "It is now thoroughly well settled," "that as between a trustee of an express trust cognizable only in a court of equity, and his cestui que trust, concerning matters connected with the trust relation, no statute of limitations, nor any bar of analogy thereto, can be relied upon to de- feat the execution of the trust, unless the full period of limitation has elapsed since the denial or repudiation by the trustee of the trust obliga- tion". 6. As this, as "stated by Mr. Justice Gray in Speidel v. Henrici, 120 IMPLIED TRUSTS 567 U. S. 377, 386", is 'because the possession of the trustee is presumed to be the possession of the cestui que trust', hence "to set the statute running against such a trust a surrender of the trust property is essential" to make a repudiation effectual. 7. "We find in this resulting trust every element which operates to take an express trust out of the statutes of limitation", and it is logically so held. 8. (In Merton v. O'Brien, 117 W. 437, 440 (See Limitation of Actions) after citing this and many other cases, the court concludes that, — "It must therefore be considered as settled in this state that a trust which is to be held exempt from the operation of the statute must be (1) an express trust and (2) a technical and continuing trust, cognizable only in a court of equity"). See also Laches. —Fawcett v. Fawcett, 85 W. 332, 335-7. 9. Where the husband as her agent purchased lands with his wife's money; taking title in his own name, and sold and reinvested in other lands, which investments became very valuable, and then conveyed the same to the wife, it is said, — 10. ' ' That thereby there arose a resulting trust in her favor in all the property to which her husband had record title, which trust, though not enforceable under our statutes (sec. 2077), has now been fully executed by the husband without fraud, and forms a good consideration for the conveyances". (Cases). 11. "It is true that such trusts are abolished by sec. 2077; but it is still held that if the trustee voluntarily carries out and executes the voidable trust by conveying the property, as he is morally bound to do, such i conveyance will be founded upon a sufficient consideration, and, in the absence of fraud, will be valid even as against creditors of the trustee. Hyde v. Chapman, 33 W. 391 ; Begole v. Hazzard, 81 W. 274 (see Parol) ". So held, here, as against the husband's creditors. — Martin v. B&mngton, 100 W. 540, 546. 12. On the facts, including "that she (the wife) was engaged in an effort to assist her husband in evading his creditors", "and to obtain a fictitious basis of credit", the wife is held estopped from claiming title by reason of a trust on account of money furnished by her. 13. Martin v. Remington, 100 W., supra, "was an exxtreme case, and the rule stated therein was carried as far as the court is disposed to go". —YcmDusen v. Him, 108 W., 178, 180. 14. Where the heir induced decedent to refrain from disposing of one half of her property to a third party, and to make a different ineffective attempt at such disposal, it is held that the land,— descending to such heir in view of intestacy and of such failure by reason of "fraud in pre- venting decedent from effectuating" Such transfer,— may be impressed 568 PKOBATB AND GENERAL LAW, CODIFIED with "a trust on the property of her estate" in favor of the intended beneficiary. Brook v. Chappell, 34 W., 405 (See Trusts). 15. "The creation of such a trust and its establishment by parol evi- dence" is "not in violation of the rules of law providing for the transfer of an interest in property in writing". Hoge v. Hoge, 1 Watts. (Pa.) 163. 16. " 'It must always appear that the decedent relied upon the promise of the heir or devisee as an effective arrangement for the future disposi- tion of his property.' 'If the decedent did not rely upon the promise there is no fraud and the trust fails.' " Whitehouse v. Bolster, 95 Me., 458. —Tyler v. Stitt, 132 W., 656, 660. 17. An implied trust is created in favor of the wife, where the hus- band uses her separate estate, "with or without her consent". See Husband and Wipe. — Harter v. Holmcm, 152 W., 463, 464. 18. "It is a familiar principle that if a person has money of another and, without the consent of such other, invests such money in property and takes title in his own name, such property is impressed with a trust, denominated an implied or constructive trust, in favor of such other, 19. And money so fraudulent used can be recovered out of such prop- erty, subject only to the condition that it must be clearly traced thereinto, 20. And that the rights of the persons who may have dealt with the property in good faith and without fault, supposing such person to have had, in fact, the relation thereto which he assumed to have, must be deemed paramount to the rights of such other. 21. The statute, sec. 2079, expressly excepts such common-law trusts from the terms of the written law on the subject of uses and trusts. (Cases)". 22. In an action by a widow against her husband's executor, pending administration, for both a legal claim and to establish such trust in the property of the deceased derived from the use of her funds, it is held, — . 23. That such proceeding should have been instituted in the county court, where all having interests therein ' ' are parties to the proceedings to settle the estate," 24. And that "all matters involved are within the jurisdiction of the county court and there are no very good reasons why that court should not deal with them as part of the administration of the estate". See also Jurisdiction. — Wisdom v. Wisdom, 155 W., 434, 437. IMPROVEMENTS. See Permanent Improvements. INCHOATE DOWER. See Dower. INCOMPETENTS INCOME. See Rents and Profits. Teust Funds. 569 INCOMPETENTS. See also Accounts op Guardians. Guardian and "Ward. Incom- petents' Sale of Realty. Insane Persons. Testamentary Capacity. Adverse party : Proposed guardian is not, 23. Aggrieved person: Guardian ad litem is, 38. Proposed guardian is not, 23. Relative or friend who petitioned, 50. Son with contested transfer, 38. Costs and expenses: Adjusted by county court, 14. Costs against ward, improper, 14. Incurred in the three courts, 14. Out of estate; attorneys' fees, 14. Evidence : Adjudication of unsoundness, 18. Direct evidence, 18. • How admissible as to prior, 20. No evidence of prior thereto, 19. Presumptive, subsequently, 18. Ward's evidence prior to, 21. Affecting transfer, 21. Expert, weak and inconclusive, 46. Not against direct evidence, 48. Though positive, dogmatic, 47. Ill treatment of subject, 28. Premature finding as to contract, 39. Undue influence to obtain deed, 28. Vendor 's, as to vendee 's title, 22. Ward's charge of wife unchaste, 10. Gen'l reputation of wife, 11. Husband's knowledge thereof, 12. Wife's evidence; not party, 13. Guardianship rules: Care of health and person, 45. Experts, weak and inconclusive, 46. , , ,Npt against direct evidence, 48. Though positive, dogmatic, 47. Guardianship upheld,' 43. Incapability, satisfied statute, 34. Insane hallucinations, 45. "Mentally incompetent," means, 31, 44. Not for physical, but mental, 53. Not imbecility or insanity, 30, 33, 34. Guardianship rules — continued Prior decisions given effect, 41. Reversal rule stated, 42. Statutory conditions, exist, 29. Substantially total, must be, 32/ Insane: aetion in own name, 40. Intoxicants exclusively: Contracts as in insanity, 52. "Drunkenness," legally defined, 51. May yet convey property, 26. Mentally unsound at time, 27. Jurisdiction : Attend at court, if able, 36. Guardianship proc. statutory, 3. Must show; fact of proc, 4. Notice, children custodian, 36. Petition and verification signed, 5. Amend after judgment, 6. Jurat not signed, 5. v Nunc pro tunc, invalid, 6. Petition insufficient, 5. Statute strictly construed, 3, 36. Otherwise proc. void, 3. What petition should state, 1, 35. Held sufficient without, 2, 35. Very general petition upheld, 1. Pauper incompetent: Father to handle money, 15. Petition. See also Jurisdiction. Application of friend, 7, 49. Friend, conditions, when, 7. Relatives should apply, 8, 49. Property of aged people: Clear evidence of inability, 25. Courts hesitate to interfere, 24. Inadequate farm rental, 25. . Ward, appear and defend, 9, 37. _ Guardian ad litem, when, 37. Weak-minded adult: Child treated as a minor, 16. Control of father; at home, 17. Father must care for, 17. Owes service to father, 17. 570 PEOBATE AND GENERAL LAW, CODIFIED 1. While the petition for guardianship, though very general, is held sufficient, it is said: "We think it would be the better practice to require the petitioner, in all cases of this kind, to state fully the name of the per- son with whom the supposed insane or incompetent person is living, if living with anyone ; who are his relatives, if he have any living ; what his estate consists of, and who has charge of it ; so that the county court may act with a full knowledge of those interested in his welfare and estate, and may cause notice to be given to them of the application, if it shall deem such notice necessary or proper. 2. But we are not prepared to say that a petition which fails to contain these matters is not sufficient under the statute to give the court jurisdic- tion to proceed in the matter. ' ' 3. "The proceeding, so far as the jurisdiction of the county court is concerned, is purely statutory ; and as it is one involving the rights of both person and property, according to all rules of law applicable to such proceedings, the statute must be strictly followed, or the court or officer exercising the authority will not obtain jurisdiction, and the pro- ceedings will be void." 4. ' ' The rule in such cases is, that the requirements of the statute must appear to have been strictly complied with upon the face of the proceed- ings ; and no inferences are indulged in in support of the proceedings. ' ' 5. In this case where the petition was properly signed by the petitioner, who also signed the verification, but ' ' the jurat not being signed by any person, the presumption of law is that it was not sworn to", and the petition was held insufficient to give jurisdiction. 6. Where the county judge, after judgment, signed the jurat nunc pro tunc and added a memorandum that the petition was sworn to before him at its date but that by inadvertence he "omitted to sign the jurat at that time," he so amending "without any application by either party", it is said: "We think it would be unsafe to allow courts of limited and special jurisdiction to so amend their proceedings", and neither the county court so obtained jurisdiction nor the circuit court thereafter on appeal. 7. The court is "inclined to think that under the statute the county court should not proceed to the appointment of a guardian", "when there are near relatives of the person, with whom he resides, or who have the care of him, on the application of a friend, unless it appears from the petition that there is some good reason why the application is not made by such relatives. 8. The statute, we think, contemplates that the relatives shall make the application, when there are any in the immediate vicinity of the insane or incompetent person ; and this should be so, especially when the court proceeds to appoint a guardian of the person of one insane or incom- petent." p. 624. 9. ' ' We can see no reason why a man who is proceeded against as an insane or incompetent person, under the statute, is not the proper person to defend against the proceeding ; and until he is finally adjudged to be INCOMPETENTS 571 insane or incompetent, he may appear by his attorneys as any other per- son. Cunio v. Bessoni, 63 Ind. 524." — Appeal of Royston, 53 W. 612, 618. 10. On the evidence, it was held that the ward had no sufficient grounds for promiscuously charging that his wife was unchaste and "that he was the victim of insane delusion." 11. In the contest on guardianship, "the learned circuit judge properly excluded all testimony of the general reputation" of the wife, 12. "But admitted all testimony offered of everything her husband knew or had ever heard concerning her chastity". 13. In this case the supreme court say that "whatever the rule may be, we have disregarded the testimony of" the wife, but says that "it would be a cruel rule which seals the lips of a wife when her chastity is im- peached, merely because her husband happens to be a party to the pro- ceeding in which she is assailed, while (s)he is not". 14. ' ' The county court, on a proper showing, 'should adjust the reason- able expenses of both. contestants in that court, in the circuit court, and in this court (which includes services of attorneys) and will direct the guardian to pay the same out of the estate of his ward", and no costs should have been taxed against the ward in circuit court, p. 607. —Barbo v. Eider, 67 W. 598, 602. 15. The father of an incompetent pauper is held the proper person to handle money for the support of such pauper. See Paupers. —Ettrick v. T. of Bangor, 84 W., 256, 261. 16. In considering a weak-minded child, thirty-four years old, never manumitted by the father, it is said, that "the law treats such a child over the age of twenty-one years as a minor, because she is incapable of emancipation from imbecility. 17. The father must take care of such a child ; and such a child, to the extent of its mental and physical capacity, owes service to the father like a minor. 17, Am. & Eng. Eney. of Law, 380; Lavery v.. Crooke, 52 W., 612. So long as she remains at home or under the control of the father, he can sue for the loss of her services." Lipe v. Eisenlerd, 39 N. Y. 229. — Hahn v. Cooper, 84 W., 629, 632. 18. "The general rule is, that an adjudication as to mental soundness is direct evidence of the fact at the time of the adjudication, and pre- sumptive evidence of the condition of the subject at a subsequent time, upon the theory that a condition of mind once shown to exist is pre- sumed to continue. 19. It is not evidence of itself of the mental soundness of the subject at any time prior to the adjudication. 20. In the absence of independent evidence showing that the same con- dition of mind existed at the prior time as at the time of the adjudication 572 PEOBATE AND GENEEAL LAW, CODIFIED and had been continuous in the meantime, it is not admissible at all in a controversy as to such condition at such prior time". Burnham v. Mitchell, 34 W. 117 (See Insane Persons), and Giles v. Hodge, 74 W. 360 (See Testamentary Capacity), cited and discussed as of like effect. 21. The evidence of the (now deceased) subject, taken at the time of the adjudication of incompetency and guardianship, as to his incom- petency relating back four and one-half months to the time of the alleged fraudulent transfer in question, "was clearly incompetent" to support the admission of the adjudication, 22. And in violation of "the well-known rule that the admissions of a vendor or transferrer of property, subsequently made, are not admis- sible in evidence to affect the vendee's or transferee's title. That prin- ciple is elementary. Grant v. Lewis, 14 W. 487 ; Selsby v. Eedlon, 19 W. 17". —Small v. Champerty, 102 W. 61, 63. 23. Until a guardian appointed, qualified by giving bond, "he was no fit person to represent" the adverse interests in an appeal and obviously "was in no sense an adverse party". See also Appeal. 24. "Only with great hesitation should courts interfere with the dis- cretion of elderly people, owing no legal duty of support to any one, in devoting the property accumulated by them to their own comfort accord- ing to their own taste". 25. The county court found that W., an octagenarian, "by reason of his extreme old age, failing health, and mental inability" was incom- petent to manage his property, and the circuit court 's and a jury 's finding to the contrary, affirmed. . Because he let his farm providing for his care and comfort thereon, for an inadequate monetary consideration, — should not subject him to "be interfered with without very clear evidence of mental incompetency to carry ' ' out such plan. See also Costs and Fees. Expert Testimony. — In re Gd-nsp. of Welch, 108 W., 387, 390. 26. "A person addicted to the habitual and excessive use of intoxicat- ing liquor is not incompetent to enter into contracts and convey property, 27. Unless it appears that actual intoxication dethroned his reason, or that his understanding was so impaired as to render him mentally unsound when the act was performed. Johnson v. Harmon, 94 U. S. 371 ; (other cases) ". — Burnham v. Bvrnham, 119 W. 509, 514. 28. Evidence " as to undue influence ' ' exercised to obtain a deed of the property of a mother 85 years of age, and as to ill treatment of her, was held proper on the question whether she was " mentally incompetent to have the charge and management of her property. Sec. 3976". 29. "Unless the statutory conditions" as to guardianship, exist, "the court is powerless to act, however clear it may appear by proof that the subject for whom a guardian is sought is not capable of caring for his property judiciously. 30. But such conditions do not call for imbecility or insanity in a INCOMPETENTS 573 technical sense. It is sufficient if the subject is as incapable of managing his affairs as if he were insane". 31. "The term 'mentally incompetent to have the charge and manage- ment of his property ' means mental incapacity to do so. In re Leonard 's est., 95 Mich, 295. 32. True, the incapability must be" "substantially total, as in case of imbecility or insanity ; not that partial incapability often seen in persons so intellectually weak that they are capable of managing their affairs with very little judgment. 33. Nevertheless/the subject need not be necessarily classed as either insane or an idiot in the ordinary meaning of those terms ' '. 34. While the evidence shows she was not "insane or imbecile", "it pretty clearly shows that she might as well be either the one or the other as regards capability to have the charge and management of her property. That satisfies, clearly, the very letter of the statute". A guardian held properly appointed. — In re Streiff, 119 W. 566, 569. 35. While it is "the better practice" to state the facts in the petition for guardianship as set forth in Appeal of Royston, 53 W. supra, yet a petition is held to be sufficient and to give jurisdiction though it "failed to state the names of the persons" affected, or "with whom the alleged incompetent resided, and who was in possession of her property". 36. It is held that "the requirements of the statute seem to have been fully complied with" to give "jurisdiction", as to notice, etc., though the order for hearing "failed to require personal service upon the person having control of her person and property, and her children", though "no such service was ever made", and though "the order did not re- quire that the alleged incompetent, if able, attend before the court at the hearing". "It moreover appears" that she "was personally present in court during such hearing". 37. The county court having appointed a guardian ad litem at the hear- ing, held he "was properly appointed" "if E. was at the time under dis- ability, as adjudged by the county court". (Nevertheless, par. 9, supra, is here approvingly quoted). 38. Such guardian ad litem, and also a son who had a contested transfer of property from his mother, are held "aggrieved persons," entitled to appeal from the county court's order adjudging incompetency and guard- ianship. 39. On the facts., the circuit court's judgment of competency mainly on a premature finding of the validity and binding effect of a previous contract and agreement made with the subject,— is reversed and the order of the county court as to incompetency, affirmed. —Ziegler v. Bark, 121 W. 533, 539. 40. An insane person may properly commence and prosecute an action in his own name. See Actions. — Wiesmann v. Donald, 125 W. 600, 602. 574 PROBATE AND GENERAL LAW, CODIFIED 41. "Giving full force and effect to the decision of this court in In re Streiff, 119 W. supra, and that in In re Welch, 108 W. supra, 42. And having in mind the rule that the findings of fact of the court below will not be reversed in this court unless contrary to the clear weight of proof, (cases)", — 43. On the facts, the appointment of a guardian by the county court, of D. a woman 73 years of age, with a large amount of property, is sus- tained, and the circuit court to the contrary, is reversed. 44. "The mental incapacity described by the statute (sec. 3976) re- lates more to the competence of the person with reference to the care and conservation of property, 45. And the care of her own health and person, than it does to insane hallucinations, which are often consistent with thrift and industry. 46. The opinions of experts, especially of those who form their opinion from a single interview had for the purpose of qualifying them as wit- nesses, are necessarily very weak and inconclusive evidence upon such a question. 47. They do not necessarily gain in probative force because of positive or dogmatic form of expression." 48. "The opinion evidence should not have been allowed to prevail against the undisputed facts and circumstances" as to failure to care for her person and property. — In re Deleglise, 134 W. 41, 42, 51. 49. While "even a relative or a friend of the alleged incompetent, ir- respective of any pecuniary or other legal interest," may petition for guardianship, 50. "It does not follow" "that the determination reached by the county court", "shall be subject to appeal by persons having no legal interest to justify their further interference. (Cases)." See also Aggrieved Persons. — Scmborn v. Carpenter, 140 W., 572, 573. 51. " 'Drunkenness,' says Tiedeman, 'is, in legal contemplation, an aberration of mind similar in its effect upon the reasoning faculties as temporary insanity. ' 52. Hence we find that the legal effect of contracts made by one in a state of intoxication is affected in the same way by the intoxication of the contractor as they are by his insanity'. Com. Paper sec. 57". See also Promissory Notes, etc. —Green v. Gunsten, 154 W. 69, 73. 53. Where the record shows the appointment "because of physical and not mental disabilities", "no guardian should have been appointed on the showing made". See also Testamentary Capacity. — Est. of Bean, 159 W. 67, 82. INCOMPETENTS' SALE OP REALTY INCOMPETENTS' SALE OF REALTY. See also Infants' Sale of Realty. Sale of Realty. 575 Bond of guardian: Defective; invalid sale, 14. Sureties liable on sale bond, 19. Mortgage agreement, 19. Wards remedy on, 13. Homestead; support of ward, 20. Jurisdiction : Meager petition, sufficient, 1, 6. Matters left out of it, 1. Notice required to validate, 2, 12. Question reconsidered, 18. Represented by guardian, 10, 11. XT. S. Decision different, 7, 10. Valid as to ward without, 12. Notice; See also Jurisdiction: Necessary in executor 's sale, 9. Not to ward, incompetents, 10, 12. Petition. See jurisdiction. Sale : indirectly to guardian, 15. ' Heirs of deceased ward, 16. Not estopped by accounting, 17. Inadequate price, 15. Laches; time begins at decease, 18. Nominally to third person, 15. Summary proceeding for sale, 21. Ward after competent: Attacking void, gdns. sale, 3, 4. Paying for improvements, 4. Refund purchase money, etc., 4. Use and occupation, 5. Left to remedy on the bond, 13. Purchase in good faith, 13. Settlement with guardian, 3. Not estopped otherwise, 3. Waiver by guardian: None specified in sec. 3919, 14. 1. A petition to sell real estate of an insane person was held "sufficient in substance to call into exercise the power of the court", though it ' ' did not state the amount of personal property which had come to the guardian's hands, nor how much of it remained undisposed of, nor did it specify the items of indebtedness, nor state the condition or value of the several pieces of land mentioned, etc., ' ' as provided by the statute in force. 2. But the proceedings were held fatally defective, with no jurisdic- tion to grant the license, and the sale thereunder void, because "the required notice was not given of the hearing of the application for a license", to the insane person as well as others interested, on the same principle as' decided in the ease of administrators' and executors' sales. (Overruled in Mohr v. Porter, 51 W. post.) 3. After recovering his sanity the plaintiff is not "estopped by the settlement (he made) with his guardian from attacking the validity of the sale ". He is concluded only ' ' as to those transactions and accounts embraced in the settlement". 4. In recovering lands so sold in a void guardian's sale to a purchaser "in good faith, for a valuable consideration, without notice of any irregularities or defects in the proceedings," "the plaintiff (the late incompetent) cannot recover the land without refunding the' purchase money with interest, and all sums paid for taxes, and paying for all permanent improvements. 5. Of course the plaintiff is to be allowed for the use and occupa- tion of the premises, excluding the value of the use of the improve- ments". —Mohr v. Tulip, 40 W. 66, 76. 576 PEOBATE AND GENERAL LAW, CODIFIED 6. The guardian's "petition, although somewhat imperfect", held valid in Mohr v. Tulip, supra, for the sale of realty is ' ' sufficient to give the probate court jurisdiction to proceed in the matter", this case in- volving "another part of the lands sold", under the same proceedings. 7. "In the case of Mohr v. Manierre, 101 U. S. 417", covering another parcel sold to a non-resident at the same sale, "that court held the sale valid, and that the want of statutory notice did not render the same void", being contrary to the opinion in Mohr v. Tulip, 40 W. supra. 8. ".This conflict of opinion between this court and the supreme court, of the United States, which has led to this peculiar result, which makes the title to real estate situated in this state depend upon the residence of the party in possession, has induced us to reconsider the question at issue between the two courts, with a view of determining, if we can, which of the two courts is right", p. 490. 9. The court adheres to the rule that due notice to the adverse parties is, necessary to give jurisdiction of the person in the case of a license to an executor or administrator; while "the petition and proof of the facts confer jurisdiction of the subject matter" ; yet "probate pro- ceedings, like other legal proceedings, bind those who have notice or appear or consent to the same, although there may be others who were proper parties who had no notice, and who did not appear nor consent thereto, and who were not bound by such proceedings. 'Dell v. Rogers, 44 W. 136, 172" (Cited under Notice), p. 493. 10. ' ' The question arises in this case, as it did in the case of Mohr v. Tulip, whether Mohr was represented by his guardian in the pro- ceedings in question, so that, being so represented, he cannot avoid the same, as was held by the supreme court of the United States in Mohr v. Manierre, supra." p. 495. 11. "That in these proceedings the guardian represents his ward and acts for him, is sustained very generally by the authorities we have been able to find bearing upon the subject in other courts; and we find no decision of this court which holds the contrary, unless it be the one of Mohr v. Tulip. 12. For these reasons, we think, the case of Mohr v. Tulip, so far as it holds the sale in this case void as against the ward himself, must be overruled", p. 497. 13. "When the purchaser is guilty of no fault and buys in good faith, there is every reason why he should be protected and the ward left to his remedy upon his guardian's bond, if he has been guilty of any mis- conduct iii his guardianship", p. 505. —Mohr v. Porter, 51 W. 487, 489. 14. A defective bond or other defect cited in sec. 31919, is fatal to a valid sale, and "none of those proceedings can be waived by the guar- dian". See Infant Sale op Realty. — Weld v. Johnson Mfg. Co., 84 W., 537, 543. ' INFANTS ' • 577 15. "A guardian of an insane person sells his ward's real estate for an inadequate price, nominally to a third person, but really to him- self", "causing the title to be conveyed to his sons". 16. In an action brought by heirs some five months after the ward's decease, about twelve years later, ' ' to set aside the transaction as fraud- ulent and void", it is so determined, and the guardian required to account for the rents and profits. 17. The heirs are not estopped, because "the guardian has accounted for the price" paid, and paid it over "to the administrator of the" ward's estate; ( 18. And ''the plaintiffs could not be charged with laches until they had some title or interest in the land which they could enforce by action", which was not. until) the ward's decease. — Heyl v. Gaels, 97 W. 327, 331. 19. The sureties were held not liable on the sale bond, for the guar- dian's failure to pay a mortgage, which he agreed to pay, but was not ordered to pay. See Sureties. < —Evison v. Hailock, 108 W., 249, 251. 20. The proceeds of the homestead of an insane ward, held liable for his support by the county. See Insane Persons. — Johnson v. Door Co., 158 W. 10, 17. i 21. (As to summary proceedings for sale of realty of persons under disability, under sees. 3503, et. al., see Infants' Sale of Realty). INDORSES. See Promissory Notes, etc. INFANTS. See also Accounts of Guardian. Adoption. Custody and Commit - ment. Guardian and Ward. Infants' Sale of Realty. Majority. Necessaries. Parent and Child. Action concerning: Administration: At common law; next friend, '26. Parents) or gdn.; not bind, 66. By or against the minor, 23. Guardian ad litem, 66. ' Express contract of guardian, 24, 25. Age declaration; fraud, 28. Guardian ad litem at trial, 12. Contracts : voidable, 3. Proceeding without guardian, 12. Beneficial to himself, 52. Kepresented by grdn. at litem, 23. Actual discretion attained, 53. Title of action; complaint, 25. Actual express fraud, 52. Zimmerman — 3 7 578 PROBATE AND GENERAL LAW, CODIFIED Contracts — continued Beneficial, etc. — continued Equitable estoppel, 52. Not conduct or silence, 54. Between infant and servant, 69. Executed contracts, also, 39. Executory or express; not liable, 44. Father also not liable, 46. Written guarantee; consid., 47. Implied. See Necessaries. Judicial aid to avoid, 40, 43. Offered to make good, 40, 43. Restoration at trial, 42. Waiver of formal offer, 41. Not beneficial to him, 55. Surety or accommodation, 56. Valid upon adults, 3. Void or voidable; option, 50. Capable of restoration, 51. Crime capacity : , ' Presumption; under fourteen, 30. Rebuttable, over seven, 30, 31. Custody of infant, 27. Neglected infant, 35. Damages : injuries to person, 5. ' Employer liable for injury, 74. Contributory negligence, 75. Illegally employed, 73. Release; county court approval, 39, „ 82. Infant, 18 months of age, 9. Liable for torts as adults, 62. Degree of care; rule, 64. Guilty of negligence, 63. Recovery by parents, 5. Deceased infants Realty; common ancestor, 15. Disaffirmance of contracts, 17. After majority, 17. Guarantor still bound, 70. Emancipated infant: Make gift to infant sister, 22. May acquire property, 22. Estoppel doctrine, 67. Equitable, when, 52. Gaperal guardian: Appeal; failure of gdn. ad litem, 11. Judgment by default: Avoided by appeal for error, 58. Or other direct proceeding, 59. Cannot always be vacated, 60. No substantial injustice, 61. Judgment, etc. — -continued Collateral attack: service, 57. No guardian ad litem, 57. Vacated; guardian ad litem, ,49. Laches in an adult, 48. Mortgage: purchase money, 19. Conditions of avoiding, 19. « Given for precedent debt, 20. Mortgagee; infant's vendee, 21. Surety for purchase money, 21. Necessaries : Bound by implied contract, 36. Executory contract for, 37, 44. Express contract; not liable, 38, 44. Personal needs of infant, 68. Alleged servant of, 69. When actually furnished, 45. Note given in infancy, 1. Ratification after age, 1. Notice: distribution, 7, 8. Partition; non-resident, 10. Guardian ad litem later, 10. Ratification after age: Any recognition of promise, 1. Beneficial; possession retained, 13, 14. Release by guardian, 78. Not approved; county court, 79. Services : quantum meruit, 6. Adopted; same rules, 16. Service upon infant, 18. Seven years of age: Highway; travel and play, 29. Less degree of care, 29. Injury damages, negligence, 9. J , Trespass; compens., damages, 4. Testimony of child: After four years of age, 32. Conviction sustained, 34. Discretion of court, 34. Intelligence, factor, 33. Title in own name for infant, 2. Assumed protector; in trust, 2. Workmen's compensation act: Guardian not essential, 71. Same plane as adult, 65. When not legally employed, 72. Act does not apply, 73. Contributory negligence, 75. Employer liable for injury, 74. Misrepresenting age, 76. Release held not binding, 78. Approval; county court, 79. 1. A note given in infancy is voidable but may be confirmed at full age. ' Any recognition of the promise after age as binding is a ratifica- tion of it. • — Stokes v. Brown, 3 Pin. 311. INFANTS 579 2. An assumed protector taking title in his own name for an infant, holds the same in trust. See Principal and Agent. —Roller v. Spilmore; 13 W. 26,. 30. 3. "Though their deeds or contracts are voidable as to themselves, they are binding upon persons of full age", at common law and at this "time,, regardless of the "apprentice" statutes. — Davies v. Turton, 13 W. 185. 4. ' ' The suit is brought to recover damages for trespass committed by , him (an infant under seven years of age) ; not vindictive punitory damages, but eompfensation ; and for that he is clearly liable". —Huchtinff v. Engel, 17 W. 230, 232; 1 5. Damages for injuries to the person of a minor (11 yrs. old) result- ing in death are recoverable under the statute ' ' in substance the same as Lord Campbell's Act, 9 and 10 Vic. Ch. S3", "as the jury might deem fair and just in reference to the pecuniary injury resulting from the death of the daughter, B., to her parents" during minority; and after- ward only on proof of probable dependence on her. "Vindictive dam- ages are not to be given". —Patter v. C. & N. W. By., 21 W. 372, 374. 6. Recovery sustained quantum meruit, in an action by an orphan infant received into the family of defendant for eight years and not "standing in loco parentis", with no express agreement for wages, the services being "rendered under such circumstances that the law would imply a promise to pay what they were reasonably worth" —Mountain v. Fisher, 22 W. 93, 97. 7. Where minor heirs or their guardian have no notice of the order of distribution, they are not Bound by the order. 8. "In order to bind these minor heirs by the order of distribution, -it should at least appear that they were before the county court, or had notice of the proceedings". —Bresee v. Stiles; 22 W. 120, 126. 9. Judgment for $8000, for loss of the right arm. .of an infant of eighteen months, injured on ,a railroad track, the company being negli- gent for failure to erect a fence, the parents being free from negligence, approved, and held "that negligence cannot be imputed to the conduct of an infant of such tender years," and that "all that is demanded in such cases is, a degree of care or diligence equal to the capacity of the child". —Schmidt, vnf ant v, M. & St. P. By. Co., 23 W. 186, 190. 10., Where the circuit court in partition action failed "to acquire jurisdiction over" a non resident infant appellant, "all subsequent pro- 580 PROBATE AND GENERAL LAW, CODIFIED ceedings against him, including the appointment of a guardian ad litem, were coram non judiee". 11. Where such guardian ad litem failed to do so, "it was competent and proper for the general guardian to. act for the infant" in the appeal. —Foster v. Hammond, 37 W. 185, 187. 12. The infancy of plaintiff developing at the trial, against objection a guardian ad litem was then appointed to prosecute the suit. Held proper, and "had she proceeded without leave, the judgment could not be reversed on that ground". —Sabine v. Fisher, 37 W. 376, 377. 13. Where infant husband and wife gave note and mortgage "bene- ficial" to them, and elected to affirm the same "by retaining the posses- sion of the premises and claiming them as their own", after arriving at majority, it was held to be a ratification. 14. "It would be most inequitable to allow them to repudiate the notes and mortgage given for a part of the purchase money and also to keep the land". — CaUis v. Day, 38 W. 643, 647. 15. Real estate of a deceased infant received from a common ancestor, descends to the brothers and sisters, from such ancestor. See Descent, and Distribution. — Weisner v. Z him". Followed here. 46. "It would follow that the father also owned nothing" in con- testing payment of sums due on such agreement. 47. And, also, the father's written guarantee is held void because it fails "to express the consideration". Com. Nat. Bank, 107 W., 574. —International T. Go. v. McKone, 133 W., 200, 203. 48. "Where "if he were an adult his laches after service of the sum- mons would justify the refusal to grant relief", on an application to vacate a default judgment, 49. Such order of refusal is reversed in case of a minor defendant who was not but "should be represented by a guardian ad litem". 50. "The contract of a minor, other than for necessaries, is either > void or voidable at his option, exercised, within a reasonable time after his coming of age", 51. "And restoring the former situation as far as he is reasonably capable of doing so". 52. But, "in making a contract beneficial to himself ",, a minor may ^'preclude himself, by equitable estoppel, from subsequently avoiding it on the ground of infancy", in case of "actual fraud" by "express representation". (Many cases). 53. This 1 "forms an exception" and "is confined to cases where the infant, though under legal discretion, is in fact developed to the condi- tion of actual discretion", " 54. And does not .extend to cases where ' ' by mere conduct or silence when he ought to speak". 55. "A minor cannot, unless in some extreme cases", "even by actual fraud, estop himself from' pleading his minority to avoid a contract which is not beneficial to him ; 56. As in case of his becoming a mere surety or accommodation maker of a promissory note", as here. 57. Where there is jurisdiction "by proper service", "the judgment is proof against collateral attack", and "is not void", though the minor "is not represented by a guardian ad litem". 58. "It can only be avoided by appeal for error, where the minority appears of record, 584 PROBATE AND GENERAL LAW, CODIFIED 59. Or otherwise by motion or other direct proceeding in the action seasonably resorted to". 60. But such default judgments cannot "always be set aside either during disability or after it has been removed. 61. In case, notwithstanding the irregularity, the minor suffered no Substantial injustice, relief is not, necessarily, grantable". — Grcwmah, M. & C. Co. v. Krienitz, 142 W. 556, 560. , 62. "The rule is well settled that a minor is responsible for com- pensatory damages resulting from his torts in the same manner as an adult." (Cases). 63. " Infants may be guilty of actionable negligence, and even though the defendant was engaged in a perfectly lawful occupation he may have conducted himself so negligently as to make himself liable for damages resulting from such negligence". i ■ 64. "A child is only required to exercise that degree of care which the great mass of children of the, same age ordinarily exercise under the same circumstances', taking into account the experience, capacity, and understanding of the child. (Citations) ". —Briese v. Maechtle, 146 W., 89, 90. 65. The provision, sec. 2394-7, subd. 2, 'for the purposes of sec. 2394-8, under the workmen's compensation act, ch. 50, L. 1911, "which declares that a minor who is legally entitled to work shall have the same power of contracting for service as an adult", is held valid, and a minor "becomes for the purposes of the act an, adult, or at least on the same plane". —Borgnis v. Folk Co., 147 W. 327, 364. 66. As to infants in administration proceedings, it is held that parents "had no authority to bind the minors directly or through their general guardians", they being represented "by their guardian ad litem", — the point being as to exorbitant and erroneously allowed attorneys and guardian ad litem fees. 67. "The doctrine of estoppel, in the absence of bad faith, as well as the doctrine of waiver, does not apply to such persons. (Citations)". See also Guardian ad Litem. Pkobate of Will. — Will of Bice, 150 W. 401, 468-9. 68. "The general rule respecting necessaries is that they must be such as to supply the personal needs of the infant. Tupper v Cadwell 12 Met. 559". 69. " The question here is whether a valid contract creating the rela- tion of master and servant between the infant and his alleged servant can be made. We think it clear that it cannot". —Covault v. Nevitt, 157 W. 113, 116. INFANTS' SALE OF REALTY 585 i /' 70. Where, an infant "disaffirmed the contract", the guarantor was held nevertheless bound. See, , also Guaranty. ,, —International T. Go. v. Maboott, 159 W. 423, 425. 71. "The Industrial Commission is not a court", but "an administra- tive body merely", and "a guardian is" held not " jurisdictionally essential to proceedings in behalf of a minor by such a body", nor is there a "statute requiring it". -^-Menomonie B. 8. L. Co. v. Ind. Com., 162 W. 344, 347. 72. Where an infant, under sixteen, without a statutory permit, , was employed on representation of the infant and his father that he was past sixteen years of age, his appearance also so indicating, and upon injury a settlement was effected under the industrial act, and a release given by the guardian, — in an action for damages, it is held ; 73. That not being "legally employed", "the provisions of the Work- men's Compensation Law (Sees. 2394-1 to 2394-31) do not govern the rights of the parties " ; 74. Hence the employer "defendant is liable in damages," being "guilty of a misdemeanor" under see. 1728h, for violation of sec. 1728a, in employment without permit; 75. That "the defense of contributory negligence is hot available", the violation being a criminal offence ; 76. That plaintiff is not "estopped" "by misrepresenting his age", as "the object" "of sec. 1728a, is to conserve the health and morals of children in the interest of the general welfare", 77. And the rules of Grauman M. & C. Co. v. Krienitz, 142 W. supra, here "necessarily fail because the employment of the plaintiff in Viola- tion of the law is obviously not a transaction which can in any light be considered beneficial to the minor". 78. That the guardian's release being "based on the ground that the" claim was "controlled by" "the Workmen's Compensation Law',', and not one for "violation of the law", is ineffective; 79. "Furthermore", "it is not binding on plaintiff because it was, not approved by the county court as is required by see. 3982. ' ' Recovery sustained. —Stetz v. F. Mayer B. & S. Co., 163 W. 151, 155. INFANTS' SALE OP REALTY. See also Incompetents' Sale of Realty. Sale op Realty. Bond: in summary sale, 5. Construction of will: In public sale, 8. ■■, A 129 W. supra), 24. "Still it seems plain that both these acts are really but steps in the enforcement of a tax law of the state rather than judgments in ju- dicial controversies", "and hence" the plaintiff can properly "prosecute this independent action" to recover payments made under protest. 25. After deciding "to thoroughly re-examine the question and review the former holding" in the Nnuuemacher Case, supra, "the constitution- ality of the inheritance tax law (Ch. 44, L., 1903, sees. 1087-1, et al) " is sustained, and "the points there decided" "now reaffirmed" and "re- capitulated". 26. Specifically, it is held that any apparent failure in sees. 2 and 3 (Sees. 1087-2 and 1087-3) to provide for the taxation "of the first $25,000 in an estate exceeding that sum", is, provided for by "the language of other sections of the act", particularly "sec. 4 (sec. 1087-4), which pro- vides for exemptions", "in all estates", and also "the first section of the act is. quite conclusive" where "the tax is imposed upon any transfer of any property except the exemptions ' '. 27. While "inheritance taxes are not taxes levied upon property", INHERITANCE TAXES 591 "but are excise taxes levied upon the transfer of property, or, as it is sometimes said, upon the transaction", and, 28. Though "the right to inherit or devise property" is "a natural right" not to "be entirely abrogated", 29. Yet, it "does not follow" that "an inheritance tax must logically be held to be a tax upon a property right and subject to the provision that it must be absolutely uniform. ' ' — Beals v. State, 139 W. 544, 551. 30. Reciting questions decided, and approving the Nunnemacher and Beals eases, supra, it is said, that "the provisions of the law are in sub- stance those of the New York transfer tax act ; 31. Hence, so far as applicable, the decisions of the courts of that state construing the law are to be resorted to for and in construing the one in question". 32. The "purpose and object" of the law is "that the tax shall be im- posed on the transfer at the time of the death of the decedent, 33. And rest as a lien on the property so transferred until paid". 34. The provision as to cases where by reason of contingencies the tax cannot "be. ascertained at the time of transfer", "does not operate to postpone the imposition of the tax", but "it operates to postpone pay- ment to the time when it is ascertainable, namely, when the contingency happens" and possession obtained. 35. "Aside from this exception, all taxes are due and payable at the time of the transfer and then accrue." 36. The provisions for discount and interest are upheld as reasonable. 37. The payment of taxes by "the present owners of defeasible es- tates" is justified, "because provision for re-imbursing them is made". 38. "The law provides a means of calculating the value of the interest of the widow" for "annual payments", and a charge for "maintenance" of a child E. to her twenty -first birthday, "and hence the fair market value of the remainder of the estate and other interests are ascertain- able". 39. The words 'in contemplation -of death', are discussed, and defined as arising "from such a bodily or mental condition as prompts" disposi- tion of property. Applied here to such transfer about six months before the decease. (Amdt. subsequently, of subd. 3, sec. 1087-1, by ch. 643, L. 19,13, provides as to transfers "made within six years prior to the death".) 40. A physician's "death certificate" is held "properly admitted as prima facie evidence of the material facts stated therein". 41. a The facts and circumstances regarding the business of the cor- poration and its properties, the progress, growth, and general financial results, furnish a basis for valuation" of the stock certificates. 42. "Where "uncertainty existed as to When the tax was due and pay- able", and other tax questions were in doubt, which "accounts for the delays" in the "settlement of the estate", it is held, that, 592 PROBATE AND GENERAL LAW, CODIFIED 43. "This litigation is necessary within the contemplation of tfo inheritance tax law", and "necessarily occasioned unavoidable delays" and "the penalty of ten per cent per annum should not have been im posed". —State v. Pabst, 139 W. 561, 583 44. Where decedent had "stocks, bonds, notes" and other securitiei deposited with a trust company in Chicago at the time of decease, thi same never having been in this state, and taxes and inheritance tas having been paid thereon in Illinois, 45. And he had also transferred such and other property in trust t< such trust company, but "reserved and enjoyed a life estate in the prop erty transferred", and also "the right to" "control", "and to revok< the trust", — he being a resident here, all such property was held taxabh under the inheritance tax act, sec. 1087-1. 46. " This statute was borrowed from New York ; therefore the judicial construction given it there is significant in interpreting it here. (Cases) " 47. It was there "held that in respect to personal property not withir the state at the time of the resident decedent's death the court will applj the maxim, Mobilia sequuntur personam. (Cases). : 48. The effect of this rule is to make the legal situs of the property a1 the domicile of the decedent". 49. We think under the authorities and the established facts in this case that the situs of the property covered by the trust agreement was in the state of Wisconsin", "and was subject to the Wisconsin inheritance tax. (Many cases) ". 50. And the trust transfer, having been made several years before de- cease, the intestate having "locomotor ataxia", it is held "that the trans- fer was made 'in contemplation of death, within the meaning of the law (State v. Pabst, 139 W. supra), 51. And was also 'intended to take effect in possession or enjoyment at or after such death'. Sec. 1087-1, subd. 3; (N. Y. cases)". Trust agreement property, held taxable. 52. Held that a life "insurance policy assigned to the trust com- pany", with the wife beneficiary named, and she not having " relinquishel her rights therein", — "remained the property of" the wife, and. was properly not taxed. (Subsequently, by ch. 253, L. 1915, subd. 7, sec. 1807- 1 was created, making life insurance taxable). 53. (In affirming the decision in this case, April 10, 1916, on appeal to the supreme court of the United States it is said,: "The supreme court of Wisconsin was fully justified in treating Bullen 's general power of disposition as equivalent to a fee for the purposes of the taxing statute ' ', notwithstanding the fund was also taxed in Illinois. 53a. "As the states where the property is situated, if governed by the common law, generally recognize the law of the domicil as deter- mining the succession, it may be said that, in a practical sense at least, the law of the domicil is needed to establish the inheritance. INHERITANCE TAXES 593 53b. Therefore the inheritance may be taxed at the place of domicil, whatever the limitations of power over the specific chattels may be, as is especially plain in the case of contracts and stock. (Many cases)". Bullen v. Wisconsin, 240 U. S. 625, 631 ; s. c. 60 Law. Ed. 830, 835.) — Est. of Bullen, 143 W. 512, 520: 54. Where "the deceased was eighty-six years old 7 ', "and a year and a half older when" he made, large gifts to his daughter, and "he died at the age of ninety-two, being sound and active in mind and body until three months before his death", such gifts and others prior to such "three months", — are held not taxable as not made in contemplation of death. 55. "The! burden of proof was upon the plaintiff (the state) to show that the gifts were made in contemplation of death". 56. The facts that (1) "the gifts were substantially in accordance with the will of deceased" then existing, (2) that "they included more than two-thirds of a large estate", and (3) that "he had surrendered the management of his property and business", — "are not very signifi- cant", being in effect natural proceedings. 57. "A gift made to a child by an aged parent sound in mind and body is" not "subject to an inheritance tax because the donor was advanced in years when the gift was made". ■ 58. "An act is not done in, contemplation of death when the feeling that dissolution is approaching is absent and is not the cause which ' impels or prompts the doing of the act". /State v. Pabst, 139 W. supra, approvingly quoted. (Decided before the amdt. of ch. 643, L. 1913, noted in the Pabst case, supra, par. 39.). . —State y: Thompson, 154 W. 320, 325. 59. An annuity under a will is subject to inheritance tax, and when " valued and such tax paid, is exempt from income tax. See also Taxation op Estates. • — State ex rel Kempsmifh v. Widiole, 161 W. 389, 391. 60. The ' ' allowance to the widow for her support and that of the chil- dren pending the administration of the estate, under sub.d. 2 of sec. 3935", "is a transaction upon which the legislature has imposed no inheritance tax on the broad ground that it is neither an inheritance nor a gift from the deceased made in contemplation of death". 61. "The rule", — "that weight should be given to" the "ruling of the department (tax commission) in construing the statute", — 62. "Does not apply where there is no ambiguity, in the statute but the provisions are clear", 63. Andit "does not apply to the erroneous rulings of inferior tribu- nals so as to control or affect the decision of the superior tribunal having by law the power and duty to review directly such rulings. Lawrence Univ. v. Outagamie Co., 150 W. 244". ,* —Smith v. State, 161 W. 588, 589. Zimmerman — 3 8 594 PKOBATE AND GENEEAL LAW, CODIFIED 64. ' ' The inheritance tax, being a tax upon the transfer ", " may be properly levied upon a transfer which becomes effective by appointment made after the passage of the law under a power previously created, for the reason that the transfer does not become complete until the appoint- ment is made and at that time the law is in effect. (Cases)". See. 1087-1. 65. "The principle just stated applies to a case where, as here, the ap- pointment must be made from a class, as well as to a case where the power is a general one. (Cases). 66. The provision tha.t a transfer resulting from the failure of the donee of the power to appoint shall be deemed to constitute a taxable transfer equally with a transfer resulting from an appointment, is valid because the failure to .act equally affects the course of succession, and until such failure is complete the succession is not fully determined. Burnham v. Treasurer, 212 Mass. 165. 67. The proviso in sub. (4) of see. 1087-1, excepting estates vested before the act and contingent interests created by will before the act, does not apply to estates or property created by appointment under sub. (5), because it seems clear that by sub. (5) the legislature intended to deal separately with property or estates created by appointment and to cover that subject completely, 68. Hence that an exception contained in another subsection which has ample scope for operation elsewhere is not to be imported into it". —Montague v. State, 163 W. 58, 61. INJUNCTION. Counsel fees, recoverable, 3. Granted without notice, 1. Dissolve; on reference, 3. Issue on bill filed only, 2. 1. "To sustain an injunction granted without notice, the essential allegations must be positively stated in the verified complaint, or they must be otherwise proved'-'. However, in ease of notice, "if the allega- tions on information and belief are not denied, they are taken as true ' '. — Dinehart v. Town of LaFayette, 19 W. 677, 688. 2. "The general rule in courts of equity is,, that injunctions can issue only upon bill filed, with proper prayer for the writ". Absolute under the code. — Vliet v. Sherwood, 37 W. 165. 3. Following the rule of Rose v. Post, 56 N. Y., 603, it is held that " counsel fees for services rendered on the motion to dissolve the injunc- tion, and also on the reference", are properly recoverable upon the reference for damages. Contra : U. S. Cases. — Wis. M. & F. Bank v. Durner, 114 W., 369, 373. INSANE PERSONS 595 INSANE PERSONS. See also Incompetents. Incompetents' Sale of Realty. Sale op Realty. Testamentary Capacity. Crime Commission: Insanity at tire trial; jury, 37. Not sufficient evidence, 26. Suicide commission, 27, 28, 30. Also attempted murder, 29. Not presumption, 27. Damages: against petitioners, 48. Acted recklessly, wantonly, 55. Advice of counsel, defense, 54. Discharge by county court, 53. Private sanitarium liable, 57, 58. Restrain and guard, 57. Deed, voidable, not void, 44. Contra: English courts, 44. Defense must be set up, 5. Dementia is or may be, 39. Evidence : Adjudication; effect of, 43. > Comprehension; widow, 11. Guardianship proceedings, 12. Fraud practiced on: Foreclosure sale; set aside, 4. Knowledge of insanity, .4. Proceedings correct in form, 2. Restore his property, 3. Guardian ad litem for, 15. Insanity indicia : Do not reason on the subject, 6. Impossible to convince, 7. Incapable of making will, 13. Limitation statute, 13. Indicia; yet be sane, 9. Opinion on false reason, 8. Subject to sudden changes, 8. Judgment by default: Excusable; set asiSe, 16. Lucid, interval, 1. Act itself is proof of, 32. Lucid interval — continued Burden; party claiming, l,i 31. \ Conveyances held valid, 36. ' Established; burden shifts, 33. Little evidence overcome, 34. May bind himself in, 49. Mental capacity: Delusion not influence, 24. Issue; sufficiency to act, 40. Particular subjects, 41. Capacity on others, 41. Reasonable ability judgment, ,42. Old-age insanity, 56. Lucid intervals, 56. Presumption: continuing, 1, 19. ' After lucid interval, 33. ' In favor of sanity, 25. Not when intermittent, 20. Private sanitarium, duty, 57. Realty sale by guardian, 17. Notice; not recognized, 18. Service of process on, 14. Settlement: by deceased, 10. Admr. may avoid, 10. Softening of brain, 38, 39. Statutory definition, 39. Support: by county, 45. Circuit court, improper, 46. When appropriate, 47. County court jurisdiction, 45. Homestead liable" for, 50. Payment on valid claim, 51. Irregular proceeding, 52. Test of insanity, 21. Insane delusion, 21. Language or acts, 22. Partial insanity, 23. Sane, act and talk foolishly, 35. Unreasonable suspicions, 25. 1. "Lunacy being once established," the burden is on the party claiming through any act of the lunatic, to show that it was done in a lucid interval"; lunacy in this case being shown by testimony of ordinary wit- nesses, there being no adjudication. —liipley v. Babcock, 13 W. 425, 439. 2. "Proceedings, however sufficient and correct in form, which are taken for the clearly ascertained purpose of despoiling an insane per-" son or lunatic of his property and estate, are fraudulent". 596 PROBATE AND GENERAL LAW, CODIFIED 3. "The true and only ground upon which courts of law as well as equity interfere to protect and restore the property of insane persons, and such as are otherwise non compotes mentis, is fraud". 4. "In equity the proceeding was fraudulent and the sale (on fore- closure by advertisement) will be set aside, whether the mortgagee knew of the mortgagor's insanity or not", as the sale was for less than half of the real value, and the parties "can be placed in statu quo". —Encking v. Simmons, 28 W. 272, 280. 5. "We are inclined to hold, if the defendant intended to rely on the defense that he was insane when he entered into the contract with the plaintiff about advancing money for him, that he should have set this up in 'his answer", under the code. — Whitman v. Lake, 32 W. 189, 194. i i 6. "As a general rule the insane or partially insane do not reason upon the subjects of their hallucinations or delusions". 7. "Generally it is impossible to convince the insane of the absurdity of their delusions by any arguments or actual tests, however conclusive they may be to a person of sound mind. ' ' 8. ' ' The really insane are usually subject to sudden changes from one delusion to another. True, this does not always happen, but where the patient is suffering under a settled, long continued delusion, there will seldom be any difficulty in ascertaining whether it is realty an insane delusion, or merely van erroneous opinion based upon false reasoning or insufficient reasoning." 9. A testator may have numerous "alleged indicia of insanity", yet other circumstances may so counterbalance them, as to find him of sound mind, as here. See Testamentary Capacity. —Chafin Will Case, 32 W. 557, 566. V 10. The administrator in an action at law may show that a settlement made by his intestate was void or Voidable by reason of the latter 's in- competency. "If he was insane or non compos at that time, then it is very obvious that he could make no valid contract, and the settlement which he attempted to make would not be binding upon him or bis administrator:" 11. "There was no error in allowing Mrs. F. (the widow) to express "her opinion as to whether her husband comprehended the facts of this settlement", she having been his constant attendant and giving reasons for her conclusion. 12. The guardianship, proceedings were properly admissible on insanity as ' ' evidence of that fact when this adjudication was made ' '. 13. ' T If a person is so unsound, of mind, or deranged in intellect, that he would be incapable of making a valid will, he should be considered 'insane' within the meaning and intent of the statute of limitations". —Burnham v. Mitchell, 34 W. 117, 128. INSANE PERSONS , 597 14. Service of process was held proper "upon a person insane in fact, although not judicially declared to be insane". 15. "It was the duty of the court" to appoint a guardian ad litem "whenever it was made to appear that the defendant was insane and had interests in the action whjch required protection". 16. "A judgment by default", "was excusable neglect, if neglect at all", and will be set aside. — Gersterv. Hilbert, 38 W. 609, 612. ,17. Defective petition in sale of realty by guardian, held valid. Notice, estoppel, and improvements in void sale, also considered. See Incom- petents' Sale of Realty. ( -—Mohr y. Tulip, 40 "W. 66, 76. 18. Notice is not required in sale of real estate where the guardian makes the petition. See Incompetents' Sale op Realty. —Mohr v. Porter, 51 "W. 487, 497. 19. In general, "when insanity is once proved to exist, it is presumed to exist until the presumption is overcome by contrary or repelling evidence". 20. "The rule does not apply to cases of occasional or intermittent insanity ; but it does to all cases of habitual or apparently confirmed insanity, of whatever nature." 21. ' ' Sir John Nicholl says that the true test of the absence or pres- ence of insanity, is the absence or presence of delusion. Insane delusion is insanity, whether partial or general. Dew v. ( Clark, 3 Addams, 79". 22. "It is universally recognized that, except perhaps in cases of total loss of reason, insanity does not always exhibit itself in the language or acts of the insane". — State v. Wilner, 40 W. 304, 306. 'i ' 23. On the testimony of a physician, that "there was no such thing as partial insanity; that a man was either sane or insane", it is said: "This -may be true considered in the light of medical science, but it is not true in the law, as is apparent from the decisions of some of the most eminent and distinguished jurists who have adorned the bench in this country and in England. 24. For the testamentary dispositions of monomaniacs have often been sustained in spite of their mental disorder, where the insane delusion did not influence the mind of the testator in disposing of his property". See Testamentary Capacity: — Will of Blakely, 48 M. 294, 306. 25. "The legal presumption is in favor of sanity." "Unreasonable suspicions" are not necessarily an "insane delusion". See Testament- ary Capacity. T-WiU-of E. W. Cole, 49 W. 179, 182. 26. "It is undoubtedly the law that where the only evidence tending to prove insanity is the commission of a given, crime, such act of itself is not sufficient to establish insanity. 598 PKOBATE AND GENERAL LAW, CODIFIED 27. The mere fact that a man commits suicide does not even raise a presumption of insanity at the time. 28. It is, however, a fact which, m connection with other evidence, becomes very pertinent to the issue. 29. Especially is this so where the suicide is immediately preceded by the murder or attempted murder of members of the suicide's family, and the destruction of his property without any apparent motive or even provocation. 30. The rule is elementary, and must exist from the very nature of #ie question to be determined". — Earow v. Continental Ins. Co. 57, W. 56. 59. 31. It is held "under the rule applied in Ripley v. Babcoek, 13 W. supra, that when lunacy is once established the burden is on the party claiming through any act of the lunatic, to show that it was done in a lucid interval". 32. "The character of the act of W. in making the deeds", in payment of meritorious obligations, "affords very strong evidence that he had not relapsed into insanity when he did so ". "It seems to be well settled that, although the act itself may not be the 'strongest and best' proof, yet it is, or may be, strong proof of a lucid interval". 33. Where "a lucid interval a short time before is established by the evidence, the burden was thereby placed upon the plaintiff to show that he had again become insane". 34. While it appears that little evidence of insanity may overcome 'the presumption of a lucid interval',, yet "it does not mean that any and every foolish or absurd remark of the person whose sanity is in issue will, if he has once been insane, demonstrate that he is still insane. 35. Sane people may and do talk foolishly and absurdly without im- peachment of their sanity". 36. In this case, one who was several times insane, at times for years, and several times in the asylum, for months and years, who shortly before the execution of deeds was released from an asylum, and afterward again became insane, is held, on the evidence, to have "had sufficient mental ability to know what he was doing, and the nature of the act done", and that the conveyances were valid. — Wright v. Jackson, 59 W. 569, 576. 37. In criminal cases, the accused has no right of trial, as to insanity at the trial, under sec. 4700, by jury. See Jury. —Crocker v. State, 60 W. 553. 38. Where W., over seventy, was "afflicted with softening of brain", "his memory was nearly gone, and he was unfit to do any kind of busi- ness," and a physician "testified that he was demented, and gave facts" substantiating such statement, it is said : 39. "Dementia is or may be insanity. It is indisputable that by reason N , INSANE PEBSONS 599, of the loss of his mental faculties, W. was then entirely incapable of giving testimony in court or any coherent statement of past events. Clearly he was non compos mentis, within the medical signification of the term. Hence he was insane within the statutory definition: 'The words 'insane persons' shall be construed to include, every idiot non compos, lunatic, and distracted person'. Sec. 4971, subd. 7". And W. was held insane within and under sec. 4069. — Whitney v. Traynor, 74 W., 289, 293.' Li 40: On the issue of insanity with reference to an exchange of benefit certificates, it is said: "The question was not whether he at some time had a delusion upon some subject, nor yet whether he always reasoned wisely or prudently, but, 'when capacity to do a certain act' is in issue, the question is whether the alleged insane person had sufficient mental ability to know what he was doing and the nature of the act done'. Burn- ham v. Mitchell, 34 W. supra. .-41. 'The law recognizes the fact that there may be derangement of mind as to particular subjects, and yet capacity to act on other subjects. _ 42. The proof which is necessary to invalidate a man's acts by reason of his insanity must show inability to exercise reasonable judgment in regard to such act'. Busw. Insan. 270". See also Expert Testimony. — Boormam v. JV. W. M. B. Ass'n. 90 W. 144, 148. 43. As to the rules governing the effect of the adjudication in evidence. See Incompetents. —-Small v. Ghwmpeny, 102 W. 61, 63. ' 44. "There is substantial harmony in the decisions of this country contrary to the law as held by the English courts, that the deed of an insane person (not under guardianship) is voidable, not void". So held. —French Lumbering Co. v. Theriault, 107 W.627, 644. 45. As sec. 604q makes "specific provision for the examination, settle-, ment, and adjudication of" claims by the county for the support of insane persons under guardianship, it is held, 46. That the circuit court properly refused to entertain jurisdiction of an action for such purpose. ' 47. Sec. 600 " in no sense provides that this is an independent remedy by an action in the circuit court to the exclusion of the jurisdiction of the county court above pointed out. It prescribes how such a claim may be proceeded on for its collection whenever it is appropriate to pro- ceed in the circuit court". See also Concurrent Jurisdiction. — Washington Co. v. Schrupp, 139 W. 219, 222. 48. In an action for damages against petitioners, and others, whp insti- tuted "lunacy proceedings" against plaintiff, a verdict for plaintiff is set aside, "the facts and circumstances of which the defendants were in- formed" being "such as to justify the belief in the mind of a person of 600 PROBATE AND GENERAL LAW, jDODIFIED reasonable intelligence and prudence that the plaintiff was mentally- afflicted". —Scheunert v. Albers, 140 W., 578. 49. "A person who, in general, is insane, may bind hirdself by eon- tract made during a lucid interval rendering him capable of appreciating the nature of his acts and exercising judgment in respect thereto." , —Am. G. Co. v. Kringel, 156 W., 94, 96. 50. Under sees. 604q, it is held that the entire property, including homestead, is liable for the support and maintenance of an adjudged insane .person, on a claim by the county therefor. 51. Where the homestead of an insane ward was sold by his guardian under license, and the entire proceeds paid to the county on a valid claim for such support in a state hospital, , 52. The county was held entitled to retain it, and "the fact that the steps pointed out by statute as the proper mode for getting the money > into the county treasury were not followed is not material". —Johnson v. Door Co., 158 W. 10, 17. 53. Where on due petition, appointment pf two physicians, examination by them and report of sanity, "the proceeding was dismissed", such ' ' discharge in the county court was prima facie evidence of want of prob- able cause", and "sufficient basis on which to predicate an action for malicious prosecution". (Gases). 54. The "advice of counsel" would "be a defense if honestly given on a full and fair statement of the facts within the knowledge of a party about to sign such a petition as was here signed". 55. A judgment for damages is upheld, though "the elements of ill will or of a wicked purpose" "probably were absent", where "it seems pretty clear from the evidence that they acted recklessly anl wantonly in the matter". —Manz v. Klippel, 158 W. 557, 560. 56. As to "old-age insanity", and probable absence of "lucid inter- vals". See Testamentary Capacity. — Est. of Bean, 159 W. 67, 79. 57. "Doubtless it is incumbent on the defendant (private sanitarium) and its employees at all times during the treatment of nervous and in- sane patients to use such means to restrain and guard them as would seem reasonably sufficient to an ordinary prudent man under like cir- cumstances to prevent" escape and injury to others, 58. "And for breach of that duty liability will arise, if such breach proximately causes injury to another. Univ. of L. v. Hammock, 127 Ky; 564". Evidence held insufficient. — Torrey v. Riverside Sanitarium, 163 W. 71, 75. INSANITY. See Insane Persons. ; INSURANCE INSPECTION OP BOOKS AND PAPERS. See Discovery. Writings. 601 INSURANCE. Benefit of others, except wife : Assured may dispose of, 23, 38, 50. _ Will or otherwise, 2, 38. , , Beneficiary dies before assured, 4, 46. ' , Assured may change, 16, 47. Benefit certificate, 47. By will to others, 46, 47. No successor therein, 4, 15, 46. Succession provided, 5. Passes to administrator, 17. No interest in premiums paid, 37. Bight expectancy; not absolute, 39. Certificate; against by-law, 13. Against charter, 14.. Change: incompleted, 9. Executor; not as guardian, 20. Same person; immaterial, 21. Ineffective; notice defect, 19. Named in will; not making, 9. Residuary clause in will, 11. Wife; not change or assign, 22. Definition; life insurance^ 27. Pay during lifetime, 28. As to wife ; matured, 29, 40, 44. .Surplus to the assured, 30. Subject to garnishment, 30. Wife's interest in, 30. "Friend" designation in will, 12. Contrary to charter; takes, 14. Contrary to by-laws; takes, 12, 13. Manual transfer to fiancee, 25. Effective; chose in action, 26. Writings to protect company, 26. "Mother," includes step-mother, 48. Stepmother under "heirs," 49. Payments during lifetime, 28, 30. Property: proportions, 31. Accounting by trustees, 31. Other realty; dower interest, 34. Widow's share on homestead, 32. Her insurable interest, 33. Several beneficiaries : "Children;" not grandchildren, 18. Surviving child takes all, 18. "Family; " each equal share, 10. Joint, the survivor taking, 7. Widow and children; equally, 8. Wife beneficiary: Assignment by husb. and wife, 35. Before and after 1891, 35, 36. Divbrce, not divest wife, 55. Husband control before, 1891, 1, 2. Not since ch. 376, L. 1891,. 3, 50. Matures in. her life ; hers, 44. Unless contrary provision, 45. Paid-up; after wife's death, 40. As to law of 1891, 43. Her sole property, 42. Husband no claim on, 40. Premiums, her behalf, 41. Reserve right to change, 52. / Notice, held ineffectual, 54. Vested, subject to divest, 53. Sole and separate property, 22. ' Not change or assign, 22. Not reached by creditors, 23. Not valid as to past policies, 24, 43, 51. Unless right reserved, 52. Surplus in lifetime to assured, 30. Wife dies before insured, 4, 5. Nevertheless vested in her, 6. No successor therein, 4. 1. Prior to the statute of 1891, a husband could dispose of his life insurance by will or otherwise, he surviving his wife the beneficiary named. See Husband and Wife. — Kermcm v. Howard, 23 W. 108, 111. 2. The doctrine "held in Clark v. Durand, 12 W. 223, and again in Kerman v. Howard, 23 W. supra, that a person who procures a policy of insurance on his own life for the benefit of another, and pays the 602 PROBATE AND GENERAL LAW, CODIFIED premium thereon, may dispose of it, by will or otherwise, to the exclu- sion of the beneficiary named in the policy", "must be adhered to by this court". 3. (By Amdt. of Ch. 376, L. 1891 to sec. 2347, this rule is now changed "respecting 'married women and their children, where there is no person named as beneficiary to take in case the mother does not survive to do so". Ellison v. Straw, 116 W. post). —Foster v. Gile, 50 ( as made by the appraisers of the estate), or to set aside, their appraisement, i a want of mental capacity in the appraisers, or their bad faith, fraud, or mistake, or undue influence over them in making their appraisement or award, must be shown. 2 Story's Eq. Jur., 1456; Baasen v. Baehr, 7 W. 516". —Mullen v. Mullen, 62 W. 45, 48. 3. Where the executor inventoried ' ' e'hos'es ill action, or property of the estate" which were claims against him, and which "it was the clear duty of the executor to include (them)- in the inventory, whether he recognized them as valid claims or not" "he did not thereby admit that he owed the estate anything on account of either, or estop himself to deny his present indebtedness thereon". - 4. "A defense to these claims has no proper place in the inventory/ Whether he was the debtor of the estate on either account (note or rent) could only be determined in some legal proceeding appropriate to that end". 5. And it was held error to require him by summary order, to pay an adjudged claim by reason of such inventory, there having been no accounting on his debt. (So far as this case may relieve the executor from the payment of such debt, where there are creditors, or where the will does not relieve him, it is disapproved in estate of Robinson v. . Hodgkin, 99 W. post. See also Finch v. Houghton, 19 W. 149, 157, cited' under Extrs. & Admrs.). — Lynch v. Divan, Extr. 66 W. 490, 492. 6. Executor's own debt to deceased, when and how chargeable and inventoried. See Extrs. & Admrs. — Est. of Robinson v. Hodgkin, 99 W. 327, 330. 7. Personalty claimed by the son as a gift, was on his petition stricken from the inventory, and such order sustained. See also Gift. •',■■ —Horn v. Horn, 152 W., 482. 486. JOINT OBLIGATIONS 617 INVESTMENTS OP GUARDIANS, TRUSTEES, ETC. See Accounts of Guardians. Guardian and Ward. Trustees. Trust Funds. JOINT OBLIGATIONS. See also Joint Tenancy. Agreement not to sue one, 10, 20, 24. Bar as to him alone, 10. Partial satisfaction, only, 25. Settling own matter only, 20. Contribution, right of, 19. Deceased joint obligor: Common law; survivor only, 2. 1 • Judgment, separate, ,23. Not jointly with others, 1. Revived against admr., 1. Judgment against one, 8. Against executor, separate, 23. Agreement not to sue, 10. Bar as to the others, 8, 9. Partnership, contract, 22. Mortgage, several notes, 3.; Notes separately; parties, 3. Security in common, 3. Adverse title against, 6. Bound to each other, 5. . Community of interest, 7. Mortgage, etc. — continued Security, etc. — continued Relation of trust, 4. Oral agreement, buy jointly, 26; Statute of frauds, 2d. Partnership contract, joint, 22. Payment received from one, 11. Bar as to the others, 11, 17. Direction from other to pay, 21. Remains debt of botl\, '21. Limitation statute, 18. Payment by one, not bar, 18. Partial, bar pro tanto, 15. Release under 'seal, 12. Right of contribution, 19. Show full compensation, 12. ' Release under seal of one, 12. Bar as to the others, 13. Parol evidence, not control, 14. Singular number, expressed, 16. Joint and several, 16. 1. "In Jones v. Estate of Keep, 23 W. 45 (See Claims), this court, following the. rule laid down in The Union Bank v. Mott, 27 N. T., 633, decided that where one of the several defendants in an action upon a joint and several obligation dies, the action may be revived against his personal representatives separately, but not against them jointly with the other defendants." 2. But at common law, "in case one joint debtor died, the remedy /at law could" only he had against the survivor ; the remedy agajnst the estate of the deceased being in equity. This rule was applied to the case of a deceased partner. (Cases)." — Sherman v. Kreul, Admr. 43, W. 33, 38. 3. Where a "mortgage secured three promissory notes maturing at different times" and held by different parties, although the mortgagees "held the notes secured by it in severalty, they held the security in common. ' ' 4. "This established, quoad the mortgage, a community of interest, a relation of trust and confidence between them, to support the common security in all proper ways, and to do nothing to divert or impair it. 618 PKOBATE AND GENERAL LAW, CODIFIED -This equitable rule of good faith, we take to be as well recognized in mercantile ethics as in courts of equity." .. 5. "And, whether or not the covenant of further assurance in the first mortgage (this joint one) could have been specifically enforced, the mortgagees were equitably bound to each other, if npt actively to insist upon its performance, certainly to do nothing to defeat it". 6. "These parties were entitled in common," "and neither of them can be tolerated in acquiring an adverse title against his co-tenants". 7. "The rule rests, not upon the strict relation of joint tenants, or tenants in common, but upon a community of interest in a common title, creating such a relation of trust and confidence between the parties, that it would be inequitable to permit one of them to do anything to the prejudice of the others. Rothwell v. Dewees, 2 Black. 613." See also Chattel Mortgage. — Hunter v. Bosworth, 43 "W. 583,- 592. 8. "It is perfectly well settled, that if the holder of a joint debt or obligation sues one of the joint debtors and obtains judgment thereon against him, and then sues another of the joint debtors for the same debt or obligation, . the latter may plead such judgment against his co-debtor and bar the action. 9. This is so because the joint debt is merged in the judgment against the debtor first sued, and, being indivisible, it cannot be merged or cancelled as to one, and existing and operative as to another joint debtor. Bowen v. Hastings, 47 W. 232, and cases cited. ' ' —Lamer v. Bandow, 48 W. 638, 639. 10. "Although an agreement not to sue one -or more of several joint and several contractors or joint wrong doers, made upon a sufficient consideration, is not a technical release or discharge of the debt due or of the damages sustained, yet, to avoid circuity of actions, the party with ' ' whom the agreement has been made may set it up as a bar to an action 'brought against him alone for such debt or damages. Lacy v. Kynaston, 2 Salkeld, 575; 1 Pars! on Con. 28." 11. When ' ' the injured party received a full , compensation in fact from one of two or more joint' wrong doers, or when he enters into such a contract with one that the law raises a presumption that he has received such full compensation from him, such receipt of compensation, or such agreement, is a bar to an action against the other wrong doers. 12. To bar the action of the injured party it must be shown either that he has received full compensation for his injuries, or what was intended as a full compensation, or that he has released one or more of the wrong-doers by technical release, under seal. 13. When a technical release, under seal, is given by the injured party to one of several joint wrong-doers, the courts have quite uniformly held this to release all, and that it is a good bar to an action against those not named in the release. The reason of this rule is based upon the' nature of the release under seal. JOINT OBLIGATIONS , 619 14. The release being under seal, and absolute, its meaning cannot be controlled by parol evidence, and the law raises a conclusive presump- tion and that it was given in full satisfaction in fact for the injury, and upon a sufficient consideration". 15. "When the contract is not of such a nature that the law deems it conclusive evidence that the injured person has been satisfied for the wrong, then it becomes a question of fact for the court or jury, whether what he has received of the one wrong-doer was received in full satisfac- tion of his wrong; and, if it appears that it was not so received, it is only pro tanto a bar to an action against the other wrong-doers". —Ellis v. Esson, 50 W. 138, 145. 16. A contract of guaranty, expressed in the, body in the singular number, but executed by two or more persons, "is a joint as well as several contract. See Dart v. Sherwood, 7 "W. 523" (cited under Promissory Notes). — Fond du Lac H. Co. v. Eashins, 51 W. 135, 137. 17. "In the absence of any statute to the contrary, payment by one joint debtor will remove the bar of the statute as to all, on the ground that, each joint debtor is the agent of all the rest for making a payment which all are bound to make. This is the law by a clear weight of authority." • 18. "But by our statute (sec. 4248), 'no one of them shall lose the benefit of ' " the limitation statutes " 'so as to be chargeable, by reason only of any payment made by other or others, of them'." And it is held, on the evidence, of two joint debtors each agreeing to make and making a payment on one of two joint debts, that such payment- by the one on the note in suit was "in law a payment by both",_ and "stopped the running" of the statute as to both. —Nat. Bk. v. Cotton, Admr., 53 W. 31, 34. 19. Payment by one joint and several maker discharges all as to the holder, but such payor has a right of contribution against his co-maker. See CiiAiMS. — Jameson v. Barber, 56 W. 630, 635. 20. Following Ellis v. Esson, 50 W. supra, it is held that "the receipt of money from one" joint tort-feasor, "with an agreement not to prose- cute him", discharges only him, where it is not "even pretended to settle anything but his own matters". —Pogel v. Meilko, 60 W. 248, 250. 21. "It seems that if a joint debtor, on being called on for payment, refers the person, calling on him to his co-debtor for payment, this amounts to a direction to the latter to make payment for him, and if he does so the payment will be held to continue the debt from that date as to both. Cleveland v. Harrison, 15 W., 670,; National Bank v. Cotton, 620 PROBATE AND GENERAL LAW, CODIFIED 53 "W., supra". Here the note was "barred unless taken- out of the statute by the payment". — Coleman v. Ward, 85 W., 328, 331., ! 22. A partnership contract being joint, a judgment against one releases the others. See Surviving Partner. —Keith Bros. & Co. v. Stiles, 92 W. 15, 17. 23. Where one of two wrongdoers dies, judgment against his executor should be separate. See Bond for Maintenance. — Borchert v. Borchert, 141 W., 142, 145. 24. Approving, "the doctrine of Ellis v. Esson, 50 W., supra," as now "the general rule", 25. It is held that where a release to one "showed on its face that it was given in partial satisfaction only of the claim, "it is construed "as a covenant not to sue" and as such does not release a joint wrong-doer. —Kropidlowshi v. Pfister & V. L. Co., 149 W., 421, 425. 26. "An oral agreement to buy jointly" is held not within the statute of frauds, nor nudum pactum. See Sale of Personalty. —Stack v. Rath Bros. Co., 162 "W. 281, ,287. JOINT TENANCY. See also Joint Obligations. Definition; Bl. Comm., 7. Husband, etc. — continued Severance; effect of, 23. Severed by deed from -wife, 20, 28. In .lifetime only, 25. Devise by either, inoperative, 25, 29, Significant incident, 22. 31. The four unities, 21. Grantee holds in common, 20. Descent taken by, 12. Insurance benefit certificate, 4. Devise by one, inoperative, 25, 29. Mother, daughter, one dies, 4. Entireties; definition, 15, 27. T Surwor takes the whole, 8. Apparently none now, 16, 17, 28. L ^™ : Wlth ° Ut , indication » 10. tt i. j' j •.£ Within common law, 9. Husband and wife: >, . , A "' * . , „ , .... , „ „„ Married women statute, 16, 19. At common law; entireties, 1, 15, 27. Personalties, joint, 6. Husband not alienate, 2. As at ^ £ g _ Consent of wife; separate estate, 32. Natlir ^ realt ' 5 Execution, as to life est., 3, 18. Purchase only, taken by 13 Hold as at common law, 3. Act of the parties, 13.' Changed subsequently, 16. Severance; to common, 20, 23. Note and mortgage, 14. As by alienation, 24. Now hold as joint tenants, 17, 20, 26, Devise by one inoperative 25 29 31 27 j 30- Trust estates: in solido, 11. ,i 1. At common law the husband and wife took by an entireties, and the survivor took the whole. -^Ketchum v. Walsworth,^ W. 95. JOINT TENANCY 621 2. "This court held in Ketchum v. Walsworth, 5 W. supra, that where an estate is granted to husband and wife they take by, entireties, and not by moieties; and that the husband could not alienate or encumber the estate so as to prevent the wife, after his death, from taking the whole as survivor. " 3. "We are of opinion that lands granted or conveyed to husband and wife are held by them as at common law" and the statute "was not intended to apply to estates of this kind. We must therefore hold that the husband's interest, at least his life estate, is subject to execution, except such part as may be exempt as a homestead". (Subsequently changed by statute. See Citizens' L. & T. Co. v. Witte, 116 W. post). —Bennett v.. Child, 19 W. 362, 364: > 4. In a mutual benefit insurance certificate, "the whole insurance of $2,000 is made payable to both" the named wife and daughter of the insured, "as an entirety", and the wife haying died prior to the insured, and he having deceased without making any change in the beneficiaries, and there being then no regulation,of the association thereto, the question is "whether this benefit insurance is made payable to the wife and daugh- ter as an entirety or in severalty as tenants in common or as joint tenants". , ■ 5. "It must be determined by its analogy to the terms 'tenancy in common' and 'joint tenancy' in respect to realty and at common law. They may be said to have the same nature and incidents. 6. There may be joint tenancy of personalties, and, like the properties of a joint estate, they are derived from its unity, which is fourfold, — ■ of interest, title, time, and possession. Each of the joint tenants' must have the entire possession as vfell of every parcel as of the whole. Where a horse is^ given to two persons, they are joint tenants. Martin v. Smith, 5 Bin. 16, 6 Amer. Dec. 395. » ' 7. 'A joint tenancy is where they have the same interest, arising from the same conveyance, commencing at the same time, and held by one and the same undivided possession. On the death of one, the entire ten- ancy remains to the surviving co-tenants, and not to the heirs of the deceased'. 2 Bl. Comm, 180. 8. This insurance, payable to two persons, has all the essential char- acteristics *of a joint tenancy, without any words or reasons appearing to indicate an intention to make it payable in severalty, or to have it go to the heirs, or to revert to the assured or to his estate, on the death of one of the beneficiaries." So held, and that the surviving daughter takes the whole. (Distinguished' in Wallace v. St. John, 119 W. 585, 596, the court saying that "the question of husband and wife was not involved, and the severance was not involved"). 9. Referring to our statute (sec. 2068) as to devises concerning joint tenancies, it is said, that "on the principle of analogy, if devises to joint tenants with tjae jus accrescendi are lawful, so are legacies of personal- 622 PROBATE AND GENERAL LAW, CODIFIED ties. They 1 are substantially alike, arid within the same reason, and they have been decided to be within the doctrine of the common law. * Jackson v. Roberts, 14 Gray, 546 ; Stires v. Van Renssalaer, 2 Bradf . Sur. 172 ; 2 Redf. Wills, 175. 10. We may say, therefore, that legacies come within the. excep- tions of our statute, and that, when made to two joint legatees, without any words to indicate a severance of their interests, if one die, the sur- vivor takes the whole legacy". —Parr v. Trustees, A. 0. V. W., 83 W. 446, 451. i 11. The exception of trust estates (sec. 2069), is applicable only in devises "to two or more persons in solido". See Construction op Wills. —Saxton v. 'Webber, 83 W. 617, 624. 12. It is indicated that joint tenancy, as to realty, where it might otherwise apply, did not apply where "they took by descent, and not by purchase, as by grant ou.devise". 13. "The creation of an estate in joint tenancy, it is said, 'depends on the wording of the deed or devise by which the tenants claim title, for this estate can only arise by purchase or grant, — that is, by the act of the parties, — and never by the mere act of law'. 2 Chit. Bl. 180". See also Descent and Distribution. —Brown v. City of Baraboo, 90 W. 151, 155. 14. Citing and following cases, supra, it is held that a note and mort- gage running to the husband and wife, partial proceeds of the husband^s farm, the wife's name being included' in consideration of her release of dower and homestead rights, were held by them in joint tenancy, and upon the death of the husband, went to the wife as the survivor, and not to the executor of the husband for the payment of debts. —Fiedler, v. Howard, 99 W. 388, 393. 15. "Undoubtedly, at common law the same words of conveyance which would make two other persons joint tenants would make the husband and wife tenants of the entirety (citations) ,", — "that is to say, the husband and wife did not take the title properly as joint tenants, nor tenants in common, but both were seized of the entirety, and the survivor * entitled to the whole estate. (Citations)". 16. But notwithstanding that sees. 2067-2069 as to joint tenancy,- did not change the rule as to husband and wife, the subsequent changes in 1878, by sees. 2340 and 2342, "to obviate the effect of" Bennett v. Child, 19 W., supra, enlarged "the rights of married women" and changed the common-law rule, 17. So as to "treat the estate by a deed running to husband and wife,' as in the case at bar, as an estate 'held in joint tenancy', instead of being held as tenants of the entirety, as at common law." See also Husband and Wipe. —Citizens' L. & T. Go. v. Witte, 116 W., 60, 63. ' , JOINT TENANCY 623 18. After reviewing cases supra, and , indicating that Ketehum v. Walsworth, 5 W, supra, "is of no significance here, except as it reiterates certain rules of the common law ' ', that Brown v. Baraboo, 90 W. supra, "furnishes no aid in construing the" statutes here 1 involved, that Ben- nett v. Child, 19 W. supra, decided that at least the husband's "life estate in such lands" was subject to execution, — It is held: 19. That under the subsequent revision of 1878, the joint tenancy statutes, sees. 2067-69, now included application of the married woman statutes, sees. 2340 et al. y as held also in Citizens' L. & T. Co. v. Witte, 116 W. supra, and that, 20. "The deeds in question" to husband and wife, after 1878, "made them joint tenants and that such tenancy was severed by the deed from the wife, A. to the defendant S.", and that defendant and the husband "hold all the lands in question as tenants in common". In the cases of Parr v. Trustees, A. O r U. W., 83 W., and Feidler v. Howard, 99 W., supra, "there .was no question of severance of such joint' tenancy involved". r — Wallace v. St. John, 119 W. 585, 590. 21. "A joint tenancy at common law" has "the four unities: unity of interest, unity of title, unity of time, and unity of possession. 22. The special significant incident of joint tenancy is the right of survivorship, by which on the death of any tenant his interest goes to his survivors. 23. Anything which destroys the unity of title or interest without affecting the unity of possession will turn the interest severed from the others into a tenancy in common as regards the remaining joint tenants. (Citations). 24. The most familiar method of so severing the interest of one joint tenant from the interests of others is by alienation. 25. As such severance to be effective is required to occur during the lifetime of the joint tenant, a devise by such tenant is inoperative." (Citation). 26. The statute, sec. 2068, "abolishes joint tenancies",* except by sec. 2069, as "to husband and wife". "So circumstances that will create a joint tenancy generally at common law will create one between hus- band and wife under the statutes". 27. At common law, what would "create a joint tenancy only", would as to husband and wife, make "them tenants by the entireties, as to which there could be no severance by partition or alienation. (Cita- tion)". 28. But ' 'since the revision of 1878, circumstances which prior thereto made the husband and wife tenants by entireties subsequently had made them joint tenants with the common-law characteristics thereof". (Cases, supra). , 29. Held, that as to, a husband and wife joint tenancy, "she was under a disability, the same as he was, to pass her interest or to in any way 624 PEOBATE AND GENERAL LAW, CODIFIED incumber it J>y will. Her attempt to do so did not affect his right of survivorship", or his title to "the whole property '< upon her death. —Bossier v. Rewodlimki, 130 W. 26, 28. 30. " It is well settled in this state that where lands are deeded to hus- band and wife a joint tenancy is thereby created, 31. And that the right of survivorship exists in such case as at com- mon law, which cannot be defeated by devise of the property made by the joint tenant who first died. (Last case, supra) ". 32. Where the wife "consented" that her "separate estate" received from her mother's estate, "be conveyed to herself and husband as joint tenants", there being "no fraud or mistake of fact", upon her decease the whole title remained in the husband. See also Husband and Wife. —Friedrich v. Huth, 155 W. 196, 198. JUDGE OF COUNTY OR PROBATE COURT. See County Judge. JUDGMENTS. See also Descent and Distribution. Foreign Judgments. Fraudu- lent Orders. Mistake. Orders. Settlement. 'Vacating Judgments. Allowance of claim is, 7, 34. Except as to execution, 34. Appeal from final decree, 36. Set aside in part only, 36. Assignees of heirs; proper, 42. Assignees; subject to equities, 11. Bind parties and privies, 17, 18, 60, 61. In rem, subject, whole world, 62. Interest, law or estate, 17, 19. . Collateral attack' questions : Not whether obtained by fraud, 56. Whether jurisdiction had, 56. Conclusive; everywhere, 1, 41, 54. Collaterally safe, 1, 3. Extent of heirs rights, 10. Including probate court, 1, 41, 55. Including propositions therein, 53, 60. In personem; on parties, 61. In rem; subject; whole world, 62. Jurisdiction competent, 1, 53, 59a. Not affect legal title, 9. Subject matter in suit, 3. Till set aside directly, 54, 59, 59a. Upon rights of parties, 3, 54, 59b. Default: by administrator, 2. Not asset admission, 2. Deficiency in foreclosure, 37. After decease of mortgagor, 37. Definition: judgment, order, 20. Dismissal: hearing on .merits, 15. Answer praying for, 16. Effect of judgments: Conclusive until reversed, 54, 59. Including probate courts, 55. In personem, upon the parties, 61. In rein, subject, whole world, 62. Propositions assumed, decided, 53, 60. Within jurisdictional limits, 54. Executor asks adjudication, 80. Conclusive on due notice, 80. Judicial advisory directions, 81. Protects all parties concerned, 82. Though without notice, 82. Final decree: Application after extr's. decease, 50. Heir of devisee applies for, 50. , Assign realty according to will, 47, 71. Though title passes by will, 48, 71. What proof of title as to parties, 49. Binds only parties with notice, 27, 74. Concludes extent of heirs rights, 10, 44. JUDGMENTS 625 Final decree— continued Conclusive | as any final, 1, 12, 41, 74. Within its jurisdiction, 12. Conclusive for certain purposes, 30. Protects administrator, good faith, 30. Conclusive, questions adjudicated, 28, 53. Determine parties' rights, 75. Not as to prior life lease, 77. . Not as to prior title rights, 76. Such title as decedent had, 75. ^Effect, left an open question, 23. General effect ofjudgts., 53, 54. Applies to probate courts, 55. Mistake corrected; twelve years, 51. Not affect legal land, title, 9, 31, 44, 71, 75. Notice to parties, essential, 24, 25. As to account only, not, 24. Failure goes to juris., 26. Publication notice only, 41. Void as to those not, 33, 45. Power to order distribution, 47, 74. Construe will; decide, 74. Propositions assumed;, decidedji53. Recitals not required, 63. , Whether title can be^divested by, 52. Foreign :. Heirs must have notice, 24, 25. Jurisdiction inquired into, 5. Form, against admr., trustee, 35,-79. De bonis -testatoris, 79. Estate liable, set forth, 35, 38. Otherwise, personally liable, 39. Presumption of good faith, 40. Regardless of pleadings, 78. Guardian's account settlement, 46. Infant heirs : without notice, 14, 33. Cloud on realty title, 58. Without guardian; void, 57. Interlocutory judgment, 21. Judgment: obtained in lifetime, 32* Against executor; circuit court, 70. After claims barred, 70. Effective without filing, 32. Judicial advisory directions, 81. Notice essential; probate, 25. Binds only those having, 27. Binds; publication notice only, 41. For account only; insufficient, 24. Jurisdictional; not error, 26. Statutory; not conclude title, 31, 45. Void as to those not having, 33. Nunc pro tunc, writing, 8, After term, orally made, 8. Ordered later so entered, 69. Orally given from bench, 8, 65, 83. Clerical duty remains, 66. Effective, not written, 67, 80'. Finding filed; decree ordered, 68'. Ordered signed nunc pro tunc, 69. Written merely evidence thereof, 83. Order for judgment, 6. Not execution thereon, 6; Parties; a^ll having interest in, 18. Person who pays; action, 22. Prematurely entered; irregular, 43. Probate courts : . , Judgment rules apply, 53, 54, 55. More jurisdictional defects, 29. Powers limited to statutes, 29. Recitals not required, 63. Stipulation; thwarting will, .64. Title of devisees vests, 72. Subject to creditor's rights, 73. Vacation: , ■ At a subsequent term, 13. Default, after a, year, 4. , Non-resident application, 4. Established rules of, 84. Written, merely evidence of oral, 83. 1. "The judgment of a court of competent jurisdiction is conclusive upon all the world, and until such judgment shall be reversed by the proper superior tribunal, cannot be questioned or impeached" in any collateral issue". Syl. Relating to administrator's sale, real estate, etc. (Affirmed on appeaL G-rignon's Lessee v. Astor, 2 How. 319. Re-affirmed in Comstock v. Crawford, 3 Wall. 396. , Rule specifically applied to probate and county courts.) — Jackson v. Astor, 1 Pin. 137. 2. Judgment by default "against executors and administrators is not an admission of assets". ^-Ghmdem v. Hooe, 1 Pin. 663, 666. Zimmerman-^-40 626 PEOBATE AND GENERAL LAW, CODIFIED 3. "The judgment of a court of competent jurisdiction is final and conclusive upon the rights of the parties, touching the subject matter of the suit, and" "cannot be impeached collaterally, or by a counter action." —Woodward v. Hill, 6 W. 143, 148. 4. Judgment by default, after personal service, on non-resident within the state, will not be set aside on application a year thereafter, there being no fraud, — reasonable diligence being required. —Sanderson v. Box, 6 W. 164. 5. Jurisdiction of foreign judgments may be questioned and inquired into. See Foreign Judgments. — Rape v. Heaton, 9 W. 328, 332. 6. An entry properly signed and reading "ordered judgment, etc.", is hot a final judgment, but an order for judgment, and execution cannot be issued thereon. — Lincoln v. Gross, 11 W. 91, 95. 7. The allowance of a claim has "all the force and effect of a judg- ment." See also Claims. — Price v. Dietrich, 12 W. 626. 8. Where "orally given and judgment thereon perfected" the judg- ment may, subsequently to the time limitation after the term, be "reduced to writing and directed to be filed, nunc pro tunc". — Williams v. Ely, 13 W. 1, 3. 9. The final decree of the county court, "at most only ascertained and declared the shares or parts of the estate to which the several heirs or their representatives or assigns were entitled", but "did not purport to affect or transfer the legal title to any estate or lands". 10. "This was the extent of the authority conferred upon the county court, and the utmost effect which can be given to such decree with regard to the lands in question, is that, as between the plaintiff and the other heirs and the trustee, it may be conclusive of the extent of their respective equitable rights and interests. ' ' ■ ■■' -< i : ■ • . • . ■ < —Oillett v. Treganza, 13 W. 472, 477. 11. The assignees of a judgment take it "subject to the equities between the parties". — Blakesley v. Johnson, 13 W. 530. 12. "The decree of the probate court as to matters within its juris- diction, is as conclusive and final as the judgment of any other court". —Barker v. Barker, 14 W. 131, 147. 13. The court may vacate or correct at a subsequent term under com- mon law rules, as well as under the statute, for irregularities, etc. See Vacating Judgment. —ffitna Life Ins. Co k v. McCormick, 20 W. 265. JUDGMENTS 627 14. Order of distribution is not binding upon minor heirs having no notice. See Infants.' —Bresee v. Stiles, 22 M. 120, 126. 15. "A judgment of dismissal, after a hearing upon the merits, is, as we understand it, conclusive upon the complainant as to all facts involved in the issue. " j ■ 16. ' ' The prayer of the answer, that the complaint might be dismissed, did not preclude the court from adjudicating specially upon every fact set up in the answer as the ground of such relief". i -^-Amory v. Amory, 26 W. 152, 161. 17. ' ' Judgments are binding not only upon ( the parties but upon privies in interest, law or estate ". —Finney v. Boyd, 26 W. 366, 370., 18. "The general rule of law is, that all persons having an interest in the subject matter of an action, when the same is commenced, should be made parties thereto, and that none but parties and privies are con- cluded by the adjudication. 19. This rule is so eminently reasonable and just, that no exception should be made to it unless clearly created by law". —McCoy v. Quick, 30 W. 521, 527. 20. According to the Code, "a judgment is there defined to be 'the final determination of the rights of the parties to the action' (sec. 2882), while every direction of a court made or entered in writing and not included in a judgment is denominated an order. 21. There is no such, thing now as an interlocutory judgment in a case; the only judgment authorized being one that finally disposes of and determines the rights of the parties". (Since 1898, allowed, sec. 2883). —Sellers v. Onion L. Co., 36 W. 398, 401. 22. The real party, who pays may bring an action to recover. See Parties. Vacating Judgment. —Mann v. ffitna Ins. Co., 38 W. 114, 117. 23. "The question' whether the judgment (of the cOunty court) assigning the property, when regularly made, upon proper notice to all concerned, is binding and conclusive upon all the parties in interest until reversed, is very important, and will he left undecided in this case. Should it again arise, it will be treated as an open question": 24 In this -case the heirs, excluded under the will, resided m Ger- many, and the statutory notice by publication "for hearing and examin- ing the final account" only, apparently, was had, and the circit court "found that mo notice, either actual or constructive, was ever served 628 PROBATE AND GENERAL LAW, CODIFIED upon them or either of them, of the proceeding for the distribution or assignment of the estate, prior to the time of the making of the order. 25. We fully agree with the circuit court that such a notice was essen- tial, and that the want of it deprived the probate court of jurisdiction to enter an order or judgment assigning the estate to the defendants (devisees), which would effect the rights of the plaintiff .(heirs)." 26. .''Failure to give the notice was not an irregularity or error merely, but it went to the jurisdiction of the court. It is a fundamental principle in the administration of justice, that, no one .shall be deprived of his property without his day in court, and having an opportunity to be heard". 27. "In Bresee v. Stiles* 22 W. supra, it was decided that an order of the probate court distributing an estate binds only the parties who have notice of the proceeding". 28. "In certain matters these orders and judgments (of probate courts) are conclusive upon the questions adjudicated". 29. The probate, courts "are limited strictly and precisely to the powers conferred by statute, and what is irregularity and error merely in a court of general jurisdiction, to be corrected on error or appeal, becomes with them in many cases defect of jurisdiction, and renders their judgments void". 30. ''For certain purposes the. order of judgment of distribution may be deemed conclusive and final. In Loring, admr., v. Steineman, 1 Mete. 204, the court held that:' a decree of distribution made ,by a probate court, after such notice as the court, in its discretion; shall think proper to order, is so far conclusive as to protect an administrator , acting in good faith, in conforming to it.' .Kellogg v. Johnson, 3,8 Conn. 269, states the same doctrine. We do not .find it necessary to question the soundness of these decisions".., ,31. 'The court is "unwilling to sanction" the doctrine that by- the statutory notice "of the application for the probate of the will", the "heir is concluded in respect to the title of real estate under th$ final order of distribution". ; — Ruth v. Oberbrunner, 40 W- 238, 269. 32. A court of equity will not interfere, at the instance of an admin- istrator, to prevent the collection by execution of a judgment obtained against the intestate in his lifetime, and not filed as a claim against the estate. —Jilsun, Admr. v. Stebbins, 41 W. 235, 241. . 33. The decree in probate proceedings is "void only as to such persons in interest as did not appear or assent thereto", in case of failure of the statutory notice. ' See Jurisdiction. —O'Dell v. Rogers, 4A W. 136, 172. 34. The allowance of a claim in county court is a judgment for all purposes, except as to execution. See Claims. Jameson v. Barber, 56 W. 630, 633. i JUDGMENTS' ' 629,, 35. The judgment in form in a proper case should "be against the party as administrator, trustee, etc." to be chargeable on the estate, and "such direction should be inserted in the judgment itself". See also Costs and Pees. —Eei v. Heller, 53 Wj 415, 420. 36. On appeal from a final judgment of distribution, it should be set aside only so far as necessary to adjust the rights of the parties to the appeal. > — Baker v. Baker, Extr. 57 W. 382. 37. Judgment for deficiency in foreclosure cannot be had against heirs or devisees, made parties after the decease of the original parties, but such deficiency " should, have trustee, yet to make the estate or person represented liable therefor, the judgment: itself must contain 'a direction to that effect". (Fol- lowed in Bogue'v. Laughlin, 149 W. post). 39. ""We are not willing 1 to disturb 1 the ruie thus definitely estab- lished. This judgment contains no direction making it chargeable upon the estate of plaintiff's' intestate. It is therefore a judgment de : bonis propriis. The court can probably give such a judgment only in a case where the administrator or trustee has been guilty of mismanagement or • bad faith. Sec. 2932. 40. The record before us contains no suggestion that the plaintiff had < thus rendered himself chargeable with the costs. The presumption is that he had not. • " '. *■ True, he failed to appear when the case was called for trial, but that, of itself, raises no inference either of mismanagement or bad faith". —Ladd v. Anderson, 58 W. 591, 592. 41. Pinal judgment, including advancements, is held "conclusive on all the world, ' ' on publication notice only. See also Advancements. 42. Where in an intestate estate,, the judgment recited that the heirs gave to the widow "a quitclaim deed of all) their estate" and title, and the, judgment accordingly assigned the whole estate to the widow, it was assumed proper, the court saying that "Sec. 3945 provides that the distribution may be made, to the grantees of the heirs". I r^Ligmger V: Field, 78 Wi<367, 372. 43; -A judgment "prematurely entered," is an irregularity merely, and ean be avoided,' if waived, only because. "unjust or inequitable." See Jurisdiction. : . ' < •■ *'!<• •■- " ■"' • .•■". : '■->■■'■ —Marshall I. Bank v. Milwaukee W. M., 84 W., 23, 26. 630 PROBATE AND GENERAL LAW, CODIFIED 44. As to see. 3940,' "the effect of such order or judgment of distri- bution is not to transfer the title, but to determine the persons entitled to the property, and their respective interests therein. Gillett v. Treganza, 13 W., supra. 45. But even such order or judgment is not conclusive as against those claiming under the will, without notice or opportunity of being heard. Bresee v. Stiles, 22 W., supra; (other cases.)" (Cited and fol- lowed in Smith v. Smith, 140 W., 599, 601. See Heirs). —Jones v. Roberts, 84 W. 465, 471. .46. Order on settlement 1 of guardian's account is conclusive. See Accounts of Guardians. — 'Connor v. Decker, 95 W., 202, 204. 47. On a proceeding ten years after, to set aside the final order of the county court assigning real estate, fraud not being proven, and the court having jurisdiction of the estate, it was held, that the court also had jurisdiction, "upon the conclusion of the settlement of the estate, to make a final order distributing the remaining personalty, if any, and assigning the real estate in accordance with the provisions of the will": 48. "True it is that title to real estate passes by the will (when duly probated) , -and not >by the decree of the court ; but this argues nothing ] against the power and jurisdiction of the court to make the order. 49. What the effect of this order may be, whether conclusive or only prima facie proof of title as, between the parties to the proceeding; is a matter which it is unnecessary to discuss or decide inthis case". 50. The final order, here, was made, — some years after the decease of the executrix, and of a subsequent administrator de bonis non, neither having concluded the estate, the personalty having been used for debts and expense, but the latter, at least, filed no account, — on the applicat- ion by the daughter and heir of a devisee and her assignee. —Will of Hess, 97 W. 244, 249. 51. Judgment assigning estate differently from oral judgment, cor- rected twelve years later. See_ Mistake, 52. "Whether title to land so vested (on the testator's decease) in a devisee by the plain and unambiguous language of a will can be subse- quently divested by an order of the county court, under sec. 3940", is not determined. See Jones v. Roberts, 84 W. supra ; Will of Hess, 97 W. supra. — Hall v. Hall, 98 W. 193, 200. '. ■. ' i 53. "The. general rule is that when a court has jurisdiction to render a judgment, every proposition assumed or decided, leading up to the final result, the order or judgment, is included within it, 54. And till reversed* on appeal or set aside in some direct proceeding for that purpose it is conclusive for the purposes of that case or proceed- ing upon all parties thereto, in that and all courts. (Many cases) JUDGMENTS 631 55. This familiar rule applies to all courts to the extent of their juris- diction. Probate courts are as much within the rule as any other. Barker v. Barker, 14 W. supra, and Cody v. Cody, 98 W. post." See also Claims. —Roberts v. Weadock, 98 W. 400, 405. 56. "A judgment may be procured by the grossest fraud, and yet be within the undoubted jurisdiction of the court- which renders it. Upon collateral attack, the question is not whether the judgment was obtained by fraud, but whether it was rendered without jurisdiction". — Cody v. Cody, 98 W. 445,452. 57. A final judgment of the county court, in which infant heirs were ignored, and were not represented by a guardian or guardian ad litem, alleged to have been obtained by fraud, in an action to remove cloud of title, "in so far as it inferentially attempts to affect the title of the plaintiffs (such infants) , must on this demurrer, be regarded as a nul- lity. 'Dell v. Rogers, 44 W. supra ; (other cases) . 58. Upon the facts stated, such judgment and decree of the county court was a mere cloud upon the title of the plaintiffs". —Kruczinski< v. Neuendorf, 99 W. 264, 271. 59. A judgment "must be given conclusive effect, it not having been appealed from nor attacked, and having attained a stage precluding its modification by either method." — Welsher v. Lilly M. & L., 107 W.; 47, 48. 59a. In an ejectment action, the prior unappealed final decree of the county "court having complete jurisdiction of the matter of the pro- ceedings, and of the several persons interested", is held conclusive 1 oh the question of legitimacy of a child of the testator ; 59b. In an ejectment action, the prior unappealed final decree of, the three courts, ten years later, to have such decree set aside it is said : "We must regard the judgment and decree of the county court as res adjudicata. (Cases)." (And see also. Will of Durkee, 164 W. 41, 43, under Jurisdiction). . — Huebschmann v. Cotzhcmsen t 107 W. 64, 72. 60. The conclusiveness of a judgment 'extends to "the facts estab- lished or assumed upon which it is based", as to parties and privies. 61. "While a judgment in an action in personem is binding only on the parties of record and those claiming under them, ; 62. A judgment in rem renders the subject on which it operates ' what it declares it to be? and is consequently binding upon the world. Every" person is supposed to be concerned in isuch an adjudication and to be constructively before the court". This does not include actions as to private rights only to property, as to enforce liens, attachments, etc., "rights in which; the public generally are not interested". , — State ex rel. Atkinson v. McDonald, 108 W. 8, 14. 632 PKOBATE AND . GENERAL, LAW, CODIFIED - 63.. As to, effect of recitals and findings in the judgment not required by the statute, sec 3940, not being conclusive on subsequent settlement among the heirs. See Settlement. i — Malda'ner v. Beurhaus, 108 W. 25, 31. ■ 64. Pinal judgment, after a will contest adjudicated by stipulation, entered accordingly, and held not to thwart the will. See Trust Varia- tions. — In re Luscombe's Will, 109 W., 186, 198. 65. "The principle is" "well settled in this state that if the court pronounces judgment from the bench, 66,. And all that remains to be done is the clerical duty of reducing the judgment to- writing or entering the same, or both, the judicial act is complete. " , 67. So far as the court is concerned,: judgment has been rendered not- withstanding the fact that the clerical acts necessary to preserve the evidence of the judgment have not been performed. ( Cases) ; Zahorka v. Geith, 129 W. 498 (See Nunc Pro Tunc). 68. In the present case the court filed findings and ordered the entry of judgment" at the February term, and the clerk failing to "enter the judgment as ordered", a "motion to set aside the findings" "return- able" at the, May term, was "denied" at such May hearing, 69. And the court then "ordered the clerk to sign and enter a judg- ment in accordance with the findings '(signed Mar. 14) as of the last named date nunc pro tunc",— rand such order is affirmed. See also Jurisdiction. — Comstock v. Boyle, 134 W. 613, 617. ",70. A "judgment of the circuit court standing unreversed against the executor" is held properly allowed by the, county court, even after claims become barred. See also Mortgages. '. -^Pereles v. Leiser, 138 W. 401, 403. 71. "The judgment of the county cburt assigning the homestead pur- suant to the will did not transfer title to or in any way alter the dispo- sition of the property made by the will. Smith v. Smith, 140 W. 599 (See Heirs), and cases; Williams v. Williams, 135 W. 60 (See Vesting op Estates), and cases". See also Infants' Sale of Realty. —Rowley v. Rowley, 143 W. 325, 327. 72. "The title to the real estate owned by the deceased at the time of her death immediately vested in the devisees named in the will, 73. Subjects to the rights of her creditors to have their claims paid out of such real estate if the personal property available for such pur- poses was insufficient. (Cases) ; Williams v. Williams, 135 W., 60 (See Vesting of Estates, etc.). ■ • 74. The county court had the power to construe the will and deter- JUDGMENTS' ...... 633 mine what distribution was intended by it, and" "its judgment until reversed would be binding on all persons in interest who were parties to the, proceeding and properly before the court. Appeal of Schaeffner, 41 W., 260 (See Construction of Wills.) ; (other eases) ; Perkins v. Owen, 123 W., 238 (See Administration. )." 75. The final "decree of the county court could only determine the respective interests of the parties to such title as the decedent had at the time of her death. ' 76. It could not adjust equities as between, the devisees and persons who had acquired rights in the property from the testatrix during her life time. Gillett v. Treganza, 13 W., supra; (citation). 77. It follows from what has been said that the county court had no jurisdiction to adjudicate the rights of" a lessee for life "under her lease and therefore the judgment could not affect such rights". —Tviba v. Lass, 146 W., 202; 203. 78. It "is immaterial under oUr system of pleading and practice"; that a "counterclaim (against plaintiff executors) asks judgment against the plaintiff — apparently a personal judgment. :,..,,■ >. 79. A judgment' de bonis testatoris is a proper judgment in all cases where the executor is a party and the estate of decedent is liable for the debt. ( Citations) ". , • See also Taxation of Estates. —Bogue'v. LaugUm, 149 W., 271, 286. 80. "When an executor "presents a matter for adjudication" on due notice, the court's decision "whether embodied in a formal order or merely minuted on the court record", " unless challenged seasonably for correction in .the same court ox on appeal^, it is conclusive". ,.,.,, ; t , 81. "As a, rule, all ordinary judicial advisory directions, within the , range, of reason, , in the business matter of administering a trust, made upon presentation of the facts with due care, 82. Though without notice to the parties interested, and acted upon in good faith, protect all parties concerned". Harrigan v. Gilchrist, 121 "W., 127, 384. : See. also Appeal. ; Probate of .Wills, . , , ! : , j ■^-Will of Rice, 150 W., 401, 458. 83. As to/ oral .announcement of judgment, being such, and. "the writ- ten judgment" "merely the evidence thereof". See Records. .^-Wehr v. Gimbel Bros., 161 W. 485/488 84. Established rules of vacation,! entry, and amendment of 'judg- ments, restated. See Vacating Judgments: ' ' - '•■•" ; . ' ;i , ■■') —FisckbeoJi v. Mielenz, 162 W. 12, 15 634 PKOBATE AND GENERAL LAW, CODIFIED JUDICIAL DECISIONS. See also Rules of Practice. Stare Decisis. Appellant not prejudiced, 9. Error corrected before, 10. Authority, extent of: Effective as ultimate questions, 5. Assumed within issues, 6. Deliberately decided, 5. Presented and considered^ 5. Propositions assumed, 5, 17. No relation to decision, 21. Not support conclusive, 21. Obiter; not within questions, 7. Several independent grounds, 17. Minor points also, 16. Certainty, correctness, 20. Long adhered to, r 20. Clear preponderance is, 26. Competent evidence solely, 34. Contrariety of opinion, 23. Specific error ground, 23. Decide actual controversies, 8. No moot questions, 8. Department ruling, weight, 33. ; Federal questions, strictly, 18. Applied to a state case, 19. Initial determination, 24. Clear preponderance against, 25. Obiter; not within questions, 7. Opinion of supreme court, 14. Conclusions of law, 14. Decision and opinion, 15. Findings of fact, 14. "Opinion" of trial court, 13. "Decision" as to facts, 13. Findings, judicial conclusion, 36. Of little consequence, 35. Statement of reasons, 14. Oral announcement, judgment, 32. Written, evidence merfely, 32. Positive authority of, 1. Purposes of future cases, 2. Questions of fact, 11. Trial courts, superiority, 12. Repeated statements of law, 27. Conclusiveness of, 28. Not necessarily involved, 27. Reversal, fact question, 22. Bight of matter, 30. Facts from evidence, 29. Illogical footsteps, 31. Trial court's; after affirmed, 3, 4. - Cannot be disturbed, 3, 4. When supreme court's, 3. 1. As to a different application of facts in Stinson v. Leary, 69 W. 269, than the instant case, on the question of termination of guardian- ship, it is said: "This is an apt illustration of the importance of the rule stated by Marshall C. J., in Ogden v. Saunders, 12 Wheat. 213, and often cited with approval by this court : ' It is a general rule that the positive authority of a decision is co-extensive only with the facts on which it is made' ". Marshall, J. See also Guardian and Ward. > ' —Pome v. Jones, 93 W. 70, 78. 2. "It must be remembered that nothing is being decided in any case, for the purposes of future cases, but the questions upon which the deci- sion turns". —Peninsular Lead & C. W. v. Union 0. efe P. Co., 100 W. 488, 496. 3. "A judgment of the trial court, when affirmed on appeal, becomes the judgment of this court, and the trial court has no jurisdiction what- ever thereafter to open it, set it aside, or modify it, or do anything in regard thereto except to enforce it". —Crowns v. Forest Land Co., 100 W. 554,. 555.- JUDICIAL DECISIONS 635 4. A judgment of the court below, affirmed by the supreme court, is held, in effect a judgment of the latter court and cannot be disturbed or vacated by the lower cdurt. Sec. 2832 does "not apply to judgments of this court". Nor, apparently, can a judgment be disturbed under sec. 4719, the case of State ex rel. Turner v. Circuit Court for Ozaukee Co., 71 W. 595, contra, being now questioned and, in effect, overruled. — Eon v. C. M. & St. P. B. Co., 101 W. 166, 168. 5. "It is a mistaken opinion that nothing is decided in a case except the result arrived at. All the propositions assumed by the court to be within the case, and all the questions presented and considered, and -deliberately decided by the court, leading up to the final conclusion reached, are as effectually passed upon as the utlimate questions solved. Trustees of Sch. Dist. v. Stocker, 42 N. J. L. 115. 6. The judgment is authority upon all points assumed to be within the issues which the record shows the court deliberately considered 1 and decided in reaching it. Quackenbush v. W. & M. R. Co., 71 W. 472; Pray v. Hegeman, 98 N. Y. 351. 7. Nothing is obiter, strictly so called, except matters not within the questions presented — mere statements or observations by the judge in writing the opinion, the result of turning aside for the time to some collateral matter by way of illustration. Buchner v. 0. M. & N.> W. R. Co., 60 "Wis. 264 (See Rules of Practice) ; (other cases) "." —Brown v. C. & N. W. B. Co., 102 W. 137, 154. 8. "It is a fundamental principle at the foundation of our judiciary system that courts sit only to decide actual controversies, and not to answer moot questions of law or fact, nor to 1 declare abstract principles or rules of law not applicable to issues or controversies actually before them. (U. S. cases;) Plainfield v. Plainfield, 67 W., 525. 9. No less thoroughly established is it that the appellate jurisdiction of this court cannot be successfully invoked unless rights of the appel- lant are substantially prejudiced by the acts appealed from. (Cases). • , 10. Further, it has often been held in Wisconsin that an error in the court below will receive no attention on appeal where it has been cor- rected by the voluntary act of the favored party before the appeal was perfected. (Cases) ". —Hogan v. C. of La Crosse, 104 W., 106, 107. 11. "The most weighty responsibility incident to the judicial' office in trial courts, in civil matters, is that involved in the proper determination of questions of fact upon evidence, 12. Because, unlike a wrong decision on a question of law, one on a question of fact may be safe against challenge in an appellate court because of the presumed superiority of opportunity of the former over the latter, which may not, probably does not, in all cases, exist, for sepa- rating the right from the wrong." - ■ —Minnesota S. Co. v. McCrosseiv, 110 W., 316, 324. 636 PROBATE AND GENERAL LAW, CODIFIED 13. Where "after the trial the court files a written opinion, which he indorses 'Decision' ", which "was followed by formal findings" which are ''silent upon the issue of fact", and judgment is entered thereon,— "the so-called decision, duly signed 'by the court', must be taken as declaring the judicial conclusion upon the facts, so far as any is stated therein". -^-Duncan v. Dimcan, 111 W., 75, 76. 14. "The opinion of this court is not a mere statement of reasons, like an opinion of the trial court, but constitutes the findings of "fact and conclusions of law upon which this court bases its judgment ; , 15> It is a decision as well as an opinion, and is the only paper from .which it can be ascertained what are the conclusions of this court either ! up on the facts or upon the law:" —T. of Fulton v. Pomeroy, 111 W., 663, 668. 16. "It cannot properly be said that the conclusion of a court upon a -minor point is mere judicial dicta because the ultimate decision arrived at might have been bottomed upon some other minor conclusion or con- clusions also reached in the case:" ■' \ >! ■ 17.. "The general rule is that every proposition assumed or decided, leading up to the final conclusion reached in the case, and upon which such conclusion is based, whether it be the sole or only one of several independent and sufficient grounds' for such final conclusion, is as effectually passed upon as the .ultimate question solved. Case v. Hoff- man, 100 W., 334; (other cases);". ; , — Becker: v. Chester, 115 W., 90, 127. . 18. "This court would unquestionably be bound to follow the holding of the supreme court of the United States as to the powers of national banks — this is strictly a federal ' question — 19. But on the others hand, upon the question of the effect or applica- tion of such holding as a defense in a given case properly brought in the state court, this court may properly follow its own decisions, even when differing from the decisions bf the federal courts. Such questions are not federal ; questions <".' —Security. Nat. Bankx^ St. Croix P. Co., 117 W., 211, 217. 20. "Unless the situation be involved", "as where the earlier pro- nouncement was mere obiter dictum, or when conflicting decisions have already been made : by inadvertence or otherwise, and the position of the court is already uncertain", "a rule of law adopted and long adhered to" by the court should be , adhered to, and "courts should ordinarily bow to the considerations that certainty of the law is more essential to justice than absolute correctness", i.i., — Lonstorf y. Lomtorf, 118 W. 159, 160. 21. Where, "what was said" as to an important legal proposition "hadino relation to anything' i& fact decided," and "did not in any '< JUDICIAL DECISIONS • i 637 wise lead to nor support the conclusion reached by the court/' it "cannot be given the weight of authoritative precedent, or warrant hesitation in following the settled rule of decision, if we find such exists." —Dan forth v. Oshkosh, 119 W., 262, 267. 22. "The ordinary rule that the conclusion of the trial court should not be overruled unless it appears to' have' been clearly wrong on the question of fact does not apply" when "the court's conclusion was reached by applying a wrong rule of law,' '. —Glvase' v. Woodruff, 133 W. 555, 559. 23. Where .there is a contrariety of opinion among the justices on an appeal from a judgment, "the view which we adopt is that a majority must agree on some one specific ground of error fatal to the judgment or it must be affirmed ' '. —Will of McNaughto-m, 138 W. 179, 191,. 24. "As experience shows, and from the very nature of things^ justice is much more likely to be done by leaning pretty strongly upon the initial determination than by endeavoring to < treat a disputed .matter from : an original standpoint. 25. Hence the rule that there must not only be a preponderance of evidence against such determination^ but there must be a clear pre- ponderance. " ., . ., 26. "Manifestly", "a clear preponderance", "requires the prepon- derance to be so apparent as to manifestly outweigh any probable : legiti- mate influence upon the triers of those advantages for discovering the truth which the reviewing tribunal cannot have". k (Cases). See also Eeference. — ^Ott v. Boring, 139 W. 403, 407. 27. While "the conclusiveness" of "repeated" statements of law not "necessarily involved", "is perhaps open to debate", 28. Yet "when the court of . last resort has , persistently declared approval of a rule of law, it should not lightly be ignored, especially when, in presence of conflicting decisions in other jurisdictions, such declarations amount to adoption ; af the views of those courts approving the \ rule,". ' , —Will of Hawkinson,- 143 W. 136, 139. . ,,29., "If the judgment be right", — "right on facts found, expressly or inferentially, or both, or not found but appearing clearly from the evidence, — it must be sustained. ,-.,■,. 30. The real right of the matter is the end to be attained in our pwn system of jurisprudence. > . , , , ... . 31. That being clear and having been arrived at without substantial prejudice to : the . adverse party, justice is satisfied however irregularly or illogically the judicial footsteps may have moved in reaching that goal". ' -■ —Est. of Koch, 148 W. 548, 562. 638 PEOBATE AND GENERAL LAW, CODIFIED 32. The oral "announcement from the bench is the judgment. in fact and" "the written judgment" "merely the evidence -thereof". Seealso Records. i — Wehr v. Gimbel Bros., 161 W. 485, 488. 33. As to when the rule "that weight should be given to" tht "ruling of the department" having charge of the subject, in construing statutes, does not apply. See Inheritance Taxes. —Smith v. State, 161 W. 588, 590. 34. ".Where there is x competent evidence sufficient to support the finding, this court will presume, in the absence of an affirmative showing to the contrary, that that finding rests upon the competent evidence solely". —Hilton v. Rahr, 161 W. 619, 623. 35. The opinion of the trial court filed, "is of little consequence except as explanatory of the findings. It was an unnecessary effort. 36. The findings which, in contemplation of the written law, were made by the trial judge, and in the opinion of the writer (Marshall J.) should always be so made in fact, must be taken as the judicial conclu- sion in the case both as to matters of. fact and of law." —Becker v. Bewer Mfg. Co., 158 W. 471, 474. JUDICIAL NOTICE. Acts of Congress, 9. Administrator, same estate, 3. City is a corporation, 6 Date was on Sunday, 8. Divisions of state, 5. Distances therein, 5. Government land surveys, 1. Lands assumed in this state, Judgment or proceeding, 12. In same action in court, 12. Not of other actions, 11, 12. Nature, use, of "air-gun," 7. As of "beer," "gas" and "car," 7. Pleading of matters, 6, 10. Practicing attorneys, 4. 1. "Courts will take judicial notice of the government surveys, and the legal subdivisions of the public lands ; .2. And ' as the parties to this contract all reside in this state, will presume that the land referred to is 'situated in this state, at least until something to the contrary appears," oral testimony to identify being proper to supply the omitted county and state. — Atwater v. Schenck, 9 W. 160, 164. of 3. "The probate court takes judicial notice of the appointment, an -administrator previously appointed in the same estate. —Frederick v. Pacquette, 19 W. 541, 552. 4. The court was not "bound to take judicial notice of who were prac- ticing attorneys in this state, and who were n6t." See also Bonds. —Cothren v. Comumghton, 24 W. 134, 137. JURAT 639 5. The court will take "notice of the geographical divisions of the state" and of distances therein. S'ee Deposition. —Hinckley v. Beckwith, 23 W. 328, 332. 6. "The courts of this state take judicial notice of , the fact that, the defendant city is acorporation created by the laws of the state, and it would be idle to require that fact to be stated in a pleading", notwith- standing a statute (sec. 3205) requiring corporate character to be pleaded, the statute probably relating "to private corporations alone". — Smith v. Jwnesville, 52. W. 680, 681. ! ' ■ ,'M t,- 7. "This, court can take judicial knowledge of the nature and uses of this air-gun, as it can of 'beer' (Briffltt v. . State," 58 W., 39), or of 'gas' (Shepard v. Mil. G. L. Co., 6 W., 539), or of an express or freight 'car' (Nicholls v. State, 68 W., 416)". — Harris v. Cameron, 81 ^W., 239, 242. 8. The publication "dates appearing, the court was bound to take judicial notice that such publications were on Sunday". 1 —Sentinel Co. v. A. D. Meiselbach M. W. Co., 144 W. 224, 228'. 9. "Acts of Congress are not foreign laws and state courts take judicial notice of them. (Citations). 10. Ordinarily if- the facts alleged bring the cause of action within the terms of the federal s'tatute, this is sufficient" pleading. . , —Rowlands v. C. & N. W. B. Co., 149 W, 51, 54. 11. The trial judge cannot ',' take judicial notice of a judgment, merely because of its having been rendered in the court in which, he was presiding. "' 12. A court may take such notice in an action of any order, judgment, or proceeding in such action in such court; but, that rule does not extend to any other action". (Citations). —State ex rel. Mengel v. Steber, 158 "W. 309, 311. JUDICIAL RULES. See Judicial Decisions. Rules of Practice. JURAT. See Verification. 640 PROBATE AND GENERAL LAW, CODIFIED JURISDICTION. See also Appearance. Concurrent Jurisdiction. Circuit Court. Equity. Foreign Jurisdiction. Incompetents. Notice. Publication. Adequate remedy at law, 80. Objection; answer or demurrer, 80. Not ore tenus at trial, 81. Administration : Had before will was found, 101. Irregularly granted, voidable, 3. No personalty, no debts, 32. Not collaterally attacked, 103. Not without will proven, 42. Or proceedings started, 43. Of live persons, void ab initio, 59. Prima facie estate showing, 118. See also Estates of decedents. See also Probate of wills. Administrator de bonis non, 97. Executor continued as trustee, 97. After seven years absence, 93. Annul will after probate, 117. Appearance: when waiver, 31, 96. Contested On merits^ 33, 34. Defect of process serving, 31, 33. Appellate: .not by consent, 127. Court had de novo power, 128. Asset.: whether it is such, 30. Assistants:' power to appoint, "41. Attorneys' fees: administrator, 98, 99. Power to make lien, 101. • / Waiver by appearance, 98. Collateral impeachment : Administrator cannot be, 103. -Not if jurisdiction had, 6: .i ). Propositions assumed or decided, 84. , Waiver by appearance, 98. Concurrent jurisdiction: ' Claims: circuit court; taken away; '60, 61. [Equitable character in equity, 29. Equity not take, when, 17. Implied trusts; equitable estoppel, 38, 39. Over guardians of infants, 18. Consent : Appellate jurisdiction not by,- 127. > i Where appellate already has, 128. Assent or ratification, 57. Can give as to parties, 4. Cannot give of subject-matter, 4, 123, 124. Construction of wills: County courts; before statute, 45. , General notice by publication, 46. County courts, as probate: Claims; exclusive in character, 8. County courts, etc.— continued Equitable; enforce implied trust, 38. Equitable estoppe} enforced, 39. Equity full, as in law, 125. Creating implied trust, 126. Decedent's funds from wife, 126. Equity powers in trust estates, 99. Extensive over estates, 7, 23. Pull statement of jurisd., 35. All acts in administration, 35. Death, domicil, estate, 47. Giving effect to intention, 35. Irregular, admin., voidable, 3. Judgments conclusive, unappealed, 23. Offspring of common law, 1. Plenary in all est. matters, 29. Much is an equitable character, 29. . Cjqn.curr.ent witlj equity, , 29. Proceedings regulated by statute, 22. Bevoke orders entered, 2. See also Presumption. Eecords. Trust bequest, not an will, 36,' 37. Will, administration, estates,, 23. County judge, out of county, 116. Court ought not exercise, 106. Deemed not to have, 107. Manner unknown to law, 108. Whether objected to or not, 109. Claims: exclusive character, 8. Amount due on land contract, 15. Circuit court over, taken away, 60, 61. Creditors: no guardian ad litem, 66, 67,,-, Definitions of jurisdiction, 9, 10, 94, , Absence'from trial, 1131 Complete 1 as to parties, subject, 112. Complete as to parties, 111. . Complete as to subject matter, 110, 122, 123. Effect of pleadings, 121. Not by parties consent, 123, 124. Bender right or wrong judgment, 115. Wrong judgment, error only, 114. Estates of decedents: Death, domicil, estate, 47. Decedent: non-resident, domicil, 78. Chose in action; money, 79. Debts due him, personalty, 79. Locality of personalty confers, 78. Domicil; primary, 47, 78, 129. , Conclusive as to parties, 131. Decided necessarily, when, 130. Federal courts; no jurisdiction, 74. Pull statement of acts, 35. JURISDICTION 641 Estates of, etc. — continued Prima facie estate showing, 118. i Probate courts; extensive, 7, 2.3. Property within state, 92. Domicil, immaterial, 92. Jurisdiction elsewhere, 92. Settlement; proceeding in rem, 74. Subject matter; particular case, 48. Estoppel: equitable enforced, 39. Final decree: of assignment, 83. Application of parties, 83. Determine distribution, 120. ' Not adjudicate lessee's rights, 83. Foreign judgments: May be inquired into, 5. Guardian ad litem : None: infants unharmed, 66, 71. See also Probate of wills. Subsequent appointment, infants, 58. Guardian's accounts: Settlement order, conclusive, 82. Historically, and now: , Chancery, formerly of wills, 19. Eealty and personalty, 19. Common law as to realty, 21, 49. Conclusive between parties, 50. County courts in this state, 23, 52. Conclusive; all having notice, 53. Conclusive, unless appealed from, 23. Wills, administration, estates, 23. Courts of special juris, in U. S., 22, 51. Regulated by statute, 22, 53. Under various names, 22. Ecclesiastical, as to personalty, 20, 49. Conclusive, all persons, 50. >' ■ Inoperative as to realty, 21. Presumption not indulged in, 24. Eealty sale as in general courts, 25, 28. Want of appears affirmatively, 27. Where record is silent as to, 26. Where records fail to show it, 24. Judgments: conclusive ' collaterally, 84. Propositions assumed, decided, 84. Trial court, after appeal,! 89. Judicial notice of prior acts, 13. Administrator, same estate, 14. Non-resident: publication, 75. Jurisdiction of property, 75. Not for personal judgment, 75. See also Estates of decedents. ' Notice : of final distribution, 44, 56. Blank in publication affidavit, 73. Probate valid; time lapse, 72. Record merely silent, 72. Defective publication notice, 85. Parties appearing bound, 96. > General by publication, 46. Zimmerman — 41 Notice — continued Incompetent realty sale, 62. May be waived, 56, 57. Probate; subsequent proceedings, 57. Realty sales; specific partiesy 55, 63. . Want of, proceedings void, ,56, 57.. Petition, if not demurrable, 9. Record in same estate, 10. Power on allegations made, 10. Premature judgment entry, 76. Irregularity; may be waivedj 76. Others than judgment creditor, 77. Presumption: not indulged in, 24. Realty sale as in general courts, 25, 28. Want of appears affirmatively, 12, 27. Where record is silent, 26, 72. Where records fail to show, 24. Probate courts. See County Courts. Probate of wills: Complete jurisdiction, 52. Conclusive,; all having notice, 63. Death, domicil, estate, 47. No guardian ad litem; estate insolvent, 66, 69. Binding upon the creditors, 67. Minors unharmed; realty sale, 71. Probate bound widow and extrs., 66. Realty in heirs; pers. in extrs., 69, 70. Void as to minors only, if at all, 68. Widow, extr. sole benef ., elected; 66, .69- Notice; defective; set aside, 85. Binding on those appearing, 96. Deceptive recital in order, 85, 86. Jurisdiction to hear proofs, 88. Not to bind parties, 88. Oral proof as to notice, 85. Proof of pub. not filed, 85. Recital of legal notice given, 87. Notice failure; subsequent acts, 57. Petition to set aside; amendment, 104. Assignment falls with probate, 105. Subject matter; particular case, 48. Recitals: as intendment, 86. Certificate of probate; notice, 91. Notice; in compliance with law, 87, SI. Records : fails, not binding, 11. Judicial notice of prior acts, 13, 14. Must show affirmatively, 12. See also Presumption. Whole record continuous, 13. Sale of realty: Derogation of common law, 54. Failure of notice, waiver, 56. '» Fraudulent; executor as trustee, 73. Incompetent; guardian represents, 62. Petition; statute; no inferences, 65. 642 PROBATE AND GENERAL LAW, CODIFIED Sale of realty — continued Trusts— continued Jurisdiction of parties; notice, 55, 63, Though remedy at law, 40. 96. Waiver: No guardian ad litem; sale held valid, Parties; not subject matter, 4. 71. Assent or ratification, 57. Petition, facts as statute states, 54. Contested on merits, 33. Jurisdiction of subject matter, 54, Irregularity, by judgment debtor, 76. 64. Jurisdiction of person, 34. Petition; value of personalty, 16. Notice may be waived, 56. Presumption as in general courts, 25, "When by appearance, 31. 28. Widow: sole benef. elects, 69. Special notice, etc., necessary, 95. See also Probate of wills. Trusts: enforce implied, 36, 37. Wrong determination, immaterial, 90. Bequest not in will, 37. 1. The jurisdiction of probate courts is not entirely statutory, but such courts are "the offspring of the common law". 2. Probate courts may ' ' revoke or reverse orders entered in_ the course of probate proceedings. ' ' 3. Administration irregularly granted upon the petition of strangers, without notice, is held voidable, but not "entirely void". See Adminis- tbation. — Brunson v. Burnett, 2 Pin., 185, 188. 4. ' ' Consent as a general thing, cannot give jurisdiction of the subject matter of the action. But consent can and does give jurisdiction of the parties to an action. ' ' — Walker v. Bagan, 1 W. 597, 626. i 5. Jurisdiction as to foreign judgments may be inquired into. See Foreign Judgments. • — Rape v. Heaton, 9 W. 328, 334. 6.: If the court had jurisdiction, an order or judgment cannot be impeached collaterally. See Collaterally. 1 —Tollman v. McCarty, 11 W. 401, 406. 7. "Courts of probate have a very extensive jurisdiction over the estates of deceased persons * in order to secure a prompt and faith- ful settlement of such estates". — In re Campbell, 12 W. 369, 370. 8. The' remedy on claims in county court "is exclusive in its character". See also Claims. ■ — Price v. Dietrich, 12 W. 626. 9. "The power to hear and determine a cause is jurisdiction; it is coram judice whenever a case is presented which brings this power into action. If the petitioner presents such a case in his petition that on a demurrer the court would render a judgment in his favor, it is an undoubted case of jurisdiction". 1 10. "Jurisdiction is the lawful authority to hear and determine the cause upon the allegations made. And the best test is * that the allegations should be sufficient on their face to warrant the court to JURISDICTION 643 act." However if the 1 "facts appear of record in the same estate," the < record may be treated "as a representation of those facts" in connec- tion with the petition. —Sitzman v. Pacquette, 13 W. 291, 302. 11. "If the ; facts upon which the supposed jurisdiction was assumed are recited in the record, and they appear from it to have been insuffi- cient and not sueh as in law would confer such jurisdiction, then the party is not bound by it", the judgment. —Pollard v. Wegener, 13 W. 569, 575. 12. "It is * established that the records of probate courts must show jurisdiction in order to sustain their proceedings". — Gibbs v. Shaw, 17 W. 197, 202. 13. "The whole record of the probate court" is a continuous one, and after the appointment of an administrator "in all subsequent pro- ceedings' in the settlement and administration of the estate, the pro- bate court takes judicial notice of the appointment". See also Recoed. 14. The probate court takes judicial, notice of the appointment pre- viously in the same estate, of an administrator. — Frederick v. Pacquette, 19 W. 541, 551, 15. The county court has "undoubted jurisdiction" to allow a claim for "the amount due upon a land contract" and "it is quite immaterial what reason the county court gave for its decision" to the contrary. See also Claims. — Gale v. Best, 20 W. 44, 47. 16. Jurisdiction is not affected by failure to give the value of personal property in the petition for sale. See also Sale op Real Estate. —Reynolds v. Schmidt, 20 W. 374. 17. "A court of equity should not entertain jurisdiction where a complete, adequate and full remedy/ can be obtained from the county court". —Batchelder v. Batchelder, 20 W. 452, 454. 18. The jurisdiction of circuit courts over guardians of infants is concurrent with that of county court. See also Circuit Court. —Glasscott v. Warner, 20 W. 654, 656. 19." "Courts of chancery formerly had no original jurisdiction over probate of wills, whether of real or of personal estate". 20. Ecclesiastical courts had such jurisdiction "whose decree or sentence in respect to the validity or invalidity of the will was con- clusive, so far as the personalty was concerned". 21. "But the probate was inoperative so far as the will related to real estate, the validity of the will in respect to it being solely cognizable - by the courts of common law in the ordinary forms of suits". 644 PROBATE AND GENERAL LAW, CODIFIED 22. ' ' In this country, however, the probate of wills, both of real and of personal estate, 'is generally confided to courts of special jurisdiction, under the various names of the court of probate, county court, register's court, orphan's court, the court of the ordinary, and the surrogate's court (2 Kent 410) ; and their modes of procedure are very much regu- lated by statute". 23. "In this state the jurisdiction concerning the probate of wills and the administration and settlement of estates is vested in the county courts. The decisions of those courts upon the question of the validity or invalidity of the will is conclusive, unless an appeal is taken there- from". — Will of Jaokman, 26 W. 104, 107. \ ■ i 24. A probate court is " a court of limited jurisdiction, and hence, at common law, no presumption could be indulged in support of its jurisdiction where its records failed to show it". 25. Yet, it seems, that by virtue of the statute (Sec. 3906) in sales of real estate, by Virtue of any order, or license, "such court and its records stand upon precisely the same footing, in respect to presumptions in favor of jurisdiction, as though it was a court of general juris- diction. ' ' Constitutionality is left undetermined. 26. "It is only where the record is silent in relation thereto, that the existence of facts is presumed in favor of jurisdiction". 27. "If the want of jurisdiction appears affirmatively by the record, it is fatal to the proceedings. In such case there is no room for pre- sumptions". See also Sale of Realty. —BlddgeU v. Hitt, 29 W. 169, 177. 28. By virtue of the statute (Sec. 3906), the "presumption of juris- diction" and of the validity of the probate court proceedings in sale of realty, is the same as in "courts of general jurisdiction". See also Sale of Realty. —Farrmgton v. Wilson, 29 W. 383, 398. 29. ' ' The county courts have plenary jurisdiction in all matters of the administration, settlement and distribution of the estates of deceased persons, and much of this jurisdiction is of an equitable character and is necessarily concurrent with that of courts- of equity". 30. The county court has jurisdiction to determine ' ' whether a sum of money which has come to the hands of the executors as an asset of the estate of Mrs. T. is really such asset to be distributed to her heirs or legatees, or whether it is an asset of the estate of her deceased husband, which should be distributed to his heirs." — Tryon v. Farnsworth, 30 W. 577, 581. 31. An appearance by motion to set aside proceedings on account of other irregularity in addition to defect of serving process, is a "waiver of jurisdictional defect". See Appearance. —Alderson v. White, 32 W. 308, 312. , JURISDICTION 645 32. Where there is no personal estate and no "debts or claims charge- able against or due to the estate", and an administrator was appointed, Lyon J., says: "I am strongly inclined to think that such appoint- ment was absolutely null and void", but the court does not decide the question. (Otherwise determined in Barlass v. Barlass, 143 "W. post). —Flood, Admr., v. Pilgrim, 32 W. 376, 378. , 33. Where the defendant appeared and contested the action "on its merits, this was a waiver of any defect in the service of process, if the same was in any manner irregularly or defectively served". 34. "It was an appearance in the action, which gave the court juris- diction of the person of the defendant; and consequently no objection to the jurisdiction of the police justice could be taken on appeal in the county court". — Atkins v. Fraker, 32 W. 510, 517. 35. The county court "has all the jurisdiction, both legal and equitable, unless expressly reserved, necessary to the due administration of the estates of deceased persons and to the performance of all acts required in the course of such administration, including the probate of wills and the giving effect" to the intention of testators, whenever such intentions may be effectuated by the powers and processes possessed and used by any court of justice". 36. Where the county court admitted a nuncupative codicil oh suffi- cient evidence but against the law, and the order was simply reversed by the circuit court, held "that the circuit court should have rendered a judgment, or have remanded the case to the county court directing it to render a judgment, establishing and confirming a trust in favor of the petitioners" and against the residuary legatee, "according to the principles of equity governing the case". 37. In this case the residuary legatee by express or implied promise was to pay certain bequests to the petitioners, such bequests not being contained in the will, and it was held that a trust was created "as part of the testamentary disposition" of the testator, to pay such bequests. 38. The county court "may grant equitable relief or enforce a trust in a case of this nature, the, same as a, court of equity; and' 'although the jurisdiction of a court of equity still exists, i,t ' does not oust that of the county court in a proper case". 39. "The doctrine of equitable estoppel may be recognized,, and its principles enforced, as well by the county court as by the court of . chancery, the jurisdiction of the latter being concurrent, merely, in any matter pertaining to the settlement of the estates of deceased persons". 40. "And it is immaterial, also, that the petitioners, or parties seek- ing redress in the probate court, may have their remedy by action in a court of law as' well". ^Bro&k v. Ghappell, 34 W. 405, 411. 646 PKOBATE AND GENERAL LAW, CODIFIED 41. Courts of record have inherent power to appoint assistants. See Probate Court. — In re Janitor of Supreme Court, 35 W, 410, 419. 42. Where the will is not proven, the court has "no power to appoint" an administrator. 43. "In no correct sense can it be said that the court has jurisdiction of the estate, before proper proceedings are instituted therein to prove the will (if there be one), or to appoint an administrator". . —Chase v. Boss, 36 W. 267, 272. 44. The service of notice of final distribution, on the heir, is juris- dictional. See Judgment. — Ruth v. Oierbrunner, 40 W. 238, 269. 45. The county court had jurisdiction of the construction of wills even before any specific statute on the subject. See also Construction op Wills. 46. General notice by publication without a specific statute, is held to bind the parties interested, notwithstanding- Ruth v. Oberbrunner, 40 W. supra, and Bresee v. Stiles, 22 W. 120 (see Infants). —Appeal of Edw. Schaeffner, 41 W. 260, 264. 47. ' ' The jurisdiction of the county court, though limited and defined, is original and exclusive over the subject matter of the probate of wills, and fully attaches upon the death of the testator and proof of his domicil or the situation of his estate: 48. It is said that death of the testator gives to courts of probate general jurisdiction; and proof of the domicil and situation of the estate, both the general jurisdiction of the subject matter, and jurisdic- tion of the particular case. 3 Redfield on W. 120. ' ' 49. "Formerly, in England, the ecclesiastical court had jurisdiction only of the probate of wills of personal property, and the courts of common law over devises of real estate ; 50. And the decrees of the ecclesiastical court in reference to the per- sonal estate were final and conclusive as to all persons; but the judg- ments of the common-law courts, in the case of wills of real property, were conclusive only as between the parties to the suit". 51. "In most of the states, courts of probate have jurisdiction of wills of both personal and real property; 52. And the statute confers upon our county courts such jurisdiction, by the language, 'of all cases of the probate of wills;' and thus full and complete jurisdiction of the probate of all wills is given ; 53. Not, however, to proceed as in common law courts, by suit, but in a particular manner defined by statute ; and it has been held that the decrees of such courts, in respect to all wills, are final and conclusive as to all parties having notice. 1 Jarman on W., 213 ; Potter v. Webb, 2 Greenl. 257." JURISDICTION 647 54. In cases of sale of .the real estate to pay debts, proceedings in derogation of the common law,, "the facts in the petition must 'be such as by the statute authorize them ; and even in such cases it is held that the petition and proof of the facts confer jurisdiction of the subject matter. Grignon's Lessee v. Astor, 2 How. 338; Sitzman v. Pacquette, 13 Wis. supra ' '. 55. "Jurisdiction of the parties or persons interested, and due notice to them, are also unquestionably necessary to make the sale valid as to them ; and such proceeding is in the nature of a suit, and the defendants must have notice as in other cases of suits at law or in equity, and the want of notice would be attended with the same consequences. (Cases)." 56. "Ruth v. Oberbrunner, 40 W. supra, and other eases, in which this point is considered, do not in the least conflict with the principle that want of notice only makes such proceedings void as to the persons not appearing or assenting, and that such notice may be waived. ' ' 57. "In the application of these principles to the decree of probate under consideration, it is clear that such decree, and the subsequent proceedings in the execution of the will, are void only as to such persons in interest as did not appear or assent thereto, or as have not since supplied such' want of appearance by acts clearly indicating an assent thereto or a ratification thereof." —O'Dellv. Rogers, 44 W. 136, 168. 58. The subsequent appointment of a guardian ad litem for infants, does not cure defective service or want of jurisdiction. See Service. — Helms v. Chadbourne, 45 W. 60, 69. 59. "The only jurisdiction the county court has, in respect to the administration of estates, is over the estates of dead persons", and all proceedings of administration as to live persons are void -ah initio. See also Presumption of Death. —$lelia v. Simmons, 45 W. 334, 337. 60. ' ' Of the power of the legislature to take away the jurisdiction of the circuit court in actions to charge the estates of deceased persons with the payment of the debts of the decedent, there can be no doubt". 61. "The only question is, Has it done so? The repeated decisions of this court hold that it has, and the supreme court of Michigan from which we copied our law, have held the same way under the law of that state. (Many cases)." See also Claims. —Lann&n v. Haekett, 49 W. 261, 271. 62. While notice to the incompetent in sale of realty is not necessary where a guardian represents him and is licensed to sell, 63. Yet notice to the adverse party is held necessary to give juris- diction of the person in the case of a license to an executor or adminis- trator; 648 PROBATE AND GENERAL LAW, CODIFIED 64. While "the petition and proof of the facts conferred jurisdiction of the subject matter". See also Incompetents' Sale of Realty. — Mohr v. Porter, 51 W. 487, 493. 65. As to Jurisdiction in incompetent guardianship proceedings, the contents of the petition, and it being necessary that the statutes ' ' appear to have been strictly complied with upon the face of the proceedings; and no inferences are indulged in in support of the proceedings". See also Incompetents, — Appeal of Boyston, 53 W. 612, 618. 66. Where no special guardian represented minor children at the probate, "still, the widow having been named as an executrix in the will, and having, with the two executors named, accepted letters of admininstration, and she and they having given the requisite bond, and qualified and* entered upon such administration, they, and each of them, became bound by the probate, and the widow was thereby necessarily put to her election whether she would take under the will or under the statutes. ' (Sees. 2170-72). 67. So, upon the same assumption, the probate of the will was bind- ing upon creditors; 68. If the probate of the will was void for the reason assigned, as to anyone, then it was only, as to such minor heirs". O'Dell v. Rogers, 44 W. supra. '69. The widow, being "sole devisee and legatee", but the estate being insolvent, she duly "elected to take the provision made for her by law, instead of the provision made for her in the will, and by so doing the will immediately became inoperative as to the real estate, the title of which at once upon such election, if not upon the testator's death, became vested in his heirs subject to their mother's right of dower and the pay- ment of the testator's debts". 70. And as to personalty under the will, or "had there been no will, the legal title and right to the possession of such personal property and proceeds thereof would have vested in the administrator", and not either in the legatees or the heirs. 71. And on the theory apparently, but without saying so, that the unrepresented minors were not harmed by the operation, the court holds, "that the will in question was properly admitted to probate on any theory", and that the "title to the land" under license to pay debts, "vested in the defendant P. by virtue of the executors' sale, and their deed to him thereon". — Melms v. Pflster, 59 W, 186, 191. 72. As to the notice for probate of a will, fifteen years before, in the affidavit of publication, "through some inadvertance the number of 'suc- cessive weeks' is left blank. Since there were three such weeks interven- ing, we would naturally suppose that there was a publication in each week as ordered. In that respect ' the record is merely silent ', and the validity JURISDICTION , 649 of the probate may therefore be presumed after ,the lapse of so many years. Blodgett v. Hitt,29 W. supra." (Cited approvingly in Chandler v. Munkwitz, R. & I. Co. 148 W. 5, 13; see Presumption). —Ports y. Schmtz, 70 W. 497, 505. , 73. As to setting aside fraudulent sales of real estate by an executor as trustee. See Concurrent Jurisdiction. —Hcwley, by Gdn. ad Litem v. Tesch, 72 W. 299, 304: 74. .Settlement of estates "is essentially proceedings in rem". Federal J ; courts "have uniformly disclaimed jurisdiction in probate matters." See also Administration. — State, ex rel Sanderson v. .Mann, 76 W., 469, 476. 75. While service by publication on a nonresident under sec, 2640, gives "the court jurisdiction over the property" within the state, yet ' ' such service by publication could give the court no jurisdiction to ren- der any personal judgment against' him. Renier v. Hurlbut, 81 W, 24.'" —Cox v. North Wis. L. Co., 82 W., 141, 145. i i 76. Where, as upon a note "before maturity, a judgment "was prema- turely entered,' the, err or does not go (to) the jurisdiction of the court, but is an irregularity only, which may be waived by the judgment; debtor, and which was so waived in this case by a duly authorized release of errors, which appears of record". Salter v. Hilgen, 40 W., 363. 77. And, "where, as in the present case, the attack is made on* the ground of mere irregularity^ such other creditors ,(the appellants) are in no -better position than the judgment debtor, and neither can avoid the judgment unless the same is shown to be unjust or inequitable. (Cases),". —Marshall v. II. Bank v. Milwaukee W. M., 84 W. 23, 26. 78. "Locality of personalty of a deceased confers; local, probate juris- diction, without consideration as to. his lasf; domicile, , (without the state) , 79. And debts due the deceased are deemed, bona notabilia, i. e., per- sonalty suitable for conferring local probate jurisdiction; and the rule is that simple contract debts constitute such where the debtor (not creditor) resides, and where they can be sued upon. So of any chose in action or money right. Schouler, Extrs., 24; Attorney General v. Bou- wens, 4 Mees. & W. 191; Owen v. Miller, 10 Ohio St., 136;, Pinney v. McGregory, 102 Mass., 186; Clark v. Blackingtori; 110 Mass., 373." —Bragg v. Gaynor, 85 W., 468, 485. 80. "The objection to the jurisdiction of a court of equity on the ground that the plaintiff has an adequate remedy at law. must be taken, in the first instance, by answer or demurrer on that ground, or it is waived. 81. It cannot be raised afterwards by a demurrer ore tenus on the trial. 650 PROBATE AND GENERAL LAW, CODIFIED ' ( Cases) . The only question which could properly be raised by the demur- rer ore tenus is, Does the complaint state a cause of action in equity? Sherry v. Smith, 72 W. 339". See also Concurrent Jurisdiction. ( — Meyer Admr. v. Garthwaite, 92 W. 571, 572. 82. Order on settlement of guardian's accounts, conclusive. See Accounts op Guardians. ^ —O'Connor v. Decker, 95 "W., 202, 204. 83. County court has jurisdiction to make a final order of assignment, on application of interested parties. See Judgments. — Will of Hess, 97 W. 244, 249. 84. ' ' The general rule is that when a court has jurisdiction ' ', that "every proposition assumed or decided, leading up to" a judgment, "is included within it", and such judgment is conclusive as to collateral attack. See also Judgments. — Roberts v. Weadcck, 98 W. 400. 405. 85. Probate of a will is set aside three years after allowance, for fail- ure of jurisdiction, it appearing that proof _ of publication of notice had not been filed, and oral proof merely "that a notice was published", without detail thereof, is held insufficient, on the record showing the order for hearing reciting "Saturday, the 3rd day of July", Saturday being July 4th, a legal holiday, and the hearing had July 3rd, as shown by the decree which recited that due notice "of such hearing- has been given as required by the order, etc.", the order being "deceptive and misleading"; 86. "There is not the same liberality of intendment to support the pro- ceeding as in cases where it comes in review collaterally", as to recitals of precedent things done ; yet, it is said : 87. ' ' If the recitals in the decree allowing the will had said that notice had been given according to law, or had used words of similar import, we should not hesitate to support the jurisdiction of the county court. Such recitals would import a compliance with statutory requirements". 88. The court had ' ' undoubted jurisdiction to' hear proofs of the will, ' ' but* not "to bind the parties in interest unless it secured that right in the manner provided by statute, or it was waived". — Heminway v. Reynolds, 98 "W. 501, 506. 89. A trial court has no jurisdiction over its judgment affirmed on appeal, "except to enforce it". See Judicial Decisions. — Crowns v. Forest Land Co., 100 W. 554, 555. 90. ' ' If jurisdiction be obtained to determine a fact, its determination wrong or on insufficient or improper evidence is immaterial ' ', the petition being sufficient. See Adoption. — Parsons v. Parsons, 101 W. 76, 79. 91. A recitation "in the certificate of probate, that the court proceeded 'pursuant to notice duly published', supplemented by" acceptance by a JURISDICTION 651 trustee, and the surety executing tire required bond, is held sufficient to support jurisdiction, "in the absence of any evidence to throw doubt upon it." See also Rules*of Practice. —Richter v. Estate of Leiby, 101 W. 434, 438. 92. As to jurisdiction to probate or administer property, real or per- sonal, within the state, regardless of jurisdiction to administer other estate in another state, and the question of domicil being immaterial. , See Foreign Judgments. Domicil. —Frame v. Thormawn, 102 W., 653, 670. 93. Jurisdiction to grant administration after seven years absence, with two inconsistent statements thereof in the petition. See Presump- tion op Death. — Wis. Trust Co. v. Wis. M. & F. Ins. Co. Bank, 105 W., 464, 467. 94. "The duty and power to examine, consider, and decide, is jurisdic- tion." So stated, upholding the power of the court to refuse to grant discontinuance of a suit on application of the plaintiff. — State ex rel City of Milwaukee v. Ludwig, 106 W. 226, 233. 95. As to special jurisdiction being necessary to be acquired over par- ties in sale-of realty proceedings, by special notice, etc., to invalidate such sales. See Sale op Realty. — Bloor v. Smith, 112 W., 340, 348. 96. Where the proof of publication of the notice to prove a will, "was insufficient to show jurisdiction", following O'Dell v. Rogers, 44 W., supra, "we must hold that the court had jurisdiction as to such parties as appeared in the case". (Other cases). See also Publication. —Flood v. Kerwin; 113 W., 673, 678. 97. As to appointment of an administrator de bonis rion, where exec- utor was erroneously continued as trustee. See Admr. de Bonis Non. —Barney v. Babeock's Est., 115 W., 409, 414. 98. The county court having "jurisdiction of the subject-matter", — by submitting "the question to the court as to 1 how much she should pay to her attorney out of the" estate, the administratrix, "waives any ques- tion of jurisdiction of her person", and is held bound by the judgment, 99. Which' cannot be set "aside in a collateral action". See also Administration Expenses. —Vaughn v. Walsh, 122 W. 486, 490. 100. The "broad general power", under sec. 2443, "necessarily carries with it by implication all judicial authority of courts of equity in the v administration of trusts necessary to the proper administration of the particular class of trusts in question". Tryon v. Farnsworth, 30 W., and Brook v. Chappeil, 34 W., supra. 652 PROBATE AND GENERAL LAW, CODIFIED 101. As to authority over attorney 's fees, and making them a lien on the estate personalty. See Administration Expenses. —Carpenter v. V. 8., F. & Guaranty Co., 123 W. 209, 213. 102. Administration proceedings had, before a will was found, held jurisdictionally valid, and effective until set aside. See Administration. —Perkins v. Owen, 123 W. 238, 241. 103. The appointment of an administrator cannot be collaterally at- tacked. See Administration. Public Administrator. —Jordan v. C. & N. W. B. Co., 125 W. 581, 587. 104. Amendment, in circuit court on appeal, of petition to vacate pro- bate, by including the final. assignment order (not appealed from), held proper. See Amendment. , 105. "The appeal from the judgment refusing to set aside the probate of the will brought up the whole matter. The judgment assigning the real estate depended upon the probate of the will, and fell with the judg- ment setting such probate aside, at least so far as the questions involved upon this appeal are concerned". —Parsons v. Balson, 129 W. 311, 319. 106. "Where a court posseesses jurisdiction of the subject matter but ought not to exercise it in the way invoked it should be deemed to be without jurisdiction. , 107. Where it ought, regardless of the attitude of parties, to decline to act, it should be deemed, regardless of such attitude, not to have jurisdic- tion to act (Harrigan v. Gilchrist, 121 W., 127, 229) ; 108. And where the jurisdiction of the court is invoked in a matter within its power but in a manner entirely unknown to the law, written or unwritten, ordinarily, at least, it should refuse to open its doors, 109. And if it does not this court should treat the result as jurisdiction- ally defective whether objection be or be not made by any party to the litigation. Harrigan v. Gilchrist, supra ; Burnham v. Norton, 100 W. 8. See also Court Commissioners. — Potter v. Frohbach, 133 W., 1, 4. 110. Where the statute gives a court jurisdiction of certain actions, "this is jurisdiction of the subject matter. 111. When the plaintiff properly commences such an action in the proper court and serves his summons on the defendant jurisdiction of the parties is obtained, 112. And thus complete jurisdiction of both the subject matter and the parties is acquired by the court and the contentions of the parties may be heard and decided. 113. Absence of a party from the trial cannot deprive the court of jurisdiction to. proceed unless, indeed, there is some statutory provision to that effect. / JURISDICTION 653 114. Such absence may affect the nature of (he judgment which should properly be rendered, but if the court renders a wrong judgment such action is an error only— it is not an act without jurisdiction. ^ 115. Having jurisdiction of both the subject matter and the parties, the court has jurisdiction to render not only a right judgment but an erroneous judgment as well". See also Vacating Judgments. —Comstock.y. Boyle, 134 W. 613, 615. 116. Where a county judge holds his court "outside of the county," or is "pecuniarily interested", the proceedings are held invalid., See County Judges. —Mcintosh v. Bowers, 143 "W. 74, ; 76. 117. After probate of a will, the county court has jurisdiction to deter- mine as to annulment of a paragraph thereof. See Revocation. —Will of Battis, 143 W. 234, 238. 118. "A prima facie showing" "or a bona fide claim" in the case "of a resident of the county", "that there is an estate" is sufficient for administration, such being sufficient "jurisdictional facts " ^is to estate, for granting letters. See also Administration. —Barlass v. Barlass, 143 W. 497, 498. 119. The county court in its final deqree ' ' had no jurisdiction to adjudi- cate the rights of " a lessee for life. ■ 120. It could ' ' determine what distribution was intended ' ' by the will. See also Judgments. — Triba v. Lass, 146, W., 202, 204. 121. "Jurisdiction of the subject matter is not, necessarily, measured by the scope of the controversy as presented by pleadings. 122. Generally speaking, as said in Cooper v. Reynolds, 77 U. S. 308, 'By jurisdiction over the subject matter is meant the nature of the cause of action and of the relief sought ; and this * is to be sought for in the general nature of the court's 'powers, or in authority specially con^- ferred' "., p. 441. 123. "Jurisdiction of the subject matter, 'is conferred by the sovereign authority which organizes the court, and is to be sought" as stated, "meaning conferred by law, hot by mere consent of the parties", p. 450. 124. As to lack of jurisdiction to substitute parties ' agreement as to disposition under a will, and judgment so doing, being void and coram non judiee. See Probate ot Wills. — Will of Rice, 150 W. 401, 440. 125. "The county court has full jurisdiction, in law as well as in equity* in respect to all controversies involved, in the settlement of the estates of deceased person. (Cases) ". 126. Held, that such jurisdiction should have been exercised in the creation of an implied trust and in an accounting, where the decedent hald , acquired his property with the funds of his wife. See also Implied Trusts. — Wisdom v. Wisdom, 155 W., 434, 436. 654 PROBATE AND GENERAL LAW, CODIFIED 127. While "appellate jurisdiction cannot be conferred merely by consent to its exercise ' ', 128. Yet ' ' where a trial de novo is permitted in the appellate court and where that court has original jurisdiction to hear and determine any case whenever the parties voluntarily appear before it and submit their controversy", it has been held such court may try a case so submitted. Mfg. & M. I. B. v. Everwear H. Co., 152 W. 73. — Free v. Western U. T. Co., 158 W. 36, 39. 129. "When a person dies intestate, primary jurisdiction to probate his will and grant letters testamentary vests in the county court of the testator's residence at his death (Will of Hess, 97 W. supra; 18 Cyc. 67) ; 130. It was necessarily decided by the Kenosha county court, when it probated D.'s will and assumed general and primary jurisdiction of the estate, that D. was a resident of that county ; 131. That decision, rendered after due notice to all parties, and never appealed from or reversed, settled the question so far as the parties are concerned in all subsequent actions in the courts of this state (Huebsch- mann v. Cotzhausen, 107 W. 64; See Judgments). — Will of Durkee, 164 W. 41, 43. JURY. Administration, on appeal: Not a case for a jury, 26. Commitment of infants: Industrial sen.; house of refuge, 19. Communication, judge, jury, 36. In open court only, 36 . Presence of counsel, 37. Contract breach, by jury, 40. Equity cases: Only in aid of the court, 11. Tries only special issues, 10. Guardians appointed without, 2. Insanity determinations : Criminal cases: Discretion of the court, 24. Not as a matter of right, 22. Prior to the constitution, 25. Eight does not extend to, 20. Sec. 4700, as common law, 21. Summary, jury or otherwise, 23. Partition; circuit court: Feigned issue in chancery, 30. Finding, erroneous instruction, 31. Supreme court; equity: Eeverse; clearly against facts, 13. Eeviews questions of fact, 12. View, knowledge from, 38. Credibility of evidence, 38. Waived only by consent, 1. Will probate on appeal: Analogous to chancery courts, 18. Assist court, if desirable, 3, 7. Court may determine wholly, 16, 29. Long established rule, 42. • Questioned in dictum, 39. No authority for, 41. Triable in common law courts, 40. Court's duty same as. without, 6. Declining to submit, not error, 35. Errors and urging to agree, immaterial, 34. Feigned issue in chancery, 4, 6, 15, 27. Improper testimony, immaterial, 33. Insanity verdict set aside, 5. May be entirely disregarded, 17. May order new jury trial, 8. Discretion of the court, 9. Not binding on the court, 7, 17, 28. Nuncupative; same effect, 6. Set aside, if unsatisfactory, 4. Special question form, unimportant, 29: Submitted; later withdrawn, 14. Submitting special issue, 15. Weighty, in doubtful case, 8. JURY 655 I. Juries can be waived only "by the consent of the parties", and not • by default of defendant. —Haskins v. Wilson, 5 W v 106. : 2. Guardians may: be constitutionally appointed, without right to trial by jury. See Guardian and Ward. —Gaston v. Babcoc\ 6 W. 503. 3. "Upon an appeal from an order of the county court admitting to probate a will, the circuit court must proceed and determine the matter according to settled principles applicable to the case ; and if the assistance of the jury is desirable to determine doubtful questions of fact, it may have the verdict of a jury to inform its judgment and conscience ' '. 4. "When the verdict is unsatisfactory, and clearly against the weight of evidence upon the issue submitted, it is the duty of the court to set it aside and grant a new trial, where perhaps a court of law might not dis- turb it. This is the practice upon feigned issues in chancery. ' ' — In re Jackman Will, 26 W. 104, 109. 5. A verdict of insanity in a will case, was set aside and new trial ordered, the Jackman Will Case being followed. —Chafin Will Case, 32 W. 557, 569. ^ 6. A jury to try a nuncupative will case, its determination having ."substantially the effect of a verdict on a feigned issue in chancery", held therefore, that the court is ' ' called upon to review the evidence, the same as though no jury had intervened". — In re Pritchard's Will, 37 W. 68, 70. 7. ' Where a jury found the will valid, and the finding is disapproved by the circuit judge, but approved by the supreme court, it is said : "We recognize the fact that the verdict of the jury was simply advisory, and to aid the court in arriving at a right determination of the facts in issue, and not absolutely binding upon his judgment in case he was of the opinion that it was not sustained by the evidence ' '. 8. "In case of doubt, such verdict is entitled to. great weight; and usually, instead of finding in hostility to the verdict, if ther court is dis- satisfied with it, a new trial would be directed upon the same issues by another jury". 9. ' ' Such direction of a new trial is in the discretion of the court, and a judgment would not be reversed for want of such direction, if the judgment rendered in opposition to the verdict was sustained by the weight of evidence". , —Will of John Meurer, 44 W. 392, 397. 10. In equitable actions the jury tries only special issues. See Equity. — Stahl v. Gotzeriberger, 45 W. 121, 123. II. "The verdict of a jury in an equity case is only in aid of the, court, and the court is not bound by it to the same extent as in a case at law. 656 PKOBATE AND GENERAL LAW, CODIFIED 12. The law requires this court, upon appeal, to review the questions of fact upon the evidence. 13. In cases of this kind this court has repeatedly held that it would not reverse a finding of fact by the court below, unless it appeared that such finding was clearly against the preponderance of the evidence. (Cases) ". —Stanley v. Risse, Extrx., 49 W. 219, 220. 14. Where the circuit court by order submitted to a jury all the issues in a will contest,, but at the trial orally limited the questions for the jury, and later "ruled that the whole question be taken from the jury", and it- self passed thereon, it was held this "was tantamount to a formal revoca- tion of all orders of submission of any of the issues to a jury, and was clearly within the power and discretion of the court". 15. "Submitting special issues, to 1 a jury in such a case 'is strictly analogous to the course pursued in courts bf chancery when a feigned issue is awarded', and 'is' subject to the discretion of the court'. 16. 'The court may, if it sees fit, determine all the questions of fact, , as, well as bf law, without the intervention of a jury ; ' 17. And the verdict when taken, is not conclusive and binding upon the judgment of the court, and is merely advisory, and may be entirely dis- regarded". ■ 18. "The statute authorizing such a submission, the analogous prac- tice of cpurts of chancery, and the decision of this court in In re Jackman Will-, 26 W. supra, fully confirm this view of the question".. — Will of Carroll, 50 W. 437, 440. 19. ' ' It has been held in several of the states that this right of trial by jury does not extend to proceedings to : commit infants to the industrial school or house of refuge. (Cases). See Mil. Ind. Sch. v. Mil. Co., 40 W. 328. 20. Nor does it extend to the determination of the mere insanity of a party. (Cases)". 21. "Our statute (sec. 4700) has adopted substantially the same prac- tice", as at common law. ' 22. '"The statute certainly did not give a jury trial as a matter of right upon such: collateral issue" of insanity in criminal cases. 23. "It says 'the court shall make inquisition thereof in- a summary manner, by jury or otherwise, as it deems most proper '. 24. Undoubtedly it may, in a proper ease, make' such inquisition by a medical commission or otherwise. The method of making inquisition is left to the discretion of the court. ' ' 25. "A trial by jury of such preliminary and collateral issue was not a matter of strict right prior to the constitution". See also Writ of Error. — Crocker v. State, 60 W. 553, 556. 26. The question of appointment of an administrator, on appeal, was held "not a case for a jury trial." See also Administration. — Est of Sargent, 62 W. 130, 135. JURY 657 27. On appeal from probate "the verdict of a jury on questions sub- mitted has essentially the same> effect that it had upon a feigned issue in chancery. 28. It is not conclusive and binding upon the court even as to the facts. (Cases supra). 29. This being the case, the precise form of the . questions submitted is of less importance than in actions at law, because the court must deter- mine from the whole evidence whether the proposed will should be ad- mitted to probate". —Ballantine, Extr., v. Praudfoot, 62 W. 216, 219. 30. In the trial of an issue of fact in partition, by a jury (sec. 3129) the verdict is "merely advisory," "like a feigned issue in chancery"., 31. But where a jury found as to such a fact, after an erroneous in- struction, and the court adopts such finding, the judgment thereon was reversed, ,the error being material. —Williams v. Williams, 82 W., 393, 397. 32. The verdict of a jury on a contested will, "is merely advisory to aid the conscience of the court. (Cases, supra). 33. Such being the law and the facts, it becomes unnecessary to con- sider whether, technically, some of the testimony was not improperly ad- mitted". The verdict here, being as to testamentary capacity, was sustained by the trial and supreme courts. See Testamentaby Capacity. — Loughney v. Loughney, 87 W., 92, 101. 34. In a will contest, before a jury, errors in instructions, or urging by the trial judge to agree, are immaterial, "inasmuch as the verdict was only advisory in character". (Cases supra). —Jones v. Roberts, 96 W. 427, 430. 35. Where on trial of a will contest with a jury, the circuit court declined "to take verdict of the jury", "no reversal can be predicated" thereon, as "such verdict would have been advisory merely, leaving the duty still upon the trial court to decide all questions of fact according to his own judgment". —Mueller v. Pew, 127 W. 288, 292. 36. "No communication should be had between the judge and the' jury after submission of the cause except in open court. 37. The presence of eounselis not indispensable, although it, is! the better practice to procure such attendance. Meier v. Morgan, 82 W. 289", Hayenor v. State, 125. W. 444. — Hurst v. Webster, Mfg. Co., 128 W. 342, 347. 38. A jury may use knowledge from a view ' Mn determining the cred- ibility" of evidence. See also Condemnation. —Solberg v. Bobbins, L. Co., 147 W. 259, 262. Zimmerman — 42 658 PROBATE AND GENERAL LAW, CODIFIED 39. "It was held in the Jackman "Will Case, 26 W. supra, that a con- test on the allowance of a will to probate was triable by the court. The authority of this case is somewhat shaken, if indeed it has not been abro- gated, by the later case of Will of Slinger, 72 W. 22 ( See Testamentary Capacity), and Bovee v. Johnson, 130 W. 447 (See Trial). 40. However this may be, the Jackman Case went upon the theory that actions of that nature were not triable in the common-law courts by a jury. The contrary is of course true of actions for damages for breaches of contract", as here. ,41. (There seems to be nothing in either the Slinger or Bovee cases justifying the dictum to which they are cited. In the first the court simply directed judgment on the verdict because there happened to be such verdict and because the supreme court agreed with the jury on the facts, and disagreed with the trial court's version. In the Bovee ease there was not even an incidental question about a jury, the opinion simply referring to the Slinger case on the question of trial de novo being necessary. 42. Neither is the question either in or determined in the instant case. Nor does there appear to be any law or reason for thus weakening or shaking the long-established and heretofore unquestioned rule of the Jackman Will Case. See cases, supra). See also Legacies. —Dilger v. Est. of McQuade, 158 W. 328, 331." KIN, RELATION. See also Administration. Administration right of kin, 16, 24, 25. Blood descent favored, 5. Liberally, illegitimates, 22. Brother, brother-in-law, 1. Consanguinity: definition, 13. Civil, canon, and common law, 14. Difference^ only in collateral, 15. Degrees, how computed, 13, 14. Each question, a degree, 14. Lineal and collateral, 13. . Definition; strict; general, 2. Class; includes interested, 8. For administration purposes, 24. Petitioners; interested persons, 25. Degrees, how computed, 13, 14. Diagram and method, 26. Father and mother, equal, 15. Father-in-law; son-in-law, 7. Grandmother; uncles, 6. Heirs-at-law; realty, 19. Statutory difference, 20. Next of kin, sec. 3807, 8. Administration rights, 16, 24, 25. Includes as to personalty, 18. In their legal sense, 19. Liberally, illegitimates, 22. May be "near relatives," 21. No interest; living relative, 23. Not mean nearest relatives, 17. Practically, as heirs, 20. Refers to a class, 8. Those entitled to share, 8. Relation; not include wife, 3, 5. Affinity by marriage, 10. Blood kindred, 4. Step-daughter, as child, 9. Benefit certificate, 9. Her husband not, 12. Son-in-law as near of, 2. 7. Step-daughter, orphan, 9. Relationship of daughter, 11. KIN, RELATION 659 1. Brother, and brother-in-law of deceased, not being heirs are as- sumed but not stated to be next of kin, for the purpose of petitioning for administration, only infant children being heirs, an irregular administra- tion previously granted to strangers being revoked on such petition. See also Administration. — Brunscm v. Burnett, 2 Pin. 185. 2. "The word 'kin', in its strictest sense, includes only relations by blood ; but in a general sense it is used to include both relations by blood and' marriage, and in this sense the objects of this provision of the statute evidently require it to be interpreted". So held, under the statute disqualifying justice "near of kin to either party", on the ground that a son-in-law was such kin. — Eiboard v. Odell, 16 "W. 633, 635. 3. In the statute (see. 2289) as to lapsed legacies, in the language "to any child or other relation of the testator," the term "relation" is held not to include the wife. 4. The statute is taken from Massachusetts, and has a uniform con- struction for more than a century, ' ' which confined the word used in be- quests, to relations by blood, and made it virtually equivalent to kin- dred". 5. "The law has always favored blood in the descent of estates. The particular provisions of our statutes in favor of the wife are personal to her, and tend rather to exclude than to include her in the term rela- tions as used in the section". — Cleaver v. Cleaver, 39 W. 96, 100. 6. The paternal "grandmother is one degree nearer of kin than the uncles" on the mother's side, and she is held to take in preference to' the ' uncles. —Est. of KwkendaU: Cramer's App. 43 W. 167, 177. 7. Following Hibbard v. Odell, 16 W. supra, it is held, that "father- in-law and son-in-law are 'near of kin', within" sec. 3617, as to a justice's disqualification. — Elderkinv. Wiswell, 61 W. 498, 499. 8. Without deciding the question, the court says "there is much reason in" the view that, under the statute, sec. 3807, "the language 'next of kin' refers to a class, and includes all persons who are entitled to a share in the intestate's estate under the statute of distribution, without regard to the degree of consanguinity". — Est. of Sargent, 62 W. 130, 135. 9. In construing a benefit certificate, a step daughter is held to be R.'s, her step father's " 'orphan' after his decease. It is quite clear that, in a legal sense, she was his child during his lifetime. She was his wife's daughter, his step-daughter. 10. 'By marriage one party thereto holds, by affinity, the' same rela- tion to the kindred of the other that the latter holds by consanguinity'. 660 PEOBATB AND GENERAL LAW, CODIFIED Spear v. Robinson, 29 Me. 531 ; Higbe v. Leonard, 1 Denio., 186; Simcoke v. Grand Lodge, 84 la. 383. 11. In the beneficiary certificate she was designated as 'my daughter Josef a'. This was strictly correct; for such was the legal relationship,; by reason of the affinity between them". 12. "Perhaps Josef V., her husband, was not so eligible. He was not at all related to R. Higbe v. Leonard, 1 Denio. 186". (Approvingly cited in Jones v. Mangan, 151 W. 215, 223). 1 ^-Rennery. Bohemian, S. B. Soc. 89 W. 401, 404. 13. "Consanguinity, it. is said, is either lineal or collateral. Lineal consanguinity is that which subsists between persons of whom one is descended in a direct line from the other, as between an intestate and his father or grandfather, etc., in the direct ascending line, or between him and his son or grandson, etc., in the direct descending line ; 14. And every generation in lineal, direct consanguinity constitutes a different degree, reckoning either upward or downward. This method^f computation of degrees of, kindred in the direct line obtains as well in civil and canon law as in the common law. 2 Chit. Bl. 203. 15. The difference in the method of computation of degrees exists only in relation to collateral consanguinity", and where an intestate "left no children, his father and his mother were his next of kin and in the first degree", and "they stood as such in equal degree." See also Descent and Distribution. — Brown v. City of Bamboo, 90 W. 151, 154. 16. "Right of the next of kin" to administration, "is limited to" ap- plication for a suitable person "within thirty days after the death" See Administration. — Welsh v. Manwaring, 120 W.. 377, 378. 17. "This court has not so held (Est. of Sargent, 62 W. supra.) ",— "That the term 'next of kin' ", "means nearest in relationship", — "though there is much authority supporting such view. (Many cases) ". 18. Without "discussing the question of the precise scope of the term 'next of kin' ", "it is clear, at least, that it includes those entitled to take the personal estate in case of intestacy". N. Y. L. Ins. & T. Co. v. Hoyt, 161 N. Y. 1, 9. 19. "Treating the" "next of kin" and the term "heirs at law" "only in their legal sense the one refers to those who take the personalty of an intestate, and the other to those in whom the title to the realty pos- sessed by the intestate vests immediately upon his death. 20. Under our statutes there is very little difference between the two terms, since, in the main, those who take the personalty of an intestate are the same as those upon whom the law casts the title to the realty. Sees. 2270, 3935". 21. Here, in the petition to allow appeal under sec. 4035, the term " 'near relatives' was used as synonymous with the" term "next of LACHES 661 kin" and "that meaning may reasonably be attributed to such term. (Citation)". So held. ■ See also Appeal. 1 , ■ —Perry v. Scaife, 126 W. 405, 408. 22. As to "blood relatives", and "next of kin", concerning illegiti- mates under wills,, construed liberally. See Legitimacy. —Est. of Sander, 126 "W. 660, 664. 23. "A next of kin or heir apparent has no right or legal interest in the property of a living relative. (Citation)". See also l Aggrieved Person. — Sanborn v. Carpenter, 140 W., 572, 575. 24. .(While often considering the term, the court thus far seems to have avoided giving any definite and circumscribed meaning for adminis- tration purposes to the term 'next of kin'. However, perhaps inferen- tially, and certainly reasonably, the • term probably should, in administration proceedings, be assumed to include only those relatives or persons who hatve a legal financial or property interest in the estate under consideration. For analogous indications, see the title, Aggrieved Person. 25. For instance : To be jurisdictionally safe, no kin of the decedent, without a property interest p the estate, should be recognized either as a petitioner for administration or as a' person having any right in the matter of issuing letters. If all interested are under disability, a guard- ian should first be appointed, and he should make the necessary petition for administration.) 26. (As to method of computing degrees of kindred, and diagram in aid thereof,— see Zimmerman's Probate Practice, pp. 625, 626.) See Services. LABOR. LACHES. Circumstances govern, 1. Disability; not imputed, 12^ Discountenanced in equity, 10. Long delay will prevent, 11. Less than limitation, 11. Equitable action: Unreasonable delay bars, 7. Final judgment set aside, 9. Fraudulent concealment, 9. Heir, not knowing interest, 15. Knowledge : upon inquiry, 8, 12. ' Duty of inquiry, 8, 13. Kept in ignorance, 14. Legal action: Acquiescence as estoppel, 6., Limitation statute analogy, 3. Long delay held no bar, 14. Kept in ignorance, 14. Time: lapse not bar, 2. Frequent value changes, 5- Long accounting delay, 3. Seasonable, depends oh facts, 4. When not affected by, 2. Year's accounting delay, not, 16. 662 PROBATE AND GENERAL LAW, CODIFIED 1. "Courts of equity do not impute laches by any iron rule, but allow circumstances to govern their decision in every case. 2. And it is said: 'Where the obligation is clear, and its essential character has not been affected by the lapse of time, equity will enforce a claim of long standing as readily as one of recent origin; certainly, as between the immediate parties to the transaction'. 13 Am. & Eng. Ency. of Law, 674 ; U. S. v. Alexandria, 19 Fed. Rep., 609, and cases cited." See also Implied Trusts. —FwutxeM v. Fawcett, 85 W., 332, 336. 3. "Laches is a bar in analogy to. the statute of limitations". Held not a bar after long delay in accounting. See Accounts of Guardians. —Taylor v. Hill, 86 W., 99, 106. 4. "A court of equity applies the rule of laches according to its own ideas of right and justice," there being no specific period, and "reason- able time" "depends upon the faets and circumstances of each par- ticular case. Brown v. Buena Vista Co., 95 U. S., 157, 160; (other cases) . 5. The rule is peculiarly applicable where the property, the subject of litigation, is subject to rapid or frequent changes in value, as stocks, oil wells, mining property and the like. (U. S. Cases)." 6. "It is argued that laches or acquiescence, in order to operate as bar, must be such as will amount to\ an estoppel, and such, no doubt, is the rule in cases where the cause of action is a legal one. 7. Where it is purely of an equitable character (and not founded on any strict legal right) there the rule in equity", as stated, "applies, and unreasonable and unexplained delay is sufficient to bar relief". Galway v. Metropolitan El. R. Co., 128 N. Y., 132; Menendez v. Holt, 128 IT. S. 523. 8. "In Johnston v. Standard Mining Co., 148 U. S., 370, it was held that 'the law is well settled that, where the question of laches is in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the faets already known by him were such as to put upon a man of ordinary intelligence the duty of inquiry.' (Cases)." —Rogers v. Van Nortmck, 87 W., 414, 429. 9. Application to set aside a final judgment for fraudulent conceal- ment of a former marriage and invalid divorce. See Fraudulent. Orders. —Thomas v. Thomas, 88 W., 88, 93. 10. "Laches and neglect are always discountenanced in equity, which always refuses relief in favor of stale demands. 11. Long delay, and even, sometimes, a delay less than the period of limitation by statute, will be regarded as laches, and will prevent the intervention of equity; LAND CONTRACT 663 12. But laches will not be imputed to one while under disability, and there must have been knowledge, actual or imputable, of the facts, 13. Which should have prompted investigation and action, and, if there was actual ignorance, that must have been without just excuse. Beach, Mod. Bq. Jur. 18, 19". See also Sale of Realty. —Melms v. Pabst Brewing Co., 93 W., 153, 173. 14. A complaint seeking equitable relief by a person twelve years after arriving at majority, as to acts twenty-five years before proceeding, is held to show no laches on the facts presented showing that com- plainant was kept in ignorance of his rights. —Steinberg v. Saltzman, 130 W. 419, 430. 15. Laches was not imported in an heir as to affairs of the intestate m his lifetime, such heir not having, or knowing he would have, an interest. See Fraudulent Orders. —Scheer v. Vlrick, 133 W., 311, 318. 16. "A delay of a year in bringing an action of this kind",— for fraud and accounting against a surviving partner, — "is not per se laches, especially in the absence of any facts showing that the defendant had suffered thereby". —McCartney v. Boyd, 161 W. 146, 148. LAND CONTRACT. See also Mortgages. ? 't"9M' Acceptance: non-signing grantee, 5. Agreement of both parties, 6. Adopted, party not signing, 1. Binds both parties,, 2. Assignee: of vendor, notes, 17. Against vendor for title, 18. Entitled strict foreclosure, 18. Vendor, trustee of legal title, 26, 27. Whether notes non-negotiable, 21. Both or neither bound, 1. Decedent vendee: fully paid, 9. Administrator no right thereto, 11. Descended to heirs at once, 10. Interest in lands, real estate, 10. Land not required for debts, 9. Deceased vendor : work payment, 12. Declarations to show work, 12. Equitable mortgagor and mortgagee, 14. ' Strict foreclosure of contract, 8. Escrow: not to a party, 3. Notes; whether non-negotiable, 21. Payment : enforcement of, 22. When promise is absolute, 23. Without tender of deed, 22, 23. Possession right, silent, 19. Purchase money to be paid, 19. Presumption of meaning, 24, 25. Several notes due on default, 7. Share pro ,rata, not priority, 7. Vendee: owner after execution, 13. Equitable owner of the land, 20. Liable for taxes assessed, 15. Mortgagor and mortgagee, 14. Vendor, legal title in trust, 13, 16, 20. Vendor: legal title, security, 16, 20. Legal title for his assignee, 17. Bemedy of assignee, 18. Transfers notes to another, 17. Trust for assignee and vendee, 26, 27. Vendor retakes possession, 4. Ineffective, vendee not consenting, 4. Wife's: failure to sign, 28. Inchoate dower value, 33. ' Computation methods, 34, 35. Proper, not necessary party, 29. Eefusal to join in deed, 30. Options of vendee, 31, 32. *m 664 PROBATE AND GENERAL LAW, CODIFIED 1. "Both parties ought to be bound by the- contract, or neither should be bound: And where the contract has been accepted and adopted by the party not signing it he does assent and agree to it on his part, and the law implies a promise to perform." 2. "And unless the contract is affected by misrepresentation or fraud, it must be held binding upon both parties". 3. The contract could not be delivered to the other party "to remain in escrow"; for in case of a deed in escrow it must be delivered tc a stranger, "and we see no reason why the same rule should not apply to the delivery of a written contract for the sale of real estate". —Lowoer' v. Cmtniit, 36 W. 176, 183. 4. If the vendor retakes possession, "the contract could not thus be rescinded by the vendor alone. The mere fact that the vendor repossessed himself of the land sold without any agreement or consent of the vendee, would not extinguish the contract, or relieve the vendor from the obligation to convey on a full compliance with the conditions of the contract by the vendee". —Hart v. Stickney, 41 W. 630, 637. 5. "It is settled in this court that the acceptance, by the grantee, of a deed or land contract executed by the grantor alone, binds such grantee. (Cases). 6. Hence, the instrument signed by the plaintiff alone, and accepted by the defendant, is as much the written agreement of the latter as it is of the former". —HuUard v. Marshall, 50 W. 322, 327. 7. The owners of several notes becoming due ' ' by reason of default in the payments", must share pro rata, and not by priority. See Mortgage. —Pierce v. Shaw, 51 W. 316, 320. 8. In case of an "ordinary executory contract for the sale" of land, where the "right to a conveyance thereof was made conditional upon "the vendee's performing certain agreements within a specified time, it is said of the vendee and vendor that, "under all the authorities, such relation is that of equitable mortgagor and mortgagee. The mort- gagor has only an equitable interest in the land, which, in case of default, may be cut off by a strict foreclosure of the contract. (Many cases.) " — Superior Consolidated Land Co. v. Nichols, 81 W., 656, 659. 9. In an action for specific performance, by the administrator, to enforce "an agreement to convey lands" to the decedent, where "the purchase price had been fully paid", and "the decedent was in actual occupancy of the lands, and left children" in possession, and there were no debts or a "deficiency of personal estate to pay debts," — on "de- murrer ore tenus", it is held: 10. "No doubt the interest which plaintiffs decedent had in these LAND CONTRACT 665 lands is 'lands' and 'real estate' within the statute definition. See. 4971, subd. 9. These lands, on the death of the intestate, descended at once, by operation of law, to her children. Sec. 2270, subd. 1. 11. That the administrator, at common law, "has no right of posses- sion", and "under the statute (sec. 3833) he has no right to the possession unless there are claims against the estate unpaid. McManany v. Sheridan, 81 W. 538 (See Real Estate).", Demurrer sustained. — Carpenter v. Fopper, 94 W., 146. 12. Oral declarations of a deceased vendor, in a land contract provid- ing for payment in money, were held admissible "to show that in fact the covenants of the written agreement had been paid and satisfied' by work instead of in money",: the plaintiff! though not a relative, having lived with decedent since ' 'he was five years old up to the time of the contract in. question was made, doing farm -work qf all kinds, without pay." Specific performance decreed. Jilson v. Gilbert, 26 W., 637 (See Services.) —BoUs\. Welch, 94 W., 189, 190. 13. "After the execution of the contract, the vendee must be regarded as the real owner of the property, though not the holder of the legal title, — the vendor holding the legal title in trust for the vendee, subject to the payment of the purchase money ; 14. And, as between the parties, the latter is regarded as a mortgagor, and the vendor as the mortgagee, of the premises for the amount due for the purchase money"., 15. "Where "the vendee obtains possession and the use, and ith'e vendor covenants to execute a conveyance or warranty deed; free and clear of incumbrances," "the vendee is liable for the taxes assessed" after his taking possession. (Many cases)". — Williamson v. Neeves, 94 W., 656, 665. 16. It has been "held, in effect, that the vendor of land by an ordi- nary land contract holds the legal title as security for the unpaid pur- chase money; 17. And, if he transfers to another the purchaser 's notes for the whole of the unpaid purchase money, he will continue to hold such legal title in trust as security for his assignee ; 18. And on default of the vendee the assignee will be entitled to a strict foreclosure as against the vendee, and also a judgment against the vendor, compelling him to execute the trust in an appropriate manner. Church v. Smith, 39 W., 492; Bartz v. Paff, 95 W., 100, 108". Followed. —Emerson v. Schwiiuti, 108 W., 167. 173. 19. -Under an executory contract for the sale of land, " 'which is silent on the subject of possession of the premises, the purchaser acquires no 666 PEOBATE AND GENERAL LAW, CODIFIED right of possession or entry until the purchase money, is paid or ten- dered.' " Northwestern I. Co. v. Meade, 21 W., 474. —Grmdo v. McGee, 111 W., 531, 534. 20. "It has repeatedly been held in the decisions of this court that the purchaser un,der an ordinary land contract is regarded in Jaw as the equitable owner of the land purchased, and that the vendor holds the legal title to secure the payment of the unpaid purchase money. (Cases)". —Krakow v. Wille, 125 W. 284, 287. 21. In a suit by the assignee of the payee, on a note, it is not determined whether by the "notation on its face 'secured by land contract','' the note "was rendered non-negotiable", that fact being immaterial; as the plaintiff "was not a holder without notice, although for value. 22. Under a (land) contract like this, where conveyance is only to be made upon demand after completed payment, the promise of pay- ment is absolute and may be enforced by suit without tender of the conveyance. 23. The duty of the vendor to convey is neither a condition precedent to payment nor an act which may be demanded concurrently therewith. Gale v. Best, 20 W. 44 (See Claims) ". —Collins v. Schmidt, 126 W. 227, 228. 24. Ordinary bilateral land contracts that "purport to set' out the mutual undertakings of the two •parties" are presumed to do so and "to be a correct and complete expression of their final contract. (Cases). 25. Only by the very clearest proof, if at all, can this presumption be overcome. Kercheval v. Doty, 31 W., 476 (See Compromise)." 26. "The vendor in a land contract who assigns that contract or the right to the payments thereunder to another holds the legal title to the land in trust for the two parties under that contract, and such trust persists and accompanies the legal title wherever it may go, unless, in- deed, into the hands of a bona fide holder for value. 27. Of course, when payment is completed that trust is solely and exclusively for the purchaser, who thereby gains the complete equitable title to the land. (Cases) ". —F os (, er v _ L owe> 131 w., 54, 57. 28. Though the wife has not signed the contract of sale, she is a "proper party" defendant in an action for specific performance she having "an inchoate right of dower" in the lands. 29. "Being a proper party defendant, she cannot successfully demur on the ground that she is not a necessary party", though "she is not a necessary party". (Cases). 3G\ "Should the wife refuse to join in the deed and release her dower interest, it might become necessary to determine the value thereof and - deduct it from the purchase price. LANDLORD AND TENANT 6'67 31. For in a case where the wife of the vendor refuses to join to bar her dower right the vendee has the option to decline to take a deed from the husband alone, and sue for breach of the contract, 32. Or he may accept such deed as part performance and retain from the purchase price a sum equal to the value of the wife's contingent interest. (Many cases). 33. The case of Wright v. Young, 6 W. 127, points out how the value of such an interest should be ascertained ". (See pars, following). 34. ("There can be no difficulty, however, in ascertaining what this reversionary interest (wife's inchoate dower) is worth. In Davis and Peck's Mathematical Dictionary, and by Cyclopedia of Mathematical Science, pp. 501 and 502, formulas are given, by which the present value of an annuity can be calculated which is to commence at the death of one individual and terminate at the death of another. , 35. In Emerson's Miscellanies, pp. 96, and 97, can be found a like formula. The interest of the wife in the estate sold being susceptible of. calculation, we see no hardship in deducting the value thereof from the purchase money, if she is unwilling to relinquish her\ dower". Wright v. Young, 6 W. 127, 132). —O'Malley v. Miller, 148 W. 393, 394. LANDLORD AND TENANT. See also Rents and Profits. Alterations : i Different, landlord; life-tenant, 46. Life-tenant, remainderman, -45. Making small apertures, 42. Material building changes, 9. Material change is waste, 9, 44. Substantial change meant, 43. Covenant of enjoyment: Implied at common law, 7. Statute, under three years, 7, 22. Equity: remove lease cloud, 54. Fixtures: removed by tenant, 2. Building not attached, 19. Parties may agree as to, 17. Hemove while in possession, 18. Eeplevin proper remedy, 19. Forfeiture stipulation : Choice of damages for breach, 52. Delay to declare, 53. ^Equity to remove cloud, 54. Lessee's surety not party, 55. Not bound or relieved, 55. For benefit of lessor, 51. Growing crop at leasing, 10. Lease : Assignment by lessee, 4. Lessee still liable, 4. i Growing crop at execution, 10. Not reserved, lessee 's, 10. Lease for years : Not written, with possession, 27. Rent binding on lessee, 27. Parol evidence of surrender, 5. Lease with purchase option, 49. Not a contract of sale, 49. Mining leases, distinct, 30. Covenant to prospect, 31. Ninety-nine years, trustee, 32. Under an implied power, 32. Parol: one year, building, 28. Affirmatively ^appear, year, 34. Effect in future, valjd, 28. Statute of frauds, different, 35. Tenancy becomes periodic, 37. Modified estate at will, 38, 40. Notice to terminate, 39. ' Payment period, 41. Pays rent regularly, 36. Until premises sold, void, 33. 668 PROBATE AND GENERAL' LAW, CODIFIED Eenewal: privilege clause, 20. Called for a new lease, 21. Conditions, when enforceable, 50. Precise terms of original, 20. Except removal condition, 20. Privilege "four years more," 23. Notice; not new lease, 23. Time of notice waived, 24. Rent: in advance; fire loss, 1. Acceptance after breach, 3. Repairs : agreement necessary, 25. Applies, parts used in common, 26. Surrender: in law, 6. Effect of voluntary, acceptance, 29. Surrender — continued New lease including old, 6. Parol evidence, incompetent, 5. Tenancy at will. See Parol. Tenancy by sufferance, 14. Landlord's consent essential, 15. No notice to terminate, 16. l Tenant in common: Lessee of co-tenant, hold over, 8. Tenant: possession rights, 11. 'Landlord no entry rights, 13. Live-stock, includes increase, 47. Hiring for term, likewise, 48. Trespass against landlord," 12. 1. Rent paid in advance per agreement, without protection in lease, cannot be recovered in ease of fire. See Rents and Profits. ' —Cross v. Button, 4 W. 468, 484. f 2. Fixture as between landlord and tenant may . be removed by the tenant during his term. See Fixture. —Franhlamd v. Moulton, 5 W. 1, 5. 3. The rule is "well settled that the acceptance of rent by the land- lord from the tenant, accruing due, after the forfeiture, will operate as a waiver of the breach complained of . " —Gomber v. Hackett, 6 W. 323, 324. s 4. " The authorities are clear that where the lease contains a covenant to pay rent, the lessee continues liable therefor, notwithstanding the fact that the lease may have been assigned, and the lessor may have accepted rent of the assignee". 5. Evidence by parol to Show that there had "been an express sur- render of the estate to the lessor" of "a lease for years" was incom- petent. 6. In taking a new lease "for the whole or part of the term embraced in the former one, there is said to be a surrender in law, because the giving a new lease necessarily implies a surrender of the old one ' '. —Bailey v. Wells, 8 W. 141, 157. 7. A covenant for quiet enjoyment under a lease, is implied at common law ; and still under the statute ' ' in case the term did not exceed three years''. See Common Law. — Eldred v. Leahy, 31 W. 546, 551. 8. A tenant in common does not hold over under a lease from his co-tenant unless by "evidence aliunde". See Tenants in Common. —Rockwell v. Luck, 32 W. 70, 72. LANDLORD AND TENANT 669 9. "A tenant, whether rightfully in possession or not, cannot, without the consent of the landlord, make material changes or alterations in a building to suit his taste or convenience, and, if he does, it is waste. The law is undoubtedly so settled. ' ' —Brack v. Dole, 66 W. 142, 145. 10. "Being a lease, there can be no doubt,' we think, that the crop of wheat growing upon the leased premises when the instrument was executed, and which matured during the term of the lease, became the property of the lessee, — the same not having been reserved by the lessor. 11. This must necessarily result from the rules of law that the tenant is vested with all the rights incident to possession, and the use and enjoy- ment of all the privileges appurtenant to the leased premises, 12. And may maintain an action against any person who disturbs his possession or trespasses upon the premises, even though it be the landlord. ■ 13. The latter has no right to enter during the term, to repair or to remove crops, unless he has stipulated with the lessee for such right. (Citations) ". • — Emery, Admr. v. Fugina, 68 W. 505, 507. 14. "The doctrine that a tenancy by sufferance necessarily arises when a. man comes into possession of lands lawfully, but holds over wrongfully after the determination of his interest therein, has been qualified in this state and elsewhere in an important particular. 15. It was held by this court in Meno v. Hoeffel, 46 W., 282, that, in order to create a tenancy by sufferance in favor of a tenant holding over after the expiration of his term, the consent of the landlord, either express or implied, to the continuance of the tenancy, is essential. ' ' 16. So held in this .case, and that without such consent, "after such default no tenancy existed, either at will or by sufference ; and hence the defendant was not entitled to the statutory notice required to termi- nate a tenancy ' '. — Eldred v. Sherman, 81 W., 182, ; 188. 17. "It is settled that landlord and tenant 'may, by their agreements, treat as personal property improvements which would otherwise be part of the realty, and thus convert them into personal property to all intents and purposes as between themselves. Smith v. Waggoner, 50 W., 155. 18. It is also settled that the right to remove such improvements must ordinarily be exercised by the tenant while still in possession under his lease, or it will be lost. Keogh v. Daniell, 12 W., 164; Josslyn v. McCabe, 46 W., 591." 19. So held as to a building not actually attached to the soil, told by the tenant, and sought to be removed after the tenancy, by replevin which was held to be the proper remedy, though removal was refused on the facts. — Fitzgerald v. Anderson, 81 W., 341, 342. 670 PEOBATE AND GENERAL LAW, CODIFIED 20'. A covenant in a ten-year lease, 'with the privilege of a renewal', is held valid, and it is said that "leases containing a general promise to renew have been uniformly held to the terms of the lease in which such language is used, so as to be, in effect, an agreement to renew upon ' the precise terms and conditions therein stated, except as to the condition to renew". Laird v. Boyle, 2 W. 431, contra, in effect, overruled. 21. So held, and, following , Orton v. Noonan, 27 W. 272, it is "held that an agreement to renew a lease called for a new one". —KollQck v. Scribner, 98 W. 104, 108. - 22. Covenants as "for quiet enjoyment," are not implied in leases of longer than three years. See also Covenant. —Koeber v. Somers, 108 W., 497,. 500. 23. In a lease for a certain term, "with the privilege of four years more, * by giving ninety days' notice before" the end of the first term, "the stipulation was not to 'renew' or 'extend' the lease, which stipula- tion would require the making of a new lease (Kollock v. Scribner, 98 W., supra), but it was a stipulation that by the giving of a certain notice the lease itself should cover an additional four years". 24. Where "the notice was not given ninety days before", but "notice was given and accepted without objection on the score of time", this was a waiver of such time, and the notice was effective. — SKeppwd v. Bosenkrwns, 109 W., 58, 63. 25. ' ' The common law that in the absence of ( an express agreement to the contrary a landlord is under no obligation at all to his tenant to keep the leased premises in repair", 26. Applies even ' ' where there are several tenants in a building, ' ' and as to the portions ' ' used by them in common, such as the stairways, the halls, and the roof". — Kuhn v. Sal. Eeavenrich Co., 115 W., 447, 449. 27. A lease for five years, not signed by the lessor "or by his agent duly authorized in writing, as required by sec. 2302", where the lessee took possession, and the agent's act of making was ratified, is "a good contract for a lease, enf orcible in equity as from the date thereof , and binding upon" the lessee "at law as regards the rent, so long as the enjoyment of the property actually continued". — Kriz v. Peege, 119 W., 105, 121. 28. "A parol lease of a building for a period of one year, to take effect in the future, is valid." Sec. 2304 "does not prevent leases being" so made, and subd. 1, sec. 2307, is held not "applicable to a parol lease'' which "relates to real estate, and ch. 104, Stats., deals with such contracts whether they actually convey an interest in real property or not. ' ' —Bawmgarten v. Cohn, 141 W., 315, 316. LANDLORD AND TENANT 671 29. "Where there is a voluntary surrender, accepted by the landlord, all liabilities under the lease which would arise in the future had no surrender taken place are terminated, but liabilities which have already accrued remain unaffected. (Citation)". — Boyd v. Gore, 143 W. 531, 536. 30. "While analogies arising from urban or agricultural leases are not to be wholly rejected, it must be remembered that" "mining leases form a distinct class of instruments, creating special and peculiar rela- tions and' legal rights". 31. "The covenant to prospect a mine is in the nature of a condition and the lessee must proceed with and persist in prospecting with reason- able diligence and continuity of effort". — Loveland v. Longheivry, 145 W. 60, 67. 32. Trustees held properly authorized to lease for ninety-nine years, under an implied power. See Trust Variation. —Vphwm, v. Plankinton, 152 W. 275, 291. 33. Under sec. 2302, an oral lease "to occupy the premises as tenant until they were sold was undoubtedly void so far as fixing the term". 34. "To come within the exception it must affirmatively appear that the term of the lease does not exceed one year", 35. While under subd. 1, sec. 2307, a contract is void only when 'by its terms' it 'is not to be performed within the year. (Case).' 36. "When a tenant enters premises under a void parol lease like the present and pays rent regularly thereafter, 37. His tenancy becomes a 'periodic tenancy', i. e., either a tenancy from 'year to year', 'month to month', or 'week to week,' according" to the rent payments, 38. Being "a modified form of an estate at will, namely, one w,hich, either by force of judicial decision or statute or both, 39: Cannot be terminated by either party without the giving of a notice of a certain duration"- Koplitz v: Gustavus, 48 W. 48; Hunter v. Frost, 47 Minn-. 1. 40. "The term 'tenancy at will' in this section (2183) includes the so-called 'periodic tenancies', except those tenancies from year to year which have been put in a class by themselves by sec. 2187. (Cases) ' '. 41. The termination of such tenancies, under sec. 2183, can only be had by "notice in writing" for the payment period, and "the notice must terminate at the end of such a" period. —Sutherland v. Drol'ei, 154 W. 619, 621. 42. As between landlord and tenant, it is held that making small aper: tures in a building to admit electric wires "is not an 'alteration' in the leased premises", under a clause of the lease forbidding alterations. 672 PEOBATE AND GENERAL LAW, CODIFIED 43. "Ordinarily the word 'alteration' as applied to a building means a substantial change therein. ' ' 44. Under Brock v. Dole, 66. W. supra, as "between landlord and tenant" "any material change is waste, even though it enhances the value of the property". , 45. In Melms v. Pabst B. Co., 104 W. 7, "it is substantially held that very material changes may be made by the life tenant, so long as the value of the property is not thereby depreciated. , 46. So we have a different rule applicable to the ordinary relation of landlord and tenant from that which applies to life tenant and to remainderman. ] ' — Cawker v. Trwnmel, 155 W. 108, 112. 47. "A lease of livestock, as in this case, without reservation, carries with; it the whole use thereof, including an increase of number of animals". 48. -So also as to hiring, the "increase belongs to the person who hires them." "That manifestly does not apply to casual hiring but to letting for a term so that an increase would ' naturally be expected in the ordinary course ' '. — August Brandt & Co. v. Verhagen, 161 W. 3, 5. 49. Where "in form the contract" "is a lease, containing an option under, which the lessee may purchase the premises at a specified price within a prescribed period", and in such case "the sum paid for rent was to apply as a payment on the purchase price", — it is held not "a contract of sale". —Nelson v. Goddwrd & Co., 162 W. 66, 69. 50. "A covenant to renew a lease, if the terms are definitely fixed, or means are provided whereby they may be made certain by construction, is enforceable". The rule of Kollock v. Scribner, 98 W. supra, stated and applied. — Fergen v. Lyons, 162 W. 131, 133. i' 51. "The right to declare a forfeiture of a lease is one created by stipulation in the lease for the benefit of the lessor and he is not obliged to invoke it. 52. He has the choice whether to hold the lessee responsible in dam- ages for breach of covenant or to declare the lease at an end for breach of condition. 53. We do not think his delay to declare or enforce a forfeiture has any effect upon the measure of damages". 54. While "foreclosure judgment" under see. 2197a was "improper" because of all the statutory conditions not existing, it "nevertheless was within the general jurisdiction of equity and valid as between the parties thereto, and sufficient as a decree to remove a cloud against the lessees and those claiming" under them. 55. The surety on the lessee's bond not being "a party to that suit LAW 673 and the defense of the suit" not being "tendered to it", "is therefore not concluded thereby. But it was not relieved thereby of anything". — Mohawk Go. v. Bankers Surety Co., 162 W. 272, 276. LAPSED LEGACY. See Legacies. Vesting of Estates, etc. See Claims. LAST SICKNESS. LAW. Foreign to be proved, 1. Ignorance no excuse, 7. Not an exact science, 2. , Presumption of knowledge, 4, 6. Presumption, etc. — continued Administrative rule, 7. Criminal code, effect, 5. Obsolete in broad sense, 3. Unconstitutional act, not, 8. 1. Foreign law must be proved as a fact tq be noticed. See Foreign Laws. , — Walsh v. Dart, 12 W. 635, 638. 2. ' ' The law is not one of the exact sciences. Its rules and principles are incapable of positive demonstration, and as to many of them, there is always room for much difference of opinion. We can, as it were, only approximate to the truth, coming as nearly to it as possible, but are never certain that we have precisely reached it". Dixon, C. J. —Roebke v. Andrews, 26 W. 311, 335. 3. "While it is often said that the presumption is, that every one knows the law, that is, in some respects, a legal relic. It is, in its broad sense, obsolete. It is so said in effect, in all modern text-books, based on judicial authority". 4. "The legal presumption however exists, and is applicable wher- ever necessary to the due administration of justice. , fgnorantia legis neminem excusat, is a rule of necessity and is limited in its scope by the reason of it", — 5. Which is to prevent "immunity from punishment for violation of the criminal code and immunity from liability for actual loss for viola- tions of personal and property rights". y—Topolewski v. Plankinton P. Co., 143 W. 52, 72. .Zimmerman — 43. 674 PROBATE AND GENERAL LAW, CODIFIED 6. "There is no presumption that every person knows the law as a fact. 7. A better statement of the rule is that ignorance of the law, affords no excuse for its violation. It is a rule of administrative law and not strictly a rule of evidence". Topolewski v. Plankinton P. Co., 143 W. supral 8. "An unconstitutional act of the legislature is not a law; it confers no rights, it imposes no penalties; it affords no protection, and is not operative, and in legal contemplation it has no existence. Norton v. Shelby Co., 118 U. S. 425, 442; Bonnett v. Vallier, 136 W. 193, 200". — State ex rel. Kleist v. Donald, 164 W. 545, 552. LEADING QUESTIONS. Appearance of persons; things, 10. Discretionary, etc. — continued Defined; answer suggested, 3. Suggested answer; presumption, 5. Presumption of inqu^ry/S. Objection should be special, 6. Discretionary with court, 2, 4, 7. Own witness hostile, 1. Abuse of discretion, 4, 7. Stir witness ' recollection, 8. Error may be fatal, 4. Not to suggest answer, 9. 1. "A party is allowed to put leading questions to his own witness, where the latter appears evidently hostile to the party calling him". — Juneau Bank v. McSpedon, 15 W. 629, 631. 2. "Whether leading questions shall be permitted rests in the sound discretion of the court in which the trial is 1 had, and decisions with respect to them are. not the subject of exception." Dixon, C. J. —Barton v. Kane, 17 W. 37, 42. 3. The question to the witness "unmistakably suggested to him the desired answer. It was therefore leading". 4. While Barton v. Kane, supra, is explained and adhered to, yet, held, "if a leading question be improperly allowed against the objection of the appellant (made in proper form), and to his injury, it is an abuse of discretion ; and if it appears from the record that such injury resulted therefrom, no good reason is perceived why it should not be held that the error is fatal to the judgment". 5. Where the answer is suggested by the question, "we are inclined to hold the presumption to be that the appellant is thereby injured, unless there are circumstances in the case which rebut such presump- tion." -^McPherson v. Rockwell, 37 W. 159, 162. 6. "The objection, to be available, should have been special", and "made to it for that reason", in the case of a leading question. —Teegwrden v. T. of Caledonia, 50 W. 292, 296. LEGACIES. LEGATEES 675 7. ' ' The rule is that the allowance of leading questions is discretionary with the trial judge, and unless there be an abuse of discretion such allowance does not constitute error. Coggswell v. Davis, 65 W. 191". — McDermoM v. Jackson, 97 W. 64, 70. 8. "Where a witness has, without prompting, given his version of a conversation or transaction and counsel thinks he has inadvertently omitted to mention some things said or done, he ought to be allowed by proper questions to stir the recollection of the witness again on this point. 9. Such questions are not leading when they do not suggest the answer". — Samson v. Ward, 147 W. 48, 51. i 10. As to leading questions as to appearance of persons or things, being admissible. See Examination of Witnesses. —Schultz v. Frankfort M. A. & P. G. Ins. Co., 151 W. 537, 550. LEASE. See Landlord and Tenant. LEGACIES. LEGATEES. See also Construction of Wills. Vesting of Estates, etc. Agreement: to bequeath, 52. By father for minor child, 66. Testimony of mother, 66. Consideration ; name child, 52. , Elect to sue for damages, 67. Leave something at death, 53. Oral, to leave legacy, 37, 63. Pay for past services, 60. Quantum meruit, 60. Written, to leave realty, 64. Proving by lost writing, 65. Charge upon devised land, 30. Devisee also executor, 71. Barred for two reasons, 71, 72. Devisee personally liable, 42. Equity foreclosure action, 39, 42, 54. Limitation statute applies, 30, 31, 41, 70. Bemainder sold to pay, 25. Separate sales, injury to parties, 55. .. Court adopt best method, 56. , Devisee's est. defeasible, 54. Legacy first applied, 57. Value thereof computed, 57. Charge upon, etc. — continued Bemainder applied, if necessary, 58. Balance charge of trustee, 59. Whole property in fee sold, 57. Support and annual payments, 69. Failure: legal or equitable, 73. Both remedies barred, 74. Six year limitation, 74.-, i Irregular short absences, 75. Trustee for legatee, 30, 31. Not of express trust, 31, 41, 70. , Death of either legatee, 76. Death, prior to date of will,, 77. Unknown, living abroad, 77. Definition of legatee, 5. Distinction from devisees, 6. Legacies include realty, 40. Sometimes devisees, 6, 7. Delay in admitting,- 88. Demonstrative legacies,' 9, 11. Devisee to pay: Charge upon the lands, 2. Devise on express condition, 51. 676 PROBATE AND GENERAL LAW, CODIFIED General legacies: Sum in bonds and notes, 11. Homestead: charged, 26. By general direction, 50. Income or interest payable: Annuities, from death, 81. General, life bequest, 83. Authorities conflicting, 83. Fund for investment, 84. Ordinarily not computable, 84. General, year from death, 22, 78, 90, 91. Statutory order on, 79. Infants, as to support, 80. Residuary, life bequest, 82. Accrued income thereon, 82. Specific, carry accessions, 81. Joint tenancy, legacies, 32. Judgment creditor of devisee, 49. Limitation statute, 30, 31, 41, 70. Bar specially pleaded, 85, 86. Offset of debt on legacy, 15. Oral: promise by a legatee, 4. Promise to leave legacy, 37. To pay sunjs as legacies, 4. Enforced as a trust, 4. Parties: suit to recover, 12. Payment by the executor, 17. At the end' of year limited, 21, 78, 87, 89. Interest from such date, 22, 90, 91. Conversion of proceeds, 19. Implied promise to pay, 20. Promise by him to pay, 18. Words "after my death," 87. Personal chattels: , Delivered to life beneficiary, 3. Personalty first liable for, 34. Common law rule, 35. Proportionate residuum share, 61. Meaning of said legacies, 62. Release of testator; undelivered, 13. Extrinsic evidence to prove, 16. Ineffective as to legacy, 14. Residuary, also executor, 36. Holds as executor, 36. Misapplies funds, estopped, 47, 48. Residuum: personal, real, 23. Bequest paid in any event, 43. Devisee, also extr. misapplies funds, 47. Absolved from giving bonds, 44. Estopped, asserting personalty, 48. Judgment creditor; lien only, 49. Rules of priority, not apply, 47. General legacies, charge on, 23, 45. Realty after personalty, 24, 46. Vested remainder sold to pay, 25. Being homestead, immaterial, 26. Widow preserve, election only, 27. Heirs protected by bidding in, 29. Life es'tate in, immaterial, 28. Reversion sold to pay, 25. Specific legacies : Distinction from general, 9, 10. Railroad stock, at par, 8. Title: transfer by executor, 1. Vesting: condition precedent, 38. Condition before decease,, 38. Void legacy, residuum, 33. 1. "So perfect is this right of disposition in an executor, that he may even transfer an absolute title to a -specific legacy." —Boys v. Vilas, 18 W. 169, 174. 2. A legacy directed to be paid by a devisee, is held a charge upon the lands devised. See Trusts. —Powers v. Powers, 28 W. 659, 662. 3. The executor is not accountable for "personal chattels" delivered to the life beneficiary if they are afterwards lost or destroyed. See Life Estate. — Golder v. Littlejohn, 30 "W. 344, 352. 4. An oral promise by a residuary legatee to the testator to pay cer- tain sums as legacies, the testator therefore not changing his will, will be enforced as a trust either by the county court or a court of equity. See Jurisdiction. Prayer for Relief. —Brook v. Chappell, 34 W. 405, 411. 5. "A legatee is one who takes personal property" under a will. 6. The term 'legatee' "is not infrequently used as synonymous with LEGACIES. LEGATEES 677 'devisee', and such, use is sanctioned by lexicographers. Chattels are bequeathed to a legatee, and real estate is devised to a devisee. ' ' '7. "W;e think that it can be gathered , "from the will itself and the surrounding circumstances, that the testator used the term 'legatee' in his will in its broader and more popular sense, and that he intended that his brothers and sisters should share in the distribution of the surplus, even though they are technically devisees and not legatees ' '. — Chandler's Appeal v. Estate of MpCoy, 34 W. 505, 509. 8. In Noonan v. Ilsley, 17 W. 314, "the instrument sued upon was a due bill for 'three hundred dollars in Watertown railroad stoek'. and it was held that the contract would be filled by delivering the stock of that company of the par or face value of three hundred dollars. A legacy in that form would be substantially a specific legacy". 9. "If the same rules of construction govern contracts and wills alike, the difference between that case and the one before us (4n language 'the sum of four thousand dollars in bonds or notes secured by mortgage') is measured by the difference between a specific and a general legacy ".> v 10. Had the due bill been "in railroad stock, generally, without nam- ing the company; or, being as it was, had the testator in the present case directed in. what specific notes or bonds each legacy should be paid, the cases would be more nearly alike ' '. 11. "After careful deliberation, we are impelled to the -conclusion that the legacies to the appellants are not only general legacies, but demon- strative also ' ' ; and it is held in effect, that if the securities are insuffi- cient, the deficiency must be paid out of the remaining estate, and that it is immaterial whether the securities are turned over, or "sold by the executors and the proceeds applied in payment of the legacies ' ' —Wheeler v. Hartshorn, 40 W. 83, 102. 12. Legatees may properly be joined in a suit in circuit court to recover legacies. See Parties. Concurrent Jurisdiction. —Catlin v. Wheeler, 49 W. 507, 519. 13. "Where.a release of a $1500 note and mortgage of C. to the deceased, "was executed by the testator about two weeks prior to the time he executed the will", and "he never delivered it to C, nor any one in her behalf, but retained it in his own possession until the time of his death", and in his will "left to C. a legacy of $2000", without referring to the note and mortgage, it is held that this and other "releases never took effect as such for want of delivery", and that "they could not operate as declarations of trust, because they did not contain the requisite ex- pressions for that purpose ' '. 14. "For the reasons given, we must hold that the notes and mort- gages were existing and valid claims against the makers, respectively, at the time of the testator's death, and passed to his executor as a part of his estate ' '. 678 PKOBATE AND GENERAL LAW, CODIFIED 15. "The equities of the respective parties can readily be adjusted in the probate court. There can be no question but what the executor has the right to deduct, from the legacies to C. and J., the amounts of the notes and mortgages against them, respectively. (Cases) ". p. 271. 16. It is not determined whether "extrinsic evidence should be admis- sible to prove such unexecuted intention to satisfy and extinguish the' debt, and thus correspondingly increase the amount of the legacy ' ', there being "nothing in the will to indicate an intention to release, satisfy or extinguish the debt." —Brunn, Extr. v. Schuett, 59 W. 260, 263. 17.. ,' ' The mere fact that a person named in a will as an executor has qualified ,as such does not, at common law, render him liable in an action at law to a legatee therein for his legacy. (Cases.) 18. But , it was held, even at common law, by Lord Mansfield, C. J., that an action of assumpsit would lie upon a promise by an executor to pay a legacy in consideration of assets. Atkins v. Hill, Cowp., 284; Hawkes v. Saunders, Cowp., 289." 19. In view of the general duties of an executor under sec. 3794, and being exempted by the will and by sec. 3795, as executrix, and residuary legatee, from giving bond, and having sold the realty "charged with the payment of the legacy in question, and converted the proceeds thereof to her own use, and become a resident of another state, the defendant must be regarded as having accepted the devises and bequests on condi- tion that she would pay the debts and legacies as in the will prescribed. 20. In. other words, by such acceptance she became personally liable upon an implied promise to pay. Gridley v. Gridley, 24 N. Y., 130; Brown v. Knapp, 79 N. Y. 143; Adams v. Adams, 14 Allen, 65. 21. Under the provisions of the will (no time stated therein) and the statutes, (sec. 3850), we think the trial court was right in holding that the legacy became due and payable at the end of the year limited (by order) for the payment of debts and legacies; 22. And hence that the plaintiff is entitled to interest from that date, and upon unpaid balances created by partial payments. This is the rule which seems to be indicated by the authorities. Thorn v. Garner, 113 N. Y. 198 ; Kent v. Dunham, 106 Mass., 586 ; Davison v. Rake,- 45 N. J. Eq., 767." (Approvingly cited as to personal liability, in Merton v. O'Brien, 117 W., post.) —Evans v. Foster, 80 W., 509, 514. 23. ' ' It may be observed here that there is abundance of authority to the effect that when, as in this case, legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, such legacies are a charge on the residuary real as well as personal estate, unless such construction is opposed to other provisions in the will. In Turner v. Gibb (N. J. Ch.) 22 Atl. Rep., 580, numerous cases are cited which sustain this doctrine. ' ' 24. "It follows that the heirs took the reversion or remainder (which- ever it may be, See Devises.) subject to the payment of legacies. The LEGACIES. LEGATEES* 679 personal estate has been exhausted, and it has proved insufficient to pay all the legacies. Hence, the contingency has arisen which renders neces- sary a resort to the residuary real estate to make up the deficiency. 25. A reversion or vested remainder may be sold on execution before the expiration of the precedent estate. 1 Freem. Ex'ns, Sec. 178, and cases there cited. No valid reason has been suggested why the same interest may not also be sold to enable an administrator to pay legacies whieh are a charge upon sueh interest. 26. We think the power and duty of the court to order the residuary estate sold to pay legacies is not impaired or affected by the circum- stance that a portion of such estate was the homestead of the testator at his decease." 27. The testator may "devise it to a stranger (Sees. 2271, 2277, 2G80), and his widow can preserve a homestead right therein only by electing to take the provision made for her by law instead of that contained in the will." 28. Here the widow was devised a life estate, elected to take under the will, and "the fact that it was once the homestead of her husband and herself does not affect the tenure upon which she holds one way or the other, and there remains attached to the property, no quality of homestead which interferes with the sale of the reversionary interest therein to complete the payment of legacies." 29. Tlje fact that the widow is young and that the reversionary inter- est "would sell for little," is no reason for prevention of the sale, and the legatees and "the heirs must protect themselves by bidding or pro- curing bidders at the sale." Held, that the petition for 'the sale of "the residuary estate should have been granted". See also Devises. —Will of Boat, 81 W,, 263, 267,8. 30. In the case of a legacy which was a charge upon the land, and un- paid for perhaps thirty years, it was held, in a partition suit, that it was a proceeding against the landowners "as trustees, to enforce the trust and payment of his legacy out of the land", and that neither the statute ■ of limitations nor ' ' the presumption of law that after the lapse of twenty years the claim has been paid", was applicable as a bar to recovery. 31. (However, as to this case, it is said in Merton v. O'Brien, 117 W., post, that "so far as it indicates that a mere devisee of land, subject to the payment of a legacy charged thereon, is a trustee for the legatee, of such a nature that the statute of limitations will not run in his favor, it must be considered as overruled"). —Williams v. Williams, 82 W. 393, 399. * -- , 32. "Legacies come within the exceptions of our statute", as to joint tenancy, and may be such, the survivor taking. See Joint Tenancy. —Farr v. Trustees, A. 0. V. W., 83 W., 446, 454. 33. As to void legacy passing to the residuary clause. See Devises —Milwaukee Protestant Home v. Becker, 87 W., 409, 413. 680 PEOBATB AND GENERAL LAW, CODIFIED 34. There being no designation of "specific property out of which the same should be paid, " it is said that ' 'legacies so given, under our statute, would seem to be first payable out of the personal estate, if the same is sufficient. . Sec. 3899. 35. The rule at common law is stated by Mr. Hawkins thus : ' Legacies and annuities given generally, without reference to any particular fund, are, of course, payable out of the personal estate, and the rule with respect to exoneration applies to them. ' Hawkins, Wills, 289. See Rey- nolds Extrs., 16 N. Y. 257; Goodrich's Est., 38'W. 492." —Hughes v. Hughes, 91 W., 138, 145. 36. A residuary legatee also executor, holds as such executor before settlement of the .estate. See Concurrent Jurisdiction. —Meyer v. Garthwaite, 92 W., 571, 576. ■ 37. An oral promise to leave a legacy for services, held a valid consid- eration. See Services. —Slater v. Est. of Cooh> 93 W. 104, 106. 38. Vesting of a legacy with a condition precedent, the time for de- termining the condition arising before the testator's decease. See Vest- ing op Estates. — Stark Extr. v. Conde, 100 W. 633, 640. 39. In "an action in equity to foreclose a legacy" "charged upon cer- tain real estate", under a will and final judgment, — a defense of a parol gift with possession before the testator's decease of nearly twenty years, and valuable improvements on the realty, was not sustained on the facts, and judgment of sale of the realty "unless the legacy should be paid", was affirmed. See also Gifts. — Hawkes v. Slight, 110 W., 125, 12&. 40. The word "legacies", held to include realty as well as personalty. See Life Estate. — In re Stuart's Will, 115 W., 294, 298. 41. A mere devise of land subject to the payment of a legacy is not an 'express trust barred by the statute of limitations, and Williams v. Wil-' liams, 82 W. supra, so far as contrary, is overruled. 42. Such devisee "became personally liable", and the legacy to him "might be foreclosed" after it became due. See also Lien. Limitation of Actions. ' —^Merton v. O'Brien, 117 W. 437, 440. 43. A will gave the widow a, life estate in all the realty and personalty with the power to 1 exhaust the latter, which amounted to less than the total money bequests thereafter given, and after the wife 's death ' ' gives to the two sons the real and personal property, 'with the exception of the above named bequests' ; clearly indicating the purpose of the testator that such bequests should be paid in any event, before the two sons received . anything. 44. To this may be added the further facts", among others, that the I (■ LEGACIES. LEGATEES' .681 widow "was in vigorous health" and that the sons were named as execu- tors and "absolved from giving bonds", with resultant power to dissipate the personalty. 45. Without deeming "it necessary to decide the full scope of the rule of law", "in all cases of the bestowal of mere residuum of mixed real and personal property, there must arise an inference of intent' to charge specific money legacies upon the whole of that residuum, including the real estate", and it is so held here from the will and facts. Will of Root, 81 W. supra; other cases. 46. Though generally, "as between legatees and devisees", "personalty is the primary source from which debts and legacies are payable," and realty though ' ' chargeable therewith can be resorted to only in case of deficiency of personal assets" "left by the testator, not merely a deficiency resulting from misapplication or devastavit by the executors", — 47. Yet such rules "cannot, however, be patiently heard in a court of equity, when the devisee is also the executor, who, having both the per- sonal and real property, has by his own wrongful act caused the deficiency in the former' ' ; Wyckoff v. Wyckoff, 48 N. J. Eq., 113 ; 48. "He certainly ' must be estopped to assert the existence of such assets in exoneration of the realty, which he takes subject to these legacies. 49. Of course, his judgment creditor, who is the sole appellant, stands in no better position than the executor himself," his judgment being "a lien merely" "subject to all equities therein in favor of others". — Hamilton v. Buckman, 118 W., 169, 172. 50~. The statute does not "prevent legacies from being made a charge upon the homestead by a 'general direction' in a will." See also Home- stead. — Kuener v. PraU, 119 W., 487, 492. 51. A devise in fee, defeasible, 'upon express condition', to pay a legacy held chargeable on the lands. See Vesting op Estates, etc. —Korn v. Frig,, 128 W. 428, 433. 52. "The privilege of naming a child" is "a sufficient consideration to support a contract" to bequeath property, and the child may' "ratify the transaction and enforce the contract in its favor." (Cases). 53., But an agreement to "leave her something at his death", though the promisor made "declarations to third persons and in wills which he revoked before his death" that he would leave $500— is held "invalid for indefiniteness and uncertainty. (Cases) ". — Freeman v. Morris, 131 W. 216, 218. 54. Following Merton v. O'Brien, 117 W., supra, where appellant W., received land, 'an estate in fee, defeasible' on conditions, with remainder over, 'subject to the charge of the legacy of $5000' of plaintiff (see 682 PROBATE AND GENERAL LAW, CODIFIED Korn v. Friz, 128 W., supra), "there is no question but that the plaintiff is entitled to haye the land sold under foreclosure judgment". ' 55. As "the selling of" appellant's and remainderman's "interests separately will operate to the injury of all parties interested in the land ' ', 56. And as "the court must adopt the course which, in freeing the property from the lien of the plaintiff, will least threaten loss 1 to the estates and which will promote the interests of all the owners", (In re Kingston's Est., 130 W., 560, see Future Contingent. Estates), it is held,— 57. That "the whole property in fee" be sold, and "under the rules for computing the value of such estates", Ws interest first "ascertained" "and applied in payment of plaintiff's judgment", and "a balance over," if any, "paid to him as absolute , owner thereof." 58. If appellant's share "is, insufficient to satisfy" the legacy judg- ment, then in addition, "sufficient to satisfy the judgment must be taken out of the estate in remainder", 59. And the balance not so required "must be placed in charge of a trustee to administer and hold for accumulation for the persons entitled thereto at the time of the death of appellant. —Steele v. Korn, 137 W., 51, 57. 60. On breach of an agreement to pay for past services a definite amount by will, only quantum meruit recovery can be had. See also Services. — Martha v. Dmvohoo, 149 W. 481 r 486. '61. A will in the 2d clause gives a legacy to E. ; the 3d clause provides for conversion of his realty and personalty and 'out of the proceeds' to 'pay the legacies hereinafter named'. The 4th clause provides various specific legacies, not including any to E. ; and the 5th clause provides 'if said estate is more than sufficient (which it is) to pay said legacies, said legatees shall share the same in proportion to their respective legacies'. 62. "The county and the circuit court" decided that the 5th clause included "all legacies theretofore named in the second and fourth clauses". Affirmed, the court saying, — "the will is plain and unam- biguous"; Marshall, "Winslow, and Vinje, JJ., dissent, holding that the 5th clause does not include the 2nd, and "the whole will is in perfect harmony therewith". — Will of Derrickson, 150 "W. 26, 28. 63. "An oral contract based on a valid consideration to leave the promisee a legacy in personal property is lawful and enforceable. Jilson v. Gilbert, 26 "W. 637 (See Services) ; (other cases, supra). 64. It logically follows that a written contract founded on a valuable consideration to leave real estate would likewise be valid and capable of enforcement". 65. "The plaintiff is seeking to establish the contents of lost writings", LEGACIES. LEGATEES 683 to prove such a contract, "and sound public policy requires that agree- ments of the character here involved should be clearly arid satisfactorily shown". 66. Where the father gave the custody of his, minor child to another, in consideration of the latter agreeing to leave his personal and r.eal estate to the child at his decease; "the mother was competent" to testify in the child's behalf as to the making of the contract, after the promisor's decease. 67. There being "a valid contract, no good reason is apparent why the plaintiff (child) might not elect to sue for damages for its breach", which action "is triable by jury in the circuit court". 68. "The fact that the instrument was lost would not make the action an equitable one", nor the fact that the "contract could only be estab- lished by parol because the writings had been lost", there being real'ty involved. See also Jury. — Dilger v. Est. of McQuade, 158 W. 328, 330.. 69. Where a devise is made of a homestead to a son J. 'charged with' and subject to the' support 'at the homestead' of the wife B. while she remains there, 'and further charged with' 'the payment' of a sum 'annually to my said wife any year or years when she may for any reason reside elsewhere', 'in lieu of support', it is held, — , , 70. Following Merton v. O'Brien, 117 W. supra, that. the devisee J. "was not a trustee of an express trust, and that an action by the legatee (B.) to enforce the li#n may be barred by the statute of limitations". 71. That he was also executor, "does not change the rule", "first, because as executor no duty devolved upon the son to pay the legacy in question", he having gone "into the possession of the land at once and his duty to pay devolved upon him as devisee, not as executor"; 72. And, "second, upon the closing up of his father's estate he was fully discharged as executor more than six years before the commence- ment of the action". "He could invoke the bar of the statute," for either reason. 73. "Failure to pay the legacy (for money support) for any one year gave the mother a legal as well as an equitable remedy". 74. "Having two remedies, the statute of limitations barred the equita- ble one at the same time the legal one was barred. Casper v. Kaltz-Zim- mers Mfg. Co., 159 W. 517, 530. ' ' And ' < the six-years statute " " applied to" this equitable "cause of action". 75. The provision to "pay her $300 annually 'any year or years when she may for any reason reside elsewhere' than with him", "implies that no account is to 'be taken of any absences for less than a year". Pay- ment "for irregular short absences", of from one to four months a year, is denied. —Nolan v. First Natl.' Bank, 161 W. 22, 25. 76. Where the will "provides that in case of the death of either of the legatees, her legacy 'shall be payable to the legal heir or heirs of such legatee'," 684 PEOBATE AND GENERAL LAW, CODIFIED 77. This is held to ' ' include legatees who had died prior to the making of the will", "under the peculiar circumstances" "that the legatees named lived in Germany, had not been visited by the testator in more than twenty years, and apparently had never been in correspondence with the testator". — Fle-nwning v. Oriem, 161 W. 608, 611. 78. (Where there is no contrary authorization by will or statute, the rule is well established that ' ' a general legacy commences to bear interest from one year after the testator's death". See 40 Cye. 2094, and many eases there cited. 79. See also Evans v. Foster, 80 W. supra, where it was held that interest be reckoned, by order under sec. 3850, from a fixed date seven- teen months after the testator's decease. 80. In the case of infants whose support is not otherwise provided for, it is said that "it is almost uniformly held that the legacy com- mences to bear interest from the death of the testator". 40 Cyc. 2096. 81. And it is further said that "specific legacies carry any acces- sions by way of increase or interest which accrue after the testator's death"; and that annuities "commence from the death of the testator". 40 Cyc. 2101, 2103. 82. It seems that "the great weight of authority" is to the effect "that in the case of a bequest of a life estate in a residuary fund", "the legatee for life is entitled to the interest or income of the clear residue ' ' accruing thereon from "the death of the testator", -and in the executor's hands at the time of transfer to the trustee. 40 Cyc. 1882; Mass., N. J., N. Y., and other cases. Lovering v. Minot, 63 Mass. 157. . 83. The authorities are in conflict on the question as to whether a life beneficiary of a general legacy fund to be invested for his benefit, should receive an income from the death of the testator or commencing a year thereafter. 40 Cyc. 1881; 84. But as, pending a reasonable administration period, the executor is not expected or bound to set apart a fund for investment from which to produce an income for such life tenant, it would seem that there would be no justly computable accrued income in his hands for payment until after such investment was regularly made ; and that in any event the life tenant would be entitled only to such income at the estate set- tlement as it could be effectively shown accrued for him, if any.) ' 85. Where a, t will after giving realty to other heirs, provides as to a daughter E., that such 'heirs shall pay her after my death the sum of $200', and by agreement there was a delay of about twenty years in the probate of the will, and such legacy not being paid, it is held : , 86. That the questions that the legacy "became the personal obliga- tion of the" heirs, and if so was barred by the statute, — "are disposed of by the rules that in order to take advantage of the bar of the statute of limitations such bar must be specially pleaded (Roach v. Sanborn L. LEGITIMACY 685 Co., 135 W. 354, 359), and that questions not brought up in the court below cannot be entertained here (Birdsali v. Eraczel, 154 W. 48, 53) ". 87. By the words 'after my death', "the payment was intended by" the testator "to 'become due and payable at such times as is ordinarily the period after death that the law provides for such payment in the ordinary course of administration, namely, one year after such death". - 88. " The delay in admitting the will to probate is immaterial ; it may be admitted at any time after the death of the testator (Hanley v. Kraftczyk, 119 W. 352; see Probate op Wills) ". 89. "The general rule is that such legacy becomes due and payable at the end of the year following the death of the testator, which is the time generally limited for the payment of debts and legacies. Evans v. Foster, 80 W. supra; (other cases). 90. Such legatee is in the same position as a creditor and entitled to be awarded interest at the legal rate for such time as he is kept out of his payment. Matter of Kutherford,' 196 N. Y. 311, 315. 91. Interest does not depend upon demand or default (cases) ; and even if the delay is caused by the legatee contesting the will, it does not affect the paying of interest as of one year from the death of the tes- tator. Claflin v. Holmes, 202 Mass. 157, 159". —Will of Brandon, 164 W. 387, 390. LEGAL HOLIDAY. See Holidays. See Tender. LEGAL TENDER. LEGITIMACY. Child of divorced husband, 15. Born after subsequent marriage, 15. Divorce record inadmissible, 15. Parties evidence inadmissible, 15. Second husband; no curtesy, 15. ,Second marriage immaterial, 15. "Children," include illegitima'te, 1.7. Husband's evidence: incompetent, 14. Illegitimate son of Indian, 26. Legitimatizing children, 18. Not involved in probate, 18., Nearest blood relations, 21. Child of illegitimate son, 22. Illegitimates blood relative's, 25. Judicial intention construction, 21. Set definitions modified, 23. Non-resident illegitimates, 19. Judgment inoperative, 20. 'Paternity: determined how, 27. Acknowledged, but in fact not, 33. Whether entitled to inherit, 33. Appear, reasonable clearness, 29. Informal writing of, 28. Law of parents domicil, 30. Letter "your affectionate father," 32. Signed in "witness" presence, 32. Not precise or formal, 28. Pension bureau report, 31. Witness not attest in writing, 28. Presumption of legitimacy, 2, 13. Pacts show illegitimacy, 13. Overcome'by clear evidence, 2, 4, 7. Not wife 's* testimony, 1, 4, 6. Rule and common law rule, 16. Same status as legitimates, 34. As regards the mother, 34. 686 PROBATE AND GENERAL LAW, CODIFIED Same status, etc. — continued Wife's evidence: Damages for death, 34. Incompetent as to non-access, 1, 6, 14. Testator's intention respected, 24. Even inferential evidence, 3., Set definitions modified, 23. Location of husband; improper, 5. Void marriage: Not testify as to illegitimacy, 11. Child legitimate, 8. Kecital in deed; improper, 10,,12. Husband living at marriage, 9. 1. ' ' The law is well settled that the wife, on the question of the legiti- macy of her children, is incompetent to give evidence of the non-access of her husband during the time in which they must have been begotten. This rule is founded on the very highest grounds of public policy, decency, and morality. 2. ."The presumption of the law is in such a case that the husband had access to the wife, and this presumption must be overcome by the clearest evidence that it was impossible for him, by reason of impotency or imbecility, or entire absence from the place where the wife was during such time, to have had access to the wife, or to be the father of the child. 3. "Testimony of the wife even tending to show such fact, or of any fact from which such non-access could be inferred, or of any collateral fact connected with this main fact, is to be most scrupulously kept out of the case ; 4. "And such non-access and illegitimacy must be clearly proved by other testimony. ' ' (Cases. ) 5. "The question, 'Where was your husband at any particular time,' Whether during the time within which the child was begotten or not, was held in King v. Inhabitants, etc. 5 Adol. & EL., 180, to be a collateral fact directly connected with the main fact, and objectionable." —Mink v. State, 60 W. 583, 585. 6. "The doctrine" of Mink,v. State, 60 W. supra, "rests upon 'the very highest grounds of decency and morality', and applies to all cases", civil as well as others. 7. "To bastardize and disinherit a child born in lawful wedlock, the most clear and conclusive evidence of non-access is required." 8. The statute, sec. 2274, that "the issue, (also) of all marriages declared null in law shall nevertheless be legitimate", means "that a child born within the wedlock of a regular marriage, which is null in law, shall, nevertheless, be the legitimate child and heir of each and both parents, so far as the question of legitimacy is concerned". 9. Held, where the mother had a husband living at the time of mar- riage, a child born of such last marriage, is legitimate "by virtue of the statute". 10. The mother by recital in a deed, "virtually admits by such recital that her child is illegitimate. This, we have already shown, she can- not do.' 11. She cannot even testify that she is illegitimate by reason of non- ' LEGITIMACY ' 687 ■ access to her husband, much less can she effect the same purpose by a mere admission. J 12 "The rule that recitals may effect the question of pedigree cannot be extended to embrace such as is, in effect, an admission of non-access between the father and mother, for the purpose of disinheriting a child". — Watts v. Owens, 62 W. 512, 519. 13. "Although F. was born during the lawful wedlock of L. (her mother)- and S., and is presumptively their child and heir, the facts may overcome such a presumption, and show conclusively that she is not the child of S". (See such determination on 'the facts, in Schuman v. Schuman, 83 W., post). —Schuman v. Eurd, 79 W., 654, 656. 14. "No rule of evidence is better settled than that husband and wife are alike incompetent witnesses to prove the fact of non-access while they lived together. {Citations and cases supra) ". 15. Where I. lodged in the same house with L., his wife, for the three months preceding a divorce judgment from her, November 15, 1884, and L. married S. February 10, 1885, and her daughter F. was born July 8, 1885, it is held that the divorce record as to non-access, as well as the testimony of both I. and L. relating thereto, is inadmissible on the ques- tion of legitimacy, that 'the rule is not affected by the mother's second marriage, that the inference from the proofs "is conclusive that I. is the father of the child F.", and therefore that "S. is not entitled to curtesy in those lands of which L. (his wife) died seized, which descended to F." 16. "The old common-law rule," and this rule "considerably modified by judicial decisions in later times," as, "well stated by Lord Langdale M.R. in Hargrave v. Hargrave, 9 Beav., 552, ' ' with reference to the pre- sumption of legitimacy of the child of a married woman, — are given in detail. —Schuman v. Schuman, 83 W. 250, 254. 17. An illegitimate descendant may be included in the word 'children' if the evidence shows such intention. See Construction of Wills. —Will of Scholl, 100 W. 650, 655. 18. "The question of legitimatizing" children born before the marriage of the testator, "was not properly involved in determining whether the will should or should not be admitted to probate". 19. "While the legislature of Wisconsin may properly regulate the status of citizens of this state, we do not understand that it has any power to prescribe the status of citizens of other states. " (Cases) . 20. "So far as the judgment in form attempted to legitimatize the adult children who were residing in and citizens of Louisiana, we must hold that it was extra-judicial and inoperative". —Frame v. Thormann, 102 W. 653, 672. 21. While "the words 'my nearest blood relations'," "generally speak- ing, in wills means such persons as take under the statute regarding the 68^ PEOBATB AND' GENERAL LAW, CODIFIED i distribution of estates of intestate (oases)", "that does not stand in the way of giving to them, by judicial construction, any reasonable different meaning necessary to effectuate the intention of tb.9 testator". 22. Where the testator "must have known, or had reasonable ground to suppose" "that he had no blood relatives" otherwise, the "children of an illegitimate son of the mother of the deceased", he being also her illegitimate son, are held to be intended in his will and entitled to take the residuum. 23. ' ' The offense of the parents in the case of an illegitimate offspring under the humane laws of our day is not visited upon the children to the extent of preventing them from taking under a will regardless of the ordinary meaning of the term 'blood relatives', or 'child', or 'heirs', or 'next of kin' at common law. 24. The intention of a testator as regards illegitimates is to be respected and effectuated by courts ,the same as his intention respecting lawful issue. Will of Scholl, 100 W. supra". 25. Whether the blood relatives of illegitimates, ' ' given inheritable blood, as to the mother"; "include his brothers and sisters of the common mother, though they are also illegitimates, and also include their descendants", is not determined, though there is "much authority to" that effect. — Est. of Sander, 126 W. 660, 664. 26. As to finding an illegitimate son of an Indian, heir under the federal statute. See Heirs'. .— Smith v. Smith, 140 W., 599, 601. 27. "The question of the paternity" "must be determined not alone upon the testimony as to" the date of 'the birth, "but upon the whole evidence in the case" Where the father "always spoke of and acknowl- edged her as his child", this is held "more persuasive and controlling than the testimony of" two aged women as to date of birth of more or less indefiniteness. 28. "It is not essential that the written acknowledgment (of parentage under sec. 2274) shall be made for the express purpose of establishing heirship or of a compliance with the statute ", or " that the witness should attest or subscribe the writing", or that it "shall be in precise formal language. 29. It is sufficient if it appear with reasonable clearness and cer- tainty from the written -words that the paternity of the child is acknowl- edged. Crane v. Crane, 31 la. 296. 30. So, also, the law of the domicile of the person making the written acknowledgment, and not that of the domicile of the child or the mother, governs the question of legitimation." (Cases). 31. A report to the pension bureau, making acknowledgment of par- entage, "signed by him in the presence of W., a competent witness", it is held, "fully satisfied the requirements of the statute". 32. And it is stated that a letter addressed to M. as his daughter, "signed by him" 'your affectionate father,' all written, including signa- LIABILITY 689 ture (he being illiterate), "through C., and in his presence as a compe- tent witness",— is supplemental evidence of such paternity under the statute. (Cases). 33. Whether, the deceased having "jn compliance with the statute acknowledged M. to be his daughter, she is entitled to inherit even though m fact she was not his child 7 \ — is not decided. ' —Richmond v. Taylor, 151 W. 633, 640. 34. "The policy of our written law is to give an illegitimate, as regards the mother, substantially the same status as a child born in lawful wed- lock". Recovery by the mother of an illegitimate, of damages for the latter 's death,"held proper. —Andrzejewski v. N. W. Fuel Co., 158- W. 170, 179. See Writings. LETTERS. LEX LOCI CONTRACTUS. See Contracts. LIABILITY. Administrator or executor: Concluded; order to pay claims, 22. : With or without assets, 22. Counsel employed by him, 15. Has lien oh estate assets, 15. Estate assets stolen, 14. After neglect to pay, 14. Funds not controlled by other court, 24. Liable to third party, when, 25. Liable as such; insolvent bank, 20. Make sale through agent, 21. Agent makes misrepresentations, 21. ■Payment of mortgage; contract, 31. i Assumed in deed accepted, 31. Ordinary estate debt, 31. Payment on void judgment, 28. Protected on erroneous, 29. Personally on his contract, 10. Assets sufficient or not, 11. Exceptions to general rule, 13. Judgment out of his estate, 12. Sale of personalty; personally, 27. Not in realty sale, 27. After estate is -settled, 2. Administrator owes heirs, 2. Liable; action, personally, 2. Zimmerman — 44 Chattels to life beneficiary, " 4. Sale or destruction, 4. Counsel fees : Administrator personally liable, 15. Allows attorney to act for him, 18. Liable quantum meruit, 19. Charge same in account, 17. Priority over general debts, 17. Has^lien on estate assets, 15. When he is unable to pay, 16. Creditor apply to estate, 16. Debts, includes contract, tort, 1. Definition of, 30. / . / . Garnishment of admr., trustee, 6. Garnishment continues after order, 8. Liability to such process, 6, 7. Not before final order, 6. Trust fund for a period, 23. Whether after final order, 9. Money for safe-keeping, 5. i Revoked administration, 26. ' Expenses, how paid, 26. Share of heir: Admin, primarily liable, 3. Bond, cumulative remedy, ,3. 690 PROBATE AND GENERAL LAW, CODIFIED 1. "Liability, used in conjunction with the "word debt, is broad enough to include all claims, whether founded upon tort or contract". —Smith v. Omans, 17 W. 395, 396. 2. "After the estate is settled, debts paid, a final account rendered,' which is settled and allowed by the county court, and an order of distri- bution made, 'the administrator may, with strict propriety, be said to owe the heir his share of the personal estate, and on failure to pay the same, should be held liable therefor in an action against him directly". 3. "The administrator is of course primarily liable to the heir for her share of the estate. If the money cannot be made out of him, then she may resort to an action on the bond and recover it from the sureties", which last" is held to be a accumulative remedy. —Williams v. Davis, 18 W. 115, 118. 4. On delivery of "personal chattels" to the life beneficiary thereof, the executor is not thereafter liable therefor if such beneficiary sells or destroys the same. See Life Estate. —Golder y.' Hittlejohat, 30 W. 344, 352. 5. Where money is taken for safe-keeping, not to be identically returned, the holder is liable absolutely, though the money was stolen.. See Bailment.. — Shoemaker v. Binze, 53 W. 116, 117. \ 6. "The authorities are almost uniform that an executor or admin- istrator is not liable to garnishee or trustee process before a final order for the distribution of the estate is made, unless he is rendered so liable by some provision of the statute. We have no statute in this state which takes such a case out of the general rule". 7. "It must be held, therefore, that the executor, when summoned, was not liable to garnishment, and hence that the action against him fails. 8. Manifestly it was not saved by the circumstance that the garnishee action remained in court until after the order of distribution". 9. "Whether the executor is liable to garnishment after the final order for settling and distributing the estate, is not here determined". —The J. I. Case T. M. Co. v. Miracle, 54 W. 295, 298. 10. "It is a general rule that upon all contracts made by an executor or administrator, in the discharge of his duties as such, he is liable per- sonally, 11. And his liability does not depend upon the fact that he has assets y in his hands sufficient to discharge the debts so incurred ; 12. And the judgment, if any be recovered, is to be satisfied out of his estate, and not out of the estate of the deceased. • 13. There are, undoubtedly, exceptions to the general rule, but they LIABILITY 691 depend upon equitable considerations ", clearly showing the reason therefor. (Quoted and approved, with exceptions explained. Miller v. Tracy, 86 W. post) . $ee also Actions by Bxtrs. & Admes. —McLaughlin, Admr. v. Winner, 63 W. 120, 128. 14. Where moneys in the hands of the administrator "ought to have been paid to the creditors of the estate long before the time when it is claimed they were stolen," and not excused, "it was inexcusable negli- gence that he retained the money in his custody where it could be stolen," and he is liable therefor. Williams v. Williams, 55 W. 304". —Black v. Hurlbut, 73 W. 126, 131. 15. "In employing counsel the executor incurs a personal liability, but his lien on the assets serves as his indemnity. Schouler, Bxtrs., 256, 544." 16. And after approvingly quoting McLaughlin v. Winner, 63 W. supra, it is said: "But where the estate has derived a benefit from the services rendered to the administrator, and he is unable to pay or is insolvent, the creditor has been allowed. to prove and proceed directly against the estate. 17. But in a case" where the administrator makes payment of a claim for proper and necessary counsel fees or pther proper expenses of administration, he can charge the same in his account and have it allowed at a reasonable amount and paid out of the assets of the estate in his hands; and such claim will have priority over the general debts of the decedent. (Citations)." (Approvingly quoted in Ferguson v. Woods, 124 W., 544; see Administration Expenses). 18. In this case, where the attorneys for a creditor, thought the administrator had engaged them to defend against a large claim, and the administrator denied this, but allowed such defense, which resulted in great benefit for the estate, and the administrator "has assets out of which to indemnify himself", and there were other attorneys employed generally for the estate, it was held that the administrator was personally liable, 19. And that ' ' a recovery may be had quantum meruit for the benefit conferred by them, and upon the ground 'that he who gains the labor and acquires the property of another must, make reasonable compensa- tion fpr the same' (Van Deusen v. Blum, 18 Pick., 229, 230) ",• and espe- cially because of assets. —Miller v. Tracy, 86 W., 330, 333. 20. The executors as such, of the estate of a decedent, stockholder of an insolvent bank, are held liable, though no claim was filed in the county court. See Concurrent Jurisdiction. — Gipnella v. Bigelow, 96 W., 185. 21. Where administrators, as such, sold animals, "under the authority of the court" through an alleged agent B. to C, "to hold them liable in 692 PROBATE AND GENERAL LAW, CODIFIED tort at common law for prior fals,e representations of B. to C, ' it should at least be made to appear that he was especially authorized to make such representations, or else that he was at the time authorized to make such sale, and made it by false representations in pursuance of such authority". —Newell v. Clapp, 97 W. 104, 109. 22. The executor and his bondsmen are concluded by an order for the ■payment of claims,. whether there are assets or not. See Claims. —Roberts v. Weadack, 98 W. 400, 404. 23. As to trustees appointed by the county court, holding a fund payable to G. should he return within "a period of 'ten years", it is said : ' ' Manifestly, such fund, in the hands of such trustees, cannot be reached by garnishment. J. I. Case T. M. Co. v. Miracle, 54 W., supra ; (other cases) ". —Evans v. Rector, 107 W., 286, 290. 24. While executors and trustees, who hold trust property of a debtor, cannot be enjoined or controlled by another court as to such funds, 25. Yet they may be held liable to pay to a third party, where the debtor could assign and transfer such property. See also Creditors Actions. — Williams v. Smith, 117 W. 142, 144. / 26. While expenses of a revoked administration are not properly a claim, yet in a subsequent administration in another county, they may be presented as administration expenses. See Administration Expenses. —Brown v. McGee's Est., 117 W. 389, 392. 27. While the administrator is personally liable in sales of personalty, he is not so in mortgage and sale of realty. See Sale of Realty. — Wisconsin Trust Go. v. Chapman, 121 W., 479, 486. 28. As to executors being personally liable for trust funds paid out under a void judgment, 29. And being protected by an erroneous judgment jurisdictionally made. See Probate of Wills. — Will of Rice, 150 W. 401, 463. 30. "Liability is 'the state of one who is bound in law and justice to do something which may be enforced by action'. (Citations)". — State etc rel.'Quinn v. Thompson's M. F. Co., 160 W. 671, 675. 31. Where an administrator assumed to pay a mortgage pursuant to a "contract made by the deceased in his lifetime", in "its formal com- pletion by the exchange of deeds under the authority of the county court after" the decease,— this "created no personal liability on the part of the administrator nor preferred liability against the estate, but simply a liability on an equal footing with other debts contracted by the deceased". —Clarke v. Johnson, 164 W. 461, 464. LIEN LICENSE. See Liquors. Sale of Realty. 693 LIEN. Administrator's attorney's fees, 34. Artisan's common-law, 42. Statute prior to mortgage, 43. Attorney : Agreement; personal injury, 19\ Action not assignable, 20. Defendant settles; pays himself, 19. Believed, though knowledge, 19. Made on estate , assets, 34. Not champertous under rule, 21. Cause of action, plaintiff, 6. " Not defeated by defendant, 6. Judgment for damage claim, 3. Services and disbursements, 5. 'When before judgment, 3. On order for collection 2. Debts on realty; sec. 3873a, 24. Denominated a realty lien,> 26. Equitable under sec. 3274, et al.,,25. Limits county court only, 24. Not bar other remedies, 25. ^ Devise in fee, defeasible, 35. ■ Guardian ad litem fees, 28. May be foreclosed, 28. Legacy: on realty, 30. Acceptance by devisee, 30. Annual charge: six-year statute, 41. Charge personalty; realty, 30, 31. t Enforced by foreclosure, 31, 39. Specific rnoney; on realty, 32. Mechanic : Husband buys'; wife's house, 7. Waived by an assignment, 27. Money loaned upon a note, 36. Homestead, vendor's liens, 38. Not like purchase money, 37. Used and to be used in building, 36. Vendors of realty: Claim filed against estafe, 17. Homestead, how affected, 16, 17, 29. Waiver of superior rights, 17. Enforced in equitable action, 33. Foreclosure, though mortgage dis- charged, 40. Grantee's death, not destroy, 22. Homestead also included, 15, 17, 38. Not after vendee's decease? 16, 17, \ ,- 29- J. bought, pays for P., deed direct, 8. Equity, strietly confined, 13. Money advanced; subrogated, 11, 12. Same as deed from himself, 9. Substantial equity clear, 10. Mere chose in action, 23. Representatives; not heirs, 23. Third person, when entitled, 13, 14. Same effect and order as mortgage, 18. Under certain circumstances, : 1. ' Waiver; voluntary surrender, 4. 1. "A vendor of real estate has a lien, under certain circumstances, on the estate sold, for the purchase money" on the equitable principle "that a person who has gotten the estate of another, ought not, in con- science, as between ithem, to be allowed to keep it, and not pay the full consideration in money. 2 Story's Eq. Jur. § 1219." —Tobey v. McAlister, 9 W. 463, 467. 2. An attorney having a town order for collection, held "that he had a lien for compensation upon the order, by well established principles". See Attorney and Client. —Howard v. Osceola, 22 W. 453, 458. 3. "We are satisfied - that independently of an agreement to that effect— 'that the attorneys have a lien upon the cause of action'— between 694 PROBATE AND GENERAL LAW, CODIFIED the plaintiff and his attorneys, of which the defendant has receivedx notice, no such lien attaches before judgment to a claim for unliquidated damages". —Courtney v. McGavack, 23 W. 619, 622. 4. "Where a lien is given by law, the doctrine is well settled that a voluntary surrender of the possession is deemed a waiver'.'. —Smith v. Sceit, 31 W. 420, 432. 5. "It cannot be doubted that the attorney has a lien upon the judg- ment which he'has recovered for his client, for his services and disburse- ments in recovering the same". i 6. And where ' ' the written contract oh which the actions were founded was in the possession of the plaintiff's attorneys during the litigation, such lien extended to the cause of action; and payment of the plaintiff's claim to the plaintiff, without the consent of his attorneys, even before judgment, would not defeat such lien". i — Bice v. Garnhart, 35 W. 282, 283. 7. A mechanic's lien may be had for materials bought by the husband,, and applied to the wife's house, she consenting to the improvements. See Husband and Wife. — Wright v. Hood, 49 W. 235. 8. Where J. bought and paid for land for P., took the deed in P's name and delivered it to P. upon the latter paying one-half of the purchase price and giving J. his notes for the balance, and ' ' P. went into land as a homestead", it is held: 9. "So far as the equitable principle of a vendor's lien for the pur- chase money is concerned, they occupy the relation substantially, of 1 vendor and purchaser." "It is the same, in substance, as if J. had taken the deed directly to himself, and then deeded to P. ' ' 10. "In" courts of equity, names merely, and legal definitions and distinctions, will not stand in the way of substantial equities, clearly established, and forms are disregarded, and the substance only is con- sidered in the application of equitable principles, and especially in the enforcement of a vendor's lien for purchase money. Jones v. Parker, 51 W. 218". 11. Treating J. "as a stranger or third person who advanced or loaned to the purchaser the money for the express purpose of paying, and for no other purpose, and which is actually paid to the vendor by him, or by his directions, as the consideration for the purchase of the land", he is likewise "substituted or subrogated to the right of the vendor to an equitable lien upon the land for such purchase money". 12. It is so held on the authority of Jones v. Parker, supra, (cited under Mortgage), where "the transaction was quite similar to that of the parties in this case"; "and the principle is precisely the same in both cases". LIE;N 695 13. "It must be.. understood that the extension of this equity to a third person is strictly confined to those who furnish or advance the purchase money to the purchaser in such manner that they can be said either to have paid it to the vendor, personally, or caused it to be paid, on behalf or for the benefit of the purchaser; and to this extent they become parties to the transaction. It must not be a general loan" to the purchaser, which he might use for this purpose or some other. 14. "The principle in either case is very much questioned, and in many of the states is not recognized". "However, so far as this state is concerned, it must be considered as a settled question that such third persons are entitled to the full benefit of the vendor's lien". 15. ' ' It may be said here that the provision of the statute in sec. 2983, ' which subjects the ■ homestead to 'purchase-money liens', must be con- strued to embrace cases where the purchase-money is furnished and paid, as the consideration for the homestead, by a third person, in such way that it can be said to have procured it for the purchaser, which is the reason of the rule". 16., (The last foregoing point, so far as it affects the homestead after the vendee's decease, is overruled in effect, in Berger v. Berger, 104 W. post, in consideration of sec. 2271, the court saying the effect "did not occur to the counsel who presented the case, or to this court ' ', and that the point was there conceded. ) 17. J. having filed his claim, and the proceeds of the land not a homestead, having been applied to pay 20% of his and the other claims, he has waived his right to his equitable lien upon such lands, but not as to the homestead, though he should now receive of the homestead proceeds only so much thereof as is neeessary to pay his claim after "the net product of the administrator's sale of the eighty acres be ascertained and deducted", "and without regard to the per cent he has already received". , 18. "An equitable lien for purchase money has the essential char- acter and incidents of a mortgage to secure it, and, in its enforcement by sale of the land, the same order should be followed, and the same consequences should follow", as indicated in sec. 3163. —Carey v. Boyle, 53 W. 574, 578. 19. In an action for personal injury "where the plaintiff had agreed with his attorneys to pay all his own costs and save them from any court costs, and give to them one half of the damages recovered and all of- the taxable attorney's fees, and not to discontinue the action, nor settle the same without their consent, in consideration of their agreement to prose- cute the action to final judgment with their best efforts, and they do so prosecute", the defendant can "with knowledge of such agreement and performance, and against the protest of such attorneys, relieve itself from all further liability by paying to the plaintiff, personally, a sum of money in settlement of suit, and procuring from him a release and discontinuance of the action". 696 PROBATE AND GENERAL LAW, CODIFIED 20. So held on the authority of Coughlin v. Railroad Co., 71 N. Y-. 443, ' ' that ' a party having a cause of action, in its nature not 'assignable, cannot, by an agreement before judgment or a verdict thereon, give his attorney any interest therein','' this cause of action not being assignable "under our statute (sec. 4253)". 21. The agreement is held not to be champertous within the rule laid down by this court in Allard v. Lamirande, 29 W. 502 (cited under Champerty)". . — Kusterer v. Beaver Dam, 56 W. 471, 475. 22. "The death of the grantee does not -destroy the grantor's lien for the purchase money. He may enforce the same against the widow and heirs at law of .the grantee. (Cases)". — Crowe v. Colbeth, Admr., 63 W. 643, 646. 23. "A vendor's lien for an unpaid balance of the purchase price" of land, being "a mere chose in action, it would necessarily go by suc- cession to" the personal representative and not to the heirs. —Evans v. Enloe, 70 W. 344, 349. 24. Section 3873a is held "only to limit the power of the adminis- trator to obtain license and sell the real estate after three years from the death of the deceased; that is, after that time the, remedy to collect the debt through the proceedings in the county court is gone ' '. 25. But "this does not bar any other existing remedy to enforce the payment of the debt. This leaves the equitable proceeding still in force" under sees. 3274 et al. 26. Under sec. 3873a the liability of lands to debts where the per- sonalty is deficient, "the real estate was in the nature of equitable assets which would be applied; and the liability of the real estate to be so applied is denominated a lien upon or a valid claim against the real estate in this act." — Fisk v. Jenewein, 75 W. 254, 257. 27. "A right to a mechanics lien was so distinctly a personal and individual privilege that it was waived by an assignment", has long been the law of ^this ' state, and so continued, except as modified by statute. — Shearer v. Browne, 102 W. 585, 587. 28. Fees of a guardian ad litem may be made a lien on the ward's property and foreclosed. See Compensation of Admr., etc. — Tyson v. Richardson, 103 W., 397, 402. 29. "We must hold to the plain letter of the statute (sec. 2271), deciding that the right to enforce a vendor's lien upon a homestead is lost by the death of the owner of such homestead." As to Carey v. Boyle, 53 W., supra, apparently contra, it is said that there "such right was not questioned, presented, considered, or discussed," and that there LIEN » 697 both sides "conceded the right of lien in favor of a vendor, notwith- standing the death of the vendee." -—Berger v. Berger, 104 W., 282, 284. 30. As to "a devisee of real estate, upon which was imposed a money charge or lien", being a legacy, it is said: "By accepting the devise, and taking possession thereof under the devisee, he doubtless became per- sonally liable to pay the charge thereon when it became payable by law. Evans v. Foster, 80 W. 509 (See Legacies). 31. His situation, then, was that he owned real property, subject to a lien thereon, which he had agreed to pay, arid which might be fore- closed and enforced at any time after it fell due". (Approvingly quoted in Steele v. Korn, 137 W. post) . — Merton v. 'Brien, 117 W. 437, 441. 32. As to "specific money legacies", by inference being a charge upon residuum of real as well as personal property. See Legacies. — Hamilton v. Buckman, 118 W. 169, 172. 33. "A vendor of realty" has "an equitable right to have the unpaid consideration therefor, by the action of a court of equity, made a lien thereon, and to have the use of its jurisdiction to enforce the same as justice may- require." (Cases) ■ — Halversen v. Halversen, 120 W., 52, 55. 34. The county court may make the administrator's attorney's fees a lien upon the assets of the estate. See Administration Expenses. —Carpenter v. 77. 8. F. & Guaranty Co., 123 W. 209, 212. 35. A devise in fee, defeasible, 'upon express condition'- to pay legacy as a charge on the lands. See Vesting of Estates, etc. —Korn v. Friz, 128 W. 428, 433. 36. "It is very clear, (therefore), that where money is loaned, as in this case, upon a promissory note, the mere fact that it was understood it should be used and was in fact used in the construction of buildings upon the real estate gives the creditor no lien upon such real estate. 37. The cases cited by plaintiff are purchase-money lien cases, and rest upon entirely different principles." (Cases, distinguished.) "It is clear under the authorities that the lien is not allowed" "to one who furnishes money to build a house on the lot"; that "is confined to the vendor 's lien. ( Citations) ' '. 38. "The purchase-money liens referred to in" the homestead exemp- tion statute, sec. 2983, "clearly means vendors' liens for purchase money. Carey v. Boyle, 53 W., supra; (other cases) ". See also Homesteads. —Bartle v. Bartle, 132 W., 392, 399. 39. Foreclosure and manner of application of a legacy lien on realty. See Legacies. —Steele v. Korn, 137 W., 51, 57. 698 PROBATE A^TD GENERAL LAW, CODIFIED 40. As to unpaid purchase money giving a vendor's lien entitled to foreclosure, though the mortgage security was discharged. See Mort- gages. —Latton v. McCarty, 142 W., 190, 196. 41. There being a legal as well as equitable remedy, to recover an annual legacy charge the six-year statute of limitations applies. See also Legacies. — Nolan v. First Natl. Bank, 161 W. 22, 26. 42. "There is a conflict of decisions upon the question" as to whether "the common-law artisan's lien" has a priority over a prior chattel mort- gage.' 43. However, our statute, "sec. 3343, expressly gives the mechanic a prior lien when he has made the repairs at the request of the owner or legal possessor of the property". —Jesse A. Smith Auto Co. v. Kaestner, 164 W. 205, 206. LIFE ESTATES. See also Construction op Wills. Vesting of Estates, etc. Power. Precatory Trusts. Foreclosure sale: Life tenant purchaser, 35. Incumbrance : Life tenant; subrogation, 34. Personal chattels: Beneficiary sold or destroyed, 4. Remedy against her extr., 4. Delivered to life beneficiary, 2. Executor 's liability -terminates, 2, 3. Resume after decease, 3. Life legatee also executrix, 5. Possession vested as legatee, 5. Co-executor's sale as her agent, 5. Taking receipt of life legatee, 6. Failure, not liable on bond, 6. Phrases construed: "AH" estate, "right to sell," 8. After "decease," "parted" to children, 8, 9. No language of more than life, 9. Power of sale not general, 10. Sell life estate only, 11. Will construed as made, 12. Apparent devise in fee, 18. Also disposed of fee thereafter, 18. Child with proceeds; estopped, 63. "For her special benefit," 29. Fee; alternative modification, 25. "Legacies" to include realty, 32. Phrases construed-^— continued ' ' Purchaser, ' ' means for value, 42. "Sell" as "to her seem fit," 30. "Held for the income thereof," 33. "Or to retain during her" life, 30. Right to sell, or hold in specie, 31. "Sell," "use and enjoy, during life," 38. Life, with power as given, 39. May give title in fee, 40. When "breach of trust," 41. What "remains" to children, 38. ' ' Sole use and benefit ' ' during life, 13. "Power to dispose of" as neces- sary, 13. Sold and "necessarily used," 14. Conveyance held valid, 16. Power, without a trust, 17. Statutes applicable, 17. Unexpended, only passes, 15. "Whatever remains" to heirs of both, 13. ' ' Sole use, benefit and behoof, ' ' during life, 20. "Estate that may remain," to others, 20. Could not give away, 22. Corpus, necessary for support, 21. LIFE ESTATES 699 Phrases construed— continued Phrases construed— continued Trust held not created, Conditional fee, terminating 47 Die without issue, to others, 51. Death at any time, 49. Life estate in one-half, 57. "Having children then living," 46 Life estate with control, 54. Passed on death of child, 48. No trust or power of sale, 52, 53. • Perpetuities not offended, 50. Possession right and control, 57. "Words "for her life"; limited, 28. Power to sell implied, 56. Power of sale: mortgage, 26. Use and consume; 1 corpus, 55. Ordinary deed conveys fee, 34. "Use" and "Control" during life, Power to devise; unexecuted, 27. 36. Precatory words: No right to the corpus, 37. Construed as life; implied trust, 7. "Use and dispose of," best judgment, Devise in fee; precatory words, 19. 60. Bule in' Shelley's Case, 12. At death "all the property" to Tax deeds: others, 60. Curtesy tenant, not profit, 1. Not power to dispose of fee, 62. Taxes: life tenant to pay, 43. Only life estate, 62. Fraud in failure, 44. Widow life; children fee, 61. Testamentary guardian; wife, 58. "Without issue remaining alive," 45, Entitled to hold property, 59. 49. , May act as trustee, 58. 1. A life tenant (by curtesy) cannot divest the reversioners by obtaining tax deeds for taxes unpaid either before or after his tenancy, and "can take no benefit or advantage of the title acquired as against the reversioners." —Phelam, v. Doi/lcm, 25 W. 679, 682. 2. Where the "personal chattels" in a life estate as a specific legacy, are delivered to the life beneficiary, the executor's "liability therefor, as executor, at least so long as she lived" would terminate. 3. Where the life beneficiary dies possessed of such chattels it is the duty of the executor or trustee "to resume possession" for the benefit of tire other legatees, but while the life beneficiary "lived, he would have" no further control over them, "and could not be held liable, as executor, on account" thereof. ■ * \ 4. Where the life beneficiary, "sold or destroyed the property after it came into her possession, the remedy of the legatees in remainder would not be against" the executor, "or upon his bond, as such, but against the personal representatives of" the life beneficiary after her death. 5. "In this case, the legatee for life was executrix of the will, and the possession of the property by her co-executor, was her possession, and we think that such possession immediately vested in her, by operation of law, as legatee— that 'of the executors, as such, being thereby divested— and that the subsequent sale thereof by K. (the executor), and .the payment of the proceeds to her, were not the acts of K. as executor, but rather, as agent of the legatee for life". 6. The taking of a receipt from the legatee for life "is doubtless the proper mode in which to transact the business, but we do not find that it has ever been held that a failure to take such receipt will- render the 700 PROBATE AND GENERAL DAW, CODIFIED executor liable upon his bond for the value of such property". See also Construction of Wills. — Golder v. LMlejohn, 30 W. 344, 352. 7. Precatory words construed to creat a life estate and implied trust. See Precatory Trusts. — Knox v. Knox, 59 W. 172, 175. "S. 8. A will stating: "I give, bequeath, and dispose of as follows, to-wit: To my beloved wife M., all that is in my possession at the time . of my decease ; and also my wife to have right to sell the estate, if that will be her choice. And after my wife's decease, the property to be parted to my dear children in equal shares", — is held to give a life estate to the widow only. 9. "In view of the fact that he employed no language from which an intention to bestow more than a life estate upon his wife can be inferred, the provision which he made for his children shows very clearly that he intended to give her only a life estate". 10. "The power of sale may be beneficial, but we are of the opinion that it is not a general power". 11. It "only authorizes the appellant to sell her life estate or interest in the property, leaving the property intact for the testator's children when his widow shall decease". 12. "We are aware of no other principle of law which forbids a pon- struction of this will as the testator made, it", the "rule in Shelley's Case", not being in force in this state. See also Rule in Shelley's Case. Construction of Wills. — Jones v. Jones, 66 W. 310, 316. 13i A testator devised land to his wife 'to be for her sole use and benefit so long as she shall live, with power to dispose of the same if it shall be necessary for her support and comfort in this life.' "The residuary clause of the will is that ' whatever remains after her death shall go to the heirs of him and her in the manner provided by the laws of this state' ". 14. The widow subsequently conveyed the land through a third party to a second husband, the testimony showing that the proceeds were nec- essarily used for her support, and, the contingencies having arisen, it was held that she "had the power to dispose of the corpus or fee of the estate. (Many cases ). " 15. "In case the land is sold under th.0 power, what may remain of the proceeds on the death of the devisee, unexpended, passes unto the residuary clause, and nothing else. 16. The authorities seem to be nearly if not quite uniform that under such a power the widow may sell and convey the fee whenever it shall be necessary for her support. 17. It would seem that our statutes of powers is to the same effect. Sees. 2107, 2108. We have seen that such a power is unaccompanied by any trust. Sec. 2112, seems to settle the disputed question whether such LIFE ESTATES 701 a p,ower is absolute, ' It shall be deemed absolute if the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit.' ! !> — Larsen v. Johnson, 78 W. 300, 303. 18. An apparent devise in fee with subsequent other disposition of the fee of both the testatrix' and her husband's estate, is held to be a life estate. See Construction op Wills. —Allen v. Boomer, 82 W., '364, 370. 19. A will construed as a devise in fee, where there were precatory words of further disposition. See Precatory Trusts. , —Tabor v. Tabor, 85 W., 313, 317. 20. A testator's will disposes of " (3) all his personal estate to his wife, 'to have to hold the same to her sole use, benefit and behoof, with all the increase and increment thereof, so long as she shall live;' (4) 'of my estate that may remain after the death of my said wife, A., I give 1 ", certain legacies, and "all the rest, residue, and remainder" to, certain sons. 21. "We construe the will as meaning that A. could use the corpus of the personal estate so far as reasonably necessary for her support, but no further; 22. She could not give it away as she attempted to do here without infringing on the. rights of the remaindermen. (Approvingly quoted in Perkinson v. Clarke, 135 W., post. ( 23. The remainder was limited by the right of the life tenant to use the corpus for her support, but no further. Paine v. Barnes, 100 Mass., 470." —Murray v. ■ Kluck,' 87 W., 566, 572. 24. A life tenant paying incumbrance, when subrogated? See Widow. — Mebns v. Pabst Brewing Co., 93 W., 140, 149., 25. A devise ' in fee, with subsequent alternative modification, con- strued as a life estate and conditional fee. See Construction of Wills. —Ltetlewood's Will, 96 W. 608, 610.. 26. A life estate with power to sell, construed, under the facts, to include power to mortgage. See Power. —Lardner v. Williams, 98 W. 514, 519. 27. As to a life estate with power to devise, and the power remaining unexecuted. See Power. 28. "The words 'for her, life' are, however, very significant, whether used by a lawyer or by a layman. It may be said that almost uniformly they convey to the mind of either the idea of limitation". —Derse v.. Derse, 103 W. 113, 1151 702 m PROBATE AND GENERAL LAW, CODIFIED 29. In a will drawn an illiterate person, a life estate in both real and personal property to the widow, is held not curtailed because of a subsequent clause giving her all rents and profits "for her especial benefit, ' ' the remainder, at her death, going to others. —Evans v. Kemp, 104 W., 87, 90. 30. A will' giving to the widow ' all my estate, both real and personal, to sell and dispose of as shall to her seem fit and proper, or to retain during her natural life for her own use, subject, alter her decease, to the following legacies:', then disposing of realty and personalty, with a residuary clause disposing of the remainder after the wife's decease,^- 31. Gives her the right "to sell and dispose of all of his estate", "or to retain the same in specie during her" life, and a life estate only. 32. The word 'legacies* in the will, "manifestly applies to all the gifts thereinafter mentioned, including real estate as well as personal property". 33. Certain stock to be 'held for the income thereof, and realty during life, and other realty absolutely, is held to mean subject to the widow's life estate therein. —In re Stuart's Will, 115 W., 294, 297. 34. In case of a life estate with power of disposition, a conveyance by ordinary deed is held to convey a fee under see. 2108. See also Power. — Auer v. Brown, 121 W., 115, 122. ; 35. As to life tenant's purchase at a foreclosure sale, held to be for the benefit of such tenant and remainderman, subject to a proportionate accounting. See Title. — Keller v. Fenshe, 123 W. 435. \ 36. A will giving to the wife 'all my estate', 'for her use, benefit, and control during her natural life if she does not again marry', and after her death 'not again married, my said estate' to go to children named, with power of sale by the executor and wife with approval of adult children, is held, — 37. "Offers no field for construction", "is not ambiguous", and gives the wife only a conditional estate, ' ' and with no right to destroy, exhaust, or dispose of the corpus of the estate". (Cases, supra). — Schneider v. Schneider, 124 W. Ill, 113. 38. A wife "bequeaths to her husband", "without word's of inherit- ance, all her estate, both real and personal, with full power to sell the same and to use and enjoy during his natural life, and upon his decease such of the estate as remains shall descend to her children. 39. The will created a life estate in the husband, with power of sale for the purpose designated, and vested the remainder, if any, of the property, or its proceeds, in the children. Larsen v. Johnson, 78, W., supra; (other cases). LIFE ESTATES 703 40. The donee of the power was thereby enabled to sell the land and vest the fee in a bona fide purchaser, 41. But one who acquired the title from ,him, without paying any valuable consideration, and chargeable with knowledge of the breach of the trust, holds such title subject to the right of the remaindermen" Post v. Campbell, 110 W., 378. 42. In sec. 2108, on execution of the power changing the title "into a fee simple with respect to any purchaser", "the word 'purchaser' " "is not used in its technical sense, but must be understood according to the common and approved usage of the language," and "means a purchaser for a valuable consideration. ' ' ( Cases ) . See also Presumption. —Perkmson v. Clarke, 135 W., 584, 591. 43. "It was clearly the duty of the life tenant, for the benefit of the plaintiffs (remaindermen), to pay the tax charges upon the property during his tenancy. (Cases). 44. His failure to comply with this obligation, and the allegation that he omitted so to do pursuant to a collusive arrangement" with fiduciaries, to deprive the remaindermen of --their interest, "states sufficient to charge a fraud". —Boon v. Boat, 137 W., 451, 455. 45. "Where a testator, seventy-five years of age, devised to each of four children "separately certain specified tracts of land" severally occupied by them, "followed by" provisions (1) giving his wife a life estate in 'all the lands above devised', and (2) 'in case of the death of any of my said children without issue remaining alive the land herein- above* 'devised to him* 'is to go to his other brothers and sisters equally', 46. 'But in case of them having children then living the same shall go to and belong to such children of such devisee respectively', — it is held: 47. The will gave "to the widow" a life estate "and to each of his four children" "a conditional fee terminating at their death, 48. And that the fee so devised to his four children by the will passed on the death of either of them to such children of such devisee as were then living, and in default of children to the brothers and sisters of the devisee". 49. "The phrase 'without issue remaining alive', in case of the death of either child, naturally imports, in the connection in which it is used, that he referred to their deaths at any time", and not "to death during the testator's lifetime". Vinje, "Winslow, and Timlin, JJ., dissent. 50. "The estates created by the will do not suspend the absolute power of alienation for more than two lives in being at the creation thereof". Tyson v. Tyson, 96 W. 59 (See Perpetuities). —Eggleston v. Swartz, 145 W. 106, 109. 704 PROBATE AND GENERAL LAW, CODIFIED 51,- The will of a testatrix — she having the custody of her two chil- dren, minors, with a divorced husband living — gives realty and person- alty to her 'son and daughter, or. to the survivor of them, share and share alike during their natural lives and. during the life of the survivor of them, with the right to Use and consume such part ' ' as either of them , shall find necessary ', and in case of death ' after my decease ', without issue, 'of the last survivor, then the whole residue and remainder' to go to persons designated. 52. There is no mention of any trust, nor is the word 'trust' used, nor is there any power of sale given directly to such children or to the executors. Held: i 53. "There is no intimation of any trust in the language used, and none can be inferred from the will when read in the light of surrounding circumstances". 54. "The intention of the testatrix was that her children should have a life estate with power to control and dispose of the property unencum- bered by any trust", as to both- realty and personalty. Larsen v. John- son, 78 W. supra; Auer v. Brown, 121 W. supra. 55. "The right to use and consume, declared in the will, clearly gives the right to use the corpus of the estate devised and bequeathed, 56. And therefore power to sell the personal, property absolutely and • convey the fee in the real estate necessarily follows. Perkinson v. Clarke, 135 W.i supra; (other cases)." 57. "We conclude that" each child has "a life estate in one-half" "with the power to sell, use, and consume such portion as either shall find necessary", with "right to the possession and control", but "during their minority by a guardian or trustee as more definitely specified here- inafter. ' ' ; 58. Without deciding as to her right to appoint a testamentary 'guardian of the person and estate' of her children, "she was competent to vest the title (to her property) in the so-called testamentary guardian as a trustee for the minors. 59. As we construe the will, that is all she did", and such appointee ' ' is entitled to take and hold the property for the minors during minor- ity". See also Trusts. —Otjen v. Frohbach, 148 W. 301, 309. 60. Where testator gave to his widow realty and personalty 'to have and to hold during her natural life, use and dispose of same according to her best judgment ', and in the next paragraph, 'after the death of my said wife all the property hereinbefore described shall be equally divided among my children (naming them), or their heirs, forever,' — and the widow having conveyed the fee, — it is held : 61. "It is manifest that the testator intended to give his widow a life estate and that he intended to give his children the fee to his lands", 62. And that "the words 'use and dispose of same' could not confer- the power to dispose of the fee, and the widow possessed no power addi- , LIMITATION OF ACTIONS 705 tional to that which the law confers on a life tenant to transfer her life estate". (Cases, supra). 63. One of the children having "received several sums of money as her share of the purchase money" from the widow, and "now retains the same", the trial court "properly held her estopped- from also claim- ing the right to recover her interest under her father's will in these premises", and "in effect" "she has elected to hold the deeds from her mother to' he valid". — Eovely v. Eerrick, 152 W. 11, 15. LIFE INSURANCE. See Insurance. LIMITATION OP ACTIONS. See also Claims. Contingent Claim. Absence from the state, 5. Six years before decease, 109. Absence not prove residence change, , 110. Temporarily within state, 43. Temporarily without state, 44. Accounts beyond six years, 24, 42. , Confined to mutual, 24. Administrator's invalid sale, 12. Five and ten year statutes, 12. Minor's rights thereunder, 117. Adverse possession: Commences in lifetime, 18. Heir disability immaterial, 18. N. Y. construction applies, 19. Statute from N. Y., 1829, 17. Affects right/and remedy, 22, 23, 60, 64. Bar effectual as payment, ,62. Become inseparable, 61. Enforcement and claim, 63. Federal; many states: contra, 64. Attorney: end of proceeding, 66. Accrual at "breach, 122. Collection of debt, 120. , Bar in law, in equity also, 124. Bar effectual as payment, 62. ' Claims in county court: Filing stops running, 13. Partnership accounting, 90. Pending in circuit, 9. Plead; failure immaterial, 65, 71. Besiduary legatee bond, 87. Waiver is ineffective, 65. Complete accrual necessary, 106. Zimmerman — 45 Complete accrual, etc. — continued After condition performed, 107. Knowledge. Of proper party, 108. Construction of : Exceptions must be express, 8. General words; operation, 8. Contribution of co-surety, 51. Death of party: Accrual after death, 31, 102. Also to two years statute, 32. Double the ordinary period, 103. Not barred otherwise, 103. No competent parties, 31, 102. Not till administrator appointed, 91, 102. Accrual period to death, 30, 99, 100. Death during last year, 48 ? 101. Bunning not interrupted, 30. Unless statute provides, 30. Debt secured by mortgage, 104. Debt six; mortgage twenty, 104. Interest payment on debt, 105. Extends mortgage time also, , 105. Defense; not unconscionable, 72. Estate settlement, six years: Infringement strictly necessary, 84. Judgment after inoperative, 33. BighJ. determined before, 34. Eefusalto remove executor, 57. Beasonable care and 'diligence, 57, 83. To secure speedy settlement, 45, 84. Whether statute self-executing, 34, 82. Will carried out, anyhow, 46, 83. 706 PKOBATE AND GENERAL LAW, CODIFIED Equitable estoppel: Obviated only by, 75. Widow's election also,, 76. Estoppel in pais; not avoid, 118. Extinguishes contract itself, 23, 26, 60, 64. Fraud: exception in equity, 53*. Six years, applies in law, 53. Guardian: and ward; not, 56. Against sureties; four years, 98. Bond in void proceedings, 88. Implied contract; accrual, 97. Accrual on breach of duty, 120, 122. Demand not necessary, 121. There is no exception, 123. Collection of note by atty., 120. Complete in law, also in equity, 124. Wrong subsequent to barred breach, 125. , v Attorney and client, 127. Inducement to lose a right, 127. Trustee and cestui que trust, 126. ' Interruption of running, 95. Marriage will not, 93, Only express statute, 30, 95. , Joint debtor, paysf consent, 28. Law: of forum, remedy, 61. Non-resident y. non-resident, 59, 60. Place of contract governs, 128. Action elsewhere; presumption, 128, 130. Barred there; also elsewhere, 129. Eight extinguished, 61. Legacies : Annual money payments, 131. Barred in six years, 131. Barred in twenty- years, 86. Charge upon land, 54, 86. Twenty-year presumption, 54. Met by a new promise, 5. Money paid on judgment, 16. Based on foreign judgment, 16. Recovery on reversal, 16. Objections to evidence, 14. Ground ' to be distinct, 14. Partial payments: before due, 6. Voluntary and unconditional, 49. Within prescribed period, 7. Partnership accounting, 90. Payments 'applied : Parties fail,' cdurt applies, 25. Payment presumption: Common law in force, 1, 2. Statute payment rule, 1, 2. Twenty-year limitation, 1, 2. Pleadings : in circuit court, 5. Pleadings— continued Amendments : Allowed as in other cases, 73. Introduces new cause, 113. Continues to run, 113, 114. Showing excuse of delay, 67. Simply expanding allegations, 112. Relates back to original, 112. Available only by answer, 15, 132. Common law, also specially, 40, 132. Same under the statute, 41. Demurrer: sections specified, 73. Facts in complaint or answer, 39. Pacts, stated in complaint, 36. Then taken by demurrer, 37, 73. General to all actions, 35.- Immaterial in county court, 65. Mere mention, insufficient, 38. Policy; not unfavorable, 72. Realty, three-years; debt, 50. Residuary legatee bond, 87. Revival of barred debt, 20. Acknowledge and promise, 20, 27. Mere admission; insufficient, 22, 27. Promise in writing, signed, 27. Sealed contract; twenty years, 115. Specialties; any parties, 116. Services : pay at decease, 70. Mature when services cease, 70, 89. Rendered over six years before, 111. State entitled to benefit, 21. Statute in force, governs, 58. Subrogation; effect, 96. Palls with debt, 97. Testamentary payment, 11. Accrues at decease, 11. Trusts: not applicable to express, 47, 85. Administrator's realty sale, 69. Applicable to contract trusts, 78. , Cognizable only in equity, 85. Devise subject to legacy charge, 86. Not express trust, 86. Implied, resulting; constructive, 77, 85. Resulting trust; likewise, 55, 77. Technical and continuing, 85. Ten-year statute in bar, 3. Termination of trust character, 68. Unless denial or repudiation, 47, 68, 79. Brought to knowledge, 80. Commences therewith, 4. Repudiation, what is, 81. Six year limitation, 79. Vested property right, 119. Cannot be taken away, 119. Wages payable monthly, 29. Waiver; may be had, 15. Not county court claim, 65. LIMITATION OF ACTIONS 707 Warrant of attorney; seal, 10. Wife— continued Not extend period, 10. Marriage- not stop running, 93. Widow's election statute, 76. Transaction between them, 92. Wife: not run against, 52, 74. Not extended otherwise, 94. Common law rule, 93. 1. The statute does not abrogate the common law twenty-year pre- sumption of payment. See Presumption. — Sanderson v. Olmsted-, 2 Pin. 224. 2. The statute of limitations is not "a rule for presumption of pay- ment". "After a lapse of twenty years, the law presumes a debt to have been paid", but "the common law presumption does not disable the plaintiffs from suing while the statute of limitations does". —Pritchard v. Howell, 1 W. 131, 136. 3. "We cannot suppose that the legislature intended to allow a trustee ' to plead the (ten year) statute in bar of a bill filed, to compel the per- formance of the trust, when he has acted as trustee ten years, with the consent, and at the request of the cestui que trusts and all persons inter- ested in the trust property". m 4. "The 'ten years' commenced with the denial of the trust, or the setting up of a claim to the trust property, by the trustee in his own right". —Sheldon v. Sheldon; 3 W. 699, 707. 5. "The statute of limitations, to avail the party, must be pleaded. The court (circuit) will not otherwise take notice" thereof. May be met by "a new promise to pay the debt, made within the time limited }>j the statute; and sometimes absence 1 of the defendant from state or jurisdiction, etc." — Peck v: Cheney, 4 W. 249, 251. 6. Partial payments made before the obligation is due, take the case out of the statute. — Cleveland vJ'Harrison, 15 W. 670. 7. "Part payment (of note) within the period prescribed (6 r years) takes a case out of the statute of limitations. This was determined in Cleveland v. Harrison, 15 W. supra". —Eaton v. Gillet, 17 W. 435. 8. "It is a settled principle in the construction of statutes of limita- tion, that general words are to have a general operation ; * no excep- tions can be claimed in favor of particular per sons or cases, unless they are expressly mentioned". — Woodbury v. Shackleford, 19 W. 55, 60. 9. "The pendency of the action in the circuit court could not be prop- erly considered", to take the claim within the statute, on filing in the county court. See also Claims. —Jones v. Est. of Keep, 23 W. 45, 50. 708 PROBATE AND GENERAL LAW, CODIFIED 10. "A warrant of attorney under seal, given with a promissory- note," does not extend the period of limitation to an action on the note, or authorize judgment on the Warrant after the note is barred. , —Walrod v. Manson, 23 W. 393. 11. A claim for services to be paid by a "testamentary provision agreed upon", does not accrue until the decease of the promisor. See also Services. — Jilson v. Gilbert, 26 W. 637, 645. 12. The five year and ten year statutes of limitation are held a bar to an action by the heir for the recovery of lands sold under an invalid administrator's sale eleven years before.- See Sale of Realty. —Jones v. Billstem, 28 W. 221, 227. 13. Filing a claim stops the running of the statute. See Claims. —Large v. Large, 29 W. 60, 64. 14. A general objection to the introduction of evidence "without any reference whatever to the statute of limitations", does not raise the question, as the party must "place his objection upon that distinct ground". . —Heath v. Heath, 31 W. 223, 228. 15. The statute may be, waived or not. "It is purely a personal priv- ilege, and can only be made available by answer". —Dudley v. Stiles, 32 W. 371, 376. 16. The statute does not begin to run on an action to recover money paid on a domestic judgment based on a foreign judgment afterward reversed, "until the subsequent reversal of the" foreign judgment. —Mann v. Aetna Ins. Co., 38 W. 114, 118. 17. The statute where disability exists, sec. 4218, appeared in the revisions of 1839, 1849 and 1858, and is "a transcript from the statutes of New York", 1829. , 18. "It was well settled in / that state, as it was in England, that if an adverse possession commences in the lifetime of the ancestor, it will continue to run against the heir notwithstanding any existing disability on the part of the latter when the right accrues to him or her (Jackson v. Robins, 15 Johns 169) ; and this uniform construction of the statute of limitation ought not now to be disturbed. 19. We must presume that the law was enacted here in view of this judicial construction and generally received opinion on the subject". — Swearingen v. Robertson, 39 W. 462, 466. r 20. "The law is fully established, that, to revive a debt barred; by statute, there must not only be an acknowledgment of the debt but an LIMITATION OF ACTIONS 709 unqualified promise to pay it", and "made within the time limited by the statute". 21. "It is also settled that the state is entitled to the full benefit of the statute, the same as any other defendant". 22. "The mere admission of a legal liability is not sufficient. The statute, as to parties residing in this state, 'does not affect the remedy merely, but directly destroys the right itself, after the time prescribed by it has once elapsed.' Dixon, C. J., in Brown v. Parker, 28 W. 21, 27. 23. This shows that the statute does not establish a mere presump- tion of payment, but extinguishes the contract itself". —Carpenter v. State, 41 W. 36, 41. 24. The rule relieving items of account beyond the six year limita- tion, is "confined to mutual accounts". See also Account Books. 25. "Where payments are not applied by the parties, the- court may apply them to earlier items that otherwise would ' ' fall within the bar of the statute." See also Payments. — Hanncm v. EngeVmaAvn, 49 W. 278, 282. 26. It is settled in this state: "(1) That when the statute of limita- tions has run against a debt in favor of the party owning the same, the debt is extinguished ; 27. (2) That no mere admission of a legal liability is sufficient to remove the bar of the statute, — to effect that there must not only be an acknowledgment of the debt or obligation, but an unqualified promise to pay the same, and such promise must be in writing, signed by the party making it". — Pierce v. Seymour, 52 W. 272, 276. 28. A payment by one joint debtor, by agreement and consent of another, removes the bar of the statute as to both. See Joint Obliga- tions. — Nat. Bh. v. Cotton, Admr., 53 W. 31, 35. 29. The six year statute is a bar to the collection of uncollected wages, payable monthly. See Services. — Butler v. Kiroy, 53 W. 188, 192. 30. It appears from the authorities, in England and in the several states, here approved, that "where the cause of action accrued prior to the death",' "as the statute commenced running before the death, it is not interrupted by the death, unless excepted by the provisions of the statute itself"; 31. While in "cases where" "the cause of action did not accrue prior to the I death, it cannot in law be regarded as having accrued after the death, until. parties are in being, capable of suing and being sued". 32. "It is true, the cases cited arose under general statutes of limita- tion, but the reasons given are equally applicable to the two years' limitation in question". See also Appeal. —Sambs, Admx. v. Stein, 53 W. 569, 572. 710 PROBATE AND GENERAL LAW, CODIFIED 33. "Where letters were granted in May 1875, and a judgment was rendered in circuit court on appeal December 1881, directing the county court to assign certain real estate and rents therefrom in the possession of the executor, it was held under the six-year limitation statute (sec. 3850), that "at the time of the rendition of such judgment, the func- tions of the executor, as such, had ceased". 34. ' ' We are clearly of the opinion that whatever possessory right the executor may once have had to the land, virtute offiicii, that right was determined by the statute before the judgment was rendered from which this appeal is taken". (Questioned in Mackin v. Hobbs, 116 W. post). —Est. of Prosper A. Pierce, 56 W. 560, 564. 35. The statute as to pleading (sec. 4206), "is general as to all actions which can be barred by the statute". 36. "The only exception (if it can be called an exception) is where the facts, by which the statute operates as a bar, are sufficiently stated in the complaint. 37. In such case the objection that the action was not commenced within the time limited may be taken by demurrer, and such demurrer is an answer, according to the opinion of Chief Justice Dixon in Howell v. Howell, 15 W. 55, within the meaning of the statute. 38. This ruling very clearly shows that the mere mention of the statute of limitations is quite unimportant, but the facts which show that the statute has run in the action are material and essential ; 39. And it makes no difference whether such facts appear in the com- plaint or in the answer, so that they are stated in the pleadings": 40. "At common law the statute of limitations had to be pleaded spe- cially, and all the facts to make the statute applicable must be specially and particularly stated". 41. And it is held that the rule is "but a reasonable one" under the statute also. — Paine v. Comstock, 57 W. 159, 163. 42. The six-year limitation applies where accounts are not mutual. See Account Books. — Fitzpatrick v. Est. of Phelan, 58 W. 250, 255. 43. While the defendant, a former resident, was frequently "tempo- rarily in this state on business", but the accumulation of such times "did not amount to six years, he was therefore not entitled to the benefit of the statute of limitations". —WMtcomb v. Eeator, 59 W. 609, 614. 44. Where "the -defendant resided in this state, was out of it when the cause of action accrued, and returned into it some' two years there- after, while so out' of the state the statute did not run against the note. ' ' —Parker v. Kelly, 61 W. 552, 557. LIMITATION OF ACTIONS 711 45. As to the statute, sec. 3850, limiting to six years the "final settle- ment of the estate", it is said: "Such limitation is to secure a speedy- settlement of the estate, when it can be done according to the will. 46. It. is not designed, however, to frustrate, or render nugatory, any portion of the will. On the contrary, the estate is to be administered according to the will. Here it is impossible to so administer and finally settle the estate within the time mentioned." See also Vesting of Estates. —Scott, Extra, v. Weat, 63 W. 529, 555. 47. "In the case of an express trust the law is well settled that the statute of limitations has no application, where there has been! no denial or repudiation of the trust. (Cases)". —Bostwick, Admr., v. Eat. of Dickaon, 65 W. 593, 597. 48. Sec. 4234 "only reaches a case where the person entitled to bring the action dies during the last year of limitation". —Curron v. Witter, 68 W. 16, 22. 49. A voluntary unconditional part payment is sufficient "to take the cause out of the operation of the statute." See Payments. ^-Marshall v. Holmea, 68 W. 555, 559. 50. The three year limitation as to debts of sec. 3873a only applies to the county court, and not to actions against heirs under sees. 3274 et al. See Liens. ; — Fiak v. Jenewem, 75 W., 254, 257. 51. An action at law for contribution of a ,co-surety, is limited to six years. See Sureties. — Bitahnett v. Bushnell, 77 W., 435, 437. 52. "The statute of limitations does not run against a wife." See Husband and Wife. — Second Nat. Bcmk v. Merrill, x 81 W., 151, 155. 53. The one exception named in the six-year statute, sec. 4222, "that in an action for relief oh the ground of fraud, which before the adoption of the Code was solely cognizable in chancery, the cause of action shall not be deemed to have accrued until the discovery of the fraud. This being purely an action at law, this, exception does not apply to this case," and action is "cut off at the end of six years from the successful perpetration of the fraud." (Approved in State v. C. & N. W. Ry. Co., 132 W., 345, 361). —Jacoba v. Frederick, 81 W., 254, 256. 54. As to the statute and twenty-year presumption of payment^ con- cerning a legacy, a charge upon land, where over twenty years had run. See Legacies. — Williams v. Williams, 82 W., 393, 399. 712 PROBATE AND GENERAL LAW, CODIFIED 55. As to an express trust and a resulting trust being "out of the Statutes" and the conditions necessary. See Implied Trusts. —Fawcett v. Vawce.it, 85 W., 332, 334. * 56. Held not applicable as between guardians and wards in account- ing. See Accounts of Guardians. —Taylor v. Hill, 86 W., 99, 105. 57. "The circuit and county courts both found that the executor had used all reasonable care and diligence in administering the estate, and that it had been impossible to complete the administration thereof within the six years allowed by the statute (sec, 3850) ;" it is held, following Scott v. West, 63 W-, supra, "that under the facts shown the refusal to remove the executor was right. ' ' — Ford v. Ford, 88 W., 122, 134. 58. ' ' The statute of limitations in force when an action is commenced governs in the absence of some indication therein, or in some other pro- vision of law, to the contrary. Woodbury v. Shackleford, 19 W. supra: Converse v. Burrows, 2 Minn. 239; Toland v. Wills, 59 Ind. 529". —Belyea v. Tomahawk P. & P. Co., 102 W. 301, 306. 59. A citizen of Illinois "having a claim against another such citi- zen", upon which the period of the statute of limitation has there passed, cannot "come into this state and enforce such claim". ,60. "It is conceded that the effect of the statute of limitations in this state extinguishes the right upon which it has completely operated. Brown v. Parker, 28 W. 21; (other cases) ;" and in Illinois it "has the same effect." 61. "It is the universal rule that so long as a limitation act operates on the remedy only, the law of the forum governs. When that right" is extinguished, "such effect attaches to and becomes inseparable from such right in thfe courts of this state". 62. The bar in "an action upon a contract is as effectual as payment or any- other defense", and "where the defense has been vested" it cannot be taken away or destroyed, — the rule in Brown v. Parker, 28 W. 21, being applied "to property rights as well as to tangible property, on the ground that a vested right of defense is itself property". 63. "As said in Pierce v. Seymour, 52 W. supra, it is the settled law in this state that a completed statutory period of limitations upon the enforcement of a claim not only takes away the remedy for such enforcement, but the claim also". 64. (Citing this case, it is said in Hite v. Keene, 149 W. post: "This court, as well as some others, has held that a statute of limitation takes away the right as well as the remedy". "American courts generally, and among them the supreme court of the United States, hold the con- trary rule"). —Einffartner v. Illinois Steel Co., 103 W. 373 375. LIMITATION OP ACTIONS 713 65. As to waiver or failure to plead the non-claim statute, being in- effective, and the bar being absolute. See Claims. —Fields v. Est. of Mimdy, 106 W., 383, 387. 66. The statute does not begin to run until the termination of the proceeding, in case of an attorney's employment. See Attorney and Client. —Lowe v. Ring, 106 W., 647, 653. 67. Following Morgan v. Bishop, 61 W., 407, and cases therein cited, "it was an abuse of discretion to allow the statute of limitations to be set up by amendment upon the trial without any showing to excuse the delay, and without the imposition of any terms or conditions. Such a ruling cannot be considered as 'in furtherance of justice' ", under section 2830. —Sullivan, v. Collms, 107 "W., 291, 294. 68. "The suspension of the statutes of limitations, as to a person once a trustee, ceases upon the termination of his character as such, and hef ore, that time if he distinctly disavow the existence of a trust relation by holding the subject of the trust adversely, openly, and with notice to the cestui que trust. Angell, Limitations, 174; Riddle v. Whitehill, 135 U. S. 621". > 69. So held as to an administrator upon his discharge as to sale of realty to, pay debts, where the validity of the sale is questioned, and of which realty he, subsequent -to the sale to his son, himself became and is the owner. See also Sale op Realty. —Gibson v. Gibson, 108 "W., 102, 105. 70. Services performed under a- void contract to pay, at decease, mature when the services cease, and action is barred six years there- after. 71. The statute is effective as to a claim against a deceased person without being 1 pleaded. See also Services. —Martin v. Est. of Martin, 108 W., 284, 289. 72. The general subject and the cases discussed, and the policy of regarding the statutes of limitation in an unfavorable light and defenses under them unconscionable, is disapproved for future guidance. 73.. In demurring, the subdivision and section relied on should be specified, and amendments allowed as to the statute of limitation on like terms and discretion as other amendments. — Whereatt v. Worth, 108 W., 291". 74. As to transactions between husband and wife, the statute does not run as against the wife. —Brader v. Brader, 110 W., 423, 427. ,714 PROBATE AND GENERAL LAW, CODIFIED 75. "Under no circumstances, except such as create an equitable estop- pel, can a person benefited by a completed period of limitation be precluded from insisting upon that benefit." 76. As to the widow's election statute being also so governed, and being obviated by equitable estoppel. See Trustees. —ludington v. Patton, 111 W., 208, 234. 77. ' ' AH trusts arising otherwise than by contract inter partes, trusts created by operation of law, whether implied, resulting, or constructive, 78. And all trusts founded in contract having some of the elements of express trusts and properly referred to as such, though not belong- ing to that species of express trusts cognizable only in a court of equity, are subject to statutes of limitations. (Citations) ". 19. And even "a cause of action for breach of an express trust sub- ject to be dealt within a court of equity", "is barred by the six-year statute of limitations", where "it appears that the trust was repudiated to the knowledge of the plaintiff and her husband more than six years : before the commencement of this action; 80. In an event, a repudiation of the trust, brought home to the knowledge of the person entitled to enforce it, started the six-year statute of limitations running. (Cases, supra). 81. A use of a trust fund by the trustee for his own benefit, or ■in any way clearly inconsistent with the trust, and conclusively evinc- ing a repudiation thereof, is a repudiation of the same within the rule above stated". — Buttles- v. De Bairn, 116 W., 323, 326. • 82. Whether after six years, sec. 3850, ' ' is so drastic and self -execut- ing as to wholly terminate the administration, as intimated in In re Pierce, 56 W. supra, 83'. Or whether power is still left in the county court to complete the settlement of the estate, so that the will and the law of defense and distribution may--, ■ \ . ,124. "When the bar is complete at law it is also complete in equity. The mere form of action, as to a matter remediable in either one field or the other, does not affect the question. (Citation)". 125. "Redress" may sometimes be had "for a remediable wrong com- mitted subsequent to the breach upon which the statute has run. 126. Such a breach is possible between trustee and cestui que trust or parties sustaining, similar relations, as indicated in Ludington v. Patton, 111 W, supra. . .■<, , 127. Such relations exist between, attorney and client", as here. "If a person holding relations of trust and confidence with another and charged .with ,the duty to guard such other's pecuniary interest, induce such other to take such a course as to lose a right against such person, that of itself is a remediable. wrong, starting the six-year statute of limita- tions running as to it". -^Ott v. Hood, 152 W. 97, 99. 128. ' ' If the place of a contract is in one state and an action to enforce it is brought in another", "the statute of limitations of the former apply"; 129. "But, in case, at the former place, the right has been extinguished by the law there, then it cannot be enforced in another state even though its own statutory period has not expired". 130. There being a payment by one of the two "joint makers", the action was held properly sustained as against- the other, under sec. 4248, on "the presumption that the law of Illinois— the place of the contract — is the same as here, there' being no proof" -"to the contrary". — State Bank of W. v. Pease, 153 W., 9, 11. LIQUORS 719 131. Legacy charged on land, for payment of money annually, is barred by the six-year statute, there benig a legal' as well as equitable remedy. See also Legacies. - -Nolan y. Fwsf Nat. Bank, 161 W. 22, 26. 132. "The bar of the statute" "must be specially pleaded". See also Legacies. —Will of Brandon, 164 W. 387, 390. LIQUORS. License: . Personal; not assignable, 2. Administrator not obtain, 1. Not go to administrator, [3., . May dispose of bulk, 1, 6. Except now by statute, 4,/ Comes to end with license, 5. 1. The excise law does not require "'an administrator to obtain a license before he could sell or dispose of liquors belonging to his intes- tate. " "In performing this duty, ' '— ' ', to sell' property, collect and pay the debts and settle up the estate", — "and disposing of ( the spirituous liquors belonging to the estate, it is no more necessary fpr him to obtain a license than it would be for a sheriff " on an execution sale. —Williams v. Troop, 17 W., 463, 474. 2. "The fact that the defendant,. rented the saloon from B., and took an assignment of his license, therefore, gave him no authority to sell under the license issued to the latter. 3. Thus in the Pennsylvania cases cited (Blumenthal's Petition, 125 Pa. St. 412; Monroe's Appeal, 181 Pa. St. 233) it was held", "that 'a liquor ^license is a personal privilege, which ends with the life of the licensee. It is not assignable by him, does not go to his personal repre- sentatives, and is not an asset of his estate' ". A transfer and sanction ' thereof by the town board, ' ' were without authority of law and void ' '. 4. (By subsequent amendment, subd. 3, sec. 1548, by ch. 89, L., 1915, "the administrator of such deceased licensee' may continue to sell", or assign the license). —State v. Bayne, 100 W., 35, 39. 5. "It is well established law that in the absence of a statute providing otherwise a license of this kind (retail liquor), although for a fixed term, comes to an end with the life of the licensee.. (Gitations)'. 6. But the administrator of deceased licensee may, like a sheriff or receiver and by virtue of his authority as administrator lawfully dispose of the stock of liquors in bulk. Williams v. Troop, 17 "W, supra". . —State ex rel. Rich v. Steimsr, 160 W. 175, 177. 720 PROBATE AND GENERAL LAW, CODIFIED LOST WILL. Declarations to rebut, 3. Knowledge of accidental destruction, 15, Existence or non-existence, 6, 12, 13, Coupled with an adoption, 16. 17, Revoked the will, 16. Existence three days before, 7. Opportunity to reproduce, 15. Against scrivener's evidence, 8. Presumption of revocation, 15. Secondary evidence of, 13. Presumption of revocation, 4. Equity: has jurisdiction, 1, 2. Pacts of stated cases, 11, 17. Not to set aside probate, 2. Opportunity of contestant, 14, 17. Independently of statute, 1. Overcome by evidence, 5, 11, 17, 18. Evidence of contents, 9. Whether contestant destroyed, 19. As at common law, 10. Case sufficiently proved, 10. - ,, 1. "It is perfectly clear that a court of equity has jurisdiction of" an action to take proofs and establish a lost or destroyed will, "inde- pendently of the statute. The gravamen of the complaint is the fraud of the appellants in concealing the will or destroying it; and fraud is peculiarly within the jurisdiction of courts of equity". 2. While "there are many decisions which hold that equity will not set aside the probate of a will fraudulently obtained, and such is prob- ably the law" yet equity will take jurisdiction in actions "brought to establish a will fraudulently concealed or destroyed". — Hall v. Gilbert, 31 W. 691, 694. 3. It is indicated that admission of "declarations to rebut the infer- ence of fact arising from the absence' or loss of a will", is proper. See Revocation. — In re Will of Ladd, 60 Wis. 187, 199. 4. "Where, as here, it is established that the testatrix properly exe- cuted a valid will, and the same was' last known to be in her possession but cannot be found on her death, there is a prima facie presumption that she destroyed it with the intention of revoking it, 5. But such presumption may be overcome by competent evidence. (Citations). Of course, if such subsequent declarations (of the testa- trix) are admissible in evidence to overcome such presumption, they are also admissible to support such presumption." 6. Declarations of the testatrix subsequent to the making of the will were held "admissible on the question of the existence or non-existence" and "of contents of a lost will." Cassody, Wills. (Many cases). See also Parties. — In re Valentine's Will, 93 W., 45, 54. 7. The testatrix executed her will, the contents of which were duly proved, left it with the notary who drew it, obtained it personally several times and returned it, stated to several witnesses within three days of her decease that the will was at the notary's, and the evidence was clear that after she was unable to get it, she believed the notary ' ' still had and held her will"; LOST WILL • 721 • 8. After her decease the will could not be found and the testimony of the notary ' ' on the subject is quite unsatisfactory, ' ' and inconclusive as to whether she had gotten the will or not ; the county court disallowed the will, and the circuit court allowed it, the last judgment being approved on the principles of In re Valentine's Will, 93 W., supra. — In re Steinke's Will, 95 W., 121, 125-6. 9. "Of course, the fact that such (lost) will is not in existence and cannot be produced makes it necessary to prove its contents by secondary evidence. (Cases). 10. Such statute (sec. 3791) is in aid of the common law, and the proof of such contents may be made; as at common law. (Citations)." On the testimony of "the attorney who drew it", "corroborated to some extent by" the two other subscribing witnesses, the execution and con- tents is held "sufficiently proved". 11. On the facts, among others, showing that the will, after 'being "in the custody of the county judge" for eleven months, was withdrawn by the testator and was in the custody of no' other person up to the time of his decease eleven months later, and that he "was careless in keeping his papers", was "unconscious for several days immediately before his death", "that not long before his death" he spoke of it to several persons and stated that it "was still his will", that it was once lost and subsequently "he told his attorney that he had found his will, and showed him the sealed envelope in which it had been placed, and again showed it to him about" a month before he died, but it could not be found, — it was held that "the presumption that he destroyed the will with ' ' intent to revoke it " is fully overcome ; ' : 12. "That such declarations of the testator were admissible on the question of the existence or non-existence of such last will is abundantly supported by numerous adjudications. (Cases)". 13. As stated in an " able opinion of Judge Dyer " as to the testator 's declarations concerning "the existence and contents" of a lost will, in Southworth v. Adams, 11 Biss., 256, "it is now" "fully settled both in England and in this country that such declarations are admissible, and that secondary evidence may be resorted to for the purpose stated." 14. ' ' The mere fact that the contestant had an opportunity to destroy the will would not of itself overcome the presumption that it was de- stroyed by the testator with the intent to revoke it; still it is a circum- stance to be considered with other proof. (Citations)." See also Revo- cation. —Gwitt v. MouUm, 119 W., 35, 41, 49. 15. "Where reasonable time elapses after knowledge of the (acci- dental) destruction, coupled with opportunity to reproduce the destroyed will, a presumption of revocation arises, and the destroyed will cannot be admitted to probate". (And so held in Deave's Est, 140 Pa. St. 242, Zimmerman — 46 722 PROBATE AND GENERAL LAW, CODIFIED though there was, evidence of testator's "declarations that he intended to" reproduce it.) 16. "The destruction of the will three years before the testator's death, with his knowledge, together with the adoption of L. after such destruction, revoked the will ; hence there was no will which could have been admitted to probate as a lost or destroyed will ' '. ( Cases supra) ; Glascott v. Bragg, 111 W. 605 (See Revocation). See also Fraudulent Orders. — Parsons v. Balson, 129 W. 311, 319. i 17. Where deceased left his will with his attorneys six years, and about three years before his decease took it himself "stating that he had no intention of changing or destroying it", "many times-" "recognized its existence," and "asserted that he did not wish to change it"; and the widow and son to whom she was partial "had ample opportunity to get possession of it" during the few days of his last illness; and "the only reason" "for destroying" would be to give the son $2,000 more, he already having received "the bulk of" the property; and there had been several law suits between son and father; and the will could not be found, and there being no direct evidence, of its destruction, — held : 18. That the "presumption that it has been destroyed for the purpose of revoking it" had been "overcome by evidence, the burden being upon proponent. (Cases, supra) "; 19. And that it was not "necessary to consider or decide"- the question as to whether the son and mother destroyed it. Will allowed. ' — Wertdt v. Ziegerihagen, 148 W. 382, 387. LUCID INTERVAL. See Insane Persons. LUNACY, LUNATIC. See Insane Persons. MAGISTRATE. See County Judge. Custody and Commitment. MAINTENANCE. See Bond for Maintenance. Champerty and Maintenance. MARRIAGE 723 MAJORITY. See also Infants. Lex rei sitae; domicil, 2. Personal statutes, Non-resident infant, 1. Contracts within state, 3. Estate interests here, 1. Disability here, 3. Majority different age, 1. 1. Where an infant lives in Minnesota (majority at 18), "had no title in fee to the real estate of the testator, either by descent or by devise; but her interests are connected with and grow out of the real estate situated in Wisconsin" ; it is held that "the statute of this state governs the entire administration, including the sale of the estate, distribution of the proceeds, and the final settlement, even as '' to persons residing abroad. 2. The lex rei sitae, as well as the law of the domicil of the testator, are both of this state. 3 Redfield on W. 31, 35 ; Chase v. Chase, 2 Allen, 101; 6 Jones Eq. 365". 3. "Statutes fixing the age of majority are personal statutes and unquestionably govern the contracts and transactions of persons within the states where they are in force ; but all the transactions" here are held "to have taken place within this state, where by the statute she was still under the disability of infancy". See Jurisdiction; Notice; Guardian ad Litem. — 'Dell v. Rogers, 44 W. 136, 182. MANDAMUS. Compel judge to fix bond, 1. Compel referee approval, 2., 1. A mandamus is not the proper remedy to compel a county judge to fix an appeal bond. See Bonds. —State ex rei. Tallrmdge v. Flint, 19 W. 621. 2. A judge cannot be compelled to sign an approval of a referee's report on stipulation of the' parties. See Reference. — State ex rei. Orton v. McArthwr, 23 W. 427, 430. MARRIAGE. See also Marriage Contracts. Ceremony prima facie valid, 13. Cohabitation. See Presumption. Common law marriages, 37. Declarations of deceased, 24. Defined; valid here, 37. Definition: civil contract, 6. Not valid'in England, 38. Agreement between parties, 25. 724 PROBATE AND GENERAL LAW, CODIFIED Definition — continued Direct; circumstantial, 26. Fact to be proven, 26. Dower; action for, 3. Pact of marriage, 4. Proof of marriage, 3. Foreign divorce; publication, 36. Parties domiciled here, 36. Foreign marriage; proof, 28. Solemnized in a church, 28. Burden on him who denies, 29. Presumption: Cohabitation: lawful, 9. Illicit in origin, 10, 35. Overcome by proof, 10. Continuance of life, 14, 16. Dissolution of divorce, 15, 16. Facts of involved case, 11. In favor of marriage, 13. Proved: by oral testimony, 1., Civil contract: formalities, 6. Cohabitation and acts, 5, 7, 9. Date; proved by conduct, 8. Direct or circumstantial, 26, 30. Proved — continued Facts of involved case, 27. , Not hearsay declarations, 30. See also Foreign Marriages. See also Presumption. Sign and verify as T. nee P., 2?. Sale of realty to pay debts, 11. Void: common law or statute, 17. Divorce from such marriage, 21. Other valid marriage before, 21, i. Held lawful widow, 22. Not estopped by divorce, 21. Where party already married, 17. Invalid for any purpose, 18. Otherwise, where voidable, 19. Prior illegal intercourse, 20. When valid, valid everywhere, 31. Exceptions: law of nature, 32. Grounds of public policy, 32. Leave state, evading purposes^ 33. Ceremony in another state, 34., Nor common law marriage, 35. Not recognized here, 34. Without legal authority, 2. 1. Marriage may be proved by the testimony of the witnesses at the marriage supper. —Mills v. V. S., 1 Pin. 73, 75. 2. Where a marriage ceremony was performed by one without legal authority, the marriage is held valid where cohabitation and acknowl- edgment before the world followed. — Martin v. Ryan, 2 Pin. 24. 3. "The authorities hold, and this court is not inclined to hold other- wise, that in an action for dower the plaintiff is not required to make proof of the actual solemnization of a marriage between the plaintiff and the deceased in whose estate she claims dower; 4. But they also hold that the evidence must be sufficient to establish the fact of a lawful marriage between them. 5. None of the cases hold that living and cohabiting together, as husband and wife, or even the declarations of the parties that they are husband and wife, constitute a marriage in fact; or that such acts and declarations are a substitute for the marriage contract; the extent to which the authorities go is, that such evidence may be sufficient to prove a lawful marriage in fact." 6. Under the law of this state "marriage is a civil contract" (Sec. 2328), without specific formalities prescribed. 7. "It would seem to follow, therefore, that every lawful marriage must have been entered into by the parties at some particular date and time, and that it cannot in any case be the simple result of cohabitation, or the continued conduct of the parties, which ordinarily accompany the married state. MARRIAGE 725 8. As a general rule, when a marriage is sought to be proved by con- duct, cohabitation and repute, the date of the marriage in fact, which such conduct' and repute tends to establish, is the date of the commencement of such conduct and repute, and not afterwards. ' ' 9. " ' Cohabitation is presumed to be lawful till the contrary appears. Where, however, the connection between the parties is shown to have had an illicit origin, and to be criminal in its nature, the law raises no presumption of marriage'. 2 Kent, 87; (cases)." p. 479. 10. ' ' The presumption against marriage, where the connection between the parties is shown to have been illicit in origin, may, however, be over- come, by proofs showing that the original connection has changed in its character, and a subsequent marriage may > be established by circum- stances, without actual proof of a marriage in fact". 11. "Where the party claiming a marriage (on the theory that she was lawfully married to J.) deliberately entered into a bigamous mar- riage contract with the deceased (W.), and commenced cohabitation under such. a contract, if, notwithstanding the fact that she knowingly commenced cohabiting with the deceased when she was the lawful wife of another, she claims a lawful marriage with such deceased after her divorce, and after she had thereby acquired the right to become his wife, she ought to be required to establish the fact of such subsequent mar- riage, -either by express proof of the contract of marriage, or by circum- stances which would clearly exclude the presumption that she continued, to live with him under illegal contract of marriage." (Approved in Lanham v. Lanham, 136 W. 360, 369 post). — Williams v. Williams, 46 W. 464, 474, 12. The validity of the widow's marriage, it seems, may be raised on an application "to sell realty to pay debts. See Dower. — Paige, Admr. v. Fagcm, 61 W. 667, 670. 13. "Of course, where there has been a marriage ceremony, it is prima facie valid, for the law presumes in favor of marriage. Piers v. Piers; 2 H. L. Cas. 331". 14. " There is .no rigid presumption against the continuance of the life of one of the parties to a prior marriage in order to establish the inno- cence of the other party to a subsequent marriage; 15. Much less is there any rigid presumption of a dissolution of the first marriage by a divorce prior to the second, in order to establish such innocence. Smith v. Smith, 5 0. St., 32". 16. "Each case must be determined upon its own facts; and circum- stances, and such inferences as should fairly and reasonably be drawn from them". 17. Where one of the parties is already married, another marriage either at common law, or under the statute, "was a nullity, absolutely and ab initio. (Many cases) ". 726 PROBATE AND GENERAL LAW, CODIFIED 18. Such marriage "was good for no legal purpose, and its invalidity may be maintained in any proceeding in any court between any parties, whether in the lifetime or after the death of the supposed husband or wife, or both, and whether the question arises directly or collaterally. (Citations). 19. It is otherwise where the marriage is voidable merely". 20. Under a void marriage, prior "illegal intercourse, even though it had been fraudulently concealed by her from W. before their marriage, would not, on discovery, have been ground for divorce from her at the suit of W., much less an impediment to their marriage. Varney v. Varney, 52 W. 120." 21. Where> plaintiff contracted a void marriage with J.,, then a mar- riage with W. held valid, and then was divorced from J., she is not ' ' estopped by the subsequent judgment of divorce from showing that she was never the lawful wife of J., but was the lawful wife of W." 22. And it is held that she "is the lawful widow of W. deceased, and as such is entitled to dower", in lands of his estate, "with damages for the withholding thereof from the time of making demand therefor. Munger v. Perkins, 62 W. 499. ( Cited under Dowbb) . ' ' — WiUiams v. Williams, 63 W. 58, 64. 23. A widow in an affidavit "and also. in her signature to the. same, she described herself as 'M.,M. T. nee P.' This,, as we understand it, was a declaration by her that before she married T. her family name was P." There was a like declaration in the, deed in question. "Such proofs, together with her admissions," were held sufficient evidence of marriage, in the absence of any evidence to the contrary. — Pricket t v. Much, 74 W. 199, 203. 24. On the issue of marriage by one claiming to be the widow of T., an intestate, evidence that "T. stated that he had never married claimant," also statements of T's relatives to like effect, neither statement being ' ' made in the presence of the claimant, ' ' was held inadmissible. 25. ''To constitute marriage there must be an agreement between the parties that they will hold towards each other the relation of hus- band and wife, with the responsibilities and duties which attach to that relation. Williams v. Williams, 46 W. supra. 26. This agreement is a fact to be proven. It may be proven by circumstantial evidence, as many other facts are proven. In this ease there is no direct evidence that the parties promised to assume the rela- tions of husband and wife, but the circumstances proven seem to us very persuasive, and to justify the finding that there was a marriage in fact." (Quoted and approvingly discussed in Becker v. Becker 153 W., post). 27. The parties openly left the claimant's home to be married, stopped at a hotel, where "a person whom the claimant supposed to be a minister MARRIAGE . 727 appears, something is done, the nature of which the claimant is pre- vented from disclosing; and from that moment the claimant is known and introduced as Mrs. T." They lived together for several years assuming to be husband and wife, visited relatives of both as such, then separated with occasional visits, and claimant is always announced as Mrs. T., "and always bears an untarnished reputation." The marriage is held valid, and his widow, the claimant is held the heir of T.'s property. -^-Thompson v. Nms-j 83 W., 261, 265. 28. "The law relating to proof of foreign -marriage seems to be that where a formal ceremony of marriage, solemnized' in a church by a person assuming the office of a priest or minister, is shown, it will be presumed, in favor of the marriage, that it is in accordance with the law of the country and valid. 29. So, when such a marriage is shown, especially 1 if followed by cohabitation, the burden is on him. who denies the validity of the mar- riage to show that the law required some further act or fact to make it valid. (Citations)." Held, sufficient on oral testimony, by witnesses present at ceremony. — Lcm&tot v. The State, 98 "W. 136, 138. 30. "The fact of marriage "—even as to a witness's interest, "must be proved by direct evidence, and not by mere hearsay or admissions of ' those not parties to the action." > .._•> —Barton v. Bndey ,'119 W., 326, 328. 31. "The general rule of law unquestionably is that a marriage valid where it -is celebrated is valid everywhere. 32. To .this rule, however, there are two general exceptions ">■ "namely: (1) Marriages which are deemed contrary to the law of nature as gen- erally recognized by Christian civilized states; and (2) marriages which the lawmaking power of the forum has declared shall not be allowed validity on grounds of public policy". See exhaustive "note to Hills v. State in 57 L. B. A. at p. 155; s. c. 61 Neb. 589". 33. "We hold that when persons domiciled in this state and who are subject to the provisions of the law (sec. 2330) leave the state for the purpose of evading those provisions, 34. And go through the ceremony of marriage in another state and return to their domicile, such pretended marriage is within the pro- Visions of the, law and, will not be recognized by the courts of this state". (Many cases). , s ' 35. And further, "the finding that there was a common law marriage, resulting from the fact that the parties lived and cohabited together as man and. wife for about six months" after the expiration of the year in which- the marriage was invalid, and to the time of decease of the pre- tended husband, cannot "be sustained". Williams v. WilMams, 46 W. *- supra; (other cases). — Lamham v. Larikam, ,136 W. 360, 365. 728 PROBATE AND GENERAL LAW, CODIFIED 36. It is assumed that in case of a divorce granted in Utah, with service by publication, both parties being residents of Wisconsin, together with a subsequent marriage of the man to another woman, — both divorce and marriage are invalid. S,ee also Estoppel. — H, W. Wright L. Go. v. McCord, 145 W., 93, 104. 37. "An oral contract of marriage, per verba de proesenti", "entered into byjcompetent parties without witness or ceremony of any kind, to then take each other for husband and wife, consummated by cohabita- tion and by holding themselves out to the public as married", is "in this state, a marriage legally valid and binding". (Cases, discussed). : 38. After various "American courts had become committed to this view of the 'common law' " validity of such marriages, the English courts "decided against the existence of any such rule in the common law of that Country," — "the place of the origin of that law." Queen v. Millis, 10 CI. & F. 534, A. D. 1844.. Beamish v. Beamish, 9 H. L. Cas. 274. . —Becker v. Becker, 153 W., 226, 227. , MARRIAGE CONTRACTS. See also Marriage. Ante-nuptial contract: Any "provision," sufficient, 51. Both parties retain property, 52. Burden of impeaching, 39. Cannot vary marriage duties, 14. Construe, as other agreements, 42. •Meaning attributed at signing, 43. Destroyed proven orally, 6. Divorce; alimony, contract, 36. Whether further propertyf 35. Doubtful or ambiguous, 21, 44. Most favorable to widow, 21, 45. "Either party dying intestate," 41. Testacy does not nullify, 41. Husband change, given more, 9. Widow bound thereby, 9. Inadequacy of provisions, 20. Intention, controlling, 22, 43. Marriage promises preceding, 46. Not a badge o^ fraud, 46. Must be free from fraud, 19. Burden on party alleging, 47, Not to share in personalty, 24. Precludes allowances, 25. Nothing inherently suspicious, 38, 48. j Oral, executed, valid, 10, 31. Ante-nuptial, etc. — continued Orally made before marriage, 28. Deed in escrow; no title, 32. Widow recording; no laches, 33. Estoppel, not shown, 34. Eight to elect within year, 33. Writing, etc., after marriage, 28. Void, jointure statutes, 30. Void, statute of frauds, 29. Pecuniary amount not paid, 53. Obligation is sufficient, 53. Post contract attempts to construe, 27. Value only as to intention, 27. Preclude statutory allowances, 23. Property rights, contract, 13. Provide for necessaries of life, 26. Reasonable support provision, 26. Monthly, sixty dollars, 26. Regarded with favor, 38. Regarded with rigid scrutiny, 19, 47. Right existed before statute, 50. Statutes as in most states, 49. Undue influence indication, 40. Wife only signing is bound, 54. Husband's obligations: , Cannot vary marriage duties, 14, MARRIAGE CONTRACTS 729 Husband's obligations— continued Post-nuptial, etc. — continued Support and care for wife, 11. Additional gift of husband, 8. Cannot shirk; contract away, 12. Attempted revocation of ante, 7. Support promise, no consideration, 15, Destroyed proven orally, 6. 16. Binding on both, 6. Agreement, nudum pactum, 17. Including and slightly adding, 5. Intended husband's deed, 4. Not contract they could make, 9. Given without consideration, 37. Widow bound on old, and gift, 9. Inoperative as to marital rights, 37. Husband's promise to support, 17. Post-nuptial contract: Express or implied; no recovery, 18. Attempting to construe ante-nuptial, Wife leave him her property, 17. 27. , While domiciled in Prussia, 1» Domicil law, entire property, 2. , Realty acquired here, 1. For a destroyed ante-nuptial, 5. Wife releasing interest, void, 3. 1. In a post-nuptial contract, made in Prussia, the parties being then domiciled there and owning no property here, held "The real property, therefore, in this state, acquired by the parties after they came to it, and which was held and owned by the husband in his own name, was subject to be disposed of by him, by will or otherwise, according to the laws of this state. ' ' 2. The rule of Judge Story approved that, "Where such an express contract applies in terms or intent only to the present property, and there is a change of domicil, the law of the actual domicil will govern the rights of the parties as to all future acquisitions." — Fuss v. Fuss,\ 24 W. 256, 263. 3. A mutual agreement under seal, during coverture, between husband and wife, releasing "all her interest in his estate", is void. See Widow. —Leach, Extr. v. Leach, 65 W. 284, 291. 4. A deed by an intended husband before marriage without the knowl- edge of his intended wife is not necessarily fraudulent, it depending upon circumstances. See Dower. — Dudley v. Dudley, T6 W., 567, 578. 5. In an action by a widow to recover on an election,, where there was a will, and there had been a destroyed' ante-nuptial contract, and an existing post-nuptial contract including and slightly adding to the terms of the ante-nuptial, it is held : 6. That the terms of the ante-nuptial agreement, proven by oral testimony, "satisfactorily and sufficiently appear, and that said agree- ment was valid and binding on both the said parties ' ' ; 7. That although the post-nuptial agreement specifically stated a revocation of 'all previous contracts and agreements thereto,' yet, on the testimony, "it follows that the validity of the old contract was not destroyed or in any way affected by the new one ; but was merely altered or changed in that one respect. ,8. Beyond what was copied from the old contract, it did not require 730 PROBATE AND GENERAL LAW, CODIFIED her signature! It was his sole act. It was the additional gift of the furniture and clothing. The same consideration is preserved. 9. It was not a new contract, or any contract between, them which he or they could not make in consequence of their marriage. He had a right to change the old agreement, and give her more than it provided ; and he did' so, and she accepted it. That is all there is of it. ' ' ' ' The plaintiff is, bound by said ante-nuptial contract as changed or altered by the said instrument." — West v. Walker, 77 W., 557, 567. 10. An oral ante-nuptial agreement by the woman to convey land to the man, and that "she receive, her support and comfort as the con- sideration of the conveyance", an agreement to marry having "been made at the same time, but not as any part of the consideration for the conveyance," "although not in writing, was fully executed and per- formed. This, by all authority, takes it out of the statute," and it was held valid. — Larsen v. Johnson, 78 W., 300, 305. 11. "The law requires a husband to support, care for, and provide comforts, for his wife in sickness as well as in health. This requirement is grounded upon principles of public policy. 12. The husband cannot, shirk it, even by contract with his wife, because the publie welfare requires that society be thus protected". 13. "Husband and wife may contract with each other before marriage as to their mutual property rights, 14. But they cannot vary the personal duties and obligations to each other which result from the marriage contract itself. (Citations). 15. It results from this that, when the plaintiff (husband) promised to care for, nurse, and support the deceased (wife) after marriage, he promised only to do that which the law required him to do in any event, 16. And neither the doing of what one is in law bound to do nor the promising so to do is any consideration for another's promise. (Citations.) 17. The alleged promise of the deceased",—" with the claimant that in consideration of his services in caring for, supporting, and nursing her she would leave him all her property upon her death", — "was there- fore nudum pactum. 18. The plaintiff simply performed duties required of him by law as a husband which he could not avoid or contract away, and there can be no recovery upon express contract, nor will the law imply a contract". —Ryan v. Dockery, 134 W. 431, 434. 19. "A valid ante-nuptial agreement may be made ("West v. "Walker, 77 W. supra)," but where "the future wife releases" dower and other rights, it "must be free from fraud or imposition, and it will be regarded with the most rigid scrutiny; and will not be approved" if the "future wife has been" so "overreached". (Many cases). MARRIAGE CONTRACTS . ■; 731 20. "Even if we adopted the view that such a contract might not be enforced because of the mere insufficiency of the provisions made for the intended wife", "we would be unable to say" that $5,000 out of an $86,000 estate, besides reasonable support during life, "was so inade- quate that the contract could not be sustained". 21. Where "the contract may be doubtful or ambiguous", admitting "of more than one construction, that most favorable to the widow should be adopted, if consonant with reason". 22. "But in construing a valid ante-nuptial; contract no exception should be made to the general rule that the intention of the parties is controlling and must govern. (Cases) ". 23. "An ante-nuptial contract otherwise valid, which precluded the widow from claiming the allowances provided for by see. 3935, is en- forcible". 24. Where the contract provided "the considerations named therein 'in lieu of her dower right in the estate of said D., and in lieu of : all right, title, and interest which she would have by law in the said estate'," "and she also agreed not to 'claim any share', in the' personal estate", — 25. It is held, she was not entitled to the benefit of subds. 1 and 2, sec. 3935, as to property and support allowances given "by law and by law only, and a right which she expressly waived by her contract". (Many cases; Mich, contra.). 26. A provision 'that during his naturallife, and the life of the said E., his intended wife, he will' 'provide for her all the necessaries of life', is construed as giving her the specific "sum of $5,000 (otherwise named), together with a reasonable provision for her support during her natural life", and apparently, $60 per month is held "reasonable in amount". 27. A post-nuptial contract, apparently attempting to construe such support provision as not continuing 'beyond the life of decedent, "can- not he upheld. It is of value only in arriving at what the parties meant and intended by the former contract". —Deller v. Dbller, 141 W. 255, 260. 28. An ante-nuptial contract "orally made before marriage and re- duced to writing, signed, sealed, and acknowledged after marriage," purporting "to have been made in consideration of marriage", — is held, ■;29. "Void under subd. 3, sec. 2307", statute of frauds, "and cannot he validated by reducing it to writing and signing after marriage." Brandeis v. Neustadtl, 13 W., 142 (See Frauds, Statute of) ; Ind. and la., contra. 30. Furthermore, under sees. 2167-2172, "respecting dower, jointure, and election", "the ante-muptial agreement inust be made ; and. con- cluded before marriage and the assent provided for in the statute must be in writing and before marriage. Fellers v. Felkrsj"54 , Neb. 694". 31. "Agreements made before marriage respecting the property of 732 PROBATE AND GENERAL LAW, CODIFIED the parties when executed by the transfer and delivery of the property may be good, though void under the statutes before execution." "In Larsen v. Johnson, 78 "W., supra, the consideration" "was not the mar- riage", and the agreement "was fully executed and performed". 32. Here it "was not executed", though "a deed of real estate was deposited" in escrow to be delivered upon the husband's decease, and "no title passed" "before his death". 33. Though the widow "consented to the recording of the deed," she was not "guilty of laches", and "still had the right of election" within the year, (Gases) 34. "Nor was any ground of estoppel shown" as "the estate in no way changed its position because of any act of" the widow. —Bowell v. Barber, 142 W., 304, 306. 35. Whether, there being an ante-nuptial contract, "it is proper for the court to award to the wife anything but alimony", on granting her divorce, is not determined. 36. Alimony is granted here, and the ante-nuptial provision for the wife, on the death of the husband also secured to her. — Schwenn v. Bchwenn, 143 W. 399, 404. 37. A deed given by "a man on the eve of his marriage, without the knowledge of his prospective wife with intent to deprive her of her marital rights", was held given without consideration and inoperative "so far as it conflicts with the marital rights- of the wife. Dudley v. Dudley, 76 W., supra; (citations)". —Hanson v. McCarthy, 152 W., 131. 133. 38. "There is nothing inherently suspicious about ante-nuptial con- tracts. They are, in the absence of unfair characterizing circumstances, - to be regarded with favor rather than disfavor. • 39. In general, the burden is upon the one impeaching such a con- tract to support the claim of invalidity rather than upon the adversary to support the contract. 40. If there is anything about such an instrument,' considering all the circumstances, indicating that the intended wife had been unduly influenced to make it, ; that will overcome its prima facie validity, so as to require the -person asserting the contrary to, at least, restore such character". ! i41. It is held that the fact that the agreements provide for a dis- position of the property "in case of either party dying intestate", does not nullify the contract because of the testacy of such party. 42. "The rule which overshadows all others, in determining the legal meaning of an agreement, applies to ante-nuptial as well as to other agreements, — there is no difference. 43. The meaning which the parties attributed to the paper they exe- cuted at the time it was signed, — their then intention, — is to be taken MARRIED WOMAN 733 as the legal meaning, if it can be found expressed in the language used". 44. "In case of its meaning being obscure, then of two or more reason- able meanings and uncertainty as to which the minds of the parties met upon, 45. That one should be taken which is most favorable to the woman from the viewpoint of the parties when the agreement was made". See also Ambiguity. -r-Oesau v. Est. of Oescm, 157 W. 255, 259. 46. "The fact" of "mutual promises of marriage preceding an ar- rangement as to property matters", "does not constitute, even a badge of fraud, much less, in itself, ground for declaring a contract void as contrary to public policy". , 47. While "anything suggesting unfairness in the property provi- sion" is "to be scrutinized with care", yet "the burden to establish fraud' is on the party alleging it, and such burden can only be efficiently lifted by clear and satisfactory evidence". 48. "There is nothing inherently, suspicious or- bad about such an agreement". (Cases, supra). 49. "Our statutes, sees. 2167 to 2171, are similar to those in most states. Sees. 2167 and 2169", as to " 'legal jointure,' should not be con- fused with the right to make a mere ante-nuptial agreement settling property matters by treaty, before marriage. 50. That right existed before the statute and was not taken away thereby, but rather recognized and encouraged", p. 375. 51. Under sec ; 2169, "anything which answers to the call for a 'pro- vision', is sufficient. (Cases). 52. Where both parties have property and it is stipulated that each shall retain the individual possession with all rights the same as if unmar- ried, that is sufficient as held in Oesau v. Est. of Oesau, 157 W. supra. 53. Even if the pecuniary. consideration named shall not have been paid, if there is in fact an obligation to pay, that is sufficient". 54. The plaintiff having, "without efficient fraud, assented to the agreement-r-as she prima facie did by the fact of her having signed, she is bound thereby", though the husband did not sign it. — Bvbelhansen v. Bibelhausen, 159 W. 365, 371. MARRIED WOMAN. See also Husband and Wife. Acquire estate: on credit, 21, 32, 53, 75. Acquire estate — continued Estate or business not essential, 66. Lease jointly with husband, 70. To make authorized contract, 67. His benefit; she liable, 70. Herself liable at law, 32, 53, 68. Other than her husband, 32. 734 PROBATE AND GENERAL LAW, CODIFIED Acquire estate — continued Subsequent intention, immaterial, 69. Actions: for reversion injury, 15. Alienation husband's affections, 65. At law; separate estate only, 47, 48. Equity: other than separate estate, 49, 50. Also her separate estate, 78. Incident to contract rights, 31. Liable in action for a tort, 90. Give note in settlement, 90. May sue and be sued, 37. Not husband's growing crops, 15. Settle and discontinue, 38. Against attorney's protest, 39. Trespass, with possession only, 40. Common-law: , Acts void, ab initio, 24. Feme covert, not bind herself, 23. Contract rules: Cognizable only in equity, 49. In absence of enabling act, 49. Not enforced at law, 50. Contracts as to separate estate, 51, 55. Arid as to personal services, 51. Enforceable at law, 51, 55. Not suretyship contracts, 53, 56. Rules restated as settled, 74. (1) Purchase of property, 75. Separate estate or not, 75. (2) Contracts as to her estate, 76. Enforceable at law, 76. (3) Bind at law by estoppel, 77. (4) Charge her estate in equity, 78. Even husband 's debts, 78. Conveyances : Bargain and sale deeds, 13. Presumption; consideration, 14. Convey whole or part, 62. Executed release of realty, 86. ' Consideration for money, 87. Mortgage for husband's debt, 61, 84. Title direct from husband, 10. Without husband joining, 26. In her baptismal name, 43. Defective conveyance; reformation, 25. Earnings: entitled to, 18. Actions at law, 20. Contracts as to business, 19. Profits of her business, 18. Employ husband to manage, 7, 21. Apportionment of products, 8. Both carry on together, 28, 29. Each liable in law, 29. Contract oral or written, 30. Crops free from his debts, 22. Retain rights to profits, 7, 21. Family expenses, payment, 72. Jointly with husband, 72. Foreign contract, valid there, 88. Invalid here; enforceable, 88. Funeral expenses; estate liable, 81. Gift or grant from husband, 89. Disability removed, 89. House management; not agency, 83. Not to allow testimony, 83. Loan: for husband's benefit, 54. Marriage not revoke will, 42. Mortgage for husband 's debt, 61, 84. Suretyship bar not inconsistent, 85. Name: of her husband, 43. Also baptismal name, 43. Partnership with husband, 45. Physician's bill, she contracted, 59. Not liable therefor at law, 59. Possession: Evidence of her ownership, 40. Patent, proof; right to crops, 16. Residing with husband; lands, 6, 58. Usual incidents of ownership, 57. Property claimed by her, 1, 89. As to husband's creditors, 34, 89. Burden was upon her, 34, 36, 89. Recital in bill of sale, 35. Disability as to gift, removed, 89. Gift from husband; title, 41, 89. Purchased after marriage, 2, 89. Purchased with husband's money, 44, 89. Separate estate: Contracts binding in law, 5, 6, 47. Otherwise in equity, 5. Equitable grounds, only in equity, 80. Give note in tort settlement, 90. , Implied incidental rights, 31. Intention to charge, insufficient, 60, 80. Not action at law without, 51. Permits husband to use, 17. Not compel accounting, 17. Privilege of feme sole, 10. Same rights; all the world, 9. Including her husband, 9. Statute gives; contract power, 4. Title direct from husband, 10. Signing lease with husband, 70. Signing with husband: Charging her est. in writing, 63, 79. Held to be ineffective, 64. Defective conveyance with, 25. Intention to charge insufficient, 80. Lessee of realty; liable, 70. Note : not liable at law, 73, 79. Though charging in writing, 79. Security, her property, husband's debt, 61, 62. Enforceable against property, 61. Surety; without separate estate, 48. Not liable in law action, 48, 52, 56. MARRIED WOMAN 735 Statutes: extend privileges, 11. Statutes— continued Applicable to all property, 26. Scope, of laws stated, 51. From N. T. law of 1849,. 27. Without liabilities, 11. N. Y. construe; act of 1850, 26. Support of a parent, 82. Not deprive of rights, 12. ' Surety; accommodation maker, 33, 48, Powers by implication, 31. 85, Incident to contracts, 31. Equitable considerations, 56. Principal object of the act, 71. Not affecting separate estate, 33, 56. Husband; debts and control, 71. Not at law; as to equity, 33, 48, 56. 1. "Where property is claimed by a married woman, she must show by evidence which does hot admit of a reasonable doubt, either that she owned it at the time of her marriage, or else acquired it afterward by gifts, bequest or purchase." 2. "In the case of a purchase after marriage, the burden is upon her to prove, distinctly,, that she paid for it with funds not furnished by the husband." Gamber v. Gamber, 18 Pa. St. 363. (But see par. 89, post.) . —Stcmtonv. Kirsch, 6 W. 338, 341. 3. A personal judgment cannot be had against her on a contract signed by her with her husband, it not appearing that it related to her separate estate. —Rogers v. 'Weil, 12 W. 664. 4. The married woman statute gives her a separate estate, the power to contract as to it, and "legal remedies". See Husband and Wife. —Conway v. Smith, 13 W. 125, 136. 5. Contracts as to her separate estate are binding in law; otherwise her contracts are binding in equity as before the statute. See Husband iND Wipe. —Todd v. Lee, 15 W. 365, 830. 6. "We think it very clear that it is not to be inferred that the plaintiff (a married woman) has lost the possession of her land merely, because she allowed her husband to reside with her upon it, or to assist her in cultivating it. To work a change of her possession something more must be shown — such as a lease or contract by which her intention to part with her possession and control of the premises is clearly made to appear". ' —Boos v. Gmnber, 23 W. 284, 286. 7. A married woman may employ her husband "to manage her farm, without forfeitfng her rights in the products; nor will the law imply, from the mere fact that she does employ him, that she has given up and surrendered to him the ownership in the rents and profits". 8. "But when the husband's labor and expense produce the crops upon his wife's farm, perhaps a court of equity, upon the application of his creditors, would make an apportionment of the products as between the fair rent and use of the capital of the wife and value of his personal services, so as to give the creditors the' benefit of his industry". —Feller v. Aldem, 23 W. 301, 304. 736 PROBATE AND GENERAL LAW, CODIFIED 9. "With respect to her separate property the .statute has placed her upon the same footing as to all the world, her husband included, as if this were her condition — as it were, in the words of the' statute, 'a single female'. As a negotiation or dealing therefor with respect to her sepa- rate estate, the transaction is to be looked upon as if the debtor was not her husband, but a stranger". 10. Having the "privileges and capacities. of a feme sole" she : may "take title to property directly from him or without the intervention of third parties, or a trustee, the same as if she were in all respects sui juris, or as if the relation of husband and wife did not exist". —Beard y. Dedoiph, 29 W. 136, 140. 11. "The tendency and pbvious purpose of all laws affecting married women", "have been, almost without exception, to extend the privileges and immunities of that class of persons without, imposing upon them corresponding liabilities and burdens". 12. "We are impelled to the conclusion that the legislature, when it removed some of the disabilities of coverture, did not intend thereby to deprive the wife of any privilege or right extended to, her by other statutes". —Wiesner v. Zaun, 39 W. 188, 210. 13. "The word 'grant', as used in the statute, includes deeds of bar- gain and sale", ,and a married woman may so "purchase and hold to her separate use". 14. "When a conveyance is made by a stranger to a married woman, there is no presumption that the consideration therefor was paid by her husband; but rather, that it was paid by her". — McVey v. Green Bay cfe M. Ry. Co., 42 W. 532, 537. 15. A married woman may, "although out of possession, maintain an action for injury to the reversion", as to her separate estate, but not as to growing crops belonging to her husband. 16. On producing a patent proving "that the premises were her sepa- rate estate, , in the absence of further testimony, the presumption of law would be that she had the possession and was entitled to the crops". 17. "We understand it to be well settled, that a wife who permits her husband, without objection, for a long series of years, to receive and appropriate to his own use, or to their joint use, the income of her separate estate, cannot compel him to account to her therefor until such permission is revoked by her, and then only from the time of such revocation. " — Lyon v. Green Bay & M. By. Co., 42 W. 548, 552. 18. "A married woman is now entitled to her earnings by virtue of Sec. 2, Ch. 155, L. of 1872 (sec. 2343). This necessarily comprehends and includes the profits of the business carried on by her with capital which is her sole and separate property, as in the present case; MARRIED WOMAN 737 19. And she may make contracts in respect thereto the same as though she were sole. Such contracts are valid at law, and may be I I enforced by or against her in legal actions, like other contracts between persons sui juris. 20. It seems very clear, therefore, that the law of 1872 brings this case 1 within the rules of Conway v. Smith, (supra), and that the remedy of the plaintiffs, to whom Mrs. R. became indebted on account of trans- actions in her business, is at law and not in equity. It follows that the demurrer (to a complaint in equity) was well taken". —Meyers v. Rahte, 46 W. 655, 659. 21. "A married woman, under the laws of this state, who has no - separate estate", can "purchase of a third person, upon credit, a farm; ( take the title in her own name, and hold it for her own use and not for the use of her husband; carry on the farm by means of the agency of her husband, who is employed by her to manage the business, but with- out any specific agreement as to his compensation ; and hold and retain 1 , the crops thus raised as her own ' '. 22. And "the crops under such circumstances" do not "become liable' for the debts of her husband". — Dayton v. Walsh, 47 W. 113, 117. 23. " In general, by the principles of the common law, a feme covert can do no act to bind herself; she is said to be sub potestate viri, and subject to his will and control. ■ < 24. Her acts are not, like those of infants and some other disabled persons, voidable only, but are, in general, absolutely void ab initio' '. 25. "If -a wife join her husband in the execution of a defective con- veyance, such conveyance cannot be enforced as to her". (Changed by Ch. 222, L. 1911). See/REFORMATiON.- —Petesch v. Eambach, 48 W. 443, 449. 26. "We are satisfied that the courts of New York and this court have given the true construction to the act of 1850, and that the power to convey and dispose of her property by a married woman, * is a gen- eral power, applicable to all property owned by her at the time of her marriage, or' which she may thereafter acquire, and also to property owned by a married woman at the time the act of 1850 took effect", and , she n?ay ponvey without the husband joining in the conveyance. 27. pur married' woman 's act. Ch. 44, L. 1850, ' 'is an exact transcript of the law of New York upon the same subject, as the same was amended in 1849 ' '. —McKesson v. Stadton, 50 W. 297, 307. ■28. The eases of Conway v. Smith, 13 W., Todd v. Lee, 15 W., Meyers v. Rahte, 46 W., and Dayton v. Walsh, 47 W., all supra, among others, are discussed, followed and approved, and it is held; 29. "Where a married woman owns a farm, and herself and husband 738 PROBATE AND GENERAL LAW, CODIFIED are' engaged together in the 'business' of. carrying on the same, and they purchase goods for £he use, benefit and enjoyment of themselves, and family upon the credit of such property being her separate estate, she as well a's her husband thereby becomes liable therefor in an action at law in all respects as if she were unmarried. 30. And this is so, whether the evidence of the contract is wholly written or wholly oral, or partly written and partly oral. 31. The rights, powers and remedies expressly given to a married woman by the statute, include within them, by necessary implication and as incident thereto, the legal right and power of doing such things, making such contracts and resorting' to such remedies as are necessary or convenient to the beneficial enjoyment of the rights, powers and remedies thus expressly given". (Quoted with approval in Kriz v._ Peege, 119 W. post). ', , — Krouskop v. Shontz, 51 W. 204, 217. 32. "From the repeated decisions of this court it logically follows that a married woman, having at the time no separate estate, may purchase property of any person, other than her husband, entirely on credit, and thereby make herself liable in an action at law for the contract price. (Cases cited, supra) ". — Cramer v. Hcmaford, 53 W. 85, 87. 33. Where neither, the married woman "nor her separate estate was in any way interested in or connected with" the consideration, "but her signature to the note was given merely as surety or accommodation maker for another, it is quite obvious that the contract was not such as she was enabled by the statute to make, and hence js enforcible, if at all, only in equity". And it is held not enforcible at law, but not decided whether in equity. —Kavanagh v. O'Neill, 53 W. 101, 106. 34. The court sustains what it "has repeatedly held that, in a contest between the creditors of a husband and wife, if the wife claims owner- ship of the property by a purchase, the burden of proof is upon her to prove, by clear and satisfactory evidence, such purchase, and that the purchase was for a valuable consideration, paid by her out of her sepa- rate estate, or by some other person for her, (Many cases)." 35. ' ' The mere recitation of the fact in the bill of sale itself, without any other evidence thereof", "was not sufficient evidence that a valuable and sufficient consideration was in fact paid. Sillyman v. King, 36 la., 207,". (Rule changed by amdt. of Ch. 86, L. 1895, to sec. 2342. Ripon H. Co. v. Haas, 157 W. post) . —Horton v. Dewey, 53 W. 410, 413. 36. The foregoing in Horton v. Dewey, 53 W. supra (But see note thereto) is approved, and it is further said: "Inadequacy of consid- eration may be a badge of fraud, and may always be considered in connection with other facts in determining whether a deed was not made with intent to defraud, creditors". —Fisher v. Shelver, 53 W. 498, 504. MARRIED WOMAN 739 3.7. "In 'this state a married woman, in' possession of her mental facul- ties, has the right to sue and be sued respecting her separate property. 38. Since she may bring such action, she certainly has the right to settle and discontinue the same. This right, of course, may be tem- porarily suspended by the intervening rights of attorneys and others, ,but here there is failure to show any such intervention." 39. She may so discontinue "without the presence'', "and 1 against the wish and protest of such counsel", especially on her husbapd's advice in the absence of fraud. ' —Dolloff v. Curran, 59 W. 332, 335. 40. As ' ' she may own separate property, then her possession of it is evidence of her ownership of it as such. 1 It is an elementary principle that a person in the actual possession of goods and chattels may recover in trespass against a mere wrong-doer without other proof of title. (Cases)". 41. "When the rights of creditors are not involved, she may prove ' her title by gift from her husband to either real or personal property. This has been so often decided by this court that it is no longer open for argument in this state". — Cummings v. Friedman, 65 W. 183, 184. 42. Subsequent marriage does not revoke her will previously made. See Revocation. * — Will of Ward, 70 W. 251. 43. While a married woman "is entitled to the name of her husband", "we are aware of no law that will invalidate obligations and conveyances executed by and to her in her baptismal name, if she chooses to give or ) take them in that form". —Lane v. Duclyac, 73 W., 646, 654. 44. Contest between creditors, as to property purchased in the name of the wife with the husband's money, and be declared void as to the husband's creditors. See Husband and Wipe. ; y-Cfettelmann v. GHz, 78 W v . 439, 442. 45. As to partnership of a married woman with her husband, and as to separate estate therefor, and her contracts. See Husband and Wipe. -rFvll&r & Fuller Co. v. McHenry, 83 W., 573, 578. 46. The case of Rogers v. Weil, 12 W., supra, and numerous subse- quent cases, are followed, to the effect that personal judgment for defieieney against a married woman, cannot be upheld, where she signs a note and mortgage with her husband, and it does not appear "that she signed said note on account of her separate property or estate, or to charge the same, or that she had any separate estate." 47. "The power of a married woman to bind herself at law is limited to such contracts and engagements as are necessary or convenient to the' 740 PKOBATE AND GENERAL LAW, CODIFIED use and enjoyment of her separate estate. Fuller v. Fuller Co., 83 W., 573 (See Husband and Wife) ; (other cases, supra.) —Gaynor v. Blewett, 86 W., 399, 401. 48. A married woman, signing a judgment note with her husband, as surety, having no separate estate, except an interest in a benefit certifi- cate, is not liable in an action at law. Kavanagh v. 'Neill, 53 W., supra. 49. The "rule may be stated in short thus: In the absence of an enabling act, the contracts of married women are cognizable only in equity. 50. Therefore, except as varied by the married woman's act, so called, of this state, (sees. 2342-45), such contracts cannot be enforced at law. 51. The scope of such statutes only includes contracts necessary or convenient for the use and enjoyment of a married woman's separate estate, or the carrying on of her separate business, or in relation to her personal services. 52. They have no relation whatever to contracts solely of suretyship • for debts of others. . Emerson^Talcott Co. v. Knapp, 90 W., 35. As to such contracts, the rights and remedies of married women are governed by the common law". — Mueller v. Wiese, 95 W., 381, 383. 53. While it has been held "that a married woman, having no separate estate", may acquire such by purchase "entirely on credit", and be liable, (cases supra), 54. It is held, having no such estate or business, she cannot bind her- self to repay money loaned to her, to enable her husband to go into business. — Gallagher v. Mjelde, 98 W. 509, 510. 55 "A married woman has not capacity to bind herself at law by contract, except as regards her separate property or business. 56. It follows, as has often been decided by this court, that a married woman's note, given solely for the purpose of securing or paying the debt of a third person (here, her husband) , is void at law and not enforceable in equity against her separate property in the absence of some equitable considerations rendering such enforcements, under the circumstances, just. Krouskop v. Schontz, 51 W. supra; Kavanaugh v. O'Neill, 53 W. supra; Emerson-Talcott Co. v. Knapp, 90 W. 35; Mueller t. Wiese,95 W. supra". —Hollister v. Bell, 107 W. 198, 199. 57. As to a iharried woman as owner of realty, "there must attach to her title, and accompany it, all the usual incidents and marks of ownership. 58. If the real estate be a dwelling house, in which she resides, the presence of her husband there as the head of the family cannot in the least detract from her full possession and ownership. Mygatt v. Coe 152 N. Y., 457". —Cook v. Bellack, 109 W., 391,' 392. MARRIED WOMAN 741 59. As ..to, a physician 's bill contracted by a married woman, and upon which, she made payments, she having separate estate, it is held/that she is npt "liable at law for a debt that in no way concerned her separate property or business", and judgment against her is reversed, the case not being within any heretofore " decided by this court". 60. "It is not sufficient that a married woman shall merely intend to charge of her separate property ; it must concern her separate property or business or personal services". (Approvingly quoted in Bailey v. Fink, 129 W., post.) s-Stack v. Padd&n, 111 W., 42, 45.' 61. The principle of Hollister v. Bell, 107 W., supra, "does not mili- . taje at all against the other principle, early decided by this court, that a married woman may make a present charge upon or conveyance of her separate property as security for or in payment of her husband's debt, which will be valid and enforceable as against the property. 62. Having th,e absolute power to dispose of the whole of such prop- erty if she chooses, she may dispose of a part thereof. Heath v. Van ,Cott, 9 W., .516". (Approvingly quoted in Goll v. Fehr, 131 W., post). So held. —Fitzgarald v. Dunn, 112 W.,'37; 39. 63. .Where a note negotiated by the husband ' ' for use in his own busi- ness", was. signed, also by the wife, who further signed, a statement thereon that 'the above note is made for the benefit of my separate estate, and I hereby charge it with the payment thereof,' and her answer alleged, "that, she, executed the note as surety" and that it did not con- > cern her separate estate, — it was competent for her to show such facts, which would sustain "no recovery against her in an action at law". - 64. "The memorandum is not a contract. It utterly fails to express ■ a consideration". And neither the complaint nor, the evidence showed "that the wife possessed, a separate estate". —Bitter v.^Bruss, 116 W., 55, 57. 65. Neither at,common law nor by statute has a married woman a right of action for alienation of her husband's affections. (Changed by sub- sequent amdt, by Ch. 17, L. 1905 to Sec. 2345). — Lonstorf v. Lonstorf, 118 W. 159, 161. , r I ,,,66. After reviewing cases, supra, and elsewhere, it is hehi: "That the possession by a married woman of a separate estate or business, or contemplation by her to engage . in business, is not essential to her Statutory right to contract, as regards, the acquirement of property ; 67., That while separate estate is essential fo the making of a contract by her merely to charge her separate- estate, binding in equity, it is not \ to make a contract authorized by the statute ; ,68. "That she may incur indebtedness binding upon herself at law, for' property vesting in her at the time of the transaction, 742 PROLATE AND GENERAL LAW, CODIFIED* 69. And that what she may then intend to do therewith, or what she may do therewith in fact, or what information the creditor may have on the subject, so long as he actually parts with, to her, an equivalent for . the credit extended, with no restraints upon her as to what she, shall do' with such equivalent, does not militate against her liability, the contract being within the plain purpose of the statute. " 70. A married woman, who became, jointly with her husband, the lessee of realty, she having no separate estate, and she signing the lease wholly "for the benefit of her husband and to aid him", was held liable for rent thereunder. —Kriz v. Peege, 119 W., 105, 120. 71. "This court held early that the principal object of the (married woman) act 'was to prevent the property of the wife from being liable for the debts of the husband, and from being sold or" controlled by him'. "Wooster v. Northrup, 5 W. 245." — Wallace v. St. JoJm, 119 W. 585, 591. 72. Following Stack v. Padden, 111 W. supra, it is held that "a mere personal promise by a married woman living with her husband to pay for, certain family expenses, which in no wise concerned or related to her separate property", "creates no legal liability", and a claim against her estate therefore, is disallowed. The promise was jointly, with her hus- band for their care. —Breed, v. Breed, 125 W. 100; 102. 73. A married woman, with separate property, is held not liable at law on a note signed jointly with her husband, it not enuring to her or her property 's benefit, or affecting her business, or services and not creating an estoppel. 74. "The principles governing the contracts of married women are fairly well settled in this state and may be briefly stated as follows : 75. (1) A married woman, whether possessed of a separate estate or not, may purchase property, real or personal, and give her obligation for the purchase price, which obligation will bind her at law as if she were a feme sole, provided the title of the property purchased passes to her ; and this she may do regardless of the purpose to which she intends to devote such property. Kriz v. Peege, 119 W. supra. 76. (2) A married woman possessed of a separate estate or business, or who is rendering personal services to some person other than her husband, may make all contracts necessary or convenient for the man- agement or enjoyment of the estate or the carrying on of the business, or relating to her personal services, and such contracts will be enforce- able at law. Mueller v. Wiese, 95 W., ; Ritter v. Brass, 116 W. ; supra. 77 (3) A married woman possessing separate property may bind her- self at law by estoppel. S. D. Seavey Co. v. Campbell, 115 "W. 603. 78. (4) A married woman may, by proper instrument charge' her separate property for any obligation, even for her husband's debt, but MARRIED WOMAN , 743 this charge is only enforceable in equity. Mueller v. Wiese, supra; Hollister v. Bell, 107 W. supra; Loizeaux v. Fremder, 123 W. 193." —Merrell y. -Purely, 129 W. 331, 334- 79. A married woman, signing a note as maker with her husband, for his debt, the note including her statement,— 'hereby charge my separate estate with the payment of said note', is held not liable therefor at law. 80. "Mere intention to charge her separate estate, or the existence of equitable grounds for charging it, are not sufficient at law. They are good only in equity. (Many cases, supra and others) ". —Bailey v. Fink, 129 W. 373, 376. ' 81. Estates of married women are "primarily liable "f Or funeral expenses. See Funeral Expenses. , ' v ' ^—Schneider v. Est. of Breier, 129 W. 446, 447. 82. Daughters' liability for support of their mother, "enabled them to make a contract in respect thereto", it operating "to the benefit and advantage of her daughters' separate estates." 83. A married woman's household management did not make her her husband's agent to allow her to testify. See also Contribution. —Payne v. Payne, 129 "W. 450, 456. ,84. Cases, supra, followed, and held that a married woman may bind herself "in equity in respect to charging her separate property by a mortgage for the payment of the obligation of her husband, 85. And the law respecting her want of capacity to incur a legal lia- bility as surety for her^ husband or any other person is not inconsistent therewith". Fitzgerald v. Dunn, 112 W., supra. —Goll y. Fehr, 131 W., 141, 146. 86. "A fully executed release of her interest in real estate, even inchoate, is" sufficient "consideration, whether her executory promise to do so would be or not", 87. And "neither the statute of frauds nor plaintiff's marital status (as a married woman) presents any obstacle to the validity of defend- ants' promise to pay a sum of money upon a sufficient consideration". Watters v. MeGuigan, 72 W., 155; (other cases). -^Lyttle v. Goldberg, 131 W. 613, 615. 88. A foreign contract of a married woman valid where made, i§ held enforceable here though invalid if made here. See also Contracts. —International E. Co. v. McAdam, 142 W. 114, 117. 89. The disability of a married woman as to taking "by gift or grant from her husband", was removed by statute, ch. S6, L. 1895 amending sec. 2342. See Husband and Wife. —Bipon H. Go. v. Haas, 157 W. 466, 470. / 744 PROBATE AND GENERAL LAW, CODIFIED 90. "A married woman is responsible for a tort committed by her wlien not under coercion by her husband (Jones v. Monson, 137 W; 478j)i and she may doubtless give a valid note in settlement of an action brought against her therefor". — Huber v. Seeger, 161 W. 135. MARSHALLING ASSETS. Contract rights prejudiced, 11. 'Equality,, generally equity, '>4. . Equitable rule stated, 2, 5, 8, 10. Failure to plead right, 6. . Homestead right favored, 3. Laches: no knowledge, 9. One personalty; one realty, 1. Part of premises sold, 7. Principle of election, 5. Secured claims against estate, 12. Burden of collection on est., 15. Secured claims, etc. — continued At expense of estate, 15. Federal rule adopted, 14. Insolvency; unsecured creditors, 14. Eeceive dividend first, ,12, 17. Benefit of security also, 13, 17. Beceived payment in full, 14. Bight to securities cease, 14. ' Same status as unsecured, 16. _ Securities over sufficient, 12, 17. 1. Where A. has a lien upon two funds and B. upon one of them, equity will require A- to satisfy his lien as far as may be out of the fund Upon which B. has no lien, though one security may be personalty and the other realty. — Goss v. Lester,, 1 W. 43, 54. 2. "It is a familiar rule, that where a creditor has a claim upon two funds, on one of which another person has also a claim, and such other person will be prejudiced by allowing such creditor to satisfy his debt out of the fund subject to both claims, -a court of equity will compel the creditor to take satisfaction out of the fund to which he alone has a claim, in the first instance". See Homestead. —White v. Polleys, 20 W. 503, 505. 3. "The policy of the law of 1870 (sec. 3163) seems to favor the homestead right as against the equities of creditors arising under" the "equitable rule" of White v. Polleys, 20 W. supra. So held. — Hanson v. Edgar, 34 W. 653, 656. 4. "It is the aim of a court of equity, as regards marshaling assets, to do equity; and equality is generally equity". 5. ' f 'Says Chief Justice Marshall: 'The principle on which the court proceeds is, that a creditor having his choice of two funds ought to exercise his right of election in such a manner as not to injure the other creditors who can resort to only one of these funds'. Alston v. Mun- ford, 1 Brock. 279. This principle lias often been applied in this court, as between creditors". 6. "The difficulty, however, in enforcing that principle here is; that MARSHALLING ASSETS 745 there is no foundation laid for any such relief in the answer of W. Had he amended his answer, on the trial even, asking, by way of counter- claim or- cross bill, that an account be taken" /'relief might possibly have been granted". _ Scott v. Webster, 44 W. 185, 195. 7. ''Thei doctrine is well settled,- 'that equity will not permit a prior mortgagee, knowing that portions of the mortgaged premises have beeu subsequently conveyed or incumbered by the mortgagor, to deal with 1 him arbitrarily, to the prejudice of the interests of such subsequent incumbrancers or purchasers, by releasing those parts of the land on which he has the only lien, and attempting to enforce his entire claim out of those portions in which such others had become interested'. Deuster.v. McCamus, 14 W. 308, 311". —Kelley v. Whitney, 45 W. 110,' 118. 8. "Plaintiff had security on two funds- defendant upon one of ,them. 'The rule ordinarily would be that defendant would require the plaintiff to exhaust his remedy against the fund upon which he had no security. ' ' 9. But where, the plaintiff, "in good faith", and "without notice that defendant had any interest in either", "disposed of the fund upon which defendant has no claim", — "the laches of" the defendant "pre- cludes him now from insisting that the value of" such disposed fund "shall first be applied" by plaintiff. — Provident L. & B. Assn. v. Carter, 107 W., 383, 386. "» , \ 10. The general doctrine "that when a creditor has two funds of his debtor available for the payment of his claim, while to a general creditor only one of them is available, equity will compel resort' by the first cred- itor in the first instance to the fund in which his, right is exclusive", — ,' 11. "Is not applicable to situations that will prejudicially affect his contract rights". In re Meyer, 78 W. 615; 623; (many cases). 12. "The rule was stated in People v. Remington, 121 N. Y. 328, after a full review of the authorities, thus : ' The creditor is" entitled to prove against the estate for what is due to him, and to receive a dividend upon that amount. , _ ' 13. If the collateral securities are more than sufficient to satisfy any deficiency in the payment of the debt from. the dividends, the personal representatives may redeem them for the benefit of the estate'. 14. ; In Merrill v. Nat. Bank, 173 TL S., 131, in a masterly opinion by Mr. Justice Field, in which' the leading authorities in his ^country and England were reviewed, the rule thus stated was adopted", and it was further said: " 'When secured creditors have received payment in full, their right to dividends, and their right to retain their securities cease, i but collections therefrom are not otherwise material. Insolvency gives unsecured creditors no greater rights than they had before' ". "We must adopt that rule". 746 PROBATE AND GENERAL LAW, CODIFIED 15. And- it is held, that "the holder of the collateral has a right to throw the burden" of collection "thereof onto the receiver by refusing to incur any expense in the matter and looking wholly to the trust fund t .though still retaining the security", and the expenses of the receiver 1 therein were held properly chargeable to the trust fund. —Earrigwi v. Gilchrist, 121 W. 127, 344-348. 16. Following and approving Harrigan v. Gilchrist, 121 W. supra, it is said, — "It was there held", that "one who holds security for the payment of his claim has, nevertheless, to the extent of the full face of such claim at the date of the creation of the trust, the same status regarding the distribution of the trust fund as an unsecured creditor ; 17. That he is entitled to dividends accordingly and to the benefit of his security as welltill the avails from both shall have been sufficient to fully discard the indebtedness, the residue of the security, if any there be, to be then covered into the trust fund". —Corbeit v. Jocmnes, 125 W. 370, 379. MASSES. See Charitable Trusts. MASTER AND SERVANT. See also Entire Contracts. Services. Condonation of fault, 3. When presumed, 3. Reasonable commands, 7. Duty to obey them, 7. Servant: business himself, 1. Advance master's interests, Discharged before time, 1. Whole time to master, 2. Substantial insubordination, 8. Substantial, etc. — continued Ground for discharge, 8. Unreasonable hours, 4. No extra 'compensation, 5. Voluntarily does do, 15. Wrongfully discharged, 6. Action: damages for breach, Not for contract wages, 6. Paid to that time, 6. 1. "It is well settled that if a servant, without the consent of the master, engage in any employment or business for himself or another, which may tend to injure his master's trade or business, he may lawfully be discharged before the expiration of the agreed time of service ' '. 2. This is true notwithstanding "he has given his whole time and attention to the business of his master", "for the reason that the servant would yet have an interest against his duty", which is "not only to give his time and attention to his master's business, but, by all lawful means at his command, to protect and advance his master's interests". —Dieringer v. Meyer, 42 W. 311, 313. MAY 747 3. "In Ridgeway v. Hungerford Market Co., 3 Ad. & Ellis, 171, Lord Denman, C. J., declared that where the servant was guilty of rfiis- conduct in June, and the master, knowing it, retained him until Novem r ber, 'a condonation might be presumed'. This was dictum, to be sure, but we think it was good law". See also Services. 4 — Bast v. Byrne, 51 W. 531, 536. 4. "A servant is not required to work during unseasonable hours, unless the contract or nature of the employment makes it reasonable that he should do so. 5. If he voluntarily does so, however, it is no ground for extra com- pensation, and much less for claiming a breach of contract by the other < party". —Koplitz v. Powell, 56 W. 671, 673. i 6. "Where an employee is wrongfully discharged, having been paid m full up to that time, his remedy is by action for damages for breach of the contract of employment and not by action for wages under the contract. (Cases). 7. An employer has the right to give all lawful and reasonable com- mands", and "the employee's duty is' to obey" them. 8. "Any inexcusable and substantial insubordination" "is good ground for discharge". (Cases). Distinctions, and legal effect, on the facts, succintly set forth. —Green v. Somers, 163 W. 96, 99. MAY. Discretionary when, 2. Means must or shall, 1. Not public or third persons, 2. Public officers, for public, 2. "May" and "must"; same section, 4. Public rights concerned, -1. Indicates ordinary meaning, 4. Ordinary use, permissive, 3..; 1 "May means must or shall only in cases where' the publie interests or rights are concerned; or where the public or third persons have a claim de jure that the power should be exercised". Chancellor Kent m 5 Johnson, Ch. R. 113. 2 "When public corporations or officers are authorized to perform an act for others, which benefits them, then the corporations or officers- are bound (shall) to perform the act". "But where the act to be done is not clearly beneficial to the public ot third persons, the exercise of the power is held to be discretionary". --Cutler v. Howard, 9 W. 309, 311. 3. "The word 'may', in its ordinary and common, use, is certainly 'permissive and not mandatory": '..',,* 4. The "use of the words 'may' and 'shall' m the same section of 748 PROBATE AND GENERAL LAW, CODIFIED the statute is held to indicate their use in their ordinary and' distinctive meaning. Cutler v. Howard, 9 W. supra', approvingly quoted. —Equitable L. A. Soc. v. Host, 124 W. 657, 669. MEDICAL WORKS. See Books of Science. MEMORANDUM. See Writings. MENTAL CAPACITY. See Incompetents. Insane Persons. Testamentary Capacity. MINOR. x See Infants. MISTAKE. See also Equity. Fraudulent Orders. Nunc Pro Tunc. Reforma- tion. Settlement. Vacating Judgments. Accounts; name over, 7. Administrator: judge's order, 1. Amend records: Agreement; estate settlement, 40. Corrected twelve yrs. later, 41. Judgment different, 40. To conform as pronounced, 41, 47. Conform' as pronounced, 47. After considerable time, 49. Appear by the record, 48. England and many states, 50. / More liberal, rule here, 50. Everything subject to mistake, 51. Not mere remembrance, 48. Question as to a judgment, 51. Regardless of time limit, 47. County court procedure, 61. Error in actual entry, 24. After year expiration, 25. Incident to general powers, 2. No power; judicial determination, 52. Such by statute or appeal, 52. Amend records — continued N. E. half to east half, 54. Extrinsic evidence to aid, 56. Merely correct evidence of, 54. No rights intervened, 54. Personal to de bonus testatoris, 8. Recollection of judge, 9. At subsequent term: Clerical errors, 3. "Contestant;" word omitted, 21. Matters of form, 6. Clerical errors: At subsequent term, 3. "Contestant;" word omitted, .21. Duty to disregard such, 15, 39. "From" instead of "for," 13. Given name; in appeal bond,' 14, 23. "Him" for "them," 32. ''Plaintiff" for administrator, 39. "The" for "no;" "receive" for "recover," 4. Corrected at any time, 4. Disregarded collaterally, 4. MISTAKE 749 Clerical errors — continued ' Year 1761 for year 1861, 10. Error disregarded, 10. Contract: clear mistake, 11. Amount of promissory note, 26. Avoid or rescind, 11. Clearly and satisfactorily, 26. Preponderance insufficient, 27. Have ascertained the facts, 12^ Mutual as to land value, 42. Not law or legal effect, 35. Final judgment, ignorance, fraud, 53. Misled by the court, 1, 22. Power to relieve, 22. Mistake of law: Definition: fully stated, 17. Clearest and most satisfactory, 18. Family lawyer on facts, 16. Praud or imposition, 36, 37. Legal effect of omission, 38. May have relief, 37. Belief refused in such case, 19. Mistake of fact: definition, 43. Mistake of fact — continued Ignorance, not negligence, 46. Ignorance unconscious, 44, 53. Waiver of inquiry, is not, 45. Rules stated; relief granted, 28. Of fact, not Of- law, 34. Omission or insertion, 31. Reducing to writing, 30. Set aside settlements, 29. Vacate' orders: Praud: irregularly made, 5. Must be of fact, not law, 34. Not after the term, 33. Except mistake, etc., 33. Vacation; amendment, rules, 60. Will: not after probate, 20. Prove sec. 22, instead of 21, 55. /Extrinsic evidence,- 56. Words misplaced: Interfering word, rejected, 59. Necessary inference, read, 58. "Not" in appeal bond, 57. Pules apply to statutory paper, 59. 1. Where he makes a mistake under the direction of the judge, the administrator is entitled to indulgence. See Executors and Adminis- trators. —B'owen v. Burnett, 1 Pin. 658, v 662. 2. Court may amend its records "as incident to the general' powers of the-court. ' ' — Brunson v. Burnett, 2 Pin. 185, 190. 3. "Clerical errors may be corrected even at a subsequent term." See Records. — HUl v. Hoover, 5 W. 386, 388. , 4. A clerical error of "the "for "no" and "reecive" for "recover", ' ' are such mistakes as the court could at any time have corrected, and as must have been disregarded at every stage of the action," and must be disregarded when it is collaterally called in question. — Morrison v. Austin, 14 W. 601, 603. 5. ' ' The county court, sitting as a court of probate, may, at any time; in furtherance of justice, revoke an order which has been irregularly made or procured by fraud." — In re Fisher, 15 "W. 511, 521. 6, A mistake in a judgment in matters of form, may be corrected at a subsequent term. See Vacating Judgment. —Aetna Life his. Co. v. McC'ormick, 20 W. 265. ■>- 7. In name over entries of accounts, a mistake may be explained by evidence. See Account Books. —Schettler v. Jones, 20 W. 412. 750 PROBATE AND GENERAL LAW, CODIFIED $. "The change of the judgment, by amendment, from a judgment against the plaintiff personally to one against her de bonis testatbris was one which it was competent for the court to make. The object was to correct a mistake in the original entry, so as to conform the record to the judgment which was in fact pronounced, and not to .change such judgment". 9. (This amendment having been made on the recollection of the judge and not shown by the record, is criticised in Packard v. Kinzie Av. H. Co., 105 W. post, as "an extreme case"). —Wymcm v. Buekstaff, 24 W. 477, 479. 10. An error in the published notice of sale reading "1761" instead of ' ' 1861 ' ' was disregarded, the court holding that ' ' the place, the day of the >month, and the month being designated, no one would be misled as to the year when stated in that manner". — Jensen y. Weinlander, 25 W. 477, 479. 11. "Where a party enters into a contract under a clear bona fide mistake, ignorance or forgetfulness of facts material thereto, he may, on that account, avoid or rescind such contract, provided the rights of innocent third parties will not be prejudiced by such avoidance". 12. "And, in such case, it is not material to inquire whether such party might not, by reasonable diligence, have ascertained correctly the facts which he had forgotten, or in regard to which he was so mistaken or in ignorance as aforesaid". — Johnson v. Parker j 34 W. 596, 601. 13. "We think that we would be abundantly justified by authority in reading from instead of for, if it were necessary". —Beady v. Sommer, 37 W. 265, 268. 14. "Obviously, a clerical mistake" in the given name of an adminis- trator in an appeal bond is held not "sufficient to defeat the bond". 15. "It is always the duty of all courts, where it can be done, to over- come and disregard such clerical errors". — Appeal of John Mullins, 40 W. 154, 156. 16. Where the facts as to the title were fully stated to the parties by the family lawyer, and the sale was on his own erroneous advice as to ownership, the court says : 17. "We think it comes most clearly and directly within the definition of a mistake of law found in the very able and elaborate opinion of Chief Justice Dixon in the case of Hurd v. Hall, 12 W. 113 : 'A mistake of law happens when a 'party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion or inference, arising from an imperfect or incorrect exercise of the judgment upon facts as they really are'." MISTAKE 751 18. "Whatever may be the confusion and apparent contradiction of decisions elsewhere, the law is well settled and made definite and certain at least in this state, as to what constitutes a mistake of fact and a mistake of law", and the foregoing definition "is the clearest and most satisfactory to be found anywhere". . 19, Being "purely and essentially a mistake of law" relief is refused. —Birkhauser v. Schmitt, 45 W. 316, 320. i i 20. "A court of equity should not reform a will by correcting a mis- take therein, after the will has been admitted to probate". See Refor- mation. . —Sherwood v. Sherwood, 45 W. 357, 362. 21. Where- the judgment as to costs generally failed to state as intended, "contestants' costs", it is said: "There is no rule of law in ■ the way of making the correction at a term subsequent to the rendition of the judgment. The omission sought to be supplied is not the omission of the court. The proper judgment was directed ". "This is the 'rule of , Aetna Ins. Co. v. MeCormick, '20 W. 265" (cited under Vacating Judgment.) , —Will of Cole, 52 W. 591, 592. 22. "The equitable powers of the county court to relieve a party misled by itself, seems to be ample. Brook v. Chappell, 34 W. 405; Appeal of Schaeffner, 41 W. 260 ; Catlin v. Wheeler, 49 W. 520 ; Appli- cation of Wilbur, 52 W. 297". —Gardner v. Est. of Callaghan, 61 W. 91, 96. 23. A mistake in a Christian name may be corrected by parol in an action, as a clerical error. See Parties. ' —Cleveland v. Burriham, 64 W. 347. 354. 24. The ' ' cases fully establish the power of the circuit court to correct any mistake made in the actual entry of the judgment, which is in con- flict with the judgment as propounded by the court, 25. And they also establish the rule that such mistake may be cor- rected after the expiration of a year after notice of the judgment reh 7 dered". —Williams v. Hayes, 68 W. 248, 253. 26. To correct a mistake in the amount of a promissory note, "the party alleging the mistake must prove it clearly and satisfactorily, and, some courts hold, beyond a reasonable doubt. 27. A mere preponderance of evidence is not sufficient. To be more weighty, convincing, or satisfactory than the evidence of the other party is not the rule; for that would be simply the rule of preponderance. , ' (Many cases) ". « ' * —Parker v. Hull, 71 W. 368, 371. 28. "We suppose the doctrine is well settled that courts relieve against mistakes, as well' as frauds, in written instruments. , 752 PKOBATE AND GENERAL LAW, CODIFIED 29. A mistake is a ground for setting aside settlements ; 30. Or, where there is a material , mistake in a written>instrument, either through the error of the draughtsman in reducing the agreement to, writing, , 31. Or by the omission or insertion of a stipulation contrary to. the intention of the parties, courts relieve against and correct a mistake." —Lusted v. C. A T . W. By. Co., 71 W. 391, 396. i 32. "Him" for "Them", a clerical error, held to he disregarded. See Surviving Partner. — Garland v. Hickey, 75 "W., 178, 181. 33. "The court had no power to vacate the order dismissing the appeal after the term at which it was entered, unless it was so entered 'through mistake, inadvertence, surprise, or excusable neglect'. Sec. 2832. Whitney v. Karner, 44 W., 563 ; Quaw v. Lameraux, 36 W., 626 ; Black v. Hurlbut, 73 W., 126. 34. It must be a mistake of fact and not of law. Kalckhoff v. Zoehr- laut, 43 W., 374; Carmichael v. Argard, 52 W., 607." — Main v. McLaughMn, 78 W., 449, 451. 35. In Neff v. Rains, 33 W, 689, reformation was not granted because "it was in effect held that there was no mistake in the contract, as a matter of fact; and that, if there was any mistake, it was merely one of law as to the legal, effect of the contract, since the contents were well known to the person executing it. Such is undoubtedly the law, even in equity, where the party executing the contract knows its contents, and the same conforms to his agreement. Storrs v. Barker, 6 Johns., Ch. 166, 10 Am. Dec, 316, and notes. 36. It was said by Marshall, C. J., that, 'although we do not find the naked principle that relief may be granted on account of ignorance of law asserted in the books, we find no case in which it has been decided that a plain and acknowledged mistake of law is beyond the reach of equity'. Hunt v. Rousmanier, 8 Wheat., 215. 37. The rule seems to be firmly established that, where the mistake of law is occasioned by fraud, imposition, or misrepresentation, a party suffering thereby may have relief in equity. (Many cases)." 38. "In the case at bar the defendant appears to have been induced to execute the deed containing the covenants upon which the action is brought by the imposition and misrepresentations, ' ' omitting by mistake to make it subject to a lease on the advice of the attorney of the other party as to the legal effect of such omission, ' ' and hence a proper case is presented for relief in equity." (Approvingly discussed in Moehlenpah v. Mayhew, 138 W., 561, 573.) , — Kyle v. Fehley, 81 W. 67, 71. 39. Where the action was brought as administrator of an intestate, but the complaint referred to "the plaintiff'', where his intestate was meant, and the answer recognized such clerical error, which was appar- MISTAKE ; 753 ' ent, the mistake "should have been disregarded or corrected as of course and without terms or delay". —Chandos v. Edwards, 86 W., 493, 495. 40. Where the interested parties, represented by counsel and guardian ad litem, at the final settlement, and without a construction of the will, agreed orally with the county judge, that judgment assigning the estate should be entered "substantially in the language of the will", and "the order and judgment" entered, "were substantially different", giving - the widow greater powers "to dispose of the whole estate," — 41. On petition to the county court, by the former minor, as remain- derman, and after the decease of the widow, some twelve years later, it is h£ld, that the facts alleged, if proven, "authorize the correction of the order and judgment so that the same will conform to the one actually pronounced and ordered". Est. of Leavens, 65 W. 440, and Est of O'Neill, 90 W. 480 (See Fraudulent Orders). — Hall v. Hall, 98 "W. 193, 200. 42. It, is , doubtful whether a mutual mistake as to value of realty, would justify a rescission of the contract. See Promissory Notes. — Union & P. Bank v. Jeffersan, 101 W. 452, 455. , , 43. "The most philosophical definition" "of the mistake of fact which will warrant. rescission", "we have found is that presented by Pomeroy (Eq. Jur. 839) : 'An unconscious ignorance or f orgetf ulness , of the existence or non-existence of a fact, past or present, material to the contract'. This definition contains several elements, each of which, (as above suggested), must be explained and qualified in its present appli- cation. ,, 44. (Thus, the ignorance must be unconscious; that is, not a mental state of conscious want of knowledge whether a fact which may or may not exist does so. Kerr, Fraud & M. 432". ; 45. But, "where a party enters into a contract, ignorant of a fact, • but meaning to waive all inquiry into it, or waives an investigation after kis attention has been called {o it, he is not in mistake, in the legal sense". ,Hurd v. Hall, 12 W. 112, 127. 46. And "ignorance must not be due to negligence, although there be , no actual suspicion with reference to the fact in question. (Citations) ; Conner v. "Welch, 51 W. 431". Mistake and instances, discussed. —Kowalke v. .Milwaukee E. B. & L. Co., 103 W. 472, 476. ,< 47. Mistakes, where the judgment "was not made to accord with" the decision "as actually pronounced by the court", "can be corrected by ' the court in which they occurred, regardless of the time limit upon the power of the court to correct judicial errors". (Many cases supra) ., 48. As to such mistakes, "the rule in many jurisdictions is that a •mistake, to be subject to correction by amendment, must appear -in Zimm erm an — 48 754 PROBATE AND GENERAL LAW, CODIFIED some way by the record, and not by the mere remembrance of the judge or some other person or persons concerned in the transaction. 49. Probably the better rule is to so confine the practice, especially after the lapse of a considerable length of time". 50. This is the rule in England and many of the states, though "a more liberal rule has prevailed here": Williams v. Hayes, 68 W. supra. 51. "The mistakes that may be corrected under the practice indicated, include everything that may be the subject of mistake. As to a judg- ment, the test is, Does it, as entered, conform to the decision made or judgment pronounced? 52. There is no power to correct errors in the actual judicial determi- nation under the guise of correcting mistakes. Such errors must be corrected" according to the statutes or on appeal. , —Packard v. Kinzie Av. H. Co., 105 W. 323, 325. > 53. In ignorance mutually "of fact as to fraud and forgery" in final judgment, relief was granted. See Settlement. ' —Maldaner v. Bmrhmis, 108 W. 25, 31. 54. A clerical error, "the northeast half" instead of "the east half" in a foreclosure judgment, appearing by the record as such, ' ' was com- petent for the court to correct in accordance with the facts, and without regard to time, since the rights of third persons had not intervened", and such correction "will not have the effect to change the judgment pronounced in the slightest degree, but merely correct the record evi- dence of such judgment". Packard v. Kinzie Ave., H. Co., 105 W. supra. —Bostwick v. VariVleck, 106 W. 387, 389. 55. Extrinsic evidence was held properly "admitted to prove that by mistake the lands described in the will were in fact located in sec. 22 instead of sec. 21 as stated in the will. ' ' 56. "A will or 'deed with a description otherwise uncertain should be construed With reference to the actual rightful state of the property at the time of its, execution, and extrinsic evidence of that state is admis- sible to aid in the construction'. Whitney v. Robinson, 53 W., 309 (See Construction op Deeds) ; (other cases) ". —Hartley v. Kraftczyk, 119 W., 352,~~358\ 57. Where in the bond, on appeal from the refusal of supervisors to lay out a highway, under sees. 1276-7, that 'such order' 'so appealed from shall (not) be' reversed', "the word 'not' of the statute, was omitted, making the bond nonsensical", it is held, — 58. "There is no reason" "why the logic of the rule that a word which is in place by necessary inference should be read as there, 59. And that any interfering word should be rejected as surplusage, idoes not apply very strongly to a statutory paper where the evidence is MONEY 755 conclusive that failure to insert the proper word was a mere inad- vertence". So held, arid judgment reversed, on such point. —Marlatt v. ChApmqm,, 160 W. 193, 196. 60. Established rules of vacation and amendment of judgments, restated. See Vacating Judgments. —Fischbeck v. Miel&nz, 162 W. 12, 15. 61. (As to amendment of records in county court under various con- ditions, and the procedure with forms applicable, — see Zimmerman's Probate Practice, Ch. 30.) MODIFICATION OP WILLS. See Descent and Distribution. Probate of Wills. Trust Varia- tion. , MONEY. See also Liability. Tender. Bankers and money-dealers, 15. Cannot attribute as money, 15. Bank-notes are money, 3. Not necessarily all, 11. Certificate of deposit: Payable in currency, 17. Also by statute, 18. Clearly negotiable, 17. Payable in current "funds," 17. Held not negotiable, 17. Currency : Coin and bank-notes, 6. Coin and paper; money, 7. May include current funds, 14. Does when money meant, 14. National bank-notes, currency, 13. ' Not legal tender, 13. Pnly bank-notes so issued, 12. Treasury notes, currency, 13. Are legal tender, 13. Deposit in bank, loan, 19. Agent deposits; takes risks, 20. Unless principal consents, 20. Depositor a creditor,- 19. Generic; includes coin, 1. Lawfully actually current, 2. ( Legal tender: Coined, generally, must, 8. Coined money not always, 5. Current, may or may not be, 9. Money, need not be, 5. National bank-notes, not, 13. Not necessary to money, 10. Paper may be refused, 8. Payment in either, good, 8. Treasury notes are, 13. Money had and received, 22. Action for defined, 22. Equity and conscience, 23. Obligations fdr money, 21. Treated as money, 21. Distinct from chattels, 21. XJ. S. bonds; certificates, 21. Paper, coined, money, 4. Beeovery for conversion, 24. Statute as to money, 16. As here set forth, 16. Not commodities, 16. 1. "Money is a generic and comprehensive term, of coin. It includes coin, but is not confined to it. It is not a synonym 756 PEOBATB AND GENERAL LA^V?, CODIFIED 2. It includes whatever is lawfully and actually current in buying and selling, of the value and as the equivalent of coin. 3. By universal consent, under the sanction of all courts everywhere, or almost everywhere, bank-notes lawfully issued, actually current at par in lieu of coin, are money. 4. The common term, paper money, is in a legal sense quite as accurate as the term coined money". 5. "To be money, part of the circulating medium, it is not essential that currency should be legal tender against the wishes of the person to whom it is tendered. Even coined money is not, under all circum- stances, legal tender. Sears v. Dewing, 14 Allen, 413 ; Mather v. ! Kinike, 51 -Pa. St. 425". 6. "Almost all civilized countries, including this country, have a mixed circulation of coin and bank-notes. These constitute the circula- tion of the country — its money ; and the general term, currency, includes both. 7. Currency, therefore, means money — coined money and paper money equally. But it means money only; 8. And the only practical distinction between paper money and coined money, as currency, is* that coined money must generally be received, paper money may generally be specially refused, in payment of debt; but a payment in either is equally made in money: — equally good. 9. The confusion in the cases appears to lave arisen for want of -proper distinction between money which is current and money which is legal tender. 10. The property of being legal tender is not necessarily inherent in money; it generally belongs no more to inferior, coin than to paper money ". 11. ' ' The term currency does not necessarily include all bank-notes in actual circulation; for all bank-notes are not necessarily money". 12. "Currency includes only such" "bank-notes which are issued for circulation by authority of law, and are in actual and general circulation at par with coin, as a substitute for coin, interchangeable with coin". 13. "National bank-notes, which are not legal tender, are now as much currency as treasury notes, which are legal tender". 14. "This construction of the term, currency, might, perhaps, prop- erly be extended to the term current funds. It must extend to the latter term whenever it is used in the legal sense of money. 15. Bankers and money-dealers cannot, by choice or use of terms, give the character and attributes of money to anything not money — to anything of less value than money". 16. "The legislature has doubtless power to make negotiable paper other than for, the payment of money (Price v. Ins. Co., 43 W. 267); but where a statute is plainly intended to apply to money, eVery term used to indicate money, not commodities, must be held to signify money in the sense in which that term is here used". MONUMENT 757 17. In Piatt v. Baink, 17 W. 223, (which is criticised but not expressly overruled), ''the certificate of deposit was payable in 'current funds' ", and therefore held not negotiable. Here the certificate of deposit "pay- able 'in currency', which also means money", is held, "therefore, clearly negotiable under the statute of Anne". 18. But it is also held that the amendment, ch. ,5, 1868, also makes the certificate in this case negotiable, and that "perhaps the amendment was in answer to" a suggestion of Dixon, C. J., in the Piatt case, "and was intended to overrule Ford v.' Mitchell (15 W. 305), Piatt v. Bank, (17 W. 223), and Lindsey v. McClelland, (18 W. 481)". Per Ryan, C. J. ' '—Klauber v. Biggerstajf,4?l W. 551, 557. 19. The deposit of money "is a loan to the bank, and the depositor becomes the creditor of the bank for the amount of his deposit. 20. When, therefore, the agent deposits money of his' principal to his own credit in a bank", he takes all the' risk, "unless it be done with the consent of the principal". See Principal, and Agent. —Sargeant v. Downey, 49 W, 524, 528. 21. "Obligations for the payment pf money", as U. S. Bonds and certificates of deposit, "in common parlance, are treated as money", in distinction from goods and chattels. See Construction op Wills. — Wolf, Extr. v. Schaeffner, 51 W. 53, 60. 22. "In. the language of Lord Ellenborough, C. J.; 'An action' for money had and received is maintainable wherever the money of one man has, without consideration, got into the pocket of another'. > (Cases) 23. Of course, this language does not apply to a; voluntary gift, but only to a case where the defendant has received money which, in equity and good conscience, he ought to pay to the plaintiff". —Glendale I. Assn. v. Harvey L. Co., 114 W., 408, 414. 24. Aa to administrator's recovery for conversion, on wrongfully obtained money from his intestate. See Actions by : Extr. or Admr. —Meyer v. Doherty, 133 W., 398, 403. MONUMENT. Amount found reasonable, 1. Expenditure before administration,, 1. 1. An expenditure before administration granted, by a sister of the deceased, of five hundred dollars m a $15,000 estate, an appropriate amount, for a monument, not being necessary, is. not "enforceable against the estate". See Administration Expenses. —Samuel v. Est. of Thomas, 51 W. 549, 552. 758 PROBATE AND GENERAL LAW, CODIFIED MORTALITY TABLES. See Computation op Estates, etc. MORTGAGES. See also Deeds. Land Contbact. Power. Sale op Realty. Administrator; not liable, 49. Not necessary party, 53. Administrator's realty sale, 12. Not cut off mortgage, 12. Assignment; without note, 60. Claims: Failure to present notes, 11, 48, 50. Bar to deficiency judgment, 48. Not bar foreclosure, 11, 48, 50. Covenant to pay, therein, 74. Note, fix interest terms, 79. Though note barred, 79. Defectively executed, 8. Void as to homestead, 8. Deficiency, against executor, 48, 54. Conclusive against him, 55, 56, 82. County court allow it, 57, 82. Not against heirs, 81, 82. No claim filed, 81. Whether allowance entitled, 54, 82. Definition; form, 42, 58. Intention; express promise, 46. Transfer as security, 45, 51. Discharge by quitclaim, 34, 68. Competent; show unpaid balance, 70. Foreclosure stand as such, 72. Vendor's lien for balance, 71. Not contradict by parol, 69. Discharge; not payment, 70. Does not carry debt, 1. Fee passes by foreclosure, 30. Fixtures as to mortgagor, 2. Foreclosure; object, 28. Admr., not necessary party, 53. Fraudulent 'release of, 50. Incident to the debt, 1. Debt, principal thing, 62. Interest of mortgagee: Discharge by quit-claim deed, 34. Interest in the land, 33. May pass by conveyance, 33. Not ousted by ejectment, 31. Possession of mortgagor, his, 32. Interest, on matured interest, 80. Exceeding 10 per cent annual, 80. Land contract, mortgage lien, 37, 64. Deed of homestead, wife signing, 37. Foreclosed as a mortgage, 6,5. Reconveyance unnecessary, 66. Satisfied by the payment, 67. Satisfaction by husband alone, 37,-38. Divested original grantee, 38. Limitation statute: Covenant under seal, 76. Foreclosure, twenty years, 77. Deficiency also, 77. Taxes likewise, 78. Six-year bar to notes, 9, 76. Deficiency judgment, 9. Not to foreclosure, 9. Note assignment: Carries mortgage with it, 1, 59. ,. Without formal assigning, 6. May be without mortgage, 10. Subsequent mortgage assignment, 36. Eecording ineffective, 36. Not a realty "grant," 63. Note and mortgage, personalty, 29. Note or bond, unnecessary, 74. Notes paid and satisfied, 15. Discharges mortgage, 15, 35, 61. Not independent property, 35. Parol : deed shown by, 39, 51. Bill of sale as security, 51. Clear and satisfactory, 41. Contemporaneous events, 40. Legal or equitable, 39. Purpose of writings, 47. Power to sell; noj mortgage, 44, 52. Purchase money mortgage, 24. Substituted mortgage, 25. Third party furnishes money, 24. Vendor's lien for, 71. Foreclosure for, 72. Without wife's signature, 26. Also substituted one, 27. Release of part premises, 14. Purchaser; subsequent mortgagee, 14. Remedies, note, mortgage, 43. Satisfied by co-executor, 7. MORTGAGES 759 Secure bond for support, 73. Several notes— continued How satisfied, 73. Bests upon time due, 19. Several notes; different times, 4, 16. Signature of wife: Interest default; all due, 20, 21. Homestead; invalid without, 3, 5. Part purchase money, 23. Two promises to pay, 75. Priority does not prevail, 20, 22. Without witnesses: Priority, not ratably, 4, 16, 17. Good between the parties, 13. Conflict; settled here, 18. Recorded; not constructive notice, 13. 1. "The mortgage is only an incident to x the debt. Whenever the debt is assigned, it carries with it the mortgage as an incident to it. The mortgage does not carry with it the debt, but the debt carries with it the mortgage". —Martineau v. McCollum, 3 Pin. 455, 456. 2. The mortgagor or his tenant cannot remove a fixture as against the mortgagee. See Fixture. —Frankland v. Mpulton, 5 W. 1. 3. The mortgage on the homestead ' ' would not be valid, even as against the husband, without the signature of the wife". — Williams v. Starr, 5 W. 534, 550. 4. A mortgage securing several notes due at different times, the notes are to be paid out of the security by priority, and not ratably. See Pay- ments. — Marine, Bank v. Inter. Bank, 9 W. 57. 5. A mortgage by a husband on a four story store homestead building without the wife's signature, is invalid. See Homestead. — Phelps v. Romey, 9 W., 70. 6. "The transfer of the notes (secured by mortgage) carries with them the interest in the mortgage ' '. without a formal assignment of the mort- gage. —Bice v. Grill, 12 W. 179, 182. 7. A mortgage can be satisfied by the co-executor alone. See Extrs. & Admrs. , —Wier v. Kosher, 19 W. 311. 8. A mortgage of the homestead and other lands defectively executed is void as to the homestead. See Husband and Wife. ■■ -r-Bait v. Eovle, 19 W. 472, 475. 9. "The six years statute of limitation constitutes no bar to a suit to foreclose the mortgage, although it might have been pleaded to a suit upon the notes", no judgment for deficiency being asked for or included. —Wiswell v. Baxter, 20 W. 680, 681. 10. Notes secured by mortgage may be transferred by the holder by endorsement without transferring any interest in the mortgage, if that is the agreement. —Rolsto-n v. Brookway, 23 Wi 407, 408. 760 PROBATE AND GENERAL LAW, CODIFIED 11. Failure to present as claims, notes secured by mortgage, "does not bar the holder's right to pursue his remedy by foreclosure, and enforce his specific lien upon the property subject to the mortgage". 12. The "right of the holder of the mortgage was not cut off by the administrator's sale under the license" by the court, there being no men- tion of the mortgage in the deed or in the proceedings. —Edgerton v. Schneider, 26 W. 385, 389. 13. In case of a mortgage without witnesses being recorded, the record thereof is not "constructive notice to a subsequent purchaser"; but the mortgage is good as between' the parties. See also Deeds. —Gilbert v. Jess, 31 W. 110, 116. 14. A mortgagee cannot release a portion of the mortgaged premises to the hurt of a subsequent mortgagee or purchaser of another part of • the, premises. See Marshalling Assets! — Kelley v. Whitney, 45 "W. 110, 118. 15. Where notes are "paid and satisfied, the mortgage (securing them) was also satisfied and discharged". —Jaffray v. Cramp, 50 W. 349, 354. 16. "The general rule, and the one which has been, recognized by sev- eral' decisions of this court, is, that where a mortgage is given to secure several notes or installments belonging to different persons, the proceeds of the mortgage should be applied first to the payment of the notes or installments first falling due, and so in their order according to the time of their maturity. 17. This rule seems to be' supported on the ground that the several holders of such notes or installments are separate and distinct mortgages, and that they are subsequent mortgagees whose notes or installments subsequently fall due, and respectively in such order. (Cases) ". 18. While there is conflict among the authorities elsewhere, this "must now be considered the settled law upon the subject in this state". 19. ' ' The above rule rests entirely upon the priority of the time when the several notes or installments become due. 20. In this case, all of the several notes, by the terms of the contract, are to become due at the ' same time, on the failure to pay interest, although, by other terms, expressed as well in the contract, they are to become due at different times"; and there being a "default in the pay- ment of interest, there is but one time of payment in all or any of the notes, and that is 'at once'. This being so, the general rule as to priority of right depending upon priority of time does not prevail." 21. "In U. S. Bank v. Covert, 13 Ohio, 240, the precise question is decided, and it is held that upon a failure to pay a certain smaller note a larger note became due also, according to a condition in the mort- MORTGAGES 761 gage, and that therefore 'both the note then payable and the larger note became due together, and both should 'be satisfied by the sale'. In this case it was held, also, that, without this condition, the general rule would prevail". >" 22. In Marine 'Bank v. International Bank, 9 W. supra, the fore- going Ohio ease "was directly approved as containing the true rule when upon" a condition all of several notes should become due at the same time". 23. "In Church v. Smith, 39 W. 492, the same principle is recognized, and it was held in effect that the owner of the first note given for the purchase money of the land, on strict foreclosure of the land contract by the owner of the other notes which fell due subsequently, by reason of default in the payments, was entitled only to 'a proportionate and' pro rata share in the land, and had no priority of right over the owner of the other notes." —Pierce v; Shaw, 51 W. 316, 318. 24. Where J. furnishes the money and takes a mortgage, on premises' purchased by M. of his father, who receives the money, such mortgage is a purchase money mortgage, though signed also by M's wife, and "in substance and legal effect the transaction' was the same as though the , mortgage had been executed to the father for the purchase money, and by him assigned to the plaintiff", J. 25. And where a mortgage ' ' was substituted for the original mortgage-' for the accommodation of M. and his grantees", it "is necessarily a security for purchase money also. The substitution did not and could not change the character of the original transaction. 26. Without the signature of the wife, ' the first mortgage would have been a valid lien upon all the land ; for, when it was executed, no part of the land was the homestead of the mortgagors. Neither would the - wife have had any right of dower against the mortgage, because it was for purchase money. Sec. 2163 ' '. 27. Likewise, "The substituted mortgage," though without the 'wife's signature would not be "less valid or paramount as against those claims ■ ing under the mortgagors". —Jones v. Parker, 51 W. 218, 223. 28. "In the language of Harris, J., in Holcomb v. Holcomb', 2 Barb. 23, 'the object of the bill (to foreclose) is to vest in the purchaser under the sale, made by virtue of the decree of foreclosure, the same „ title which- the mortgagor had at the time of the execution of the mort- gage'. See Tallman v. Ely, 6 W/244". —Whitney v. Robinson, 53 W. 309, 314. 29. "A note and mortgage is personal property both in this state and in ,the state of New York, and presumably in the state of New Jersey, and upon the death of the owner in another state, the title vests in his administrator appointed at the place of his death, or, if he die testate, in the executor appointed there. Doolittle v. Lewis, 7 Johns, Ch. 46-9". —Hayes v. Prey, 54 W. 503, 517. 762 PROBATE AND 'GENERAL LAW, CODIFIED i 30. In this state ' ' the fee no longer passes to the mortgagee, even upon condition broken, and can only pass by means of the mortgage, by . foreclosure and sale. Wood v. Trask, 7 W. 566, and other cases in this court. 31. On the other hand, when the mortgagee has gone into the posses- sion of the' mortgaged premises under the mortgage, the mortgagor has not sufficient title in fee or otherwise, to bring ejectment against him and obtain the possession (Tallman v. Ely, 6 W. 244; Hennesy v. Farrell, 20 W. 42) ; / 32. And to the extent of the mortgagee's interest, whatever it may be called, and for his protection, the possession of the mortgagor and those holding under him is the possession of the mortgagee, and they are estopped from denying his title or of claiming adversely to him. Avery v. Judd, 21 W. 262. 33. Whatever interest in the land the mortgagee obtains, less than the fee, under these decisions, and whatever it may properly be denominated, it is certainly an interest, and a substantial interest, which may pass by a conveyance. , 34. By pur statute (sec. 2203), 'conveyances of land, and of any estate or interest therein, may be made' by deed', etc. It follows, therefore, that, according to the old or the modern theory of mortgages, a quit- claim deed by the mortgagee will operate as a discharge of the mort- gage." , (Quoted and approved, in Latton/v. McCarty, 142 W. post). —Mason v. Beach, 55 W. 607, 612. 35. "A mortgage is not property at all independent of the debt it secures. The extinguishment of the debt ipso facto et instanti extin- guishes the mortgage". The record entry of the release is merely evi- dence thereof. Martineau v. MeCollum, 2 Pin. supra. 36. After transfer of the note by blank endorsement, and delivery therewith of the mortgage, without record thereof, a subsequent assign- ment thereof and recording the same, while "in possession of" the first vendee, the second vendee does not "become the bona fide holder" by so purchasing for value. —Fred Miller B. Co. v. Manasse, 99 W. 99, 102. 37. By a deed, of a homestead, absolute on its face, given by husband and wife to secure a debt, taking a land contract back, "the legal title did not pass," and on payment of the debt no deed back was neces- sary, but all that the grantee "was entitled to demand was a satisfac- tion," of such "mortgage lien of record," 38. And a deed thereof by such grantee by direction of the husband, the wife consenting in advance, to a third party, he having knowledge, "did not transfer title to the property," and a prior, satisfaction of the land contract of record by the husband divested the original grantee "of his entire interest in the premises." —Cumps v. Kiyo, 104 W., 656, 659. MORTGAGES 763 39. "Whatever form a conveyance of real estate may 1 take, it may be shown in equity, by parol, to be a mortgage, if that was its purpose in fact" "whether the question be raised by a direct action for equitable relief or be incidental to legal relief." That "the mortgage feature was omitted from it by fraud or mistake", need not be shown. (Cases) 40. An absolute deed and contemporaneous transactions evidenced by writings, referring to such deed but not as to its being security, are held to be a mortgage, i • 41. Though "there is no doubt but that a conveyance, absolute in form, cannoj; be turned into a mortgage without clear and satisfactory evidence that it was so intended by the parties thereto." 42. "It does not require any particular form of words to make a mortgage. Mere form has very little to do with the matter. It is a contract whereby an interest in property is pledged as security, which creates the relation of mortgagor and mortgagee. ' ' (Approvingly quoted in Brown v. Johnson, 115 W., 430, 439.) —Jordan v. Est. of Warner, 107 W., 539, 552. 43. The remedy for deficiency in foreclosure is not inconsistent with the remedy at law on the note. See Remedies. ' — Carpenter v. Aleachem, 111 W., 60, 63. 44. Power to sell in a will does not confer power to mortgage. See Sale of Realty. ' —Bloor V. Smith, 112 W., 340, 347. 45. "A transfer of property as security, regardless of the form thereof, is a mortgage, and, as regards rights or remedies, must be dealt with as such. (Cases)" 46. If the^cireumstanees show "that the parties intended to create the relation of debtor and creditor between l^iemselves or to recognize that relation as existing as a basis for a mortgage", such purpose is effectuated without an "express promise to pay which generally char- acterizes the creation of such principal relation. (Cases)." 47. "Parol evidence is admissible to show that the purpose of a writ- ing, or several writings taken together, was to create the relation of mortgagor and mortgages", though not so indicated on the face. (Cases). • —Beebe v. Wis. M. L. Co., 117 W. 328, 332. 48. After the time for filing claims against the estate of a deceased has expired, and no claim on the note having been filed, then "after such an extinguishment of a claim no foundation for a personal judgment remains on the note, though the right to a judgment of foreclosure of the mortgage to enforce the; lien still existed," and a deficiency judgment against the executor, "was without authority and therefore erroneous". —Pereles v. Leiser, 119 W., 347, 352. 764 PKOBATE AND GENERAL LAW, CODIFIED 49. Administrator is not personally liable on notes and mortgage of estate realty. See Salk of, Realty. — Wis., Trust Co. v. Chapman, 121 W. 479, 486. 5(X Failure to file a claim on the note, does not prevent a mortgage foreclosure judgment, nor> does a recorded fraudulent release of the mortgage protect innocent holders. See Claims. i —Franklin v. Killilea, 126 W. 88, 95. ,51. A conveyance by deed or bill of sale, as security, is a mortgage, and may be so shown by written or parol evidence, in equity or at law. (Many cases). —Smitji v. P finger, 126 "W. 253. 52. As to power to mortgage, under power of sale and management. See, Power. — Lueft v. Lueft, 129 W. 534, 540. 53. "Whatever liability there was of the estate on account of the mortgage indebtedness, from any point of view, was manifestly enforce- able only by proper proceedings in the county court. " "The adminis- trator was not a necessary or proper party to the foreclosure as regards the liability of the estate or any claim enforceable in the county court." See also Contingent Claim. — In re Est. of Hanlin, 133 W., 140, 143. 54. Where a deficiency judgment was obtained against the executor as such, on foreclosure proceedings after "the time for filing claim had expired" in the estate, and no claim for the note "was ever filed", — it is not determined "whether the judgment creditor" "would be entitled to allowance of his claim against the estate as matter of right". 55. "It is sufficient that he was entitled to enforce it against the executor as executor of the estate", "and collect it out ofany property which might be found belonging to the estate in the possession of the executor". 56. The judgment "is conclusive at least against the executor and could be enforced against him in the usual manner for the collection of judgments". 57.- So it being "proper" "to be paid by the executor, it was per- missible for the county court to allow the amount of such judgment and order its payment, that being simply a mode of aiding in the collec- tion thereof." (Distinguished in Schmidt v. G-renzow, 162 W- post.) —Pereles v. Leiser, 138 W. 401, 403. 58. "A mortgage in this state merely gives a lien upon the land mort- gaged for the sum of money secured thereby. Brinkman v. Jones, 44 W. 498. 59. A mortgage securing a promissory note passes as an incident upon transfer of the note. Kelley v. Whitney, 45 W. 110. 60. And an assignment of the mortgage alone and separate from the .MORTGAGES ' 765 note, it was given to secure will not transfer the note unless it is in fact delivered. (jCases). . :6L A mortgage is extinguished by payment of the debt it was given to secure. Fisher- v. Otis, 3 Pin. 78. 62. It therefore follows that the debt secured by the mortgage is the principal thing and the mortgage the incident. 63. Hence a mortgage given to secure a note is not a 'grant' within the meaning of the statute", sec. 2077; which "applies exclusively to real estate" and not "to personal property". So far as prior- "cases hold that sec. 2077 applies to mortgages they must be regarded over- ruled". See also Gift. —Tobin v. Tobm, 139 W. 494, 498. 64. An absolute deed of a homestead "used for the purpose for which it was executed by the wife", to secure the husband's indebtedness, though "her knowledge as to the amount to be secured was wholly indefinite", satisfies "'the statute (Sec. 2203)" as to the wife's execution, and is held, 65. Properly foreclosed as a mortgage, and that "it is in no wise essential to the re-establishment of defendant's complete legal title" to require a re-conveyance in ihe judgment of foreclosure "in case of redemption". 66. "The legal title has at all times remained in the defendants (grantors), and this deed, accompanied' by the adjudication that it is a mere mortgage, creates nothing but a lien thereon. Crimps v. Kiyo, 104 W. supra. 67. It will be fully discharged by satisfaction of the judgment, which may be recorded in registry of deeds. Sec. 2236". — (White v. Darnell, 141 W. 273, 275. 68. The giving of a deed containing 'all the estate, right, title, interest, etc.,' in the premises, "by the mortgagee to a mortgagor or the owner of the equity of redemption operates, to satisfy and discharge the mort- gage. (Many, cases) ". , , 69. And,, it is held, "that the parties .could" not "by parol evidence contradict their written agreements embraced in the deed," and a find- ing on such evidence "that this mortgage was a subsisting valid con- veyance", was error/ 70-. But "the discharge of this mortgage, securing payment of an unpaid balance of the purchase money, does not per se establish pay- ment thereof, and it was competent to show that it remained unpaid". 71. "-Under these facts",— showing "that $200 of the purchase money remained unpaid"— "plaintiff clearly had a right to a vendor's lien on the premises for this balance." 72. And the judgment of foreclosure, is modified and allowed to stand, as in effect a foreclosure of such vendor's lien. -^-Lattcm v. McCwrty, 142 W., 190, 195. ) 766 PROBATE AND GENERAL LAW, CODIFIED 73. How satisfied when given to secure a bond for support, after decease of the mortgagee. See Bond fob Maintenance. — Rosenthal v. Rosenthal, 146 W. 41, 45. 74. "There is no legal necessity that a bond or note exist as collateral to the mortgage. The covenant to pay a specific sum may be contained' in such collateral instrument or in the mortgage itself. 75. There may be two promises, one in the note and another in the mortgage; one on simple contract and the other a covenant under seal. (Citation)". 76. Where the note is barred by the six-year statute, and where, as here, "the covenant to pay is found in the mortgage and the mortgage is a sealed instrument, 77. Not only the right to foreclose but the right to a personal judg- ment for deficiency would run twenty years from the time of default' ' ; 78. "And on the authority of Endress v. Shove, 110 W. 133," such judgment was held to include "taxes delinquent by default of the mort- gagor, there being an express covenant on the part of the latter to pay those taxes". 79. "The note, although barred, yet may be taken to fix the terms of the interest in the amount secured by the lien. ' ' 80. Where the specified interest was eight per cent., and ten per cent, on both matured principal and interest payments after due, this being "the contract of the parties", such interest was allowed, except so much as exceeded "the maximum of ten per cent, per annum simple interest permitted by 'sec. 1689". —Ogden v. Bradshaw, 161 W. 49, 53. 81. A judgment on foreclosure for deficiency against the heirs of the deceased mortgagor, after estate settlement and no claim therefor filed, is reversed on the authority of Pereles v. Leiser, 119 W. supra. 82. "The ease of Pereles v. Leiser, 138 W. supra, is" not "authority for the right to a deficiency judgment", as there the judgment "against the executor for a deficiency had to be treated as a valid judgment because unappealed from for two years", and the proceeding there "was only another way of collecting the judgment". See also Contingent Claim. —Schmidt v. Grenzow, 162 W. 301, 302. MORTMAIN. English, mortmain statute, 4. In force; etc. — continued Deed, year before decease, 4. Not in British colonies, 1. In force in Pennsylvania, 5. Not in force here, 2. Not in other states, 5. Silence of legislature, 3. 1. "The statute of mortmain, 9 George II c. 36", "has never been adopted or in force here". "It does not appear ever to have been held to be in force in any of the British colonies". MUTUAL ACCOUNTS 767 2. "If the English statute of mortmain was not in force in Wisconsin while it was part of or appendant to an English colony, it seems very certain that it has never since had any force here. ( Citations) ' '. 3. "The poor we have always with us. When charitable bequests in this state begin to outrun reasonable provision for the poor, and seriously impede the alienation of property, it will be time enough for a statute of mortmain. The silence of the legislature hitherto, and the observation of all men, are sufficient to show that the time has not yet come, if it ever should". —Dodge v. Williams, 46 W. 70, 92. 4. ("The statute of 9 George II c. 36, is now the leading English statute of mortmains. It declares that no lands or monies to be laid out thereon, shall be given or charged for any charitable uses unless by deed, executed in the presence . of two witnesses, twelve months before the death of the donor, and enrolled in chancery within six months after its execution, and be made to take effect immediately without power of revo- cation. The two universities, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, were excepted out of the act". 5.-' ' The statutes of mortmain are in force in the state of Pennsyl- vania". "In the other states, it is understood that the statutes of mort- main have not been re-enacted, or practiced upon". —Kent's Com. Note, Vol. 2, 281, 6th ed.) MOTION. See also Okdebs. 1. "Oral testimony of , witnesses upon the hearing of a motion" must be ignored on appeal, and cannot be allowed, there being "no authority f or it ". " The code does not sanction it, and no such practice exists inde- pendently of the code". —Carr v. Com.- Bank, 18 W. 255, 256. MUSICAL INSTRUMENTS. See Household Furniture. MUST. See Mat. MUTUAL ACCOUNTS. See Account Books. 768 PROBATE AND GENERAL LAW, CODIFIED NAMES. See Parties. NECESSARIES. See also Husband and Wipe. Infants. ' Parent and Child. Artificial teeth are, 11. Not liable, ipso faeto, 6. Definition, legally, 4. Physician's bill: Guardianship: : ' Wife apart from husband, 10. Spendthrift; admissions, 2. Presumption , of liability, 7. Necessaries furnished, 3. Wife not liable, if husband, 12. Minor child: express promise, 8. Wife: to charge husband, 1. Not on express contract, 9. Competent witness^ 5. Or implied from facts, 8. 1. "In certain cases the law implies an authority on the part of the wife to charge her husband in procuring necessaries for herself and family, growing out of his obligation to support her." ' —Savage v. Davis, 18 W. 608, 613. 2. As to admissions of a ward under guardianship ' ' for wasting his estate by excessive drinking, " as to a debt ' ' contracted before the guardianship," it is said: "We see no reason why the admissions were not competent. 3. And if it had been contracted during the guardianship, we are inclined to think they would have been competent, because the debt appears to haye been for necessaries." —McNiffht v. Est. of McNight, 20 W. 446, 448. 4. "Necessaries are such articles of food, or apparel, or medicine,' or 1 such medical attendance and nursing, or such provided means of locomo- tion, or provided habitation and furniture, or such provision for her protection in society, and the like, as the husband, considering his ability and standing, ought to furnish to his wife for her sustenance, and the preservation of her health and comfort". —Warner v. Reiden, 28 W. 517, 519. 5. On either "the implied agency of the wife" or "on the duty which grows out of the marital relation", "we think the wife a competent witness to prove the cruelty and misconduct of the husband, and that he drove her from home without provision for her maintenance and support", in an action by a third party against the husband for neces- sities furnished. — Bach v. Parmely, 35 W. 238, 240. 6. "A husband is not liable, ipso facto, for necessaries furnished his wife without his consent. It is only under special ' circumstances and conditions that he is liable therefor. (Cases).'' NEXT OF KIN 769 7. "Hence, when a third person gives a wife credit for. necessaries, there can be no presumption that the husband is liable to pay for them".. —Brown v. Worden, 39 W. 432, 433, 8. The father is liable for necessaries furnished his minor child, ordi- narily only upon an express or implied promise. See Parent and Child. — Judge v. Barrows, 59 W. 115, 117. 9. As to an infant's liability on implied but not on express. contract. See Infants. —Jones v. Valentines' Sch. of T., 122 W. 3l8, 320. 10. Wife living apart from husband, physician's bill, and wife's testi- mony. See Husband and Wife. — Morgenroth v. Spencer, 124 W. 564, 566. # 11. Artificial "teeth come within the class of articles constituting 1 'necessaries' which a husband may be, bound to furnish his wife." Gil- man v. Andrus, 28 Vt, 241. 12. While "plaintiff had no personal dealings with the defendant's husband," "if the articles were purchased under circumstances indi- " eating that they were supplied her in the usual manner as necessaries for which a husband is liable as such", the wife is not liable. So held. -^Clwrlt v. Tenneson, 146 W., 65, 67. NE EXEAT. See Writ of Ne Exeat. NEGOTIABLE INSTRUMENTS. See Promissory Notes, etc. NEWLY DISCOVERED EVIDENCE. See Trial. See Trial. See Kin. , Zimmerman — 49 NEW TRIAL. NEXT OF KIN. 770 PROBATE AND, GENERAL LAW, CODIFIED NON-EXPERT. See Expert Testimony. NON-NEGOTIABLE INSTRUMENTS. See Promissory Notes, etc. NON-RESIDENT ADMINISTRATOR. See Foreign Executors and Administrators. NONSUIT. Proper equity practice, 4. Upon opening statement, 2. Not prevail here, 2. Upon plaintiff's evidence, 3. Undisputed other facts, 3. Upon plaintiff's, etc. — continued Where conflict of evidence, 3.- When plaintiff rested, 1. ' Should have been granted, 1. Defendant supplies evidence, 1. 1. ' ' There is a class of cases in which, when the plaintiff rested, a non- suit should have been granted for want of sufficient evidence to support a judgment in his favor. Yet it has been uniformly held that, in any such case, if the defendant gives evidence which supplies the defect in the plaintiff's proofs, the refusal to nonsuit will not work a reversal x>f the judgment. Barton v. Kane, 17 W. 37, and cases' cited in V. & B.'s Notes". —Eounspmltv. Pease, 45 W. 506, 511. 2. "The practice of granting a nonsuit upon the opening statement of the case by counsel for the plaintiff, does not prevail in this state. Fisher v. Fisher, 5 W. 472". — Smith v. Commonwealth Im. Co., 49 W. 322, 327. 3. While, the books say that in considering a nonsuit, "the trial court should look only to the plaintiff's evidence", "that does not mean that a trial judge must shut his eyes to undisputed facts, whether established -by one party or the other. It means that the evidence of the plaintiff only is to be considered in case of conflict between that of the defendant alnd that of the plaintiff where there "is room for different reasonable inferences." —O'Brien v. C. St. M. & 0. B. Co., 102 W. 628, 632. 4. "In a suit in equity the proper practice upon a motion to dismiss at the close of the plaintiff's evidence (in circuit court) is to make find- NOTICE 771 ings and render judgment on the merits ; not, as in a suit at law, to enter judgment of compulsory non-suit. (Citations;)". —Spuhr v. Kolb, 111 W., 119, 121 . NOTES. See Promissory Notes, etc. NOTICE. See also Jurisdiction. Publication. Writings. Administrator de bonis non, 19. Adoption: parent affected, 18. Appearance or consent, 5. Assignment of estate, 3. Publication as to account, only, 3. Foreign heirs not appearing, 3. Without notice; not conclusive, 16. Infants: notice ineffective, 6. Defective or otherwise; 6, 7. Guardian ad litem necessary, 7, 9. . Not charged with laches; consent, 7. Unrepresented and unharmed, 14. Informalities, not vitiate, 2. Knowledge: unrecorded deed,' 13. Public administrator, 22. Publication; county court: Contradictory proof of, 21. Defective; lapse of time, 15. Eecord merely silent, 15. Publication — continued Effective for jurisdiction; 4. Pinal account; not assignment, 3. Prescribed by court, 4. Put a man on inquiry, 1. Bumor, suspicion, 1. . Rumor, suspicion, insufficient, 1. Sale of realty: suit nature, 8. Infants sale; no notice, 10. Guardian acts; no notice, 12. Others not entitled to, 11. Notice as in other suits, 8. Trustee's, in county court, 20. "Will construction,' 4. Publication; binding, 4. Will probate; necessary, 5. Set aside; notice proof, 17. 1. "Whatever is sufficient to put a man upon inquiry is good notice; that is, when a man has sufficient information to lead him to a fact, he shall be deemed conversant of it. But mere rumor or suspicion of a defect in the title, will not be sufficient to operate as notice. ' ' — Lamont v. Stwnson, 5 W. 443, 447. 2. "The general rule in respect to notices is,, that mere informalities do not vitiate them, so long as they do not mislead, and the notice gives the necessary information to the proper parties". Held valid as to notice of appeal filed with the clerk instead of served as the statute requires. — Black v. C. & N. W. By., 18 W. 208, 209. 3. Notice by publication for hearing on the final account only, as to foreign heirs not appearing, for the assignment of the estate, is held to be "no notice, either actual or constructive". See, Judgments. — Ruth v. Oberbrunner, 40 W. 238, 269. 772 PEOBATE AND GENERAL LAW, CODIFIED 4. Before , the statute specifically prescribing notice, held that three weeks' notice by publication prescribed by the court, "gave the court , jurisdiction of all the persons interested in the proceedings, and binds them by the order", in construction of a will. See Construction of Wills. —Appeal Of Edw. Schaeffner, 41 W. 260, 264. 5. Under the statute (see. 3787) appointing a time and place for proving a will, "the object and purpose of the notice are, that all persons interested may appear and contest the validity and probate of the will ; and if such notice is not given, and any party interested does not appear or otherwise consent to the proceedings, as to such party, at least, they are invalid". > ' 6. ' ' The defective publication or the want of personal notice or appear- ance, as to them (infant heirs), are quite immaterial. 7. If the notice had been sufficient as to all persons of proper age, and the proceedings otherwise regular, the infant heir would not be bound unless represented by guardian, and such infant could not be charged with laches, consent or ratification during the time of minority". 8. A proceeding for the sale of realty "is in the nature of a suit, and the defendants must have notice as in other cases of suits at law or in equity, and the want of notice would be attended with the same con- sequences." 9. "Although the statute is silent 1 as to the appointment of guardian (ad litem) to represent infant heirs and other persons under disability at the probate of wills, such appointment is incidental and necessary in all cases where notice to persons interested in the estate is required ; and, if not so represented, the proceedings as to such persons will be void". See also Jurisdiction. — 'Dell v. Rogers, 44 W. 136, 168. 10. "That the legislature could authorize the sale of the lands of minors or insane persons to pay debts, or for their support, without notice to any one, is perfectly clear from the nature of the case. 11. In the absence of any statutory provision declaring that certain persons should be considered interested in such proceedings, no one would have any interest in the estates of such wards which would entitle them to any notice of a proceeding to sell them". 12. And when "the guardian represents his ward and acts for him" in the sale of real estate, no notice to the ward is' required. See Incom- petents' Sale op Realty. —Mohr v. Porter, 51 W., 487, 504. 13. "Knowledge of an outstanding unrecorded conveyance "■ by a pur- chaser prevents him from taking advantage of or being protected by such failure of public notice by record. See also Deeds. —Rowell v. Williams, 54 W. 636, 639. 14. Where minor heirs were unrepresented, and unharmed, probate proceedings were held valid. See Jurisdiction. —Helms v. Pfister, 59 W. 186, 193. NOVATION 773 15. Where the proof of publication showed blank weeks of publica- tion, m a proceeding of probate otherwise correct, fifteen years after, "the validity of the probate" was presumed, the record being merely silent. , See Jurisdiction. , —Portz v. Schantz, 70 W. 497, 505. 16. The final judgment under sec. 3940, "is not conclusive as against those claiming under the will, without notice or opportunity of being heard. Bresee y. Stiles,' 22 W., 120; (other eases),". See also Judg- ments. , —Jones v. Roberts, 84 W., 465,471. 17. Probate of a will is set aside, on failure of record proof, and of 'oral proof to establish a sufficient notice. See Jurisdiction. —rHemin'way v. Reynolds, 98 W. "501, 506. 18. The effect of no notice in adoption proceedings, is only as to the parent not notified. See Adoption. . • — Parsons v. Parsons, 101 W, 76, 81. 19. As to notice unnecessary on appointment of an administrator de bonis non. See Admr. de Bonis Non. —Hubbard v. C. & N. W,. R. Co., 104 W., 160, 165. i - ., 20. Notice to interested parties in a trustee's sale of realty proceed- ing by county court order, is jurisdictional. See Sale of Realty. , —Bloor v. SxnitK, 112 W., 340, 348. 21. A contradictory proof of publication, held insufficient to give jurisdiction. See Publication. —Flood v. Kerwin, 113 W., 673, 678. 22. The appointment of the public administrator, "may properly be' made without nqtice". See also Public Administrator. —Jordan v. C. <& N. W. R. Co., 125 W, 581, 587. NOVATION. 'Acceptance \pe implied, 20. Appear by circumstances, 23. Not express, or writing, 22. Benefit of third person, 18. Not novation contract, 18. Case; informal assent, 19. ' Case stated; exchange bill, 12. Case stated ; decedent, 1. i Case stated j no notice, 13. Case stated'; 1 order, 9, 10. Clear case /stated, 11. Definitions; principles, 3, 5. Definitions, etc. — continued All three must assent, 17. Essentials thereof, stated, 21. Gift not an element, 2. , Civil law different, 2. New obligation for another, 7, 17. New contract must be valid, 8 One debtor for another, 5, 7, 16. Part of common law, 2. Pay debt to' third person, 6. Mutual agreement necessary, 17. All three must assent, 17. Informal assent, 19. 774 PROBATE AND GENERAL LAW, CODIFIED Note of deceased person, 1. Notice to payee, essential, 13. Agreement to pay heirs, 1. Privity in all cases, 14. Not the legal holders, 4. Transfer must be complete, 15, 1. Where the defendant D. was indebted to J., and J. was indebted by note to M. deceased, "and, in consideration of the discharge of the indebtedness of D. to him, D. agreed to pay the indebtedness of J. to" the heirs of M., and such heirs "assented to the substitution;" and it appearing that ' ' M. died intestate, and leaving no debts nor any estate other than this note, ' ' and there having been no administration proceed- ings on . his estate ; it is held that the agreement cannot be sustained, the heirs of M. not having title to the note. See also Personal Estate. 2. The principle involved in the contention that ' ' the agreement might be supported as a gift or donation from J. to the plaintiffs (heirs of M), "may have been recognized by some of the earlier authorities as ait ingredient of novation by the civil law, before the doctrine of novation became a part of the common law, and modified, by it." , 3. "But now all the authorities, both English and American, concur in the holding that the third person in the novation contract should be indebted to the first, and should assent to the discharge of the first," and that all of the three parties should concur in the agreement." 4. "There is no pretense in this case" of a gift of donation "and the only reasonable construction of the agreement is, that the defendants should pay this note, which belongs to the estate of M., to the plaintiffs, assuming that they were the legal holders thereof, ' ' and that not being the case "the non-suit was properly granted." — Murphy v. Hcmrahcm, 50 W. 485, 489.' 5. ' ' Novation means simply the substitution of one debtor for another ; and unless the arrangement between the parties went to the extent of binding" the party substituted as debtor, "to pay the debt of the defendants (the original debtor), it was not a good novation, and the defendants are not discharged," though the creditor and original debtor agreed to the substitution and though the latter credited the substituted debtor with the amount. 6. "Of course, if a creditor direct his debtor to pay the debt to a third person, and he does so, the debt is thereby discharged. But this is not such a case." — Lynch v. Amtin, 51 W. 287, 289. 7. " 'Novation means simply the substitution of one debtor for an- other,' — Lyon, J., in Lynch v. Austin, 51 W. supra, — or it is the sub- stitution of a new obligation for an qld one, which is thereby extin- guished. Bronson v. Fitzhugh, 1 Hill 186." 8. "Where there is a novation by the substitution of a new contract for an old one, the .new contract must be a valid one upon which the creditor can have his remedy. Hosack v. Rogers, 8 Paige, 238; Clark v. Billings, 59 Ind. 509." — Gitichard v. Brande, 57 W: 534, 536. NOVATION * 775 9. "P. owes the plaintiff $300. The defendant owes P. this amount and P. gives the plaintiff an order on the defendant for it, and he accepts it, and P., at the same time, enters into a written agreement in the presence and with the assent of the plaintiff, that the defendant ^hall pay the order. A clearer case of novation could not be stated. 10. The written contract, to the extent of this $300, was made expressly for the plaintiff's benefit, and he is so much a party to it, and has such a direct interest in it, that he could have sued upon it if no order had been given ; and the order makes the case still stronger as to his con- nection with the contract, for the order is conditional upon the subject matter of the contract. Murphy v. Hanrahan, 50 W. supra.',' —Cook v. Durham., 61 W. 15, 19. 11. "It is a clear case of novation. The defendants owed the laborers more than they had paid them. The laborers owed their boarding-house keepers just that amount. The defendants, by the assent of all parties concerned, retained said amount to be paid to the boarding-house keepers, and the laborers virtually discharged their claims for labor, and receipted them to the defendants, and the boarding-house keepers dis- charged the laborers on such understanding. This is a void arrangement. The defendants withhold moneys that by this arrangement belong to the boarding-house keepers, or to this plaintiff as their assignee. This ,is a very common business transaction. 12. In Sharpless v. Welsh, 4 Dall., 279, A. placed in the hands of B. 1 a bill of exchange, and ordered B. to negotiate it and pay the proceeds to certain creditors of A.; and B. promised to do so, and notified the ^creditors of the order. This was held to be a valid novation." — Sterling v. Byan, 72 W. 36, 40. 13. In a purchase of a car-load of corn, and re-sale, the first vendee mailed an order to his vendees to "return proceeds" to the original vendor, and it is said: "In all such cases, whether it is an attempted assignment of a fund as such or a novation, notice to the creditor or payee is essential. 14. There must be privity between them in all cases, and until the payee has notice of the order or draft the debtor may revoke or counter- mand it. The money or fund still remains under his control." (Many cases, and supra.) 15. ' ' The transfer must be complete so as to give the creditor or payee the right to sue for it, and the drawee be liable to pay it. (Cases) . And this is an indispensable principle in cases of novation." (Cases). In- effective. — Lane v. Magdeburg, 81 W. 1 , 344, 348. 16. "Novation of debtors means the substitution of one debtor for another. 17. It can only take place by mutual agreement, to which the creditor, 776 PROBATE AND GENERAL LAW, CODIFIED the old debtor, and the new debtor assent, and by which the old obliga- tion is extinguished, and a new and valid obligation is created, and takes the place of the old one. (Cases supra)." —Bohn Mfg. Co. v. Beif, 116 W. 471, 480. 18. A novation contract does not enter into "an agreement by one person with another for the benefit of a third", which "is binding regard- less of the relations between such other and the third person", there being sufficient consideration. — Smith v. Pfluger; 126 W. 253, 262. 19. Following Bohn Mfg. Co. v. Reif, 116 W. supra, novation is sus- tained where the debtor transferred to a third party realty and per- sonalty on the premise that the transferee would pay a certain promissory note, and where the debtor shortly afterward told the holder of the note "of the arrangement and" he "said it was all right" and "he would accept ' ' such person and release the debtor. — Hemenway v. Be&cher, 139 W. 399, 401. 20. "It is not required that acceptance of the terms of novation be shown by express words, but it may be implied from the facts and cir- cumstances of the transaction and the conduct of the parties in relation thereto". —Bishop B.-B. Co. v. Keeley, 160 W. 546, 548. ■ 21. " The essentials of a novation are a mutual agreement between the debtor, his creditor, and a third person by which such third person agrees to be substituted for such debtor and the creditor assents thereto, extinguishing the obligation of such debtor to such creditor and creating one in place thereof of such third person to such creditor. Hemenway v. Beecher, 139 W. supra. ' ' 22. " It is not necessary to a substitution of debtors that the assent of the creditor to take a new debtor in place of the old one should be given by any writing or by express words. 23. The fact is the vital thing. If that appears clearly by circum- stances and the other essentials also appear, they establish a novation". (Cases) . — T. W. Stevenson Co. v. Peterson, 163 W. 258, 261. NUNC PRO TUNC. Filed after time limit, 1. Oral judgment, etc. — continued On previous oral order, 1, 11. Written judgment as of 1890, 9. Guardian ad litem, present, 5. Oral pleading amendment, 6. Jurat to verified petition, 3, 4. Proof of service filed, 2. Oral judgment, 1890, 8. Sale of realty; defect, 12. Party died before written, 10. Not to be supplied, 12. Proof of service, 1894, 9. "Superior" to "circuit," 7. NUNC PRO TUNC ' 777 1. Where judgment is delivered orally, "a written decision may be made and filed after the expiration of the time within which the statute- prescribes that it shall be done," — nunc pro tunc. —Williams v. Ely, 13 W. 1, 4. 2. "Where "through inadvertence" the affidavits of proof of service "of the summons and complaint were not filed at the time judgment was entered, the court, on motion, allowed this proof to be supplied after the appeal was taken, and that those affidavits might be filed as of the day the judgment was entered. We suppose it was entirely competent for the court to supply this omission:" 1 —Sueterlee v. Sir, 25 W. 357, 358. 3. A jurat added to a verified petition by the judge in the absence of the parties, nunc pro tunc, after judgment, does not cure such defec- tive proceedings, especially where neither order on the petition "recites that the petition presented was a verified petition". See also Incom- petents. — Appeal of Hoyston, 53 W. 612, . 619. 4. Where the notary "omitted to sign his name to the jurat" to the verification of a petition for a writ of certiorari, "the court very properly allowed that officer to sign his name nunc pro tunc, to cure the defect. This was an amendment within the discretion of the court. Lederer v. C. M. & St. P. By. Co., 38 W., 244". — State ex ret Weber v. Cordes, 87 W., 373, 378. 5. Appointment of a previous guardian ad litem, who was present, by nunc pro tunc order, held "without significance." See Adme. de- Bonus Non. —Hubbard v. C. & N. W. B. Co., 104 W., 160, 166. 6. Oral amendment ,to pleadings, held valid as entered later by a nunc pro tunc order. See Pleadings. , ; , , — Findlay v. Knickerbocker Ice Co., 104 W., 375, 378, 7. Where an execution, on a judgment in the "superior court", was mistakingly issued "with the seal of the circuit court",— after a return thereon, the appointment of receiver,, etc., on a creditor's hearing, on motion, the court by order permitted a correction of the error, "to be , done with like effect as if originally affixed thereto," and on appeal such Order was sustained, following. Corwith v. State Bank, 18 W., 560. —Davelaar v. Blue Mound, I. Co., 110 W. 470, 473. 8. Where the record in a divorce action, shows, fupon proofs taken in open court judgment is ordered for plaintiff and against defendant', Sept. 6, 1890, without further record or judgment, 9. On proof of due service being filed, May 19, 1904, the court entered i " 778 PROBATE AND GENERAL LAW, CODIFIED a formal judgment of divorce on that day, ending with the words 'nunc pro tune as of the sixth day of September, 1890', and it is held 'binding and effectual; 10. And the plaintiff is held the lawful widow of a husband who died April 15, 1904, she having married him December 8, 1894. See also Service. —Zakorka v. Geith, 129 W. 493, 506. 11. As to entry of a written judgment at subsequent term, nunc»pro tunc on previous findings and oral order for judgment. See Judgments. —Comstoch v. Boyle, 134 W.. 613, 617. 12. An "order nunc pro tunc" after sale, to supply a material defect in the order of sale, was held ' invalid '. See Sale op Realty. —Milwaukee T. Co: v. Clark B. Co., 146 W., 230, 237. NUNCUPATIVE WILL.' Bear witness to his will, 3. Not to what he says, 4. "Bequeath", to personalty, 9. Common and civil law, 1. Declaration, such his will, 4, 5. "Devise", to realty, 9. Follows English statute, 9. Ineffective as to realty, 1, 10. Or to income of realty, 11. Nuncupative codicil, 7. Not revoke written will, 7. Bealty income, realty, 11. Saying nothing to witnesses, ! Soldiers in active service, 6. Different principles, 6. Strict law compliance, 2. Void in part; effective, 10. 1. "Nuncupative or unwritten wills were known to both the common and civil law (citations) ; but never had been regarded with much favor, from their liability to abuse, and generally have not been permitted to pass real estate. (Citations)". 2. "It may be laid down as a proposition, universally sustained by the courts, that to entitle a nuncupative will to probate, all the provi- sions of the law must be strictly complied with". (Citations). — Brunson v. Burnett, 2 Pin., 185, 190. 3. Under the statute "which declares that no nuncupative will shall be good," 'unless it be proved that the testator, at the time of pro- nouncing the same, did bid the persons present, or some of them, to bear witness that such was his will, or to that effect, ' ' ' the only proof as to "bearing witness" is stated to be: "one witness testifies, 'she called us all to witness what she said ; ' another,- ' she asked me if I would not come back and pay attention to what she said. ' This is all the testimony which in any way directly touches the point. ' ' 4. Held that the statute "is not that the testator shall bid the by- standers to bear witness to what he says *, but that what he so says is his will, or to that effect, ' ' and the will was disallowed, OBITER DICTUM 779 5. "A declaration of the testator that such was his will, or some other equivalent act or fact of equal import, showing that an actual testa- mentary disposition of the property was intended, must be proved." —Dawson's Appeal, 23 W. 69, 88. 6. "Questions of nuncupation by soldiers in actual service, and mariners at sea, are settled upon very different principles from those Which apply to nuncupative wills generally". —Doney v. Hastings, 23 W. 475, 477. 7. While the "proofs introduced are sufficient, probably ", to estab- lish "a mere nuncupative will, standing alone", yet, "as a nuncupative codicil, it operates pro tanto as a revocation of the written will", and under the statute providing for revocation in writing such codicil can- not be allowed. —Brook v. Chappell, 34 W. 405, 409. 8. Where the alleged testator, when witnesses were called in after he was asked about it, "without saying anything to the witnesses, or, so far as appears, noticing their presence," simply stated that he wanted all he had left to go to "O's children", held, following in re Dawson's Appeal, 23 W. 69, not a good rogatio testium. ' — Owen's Appeal in re Pritchard's Will, 37 W. 68/72. 9. The statute, sec. 2292, following the old English statute, uses the word 'bequeathed' as to nuncupative wills. "The word 'bequeath* is commonly used with reference to the disposition of personal property; and the word 'devise' with reference to the disposition of real property. (Citations)." 10. "We must hold that under our statutes a nuncupative will is inoperative to transfer title to real estate. This is in accord with the rulings of other ^courts under similar statutes. (Many cases). But this does not prevent such will from being effective as to the personal prop- erty. McLeod v. Dell, 9 Florida, 451." 11. But it does not pass "the income of the real estate" as personal property, as "our statutes treat such rents, issues, and profits as real estate. Sees. 2060-65, 2072, 2073, 2081, 2089 ; Scott v. West, 63 W. 532, 574-585. The adjudications are to the same effect. (Many cases) ". _/ w re Davis's Will, 103 W. 455, 457. OATH. See Verification. OBITER DICTUM. See Rules of Practice. 780 PROBATE AND GENERAL LAW, CODIFIED OBJECTIONS. Agency of husband, 10. General offer to prove, 10. Competency of wife, 13. Competency of witness, 16. As to evidence, is not, 21. Transactions with deceased, 16, 21, 28. Deposition : Not made in court, 12. Objection at taking, 12. Evidence manifestly improper, 26. Court's own motion, exclude, 26. In its discretion, 26. Objected to or not, 26. , General, deemed sufficient, 27. Though overruled, 27. General : Competency of evidence, 4. Is not as to witness, 21. Not to order of time, 4. Evidence manifestly improper, 27. Evidence was received, 22. Evidence was rejected, 22. Not complain as too general, 25. . Specific', no application, 25. Not limitation statute, 9. Hypothetical question, 20. Hypothetical, etc. — continued Objection, specific on request, 20. Immaterial evidence, 8. Incompetent, irrelevant, immaterial, 18. More specific, on request, 18. Object of making, 17. Question, general, leading, 11. Not trial objection, 11. When cannot urge, 25. Eeason for excluding evidence, 19.- Court io explain on request, 19. Rule specifically stated, 15. As to when specific, 25. Specific : Admission of books, 7. Competency of wife, 13. Ground of intoxication, 14. Order of time, 5. Proper crossrexamination, 3. Other objections waived, 1, 7. Specific, no application, when, 25. To any evidence given, 6. Equivalent to demurrer, 6. Waiver of : All objections by specific, 2. Specific overruled, 1. 1. An objection that the witness has based his answer on the testi- mony of another witness whom he heard testify, "having been properly overruled, the evidence cannot be questioned here because it might have been successfully objected to upon some other ground." 2. "All objections to the mere form of the question were waived by the objection actually taken upon another ground, without mentioning them.'; —Buttrick v. Oilman, 22 W. 356, 358. ■ 3. " To make such an objection available in any case, it should be made specifically upon the ground that the evidence was not proper cross examination ' '. 4. "A general objection goes to the competency of the evidence, and not to the mere order of time in which it is to be introduced". 5. "Where the objection relates to the latter point (order of time), the attention of the court and the opposite party should be called to it by a specific objection for that reason, so that it may be obviated." —Knapp v. Schneider, 24 W. 70, 72. 6. Upon objection to "any evidence being given under the complaint, on the ground that it did not state facts sufficient to constitute a cause of action", the case "stands in the same attitude that it would on a general demurrer to the complaint". — Granwis v. Hooker, 29 W. 65, 66. OBJECTIONS 781 7. "It is a general rule objections of the kind (admission of books), must be specific, so as to point out to the court the precise grounds upon which they are made, and if put upon one particular ground which is untenable, no other ground will be allowed to be substituted for it for the purpose of establishing error". 8. "If the evidence erroneously admitted was merely immaterial (objection being made), it is incumbent on the party objecting, to show- that he was or .might have been prejudiced by it, before he can have any benefit or advantage of his exception." , i — City of Ripon v. Bittd, 30 W. 614, 620.- 1 i ,. 9. Where "the objection is a general one", it will not suffice as to the statute of limitations. See Limitation of Actions. —Heath v. Heath, 31 W. 223, 228. 10. "Where it is sought to prove act of agency by the husband, but the offer is general and not specific, under objection, "it would not have been error had the court rejected him without qualification". See Husband and Wife., —Menk v. Steinfort, 39 W. 370, 375. 11. Where "no such ground of objection * was taken on the trial", the supreme court will not consider whether the ' ' question was improper for the reason that it was too general, and was leading". —Smith v. Ehanert, 43 W. 181, 182. * 12. An objection to an interrogatory "at the taking of the deposition", but "not made to the court when, the deposition was yead", is not available. —Kasson v. Noltntr, 43 W. 646, 653. 13. "In the absence of such objection" to the "competency of" his wife "to testify as a witness for the defendant", "the alleged error is not well assigned". —Byrnes v, Claris,, 57 W. 13, 20. 14. Objections to .competency "on the ground of his intoxication," must be taken at the .examination, to be available. See Witnesses. — Dickinson v. Bxoskie, 59 W. 136, 138. 15. "The .rule is that where an objection is made on an untenable ground, or on a ground that works no prejudice, and is overruled, such ruling furnishes no cause for reversing a judgment, because the admis- sion of the evidence against objection on some other ground would have constituted harmful, error. Coggswell v. Davis, 65 W. 191". —McDermott v. Jackson, 97 W. 64, 7Q. 16. As to transactions with deceased party or agent, to be, available, "the objection should be to the competency of the, witness to testify." 782 PROBATE AND GENERAL LAW, CODIFIED Union Natl. Bank v. Hicks, 67 W. 194; McCormick v. Herndon, 67 W. 652 (See Transactions with Deceased Persons). —Sucke v. Hutchinson, 97 W. 373, 375. 17. "The object of making objections is not" only for appellate pur- poses, but "one of the objects is to enable the counsel putting the questions to avoid error and more effectually prove his case or defense".' 18. Where objections to numerous questions, were because "incom- petent, irrelevant and immaterial", and plaintiff's counsel requested "more specifically the 'grounds of his objection'," — "the defendant's counsel should have been required to make more specific objections, if he had any; or, at least, have been required to state the theory upon which he regarded such questions objectionable." 19. "When counsel on either side is unable to comprehend the ground ■or reason for excluding evidence", on request, "it becomes the duty of the court to indicate such ground or reason specifically." —Colbwrn v. C. St. P. M. & O. Ry., 109 W., 377, 382. 20. As to an objection to a hypothetical question, that it was incom- petent, "it was the duty of counsel", on request, to "make his objec- tions specific enough to advise the court of the alleged imperfections in the question", to predicate error on its overruling. —Daveyv. City of JanesviUe, 111 W., 628, 633. t • 21. An objection "to the competency of the evidence, and not to the competency of the witnesses to testify", "was not sufficient to exclude the evidence" as to^ transactions with a deceased person under see. 4069. McCormick v. Herndon, 67 W. 648. (See Transactions with Deceased Persons.) — Wells v. Chase, 126 W. 202, 206. 22. In the eases "where there was a general objection" and "the evidence was received", "it was held proper because of competency •of the court to do so, the objection not being specific"; 23. But "if, in the face of a general objection, only, the court rejects the evidence the ruling will not be reversed on appeal if it appears that the evidence was objectionable upon any specific ground. 24. There, it is to be presumed, the specific infirmity was the deciding factor, and it was competent for the trial court to take efficient notice thereof though it was not bound to do so. * (Cases)". 25. " This is elementary : ' The rule that the objection should be specific has no application, however, where a general objection is sustained. In that case the party against whom the ruling was made cannot urge that the objection was too general'. Jones, Ev. (2d. ed.) 894 (897); „ (citations) ". 26. "Where evidence offered is manifestly improper the court may, in its discretion, exclude the same whether objected to or not; (citations) ; OFFICERS 783 1 27. And, further, where it is manifest that the evidence is not proper in any circumstances, a general objection, though overruled, will be deemed to have been sufficient. (Citation)". — Rosenberg v. Sheahan, 148 W., 92, 95, 28. The objection to "the admission of testimony" as to transactions with a deceased person, it is indicated, must be properly taken to be avail- able. See also Transactions with Deceased Persons. —Gardner v. Young's Est., 163 W. 241, 246. OFFERS. See Contracts. Estoppel. Sale op Realty. OFFICERS. See also County Judge. Records. Aets by de facto officer, 32, 33. In a de jure office, 32. Valid as to third persons, 33. Appoint court attendants, 28. Attorneys : Officers of- the court, 3. Quasi, of the state, 3. Corporate : Essence of ; are trustees, 5. Ministerial; are agents, 5. Officer does, principal does, 26. Though unauthorized, 26. Power of president, contract, 13. As against innocent persons, 18. Assumed in the past, 14. Express, or by board, 14. Outside of authority, 16. Regular course of business, 15. Was managing officer, 17. Contract of employment, 17. Responsible, abuse of power, 27. Rule as to directors, 6. Signed by president and secretary, 19. , Presumed to have power, 19. Sighing corporate name, 11. Better to sign direct, 12. With official title, 12. By the officer, 11. County Court: Cannot be abolished, 31. Void act abolishing, 30. Acts of de facto officer, 32, 33. As to de jure office, 31. Color of right conferred, 33. Valid as to third .persons, 33. Void superior court, 31. Defray own expenses, 4. Jury, exception to rule, 4. Deputy Clerk: Power to make certificate, 7. ' In name of the clerk, 9. Signed by the deputy, 9. Presumption clerk absent, 8. Sign judgment roll, 2. Not stating absence, 2, 7. Furnish, certified copies, 20. Entitled to reasonable pay, 22. Absence of statutory fees, 22. Penalty imposes duty, 20. Regardless of use to put to, 21. Increase of duties, 29. Without pay increase, 29. Notary falsifying certificate, 25. Presumption : Not to violate the law, 9. . Salary: officer of no term, 23. County board's refusal, 24. Writ regular upon face, 1. 784 PROBATE AND GENERAL LAW, CODIFIED i 1. "All mere ministerial officers should be amply protected in the due and legal discharge and performance of their, duties", and the officer is "exonerated in complying with the mandate of his writ, where that writ is in all respects legal and regular upon its face, and he has no knowledge to the contrary." — Sprague v. Birchard, 1 W. 457, 469. 2. Deputy clerk is held to have the power to sign a judgment roll, the clerk having "power to appoint a deputy to perform his duties in his absence", and that it was not necessary to state the absence of the clerk. — Sexton v. Rhamss, 13 W, 99, 101. ■ 3. Attorneys as officers of the court, are quasi officers of the state. See Attorney and Client. — In re Ole Mosness, Esq., 39 W. 509, 510. 4. "As a general rule, officers take their offices cum onere, and must defray their own personal expenses, such as hotel bills, railroad fares, etc.", but the case of an officer in charge of a jury as to hotel bills, is 1 held "an exception to that rule". —Fernekes v. Swprs., 43 "W. 303, 304. 5. "A distinction is recognized in the books between corporate officers, whose offices are of the essence of the corporation, and whose offices are merely ministerial. Courts of equity deal with the former as trustees; with the latter as agents". 6. ' ' The general rule applicable to the directors, regarded in the light i>f trustees, was settled in the case of the Taylor Orphan Asylum, 36 W. 534. (Cited under Trusts). The court adheres to' the rule of that case." —Cook v. Berlin W. M. Co., 43 "W, 433, 439. 7. It need not "appear affirmatively, from the certificate itself, that the clerk was absent from his office so as to give the deputy power to make the certificate. 8. The presumption of law certainly 7 is that the clerk was absent, and that the circumstances were such as to give the deputy the right to act for the clerk. That rule of law was expressly affirmed in Sexton v. Rhames, 13 W. supra, and fluey v. VanWie, 23 W. 613. 9. In the absence of all proof upon the point, the court surely will not presume that officers have violated the law in the performance of their official duties". The certificate in this case, "was made in the name of the clerk, but signed by the deputy clerk." —Delaney v. Schuette, 49 W. 366, 367. 10. "The clerk (of court) is not a judicial officer, and in the absence of the required proof from the record there is no presumption that" an affidavit "was presented to him". —Reed v, Catlin, 49 W. 686, 690. OFPICEES 785 11. While the signing of an appeal bond, 'The City of Fond du Lac, by J. B. B., Acting' Mayor', "would doubtless have been a technically correct method of execution of a corporate obligation, 12. It is now well settled that, where it appears in the body of the instrument that the corporation is the grantor or obligor, then ,the instrument is well executed by the corporation if signed simply with the signature of the proper, officer or officers, with his or their official title or titles; and, indeed, this method is now almost universally used. (Citations.) —Fond du Lac v. Est. of Otto, 113 W., 39, 42. 13. ' ' The general rule is that the president of a corporation ex officio has no power to contract for the corporation. 2 Cook. Stock. 716. 14. • Such authority may be> expressly given by the articles of incor- poration, or by the board of directors, or may arise from having assumed- and exercised the power in the past. 15. Being invested with such authority within the lines mentioned, he • may enter into such contracts as pertain to the regular course of the corporate business under his direction, and no more. » . 16. When he goes outside of his express or implied authority, his acts will not be binding upon the corporation. (Many cases) ". , 17. But where "the inference is plainly justified from the testi- mony", "that he was its managing officer when he was at home", then "as such he would have the power and authority of similar agents under like circumstances", — and to make a contract of employment. 18. "The court is committed", "in the numerous decisions to the effect that, as against an innocent person who would otherwise be' preju- diced, a corporation will be bound by its contracts regardless of the doctrine of ultra vires". 19. "In a very recent case, Marvin v. Anderson, 111 W. 387, this court applied the doctrine that where a paper purports to have been executed by the president and secretary, of a corporation, it will be presumed that they possess power to do so". (Last two paragraphs, by Marshall, J., concurring, p. 389). — Meating v. Tigerton, L. Co., 113 W. 379, 381. 20. "The imposition of a penalty for failure to do a particular thing", as under section 4148, to furnish certified copies of records, "by implica- tion imposes a duty to do that thing". 21. The statute "imposes upon public officers the duty of furnishing them regardless of the use to which the applicant therefor may desire to devote the papers ". • , , , . 22. Where there are no "specific statutory fees", such officer is unquestionably entitled to reasonable pay for such services upon common- law principles and by implication -from the statute imposing the duty". —Musback v. Schaefer, 115 W. 357, 359. 23. We are not "called on to decide whether", "there is a public policy, enforceable' by the courts, beyond the control of the legislature, Zimmerman! — 50 786 PROBATE AND GENERAL LAW, CODIFIED which must constrain us to a holding that the salary of an officer having no term cannot be changed while he continues to hold the office, not- withstanding the statute (Sec. 694) authorizes the county board to fix that salary from time to time". 24. "The county board having fixed" the salary of the register in probate, ' ' that salary, by the very terms of sec. 694, ' shall be paid at the end of every month' ", and a subsequent resolution of the board that "it shall not be paid, is direct negation of the statute", and ineffective. —Roberts v. Erickson, 117 W. 324, 327. 25. The testimony of a notary, falsifying his own certificate, held admissible, but to "receive little weight". See Undue Influence. —Wvrm v. Itzel, 125 W. 19, 25. 26. "The rule is even more important with the agent (officer), of a corporation than of an individual that what he does, within the scope of the business intrusted to him, his principal does, within the eye of the law, however unauthorized or even forbidden. 27. This is on the principle that he who places, it within the power of an agent to injure innocent third persons should be held to responsi- bility for abuse of that power rather than the innocent stranger". (Cases). See also Commissions of Brokers, etc. — Arnold v. Natl. Bank of W., 126 W. 362, 367. 28. As to inherent power of courts- of record to appoint "necessary court attendants". See Probate Courts. — Stevenson v. Milwaukee Co., 140 W. 14, 19. 29. "The duties germane to a public office may, within reasonable limits, be increased without giving the incumbent thereof a right to extra compensation. (Cases) ". — Burgess v. Bane Co., 148 W., 427, 440. 30. Where under a void act recreating a superior court and abolishing ~ a county court (See State ex rel. Richter v. Chadbourne, 162 W. 410, under Probate Courts), C. was appointed superior judge and per- formed the duties of county judge after ousting R. the county judge, it is held : 31. "The attempted creation of the superior court and the transfer thereto of the jurisdiction of the county court did not affect the exist- , ence of the county court as a de jure office", as under the constitution, art. 7, sees. 2 and 14, the "function" of probate courts "cannot be abol- ished by the legislature". "Judge C.'s entrance into, and continuance in, such office meets all the requirements of a de facto officer as defined by this court in Ekern v. McG-overn, 154 W. 157, 220, (quoting) ". 32. "The reason of the rule that acts done by a de facto officer in a de jure office are valid rests upon grounds of public policy". "Given a OMISSIONS 787 de jure office and a de facto incumbent thereof, there is a valid exercise of the powers of the office. 33. The fact that Judge C. acted under the name of Judge of the superior court instead of the county court is immaterial. His so acting was under the color of a right conferred". "The functions that belong to an office and not its name determine its identity. (Case)". Held, Judge C.'s "acts are valid as to third persons." - - ' —In re Woolcott, 163 W. 34, 37. OMISSIONS. Afterward written in: Agent exceeds instructions, 23. Applied to ; husband and wife, 24. Homestead inserted, 24. Authority is implied, 29. Authorize by parol, 3. Instrument under seal, 1, 3, 23. Intention of the party, 2. Without authority; validity, 4, 23. Name: no blank space, 28. Summons signature, 30. Note, signed in blank, 9. Accommodation of party, 10. Altered before negotiated, 11. May have others sign, 13, 14. Unless otherwise agreed,, 15. Originally by two or more, 16. Valid .when negotiated, 10, 11. Written part to stand, 12. Corporation officer; authority, 26. Note, etc. — continued Filled with any name, 17, 18. Inserted $450, instead of $45, 21. Alteration not vitiate, 21. Non-negotiable; signer held, 22, 23. Order or bearer; endorsed, 17. Party delivered to agent, 9. Rule completely stated, 19. Agent of signer of note, 20. Implied authority to fill, 19. Usual stipulations, only, 9. Papers signed in blank, 6. Agreement to be inserted, 6. False representations, 7. Pilled as agreed, valid, 8. Unauthorized insertions, 6, 7. Will; not supplied, 5. Remainder, omission supplied, 27. " To " supplied ; trust change, 25. "Year" in acknowledgment, 2. 1. "Notwithstanding the instrument may be under seal, and notwith- standing the technical rules of the early common law", it is held in the case of blanks in a note and mortgage that "if it be manifest that it was the intention of the party by whom the instrument was executed, at the time of its execution, that the name of the payee or mortgagee should be afterwards supplied and written in by the person to whom the instrument was delivered, then the rule of law is, that the name may be so supplied and written in, and complete effect given to the instru- ment according to such intention". —Vm Etta v. Evensm, 28 W. 33, 38, 2. The omission of "the year when the execution, of the deed was acknowledged" is held immaterial. See Deed. | ; ,: "^' —Chase v. Whiting, 30 W. 544, 548. 3. It was "competent for the grantors to authorize E, by parol, to insert the name of the grantee in the deed after they had signed and acknowledged the same". 788 PROBATE AND GENERAL LAW, CODIFIED 4. "But we know of no rule or principle of law which makes the deed valid and operative to convey the title to a stranger, whose name haa been inserted therein as grantee by the custodian of the deed, without authority from the grantor and in direct violation of his positive orders". —Schmtz v. McManany, 33 W. 299, 301. 5. The rule allowing parol testimony in cases of fraud or undue influ- ence ' ' does not authorize the probate court, or any other court, to supply omissions in the will". See Reformation. —Sherwood v. Sherwood, 45 W. 357, 362. 6. Where the terms of an agreement "are verbally agreed upon, and a paper is signed in blank (or partly so), to be filled up by one of the. parties, it is incumbent upon him to fill up the paper in the exact terms talked of and agreed upon"; otherwise, "it never became a contract", and. the agreement "still rests in parol, and may be proved by parol testimony". 7. In case of signing under false representations, "the instrument would be void"', and "it is immaterial whether the fraud consists in misrepresenting the contents of the perfected instrument", "or insert- ing, over the signature in blank of the parties sought' to be charged, stipulations which they never made or authorized, as in the present case. ' ' 8. " If one agree to the terms of a contract, and sign it in blank,- and leave it with another to fill up, and it is filled up as verbally agreed to be done, he is bound by it. It is a valid contract". — Rounswvell v. Pease, 45 W. 506, 508. 9. "We think the rule is, that a party who signs a note in blank makes the person to whom it is delivered for negotiation his agent, not only for the purpose of filling the blanks in the note, but to do any other thing necessary to make the note so signed accomplish the purpose for which it was intended, with the limitation that he shall not insert in such note any contract or stipulation not usually found in a promissory note". 10. A note so signed and in blank delivered ' ' for the accommodation of the person to whom he delivers it ' ', is not a valid contract until "negotiated by the holder"; 11. "Until such negotiation takes place, the contract is imperfect", and "there can be no doubt that the holder might fill up the same with an amount, date and time of payment, and then alter the same in either of these respects before he negotiated the same, without vitiating the note in the hands of a bona fide holder". 12. The holder of a note so delivered can "not change the nature of the instrument indicated by the blank so signed, or erase or change the parts of the instrument which were written or printed at the time of such signing ' '. OMISSIONS 789 13. "The real question to be determined in this case is, whether a person who signs a note in blank as maker, for the ' accommodation of the person to whom he delivers it, must be held, as between him and a bona fide holder for value, to have impliedly authorized the person to whom the same is delivered, to have the same.sighed by another party or parties, as joint makers with him. 14. We think, both upon ' principle and authority, that the persons for whose accommodation such note is signed, may, before the same is negotiated by him, procure the same to be so signed by. .another person or persons, without vitiating such note in the hands of a bona fide holder". > ,, ; 15. It is probably otherwise, if 'the original signer stipulates that there shall be no other signer, .with the knowledge of the holder "that the accommodation maker had stipulated against such further signa^ ture". ■ . 16. And it is not here decided what the law would be in case such note was originally signed in blank "by two or more joint accommodation makers", where the question of contribution to each other might arise. 17. "All the cases hold that a note signed in blank may be filled up with the name of any person as payee, and may be made payable to order or bearer, and consequently may be, endorsed by .the person tp whose ordtsr it is made payable, either at or before' its negotiation". —Snyder v. Van Daren, 46 W. 602, 606. "' ' ' ' ' ■' "■■■ i l> t n. : , : , 18. The rule of Snyder v. Van Doren, 46 W, supra, is followed, and, as "almost universally adopted, is clearly stated in the case of Bank v. Neal, 22 How. 107, as follows : 19. 'When a party to a negotiable instrument intrusts; it to the cus- tody of another with blanks not. filled up, whether it be for the purpose to accommodate the person to whom it was intrusted or to be used for his own benefit, such negotiable instrument carries on its face. an implied authority .to fill up the blanks and perfect- the instrument ; , • ' , : 20. And, as between sueh party and innocent third parties, the persons to whom it was intrusted must be deemed the agent of the party who committed such instrument to his custody; or, in other words, it is the act of the principal and he is bound by it'." ( . 21. So held, and innocent parties protected, where the party intrusted with the blank note, inserted $450, instead of ; $45 as , directed ; and changing figures $45 on the margin to $450, held not an alteration to vitiate the note. 22. "If it be admitted that the note sued is not negotiable, still the rule is the same as to the liability of the, person signing the same in blank. See Yliet v. Camp, 13 W.198, 205; Van Etta.y., Eyenson, 28 W. 33; Frazier V. Gains, 58 Tenn., 92, 96". , ,; —Johnston M.~ Co., v. McLean, 57 W. 258, 264. 790 "PROBATE AND GENERAL LAW, CODIFIED 23. The "well-established legal principles" of Johnston Harvester Co. v. McLean, 57 W., and Van Etta v. Evenson, 28 W., supra, to the effect "that authority may be given by parole to fill material blanks in a mortgage or other sealed instrument, as well as in negotiable paper, and that, when such authority is given, and the agent exceeds his instruc- tions in filling the blanks, and negotiates the instrument with innocent third persons, the principal will be bound by the acts of his agent, although unauthorized", — 24. Is applied to the case of a husband and wife, where the husband fraudulently inserted the wife's homestead description in a blank mort- gage signed by her with him, and "acknowledgment was not .essential". —Nelson v. McDonald, 80 W., 605, 607. 25. "We do not think that it was intended to create a trust", "but v that, upon- a fair construction, the word 'to* is to be supplied after the word 'and', in the third and fourth paragraphs of the will, so that she took under it a legacy," "free from any trust." —Schme v. Schinz, 90 W., 236, 243. \ 26. Where a note "with blanks not filled up" is intrusted with an officer of a corporation, he has "implied authority to fill up the blanks," ,being "apparently in charge of its business, " following the rule of Johnston H. Co. v. McLean, 57 W., and Snyder v. Van Doren, 46 W., supra, and Bank of Pittsburg v. Neal, 22 How. 9,6. —Johnson v. Weed and G. Mfg. Co., 103 W., 291, 295. 27. "The ellipsis or omission of the testator" to express his inten- tion in his will as to a remainder, is supplied. See Afterborn Child. —In re Donges's Est., 103 W. 497, 504. 28. As to insertion of name, there being no blank space therefor, and as to blank being necessary. See Promissory Notes, etc. —Smith v. Willing, 123 W. 377, 387. 29. "The general rule is that when one delivers an instrument, whether the same be required to be under seal or not, so executed as to, in form, give it full validity upon the filling up of blanks, authority for the holder thereof to do that is implied". —Friend v. Yahr, 126 W. 291, 299. 30. The omission of the attorney's signature to the copy of summons served, was held not jurisdictional but a mere irregularity, the accom- panying complaint supplying the omission as to name and address. Lee v. Clark, 53 Minn., 315; Contra: Hoitt v. Skinner, 99 la., 360. —Harvey v. C. & N. W. B. Co., 148 W., 391, 392. OPTIONS OMITTED CHILD. 791 At probate application, 2. Or after will admitted, 2. Undetermined which, 2. Belief son was dead, 3. Son at probate of will, 3. Eevpeation : will and probate, 3. Not collaterally, 3. In action at law, 3. Remedies in county court, 1. 1. It is said that the statutes "clearly contemplate" that an "after- ,born child, or child omitted by the testator from his will through 'mis- take or accident', shall have the remedies provided for in the county court". 2. It is said that "it would seem to be eminently proper" that a claim by a child omitted by mistake "should be presented and heard at the time of the application for probate", but it is not determined whether necessarily so, then or later "in the county court, or by proper action after the will has been admitted". 3. In this case, where the omission relied upon was because of "the alleged mistaken belief of the testator, at the time of executing the will, that his son was then dead", and where the son appeared at the probate, proceedings, it is held, that if there can be a necessary "partial or abso- lute revocation of both the will and' the probate", "at all in a case like this, where the will has been admitted to probate, — of which we express no opinion, — it would seem that it should be done in some direct pro- ceeding, or proceeding calling into exercise the equitable powers of the court, and not by collateral attack in an action at law to try the naked legal title. Holden v. Meadows, 31 W. 284; (other cases)". See also Probate of "Wills. — Newman v. Waterman, 63 W. 612, 620. OPENING AND CLOSE. See Affirmative. OPINION EVIDENCE. See Expert Testimony. See also Contracts. Accepted within time, 2. Expires at limit, 3. Interest in land, 1. Enforceable if exercised, 2. Offer to sell; time, 4. OPTIONS. Tender of money; office, 5. Decease before action, 6. Performance against heirs, 6. Sufficient acceptance, 5. 792 'PROBATE AND GENERAL LAW, CODIFIED 1. ' ' One having an option in writing for the purchase of land has an interest therein", and such option is enforceable when duly exercised. See also Contracts. ~-—Wallj..M. St. PomL & S. S. B. Co., 86 W. 48, 57. 2. "A mere, option does not ripen into a contract, and become a bind- ing obligation upon the grantor, unless accepted by the holder within the time limited therein, and according to its terms (Cheney v. Cook, 7 W. 413; Atlee v. Bartholomew, 69 W. 43) ;" 3. "Rights under such an option expire on the date limited, without notice or declaration of forfeiture (Cummings v. T. of Lake R. Cor, 86 W. 382; Nelson v. Stephens, 107 W. 136-145). 4. While the option may be but an offer to sell, yet if the seller, for a good consideration, agrees that : he will not withdraw his offer until a specified time, he is bound. Peterson v. Chase, ljL5 W. 239, and cases cited." ' 5. "The plaintiff's tender of the money at the office" designated in the option and within the time limited, ' ' was a sufficient election of his intention to purchase", and, he was held, 6. Entitled to specific performance in an action against the seller's administrator and heirs, the seller having died shortly after giving the option and before any action 1 thereon. —Mueller v. Norimann, 116 W. 468, 470. ORDERS. See also Fraudulent Orders. Judgments. Records. Construed as judgment, 8. Form, not determine, 8. . Decision; oral, written, 9. Clerk to enter oral, 10. Effective as written, 11. Entry: appeal purposes, 6. Not necessarily recorded, 7. Pinal order, what is, 13. Judge at chambers, 1. Not entered of record, 5. Oral, is in fact, 4, 9, 11. Before findings filed, 14. "Ordered judgment", is, 2. Eevoke, at any time, 3. Writing, evidence of, 12. 1. "An order of a judge at chambers is of no effect until it is properly served." —Spmlding v. B. B. Co., 11 W. 157, 158. 2. An entry of a legal paper properly signed as "ordered judgment, etc. * is not a final judgment, but an order for a judgment" and —Lincoln v. Cross, 11 W. 91, 95. execution cannot be issued thereon. 3. "The county court, sitting as a court of probate, may, at any time, iu furtherance of justice, revoke an order which has been irregularly made or procured by fraud". — In re Fisher, 15 W. 511, 521. .. ORDERS ... ■•; .■< ., 793 4. Where the parol "testimony is most clear, positive and conclusive that an order was actually made by the probate court, but through uaadverterlce was not signed", it is held, "that the failure to sign did. not defeat the order; that it took effect as the decision of the court, notwith- standing that omission. The judicial act performed was in deciding upon the application and announcing such decision." 5. "Properly, the order in question should, have been entered of rec- ord. But the failure to do this, or to sign the order, did not have the effect to nullify or destroy the decision which was actually made". In this case the decision was for a widow's allowance made, five months 1 before the hearing. See also Widow. —Baker v. Baker, 51 W. 538, 548. 6. "When a written order is drawn up and signed 1 by the judge and filed with the clerk, who enters a brief statement thereof in his minute book, showing the 'substance of the order, this is an entry of it within* the meaning of the statute", sec. 3042, as to appeals from orders. 7. An order need not be "recorded at length upon the order book", before it is considered entered. — Uren' v. Walsh, 57 W. 98, 103. 8. An order is construed as a judgment, and such question ''cannot always be solved by mere form. "" See Appeal! '' ■'>'" "•' '- : —Swarthout y. SwartK&ut, 111 W., 102, 106. 9. "An order or judgment is the decision of the court. It may be formulated in writing 'by the judge, or declared by him orally. 10. In the latter' event the duty rests upon the clerk to write the sub- stance upon the records., , _ , "j . .«, 11. This was done in this case (an order for change of venue), and thereupon the order became entered as completely as if written out by the judge himself and signed by him. (Cases). 12. The writing is, at most, the evidence of the decision in fact ren- dered. Findlay v. Knickerbocker I. Co., 104 W., 375". (Approvingly quoted in Wallis v. First Nat. Bk., 155 W., post),' —Allen v. Yajje, 114 W„ 1, 8. 13. "In Kingston v. Kingston, 124 W. 263, the court said: 'A final order in a special proceeding, within the meaning of the statute,' is ' one ; which determines and disposes finally of the proceeding — one which, so long as it stands, precludes any further steps therein'." —Sioux L. Co. v. Ewing, 148 W. 600, 602. 14. Though sec. 2863 requires written findings, "a valid judgment may be pronounced and pronounced orally in actions tried by the court, before any written findings and conclusions ^are made, and filed". — Wallis v. First Nat. Bank, 155 W., 533, 538. 794 PROBATE AND GENERAL LAW, CODIFIED ORPHAN. See Guardian and Ward. Infant. Kin. PARENT AND CHILD. See also Bond for Maintenance. Custody and Commitment. In- fants. Services.- Custody : Aunt as against father, 60. Abuse, profanity, etc., 60. Child left to uncle; father dee'd., 9. Guardianship; care to mother, 12. Mother then entitled, 9, 11. No support means, 10. Child's welfare; court determines, 35, 36, 39, 42, 67. Child's welfare, primary, 3*8, 39, 42, ■ 67. Father be unfit, 43, 61. - Given to mother, 43. Coarse and vulgar speech, 43. Though poorer, 43. Circuit court proceedings, 54, 61. After county court, 61. Parents right to care, custody, 65. Unless clearly improper, 66. Welfare of child considered, 67. Eemarried mother given, 63. Deceased father's request, 64. For brother; not control, 64. Fitness shown; adultery, 63. Taken from parents, 54, 61. Common' law right; absolute, 31. Modern rule more humane, 32. Father; if unfit, to mother, 44. Child's welfare; to mother, 44. Father may lose right, 38. By neglect, abuse, etc., 38. Incompetent, unsuitable, 45. Father; paramount right, 3, 33. If not rendered unfit, 4. Court give to another, 33, 35. Or child's welfare, not, 33, 35. Under statute also, 34, 35. To nurture; fourteen years, 4. Given to aunt, habeas corpus, 36. Father able and suitable, 36. Indentures void, father unfit, 8. Child between 7 and 14 yrs., 8. Infant fourteen, choose himself, 6, 7. Not compel parental rights, 7. Custody — continued Mother, custody in divorce, 54. Attempted testamentary appt., 57. Dies testate; grandmother, 54, 55. Suitableness of father, 56. Creditable sinee divorce, 56. From marriage time, 56. Neglect since divorce, 59. Paternity suspicion, 58. Mother, same right, if widow, 5, 11. Otherwise, if remarried, 6, 63. Court then to choose, 6. Unsuitable; instances not, 43, 46, 47, 56, 60. Deed parent to minor, 73. Emancipated; father may, 15. Child's property rights secure, 17. Express agreement; circumstantial, 62. Though insolvent at time, 16. Gift: to child, upheld, 18. Effective when executed, 18. Father cannot revoke, 19, 20. Eule, method, conditions, 37. Infant; bind father, 70. Automobile accident, 70. Physician's services; another, 70. Necessaries. See Support of child. Personal injury: child's action, 40. Not medical attendance, 41. Physician might; necessaries, 41. Voluntary, father and brother, 41. Not recover for minority, 40. Presumptions : Child working for father, 21. Acting for him, 21. Not agency as to torts, 49. Services : After arriving at age, 2. No contract; no pay, 13, 14. Father 's right before age, 3, 40. Child hold property, 17. Deal with himself, 17. May emancipate child, 15. Though insolvent, 16. PAEENT AND CHILD 795 Support' of child: Support of child— continued Father's offer if given custody, 68. Parent's omission of 'duty, 24. Does not relieve him, 68. Before others acting, 24; Though improperly detained, 69. Stepson in parental relation, 71. Mother's agency; bind father, 22, 69. Rule of allowed necessaries, 72. Mother for past support, 29. Step-father liable; physician, 71. ' Case is one of equity, 29. Special exigency, 71. Mixed facts; case stated, 28. Venue, where child, not father, is, 74. Mother had no expectations, 30. , Removal by mother, 75. Not depend upon contract, 30. Torts of child: ' • Out of child's estate, 29. ' Father liable, .he permits, 26, 50. Widow charged with custody, 29. Morally and legally, 26. Parent bound to support, 1, 22, 68. Similar acts shown, 27.' Permit a stranger to, 1, 72. Father, no general liability, 48, 51. Rule; implied, allowed, knowledge, 72. Agency: is proved, 49, 51, 53. Eule succinctly stated, 23. Not presumed, 49. ( Father ready to supply, 25. Parent not able to prevent, 52. t , Implied promise relation, 72. Serviee for father, insufficient^ 53. Necessaries furnished, 23. 1. Parents- are bound to support minor children. "When a parent permits a stranger" (stepfather) to support them without, objection, the law will imply a promise on his part to pay for the same. (But, see Judge v. Barrows, 59 W. post.) — McGoon v. Irvin,'l Pin. 526, 532. 2. Where "the ordinary relation of child and parent did not subsist", and there was an understanding that the services were not rendered gratuitously, a child might recover for labor after arriving of age with- out an express contract. v — Fisher v. Fisher, 5 W. 472, 474. 3. "The father has a legal and paramount right to the custody and services of his child." 4. "The child should, if within the age of nurture, which is fixed at fourteen years, be delivered over to him (the father), unless there be something in his situation or conduct which renders him unfit for the trust". I 5. "If the father be dead, and the mother still a widow, the same rule applies to her. But if the mother be married again and her hus- band living, the old rule prevails. ' ' 6. "The infant, if of sufficient age, must choose for himself ; if not,, the court will choose for him. In such case the mother is considered by her subsequent marriage as having lost her right of guardianship for nurture". (But, see amdt. of ch. 278, L. 1915, to sec. 3964). 7. "But when the infant is above the age of fourteen years, he must, it seems, in every case, choose for himself. The court will not compel him, upon habeas corpus, to submit to parental authority". , 8. In this case, the indentures being void, for failure to mention the profession, trade or employment, and the father being an improper person, and the child being "between the ages of seven and fourteen", to-wit twelve years, the court says : , "It is probable, therefore, that the 796 PROBATE AND GENERAL LAW, CODIFIED county judge should have examined the girl and have given her the privilege of determining for herself whether she would go with her father or remain with the respondent ' '. Dixon, C. J. — In re Goodenmgh, 19 W. 274, 277. 9. In the case of an infant two years old in the custody of an uncle, t left by the father who had separated from his wife a year before his 1 death in the army, and the uncle being appointed guardian without notice to the mother, it was held that ' ' On the death of the father the mother became its lawful; guardian", and the child was given to her. 10. " That the mother has no means to supprt and maintain the child", furnished "no just cause for depriving her of its custody". 11. "The guardian by nature, on the death of the father, is the mother. She has a right to the person of the child, unless it appears that she is an unfit person to have control of it." 12. An order of the circuit court on appeal, held the guardianship "was improperly and irregularly made" and that the child be delivered into the custody, care and keeping of the mother without in terms revok- ing the guardianship of the uncle. Sustained though "perhaps the order did hot go as far as it should. ' ' — Ramsay v. Baonsay, 20 W. 507, 508. 13. "The father was under no legal obligation to pay for" services performed during the year after the son became of age, there being no prior ' ' arrangement or understanding that the services which had been already rendered were to be paid for." —Kaye v. Crawford, 22 W. 320, 322.- 14. A son working at home after arriving at age, is not entitled to recover compensation without an express agreement. See Services. —Pella^e v. Pellage, 32 W. 136, 142. 15. "It is a well-settled principle of law, that a father may emancipate his minor son, and by agreement with him relinquish the right he would otherwise have to his services. Monaghan v. School Dist., 38 W. 100. 16. And this he may do although insolvent at the time. Atwood, trustee, v. Holcomb, 39 Conn., 270; Lackman v. Wood, 25 Cal. 147". 17. It follows, therefore, that such an infant son "had the right to acquire the property (piano) in controversy, by purchase or otherwise'!; "and hold it as against his father or his father's creditors, and give it, if he saw fit, to his infant sister." — Wambold, by Gdn. v. Vkk, 50 W. 456, 457. 18. While "the presumption in all cases is strongly in favor of the continued possession of the father as the head of the family", as to gifts "between members of the same family", yet, "when such a gift by the father to his child is fully executed by delivery, it will be upheld. The J PARENT AND CHILD 797 case of Pierson v. Heisey, 19 la., 114, is strongly in point". See also Kerrigan v. Rautigan, 43 Conn., 17. 19. "There may be authorities which hold that such a gift may be revoked, but they have not the weight of reason", and the court approves ,"of those authorities which hold that it cannot be done"/ 20. In this case the gift was "sought to' be avoided" "by a subse- quent mortgagee of the father, on the ground that the giving of the ■mortgage was a revocation of the gift," and x the gift was upheld. See also Res Gestae. —Kellogg v. Adams, 51 W. 138, 146. 21. "The presumption is that a minor child, living with his father, and using his team and conveyance in and about the business of such father, is acting on his behalf and upon his directions until the contrary is made to appear by evidence". —Gerhwrdt v. Swaty, 57 W. 24, 37. 22. Where, as in McGoon V: Irvin, 1 Pin. supra, "the children were not living with the father at the time, but necessarily absent from him and with the mother", "the law seems to imply an agency on the part of the mother to bind the father for such necessaries. McMillen v. Lee, 78 111. 443". 23. "A father is liable for necessaries furnished his infant child only upon an express promise, or upon proof of circumstances from which a promise may be implied. (Cases). 24. Where the infant is sub potestate parentis, there must be a clear and palpable omission of duty to support, on the part of the parent, in order to authorize any other person to act for and charge the expense upon the parent. Tompkins v. Tompkins, 11 N. J. Bq. 512; Townsend v. Burnham, 33 N. H. 270. >, , 25. Where the father is ready to supply such necessaries, he cannot be bound by the contract for the same with a third person without express or implied authority from the father to make the contract. Johnson v. Smallwood, '88 111. 73". —Judge v. Barrows, 59 W. 115, 117. 26. Where a "father permitted his young sons (8 years old) to shout, use abusive language, and discharge firearms at persons who were passing along the highway in front of his house ' ', and an injury happened ' ' from that cause he was not only morally but legally responsible for the damage done." ■ 27. It was proper to show previous similar acts in the pssesence of the father, "to connect the fatfier with the acts." — Emerson v. Noker, 60' W. 511, 513. 28. In this case, the mother and father lived separately, the mother had supported the child from infancy, the child died when five years old, leaving real estate only, of the value of about $900, received a year * before its decease, from the grandfather, and the father and mother .were its sole heirs; administration was granted, after partition, some seven 798 PROBATE AND GENERAL LAW, CODIFIED years after the child's decease, and a claim of the mother for the sup- port of the child, was disallowed in the county and circuit courts, but ordered allowed by the supreme court; 29. It is said: "The rule in all cases is one of equity, and when it would seem equitable and just, an allowance out of the infant's estate will always be made, even for past support, especially to the mother when she is a widow and charged with the custody of her children in the place of the father". 30. " The fact that the mother for a considerable part of the time sup- ported the child when it had no estate, and she could not^have had any expectation of an allowance therefor, can make no difference in equity, as her right to any allowance in such a case does not depend upon contract, either expressed or implied, or an implied assumpsit". See also Claims. — Pierce v. Pierce, 64 W. 73, 76. 31. "By the common law, as interpreted in some of the old cases, particularly in England, the father had almost an absolute right to the care and custody of his minor child, without much regard to his fitness therefor or the welfare of the child. 32. Modern adjudications, both here and in England, have greatly modified the rule, and have incorporated in the law more sensible and humane elements. , 33. It is now well settled, at least in this country, that although prima facie the father is entitled to the care and custody of his infant child, yet, if he be an unfit person therefor, or if it be for the welfare of the child that its nurture be permitted another, the court before which the matter is pending on habeas corpus may, in the exercise of a sound judicial discretion, deny such custody to the father, and give it to another. ' ' t 34/ ' ' The exercise of such discretion in a proper case is not incon- sistent with the" "provisions of sec. 3964". 35. "This statute leaves open the inquiry as to the suitableness of the parent for that purpose ; and it seems quite obvious that if, for any cause, the welfare of the infant demands that its care and custody be withheld from the parent and given to another, the parent is not a suitable person to have such care and custody, within the meaning of the statute. It was so held, in effect, in In re Goodenough, 19 W. supra. " 36. And on habeas corpus, in this case, the child was retained in the custody of an aunt, though the testimony showed that the father "is now entirely able to support his child, and that he is a person of good character and repute." (Followed in In re Gdnshp. of McChesney; 106 W., post.) —Sheers v. Stein, 75 W., 44, 50. 37. Rule, method and conditions set forth, in gift to minor child. See Gift. — Second Nat. Bank v. Merrill, 81 W., 142, 148. 38. The dominion and right of the father over his minor children, as a "primary right may be lost or forfeited by him by abandonment, neglect, PARENT AND CHILD 799 or abuse." "The necessities and well-being of the social state", and "the interest of society and the physical and the moral necessities of the child," make the subject "one of appropriate legislation" as to depriving the parent of his natural rights. (Many cases) . 39. This principle finds expression in the statute (sec. 3964.) "The state intervenes only upon the destitution and necessity of the child, and in all cases of controverted, right to its custody its welfare is a matter of primary consideration. " See also Adoption. —ScMite v. Roenitz, 86 W., 31, 37. 40. In an action for personal injuries, "compensation for loss of time during her minority from inability to labor by reason of the injury," was held properly refused. "It does not appear that she was emanci- pated, and of course her services during that time belonged to her father and not to her." 41. Allowance for expenses "incurred by her brother in her behalf for medical attendance and medicines in consequence of such injury", was also refused as "for moneys voluntarily paid and liabilities volun- tarily incurred by her brother or her father. Taylor v. Hill, 86 W., 105 (See Accounts op Guardians.)" The physician, however, "might have recovered therefor as for necessaries". " — Peppercorn v. 'City of Black Eiver Falls, 89 "W., 38, 40. 42. "In all such Controversies", as to custody, "the welfare of the children is the primary consideration which must control the judgment of the court." 43. The parents being separated, the father found unfit, though his parents are wealthy and willing to provide for them, the custody of a son and a daughter, aged 8 and 7 years, is awarded to the mother, though she can give them fewer advantages, and under provocation of the hus- band may have used profane; language, and though her mother living with her was "of coarse and vulgar speech ", — the children's mother otherwise appearing "a fit and proper person to have the care and custody of the children." 44. Custody may be awarded to father, or if unfit, to the mother, "but, if it be for the welfare of the children" they may "be committed to the care of another." Sheers v. Stein, 75 W., 51; (other cases, supra) ^ -i — Johnston v. Johnston, 89 "W., 416, 420 45. The cases, supra, hold "that the statute (sec. 3964) secures to the father", as to his child, "the right to its care and custo ; dy, if he is compe- tent to transact his own business and not otherwise unsuitable ; 46. And that he is not rendered unsuitable by the fact that there are those attached to the child, having or desiring its care and custody, who occupy a higher; position in the social scale, or are able to give or secure to it advantages in life better than those of the station to which it was born." 800 PEOBATE AND GENERAL LAW, CODIFIED 47. So held, and that, being "of a somewhat cold, reserved, ancl un- sympathetic nature", and "never exhibited much love or affection, for such child, " does not establish unsuitableness, as a matter, of law. — Markwell v. Pereles, 95 W. 406, 415. 48. "The law is well settled that no general liability of the father for torts of a minor son exists. 49. Such liability in general results only from the rule of respondeat superior when the fact of agency for the father is proved, and no pre- sumption of agency results from the domestic relationship. (Cita- tions) ". 50. As to Schaefer v. Osterbrink, 67 W.- 495, a case of "a minor in driving his father's team upon the, .father's business", and Hoverson v. Noker, 60 W. r supra, a ease of customary misconduct on the father's premises "to the father's knowledge", — "these eases are predicated on the assumed power of control by a parent over his children, and the latter upon the responsibility of one who maintains on his premises anything known to be dangerous or having a tendency to injure others. 51. But, apart from these exceptional aspects of the question, proof is essential of the conferring of authority to do something for the father, within the scope of which is the tort alleged ; 52. And, as Mr. Schouler sums up the subject, it is always a defense to show that the parentl was not able to prevent the act complained of. 53. It is not sufficient that the, child was engaged in some undertaking beneficial to the father, or which he desired to have accomplished, unless such engagement be in accordance with directions or authority from the father. Winkler v. Fisher, 95 W. 355; Moon v. Towers, 8 C. B. (N. S.) 611". —Kumbd v. Gilham, 103 W. 312, 315. ' 54. Where the mother, in divorce proceedings was given the custody of infant girls, and died testate six years later, attempting to appoint the grandmother testamentary guardian, the children still being under fourteen, and with whom they had been given a good home, — on applica- tion of the father in circuit court for the guardianship and custody, the grandparents contesting, it was held, in effect, — 55. That the grandmother, on the evidence, was suitably given such guardianship and custody; 56. That the suitableness of. the father, though he had lived a cred- itable life since the divorce, was properly to be considered from the time of the marriage of the parties ; 57. That it is not determined whether the mother in such case has the right to name a testamentary guardian, though "such is the effect of some adjudications elsewhere," Wilkinson v. Deming, 80 111. 342, but that such attempted appointment is proper to be considered as to the propriety of appointing the grandmother so named ; . 58. That a groundless suspicion expressed by the father as to . the paternity of his children is entitled to weight in considering his suita- bility; and / PARENT AND CHILD 801 . 59. That his neglect of the children, subsequent to the divorce, and failure to visit them when ill, and attend the funeral upon decease of one of such children, though given opportunity, is a proper consideration and may sustain a finding of absence of fatherly love for them ; (cases supra). — In re Grdnsp. of McChesney, 106 W. 315, 321. 60. Where "the father was weak mentally to an extent rendering bim, incapable of doing husiness intelligently," "very excitable, and accus- tomed to swear at his children", drove "them from his presence by profanity and abuse," and they "were becoming unmanageable",— such conduct "certainly renders him unsuitable", and the custody of two girls aged seven and nine, was properly given to "their maternal aunt", quoting and following Markwell v. Pereles, 95 W., supra. —Lemmin v. Lorfeld, 107 W'., 264, 266. 61. Appointment of guardian by the circuit court, after proceedings in county court, etc., and custody taken from parents. See Custody and Commitment. —I n re SHttgen, 110 W., 625, 628. 62. "The status of a person in his minority, as to whether emanci- pated by his parents or not, may be shown by an express agreement or circumstantial evidence". — Grot jam v. Rice, 124 W. 253, 262. 63: "Where the father, having the custody of children under* divorce proceedings, died, the remarried mother is given guardianship and custody, on finding- of fitness, notwithstanding ' ' adulterous relations with a person who had resided at the home of her first husband" twelve years before, which conduct she then confessed to, and which was con- doned by her then husband,' — her conduct since being blameless. 64. The request of the deceased parent for the appointment of his^ brother is held entitled to weight but is "not bound to control the court in determining the question of suitableness between the person so desig- nated and those who sustain the parental relationship to the child. 65. The courts have always recognized the sanctity of the parental relations and the parent's right to the care and custody of the children, 66. Unless it clearly appears that the parent is an improper and incompetent person to be entrusted with them. 67. In considering this question the welfare of the child is always to be kept in mind". —Gnsp. of Tank, 129 W. 629, 632. 68. An instruction that a father's offer to support his minor children on their surrender to his custody by the wife does not relieve, him from liability for their support, 69. Even if they are improperly detained from him by his wife, since he can obtain custody of them, if entitled to it, by appropriate legal proceedings— "is good law." Zilley v. Dunwiddie, 98 W. 428 (See Divorce). —Beilfuss v. State, 142 W. 665, 666. Zlmm erman — 51 802 PROBATE AND GENERAL LAW, CODIFIED 70. "An infant son using his father's automobile", it is held, has no authority to bind his father for a physician's services engaged by the son to treat a person injured by such son. — Eabhegger v. King, 149 W. 1, 3. 71. "Where "defendant stood in the position of parent to his step- son," "had assumed the obligation of providing the boy with neces- saries", jancl "a;special exigency", "existed requiring medical" treat- ment, and defendant had knowledge of the situation and treatment of the boy by plaintiff, and "interposed no objection thereto," it was held the stepfather was liable "for the value of the services rendered" such minor, , - . , . ' 72. "Within the principle that the law implies a promise where a parent, with full 'knowledge of the facts and without objection, allows and approves of his child being furnished with necessaries. We con- sider the instant case to be within the rule approved' in McGoon v. Irvin, 1 Pin., supra, and Zilley v. Dunwiddi'e, 98 W. 428 (See Divorce) ". 1 — Monk v. HwrVbwt, 151 W., 41, 45. 73. A deed from parent to minor child held effective. See Construc- 'tion of Deeds; —Jones v. Coord, 153 W., 384, 386. 74. "The place where the children were, not where the father was, during the period complained of, fixes' the venue of a prosecution for nonsupport of children. (Many citations) ". 75. ' ' The removal of the minor children by the wife to another county, even without cause for such removal, would not justify the father in refusing to support them. Beilfuss v. State, 142 W. supra". , -rAdams v. State, 164 W. 223, 226. PAROL. See also Contracts. Frauds, Statute of. Writings. Agency : '' ■•\"~ Sign as principal; shown, 33. Not to relieve himself, 33. Agreement to re-purchase, 98. Bill of sale: security, 59. Not modified; in escrow, 94. Condition: precedent to, 71. ' Defense suspicious, 71. Manual delivery, 1 condition, 71, 81. Not binding till occurs, 71. Not, intent to take effect, 73. Not to be presently binding; 72. And later become void, 72. Consideration; Additional, may be shown, 17. Consideration-^continued Admissible to show, 15. After execution; consideration, 92. Modified on same, 91. Contract express or implied, 62. Contract, not within fraud statute, 90. Different may be shown, 42, 87. • Distinction as to a deed, 75. Failure of shown, 19, 38, 70. Negotiations leading up to, 111. Explain consideration, 112. Some statement of given, 87. Shown not inconsistent with, 88. Time and manner of paying, 68. PAROL ■803 Construction of contracts, 63. Ascertain nature of, 65. Not as to conversations, 76. Obscure terms explained, 64, 74. Patent ambiguities, 63, 76. Show what parties meant, 95. By ambiguous term, 95. Devise agreement; services, 79, 80. Executory to executed, 16. Parol inadmissible, 16. Fixtures: show intention, 50. Fraud: or mistake; exception, 46. Clear and convincing, 47. Contracts signed in blank, 34. , Original contract shown, 34. Parol trust; must show, 78. Preponderance insufficient, 47. Written, dishonest purpose, 96, 103. Boundary lines not settled, 106. Distinct oral contract shown, 96, 103. Pleading makes claim, 106. ; Legatee, hold in trust, 25. Lost required writing, 115. » Oral, clearly shown, 115. Part only in writing, 39, 56, 67, 101. Agreement to repurchase,' 98. Deed or note; part only, 77. Must appear from writing, 56, 102, '114. ,... , Otherwise not show, 57, 114. Not language of parties, 104. In absence of fraud, mistake, 105. Eeal transaction sifted, 109, 110. Everything said and done, 110. Support agreement and bond, 58. Not show as to personalty, 58. Terms of sale may be shown, 60, 61. Doubtful on this point, 61. Writing, part execution, 99, 113. Promise to indemnify surety, 23. • , Promissory notes, etc. : .Consideration: failure, ,19, 38, 42, 70. Endorsement in blank, 32. Manner or fund, payment, 41. Note presumed part only, 77. Priority of endorsements; 8. Surety signed as principal, 13, 35. Surrender at payee's decease, 21. Understanding at time, 4. Eealty: Agent to sell; authority, 18. Contract complete, final, 82. N°t parol to change original, 85. , Substitutionary; oral, 82, 83. Be-adoption of oral plan, 84. Would be new, 83. Consideration be shown, 10. Realty — continued ( Deed and executed parol trust, 66. Not void, but voidable, 66. Deed part; whole shown, 10, 43. Deed presumed part only, 77. Deed shown to be mortgage, 6, 9, 20, 28. Must be so intended, 29. Not absolute to conditional, 20. Not, show express trusty 7. Bule of property, .20. Devise of lands, oral, services, 79. If possession given, , 80. Pull payment insufficient, 24. Lease; part perform;' fraud, 52. Parol trust; must show fraud,' 78. Partition effectuated, 22. Part payment; no possession, 3- Part performance; in equity, 11. Possession; relinquishment; 12. Becitals not contractual, 86. N°t conclusive or exclusive, 86. Some consideration shown, 87. Different aliunde shown, 87, 88. Tenant's sale to co-tenant, 49. Receipt; may contradict, 40. Includes elements of contract, 69. Not contract in form, of, 51.- Statujte of frauds: not within, 53. Modified by parol, 53,, 116. Oral, devise for services, 79. When writing not reqiured, 89. Modified; original consideration, 90. Third person: his benefit, 27. Between him and a party, 117. Transaction shown, 117. Time: of performance, 14. Subsequently enlarged, 14. ' Unilateral contract: Agreement may be shown, 97. Written contracts: , At the, time or prior to, 2, 5, 50. Extrinsic facts may be shown, 107. Not part of negotiations, language, ' 108. Fraud or mistake, exception, 46. See also Fraud. Modified after execution, 91.' Essential, after in effect, 93. Not while in escrow, 94. On old consideration, 92. Bule generally stated, 26, 36. ' ' Conclusively presumed, ' ' 36. Not vary or contradict, 26, 54, 100. Bule "satisfactorily stated," 37, 45. Apparent, are not exceptions, 44. Not reduced to writing, 45. 804 PROBATE AND GENERAL LAW, CODIFIED Written cdntraets — continued Written contracts— continued Fraud or mistake, exception, 46. Three classes;" of exclusion,' 48. Clear and ' convincing, 47. Otherwise admissible, 48. Not mere preponderance, 47. Vendor, and vendee's agent, sign, 55. Parol competent as to: Not show Sale by sample, 55. (1) Contradict mere receipt, 40. Written, fraudulent purpose, 103. (2) Consideration, 38, 42. Distinct oral may be shown, 103. (3) Manner and fraud, payment, Writing develops: 41, Parol proof excluded, 1. (4) Merely passes title, 43. Writing, evidence of a fact, 31. (5) Part only in writing, 39, 56, 101, 109, 110.- 1. Parol proof should be excluded where it afterward develops that the party had a writing. — Cwrvtpbell v. Moore, 3 W., 767. 2. A parol agreement at the time of or prior to the written agreement cannot vary the latter. See Contracts. , —Cooper v. Tappan, 4 W. 362, 369. 3. A parol contract for real estate, with part payment, without delivery of possession, will not take the ease ou1*,of the statute of frauds. — Blanchard v. McDougul, 6 W. 167. 4. "Not competent to show by oral testimony this agreement or under- standing, made at the time the note was given, for the purpose of vary- ing or controlling its legal effect". —Gregory v. Hart, 7 W. 532, 539. 5. A parol agreement "which preceded the written contract" cannot .control or vary the latter, as "by every sound principle of law applicable to contracts, where no fraud or mistake exists, the written Contract must control". —Reed v. Jones, 8 "W. 392, 413. ' 6. That a deed may by parol evidence be shown to be a mortgage, unless fraud or mistake is shown at the making, "cannot be sustained upon principle, and if established by authority too firmly to be shaken, it must be regarded as an invasion upon the statute which cannot justify still further encroachment". 7. In this case a deed was not allowed to be shown by parol to have been an express trust without consideration. —Rasdall v. Rasdall, 9 W. 379, 392. 8. Priority of endorsements may be shown by parol. See Promissory Notes, etc. — Cady v. Shepard, 12 "W. 639. 9. Parol evidence is admissible to show that a deed absolute on its face is a mortgage. — Plato v. Roe, 14 W. 453. PAROL 805 10. "Although no parol evidence would be permissible to change the legal effect of the conveyances .themselves, yet it may be admitted to show upon what consideration they were made, and to show the whole transac- tion, where the conveyances constitute only a part". —Frey v. Vanderhoof, 15 "W. 397, 401. 11. "Verbal agreements for the sale of lands are enforced in equity, where there has been such a part performance that it would operate as a fraud upon either party to allow the other to repudiate ' '. 12. "The, delivery of possession*' and ''the relinquishment of further litigation, and the neglect to stay further proceedings" are applied under this rule to take the case out of the statute of frauds. —Paine v. Wilcox, 16 W. 202, 214. 13. Parol evidence is admissible to show that a surety signed as prin- cipal. See Sureties. — Riley v. Gregg, 16' W. 666, 671. 14. ' ' The time in which a written contract is to be performed may be enlarged, or the manner of performance changed, by a subsequent parol agreement; and a performance according to such parol agreement dis- charges the written contract". —Webster v. Tibbits, 19 W., 438, 444. : 15. Parol evidence is admissible to show consideration. See Considera- tion. —Peterson v. Johnson, 22 W. 21, 27. 16. "If the contract in question was, by its terms, executory, then as already said, ithe. principle is plain that forbids the introduction of parol evidence to change it from a contract of, that nature to one which was executed. This point was directly ruled in Pitch v. Archibald, 29 N. J., Law R. 160, and is recognized as correct in Terry v. Wheeler, 25 N. Y. 523." . Dixon, C. J —Godfrey v. Germain, 24 W. 410, 416. 17. "Additional consideration to that expressed, and consistent with it for the purpose of sustaining a deed", may be shown by parol. —Hcmncm v. Oxley, 23'W. 519, 522. 18. An agent can make a contract for the sale of real estate, on parol authority. See Sale of Realty. .. , — Smith v. Artnstrong, 24 W. 446, 451. 19. Evidence of a verbal agreement at the making of a note is ad- missible to show partial or total failure *)f consideration. See Con- sideration. — Smith v. Carter, 25 W. 283, 287. 20. "Notwithstanding what was said in the opinion in RasdalL's Anrrs. v. Rasdall, 9 W. 379, as to the admissibility of parol evidence to prove an absolute deed a mortgage, upon principle, it has since been frequently 806 PEOBATE AND GENERAL LAW, CODIFIED held by this court that the admissibility of such evidence has been so long established by authority as to have become a rule of property, which ought not to Be changed by the judicial department". Paine, J. —Wilcox v. Bates, 26 W. 465, 466. 21. Oral proof that a note "was to be surrendered" at the decease of the payee, in payment of services of the maker, does not contradict the note, and is admissible. — Jttson v. Gilbert, 26 W. 637, 645. 22. "A parol partition of land carried into effect" is "valid and bind- ing upon the parties". See Partition., —Buzzell v. Gallagher, 28 W. 678, 681. 23. An oral promise to indemnify a surety is valid, "relying upon this promise alone". —Vogel v. Melms, 31 W, 306, 312. 24. Part performance, even full payment, is held insufficient to enforce a parol agreement to purchase lands.' See Part Performance. —Horn v. Ludington, 32 W. 73, 76. ■ 25. An oral promise by a residuary legatee to the testator, held to create a trust. See Jurisdiction. Trusts. —Brook v. ChappeU,te "W. 405, 411. 26. It is elementary "that parol testimony is inadmissible to vary, contradict or add to a contract which has been reduced to writing, and that, in the absence of all allegation of fraud or mistake, it will be pre- sumed that the written agreement expresses the final intention of the parties upon the subject matter of the contract". — Hull v. Brown, 35 W. 652, 656. 27. In a contract by an agent it may be shown by parol "that a person not a party thereto has rights under it because it was entered into for his benefit". See Principal and Agent. —Stowell v. Eldred, 39 W. 614, 627. 28. "In a number of cases which have come before this court, the doctrine has been laid down, that parol proof was admissible to show that a deed absolute on its face was in fact only a mortgage. (Cases) ". 29. "But in these cases and other like cases it was apparent that the conveyance, though absolute in form, was really intended to stand as a security for the payment of *a debt, and therefore the courts impressed upon it the character of a mortgage." 30. ' ' But it is obvious that the doctrine of these cases does not extend to the case where the parties, by some subsequent parol agreement, attempt to convert an absolute deed, or an absolute assignment of a land contract, into a conditional one." — Richardson v. Jobnsen, 41 "W. 100, 103. PAROL 807 31. A writing which "is only used as evidence of a fact," may be explained by parol. See Writings. —Clifford v. Baessman, 41 "W. 597, 600. 32. Endorsement of a note in blank, cannot be varied by paral. See Promissory Notes, etc. —Charles v. Demis, 42 W, 56, 58. 33. An agent who signs as principal, may be shown by parol to be the agent; but, the party signing cannot so be shown not "to J)e personally a contracting party". —Weston v. McMillan, 42 W. 567, 570. 34. A contract signed in blank, fraudulently filled in, is void, and the ' agreement "still rests in parol, and may be proved by parol testimony." See Omissions. T—Roimsavell v. Pease, 45 W. 506, 509. t 35. A signor to a note may be shown to be. a surety, by parol, where the creditor knows the fact. See Sureties. . — Irvine v. Adams, 48 W. 468, 474. 36. Contemporaneous or previous agreements, or of conversation or declarations at the time, are "conclusively presumed" to have been included within the written contract, and parol testimony of the same is inadmissible. See Contracts. —Cooper v. Cleffhorn, 50 W. 113, 120. 37. The rule as to parol evidence is "clearly and satisfactorily stated in the opinion by Chief Justice Shaw, in Underwood v. Simonds^ 12 Met. 275: 'The rule of law is well established, that parol evidence can- not be admitted to alter, vary or control a written contract, nor to annex thereto a condition or defeasance not appearing on the contract itself. ', ' ' 38. "Parol evidence is, undoubtedly, competent to show a, total or partial, failure of the consideration of a note or other written con- tract ; or ' > 39. Where only part of the contract is reduced to writing, to prove the portion which the parties have allowed to rest in parol ; 40. Or to contradict a mere receipt which does not purport to contain the contract out of which it arose ; 41. Or to show the manner in which, or the fund out of which, a note or obligation is to be paid, provided it does not vary the contract ex- pressed in writing; 42. Or to show a consideration different from that expressed in the writing; 43. Or to prove the oral agreement of the parties, if the writing does not profess to state it, but is made merely for the purpose of passing title pursuant to the agreement. 44. This court has approved of the admission of parol evidence for many of the foregoing purposes. (Many cases)." 808 PROBATE AND GENERAL LAW, CODIFIED "The admission of parol evidence for the various purposes above indi- cated does not constitute an exception to the general rule first stated. 45. It is received on the ground that the agreement to which it relates has not been reduced to writing. If the parties have reduced their con- tract, and the whole of it, to writing, and the instrument is free from ambiguity, or uncertainty, the courts have universally applied the rule, and excluded parol testimony to vary the terms of the contract. No court has done so with greater fidelity than has this court. (Many cases)." 46. "Of course, the foregoing remarks have no application" where fraud or mistake is involved. "To prove the fraud or mistake, parol evidence is freely received, and necessarily so. 47. But, as a sort of compensation for this apparent departure from the general rule, the existence of the alleged fraud or mistake can only be established by the most clear and convincing'evidence. As it is put in some cases, it must be proved beyond a reasonable doubt. A mere pre- ponderance of evidence is not sufficient." —Hubbard v. Marshall, 50 W. 322, 325. 48. The exclusion of oral evidence in connection with written is con- fined to three classes, and outside of these it may be admitted. See Writings. —Teegarden v. T: of Caledonia, 50 W. 292, 295. 49. A tenant in common can have specific performance of a parol con- tract of sale of his co-tenant's interest in land. See Specific Per- formance. ' — Littlefield v. Litttefield, 51 W. 23, 31. 50. While a verbal promise before the written contract, to build a shop and place machinery therein, is not admissible to vary the written contract, yet it is admissible "to show the intention" on the question of fixtures. See Fixtures. — Taylor v. Collins, 51 W. 123, 126. 51. A contract in the form of a receipt cannot be contradicted by parol: See Sale op Personalty. — -Schultz v. Coon, 51 W. 416, 419. 52. The lessor in an oral lease for five years, is held entitled to specific performance by reason of such a part performance that repudiation by the lessee would operate as a fraud on the lessor.' See Specific Per- formance. — Seaman, v. Aschermann, 51 W. 678. 53. A written agreement not within the statute of frauds may subse- quently be modified by parol. See Agreement. —Brown v. Everhard, 52 W. 205, 207. 54. ' ' This court has adhered strictly to the rule that a written contract cannot be varied or changed by parol proof. (Cases cited, supra)." 55. Where a vendor makes an entry in his memorandum book; of the PAROL 809 terms of the sale, signs it, and the vendee's agent also signs it in his own name, both' parties are bound by it as a written contract, and parol evi- dence to show that the sale was made by sample, is not admissible to vary it. See also Principal and Agent. . —Werner v. Whipple, 53 W. 298, 303. 56. To make applicable the principle, "that when only part of an entire agreement is reduced to writing, the residue may be proved by extrinsic evidence", "it must appear from the writings themselves that the whole agreement was not reduced to writing, and that the writings are incomplete to express the entire agreement". 57. "It is clear, from all authorities on the question, that when the contract is reduced to writing, and the writing purports to contain the whole contract, and it is not apparent from the writing itself that any- thing is left out to be supplied by extrinsic evidence, parol evidence to, vary or add to its terms is not admissible". 58. And it was held, that a deed containing an agreement for support, with a maintenance bond secured by mortgage, contained the whole agree- ment, and that parol evidence, to show that a considerable amount of personal chattels in possession of the grantee was included as a part of the consideration, was not admissible. Hubbard v. Marshall, 50 W. supta. — Hei, Admr. v. HelUr, 53 W. 415, 418. 59. "The doctrine that a deed absolute on its face may be proved to be in fact a mortgage", is "applicable to bills of gale of personal property,'" and a subsequent lien holder not a party may make such showing. —Mfrs. Bank v. Rugee, 59 W. 221, 223. 60. Where "the written contract shows only a part of the transaction and is silent as to the terms of the sale, such evidence is competent to supply the defect. (Many cases.") 61. "What should be the terms of the contract of sale seems to have been omitted. But if the written contract was obscure or doubtful on this point, parol evidence would be competent to make it certain. Mus- gat v. Pumpelly, 46 W. 660. 62. But on the ground that the contract expressed or implied ■ cash terms, then the testimony was equally proper to 'show a change of the contract, or a new one in that respfct. Brown v. Bberhard,' 52 W., supra". —Magill v. Stoddard, 70 W. 75, 77. 63. Parol evidence of an executory contract mentioned in a written contract, in an action for specific performance of the letter, was held "competent, 'not to vary the terms of a written contract or to explain patent ambiguities in it, 64. But to facilitate the construction of terms obscure in themselves, in relation to the subject matter, on the face of the contract.' " Lyman ' v. Babcock, 40 W. 503. 810 PROBATE AND GENERAL LAW, CODIFIED i 65. "Such evidence is proper, 'in order to ascertain the nature and qualities of the subject to which the instrument refers.' (Citations)". , , —Stmt v. Weaver, 72 W. 148, 150. 66. Under Sec. 2302, requiring a trust in lands to be "in writing, subscribed, etc.," a parol agreement at the delivery of a deed that the grantee grandfather "should take the deed and dispose of the lands for the benefit of" certain children, "did not make such parol trust abso- lutely void, but, at most, voidable at the election of the grandfather. Karr v. Washburn, 56 W., 303; Main v. Bosworth, 77 W., 664; Randall v. Constans, 33 Minn., 334. Such voidable and executed parol trust has i frequently been sustained as against the creditors of the trustee. Hyde v. Chapman, 33 W., 391; (other cases)". —Begole v. Eazzwd, 81 W., 274, 277. 67. ' ' The rule is well established that when only a part of an entire agreement is reduced to writing, the residue may be proved by ex- trinsic evidence. (Many cases). 68. So, when the time and manner of paying the consideration for a conveyance is not expressed, or is only partly expressed in the writings, it is competent to prove the same by parol. (Many cases) ". — Beckman v. Becknum, 86 W., 655,^660. 69. A receipt which "includes the elements of a contract", cannot be varied or explained by parol. See Settlement. —Conant v. Est. of Kirrioall, 95 W." 550, 555. 70. Want of consideration between the original 'parties to a promis- sory note may be proved by parol. See Promissory Notes. —Remington v. Detroit D. M. Co., 101 W. 307, 309. ■. 71. "The principle is quite well settled that parol evidence is ad- missible to show that a written contract, not under seal, of which there has been manual tradition, was not to become a binding contract until the performance or occurrence of some condition precedent resting in parol. Nutting v. Minnesota F. Ins. Co., 98 W. 26;* (other citations) "; but "such a defense is subject to suspicion", and "the rule should be , cautiously applied and the facts clearly proven. Reynolds v. Robinson, 110 N. Y. 654. 72. Furthermore, it is to be observed that the rule is that it may be shown that the contract is not to become binding until the happening of ( some event or ascertainment of some fact, but not that the contract is to be presently binding and to become void on the happening of some event. 73. If a contract is executed and delivered with intent to take effect, it is not to be thereafter avoided by virtue' of a condition annexed to PAROL 811 the delivery by parol". (.Quoted and followed in State ex rel. Jones v, Chamber of C, 121 W. 110, 114). —Thome v. Aetna Ins. Co., 102 W.593, 596. 74. Parol evidence is admissible to ascertain intention in a contract which is obscure. See Ambiguity. —Baden v. Maker, 105 W. 539, 543. 75. Distinction as to admissibility of parol evidence as to considera- tion in a deed. See Consideration. —Cuddy v. Foreman, 107 W., 519, 526. 76. Parol evidence to construe contracts, is proper only in case of ambiguity, and then "does not extend to mere conversations" leading up to the agreement. See also Ambiguity. —Johnson v. Pugh, 110 W., 167, 170. » , <,'■■' 77. A simple deed, or a promissory note, is not presumed to include the whole contract, and parol evidence is held admissible. See Con- tracts. — Brader v. Brader, 110 W^, 423, 431. 78. Parol proof to declare an express trust in land, must clearly show fraud apparent. See Trusts. — Duncan v. Duncan, 111 W., 75, ,77. 79. "An oral agreement to devise lands in consideration of services to be performed is not taken out of the statute of frauds by the mere performance of the services, although they be of a personal nature. Ellis v. Cary, 74 W., 176; Martin v. Martin's Est., 108 W., 284 (See Services) . " 80. "In the case of Ellis v. Cary, it is intimated that, if the promisee under such a contract were put in possession by the promisor under the contract, a proper case for specific performance would arise". —Rodman v. Rodman, 112 "W., 378, 384. 81. "Manual delivery" of a contract may "be proved to have been on a condition", by parol. See Contracts. f —Golden v. Meier, 129 W. 14, 19. 82. While a (land) contract may "be taken as the complete and final agreement" "at the time of its signature, it nevertheless constituted no obstacle to the making of a new, different, or substitutionary agree- ment thereafter by mutual consent". ,' - : ' 83. "Any sueh subsequent arrangement would constitute a new con- tract, resting mainly in parol,, and therefore provable by all ordinary means of evidence. . 84. If, as is found to be the fact, it consisted in re-adoption of a plan agreed upon or discussed before the written contract, the details 812 PROBATE AND GENERAL LAW, CODIFIED of such plan could Be proved to throw light upon the terms of the later oral contract, 85. Although inadmissible to prove that the written contract did not correctly express the agreement between the parties existing 1 at the time of its execution. Lathrop v. Humble, 120 W. 331". 86. In a deed "mere declarations, recitals, or acknowledgments, of existing facts, not contractual, at all" "are not conclusive, nor exclusive of other evidence". 87. "While a statement of consideration is "necessary to exist in order that the conveyance might take effect", yet it "may be proved, aliunde, to have been greater or less or different in character, as property or services instead of money, and the like, 88. So long as it is not inconsistent with the existence of some con- sideration to support the conveyance. (Many cases) ". — Jost v. Wolf, 130 W. 37, 40. 89. "The original contract (in writing) was not of a character required by the statute of frauds to be in writing, hence it might be modified or added to by subsequent parol agreement of the parties. 90. Nor need the modification rest on any new consideration: the original consideration is imported into the modification. (Cases)". — Wis. 8. F. Co. v. D. K. Jeffris & Co., 132 W. 1, 11. 91. "A written agreement may be modified after its execution by parol. , ,,; ; 92. The modification need not rest on any new consideration. Kelly v. Bliss, 54 W. 187 (See Rescission of Contract; other cases). , , , 93. But it is an essential part, of this rule that the parol negotiations effective for modification must take place after the written instrument was executed and in effect". 94. A "bill of, sale of the personal property was" in escrow at the time of "the parol agreement" for modification, and therefore "before the final execution of the written bill of sale and," such parol agree- ment "merged in that writing," and could not modify it. (Cases). —Schablasky v. Bwyivorth, 139 W. 115, 117. 95. Parol evidence is admissible "to show what the parties meant" by an ambiguous term. See Construction of Contracts. —Burton v. Douglass, 141 W., 110, 116. 96. "Where there is a distinct oral agreement" and "a written one covering the same subject", the former may be shown "as a matter of defense to a claim under the writing in case of the adverse party seeking to use such writing, for a dishonest purpose. (Cases)". See also Fraud. —Lepley v. Andersen, 142 W: 668, 670. 97. A. "subscription card is a unilateral contract. It contains the promise of one party only. In such case the promise or agreement of : ( , PAROL 813 the .other may be. shown by parol where it does not contradict the con- tract. (Cases)". 98. In .this view, as well as the fact that the purchase and agreement to re-purchase the stock "constitutes but an entire original contract" (Yohland v. Gelhaar, 136 W.75; see Frauds, Statute op),— "the court did not err in receiving parol testimony to prove the promise to re-pur- chase". , —Hmhwitz v. Barrett, 143 W. 639, 642. ■ :99. "It is a familiar rule that where there is an entire verbal contract and a writing merely made in part execution thereof, the balance may be established by parol. (Cases)". —Nelsay, v. Kress, 145 W., 38, 44. 100. "Among" "exceptions" to. "the rule that excludes parol evi- dence" to "contradict a written contract", "are the following: 101. (1) If the writing is shown by competent evidence to have been a mere part :6f an entire oral contract, and the oral contract is not inconsistent with and does not: contradict the writing, 102. And the writing does not. on its face plainly purport to contain the entire contract, then parol evidence of the oral contract is admissible. Corbett v. Joannes, 125 W. 370; Cuddy v. Foreman, 107 W. supra; (other cases). 103. (2) Where there is a distinct contemporaneous parol agreement, and one of the parties seeks to make use of a written agreement for purposes inconsistent with the parol agreement and under such circum- stances as to render such use fraudulent. Bra'un v. Wis. R. Co., 92 W. 245; Juilliard v. Chaffee, 92 N. Y., 529". 104. "A ease cannot be brought within the first exception by oral evidence of the language 'used by the parties in their negotiations or in their alleged contract, 105. Where relief is not sought on the ground of fraud or mistake and the parties stand upon' the contract and do not seek 'a rescission or reformation. ~ 106. The boundary lines of the second exception are not yet well settled, but it includes a case where the pleading makes a claim that the written agreement is being made use of, for purposes inconsistent with a parol agreement and under such circumstances as to render such use fraudulent". 107. " It is well settled law, however, that in the case of writings oral evidence may be given of extrinsic facts, conditions, and circumstances existing at the time of the writing andlbefore, 108. And forming no part of the. negotiations or of the language used' by the parties in their alleged oral contract.' Colt v. Paulson, 145 W. 214, and cases cited". 109. "Having properly decided that the writing did not contain the whole contract between the parties, 110. It. then followed that the real transaction! might be sifted to the , bottom and all that was said and done by the parties^ with reference to 814 " PROBATE AND GENERAL LAW, CODIFIED the purchase and sale became admissible". See also Frauds, Statute op. Specific Performance. — Kipp v. Lcmn, 146 W. 591, 597. 111. "The court properly received (parol) evidence of the negotia- tions leading up to the making of the written agreement for the pur- pose of showing the consideration paid", it reciting 'one dollar and. other good and valuable considerations'. 112. "Such evidence did not tend to vary or contradict the written instrument, but only to explain it. Klueter v. Jos. Schlitz B. Co., 143 W. 347". —Frame v. Attermeier, 147 W. 485, 488. 113. "Where the writing is but a part execution of an entire verbal contract; the parties having elected to permit the rest to remain in parol", "the latter can be established aliunde the writing" "outside the general rule as tb varying, etc". 114. "That, however, is limited by the proviso that the part of the entirety not embodied in the writing must not contradict it, nor the writing clearly indicate that it was intended to embody the entire verbal contract". —Harmon v. Kelly, 156 W. 509, 512. ■ 115. Where a written contract; is required, and such contract be lost, the contents may be proven by parol "clearly and satisfactorily shown". See Legacies. —Dilger v. Est. of McQuade, 158 W. 328, 330. 116. A written contract not within the statute of fraud, sec. 2307, may be modified by parol. See Fraud, Statute op. —Foley v. Marsch, 162 W. 25, 30. 117. ' ' The weight of authority seems to be to the effect that, where a controversy arises between a party to a contract and a third person, neither is concluded by the contract, but may show, (by parol) what the actual transaction was". But "we do not pass upon the question". —Nelson, v. Goddard & Co., 162 W. 66, 69. PARTIAL PAYMENTS. See Payments. i ! PARTIES. See also Husband and Wife. Transactions with Deceased Per- sons. Witnesses. Actions : Actions — continued Admr.'s sale for own debt, 3. Legacies; property jointly, 16. Interested; all in- Bubject matter, 9. All legatees and extra., 17. Judgment; recover money paid, 10. Plaintiffs; defendants, 18. PARTIES 815 Actions — continued ,t Tax deed; restrain issue of, 11. Not administrator, 11. Trusts; suits affecting; all, 4, 14. Cestui que trust, necessary, 31. 1 Chancery rule still in force, 33. ■i" Notwithstanding statute, , ,32. Construe personal clause, 35. , Declining executor, necessary, 35. Uninterested legatee, not bring, 34. ' Not party till brought in, 51. Numerous interested, 5. Sale to pay equitable liens, 20. Lien holders, plaintiffs, 20, 21. When rights are definite, 15. Discontinuance refused, 50. ' Another plaintiff substituted, 50., Estate proceedings: Extr. or admr. stand for all, 63., Only adverse party, 67. Eepresents the estate^ 68. Guardian ad litem; contested claim, 62. Appearance not as a right, 64. ' Appeared amicus curiae, 69". ^ ,, Irregularity waived by him, 70. With consent of court, 71. No control of litigation, 65. Not a party in interest, 66. Duties, however, applied, 66. Not essential to jurisdiction, 67. Notice of appeal; not served, ,62. Evidence: See also Probate Proc. Broader examination allowed, 22. Adverse, has not right to, 22. Credibility; influenced, 19. Witness as adverse party, 36. Husband and co-defendant, 56. Custodian, nominal only, 61. Husband nominal party only, 58. Rule adopted; nom. or represen., 59. Though subject to costs, 60. Wife not testify, when, 56. Husband, representative capacity, 37, 43,! 57. Both he and wife, testify, 38. -Husband and wife interest in, 37. Testify though not parties, 37. > Nominal parties, merely, 43, 59. Representative capacity, 37, 43, 57, 59. Testify' as to his intent, 46. Wills; legatees and heirs, parties, 40. Evidence — continued ,, ,, Husband and wife of, not, 42. Transactions with deceased, 41. Executor; also guardian, 54. Different parties, 54. Named in will; nominal, 55J ' Judgments: -..,,., Conclude parties and privies,. 9, , Jurisdiction; by consent, 1. Names: not initials, 12. Adopt name; bound by it, 53. Entitled by initials) 23. "' < '■" ''Estate -.of" instead of executrix, of, 44 - . Initials for Christian, 24. Good; better practice, not, 25. Known' by two different, 44. Both linked with' "alias," 44. Married , woman; maiden, 30. Baptismal; conveyances, 30. Entitled to husband's, 30. ; Not known; any name, 13. Wrong Christian name, 26: ''" Bill in equity; parties, 28. Corrected,; oral 1 proof, 26., Wills, and contracts, 27. Persons not in teing, 49. ' Represented by living, 49.' Represented by^trustee, 52. Probate proceedings: , • Conclusive on everybody, 40. Executor named, nominal, 55. Heirs and legatees parities,' 39. Disqualified as to sec. 4069, 41. Unless merely nominal, 43. ; Unless representative, 43. Husband or wife incompetent, 42. Cannot be agents, 42., Heirs, one side; legatees, adverse, 47. Adverse may waive competency, 48. Personem to an extent, 40. Proceedings in rem, 40. Transactions with deceased: Executor named, nominal, 55, r Means face to face, 6. Nominal parties, f merely, ' 43. ' <'•' Probate proc.; legatees, heirs, 40, 41. Husband and wife of, 42. Representative capacity, 37, 43. Testify to receiving letters, 7. Genuineness of letter, 8. Witness fees: not recover, 2. 1. "Consent can and does give jurisdiction of the parties"; but not —Walker v. Bogan, 1 W; 597, 626.. of the subject matter. 816 PROBATE AND GENERAL LAW, CODIFIED 2. A party cannot recover witness fees and mileage in his own behalf. — Ormnell v. Denison, 12 W. 402. 3. On an administrator's wrongful sale or pledge for his own debt, the creditors or distributees are the proper parties, and not the adminis- trator or his successor, to prosecute the action for recovery. See Extbs. & Admes. — Strcmaeh v. Strcmach, 20 W. 129, 133. 4. "The general rule in equity is undoubted that, in suits affecting trusts, the parties beneficially interested must be made parties". 5. "But this rule is subject to several exceptions;"; as in case of too, numerous parties and where "their rights are such as may be fairly and fully represented and tried without joining them". ' — Board of Suprs. v. Mineral Point By., 24 W. 93, 127,. 6. "The personal transaction or communication (with deceased per- sons) of the statute, no doubt, means a transaction or communication face to face, or by the parties in the actual presence and. hearing of each other". 7. "We must hold that it was admissible" for a party to testify that he had received by mail a certain letter purporting to be written by the testator before his decease to. the party. 8.i Such party may also testify to "the genuineness of the letter", if\ familiar with the handwriting of the deceased.- — Daniels v. Foster, 26 W. 686, 692. 9. "All persons having an interest in the subject matter", should be made- parties to an action, and "none but parties and privies are con- cluded by the adjudication." See Judgments. —McCoy v. Quick, 30 W. 521, 527. 10. "The real defendant who pays a judgment recovered against a nominal party, which is afterwards vacated, may maintain an action in his own name to recover back the money so paid". —Mann v. Aetna Ins. Co., 38 W. 114, 117. 11. The administrators are not proper parties in an action to restrain the issue of tax deeds. See Descent and Distribution. — Marsh v. Board of Suprs., 38 W. 250, 252. 12. "Every person is presumed to have two names, one Christian name and one surname". "Parties should sue and be sued by their. Chris- tian and surnames", and the use of initials is stated to be "a loose and vicious practice". 13. Where the name is not known "in that case the defendant may be designated by any name". —Ecllam v. Toms, 38 W. 592, 601. PARTIES 817 14. "The general rule doubtless is, that in suits respecting the trust property, brought either by or against the trustees, the cestui que trust asMwellas, the trustees are necessary parties; 15. But, there are exceptions to this rule", as when a cestui que trust's share "is definitely ascertained, and there is no reason why he should not have a separate : action for its recovery". —Hubbard v. Burrell, 41 W. 365, 372. 16. A suit to recover legacies "is properly brought jointly by the legatees whose legacies depend upon the same right, and would be alike affected by the" judgment. 17. AH of the legatees and executors are necessary parties to such a suit, either as, plaintiffs or defendants, because interested in the subject matter of the litigation; 18. And those who seek the same relief are properly made plaintiffs, and those who controvert their right to the relief demanded are prop- erly made defendants. (Gases)". ^-GaUi% v. Wheeler, 49 W. 507, 519. 19. The testimony of parties "may be more or less influenced", and their credibility is to be considered. See Impeachment op Witnesses. ^Stewart v. -Stewart, 50 W. 445y448. 20. In "an equitable action for the purpose of subjecting trust prop- erty to sale for the payment of equitable liens thereon, all the lien holders or cestui que trusts are proper parties to the action and may join as plaintiffs ; 21., And this is especially so where all their liens are based upon the same contract 1 and grew out of the same transaction ' '. —Wier v. Simmons, 55 "W. 637, 645; 22. The 1 court may allow, , but the adverse party has not the right to "a broader range of; cross examination" of a party. See Cross Exami- nation. — Norris v. Cargill, 57 W. 251, 255. ,23., "The summons and complaint are each entitled 'M., G. & C. Zwickey,', as plaintiffs, and the judgment is entitled" with given names ■written out., ' 24. "In civil proceedings in this state it is a common practice to use initials for the entire Christian name, as our records will show. 25. It may be the better practice — as we think it is— to use at least one entire Christian name in, the entitling of causes (Kellam v.; Toms, 38 W. supra), but as the general usage is not to do so, we must hold that an initial stands for the full Christian name". — Zwickey v. Eaney, 63 "W. 464, 466. , 26. "There is no principle better settled than that when a grant or any instrument is made to a person by a wrong Christian name, either Zimmerman — 52 818 PROBATE AND GENERAL LAW, CODIFIED by mistake or fraud, it may be proved by parol and corrected in^ any action, legal or equitable. (Many cases discussed) ". 27. "There is no difference between the application of this principle to wills and to contracts. 1 Greenl. Ev, 287. Such mistakes are classed as latent i ambiguities, to be explained by parol. 297; " 28. "Where any claim is made by the person whose name is so inserted, and any vested interests are to be disturbed, and there is any doubt about the mistake, then it would be proper to file a bill in equity to make the correction, and make the parties interested, parties". —Cleveland v. Bwrriham, 64 W. 347, 354. 29. A married woman named by her maiden name R. in' a mort- gage executed after marriage, "is not a fictitious person, but a person in esse. 30. True, since her marriage she is entitled to the name of her hus- band, Z., but we are/ aware of no law that will invalidate obligations , and conveyances executed by and to her in her baptismal name, if she choose to give or take them in that form". , • - —Lane v. Duchac, 73 W. 646, 654. 31. "It is a general rule in equity that in a suit respecting trust property, brought against the trustee, the cestui que trust is a neces- sary party." ■ ! '" 32. Notwithstanding Sec. 2607 ! may seemingly permit a trustee of an express trust to "be sued alone, without joining the other bene- ficiaries", and regardless of a remark in Swift v. State L. Co., 71 W., 476, indicating that under the statute he might "be held to represent all beneficiaries", which remark "was uncalled for, and is not to be taken as authority; " it is held that, — • 33. "According to the chancery rule, which is still in force, the beneficiaries are indispensable parties to an action against the 1 trustee, and the relief asked in this case cannot be granted in their absence. " —Birm v. Scott, 80 W. 206,. 211. 34. A legatee not interested in the construction of a trust clause in a will cannot bring a proceeding to construe it; 35. An executor who declines as such, not specifically as trustee, is "an essential party", in the construction of a personal trust clause. See Construction of Wills. -^-Sawtelle v. Ripley, 85 W., 72, 75. 36. Credibility when party is called as a witness by the adverse party; See Impeachment of Witnesses. ' —Gwnvy v. Kate, 89 W., 230, 231. 37. Where a husband sues in a representative capacity, in behalf of; himself and his wife, both having a real interest, but not nominal par- ties, "we hold, therefore, that in such a case as this both -the husband u PARTIES , 819 and wife are competent witnesses under the statute," though, "by the common-law rule neither of them could testify. " 38. "Where the husband' sues in a representative capacity as prochein ami or administrator, he is not thereby such a party in interest as to exclude his testimony or that of his wife. Leavitt v. Bangor, 41 'Me., 458; Boriett v. Stowell, 37 Vt, 258." —Strong, Admr. v. City of Stevens Point, 62 W., 255, 262. 39. In a proceeding to establish a lost will, not only were the residuary legatee "and the other legatees named in the will parties to the proceed- ings, but the several heirs at law were also parties to the proceedings;" 40. "Undoubtedly, a proceeding to admit a will to probate is a pro- ceeding in rem; but it is also, under our statute, a proceeding in per- sonem. to the extent that when the will is duly proved," such probate "is 'conclusive' upon all legatees; devisees, and heirs at law, as to- the due execution of v the will and that it was not obtained by fraud, or undue influence. ( Cases) . " 41. "Being parties, they were not disqualified" as witnesses, "but as they each and all claim a share or interest" in the estate, they are dis- qualified as to personal transactions with the deceased. Sec. 4069. (Cases). 42. And the husband or wife of such parties, is not a "competent witness for or against the Other in an action or proceeding to which v such witness is not 1 a party, (cases)," not being "or could be an agent for such a purpose," and therefore not "within any exception to the general rule at common law. " 43. (But 'competent when the interest of the spouse as a party is merely nominal, see. Robinson, extr., v. McGinnis, 145 W., post; or, is a party in a representative capacity merely, see Gordon v. Sullivan, ' 116 "W. 543, under Husband and Wife) . ••■(.■ • x —In re Valentine's Will, 93 W., 45, 50: 44. 'Where the "executrix was the party who actually made the con- test", on a claim in the name of 'estate of S. P. R.', instead of in her name as personal representative,— the error was not "of substantial importance", being a defect "of nomenclature simply". .'. -^Estate of Robinson v. Eodgkin, 99 W. 327, 332. 45. "Where a person is known by two different jiames it seems a very proper way to designate him in legal proceedings, in order to avoid the danger of a misnomer or variance" to give both names linked by the word 'aMas', " an : abreviated form of the words 'alias dietus', meaning 'otherwise called'." Anderson Law Diet. tit. 'Alias'. —Packard M. Co. v. Laev, 100 W. 644, 645. 46. "It is well settled that, where the issue on trial involves the intent of a party, such party may, in his own behalf > testify to his intent or his absence of intent. (Many cases) ". —Fischer v. State, 101 W. 23, 26. .820 PEOBATE AND GENERAL LAW, CODIFIED ,47. "The legatees and devisees are parties on the one side, and: the' heirs at law the parties on the other side, in probate proceedings.^ In re Valentine's Will, 93 W. supra, quoting Hall v. Allen, .31 W. 691". , ..48. .The adverse party may waive "any right to object to his com- petency" of the witness under sec. 406,9. , See Transactions with Deceased Persons. —Will of Hopfe, 102 W. 54, 55. 49. Parties not in being with possible future interests, "for all the purposes of litigation affecting the jurisdiction!', are represented by the parties in being. , ,See:TRUST'VARiATiON. , ,,, ; —Buggies v, Tyson, 104 W. 500, 506. 50. A plaintiff may be refused a discontinuance, and another plaintiff allowed to be substituted. See [Discontinuance. — -Linden Land Go. y. Milwaukee E. B. & L. Co., 107 W„ 493, 502. ' 51. "However necessary a party may be to the general purpose, of an action, it is not commenced against him until he is actually and by % name brought in". Levy v. Wilcox, 96 W., 127. i >', J , ,*,,,. — Gdgerv. Paul, 111 W-, 638, 648. 52. A trustee in an action construing a trust, is held, to represent and bind unborn issue, subsequently bom.. See Trusts. :. —Perkins v. Burlington L. & I. Co., 112 W., 509, 521. 53. "A person may adopt whatever name he pleases in his business dealings, and, if he uses such adopted name, he will; be bound by it. (Citations) ". So' held as to signature to a subscription as Nalty Fam- ily ' \ . —Hodge v. Natty, 113 W., 567, 572. ,54.. One as executor may recover from an insurance company, though he as guardian has already been paid the amount, being a different party. See Insurance. , —Stoll v. Mutual B. L. I. Co., 115 W. 558,; 564. . 55. An executor named in a will is merely ' ' a nominal party to the proceeding", for probate.! See Transactions with Deceased Persons. . '■•",■' -^Anderson v. Laugen, 122 W. 57, 62. 56. "Two lines^ of precedents exist in this state: one to the effect that the wife of a defendant is not a competent witness for the defense in an action against her husband and another in favor of the latter where her testimony is of such a nature that it would aid her husband as well as his co-defendant. (Cases) ; In re Valentine's Will, 93 W., supra. ' ■ i 57. The other is, where one of the spouses sues or defends in a rep- resentative capacity the other is a competent witness in the action. Gor- don v. Sullivan, 116 W. 543 (See Husband and Wipe). 58; Strictly speaking, neither of these precedents covers the instant PARTIES , 821 case", where the competency of the wife, not a party, as a witness is in question, her husband, personally, with "no siibstantial interest in the result"' being a co-defendant of another party. 59. "We adopt the rule that one of the spouses may be a witness in Behalf of a co-defendant of the other spouse when such defendant spouse has only a representative or a nominal interest in the action, 60. Even though said defendant spouse be subject to costs in ease of defeat. 61. "We consider the custodian of personal property who is made defendant in replevin with his ^principal, the owner of such property, as one having only a nominal interest". — Robinson v. McGinnis, 145 "W., 476, 477. 62. "Where a guardian ad litem appeared for minors in a contested claim in the county court, the executor also contesting, and notice of appeal was not served on such guardian, — after "the ordinary time" he was permitted "to waive all irregularities 1 , in that regard", and "the guardian participated in the second trial". Held: ' 63. "The whole case was removed to the circuit court on the seasonable service of notice of appeal upon the personal representative of the N deceased. He stood for all interests. , ,., 64. The (guardian did not appear in the county court contest as matter of right. There is no rule of court or statute; or unwritten law affording such right. ,,,., ,.'._. . . . -.! • . ■, , , ,: . 65. It was proper for such court to recognize the interests of the minors in the special way it was done, but that did not give, their special representative any control of the litigation. ; 66. He was not a party in interest as in Tyson y. Tyson, 94 W. 225 (,See Guardian ad Litem; the action there affected the t.itle of infants as "owners of a valuable interest in the real estate in question"). How r ever, being recognized to specially conserve the somewhat remote inter- ests of minors, the ordinary duties of the position, as suggested in Tyson v. Tyson, supra, applied. , 67. This was not a case where a guardian was essential to .jurisdiction. The only necessary party adverse to the, claimant was the personal rep- resentative. ■ ,.-,.'. 68. All interested in the estate, in the collective sense, really the estate itself, iyitalized ,by such representative, was the only adverse party to the claimant in the matter of hearing dn claims". . , , : , '69. "The guardian ad litem was permitted to appear after the .nature of, amicus curiae",— "not an adverse party within the meaning of the statute (sec. 4033), who is, entitled to recognition as such in appeal pro- ceedings. 2 Ency. PI. & Pr. 159. 70. However", '',' it was competent for the guardian, by permission of the court, to waive any irregularity there might have been in failing to recognize him as a party in the appeal proceedings. 822 PROBATE AND GENERAL LAW, CODIFIED 71. Such irregularities are waivable either expressly or by conduct. Kasson v. Est. of Brocker,'47 W. 79 (See Appeal) ". — Est. of Koch, 148 W. 548, 571, PARTITION. Action is equitable, 5. Action pending administration, 14. Common law rule, 3. Severance of property, 3. County Court: Procedure therein, 20. , Subordinate to claims, 7., Homestead: ., ., Action for including dower, 11. By widow in possession, 11, 12. Perhaps now maintained, 13. ' Not subject to, or sale, 8. <.;. Reversion subjected to, 8, 9. Statute still protects, 9., : Invest : not of appearing adults, 19. Absentees, infants, dower, 19. Parol, of land, effectuated, 1. Binding upon parties, 1. Title legal and equitable, 2. Personalty: severance, 3. • Incapable of division, 4. 'Reversion subjected, 2, 8, 9. Title, disputed, doubtful, 5, 6. First be settled, 6. Will may be construed, 10. Size of each interest, 10. Vested interest necessary, 15, 17. Not vest in future, 15, 16. To bring action for, 15. Will: may be construed, 10. Suspended division, 18. , 1. "A parol partition of land carried into effect by possession taken by each, party of his respective share according to the partition, is valid and binding upon the parties, and sufficient to protect the several pos- session by each, of his share thereof." 2. The legal title "remains the same as before; but such partition leaves each co-tenant seized of the legal title of one half of his allotment and the equitable title to the other half, with the right to the possession of the whole of his allotment in severalty". —Buzzell v. Gallagher, 28 W. 678, 681. 3. At common law "property held in common can only be divided by the consent of the owners, or by a proceeding in a court of equity;" but the right of severance always existed " as to all property in ,its nature severable". —Newton v. Howe, 29 W. 531, 535. 4. The rule as to severable personal property "cannot be applied to this property. The horse, buggy and harness are incapable of division, as a matter of eourse, and it is impossible for the court to say that the plaintiff might have 1 the possession of them to the exclusion of his co-tenants". —Wright v. Pratt, 31 W. 99, 104. 5. A partition action is equitable, and partition cannot be had "where the legal title is disputed and doubtful". —Beery v. McCUntock, 31 W. 195, 206. PARTITION ' 823 i .6. "A court of equity "Will not interfere to make partition while the legal title is in dispute, but will leave the parties to their legal remedies first to settle the question of title". (31 W. 195.) —Hardy v Mills, 35 "W. 141, 146. 7. Partition of real estate in the county court, is subordinate to ' ' the payment of claims against it. " See Claims. —Pierce v. Pierce, 64 W. 73, 75. 8. After judgment for partition and sale of realty, including the home- stead, on petition to stay and dismiss as to the homestead, the question not being as to the right "to sell the interest or title of the heirs in remainder or reversion after the homestead right of the widow," it is held, — "that the court had no jurisdiction to subject to either parti- tion or sale the homestead of the said widow, V., or to divest her thereby of her title to the same." "It would require positive legislation to subject the widow's homestead to the uncertain tenure of the capricious action of the heirs, whenever they might wish to have a partition or sale of the lands." 9. (The subsequent amendment of sec. 3101, by ,ch. ,283, L. 1909, apparently does not disturb this decision, but appears to include ordi- nary life estates under the same rule, and presumably allows partition of the remainder or reversion). — Yoelz v. Voelz, 88 "W. 461, 463. W. Construction of the will of a common ancestor of the parties, may be had to determine "the size of the interest- of each." "The case is clearly distinguishable from Deery v. McClintock, 31 W., supra", where defendant "set up a paramount title to the lands". -See also Construction of Wills. — 'Seam v. 'Hearn, 114 W., 428, 430. 11. Under the statute, sec. 3101, as then existing, it is held that a widow in possession of a homestead, cannot maintain an action of par- tition of such homestead and unassigned dower in other realty. 12. There is, not a joint or common possession, the widow being "in exclusive possession of the homestead", and the "unassigned dower right is not an estate in lands. (Cases) ". 1,3. (Perhaps, the amendment to sec. 3101,' by ch. 283, L. 1909, substituting the words "any estate" for "any estate in possession of", ' was intended to change the rule of this case.) ..,,.. —Vllricti v. Ullrich, 123 W. 176, 177. 14. An action for partition under sec. 3101, "may at least be insti- tuted, notwithstanding the mere pendency of administmtidn". See also Real Estate. — Himnan v. Hiwrmcm, 126 W. 191, 195. 15. "Sec^ 3101, provid'es that an action of partition itiay be main- tained 'by any person who has any estate in the lands of which parti- 824 PROBATE AND GENERAL LAW, CODIFIED tion is sought'. This means that he must have some interest in the lands that has vested prior to the commencement of the action. It is not sufficient that such an interest may vest in him in the future". 16. Where no interest vested in the remainderman until the death of the life tenant, held that an heir of such a deceased remainderman could not maintain the action:, See, also Vesting of Estates, etc. — Cashman v. Ross, 155 W. 558. 559. 17. Under sec. 31.01, "such estate or interest must be in him presently in order to entitle, him to maintain partition. Cashman v. Ross, 155 W. supra; (other eases)",; 18. Furthermore, even though the remainder had vested, where the will "directed that no division" "be made until the death of his daughter", "such a provision contravenes no law or sound public policy and must control". 19. "The statutes provide for the investment of shares of absentees, infants, and tenants in dower only, but not for the investment of shares of adult parties to the suit who appear in court". See also Vesting op Estates. — Greeney v. Greeney, 155 W. 621, 625. 20. (As to partition in county court and the procedure and forms applicable thereto,— see Zimmerman's Probate Practice, Ch. 18.) PARTNERSHIP. See Surviving Partner. PART PERFORMANCE. See also Parol,. Agreement to accept part, 8. Inducing other creditors, 8. Fraud statute, obviated: Delivery of possession, 2. Give up further litigation, 2. Mere part payment, 1. Payment; no other act, 4. Full payment, insufficient, Inducement to so act, 6. Operate; as fraud, 6. Other act; possession, 5. Lease for five years, oral, 10. Par,t performed; enforced, 10. Recovery for: Contract price governs, 3. Void entire contract, 11. Sale, realty and personalty, 11. Part, validated whole, 11. Void purchase agreement, 9. Accept part of goods, 9. Becomes binding, 9. 1. "Mere payment of a portion of the purchase money, unaceom.- panied.by any other act/ is not sufficient," to take the case out of the statute of frauds. Blanchard. v. McDougal, 6 W. 167. — Brandeis v. Neiistadtl, 13 W. 142, 152. ,2, Part performance, as delivery of possession, or "relinquishment of. further litigation". induced by an agreement that would oth«rwise\ PASSIVE TRUSTS 825 result in "an obvious fraud", enables a verbal agreement for the sale of lands, to be enforced. —Paine v. Wilcox, 16 W. 202, 217. 3. The special contract price must govern in the recovery for a part performance. See Quantum Meruit. ^Bishop v. Price, 24 W,, 480, 482. 4. "It is the settled doctrine of this court, that the mere payment of the consideration, unaccompanied by any other act, is not such a part performance of a parole contract for the conveyance of land as will authorize a court of equity to specifically enforce contracts of that character". i | 5. There must be some other act done to raise an equity in favor I of a party to a complete performance, such as the taking of possession of the lands sold under the contract by the purchaser; ' 6. Or one party must have induced the other so to act that if the contract be abandoned he cannot be restored to his former position, and a refusal to perform the contract will operate as a fraud". 7. Full payment in services rendered and money advanced, is held to be insufficient to compel specific performance. . , ' — Horn v. Ludington, 32 W. 73, 76. 8. An "agreement to accept a part" of a debt, which induces. qther creditors "to relipquish their demands", is binding. See Debts. -^Davenport v. First Gong'. Socy., 33 W. 387, 390. 9. "If the purchaser of goods under an agreement otherwise void by the statute of frauds, accepts a delivery of the goods, or some part of them, either .when the agreement is made,j or afterwards,. such agree- ment thereby becomes a valid and binding contract". j - ^-Amson v. Dreher, 35 W. 615, 618. • 10. Part performance of an oral lease for five years, and otherwise within the statute of frauds, is held to entitle a party to specific per- formance, ;See Specific Performance. — Seam&em v. Aschermann, 51 "W. 678. 11. As to part performance as to realty, of a void entire contract for the sale of realty and personalty, entitling performance as to the' whole. See Frauds, Statute of. -r-Kipp v. Lawn, 146 "W., 591, 602. PASSIVE TRUSTS. See Trusts. 826 PROBATE AND GENERAL LAW, CODUf'imu PAUPERS. See also Custody and Commitment. Definition: of pauper, 14, 15, 17. "Poor" in the statute, 18. Insane; support of, 24. Committed wife, 24. Pauper; question of fact, 13. Definition of pauper, 14, 15. In want, and no means, 17. Not the poor man, 17. Question of fact, for jury, 31. Belief as well as support, 29. Temporary relief, 13. Physician's services: County held not liable, 25. Unauthorized authority, 25. Poor houses: Not fit for children, 1. Some other asylum, 2. Possessed of property, 16. Emergency relief, 20. Distinction recognized, 21. Exhaust their resources, 19. Must apply it; sale, 16., Not a "poor person, "22. Effect Of support given, 22. Weak-minded children, 22. "Relief" as well as "support," 29. Medical services incurred, 30, 31. Public support of: Enforce relative's duty, 3. Not relieve the public, 4. Liability of county, 5. i Express or implied contract, 6. Claim for support, 6. Public's primary obligation, 4. "Relief" as well as "support," 29. Relatives support of: Common law; derogation, 27. Statute is exclusive, 27. Enforce a natural duty, 3. Past support, action fails, 28. Record Bhow ease proved, 7. Statute, is prospective, 26. Town, not colleet, 26. Town settlement: Lose, without gaining, 8. Notice; liberal construction, 10. Temporary absence, 11. First actual relief, 11. Voluntary absence, 9. While not pauper, 9. Town support of: Liable on request only, 12. When. entitled to "relief," 29. Question for jury, 31. Weak-minded children, 22. Money entrusted to father, 23. 1. Poor houses "are not fit places for children; without means of intellectual, moral or religious instruction, or for the peculiar care needed by children, especially children within the age of nurture." 2. "And it is manifestly better for poor children that they should be supported in some other asylum, where they may have fitting culture and better care ; where some person or body may stand to them in loco parentis," like an industrial school, even though intermingled with "vicious children". ■ Ryan, C. J. —Milwaukee Ind. Sch. v. Suprs., 40 W. 328, 332. 3. "The statute, (sec. 1502) contains provisions by which certain persons, having sufficient ability therefor, may be compelled to support in part or wholly their poor relatives. This is a compulsory proceeding to enforce what is deemed a natural duty, but it does not amount to a contract. 4. It is a remedy in aid of a public liability, proper and just enough, but does not relieve the public of its obligation to support its paupers." "The primary obligation remains" upon the public, notwithstanding the PAUPERS , i 827 remedy for contribution, though an order of the county judge for, con- tribution by relatives had been made. 5. The county was held liable for a claim for the support of a pauper, there being no agreement between the claimant and the authorities for such support, and the claimant not then knowing the person was a pauper. 6. (In Patrick v. T., of Baldwin, 109 W. 342, 347, it is said as to this decision: "In several cases it has been in effect overruled by holdings that a claim against a municipality for the relief of a pauper must be based on an express or implied contract, actually made between the claimant and the proper official"). —Mappes v. Board of Suprs., 47 W. 31, 33. 7. "We are strongly impressed with the idea that, in a special and summary proceeding like this (to compel support of indigent; rela- tive, sees. 1502-4), it should appear of record, in some way that a case was proved which sustains the order ; o,f the officer or court before whom such proceedings were taken. However, we do not determine the proposition". — T. of Eaton v. Williams, 51 W. 99, 100. 8. Under subds. ,4 and 7, sec. 15t)0, "it is clear that a person may lose his or her settlement in any particular town within this, state; and yet not have gained one in any other. " 9. "We think the voluntary and uninterrupted absence spoken of in ■said section must be construed to mean an absence, especially if the party resides within this state, during which the party is not a pauper needing and receiving support, and that it does not mean an absence . during which the town in which he has a legal settlement supports the absentee as a pauper in some other town in this state". 10. The effect and construction of prior statutes is discussed and liberal construction of the notice provision is indicated. -^Scoti v.. Clayton, 51 W. 185, ,191. ,/ 11. "It seems clear to us that if" a person was a pauper in the town of her residence, "and if it was the duty of that town to relieve her had she remained there, it is not released: irom, that duty merely because the first necessity for actual relief chanced to arise during her temporary absence" in another town, under sec. 1512. 12. "The defendant town cannot be held liable in this action in any event unless its supervisors, or at least two of ,them (sec. 4971, subd, 3), requested the plaintiff to board and lodge" the pauper. —McCaffrey v. T. of Shields, 54 W. 645, 647. 13. "This court held, in the case of Scott v. Clayton, 51 W. supra, and in Port Washington v. Saukville, 62 W. 454, 458, 'that it was in all cases a question of fact, when any temporary support was given to a poor person, whether such person was, at the time the support 828 PROBATE AND GENERAL LAW, CODIFIED v was so furnished, a pauper within the meaning of the statute . ' And so held in this case. —Town of Holland v. T. of Belgium, 66 W. 557, 559. 14. The court, applies the definition,— " the word 'pauper' to mean 'a poor person'; especially one so indigent as to depend on charity for maintenance; ! 15. Or one supported by some' public provision". — T. of Sadhville v. T. of Grafton, 68 W. 192, 195/ 16. While a poor person "is possessed of property not absolutely indispensable for daily use, he must apply it to his support by sale or by way of security". So held, and man and wife not entitled to sup- port, owning a house and three acres of land, valued at $1200, and incumbered by $450. 17. "It is the pauper, and hot the poor man in the ordinary sense of the term, the man not only in want, but who has no means or resources for relieving it, who is entitled to the statutory aid". 18. "The word poor in the statute (sec. 1513) has a restricted and technical meaning, and it is practically synonymous with destitute, denot- ing extreme; want and helplessness. ' Anderson Law Diet. 'Poor'; State ex rel. Griffith v. Osawkee, 14 Kan., 421." 19. "Until K. and wife had exhausted their resources they could not be considered as poor : persons, within the meaning of the statute for the relief of the poor. (Cases) . / 20. Doubtless Cases of ; distress may exist urgently requiring aid before the parties can resort to or utilize IJheir limited resources, not in and of themselves affording credit for immediate relief and pressing want". 21. (Followed in Coffeen v. Preble, 142 W. post, and stated of the present case that "the distinction is recognized," and "exists between 1 that degree of poverty and diligence which will entitle one to support from the town and that which will entitle him to' temporary relief in an emergency"). — Rhine v. Sheboygan, 82 W., 352, 354. 22. "Under the authority of Rhine v. Sheboygan, 82 W., supra," the party with some property was 1 held not a "poor person", but if supported as such by another town, the effect on his legal settlement would be the same as though he was, and his adult weak-minded children come under the same rule. 23. "The father is undoubtedly the proper person to be intrusted with money for the support of an adult child who is so mentally weak that he cannot understand the uses of money". —Ettrick v. T. of Bmgor, 84 W., 256, 261. 24. As to the support of insane, sees. 600, 604e, 604q, are discussed arid objects thereof indicated, and judgment for support by husband PAYMENTS ' 829 of an insane committed wife, in the absence of specific statute, set aside. (Subsequent Amdts. by ch. 376, L. 1905, and ch. 624, L. 1907, greatly alter these sections, and also specifically provide for insane wife's support by husband). — Richardson v. Stuesserj 125 "W. 66. 25. The county held not liable for physician's services for a poor person, performed on authority from members of the county board and the district attorney. — Hittner v. Outagamie Co., 126 W. 430. 26. Sees. 1502 et al., "are prospective in their character, and do not contemplate that a town or an individual may proceed to Believe a pauper and afterwards recover the amounts expended of the proper relative". 27. "The common law imposes no obligation upon a son to support his pauper parent", and under these sections "a new right has been created and a complete remedy for its enforcement has been provided with it. The law is well settled that in such a case the remedy pro- vided is exclusive. (Oases) ". 28: "The supervisors did not utilize the remedy provided by the statute, and hence the present action", for past support furnished, "must fail". , .. —Saxville v. Bartleit, 126 W. 655, 656. 29. The statute, sec. 1499, "provides for 'relief as well as 'support' in case of need", and it is indicated, that "the'D.'s were poor and indigent persons in need of relief or support", though they owned an equity in property worth about $300; 30. The issue being whether medical services incurred by the super- visors' authority may properly be re-imbursed, it is held, — 31. That "the question whether the afflicted person was so poor and indigent as 'to entitle! him to relief from the town notwithstanding he had some little property not edible or 'easily convertible was a jury question. (Cases)". , See also Rhine v. Sheboygan, 82 W. supra. —Coffeen v. Treble, 142 W. 183, 184. PAYMENTS. $ee also Marshalling Assets. Parol. Promissory Notes, etc. Acceptance of like contract, 22. Applicaljion : several contracts, 1, 13, 72. Appeal from judgment': " : . Debtor, apply as he chooses, 8, 10. Acceptance of conditions,' 38, 39, 40. When payment made, 8. /Questioned decision; 40, 4L Neither applies, equity applies, 12, 19. .Appeal from another part, 46. , Not presumption of intention, 73. Implied promise to restore, 57. Open current account, 16. Not' waived by payment, 27, 36. " Applied to earlier items, 16, 17, 20. Recovered on reversal, 37, 57, 58. Believes statute bar, 20. 830 PROBATE AND GENERAL LAW, CODIFIED Application — continued Pay without designation, 1, 11, 18. Creditor may apply, 1, 8, 14. Admitted debts only, 1. Rules fully stated, 10-15. Apply only to direct payments, 15. Creditor; account charged, 15. Authority to receive, 77. Demand of securities, 76. Failure; payor's negligence, 76. Possession of securities, 78. Claims : Admr. pay not purchaser, 3. Amount actually paid, 4. Credit on executor's claim, 71. Defense; not pleaded, 62. Extinguished; kept alive, 4. Defense of: Affirmative defense, 44, 47, 55. Not under general denial, 44, 56-. Burden upon defense, 47. , Did not shift, 48. Forged securities, not, 28. Must be pleaded, 44, 55. Not in county court, 62. Realty payment not, 64. Personalty pleaded, 63. No payment, in complaint, 53, 56. Unnecessary to state, 53. Valid securities, are, 29. I Definition; of "to pay," 59. "Payment" as discharge, 60, 61. Demand of , securities, , 76. Extinguishes the debt, 7. Part, pro tanto, 7. Interest; partial payments, 30. Limitation statute: Before or after claim barred, 31, .35. No payment presumption within, 54. . Open account; early items, 20. Limitation, etc. — continued . j ■Part payment after, barred, 35. , Part payment relieves, 5, 6. Negotiable instruments, 81. Person in possession, 81. Not in possession, 82. Authority; burden, 82. Note not, unless agreed, 9, 49. Evidence establishing, 52. Place of payment,' 74. At specified office, 79. Money deposited, payor's, 8.0. , Remittance by mail, 75. Residence of creditor, 74. Pleadings. See Defense of. Presumption of: Ordinarily against, 43. Overcome by evidence, 32, 34) 70. Recital in deed, 33. Twenty years past due^ 69. Protest payment: Compulsion of process, 23. Officer's demand sufficient, 25. Seizure not essential, 24. Void tax collection, 26. Receipt in full for part, 21. Conclusive, when, 21. Several liable: . • . < Payment by primary debtor, 65. Accommodation makers, 67. Makers eoniplete discharge, 65. Common law perpetuated, 66. Splido payment right, 53,. - Assignee has likewise, 50. Voluntary : Excess interest paid, 68. • To secure possession, 68. Not recovered back, 45, 68. ., Taxes before delinquent, 45. Not to protect, 45. 1. "When a debtor who owes money upon several distinct contracts, makes payments without designating upon which of the contracts he wishes to have the payments' applied, the creditor is at liberty to apply them in such manner as he shall think proper". But only on admitted debts or those which may be established by testimony. —Stones v. Talbot, 4 W. 442, 449. 2. "Where there are several notes fallingi due at different times, and secured by the same mortgage," "when no special equities intervened to vary the rule," "they are to be paid out of the mortgaged property'' ' ' in the order of their maturity, ' ' and not ratably. Contra, in some states. — Marine Bank v. Inter. Bank, 9 W. 57, 65. ■" PAYMENTS 831 3.' It is the duty of the administrator to pay and not to purchase outstanding claims, and "the presumption in all such cases is of pay- ment instead of purchase". 4. The administrator "can only recover of the estate the amounts he actually pays" for outstanding claims, and they will "be considered as extinguished, unless there should be particular reasons making it neces- sary to keep them alive" even where he pays his own money. —Gillett v. Gillett, 9 W. 194, 197. 5. Partial payments made before the statute has run, takes the case out of the statute of limitations. — Cleveland v. Harrison, 15 W. 670. 6. "Part paymnet (of a note) within the period prescribed (six years) takes a case out of the statute of limitations ". —Eaton v. GUlet, 17 W. 435. 7. "A payment enters into the very existence of the debt or obliga- tion upon which it has been made. A full payment extinguishes the debt entirely; a partial payment extinguished it pro tanto". r-Parry v. Wright, 20 W. 483, 485. 8. "A debtor may apply his payment to any debt he chooses. But he must do this when he makes it, otherwise the creditor may apply it". —Otto v. Klcmber, 23 W. 471, 474. 9. A promissory note is not a "payment unless expressly so agreed". See also Promissory Notes, etc. — Paine v. Voorhees, 26 "W. 522, 526. 10. "Where the debtor makes any payment to the creditor holding different demands against him, he has the right to apply it to what debt he pleases. 11. If the debtor makes no specific appropriation, the creditor may apply the money as he pleases. 12. And when neither party appropriates the payment, the law will- apply it ^according to its own notion of the intrinsic equity and justice of the case. 13. These rules obviously presuppose a payment made by the debtor to the creditor' where the former has the power of exercising an election as to its appropriation. 14. If the debtor neglects to exercise an option either at the time of payment or before the creditor exercises his right, then the act of appro- priation devolves upon the latter", i. 15. "The right to appropriate only applies where payments have been made by debtors to creditors, and where the former have an opportunity of directing application"; not where the creditor simply "charged to himself on the account book", as here, the amounts not being regarded as payments. ' ; i : ■ — Jones v. Williams, 39 W. 300, 305. 832 PROBATE AND GENERAL LAW, CODIFIED 16. "The rule with regard to an open current account is well settled, that, where the parties themselves fail to make the application of pay- ments, the law usually applies them to the extinguishment of the earlier items. -'17. That rule was recognized and applied in analagous cases in this court in Robbins v. Lincoln, 12 W. 1. and Turner v. Pieree, 31 W: 342. See also Fairchild v. Holly, 10 Gonn. 175. 18. The rule, as stated, by Mr. Justice Paine in Robbins v. Lincoln, is, that where the debtor makes no application of the payment when made, the creditor has the right to apply it as he pleases ; , 19. And that, in the absence of an application by either party, the court should make such application as will be equitable and just under all the circumstances. , 20. In Stones v. Talbot, 4 W\, and Jones v. Williams, 3"9 W., supra, the law in regard to the appropriation of payments is somewhat considered. In this case, upon this open running account, there surely is no injustice in applying the payments made by the defendant to the extinguishment of the earlier items. When this is done, it is obvious the balance of the account does not fall within the bar of the statute. ' ' — Eannan v. Engelmann, 49 W. 278, 283. 21. A receipt in full for part in satisfaction for the whole defot is not conclusive, except in case of compromise.' See Settlement. —Catlin v. Wheeler, 49 W. 507, 523. 22. "If it be so expressly agreed", acceptance of a like contract on the same , consideration, operates as a payment. 'See also Accord and Satis- faction. — Jaffray v. Crane, 50 W. 349, 353. 23. "We think it must be held, on principle and authority, that the payment of a demand under compulsion of legal process 1 , such payment being accompanied by a protest that the demand is illegal' and that the payer intends to take measures to recover back the money paid, is not a voluntary payment. • 24. And further, to constitute compulsion of legal process it is not essential that the officer has seized, or is immediately about to seize, the property of the payer by virtue of his process. 25. It is sufficient if the officer demands payment by virtue thereof, and manifests an intention to enforce collection by seizure and sale of the payer's property at any time". 26. The foregoing is in reference to payment of a void tax. —Parcher v. Marathon Co., 52 W. 388, 392. 27. "Payment of a judgment is no waiver of the right to appeal therefrom". See Appeal. —Sloane v. Anderson, 57 W. 123, 127. 28. ''A valid obligation cannot be paid or satisfied by transferring forged securities". IS PAYMENTS 833 29. "When payment is relied on as a defense, the defendant must prove the payment of money, or something accepted in its stead. If T. had transferred valid securities, the transaction would be regarded in law as equivalent to actual payment." —Guichard v. Brande, 57 W. 534, 536. 30. Eules for computing interest on partial payments, etc., are given. See Interest. —Case v. Fish, 58 W. 56, 111. 31. "We thought it our duty, once for all, to construe the statute (sec. 4247) and hold that part payment", either before or after a claim is barred, "in either case is sufficient to take the case out of the statute". — Engmann v. Est. of Immel, 59 W. 249, 259. 32. "The mere inference of payment arising -from mere lapse of time insufficient to overcome convincing proof of non-payment". —Delameij, Admr. v. Brumette, 62. W. 615, 619. 33. ' ' The execution and delivery of the deed acknowleding the receipt of the -purchase money, in the absence of any other proof, would be prima facie proof of the payment of s^ch purchase money; 34. But this presumption of payment may be rebutted by other com-' petent evidence which shows that it was hot in fact paid. (Many cases) ". — Crowe v. Colbeth, Admr., 63 W. 643, 645. ( 35. "An unconditional, unqualified, and unequivocal part payment, voluntarily made by the debtor or any person legally iliable to pay it, of a debt already barred by the statute of limitations, is sufficient 'evidence of a new or continuing contract, whereby to take the cause out of the operating statute of limitations' ". Engmann v. Est. of Immel, 59 W. supra, —Marshall v. Holmes, 68 W. 555, 559. 36. "The law is well settled that payment of a judgment is no waiver of the right to appeal therefrom, or to bring a writ of error to review it. .(Cases)". 37. "Money paid under such circumstances may be recovered back on the reversal of the judgment, on the principle that it belongs ex aequo et bono to the party paying it."- — Chapman v. Sutton, 68 W. 657, 661. 38. , In an appeal ' ' from the whole and every part of the judgment ' ', where part of the judgment was for taxes which were paid and accepted, and a -portion of _the taxes held invalid, it is said "that the right to proceed on a judgment and enjoy its fruits, and the right to appeal .therefrom, are totally inconsistent positions", and the appeal was dis- missed, 39. '"Upon the ground that a party cannot proceed to enforce and Zimmerman — 53 B34 PROBATE AND GENERAL LAW, CODIFIED have the benefit of such portions of a judgment as are' in his favor, and appeal from those against him". 40. (This case is questioned in Fiedler v. Howard, 9,9 W. post, but it is said that "perhaps this decision can be supported upon the ground that the acceptance of this money was an acceptance by defendant of the conditions of the judgment ; 41. But, independent of the conditional character of the judgment, no good reason is perceived why the defendant might not have received the amount adjudged absolutely to be its due, and still have sought to secure the tax decreed to be void"). '42. (And in Price v. Grzyll, 133 W., 623, 627, this case is cited as authority for the following: "The authorities are conclusive that one who accepts a beneficial condition of an order or judgment waives all objection thereto"). — Webster-Glover L. & M. Co. y. St. Croix Co., 71 W. 317, 319. 43. "There was no presumption either of law or fact, that the note had been paid. The presumption was that it had not been paid. 44. Payment is an affirmative defense. It must be pleaded and proved. It cannot be proved under a general denial. Bliss Code, PI. (3d. Ed.), 357, 358, and notes; Knapp v. Runals, 37 W., 135". —StudebaJcer Bros. Mfg. Co. v. Langson, 89 W., 200, 202. 45. Payment of taxes by the vendor of a land contract, which the vendee has agreed to pay, before the taxes were delinquent, "seems to have been purely voluntary", he not being "obliged to pay them to. protect himself", nor was requested by the vendee so to do. "A man cannot make another his debtor in that way". —Garles v. Roberts, 98 W. 173, 178. . 46. "Where a party is entitled" to a sum under a judgment, he may accept the money and yet appeal from another part of the judgment not involving the sum accepted. See Appeal. —Fiedler v. Howard, 99 W. 388, 396. 47. An alleged "payment was an affirmative defense, and the burden of proving it was necessarily upon the defendants. Knapp v. Runals, 37 W. 135 ; Studebaker Bros. Mfg. Co. v. Langson, 89 W. supra. 48. Such burden of proof did not shift during the trial. Atkinson v. Goodrich Trans. Co., 69 W. 5". — Euenster v. Woodhouse, 101 W. 216, 221. 49. That a note was received as payment, must 'be by express agree- ment. Proceeding therefor. See Promissory Notes, etc. —Willow B. L. Co. v. Luger F. Co., 102 W. 636, 638. 50. Where a cestui que trust assigned, by a general assignment of his stated income of a trust fund, "a sum siifficient to pay" a judgment PAYMENTS 835 against him,---the trustee, "is a mere debtor, and has a right to pay the installments, as they become due; in one sum. He cannot, against his will, be compelled to split them up. " 51. Following Skobis v. Ferge, 102 W., 122, it is held that "the debtor has a right to pay his debt in solido", "and no notice of the assignment of a part of the debt," "can destroy this right of the original debtor, without his consent." —Dugan v. Knapp,- 105 W., 320, 322. N>2. As to. evidence establishing a note as payment, and express con- tract. See Promissory Notes, etc. —McDonald v. Provident S. L. A. Soc, 108 W., 213, 218. 53. "The objection that the complaint (for services) does not state a cause of action because it is not alleged that the amount earned by plaintiff has not been paid is not tenable. 54. There is no presumption of payment within the period of the statute of limitations. 55. Payment is an affirmative defense, and must be set up in the ' answer, or evidence of the fact will be excluded". —Mealing v. Tigerton L. Co., 113 "W., 379, 382. 56. In an answer for recovery for services, the answer being "merely a general, denial", a deduction for payments not admitted in the com- plaint, "was not justified by the- pleadings", and erroneous. —Gardner v. Avery Mfg. Co., 117 W. 487, 489. 57. "Where a person receives money pursuant to a judicial determina- tion which is subject to review, there is an implied promise to restore it in case such determination be set aside, no superior equities inter- vening. ' ' 58. And it may "be recovered back in an action of indebitatus as- sumpsit, for money had and received". Clark v. Pinney, 6 Cow. 297, "is a leading case". — Harrigan v. Gilchrist, 121 W., 127, 441. 59. " 'To pay' means primarily to transfer or deliver money or other ' agreed medium from the debtor to the creditor; 60. And while the word 'payment' is often used merely to signify satisfaction or discharge of an obligation by any means, as by setting off some other or the like, as in Marinette v. Oconto Co., 47 W. 216, that is a secondary and somewhat loose use of the term. 61. Payment, of course, works satisfaction of an obligation; but the two are not equivalents, for satisfaction and discharge may be accom- plished without payment. (Many cases) ". —Oneida Co. v. Tibbits, 125 W. 9, 15. 62. The defense of payment to be available, is held not required to be pleaded against a claim in the county court. 836 PROBATE AND GENERAL LAW, CODIFIED 63. The value of converted personalty pleaded, held applicable to apply on such claim as part payment, ' 64. And the value of realty deeded, was likewise held properly applied though not pleaded, and not shown directly to have been so intended. See also Services. —Heber v. Est. of Heber, 139 W. 472, 475. 65. "It is a general rule of law that when an instrument upon which several are liable, some primarily and some secondarily,, is satisfied by him who is primarily liable, a complete discharge results. It no longer has legal existence. Jaffray v. Crane, 50 W., supra; (many cases.) 66. That rule of the common law is perpetuated as to negotiable instruments by sec. 1679 of the Neg. Inst. Act (L. 1899, ch. 356). People are presumed to act in the light of such rules of law. 67. Obviously, however, if the limit of the right to pledge the credit of the accommodation makers is not fixed thus, there will be no certain limit short of the statute of limitations". —Comstockv. Buckley, 141 W., 228, 231. 68. Where it is alleged that "plaintiffs were compelled to pay" "$964.15 interest, in excess, of the amount legally due" on a note, "in order to secure possession" "promptly" of bonds held as collateral, it is held "that all of the money paid was voluntarily paid, with full knowledge of the facts, hence it cannot be recovered back upon well settled principles of law. (Many cases)". — Burgess v. Commercial Natl. Bank, 144 W. 59, 65. i 69. ' ' The presumption of payment which by the rules of the common law arises from the circumstance of a debt being twenty years past due", 70. Is "one of fact merely, rebuttable by evidence of non-payment", and is not "one, of law, in legal effect extinguishing the debt". Delaney v. Brunette, ! 62 W., supra. — Holway y. Sanborn, 145 W., 151, 154. 71. Crediting items by executor as such on a note against him per- sonally is held to be payment of such items. See also Claims. ' — Est. of Morgan, 152 W., 138, 142. 72. The application of payments as stated in Stones v. Talbot, 4 W., supra, restated and followed. 73. As to two notes due, there is no "presumption of law or fact that the payor intended" "to make payment on the particular note." — Nelson v. Davison, 152 W., 567, 569. 74. "Where a contract for the payment of money is silent as to the place of payment, in the absence of any legitimate inferences to the contrary the law implies that payment, shall be made at the residence, office, or place of business of the creditor, if within the state". State v. Kenosha H. T. Co., 158 W. 371. PERMANENT IMPROVEMENTS' ; 837 75. "Payment by aremittanee by mail is" not "such, an established and generally recognized . usage of trade that it is implied and becomes part of. contracts". —State ex rel. Gurne.y L. Co. v. Bisjord, 161 W, 118, 120, 76. "When paid in full, a failure to demand and receive" the note and mortgage, "is deemed in law negligence on the part of payor unless excused by special circumstances. Spence v. Pieper; 107 "W. 453. 77. But want of possession of securities does not determine the ques- tion of authority. In 2 Corp. Jur. 625, the rule is thus stated: 78. 'The mere fact that the agent has not possession of the note or securities at the time of payment is not conclusive that he' has no. authority 'to collect the same, but is only a circumstance to be con- sidered in determining the question'." See also Principal and Agent. —Weigell v. Gregg, 161 W. 413, 417. 79. "The fact that 1 (the) bonds and' interest' coupons were 1 made payable at the office of the Trust Company did not make the Trust Company the agent of the bondholders to receive payment. 80. Money deposited with the Trust Company for that reason re- mained the property of the payor, and if lost it' was the loss of the payor. Ba,rtel v. Brown, 104 W. 493. 81. It is the established law of this state that payment of a nego- tiable instrument must be made to the party having possession of the same or to some person duly authorized by the payee, ito accept payment, 82. And that where the person to whom payment is made is not 'in' possession. of the negotiable instrument the burden is upon the party making the payment to show the agent's authority by clear and satis- factory evidence. (Many cases)." — Comnell v. Kaukchma, 164 W. 471, 496. PERMANENT IMPROVEMENTS. Claim for: }; Trust funds from corpus, 8." Improve in good faith, 1, 4. No authority in will, 8. Not when wrongfully held, 1, 3. Not even with consent, 8. Krst with acquiescence, 4. Trust property purchase, 7. Completed afterward, 4. Fraud, with knowledge, 7. Fraudulent realty purchase, 7. Void administrator's sale, 2. ■; Active participant, 7. Void contract; possession, 5. Part paid; contract fails, 6. .;, , 1. "As a general rule a party who wrongfully retains a title which , he knows he ought to convey to another, is not in a condition to claim pay for improvements. That claim belongs to those who improve' in ' good faith believing that the title is good." — Thompson v. Thompson, 16 W. 91, 94. 838 PROBATE AND GENERAL LAW, CODIFIED 2. On recovery of possession by the heirs on account of a void admin- istrator's sale of real estate, the value of the "permanent improve- ments" and taxes paid, was allowed the purchaser who acted in good faith. See Sale op Realty. —Blodgett v. Hitt, 29 W. 169, 193. 3. "There are eases which hold that where a party wrongfully retains the title and possession of property which he knows he ought to convey to another, he is denied pay for his improvements. Waterman v. Dutton, 6 W. 265; Thompson v. Thompson, 16 W. supra". 4. But where there was a default on the one side and the facts con- stituted such a waiver on the other as to justify a decree for specific performance, and the vendor in possession made 1 permanent improve- ments, first with the acquiescence of the vendee, and later to complete buildings already begun for the benefit of both parties, there being reason- able doubt whether the vendee could eventually comply with the condi- tions of sale, all in good faith, "the actual value of such improvements as he himself made of his own funds ' ', was allowed. See also Specific Performance. ■ — Benson v. Cutler, 53 W. 107, 114. 5. Where "plaintiff went into possession, worked the farm and made improvements under a void parol contract", "we do not see any sub- stantial ground for distinguishing the case from one where the purchaser has paid a part of the consideration money on a contract for the sale of real estate which for some reason fails. 6. In the latter case this court has approved of the doctrine which allows the purchaser, after a demand, to maintain an action to recover back what he has paid. (Cases) ". . —Clark v. Dwidson, 53 W. 317, 322. 7. A fraudulent purchaser of trust property, with actual knowledge of fraud, cannot be credited for improvements on property recovered. See Trustees. —Rowley v. Tesch, 88 W., 213, 241. 8. Funds of a trust estate cannot be taken from the principal, even by consent of the interested parties, there being no authority therefor in the will. See Power. — Mulberger v. Beurhaus, 102 W. 1, 9. PERPETUITIES. See also Charitable Trusts. Equitable Conversion. Absolute power somewhere, 18. Alienation unduly suspended, 16. Regardless of equivalent, 18. ' Trustees sell at any time, 16. Aim of statute, 17. Sufficient for statute, 16. PERPETUITIES 839 Charitable, not religious, 8. Trust provisions construed, 7, 8. •City, corporate purposes, 25. Not being a trust, 25. Devise valid in first taker, 10. When condition is void, 10. English doctrine of, 1. Equitable conversion, 31. Not apply in such case, 31. Exceeding twenty-one years, 4. Express sale direction, 5. Includes all to limit, 5. No equitable conversion, 6. Gross term; and gestation, 23. Existing infancy, 23. Life of longest liver, 28. All candles at once, 29. Confuse provisions, 27. Number, not of life estate, 30. But of lives in being, 30. Personalty : Common law rule, 1, 3. Not in force here, 22. Private trust perpetual, 24. Alienation not suspended, 24. Bealty to charitable use, 32. Not apply in such case, 32, Rents and profits: Successive devises of, 26. Without sale power, 26. Statutes, limit to realty, 2, 22. Suspension of ownership, 19, 20, 21. Differs from power supervision, 19, 20, 21. Terminate in any event, 9, 12, 13. Persons be undetermined, 13. Power may be in suspense, 13. Within the period, 9, 12. Trust to city sustained, 11. Twenty-one years from will, 15. "Permissible under statute, 15. 1. "The English doctrine of perpetuities applied" to both real and personal estates, "but not to trusts for charitable uses." 2. Our statutes "prohibiting perpetuities, and regulating- uses and trusts ", " are expressly limited to realty. " See also "Charitable Trusts. ^-Dodge v. Williams, 46 W. 70, 95. 3. ' ' The common law rule of perpetuity as to personalty may be un- • affected by our statute ' '. 4. Where "the power of alienation is suspended for the period of twenty years", as to realty and without reference to lives, it is held that "this comes within the express prohibition of the statute, and is Void". (This was before the amdt. by ch. 551, L. 1887, to sec. 2039, adding to two lives the words "and twenty-one years thereafter". "Under the present statute, however, no term not exceeding twenty- one years is prohibitive". Will of Kopmeier, 113 W. post). 5. "The express direction for the sale of the land at the expiration of twenty years excludes all authority to make any previous sale. ' ' 6. This precludes the application of "the doctrine of equitable con- version" to sustain the will. See Equitable Conversion. 7. A trust giving the benefit of the income "to the trustees of the Baptist and Methodist societies of the village of D." for a term of years, is not "a devise of real estate to a 'literary or charitable ; cor- poration,' and for the 'sole use and benefit' of such corporation, within the meaning of that exception ' ', under sec. 2039. 8. "We think the charitable corporation there referred to is not a religious corporation. ' ' — Be Wolf v. Lawson, 61 W. 469, 474. 9. "The rule is universal that such suspension of the power. of aliena- ' tion must necessarily terminate, under any and all circumstances, within 840 PROBATE AND GENERAL LAW, CODIFIED the period prescribed by the statute, or the disposition will be void. Schettler v. Smith, 41 N. Y. 328; Knox v. Jones, 47 N. Y. 397". ( —Ford, extr. v. Ford, 70 W. 19, 61. 10. As to a devise being valid in the first taker, where conditions attached thereto are void under the perpetuity statute. See Construc- tion op Wills. —Saxton v. Webber, 83 W., 617, 629. 11. The statute held applicable to realty (changed by ch. 511, L. 1905), and a devise in trust to a city for a charitable use, not sus- tained. See Charitable Trusts. —Beurhaus v. Cole, 94 W., 617, 631. 12. As to future estates, see. 2038, "the principle is that, in order to make the future estate valid, the suspension of the power of alienation must under all circumstances terminate at or before the termination of the second life. It is not sufficient that it may so happen. It must so happen in every possible contingency". (Approvingly quoted in Eggleston v. Swartz, 145 W. 106, see Life Estates). • 13.. v The power "may be in suspense", and the persons "undetermined during the -two lives in being, if at the close of that period the suspen- sion must absolutely terminate ' ', as here, where the contingent remainder "must Vest in possession, if it vests, at all", "at the termination of the second life in being at the creation of the estate. Schettler v. Smith, 41 N. Y. 328 ; Ford v. Ford, 70 W. supra. This satisfied the statute." See also Trusts. — Tyson v. Tyson, 96 W. 59, 68. •14. The statute, as to personalty at least, "has no application to gifts for charitable purposes". See Charitable Trusts. —Harrington v. Pier, 105 W. 485, 493. 15. Suspension of the power of alienation for twenty-one years from the date of the will, is held permissible under the statute, sec. 2039. See Construction of Wills. —Will of Koptmier, 113 W., 233, 238! 16. Where alienation of realty held by trustees was otherwise unduly suspended, but "the trustees were given the amplest power to sell the Teal estate or any part of it at any time they might see fit", this was held sufficient to comply with the statute. Sees. 2038, 2039 ; 17. The statute is "aimed, primarily," not "at the prevention of perpetuities'', but "to prevent absolutely taking the title thereto (of realty) out of the field of business for a longer period than that named therein ' '. 18. "We adopt the doctrine that the absolute power of alienation is not suspended within the meaning of the statute so long as absolute ' power is located somewhere to alienate, regardless of the condition in Which the equivalent of the property alienated may be left; "fle PERPETUITIES 841 19. That undue suspension of the absolute ownership of an estate: is one thing, and unlawful suspension of the power of alienation of real estate is another; 20. That a trust term that does not involve the latter because of its; being characterized by a power to convert realty into personalty is valid in any event if, when the power is exercised, such trust does not involve the former; 21. And that, if there is no law as to the former, a trust that does not involve the latter, though it may necessarily continue beyond the statutory period for which the power of alienation of realty under the trust may be suspended, is valid. " \ i .„, N . 22. The decision in Dodge v. Williams, 46 W. supra, that ' ' ' the statute limiting the rule" against perpetuities tQ' realty, manifestly abrogates the English doctrine as applicable to personalty','' and that "the common-law rule as to perpetuities respecting .personalty" is not in force in this state, is specifically upheld. 23. The twenty-one year, term of the common-law "rule is a gross term and an existing period of gestation", and referable to and "limited by existing infancy". Cadell v. Palmer, 1 CI. & P. 372". —Becker v. Chester, 115 W. 90, 106. 24. A private trust may be perpetual, the power of alienation not being suspended. See Trusts. —Holmes v. Walter,. 118 W., 409, 421. 25. As to various phases of perpetuities, and as to the statutes not , applying where a devise is made to a city for corporate purposes though coupled with a condition or limitation, it not being a trust. See Char- itable Trusts. —Dmforth v. Oshkosh, 119 W., 26%. 267. . 26. As to successive devises of rents and profits, without power of sale, being void. See Trusts. —Will of Adelmcm, 138 W. 120, 123, 27. In construing a long will with '"rambling, confused, and inco- herent provisions", involving the perpetuity statute, it is held: . 28. "A devise of real estate 'during the life of the longest liver of two designated persons in being is, and has always been, considered' a devise for two lives in being, ■, 29. Just as a devise of real estate during the life of the longest liver of ten designated persons in being is for ten lives in being, and this is what was referred to by the expression, 'all the candles must be alight at once'. ■ 30. It is not the number of life estates created which we are to con- sider, but the number of lives in being which must expire before it can be ascertained in whom the title to the property shall vest. (N. Y. cases)". See also Vesting of Estates. : —Will of Harrington, 142 W. 447, 458. atz riiUiSATJi AJNJJ (iJiJNJKJJiAlj LAW, UUUl^IJbiiJ 31. As to "the statutes respecting perpetuities", not applying where- there is equitable conversion, 32. Nor to; "real estate devised to a charitable use", since the amdt. of sec. 2039, by ch. 511, L. 1905. See Charitable Trusts. —Will of Kmancmgh, 143 W. 90, 102. PERSONAL CHATTELS. See Legacies. Personal Estate. PERSONAL ESTATE. See also Sale of Personalty. Title. Action for admr. 's default, 18. i Admr. holds as trustee, 33. Advance to heir: Admrs. may at own risk, 5. Conversion of: Admr. may waive tort, 43. Sue on implied contract, 43. Defaulting; executor-devisee, 35. Estoppel rule applies, 35. Domieil: of owner; law, 1. Executor, residuary legatee, 34. Held as executor, 34. Goods and chattels; when, 26. Heirs: title by admn., 23, 25. Inheritable: is not, i4. Except heir-looms, 14. Jurisdiction : Location confers: non-resident, 31. Legatee or distributee, 19. Life estate in: Converted and invested, 11. Specific delivery: when, 12. Executor relieved, 12. Moving house: personalty, 13. Be<y, on either lot, 13. "Net personal estate," 32. Presumption of title: Furniture; widow's possession, 10. Possession of movable, 28. Question of fact, 28. Primary, for expenses, debts, 15, 34. Becovery of by administrator, 40. Heirs' equitable interest, 39. Lapse of time, when bar, 41. When heir converted to use, 40. Sale, of decedents': Admr. absolute power, 4, 9. General or specific, 4. Without any order, 6, 7. Before administration, 2. Notes and mortgages; no order, 7. No license to sell liquors, 8. Order protects; under appraisal, 6. Specific legacy; sale of, 9. Usually sold by admr., 16. Specific chattels, 16. Settlement : Between admr. and heir, 42. Prior to administration, 42. Without administration, 44. Party estopped, 44. Special administrator: Conversion not within sec. 3824, 37. 1. Personal property follows "the law of the domieil of the owner as to the transfer and disposition thereof." —Mowry v. Crocker, 6 W. 326, 331. 2 The sale of an intestate's property by his widow, before adminis- tration granted, confers no title. —EaU v. Wilson,. 6 W. 433. PERSONAL ESTATE 843 '3. "The legal title to the personalty is vested in the administrator". —Stark v. Brown, 12 W. 572, 582. 4. "An executor or administrator has an absolute power of disposal over the whole personal estate of his testator or intestate; and" "it cannot be followed by creditors, much less by legatees, either general or specific, into the hands of a bona fide alienee ' '. 5. An administrator "may, if he choose, but at his own risk", before the claims are adjusted or distribution ordered, assign a note and mort- gage as "an advance to thei heir." — Williams v. Ely, 13 W. 1, 6. 6. An administrator can "dispose of the personal ' effects of the in- testate, and give a good title, without any order of the probate court authorizing him so to do, because the title in law" vests in him. The only object for an order "would be for his protection in case the per- sonal property did not sell for its appraised value". —Munteith v. Rahn, 14 W. 210, 212. 7. "Administrator has authority to sell and dispose of notes and mortgages * without any previous order. ' ' — Cleveland v. Harrison, 15 W. 670, 674. 8. Administrator does not require license to sell liquors. See Liquors. —Williams v. Troop, 17 W. 463, 474. , , 9. The executor can absolutely dispose of assets. "So perfect is this right of disposition in an executor, that he may even transfer an abso- lute title to a specific legacy. And it is said he may even transfer the title to the property of the estate in payment of his own debt". — Boys v. Vilas, 18 W. 169, 174. 10. The possession by the widow of personal property (furniture) of a deceased intestate, there having been no administration "would not be presumptive evidence of title and ownership," as against the rights thereto of minor children. —Resch v. Senn, 28 W. 286, 291. 11. "The general rule" in case of bequests of the residue to remainder- men, subject to a life estate, is that "the whole property must be con- verted into money, and invested in permanent securities, by the executor." 12. But where the will indicates that the "legatee for life should , enjoy the property in its then condition, the bequest is specific"-, and of such property the executor is relieved from further liability on delivering it to such legatee. See also Construction op Wills. Life Estates. — Golder v. Littlejohn, 30 W. 344, 351. 13. In case of a house removed from one lot to another, '-'the presump- tion is that it was" attached to the soil in either case, "so as to form .844 PROBATE AND GENERAL LAW, CODIFIED part of the realty^ In transitu between the two lots, it was personalty, the subject of conversion". — Northrup v. Trash, 39 W. 515, 518. ■■ 14. While heir-looms "descend to the heir like real estate", "ordinary personalty has no heritable quality. It does not descend to the heir". ' 15. ' ' The administrator takes the legal title and possession, and the next of kin has only the mere right to it; or to the proceeds of it, on dis- tribution, after the estate is settled' and debts and expenses of adminis- tration are fully paid. And for the payment of these it is the primary fund. ' 16. If the property consists of specific chattels, it is subject to sale or exchange by the intestate in his lifetime ; and if it comes to the adminis- trator, it is. usually sold by him and converted into money, which is paid put and distributed in due course of administration." 17. il Under a will, the right to a legacy comes by the bequest; upon intestacy, the right to distribution comes by blood. But in both cases, the right is subject to the administration of the estate, and therefore * defeasible ". '■■ 18. "Upon the default of the executor or administrator, the right becomes a mere right of personal aetion against him". 19. "In any case, when title to personalty comes to legatee or dis- tributee, it comes from the executor or administrator, not' from the testator or ancestor. The title of the executor or administrator inter- venes between testator and legatee, between ancestor and next of kin. Pending the administration of the estate, the legatee or next of kin has no title". —Est. of Kwhe-ndall; Cramer's Appeal, 43 W. 167, 176. 1 ' 20. " In the absence of any statute of limitation of the time of grant- ing letters of administration, and of any statute making personal prop- erty, not an heirloom, inheritable, the only way the plaintiff (heirs) could acquire title to this note as the heirs of M. deceased, would be by administration and the : proper order of distribution. 21. This principle has been so recently and expressly decided by this court to be the law in this state, * that an extended reference to authorities elsewhere is unnecessary. In Estate of Kirkendall, Cramer's Appeal, 43 W. supra". 1 ! 22. ' (Much of the foregoing extracts in the Kirkendall case are quoted ' approvingly with the following cases cited as of like effect: Smith v. Denny, 37 Mo. 20; Leamon v. McCubbin, 82 111., 263; Hollowell v. Cole, 25 Mich., 345; Haynes v. Harris, 33 Iowa, 516; Lawrence v. Wright, 23 Pick. 128, in which' cases ''the same principle is recognized".) ■ ' ■■ 23. The heirs must obtain title to the note of the deceased, ' ' and avail themselves of the promise of the defendant to pay it, if at all, through the administration of the estate of their father. • > 24. Their recovery in this action would clearly be no bar to an action by the administrator, when appointed, who will have full title to the note, and may avail himself of this promise of the defendant to pay it." PERSONAL ESTATE 845 25. (In McKenney v. Minahan, 119 W. post, this and the Kirkendall case, supra, are quoted with approval and it is said "the general rule in this country is in harmony with the common law, and is the rule here"). See also Novation. —Murphy v. Hawrahcm, 50 W. 485, 490. 26. "Personal property" may be construed, under significant condi- tions, as including only "goods and chattels." See Construction op Wills. —Wolf, Extr. v. Schaeffner, 51 W. 53, 60. 27. In case of a will with noi executor named, no administration had or administrator appointed, neither the legatee nor her assignee "could get any title to the personal property, business, and good will" of the testator. Murphy v. Hanrahan, 50 W. supra. —Marshall v. Pinkham, 52 W. 572, 590. 28. "We think that possession of movable personal property," "is, as a general thing; a question of fact so far as to be testified to by a witness. It may, in a strict sense, be regarded as a conclusion from several facts. But counsel was at liberty to cross examine the witness, and force him to state just what particular facts he regarded as con- stituting such possession". — Trowbridge v. iSickler, '54 W. 306, 309. 29. "The statute (sec. 3940) manifestly intends that the order of assignment shall operate to transfer the legal title of the personal prop- erty to the persons therein named. It has in law really the same effect as an order of distribution". 30. And it is held that the assignment in specie of a note and mort- gage in the final order of distribution to the heirs,' vests in them the title thereof, and that they "can maintain this foreclosure action" thereon. —Ford v. Smith, 60 W. 222, 225. 31. "Location of personalty of a dteceased" non-resident, confers local probate jurisdiction. See Jurisdiction. —Bragg v. Gaynor, 85 W. ; 468, 485. 32. "The net personal estate" under section 2172, where the widow elects, defined. See Widow. —Ford v. Ford, 88 W., 122, 132. ,33. "The legal title or ownership of the personal estate of the in- testate, S v vested in the defendant as his administrator on his appoint- ment and qualification, and. he held this property as the trustee" of all persons interested for administration purposes. Est. of Kirkendall, 43 W., supra- Murphy v. Hanrahan, 50 W., supra. See also Claims. —Miller v. Tracy, 86 W., 330, 333. v 34. Personalty where held by an executor and residuary legatee who dies, may be recovered by an administrator de bonis non.. See Con- current Jurisdiction. , —Meyer v. Oarthwaite, 92 W., 571, 576. 846 PROBATE AND GENERAL LAW, CODIFIED 35. While the personal property, must primarily be first exhausted to pay debts and legacies, yet the rule of estoppel applies to a defaulting executor-devisee. See Legacies. — Hamilton v. Budkman, 118 W., 169, 174.. 36. Title to personalty of a deceased person can only pass by and through administration. See Title. — McKenney v. Minahan, 119 W., 651, 659. 37. In an action for conversion brought by an administrator under sec. 3824, ' ' a conversion during the time of the special administrator is not within the terms of the statute", "a special administrator" having the same "power to take and preserve the property" for the time being, "as a regularly appointed administrator". — Dixon v. Sheridam, 125 W. 60, 65. 38. "Upon the death of any person possessed of personal estate the legal title thereto and the right to possession thereof vests in his per- sonal representative and can only reach the heirs, ultimately entitled thereto', by due course of, administration. ' . 39. Therefore in the absence of some sufficient equity in favor of an heir who may have possessed himself of such personalty, the mere fact of his having an equitable interest therein as such not being one, 40. The administrator" "-has an absolute right to recover the value thereof from such heir in case of his having converted the same to his own use". 41. As to when the administrator is barred from recovery by lapse of time. See Limitations of Actions.. \ —Palmer v. O'Bourke, 130 W. 507, 509. 42. An administrator is held bound to a settlement made with the sole heir prior to administration. See Settlement. —McKeigu& v. G. & N. W. B. Co., 130 W. 543, 546. 43. Personal representatives, in case of conversion of estate property, may "waive the tort and sue on implied contract". See also Services. —Heber v. Est. of Heber, 139 W. 472, 475. 44. One in possession of estate personalty, and giving his note therefor pursuant to an agreement of settlement by the heirs without adminis- tration, is held "estopped from asserting the defense of lack of con- sideration". See also Settlement. — Schaewwetter v. Svhoenwetter, 164 W. 131, 135. PERSONAL SERVICE. See Service. PHYSICIANS 847 PETITIONS. See also Administration. Adoption. Amendments. Incompetents. Infants. Jurisdiction. 'Kin. Parties. Pleadings. Probate of Wills. Amendment after appeal, 5. Petition, etc. — continued County court, generally, 6. Presumed not sworn to, 1. County court rule, 6. Statute, strict compliance, 2. Fact3 accorded legal effect, 4. No inferences indulged, 2. " Heirs-at-law " ; relationship, 4. Verification: ■ Petition, verification, signed, 1. Not. signed or dated, 3. Jurat not signed, 1. Held sufficient, 3. 1. Where the petition for guardianship of an incompetent, and the verification were signed by the petitioner, but "the jurat not being signed by any person, the presumption of law is that it was not sworn to", and the petition was held insufficient to give jurisdiction. 2. "The rule in such ease is, that the requirements of the statute must appear to have been strictly complied with upon the face of the proceedings; and no inferences are indulged in in support of the pro- ceedings". See also Incompetents. * * —Appeal of Boyston, 53 W., 612, .619. 3. A petition for guardianship, dated, signed, and verified with the verification officially signed by the officer, but not dated, or signed by the petitioner, is held sufficient. See also Verification. —State ex rel. Hoffmcmn v. Day, Gdn., 57 W., 655, 660. 4. As to a petition, "at least in support of" an application to appeal under sec. 4035, "facts stated plainly according to their legal effect should be deemed to have been sufficiently stated", applying liberal pleading rules; and as to the term 'heirsrat-law' to signify necessary statutory relationship. See also Appeal. —Perry v. Scmfe, 126 W. 405, 410. 5. As to amendment of petition after appeal from order thereon. See Amendment. — Parsons v. Balson, 129 W. 311, 319. 6. (As to applications to the court in general under the county court rules, see §§ 458-463, and as to petitions for the various proceedings in county court, see appropriate chapters, — in Zimmerman's Probate Prac- tice). PHYSICIANS. See Expert Testimony. Privileged Communications. 848 PROBATE AND GENERAL LAW, CODIFIED PLEADINGS. See also Amendment. for Relief. Set-off. Bill of Particulars. Demurrer. Prater Abatement and in bar, 34. Bar overrides abatement, 35. Common law rule, 32. 'Pleaded in same answer, 33. ' Adequate law remedy: Answer, demurrer, ore tenus, 51. Admission, both pleadings, 83. Might not be conclusive, 83. Amendment : Adding count at trial, 10, 22. Not required to, elect, 10. After answer, without new answer, 36, 40, 65. Averments common to both, 40. General denial, effect, 42. New averments, 41. Original answer applies, 36, 37, 65. After judgment, proofs, 44. Defect corrected by answer, 43, 44. Conform with issue tried, 20. Evidence without objection, 17. Indefinite -tender; no objection, 79. Considered amended, 79. Immaterial variance, 4. Law action to equity, 70, 81. Now permissible, 71, 81. Law, continued as equity, 81. Limitation statute; discretion, 48. Oral decision, amending, 60. Writing, nunc pro tunc, 61. Power of, in county court, 72.. Tort to contract action, 11. Substitution; improper, 11. Claim in circuit court, 31. Allege absence of notice, 31. Construed : Code, liberally construed, 2. Common law against pleader, 1. Objection first at trial, 3. Greater latitude to sustain, 3. Than in demurrer, 3. Contract, express and implied, 54. Express contract, recovery, 55. Not quantum meruit, 55. , Recovery on either, 54. Copy served, different, 56. Prevails over original, 56. Corporate character : Of city, not pleaded, 36. Counterclaim : Equitable defense; when, 18. Must be so named, 23. County Cpurt: Amendment powers, detailed, 72. No pleadings except petition, 14. Appearance as answer, 16. \No formal answer, 14. Payment not required to be, 76. Petition in general terms, 13. Not with particularity, 13. Belief consistent with case, 15. Not specifically demanded, 15, 16. ' Strictness, not requisite, 12. Defect: corrected by answer, 44. Parties, by answer or demurrer, 47. Denials and admissions: Between words and folios, 39. Equity action: Law relief not grantable, 49. , Attention of court, 50. Equitable defense: Counterclaim in law action, 18. Mere defense, insufficient, 19. Frivolous : Argument required, 25. Not if required, 26. Mqre reading discloses, 27. General denial: Any fact alleged, disproved, 74. Facts by necessary implication, 77. Insanity, not proved, 5. Proof that cause never existed, 75. Information and belief denial, 21. Except knowledge presumed, 46. Public record, ignorance, 29, 73. Not available, 73. Pleading points out, 28. Representative capacity, 21. Limitation statute: Amended in discretion, 48. Available, pleading only, 6. Facts must be pleaded, 45. Pleaded or waived, 6. Money had and received, 30. More definite and certain, 80. Not appealable, 80. More than one cause, 62. Incidental connected matters, 63. Infallible test, 62. "Negligence or incompetency," 59. Mixed law and fact, 59. Payment: not in complaint, 64. Answer must Bet up, 64. Not required, county court, 76. PLEADINGS 849 Relief consistent with case, 15. Not specifically demanded, 16. Eight to discontinue, 9. State particular facts, 57. "By his fraudulent acts", 58. "Carelessness or negligence", 58. Supplemental pleading : Discretion of court, 7. May impose terms, 8. N. Y. rule followed, 8. Unverified, unsigned, by party, 66. Attorney's testimony as to, 68. Admissible as to weight of, 69. Inadmissible as to admission, 68. Unverified, etc. — continued Proceeding to trial thereon, 66. Admission conclusive, 67. Evidentiary after substitution, 67. Variance : Disregarded, on issues proved, 20, 44. Neither party misled, 4, 53. Immediate amendment, 4. Proof followed, 4. Ownership of notes; gift, 52. Payment; specific performance, 24. Pleadings and proofs, 4. ' Want of legal capacity, 78. Special demurrer, 78. 1. "In the construction of pleadings, the maxim of the common law is, that everything shall be taken most strongly against the party pleading". 2. "But the strict rule of the common law for the construction of pleadings is abrogated by the code. The rule now is, that, 'in the coni- struetion of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties' ". Sec. 2668. 3. "The rule is well settled, that a greater latitude of presumption may be indulged to sustain a complaint where the objection that it does not state a cause of action is taken for the first time at the trial, and after an issue of fact has been taken upon it by the answer, than where the same objection is taken by demurrer". , 4. "Where there was a "variance between the pleadings and proofs which misled neither party, and was therefore immaterial", it was proper for the court to direct a finding "in accordance with the evi- dence, and might have ordered an immediate amendment of the defect- ive pleadings without costs". —Eazleton v. Union Bank, 32 W. 34, 42. \ 5. Insanity of the defendant cannot be proved in his behalf under a general denial. See Insane Persons. —Whitman v. Lake, 32 W. 189, 194. 6. The statute of limitations may be pleaded or waived. "It is purely a personal privilege, and can only be made available by answer". —Dudley v. Stiles, 32 W. 371, 376. t 7. "It is in the sound discretion of the court to grant or refuse leave to interpose a supplemental pleading. Were it otherwise the statute would not require an application for leave to do so to be made to the court. 8. It being within the discretion of the court to grant such leave, it seems to follow that the court may impose equitable terms as a con- dition of granting the same''. This rule has been followed in New York and "is believed to be just and reasonable". Zimmerman — 54 »DU FROBATE AND GKEJNiiKALi XrAW, VUUIHIUJU 9. "The plaintiff had an undoubted right to discontinue his action/'; and there was "no error in that portion of the order". McLeod v. Bertschy, 33 "W. 176." But, see Discontinuance. —Damp v. T. of Dome, 33 W. 430, 434. 10. An amendment to the complaint adding a count on the original consideration, in a suit on an altered note, was allowed at the trial; and the court properly exercised its discretion in refusing to compel the plaintiff to elect which cause of action he relied on. See Promissory Note. —Matteson v. Ellsworth, 33 W. 488, 493. * 11. "An amendment before trial, which attempts to change the nature of the action from one in tort to one in contract", or vice versa, "is properly not an amendment, but a substitution of a cause of action different in nature and substance from that originally stated", and "the power of amendment does not go to that extent" in this state. —Board of Sup. v. Decker, 34 W. 378, 380. 12. "The same strictness of pleading is not requisite in The assertion of rights in that court (county), as in the courts of general common law jurisdiction. 13. It is sufficient if the petition show a valid subsisting right in favor of the petitioner, and assert, it in general terms, although not with the particularity of pleadings in courts of general jurisdiction". .14. ' ' Beyond the petition there are no pleadings in the probate court. No formal answer on the part of the respondent was or could be re- quired", p. 419. 15. "In any action at law or suit in equity, except where there is no answer, the plaintiff is entitled to any relief consistent with the case made by the complaint and embraced within the issue, although not the relief specifically demanded", p. 419. 16. ' ' This statutory rule, expressly governing in all ordinary actions, we extend to proceedings of this nature also, holding the appearance of the party adversely interested tantamount to an answer in other cases". See also Prayer for Relief. — Brook v. Chappell, 34 W. 405, 410. 17. "When evidence is admitted on the trial, without objection, great liberality of amendment is exercised by the court in order to conform the pleadings to the facts proven, and give the plaintiff the relief he may seem entitled to. ' ' —Bomol of Sup. v. Decker, 34 "W. 378, 380. 18. "The defense, being an equitable one, to be available in an action of ejectment, must be set up in the answer, and be accompanied by a demand for such relief as the defendant supposes himself entitled to." PLEADINGS 851 19. A mere equitable defense is not sufficient. There must be a counterclaim also." —Lombard v. Cowhwn, 34 W. 486, 493. 20. "The pleadings may at any time be amended to conform with the issue really tried, or the variance may be wholly disregarded". —Flamders v. Gottrell, 36 W. 564, 570. 21. As to plaintiff's allegation "That she was the executrix and residuary legatee", the "defendant averred that he had no knowledge or information sufficient to form a belief; and this form of traverse put that allegation in issue. To that extent, it is obvious, the affirmative of that issue was upon the plaintiff". —Wittmann, Extr. v. Watry, 37 W. 238, 241. 22. "It would be outside of the doctrine of amendment, and a Viola- tion of all principle and precedent, to permit a plaintiff to amend his /complaint by setting up a new and distinct cause .'of action accruing puis darrein continuance". —Shmners v. Brill, 38 W. 648, 651. 23. Hereafter a counterclaim must be "so denominated and the appropriate relief prayed". See also Set Off. 24. "The variance between a mere legal defense of- payment, and an equitable counterclaim for specific performance, is material and vital; and it cannot be disregarded, or cured by summary amendment of the answer on the trial", in this "action at law". —StoweU v. Eldred, 39 W. 614, 630. 25. "When answers or defenses admit of lawyerlike argument, such as courts should listen to, they are not sham in the sense of the statute. 26. When it needs argument to prove that an answer or demurrer is frivolous, it is not frivolous, and should not be stricken off. 27. To warrant this summary mode of disposing of a defense, the mere reading of the pleadings should be sufficient to disclose, without, , deliberation and beyond doubt, that the defense is sham or irrelevant. ' ' — Cottrill v. Cramer, 40 W. 555, 559. 28. "It seems to us that when a party is pointed to the record of an instrument in the pleadings, he is not permitted to answer that he has no knowledge or information sufficient to form a belief whether there is such an instrument or not." 29. "A party cannot plead ignorance of a public record to which he has access, ' ' and on denial of knowledge or information of the same by the defendant, "no proof of it was necessary under the pleadings." —Goodell v. Blumer, 41 W. 436, 444. 30. The form of the count in an action for money had and received, is extremely simple and " 'is merely stating that the defendant is 852 PROBATE AND GENERAL LAW, CODIFIED indebted to the plaintiff in a certain sum of money had and received by the defendant to and for the use of the plaintiff". I Chit. Plead, (16th Am. Ed.) 362; Grannis v. Hooker, 29 W. 65." See also Actions. —Wells v. Am. Ex. Co., 49 W. 224, 230. 31. It is necessary to allege absence of notice to creditors, in a com- plaint in an action on a claim brought in circuit court. See Claims. —Lwnmon v. Hackett, 49 W. 261, 272. • 32. "At commonlaw, pleading .in bar waived all pleas in abatement. Gould 31. • 33. The Code, however, allows defenses in abatement and bar to be pleaded in one answer. Suprs. v. Van Stralen, 45 W. 675. 34. But the Code does not permit the same defense to be pleaded in abatement and in bar. Dutcher v. Dutcher, 39 W. 651. 35. And when the same matter is set up to abate the action and to bar it, by all analogies the plea in bar must override the plea in abate- ment". (Quoted and approved in 130 W. 61, 66.) —Hooker v. Greene, 50 W. 271, 277. 36. In an action on an account, "the defendants pleaded payment to the plaintiff's complaint before its amendment, and although no answer was filed after the plaintiff amended his complaint, still the defendants had the right to permit their first, answer to stand as the answer to the amended complaint, and it does stand as an answer to the same, . unless it be withdrawn by them or they answer anew to the amended complaint. Yates v. French, 25 W. 661. 37. The case must be treated as though the defendants had answered the amended complaint by an answer of payment". —Enips v. Stefan, 50 W. 286, 288. 38. The corporate character of a city need not be pleaded, notwith- standing the statute, sec. 3205. See Judicial Notice. —Smith v. Janesville, 52 W. 680, 681. 39. It is held that "denials and admissions" which "are general of everything between certain words and folios", are "not according to the statute (Sec. 2655), which requires 'a general or specific denial of each material allegation of the complaint' ". —Collins v. Singer- Mfg. Co., 53 W. 305, 306. 40. "The defendant may, if an amended complaint is interposed, stand upon his answer to the original complaint, and it will be effectual as to all averments common to both complaints. 41. It may also be sufficiently broad to reach new averments. But if it is not, such new averments will be taken as admitted, unless a PLEADINGS 853 .farther answer thereto is made. In this ease" the original answer was :held to be sufficiently broad to cover both complaints. -, 42. "It should be remarked, however, that we do not think a general' denial pleaded to a complaint can operate as a denial of new averments of fact in an amended complaint". — Kelly v. Bliss, 54 W. 187, 192. 43. The complaint in a guardian's action to foreclose a contract, failed to show that the agreement had been "confirmed by the court", and "for this defect in the complaint the demurrer thereto should have' been sustained." 44. But the introduction of the record by the defendants "supplied the omission in the complaint. Under a familiar rule often acted upon by this court, the complaint may be amended, as well after as before judgment, to correspond with the proofs, or 1 the omission may be dis- regarded. (Many cases) ". — McKmney v. Jones, 55 W: 39, 45. 45. The facts, to make the statute of limitations applicable, must be pleaded. See Limitation of Actions^ —Paine v. Gomstock, 57 V. 159, 163. 46. "Except in those special cases in which the defendant is con- clusively presumed to have positive knowledge as to the existence or non-existence of a fact alleged in the complaint, we have no doubt that the defendant may interpose a denial in this form", "upon information and belief". —Stacy v. Bennett, 59 W. 234, 235. 47. ''The rule is well settled that a defect, of parties plaintiff must be taken advantage of by answer or demurrer, or it, is waived". , —Weatherby v. MeiMejofon, 61 W. 67, 68. 48. "The allowance or disallowance of an amendment to a pleading setting up a statute of limitations or a plea of usury, rests in the sound discretion of the trial court, under all the circumstances of the case". (Many cases). —Smith v. Dragert, 61 W. 222, 223. 49. In Denner v. C. M.. &'SVp. Ry. Co., 57 W„ 218, the complaint "contained a demand for relief which it was not competent for a court - of law toigrant, and for that reason alone it was held that the action was in equity", i '"•:■. ; 50. "It is immaterial that the question there arose upon a demurrer to the complaint, while here it rose upon an objection to a jury trial. ' ' "We think this case is ruled by the judgment in that case". , . . ' -^Fraedrich v.FUeth, 64 W. 184, 187. 51. As to an answer to the merits, demurrer, and demurrer ore tenus, in equity actions where there is an adequate remedy ; at law. '-See Equ1tt. > ; > —Sherry v. Smith, 72 W., 339, 342. 854 PROBATE AND GENERAL LAW, CODIFIED 52. Where the issue under "the answer was the ownership of the notes", and the "proofs showed" a gift, it was held not a "failure of proof", as "the substance of the issue" was the ownership and not the means thereof. 53. "A variance between the allegation and the proofs is not deemed material unless it be made to appear that the adverse party had been actually misled to his prejudice. Sec. 2669; (cases)". r-McNallyv. Mc Andrew, 98 W. 62, 64. 54. Trial on a mixed complaint on contract and on quantum meruit, without objection, entitled recovery on either cause proven. See Quan- tum Meruit. — Beers v. Kuehn, 84~W. 33, 35. 55. On complaint to recover on an express contract, recovery cannot be had quantum meruit. See Quantum Meruit. -^Pearson v. Switzer, 98 W. 397, 399. 56. Where the copy served, of a pleading, demurred to, differs from the original, for the purposes of the demurrer the copy "is the document under consideration," and "the party serving it is estopped from con- tending that the original paper differs therefrom". Knowles v. Fritz, 58 W. 216. — Hunt v. Miller, 101 W. 583, 584. 57. " 'The general and well-established rule in pleading is that the pleader should state the particular facts which constitute his cause of action or defense, 58. And a general allegation that the opposite party caused an injury or loss to the pleader by carelessness or negligence, or by his fraudulent acts, is not to be tolerated as a sufficient statement of facts, unless the opposite party is disposed to admit the truth of such general statements by a demurrer, or he takes issue upon them. Young v. Lynch, 66 W, 514". 59. "Negligence or incompetency is a mixed question of law and fact, and hence allegations of negligence or incompetency, as applied to the conduct of a party, are not mere conclusions of law, but rather state- ments of ultimate facts", to be so considered on demurrer, however, objectionable as being too indefinite. (Cases). —Doolittle v. Laycoch, 103 W. 334, 336. 60. "An oral decision amending the complaint, made by the court" "was entirely sufficient for that purpose (Baker v. Baker, 51 W., 538) ; 61. And we cannot disregard the court's declaration of what that decision was, reduced to writing and signed ten days later nunc pro tunc; certainly. not, upon the conflicting recollection of counsel." — Findlay v. Knickerbocker Ice Co., 104 W., 375, 378. 62. "The infallible test, by which to determine whether a complaint states more than one cause of action, is, Does it present more than one PLEADINGS 855 subject of action or primary right for adjudication? Gager v. Marsden, 101 Wi, 598. 63. If it stands that test, no matter how many incidental matters may be connected with the primary right, rendering other parties than the main defendant proper or necessary to the litigation for a complete settlement of the controversy as to plaintiff, or for the due protection of their rights as against him or between themselves, there is yet but one cause of action". See also Creditors' Actions. T-Adkvns v\ Loueks, 107 W., 587, 594. 64. Payment is not required to be alleged in the complaint, but "must be set up in the answer". See Payments. —Meating v. Tigerton L. Co., 113 W., 379, 382. 65. "When a complaint is amended after an answer thereto has been filed, that answer will stand as the answer to the amended complaint, unless it be withdrawn or a new one filed. (Cases) ". —Ellison v. Straw, 119 W., 502, 507. 66. An answer, unverified and unsigned by the party, "filed by his authorized attorney, and adopted by the client by proceeding to and' through trial thereon, was an, • 67. Admission conclusive only so long as the pleading remained unamended, but still evidentiary even after substitution of another answer. (Cases)". 68. Testimony of the attorney as to "collateral circumstances" as to the making of the pleading, was held inadmissible on the ground that it "was not receivable in evidence as an admission", 69. But admissible for ' ' deciding upon the weight to be given to the admission", when the "writing ceases to be a pleading, by reason of. presence of a substitute", it being then "of course only as any other declaration of facts — as an evidentiary admission of such facts". —Schultz v. Culbertson, 125 W. 169, 171. 70. As to a claim upon contract for money paid, where on appeal, on the evidence, the circuit ' ' court ordered the claim to be amended accord- ingly" granting equitable relief, there being "no evidence to support" the legal action, it is said, that, — 71. "It is not permissible to entirely change the nature of a cause of action by amendment, — substituting one in equity for one at law, or one on contract for one sounding in tort. (Many cases)". (Subse- quently changed by sec. 2836b, in ch. 219, L. 1915. See Jilek v. Zahl, 162 W. post) . — Gharmley v. Charmley, 125 W. 297, 302. 72. As to detailed powers of amendments of pleadings in county court. See Amendment: —Longwell v. Mierow, 130 W. 208, 211. ODD JfJttU15ii.XJi AINU UJlilN-BiitAU UAW, KjKJXJir JLEiU 73. "The allegation of the complaint on information and .belief" "that no license to sell the realty was granted", the positive, record information being available, — "are not sufficient to raise such ques- tion". Union L. Co. v. Chippewa Co,, 47 W, 245. —Steinberg v. Saltzman, 130 W. 419, 428. 74. "The general rule under the Code is that any matter of fact alleged in the complaint which the plaintiff must establish to make out his cause of action may be disproved under a general denial. (Many cases) . 75. That rule manifestly includes proof that the alleged cause of action never existed. (Cases)". - ! —HiUiard v. Wis. L. Ins. Co., 137 W. 208, 212. 76. Payment is held not required to be pleaded to a county court claim, to be available. See Services. —Heber v. Est. of Heber, 139 "W. 472, 474. 77. "When a fact is admitted by clear and necessary implication from other facts expressly stated in the pleading the admission so made is as effective as though it were specifically made and will not be over- come by a mere general denial. (Cases)". ^-Wolf Co. v. Ku-tch, 147 W., 209, 213. 78. If want of legal capacity to sue appears by the complaint, advan- tage thereof must be taken by special demurrer, or it is waived. See also Demurrer. — Jenks v. Allen, 151 W., 625, 628. 79. Where a "tender was not definitely pleaded in the answer, but the evidence came in without objection and the facts appear from the plaintiff's own evidence", "the pleadings may be considered, as amended in the furtherance of justice". —Kieferty. Maple V. M. H. F. Ins. Co., 158 W. -340, 342. 80. "An order requiring a complaint to be made more definite and certain is not appealable under the present appeal statute. O 'Connell v. Smith, 101 W. 68". — State ex rel. Schumacher v. Markham, 162 W. 55, 56. 81. "The ironclad rule that an amendment could not be allowed which would change the action from one at law to one in equity" (Charmley v. Charmley, 125 W. supra), "has. been changed" "by see. 2669a (ch. 353, L. 1911)", and "further progress along the same line has been made by sec. 2 of ch. 219, L. 1915 (sec. 2836b) ;" 82. And an action at law to. enforce a land contract, is held "rmist be continued as an action in equity to reform and enforce the land contract". -r-Jileh v. Zahl, 162 W. 157, 160. POLICY OF THE LAW 857 83. Where "the complaint alleges and the answer admits that the contract was made on a secular day", this, it is said, "might not be ■ 'conclusive if it appeared beyond doubt that the contract was fully com- pleted on Sunday". _ Zielica v. Worzallw, 162 W. 603, 607. PLEDGE. See Collateral Security. POLICE POWER. See Constitution . POLICY OF THE LAW. Contentions not revised, 3. Judicial tendency, 4. Day in court, entitled, 5. Executor : Assume to act as, ip. Unauthorized ' interference, 1] . Interest, duty, conflict, 1. Legacy condition : Capable of performance, 13. Good moral character, 12. Promotive of good morals, 14. Useful trade or profession, 12. Public charity, 8. Public charity — continued Care of destitute, 6. Helpless from any cause, 7. Public policy,:, Constitutional; is public policy, 19, Constitutional, not against, 17. ■ Decisions,' when considered, 16. Determined by constitution, 15. Legislature settles, declares, 18. Upheld whether invoked or not Valid statutes passed, 15. Uphold judicial sales, 2. Somewhat irregular, 2. Wills, not to avoid, 9. 20. 1. "The policy of the law is to shut the door against temptation and prevent a man from acting in a case where interest will directly conflict with duty". , —Puzey v. Senier, 9 W. 370, 376. 2. "It is the policy of this state, evident from its legislation during a series of years, to uphold, to . a reasonable extent, judicial sales fairly and honestly made, , although the proceeding preliminary thereto, or the record thereof, may be to some extent defective or irregular." Lyon, J. —Bladgett v. Hitt, 29 W. 169, 191. 3. "It is not the policy of the law to stir up the embers or to rekindle or allow to be re-kindled the fires of past strifes and controversies, the flames of which have once been extinguished or the burning quenched by reconciliation and compact between the parties. The law loves peace, and hates dissensions and turmoils and litigations, and all its policy 858 PROBATE AND GENERAL LAW, CODIFIED and maxims are against their being revived or unnecessarily pro- longed". 4. "The tendency of the judicial mind has always been, not to resuscitate contentions once fairly put to rest, nor to permit the way to be opened by which they may be renewed or further agitation suc- ceed". Dixon, C. J. —Kercheval v. Doty, 31 W. 476, 484. 5. "That every man is entitled to his day in court, and must have it, and cannot be affected in his person or his property, unheard or without the privilege secured to him of appearing or being represented' in his own defense, if he so desires, is a maxim the force and importance of which every good lawyer appreciates and one which no court ever surrenders". — Seifert v. Brooks, 34 W. 443, 447. 6. ' ' The political necessity and duty of the sovereignty to make pro- vision for the care of subjects or citizens, unable for any cause to take care of themselves, and destitute of other care, has been too long recog- nized in all civilized countries, too well established under the state, of governments of this country, to be regarded as an open question." 7. "All public asylums, here and elsewhere in the country, for the poor, for the insane, for orphans, for the helpless) and destitute by any cause, are witnesses to the political necessity of public charity". 8. "And we assume, as a principle underlying every consideration in this case, that it is the duty and policy of the state to provide efficient means, in its discretion, for the care of all destitute and helpless persons within it; that public charity, in such cases, is a public necessity". —Milwaukee J,nd. Sch. v. Swprs., 40 W. 328, 331. 9. "It is the policy of the law not, to seek grounds to avoid" wills. See Wills. —Dodge v. Williams, 46 W. 70J 91. 10. "The common law imposed severe liabilities upon one who with- out authority, assumed to afet as executor. 11. It always has been the policy of the law to prevent any unauthor- ' ized and unnecessary interference with the estates of deceased persons, and to confine the settlement of such estates to the legally appointed and qualified executors or administrators, acting under the scrutiny and control of the proper courts". ' —Samuel v. Est. of Thomas, 51 W. 549, 553. 12. A legatee's right to a legacy, at a certain time "is made depend- ent upon his being of good moral character and having in the mean- time learned some useful trade, business, or profession, in the judgment of the executors." 13. "We must hold that the clause in question is capable of perform^ ance by any person of ordinary intelligence, and not contrary to public policy. It is designed to put the beneficiary under wholesome restraint. POWER 859 14. It is not in contravention of good morals, nor any law, nor any matter of -conscience, but is promotive of good moral character. It is in no sense indefinite nor uncertain. ' ' See also Construction op Wills. —Webster, Extr. v. Morris, 66 W. 366, 389. 15. "The, term 'public policy' is frequently used very vaguely". "It is, however, quite a 1 definite thing. Public policy on a given subject is determined either by the constitution itself or by statutes passed within constitutional limitations. 16. In the absence- of such constitutional or statutory determinations only may the decisions of the courts determine it. (U. S. eases) . 17. This court has said : ' We know of no ground upon which a con- stitutional legislative enactment can be rightly spoken of as contrary to public policy" (Julien v. Model B. L. & L.Asso., 116 W. 79), and the remark is certainly correct. 18. When acting within constitutional limitations, the- legislature settles and declares the public policy of a state, and not the court". 19., "A constitutional statute cannot be contrary to public policy, — it is public policy. ' ' —Borgms v. Folk Co., 147 W. 327 v 351. 20. Where the situation is "One where the public policy of the state is involved", "it is the duty of the court to enforce such policy, irre- spective of whether it is invoked by a litigant or not. (Case) ". — Thrcmson v. Universal Mfg. Co., 164 W. 44, 70. POOR HOUSES AND POOR PERSONS. See Paupers. POST-NUPTIAL CONTRACT. See Marriage Contracts. POWER. See a^so Charitable Trusts. Construction op Wills. Future Contingent Estates. Deeds. Life Estates. Mortgages. Sale op Realty. Trust Variation. Vesting op Estates, etc. Wills. • Appointee: Contingent interest protected, 43, 44. Title, on act creating, 48. Deed without apt -words, 2, 32. Under instrument creating, 47. Foreign exectuor: Authority by will: "Without probate here, 68. Express or by implication, 4. Implied power: ' Within sec. 2102, statute, 4. "Convert into money" is, 6. 860 PROBATE AND GENERAL LAW, CODIFIED Implied power — 'continued Executor forbidden to sell, '25. Implied equitable conversion, 57. Implied designation of extr., 56. Lease for ninety-nine years, 71. Trustee, by implication, 25. Will commanded sale, 54. Implied, executor to sell, 55. Investment of proceeds, 53. Low interest rate upheld, 53. Injurying no one, 53. Mortgage on property sold, 53. Life estate with power, 11. Power without trust, 58. Consideration valuable, 67. Deed without mention, 58. Fee to purchaser, 59. - Eight to use and consume, 70. Sale power, personalty, realty, 70. Sell, for family support, 28. Includes here, mortgage power, 29. Not simplesale power; 30. Mortgage without power , mention, 31. Reformed to include, 31. Sell if three agreed, 12. Mortgage by two invalid, 13, 15. One received his share, 13. Sale by other, two invalid, 13. Not estopped, .15. Sole control, devise power, 39. Devise power unexecuted, 41. Court adjudges equally, 41. Not disposition ii life, 40. Use of corpus, construed, 11. Without apt power words, 32. Not execution of power, 32. Only conveys interest, 32. ' Statute not change rule, 33. Except where no trust, 34, 58. Mixed trust and power, 16, 24. Details only discretionary, 19. Executed also by successor, 18, 24. Not necessarily all trusts, 23. Not naked power, executed or not, 20. Not devolving on successor, 20. Other states, like statutes, 22. Power is imperative, 17, 19. May be compelled, 17. Relates to portion of principal, 21. "Portion" first discretionary, 21. But not unlimited, 21. "Shall seem to him proper," 16. Mortgage; is conveyance, 14. Carry out trust obligations, 29, 61., "Sell", may mean mortgage, 62. Language so construed, 63. Euture contingent interests, 66. Mortgage, etc., paid by another, 64. To protect remainderman, 65. Delinquent taxes, 65., Power of attorney to sell, not, 45, 60. To sell, does not include, 30, 46. In case of simple power, 30. Naked power annexed: Not mixed trust and power, 20. Not succeed to successor, 20. Not, always appoint trustee, 23. Power of attorney to sell, 45. Not power to mortgage, 45. Quit-claim deed: By one owning life interest, 2. Not will power sale, 2, 33. Not sale under power, 1. Several executors: ■ All must unite, 5, 10, 35. - >. Proceeds invested in personalty, 10. One exeeutor sell assets, 10: Sub. 3, sec. 4971, not apply, 9. Two of three sign, 7. Equity not compel third, 7. Unless arbitrary, capricious, 8. Within power of sec, 2137, 6. Sole surviving executor, 69. Testator's purpose fails, 26. "No duties upon trustees, 49. , Primary object also sale, 50. Valid power to sell, 50. Power not operate, 26, 27. To sell in a mortgage: Extr. of mortgagee may, 3. Variation of trust power, 36. Court cannot authorize, 38. Remainderman cannot vary, 38. Repairs from principal, 36. Remainderman agrees, 36. Will requires income for, 36. Special power cannot cut-offf 42. Common" law and statute, 42. Contingent interests protected, 43. Including contingent devisee, 44. Special power, or no power, 37. When beneficiary elects, 51. Duty to sell absolute, 51. Made to life tenant, 52. Though election power, 52. 1. An ordinary quit-claim deed "contains no apt words indicating an intent to sell under a power. On the contrary, its language natu- rally and properly relates only to the interest which the grantor owned in the land. ' ' POWEE ! 861 2. "And where such 'is the case, the party making the conveyance actually owning an interest (life) upon which it can take effect, it is held to be only a conveyance of that interest, and not an execution of the power" of sale under a will, sale being made by quit-claim only. —lowle v. Ewing, 23 W. 336, 338. 3. Under sec. 2156, as to a power to sell in a mortgage, "it is clear that the executor or administrator of the mortgage (e) may execute the power". See also Foreign Extrs. & Admrs. —Hayes v. Frey, 54 W. 503, 515. 4. ' ' The power to sell, whether expressly granted, or whether arising by implication, is an authority given by the will, and comes precisely within the definition of a power as denned by the chapter on powers, Sec. 2102". 5. ' ' Held- that the authority of the executors to dispose of the estate (realty) of the testator was a power, the execution of which required the united action of all the executors ; 6. Or, in other words, that the case was within sec. 2137, which provides that where a power is vested in several persons all must unite in its execution. The executors were vested with authority under the will to 'convert all the real estate not specifically devised, into money'. 66 W. 399". 7. Where a written agreement for 'the sale of realty under such power in the will, "was signed by two of the executors, but the third executor did not sign it, and refuses to carry out the contract by joining in the deed of conveyance", a court of equity will not "compel a specific per- formance of the agreement," 8. Unless "there are some circumstances which show that the dis- senting executor, in refusing to join in the conveyance, is acting capriciously and arbitrarily and not for the best interests of the estate" ; and such specific performance was refused.* 9. And Subd. 3, sec. 4971, ordinarily giving a majority of public officers, the right to exercise a conferred authority, is held not to. apply because of other express authority under the statute of power. 10. It is said that if the proceeds were invested in personalty, "one executor might then make a valid sale of the assets without the consent of the others, ' ' but that where the land has not actually been converted, "it is necessary for all the executors to join in the sale and conveyance to give a good title". —Crowley v. Hicks, 72 W. 539, 541. 11. Life estate with power of sale and use of corpus if necessary, construed. See .Life Estates. — Larsem v. Johnson, 78 W., 300. 12. A will devised realty to the wife for life, and provided that after her decease it should be sold and $200 of the proceeds paid to a son and the balance to a daughter; the will also authorized the wife to sell, 862 PROBATE AND GENERAL LAW, CODIFIED if she and the son and daughter agreed thereto, and to "pay the above sums, according to the above conditions, ' ' out of the proceeds. 13. Held, though the son "had been paid $200" prior thereto, that a deed and mortgage by the wife and daughter without proof that an "agreement was made by the three, altogether", such instruments were "executed without authority and contrary to the express terms of the will, and hence must be regarded as a nullity. ' ' 14. "The mortgages" were, in legal effect, conveyances. Rowell v. Williams, 54 W., 636 (See Deeds). 15. "The question involved being one of power, it is immaterial whether the deed was executed by the plaintiffs or either of them with knowledge of its contents or for a valuable consideration, and the same is true in respect to the respective mortgages". The plaintiffs were the wife and daughter, who brought the action to have the instruments declared void. —Ga&bel v. TKieme, 85 W., 286, 289. 16. The testator gave to H., executor, estate in trust, to " 'pay over to my daughter E. any portion of the principal of said trust fund, as it shall seem to him proper, for her comfort and support.' This is an express trust and a mixed trust and power, or a trust power. Sec. 2123 ; Perry, Trusts, 20. 17. The power is imperative, and imposes a duty on the donee or grantee, the performance of which may be compelled by action for the benefit of the party interested, , and not a power made expressly to / depend on the will of the grantee whether it shall be executed or not. 18. Upon the death of the original trustee, appointed by the will, the trust vests in the court, with all the powers and duties of the original trustee, to be executed by some person appointed for that pur- pose under the direction of the court, Sec. 2094. 19. , This power joined to the trust is imperative and must be executed, and the general trust is settled and fixed by the testator or settler of the trust. It makes no difference with such a trust power if the mode and details of its execution are left to the discretion or judgment of the trustee. Perry, Trusts, supra. 20. A power annexed to the trust, which may be executed or not in the judgment or discretion of the trustee, is a mere naked power, and will not devolve upon a trustee appointed by the court upon the death of the original trustee. Such a power must be executed by the original trustee and by no one else, and, if not executed by him, fails. ' ' 21. The "discretion, or 'as it shall seem to him proper'," relates to "the portion of the principal". "The beneficiary is entitled to any portion of the fund necessary or 'proper'," and fixing the 'portion' "is the duty of the trustee, in the first place. Such a discretion is by no means unlimited." And a payment of $1000 out of the principal, by a subsequently appointed trustee, is sustained, and the circuit court reversed. 22. "The statutes of Massachusetts, Maine, Vermont and New. York are like ours in this respect, and the eases cited" "are clearly in point." POWER 863 23. "We cannot (so) hold, and it is not necessary", that, "a trustee can be appointed to carry out the trust and execute the power in any ,case of an express trust", under our statute. —Osborne v. Gordon, 86 W., 92, 95 24. "A mixed trust and power," to be executed by an appointed trustee, citing Osborne v. Gordon, 86 W., supra. See Charitable Trusts. —Sawtelle v. Witkam, 94 W., 412, 415. 25. As to a power of sale by a trustee, by implication, where no express power is given, or where the executor is forbidden to sell. See Charitable Trusts. —Beurhaus v. Cole, 94 W., 617, 630. 26. It is "the general principle that a power of sale, however per- emptory in form, does not operate as a conversion in aid of a particular purpose of the testator where the testator's plan or purpose fails by reason of illegality, lapse, or other cause. 27. In such event an intention to convert realty into personalty will not be implied, and the property retains its original character, and goes to the heir or next of tin as real or personal estate, as the case may be. Bead v. Williams, 125 N. Y. 571". (Approvingly cited and restated in Harrington v. Pier, 105 W. 485, 496 See Charitable Trusts.) —McHicgh v. McCole, 97 W. 166, 175. 28. A will gave the widow a life estate, with "the right to sell and dispose of all" the property, and "full right and power to hold" the same and to conduct the business as the testator could, "for supporting herself and family " ; 29. In the circumstances of "the present case", "the intent of the testator was to give his widow power to mortgage the property as well as to sell and convey it". Kent v. Morrison, 153 Mass. 137, 10 L. B. A. 756. 30. "In so holding, we are not to be understood as holding that a simple power of sale will authorize a mortgage". -' 31. In a foreclosure and reformation suit, it is held, that ordinary mortgages without mention of the power, covered only the, widow's life ••interest, but that reformation be had, on the facts,, to include therein the power. w . 32. "The well-established rule at common law is that where a person has both an interest and a power, a conveyance which contains no apt words indicating an intent to exercise the power will be held to be merely a conveyance of the interest, and not an execution of the power. 4 Kent. Comm. 334, 335 ■ (other citations). ■ • 33. This rule was recognized and adopted in this state in" Towle v. Ewing, 23 W. supra ; and, held in New York on a similar statute, and "we are content to adopt this construction", to the effect that the statute see. 2149, does not change the rule, being intended only to apply 864 PROBATE AND GENERAL LAW, CODIFIED "whenever a single power exists under which a grantor may convey". Mut. L. Ins. Co. v. Shipman, 119 N. Y. 324. 34. (But, where the power, to dispose is "not accompanied by any trust", under sec. 2108 of the statutes, a deed of sale without mention of the power, is held to convey the fee, and the instant ease is distin- guished as involving a trust. Auer v. Brown, 121 W. post). —Lardner v. Williams, 98 W. 514, 519. 35. "This court has decided that all the executors must join in the execution of the power of sale under the will under which they act". —Crowley v. Hicks, 98 W. 566, 572. 36. Where a city as remainderman in a trust estate, agreed that ■expenses for repairs and improvements in trust property, should he paid out of the principal, it is held that such agreement "was ultra vires and totally so, and as said before, without regard to whether such expenditures were in part for permanent improvements, strictly so called", — the will devoting "the income to the payment of all repairs on the buildings", and there being available income. 37. ' ' There is no special power given to do anything to the buildings except to keep them in repair. As a general rule, unless such special power be expressly given to trustees, they cannot exercise it at all. (Citations)". 38. "There is no power in the trustees to change the plain scheme of the will, no power in the court to authorize any such eha-nge, and no power in the city of W. to vary it in any manner"., — Mvlherger v. Beurhaus, 102 W. 1, 9. 39. A devise to the wife of the estate "for and during her natural life", and "the full and sole control", and "the right to devise," to the family members, "shares as she may see fit at the time of making her last will", — is "intended to confer a life estate", "accompanied by a power to apportion the real estate among the children by will", following Knox v. Knox, 59 W. 172 (See Precatory Trusts) ; 40. It did not give ' ' to her the additional power of disposition, during her life", and "clearly conferred upon the widow a special power in trust, as denned by sec. 2122; for under that section a 'class of persons other than the grantee' was entitled to benefit from the disposition authorized by the power". 41. And the power being "unexecuted, its execution shall be adjudged in the circuit court for the benefit equally of all" the chil- dren. Sec. 2127. —Derse v. Derse, 103 W. 113, 115. 42. "It is firmly established, both at common law and by statute, that a special power, to be executed by will, cannot be executed in any other way, or released, or extinguished so as to cut off a taker not par- ticipating in the extinguishment and who is entitled to take in case the POWER 865 power be not executed in the manner provided by the donor of the power. ' ' 43: "If the title be liable, upon the happening of a contingency, to go over to other persons; their interests will not be affected by the con- veyance. ' ' 44. "If there is an estate with a devise over which may take effect, on a contingency, such estate cannot be used for the benefit of the precedent holder without the consent of the contingent devisee or ven- dee. (English cases.) " See also Trust Variation. —Ruggles v. Tyson, 104 W., 500, 517. 45. Power of attorney to sell realty does not confer power to mort- gage. .See Deeds. — Minnesota S. Go. v. McCrossen, 110 W., 316, 320. 46. As to power of sale in a will not conferring power to mortgage, and as to the power of court to authorize transfers of title. See Sale of Realty. —Bloor v. Smith, 112 W., 340, 346. 47. ' ' The principle is familiar that the appointee under a power takes under the instrument creating the power, not under that executing it. 48. His title rests upon the act creating the power and takes' effect as if created by the original instrument. Doolittle v. Lewis, 7 Johns. Ch. 45; 18 Am. & Eng. Ency. of Law, 925". See also Insurance. —Led&buhr v. Wis. Trust Co.', 112 W., 657, 661. 49. Where a ' ' trust attempted to be created-' ' by a will, failed— in that "no duties being imposed upon the trustees such as are permitted by sec. 2081, to support the grant or devise in trust, so as to vest the legal estate in the trustees ' ', it is held, — 50. There was "a good and valid power in trust to sell and convey" the lands, either under sec. 2082 or 2084, that being also ' ' the primary object of the trust". 51. Where "they must sell whenever the beneficiary so elects", "the duty of the trustee to sell is clearly absolute, and not discretionary". 52. Such sale is valid, though "made to the life tenant, who had an election as to when it should be made", the price being adequate, and : there being no allegation of failure "to make every exertion to obtain the highest possible one". 53. "When power of investment of proceeds exists", "it is recog- nized that acceptance of mortgage on the property sold is a proper, exercise of the trustee's discretion", for "a reasonable amount" of the sale price. And a low rate of interest 2%, and a mortgage of $15,000, on an $18,000 sale, for 25 years, while not approvable, was here sus- tained as injuring no one, the life tenant outliving the term. — McLenegan v. Yeiser, 115 W. 304, 309. Zimmerman — 55 866 PROBATE AND GENERAL LAW, CODIFIED 54. "Where the sale of real estate is commanded by a will, obviously as a part of the settlement of the estate within the province of the probate court, and preliminary to the final accounting and distribution, 55. The implication, in the absence of anything to show a different intention, is that the executor selected by the deceased to administer said estate and to execute said will, is the person to perform such step, which is a part thereof. (Cases)." .56. In such case sec. 2128 does not apply, as by so "directing such sale", the testator impliedly "does designate such executor as the person to perform the act. Meakings v. Cromwell, 5 N. Y. 136 ' '. See also Construction of Wills. — Lawrence v. Barber, 116 W. 294, 301. 57. As to implied equitable conversion, power of sale by implication only. See Vesting of Estates, etc. —In re Albiston's Est., 117 W. 272, 274. .58. Where land was devised to the wife "for her life" with "full power and authority" of disposition thereof, unaccompanied by any trust, a conveyance thereof .to a purchaser for a reasonable price, by warranty deed "making no specific reference to the will", "nor to the power of sale therein contained", 59. Is held to convey to the purchaser "a fee by virtue of" sec. 2108, and "that no rights remain in" the remainderman "by. virtue of that statute", such sale being "an execution of the power as sec. 2108 con- templates". —Auer v. Brown, 121 W., 115, 122. 60. "The weight of authority seems to be that a mere power to sell, such as that of a power of attorney to sell real estate, confers no power to mortgage. (Citations). 61. But when such powers, coupled with charges upon the estate, are conferred by wills or other instruments, and the executors are intrusted with its management to carry out and discharge such obligations, no such limitation is implied. 62. Under such circumstances the extent of the power conferred by such words as 'to sell', 'convey', and their equivalents is to be ascer- tained from the intention of the donor of the power in the light of the purposes and objects of the trusts as expressed in the grant". 63. Such rule was adopted in Lardner v. Williams, 98 W. supra, and here "the language, 'generally to have, manage, and control my estate as fully as I might, if living, do myself, is," together with other circum- stances, construed as including the power to mortgage and justifying the same. 64. Such "mortgage being valid", and no other "means of payment available", another mortgage to pay the same, together with delinquent taxes, was held proper, 65. Though "the law imposes the duty of paying them (taxes) on the life tenant", the payment thereof being necessary to protect the infant remainderman's estate. PRAYER FOR RELIEF 867 66. Such subsequent mortgage, after, the power under the' trust had expired, was held proper, as to possible future estates, as "within the contemplation of ch. 300, L. 1899", (Sees. 3519c, et seq.), such proceed- ing being adopted. — Lueft v. Lueft, 129 W. 534, 540. 67. On execution of a power coupled with a life estate, under sec. 2108, to- change the title "into a fee simple" as to the purchaser, there must be "a valuable consideration". See also Life Estates. —Perkinson v. Clarke, 135 W. 584, 592. 68. A foreign executor with power of sale may convey realty, without probate here, on filing authenticated copy of the will With the register. 69. "The statutes both in Wis. and Mich, provide that the sole sur- viving executor can rightfully execute the power. Sec. 2137 ; Mich. sec. 5628." So held, there having been three originally. See also Foreign. Wills. , - — Ills. 8. Co. v. Konkel, 146 W. 556, 570. 70. Devise for life 'with the right to use and consume' as 'necessary', held to give power of sale of both .personalty and realty. See also Life Estates. —Otjen v. Frohbach, 148 W., 301, 312. 71. As to trustees under a will having implied power to lease for a term of ninety-nine years, under court 's advice. See Trust Variations. —Upham v. PlanUntm, 152 W., 275, 291. POWER OF ATTORNEY. See Deeds. POWER OF SALE. See Power. PRACTICE. See Rules of Practice. PRAYER FOR RELIEF. See also Pleadings. Amended at trial, 7. Have established trust, 4. Contract to value of, 7. Not prayed for, 4. Consistent with facts, 3. Nature of action by., 1. Court not limited to, 2, 3. Whether legal or equitable, 5. Demurrer not lie to, 6. Not go to jurisdiction, 2. 868 PROBATE AND GENERAL LAW, CODIFIED 1. "As a general rule * the nature of the action is to be determined by the prayer for relief", under the code and especially when the pleadings partake of the nature of both legal" and equitable action. —Gillett v. Treganza, 13 W. 472, 476. 2. "The prayer for relief does not go to the jurisdiction of the court. It may grant any relief consistent with the case made, without any prayer, or different from that prayed". —Arnory v. Amory, 26 W. 152, 161. 3. "The county court, sitting in probate," is not "limited to granting or refusing the precise relief asked", but, „" acting within its jurisdic- tion, it may, especially where the parties opposed in interest are present or are represented, grant any relief consistent with the facts proved or admitted and which the justice of the case demands". 4. The county court's order establishing a nuncupative codicil, being simply reversed by the circuit court, the supreme court holds that with- out such relief being prayed for, the circuit, court should have estab- lished a trust in the residuary legatee to pay certain sums not set forth in the will. —Brook v. Chappell, 34 W. 405, 410. 5. It seems that "the nature of the relief demanded in the com- plaint", "determines the character of the action", whether legal or equitable. — Lowber v. Connit, 36 W. 176, 182: ■ 6. "A demurrer does not lie to a demand for judgment, and it was so held in State ex rel. Mitchell v. Smith, 14 W. 564". —Tewksbury v. Schulenberg, 41 W. 584, 592. 7. The prayer was allowed to be amended at the trial ' ' consistent with the facts proven", and to allow recovery for value, instead of on con- tract for services. See Services. —Slater' v. Est. of Cook, 93 W., 104, 107. PRECATORY TRUSTS. "All the proceeds", meaning, 10. General rules — continued Charitable trust: (4) Person, estate, clearly defined, 5. Special, "recommend", direction, 17. Approved and followed, 18, 25, 36. Void for general purposes, 17. Precatory words; aptly stated, 11. Codicil language, precatory, 40. Imperative if necessary, 33. Former wills considered, 37. Not as far as older cases, 14. General rules; principles, 1. Intention is clear, 15. (1) Technical language unnecessary, Reasonable certainty, 16. 2. When held imperative, 13. (2) Precatory; may create trust, 3. When not imperative, 12. (3) Mandatory or discretion, 4. "Provision", contingent remainder, 31. PRECATORY TRUSTS 869 ' / Speoiflo instances: Specific instances — continued - "Desire" trustee appointed; 32. Life estate,' remainder, 27. Command or direction, 33. Widow to be trustee, 28. ' ' Full confidence ", " request ", 6. " Wish that > ' property, 26. Intent to, create trust, 8. Without inheritance words, 26. Persons and quantum clear, 7. Will so arrange affairs, 35. "Pull trust and confidence", 19. Not mandatory words, 39. Devise, absolute fee, 20, 21. Wife absolute estate, 36. Not "limiting" ownership, 20. Trust by intention, 34: Words held advisory merely, 18, 19. Trust in first taker, 22. Wid,ow was remarriageable, 25. Intent appears clear, 23. After-born children, 29. Bead from language, 24. "Provision" undetermined, 31. Words of inheritance, 26. Testator had in mind, 30. Absence, no significance, 38. 1. "The general rules or principles which the law writers upon this ' subject (precatory trusts) have deduced from the adjudged cases, as applicable to the proper construction of wills of the kind under consid- eration", taken "for our guide in construing the will before us", are thus given; 2. "First. 'It is not necessary that technical language should be used to create a trust. It is enough that the intention is apparent'. 1. Jarman on "Wills, (5th ed.) 385, and note. 3. Second : ' That precatory words used in a will, — that is, words of recommendation, entreaty, request, wish, or expectation, — addressed to a devisee or legatee, may be sufficient to create a trust in favor of the person or persons in whose favor such expressions are used'. (Cita- tions, — Jarman, Lewin, Story, Hill and Redfield). 4. Third. In order to determine whether precatory words in a will create a binding trust, 'the real question always is' whether the wish, desire, or recommendation expressed by the testator is meant to govern the conduct of the party to whom it is addressed, or whether it is "merely an indication of that which he thinks would be a reasonable exercise of the discretion of the party, leaving it, however, to the party to exercise his own discretion'. (Citations). 5. Fourth. In determining that precatory words in a will create . a trust, the courts give great weight to the fact that the person or object to which the precatory words apply is clearly pointed out, and the quantum of the estate to be given to such person or object is also clearly defined. (Citations and note to Harrisons v. Harrison's Admx., 44 Am. Dec. 365, 369)". (Followed in Conlin v. Sowards, 129 W. post.) ' 6. And in a will giving "unto my wife K., her heirs and assigns forever, all my real and personal estate, * having full confidence in my said wife, and hereby request that at her death she will divide equally, share and share alike, in equal portions, as tenants in common, between my sons and daughters (naming' them), all the proceeds of my said property, real and personal, goods and chattels, hereby bequeathed", —it is held : i 7. Thatthe persons "are clearly pointed out", and "that the quantum 870 PROBATE AND GENERAL LAW, CODIFIED of the estate which the testator requested should go to such parties", is " sufficiently "and clearly indicated", and, — 8. "We have no hesitation in holding that it was the clear intent of the testator to create a trust in favor of the children named in the will ; and that the language used by the testator was intended by him to' govern and control the conduct of his wife in the disposition of his estate;" and, — 9. "It is clear that his will was that his children should take the property after the death of his wife", that the wife received but a life estate, and that his request "must be construed as directory and not simply as advisory". 10. The words "all the proceeds of my said property", are held to mean the entire body or capital of the estate. 11. The case of Warner v. Bates, 98 Mass. 274, is quoted at length approvingly as being "very aptly and clearly stated by Bigelow, C. J.", and in which as to precatory words, it is said : 12. "In such case the words used by Lord Loughborough are appli- cable: 'When a person, recommends to another who is independent of him, there is nothing imperative; 13. But if he recommends that to be done by a person whom he has right to order to do it, the mode" is only civility!' " 14. While "we are inclined not to go" as far as "the older cases in England and in this country, in establishing trusts upon the strength of precatory words", yet,— 15. "We are disposed to apply the doctrine only in cases where it is clear that, on the whole, it was the intention of the testator to create such trusts by the use of such words, and, — 16. Where the words used show with reasonable certainty that the testator intended to control the legatee or devisee in the use and control of the property devised or bequeathed". — Knox v. Knox, 59 W. 172, 178. i 17: In a trust "in aid or encouragement of charitable purposes", generally, "held void, and an alternative "I would recommend that the same be used to establish a school, etc.," is held valid in case "we may give it (the word 'recommend') the meaning of command or direc- tion to use such surplus to establish the school in theevent indicated. Knox v. Knox, 59 W. supra". And it is so held. See also Charitable Trusts. —Webster v. Morris, 66 W. 366, 397. 18. Following and quoting Knox; v. Knox,. 59 W., supra, "as the tests to be applied in deciding whether a precatory trust is created," it is held that the precatory words are "merely advisory and not in any respect obligatory. 19. "After devising all his estate to his wife, 'the real estate in fee simple, and the personal estate by a like absolute ownership, ' he pro- ceeds:' 'I do this in full trust! and confidence that she will provide for PRECATORY TRUSTS 871 the distribution of the same by her last will' " to their children, nam- ing them, " 'in such proportions as shall be just and right'. 20. Had he stopped here, the argument would be very strong that he intended these words to be obligatory upon his wife, notwithstanding the previous devise of a fee, and the case would be in this respeqt very like the Knox Case, above referred to; 21. But he proceeded to say in the same sentence: 'But this expres- sion of trust and confidence is not to be interpreted as limiting her right of ownership or, power of distribution'." Held that the widow received "an absolute fee simple" estate. (Approvingly quoted and followed in Conlin v. Sowards, 129 W., post) . —Tabor v. Tabor, 85 W., 313, 317. -22. "Precatory words in a will, following" a general disposition, expressing a desire as to ultimate disposition, "may be construed as creating a trust in such first taker for the benefit of the other person or persons named, 23. If that, under all the circumstances, appears clearly to have been the intent of the testator, 24. And such intention can be read from the language used by him by the aid of those liberal rules which obtain for the purpose of giving effect to testamentary words". 25. Following Knox v. Knox, 59 W. supra, and restating and applying the rules there given, where the widow was remarriageable, and there were three minor children, the two younger born after the will was made, and the income of the estate probably "would exceed the amount necessary to support the widow", and support and, educate the chil- dren, it is held, — 26. "That the will", — first giving the widow the whole estate, though without "words o£ inheritance", and then stating, 'it is my wish that such property and estate above. devised, or so much thereof as 1 my said wife may be possessed of at her decease, shall go or be by her given to our child or children, if any there be then living', and appointing her executrix, — 27. "Should.be read as intending to give the property" to the widow "for life, with, remainder over to 1 such of his children as may be living at the termination of the life estate, 28. And making respondent (widow) a trustee for the property so far as required to effect that purpose", with, "proper bond to be given". 29. Such construction of "the will is absolutely essential to sustain it at all as against the two younger children", as after-born children, under sec. 2286. 30. The facts indicate that the testator "had in mind the probability of after-born children and intended to make some provision for them. In re Donges's Est., 103 W. 497 (See Afterborn Children)." 31. But whether such "contingent remainder" to the after-born chil- dren is "a provision within the meaning of "sec. 2286, so as to insure the widow a life estate in the whole property,— seems not determined. See also Appeal. — Swarthout v. Stmrthout, 111 "W. 102, 107. 872 PROBATE AND GENERAL LAW, CODIFIED 32. The request in a will, ' I desire the said probate judge to appoint . my said executor, H., trustee, to assume control, etc.,' a trustee being necessary, "under the circumstances created what is called a precatory trust. 33. When words of recommendation, request, or the like, contained in a will, must necessarily be followed in order to carry out the clear pur- pose of the testator, they are to be regarded as words of command or direction. (Cases supra). ' 34. In a will a trust may be created by intention of the testator dis- covered by aid of judicial construction, as well as by words taken- in their literal sense". See also Vesting of Estates, etc. — Wolbert v. Beard, 128 W. 391, 39,7. 35. Where a testator gave to the widow 'all the rest, residue, and remainder of my estate', 'to have and tohold' 'forever', and he then states: 'It is my wish that my said wife E. will so arrange her affairs that whatever property may be left at her death the same will be 1 divided' between two daughters, — 36. Quoting from and following "the principles announced" in Knox v. Knox, 59 W., Tabor v. Tabor, 85 W., and Swarthout v. Swarthout, 111 W., supra, it is held that 1 the testator gives to the wife "all the rest, ' residue and remainder" absolutely. 37. Former wills are considered as bearing on the testator 's intention. 38. "Under our statutes the absence of words of inheritance is of no significance. 'Sees. 2206, 2278: Baker v. Est. of McLeod, 79 W. 534, 545 (See Vesting op Estates, etc.) ". 39. "We are not aware of any well-considered adjudication holding that such mere 'wish' of the testator that an executor or executrix would ' arrange her affairs ' or property in some prescribed way has been held to be mandatory". —Conlin v. Sowards, 129 W. 320, 324. 40. Language in a codicil, not positive, construed as precatory and not modifying the will. See Codicils. —Moore v. Moore, 138 W. 602, 604. PREFERRED CLAIMS. See Claims. Funeral Expenses. PREJUDICE. See County Judge. PRESUMPTION PRESUMPTION. 873 See also Execution of Wills. Presumption of Death. Administrator; appointment, 11. Consent of all; presumes all, 12. Keason not disclosed, 11. Good legal cause, 11. Adoption: Abandonment finding, 20. Eecord being silent, 20. Claims: Notice for; final judgment, 30. Nothing to the contrary, 30. Deeds : Admr's. : recitals, license, etc., 7. Prima facie, title, 7. Will was proved, 9. Eecord rebut, 9. Delivery at its date, 23. Life tenant: without knowledge, 24. Deed on land contract, 24. Possession under will, 25. Not adverse; no notice, 25, 26. Not to be whole contract, 21. Does not run backward, 32. Existence at certain date, 32. Error: must be shown, 19. Eeason for order, presumed good, 18. Evidence of witness: Favor of party calling, 5. Existence : Beneficiary in policy, 27. Person, relation, state of things, 28. Until contrary shown, 29. Foreign laws; the same, 4. ' Intestacy, not testacy, 22. Jurisdiction : Judgments, superior courts, 15.. Not when record shows, 6. Probate notice; record silent, 17. After fifteen years, 17. .When record silent, only, 6. Law, knowledge of, 39. Minor : At home; father's direction, 13. Necessaries; not liable, 10. Notes : Endorsement; about date, 3. Not to be whole contract, 21. Paid ; taken up, cancelled, '8. Overcome; other dealings, 8. Purpose of several unlawful, 2. All are presumed liable, 2. Otherwise, purpose lawful, 2. Eecords : Filing endorsement, correct, 14. Though antedated, 14. Other business intervened, 16. Probate records, loosely kept, 33. No guardian ad litem or letters, 34. Presumed after 60 years, 35. Judge know law and acted, 35. Proceeded regularly, 36, 37. Executor's deed valid, 38. Signature and writing, 31. No suspicious earmarks, 31. Twenty year payment, 1. Limitation statute additional, 1. 1. A party is entitled "to the protection of the common-law pre- sumption of payment after twenty years" as to a stale demand, not- withstanding the statute of limitations, which is simply additional. —Smdersm v. Olmsted, 2 Pin. 224, 226. 2. "Where the common design (of several) is unlawful, the law pre- sumes" assent of all, "but where it is lawful, such assent is a matter of fact to be proved." — Richardson v. Emerson, 3 W. 319, 321. 1 3. Endorsement of a note is presumed to be at about its date. See Promissory Notes, etc. — Mason v. Noonan, 7 W., ,609, 618. 4. The presumption is that foreign laws are the same as in the state of the court. See 'Foreign Laws. — Rape v. Beaton, 9 W. 328, 338. 874 PROBATE AND GENERAL LAW, CODIFIED 5. "Presumption is, that the testimony of a witness will be in favor of the party calling him". Juneau Bank v. McSpedon,. 15 W., 629, 631. 6. The presumption of jurisdiction is only "where the record is silent in relation" to jurisdictional facts; not where the "want of juris- diction appears affirmatively by the record". See also Jubisdiction. —Blodgett v. Hitt, 29 W. 169, 178. 7. Recitals in an administrator's deed as to license, appointment, etc., make the deed "prima facie evidence that the title" passed. See Deeds. —Chase v. Whiting, 30 W. 544, 548. 8. "The presumption, when a note has been paid is, that it has been taken up by the maker, or otherwise cancelled". This is not overcome by showing mere payments of money, without showing 1 also "that there were no other debts or dealings to which the payments could have been applied". — Somervail v. Gillies, 31 W. 152, 156. 9. An administrator's deed is presumptive evidence that the will was proved and that the prior proceedings were regular; however, when the record fails to show that the will was proved, then the pre- sumption is "that no will had been probated". See Deeds. —Chase v. Bass, 36 W. 267, 272. 10. There "can be no presumption that the husband is liable to pay for" necessaries furnished his wife. See Necessaries. —Brown v. Warden, 39 W. 432, 434. 11. Where "the record does not disclose the reason for the appoint- ment, it must be presumed that the ' appointment was for some good cause in the law." See also Admr. de Bonis Non. 12. Where the record discloses that an "appointment was made by the mutual consent of all parties interested ' ', it must be presumed, that the interested objecting widow and administratrix ' ' was present consent- ing to such appointment". — Oakes v. Est. of Buckley, 49 W. 592, 598. 13. A minor working at home is presumed to act under his father's directions. See Parent and Child. —Gerhardt v. Swaty, 57 W. 24, 37. 14. With no sufficient evidence to "the contrary we must assume that the date of filing the findings is correctly stated by the clerk in his endorsement", though they were antedated some months. —State v. Beesa, 57 W. 422, 424. PRESUMPTION 875 15. "Reasonable presumptions are always made in favor of the judg- ments of superior courts, and the presumption of jurisdiction is in- dulged until something in the record shows a want of it". -^Beinig v. HecM, 58 W. 212, 213. 16. Presumption that other business prevented hearing on the day fixed. See Rules of Practice. —Field v. A-pplfi Bwer L. D. Co., 67 W. 569, 571. 17. "Where the "record is merely silent" as to the number of weeks l publication of a notice of probate, after fifteen years, the validity of < the probate is presumed. See Jurisdiction. —Portz v. Schantz, 70 "W. 497, 505. 18. The grounds not appearing, "the presumption is 'that the court had good and sufficient reasons and grounds for the order" appealed from. 19. "Those who allege error in any case must show it. It will not be presumed. The presumption is the other way. ' ' —Marsh v. Briesen, 84 W., 618, 619^ 20. A finding of a statutory provision of abandonment, the record being silent, will not be presumed. See Adoption. —H re Est., of McCormick, 108 W. 234, 238. 21. A simple deed -of conveyance, or a promissory note, is not presumed to contain the whole contract. See Contracts. —Brader v. Brader, 110 W., 423, 431. 22. The "presumption of intestacy", and not of testacy prevails. See Descent and Distribution. -23. As to presumption of delivery of a deed at "its 1 execution", and at a later .date. See Delivery. —Chase v. Woodruff, 133 "W. 555, 558. 24. "In the absence of" proof that the remaindermen "had actual knowledge of the fact that their father", the life tenant, "had caused the deed" pursuant, to land contract, of premises obtained under the mother's will, "to be executed to himself or that he made any claim to the premises adverse or hostile to their rights under the mother's will", "the presumption would be that the conveyance was taken in the father's name without the knowledge of the" remaindermen. ' Kluender v. Fenske, 53 W. 118 (See Deeds). 25. "The continued possession of" the father "was therefore pre- sumed to be under the will and as a life tenant, and not as adverse to ' the" remaindermen. Allen v. Allen, 58 W. 202. . 26. Sec. 2077 "has nrt application" here, the alienee having taken 876 PROBATE AND GENERAL LAW, CODIFIED the "conveyance in his own name, without the knowledge or consent of the person paying the consideration". See. 2079. —Perkinson v. Clarke, 135 W. 584, 589. 27. As to the existence of a "beneficiary named in the policy", it "falls within the rule in State ex rel. Coffey v. Chittenden, 112 W. 569: 28. 'When the existence of a person, a personal relation, or a state , of things, is once established by proof, the law presumes that the person, relation or state of things continues to exist as before, 29. Until the contrary is shown, or until a different presumption is raised, from the nature of the subject in question' ". —Hilliard v. Wis. L. Ins. Co., 137 W. 208, 211. 30. When final judgment in an estate is entered, nothing appearing "to the contrary it must be presumed that the time was limited for creditors to present their claims and notice duly given." See also Claims. —Davis v. Davis, 137 W. 640, 647. 31. As to time of signature and writing therewith, as to guaranty, "bearing on its face no suspicious earmarks". See Handwriting. —Bipon E. Co. v. Haas, 141 W., 65, 68. 32. "There is no presumption that, because schools existed at a particular date, they existed a year anterior to such date. Presump- tions do not run backward. (Cases)". —Pierce v. Stolhand, 141 W., 286, 288. 33. As affecting an executor's deed of realty, he having power of sale under the will, and where "the records in the office of the probate judge of M. county were loosely kept at the time", 34. And "no evidence of the fact was found either in the records or the files" "that a guardian ad litem for minors was appointed," or "that letters testamentary were issued", — it is held: 35. "We think the law is and should be, under the facts disclosed by the evidence in this case, that the court after the lapse of sixty years must presume that the probate judge knew the law and in fact did appoint a guardian ad litem for the minor heirs before admitting the will to probate, 36. And required the person named as executor in the will to file a bond before entering upon the duties of his trust, 37. And duly issued letters testamentary to him after he became entitled to receive the same, 38. And that the proceedings in the probate court were regular. It therefore follows that the deed to P. conveyed good title. ' ' —Chandler v. Munhwitz, R. & I. Co., 148 W. 5- 11. PRESUMPTION OP DEATH 877 39. As to the "presumption that every person knows the law", ex- plained and limited. See Law. —State ex rel. Kleist v. Donald, 164 W. 545, 552. PRESUMPTION OF DEATH. See also Survivorship. Absent twenty-one years, 3. Action for dower, 4. Prima facie dead, 3, 4. Administration; living, 6. Life shown afterward, 19. In other court, 19. No jurisdiction, 8. Void, ab initio, 7, 19. Administration' petition, 14. Inconsistent statements, 16. Judgment of decease, 19. Life may be shown, 19. Mixed facts stated, 14. Prima jfaeie ease of death, 15. Burden of proof: Party asserting death, 1. After seven years, 2, 3, 5. Diligent search: Inference, left residence, 25. Proof of not required, 22. Domieil : Intention controlling, 24. Temporary absences, 23. After majority, 23. Proof of births and deaths, 20. Documentary evidence, 20. Seven years absence: At expiration of seven years; 17. Federal authority, 11. Presumed dead, 9, 21. Time of the death, 10, 12, 17. Question of evidence, 13, 18. 1. "The rule of law applicable" and which "is too firmly settled to be now disturbed," is as stated by Greenleaf, Vol. 1, p. 41: " 'Where the issue is upon the life or death of a person, once shown to have been living, the burden of proof lies upon the party who asserts the death. 2. But after the lapse of seven years, without intelligence concern- ing the person, the presumption of life ceases, and the burden of proof is devolved on the other party.' " (Approved and followed, in Miller v. Camp W. A. W., 140 W. post.) 3. The fact that one "had been absent from his home or place of residence more than twenty-one years", with "no intelligence respect- ing him for about twenty years", was "prima facie evidence that he was dead, and cast the burden of proof upon the defendant to show that he was living." 4. On failure "to introduce any testimony tending to prove" the person living, "it became a verity in the case that" he "was dead, and the court properly so held", as to the husband, in an action for dower by the wife. 5. There being no' "testimony tending to show P. living within the seven years next before the action was commenced", there "was noth- ing for the jury to pass upon". — Cowan v. Lindsay, 30 W. 586, 589. 878 PROBATE AND GENERAL LAW,, CODIFIED 6. "The proceedings of administration, settlement and assignment of the estate of the respondent, represented to have been dead, when he was and is still alive, are absolutely null and void for all purposes whatsoever". 7. "The proceedings are void ab initio and throughout. If this case falls within any class of cases, it is a class in which no court has any right to deliberate, or render any judgment, and in which every con- ceivable act is am absolute nullity. 8. The only jurisdiction the county court has, in respect to the adminis- tration of estates, is over the estates of dead persons." —Melia v. Simmons, 45' W. 334, 337. 9. Incidentally the court says that "a person who has not been heard of for seven years is presumed to be dead, 10. But there is no legal presumption that the death occurred at the end of the seven years, nor at any precise time during the seven years. Doe v. Nepean, 5 Barn. & Adol. 86". — Williams v. Williams, 63 W. 58, 62. 11. "Mr. Justice Harlan, speaking for the supreme court of the United States, in the case cited (Davie v. Briggs, 97 U. S. 628), quotes from a treatise on the law of evidence, what he states to be in harmony with the law of the English courts and the preponderance of authority in this country, this sentence: 12. That, 'although a person who has not been heard of for seven years is presumed to be dead, the law -raises no presumption as to the time of his death ; 13. And, therefore, if any one has to establish the precise period during those seven years at which such person died, he must do so by evidence, and can neither rely, on the one hand, on the presumption of death, nor on the other, upon the presumption of the continuance of life.' " And it was so held in this case. —Whitley, Admr. v. Equitable L. A. Soc, 72 W. 170, 177. - ' ! 14. "Where, "the application for administration was made April 23, 1898," and the petition states that L., the intestate, "was last seen" in Colorado, April 29, 1891, being within seven years', but the petition also states facts indicating probable decease about that time, and ' ' further stated that he had been absent from the' state, 'and that nothing what- ever had been heard from said L., for the space of seven years,' — in view of these circumstances there was ample to warrant the court in" granting administration on his estate. 15. "These facts, with nothing to control the' inferences naturally to be drawn from them, presented at least a prima facie case of death, even within the seven years." 16. Even iexcluding "from (consideration the facts noted" as to PRESUMPTION OP DEATH 879 probable decease, "the concluding allegations of the petition quoted (as above) would probably have been sufficient to sustain jurisdiction", ''and the court was called upon to determine which gf the inconsistent statements was true". 17. "The presumption of law is that at the expiration of seven years he is dead, but there is no presumption, either of life or death during that period. - Such was the holding in Whiteley v. Equitable L. A. Soc, 72 W. supra, and that rule is supported by the weight of authority. 1 Jones Ev. 58. 18. The question when such presumed, death occurred is to be de- termined from all the facts and circumstances in the case. The county court has complete and ample jurisdiction in matters of this kind". 19. In this action by the administrator to recover estate, "notwith- standing the question of death may have been determined by the pro- bate court, the fact that the supposed decedent is alive could have been shown. Such showing would have established the nullity of the entire proceeding. Melia v. Simmons, 45 W. supra; Brown, Juris. 124." —Wis. Trust Co. V: Wis. M. & F. Ins. Co. Bank, 105 W. 464, 467. 20. As to proof of births and deaths by foreign documentary evidence under sec. 4160. See Birth. —Scmdberg v. State, 113 "W., 578, 584. 21. "In Cowan v. Lindsey, 30 "W. supra, this court adopted, without qualification, the rule as laid down in Greenleaf", as quoted, "and has reiterated such rule in" cases, supra. 22. "Thus it will be seen that the court is firmly committed to the general doctrine which does not require proof of diligent search and inquiry in order to establish the presumption of death when a person has absented himself from his home or place of residence for seven years". 23. "Where a son has reached his majority, and has made it a prac- tice to work away from home at times, he thereby" does not lose "his domicile with his parents, at least in the absence of direct evidence on his part of intention not to change his place of residence". 24. Here "there was nothing to suggest that he had acquired or intended to acquire a home or place of residence different from that of his mother. Intention is almost invariably a controlling element in determining residence". Presumption of death, sustained. See also Domicil. —Miller v. Sovereign Camp W. 0. W., 140 W. 505, 507. 25. "The rule declared in the Miller Case", 140 W. supra, is adhered to and presumption of death found on evidence that "permits only of the inference that" the party "left his home and place of residence", and that no one "has had any tidings of information concerning him or of his whereabouts" "for a period of eight years". — Page v. Modem W. of A., 162 -W. 259, 262. 8S0 PROBATE AND GENERAL LAW, CODIFIED PRINCIPAL AND AGENT. See also Auction Sales. Commissions of Brokers, etc. Factor. Husband and "Wife. Ratification. Acts of agent: Fraud, misrepresentation, 21, 44. Ignorant of the fraud, 21. Knowledge and silent, 22. Principal bound by, 20, 49. Private instructions, 49. Scope of authority, 49. Agent becomes surety, 28. Entitled to rights of, 28. Recover of principal, 29. Authority or ratification, 30. Agency is not presumed, 67. Agency not disclosed, 73. Agent himself liable, 73. Agent substitutes another, 1. Authority of agent, 64. Business management, 87. Not endorse notes, 87. Every delegation of power, 78. Carries necessary incidents, 78. May be proved by him, 64, 82. •, When writing not required, 64, 82. Wife for husband also, 65, 83. No presumption of agency, 67. Apparent authority, 70. Express authority, 69. Pact of agency proved, 68. Pact of authority, 68. Principal ratifies, 71. Power to" purchase, contract, 72. Not incident to superintendent, 72. As a matter of law, 72. Receive negotiable paper, 88. Gives power to endorse, 88. Secret instructions ineffective, 79. As to prior apparent powers, 79. Third persons, on inquiry, 86. Authority to bind: Failure, not personally held, 12. Note signed in blank, 43. Within scope of authority, 49. Authority to sell: Principal's debts taken, 17. Both parties by consent, 24. Contract; agent's name, 25, 57. Agency known by other party, 50. Binds principal, 50. Parol admissible, 51. Cannot relieve himself, 63. Disclosed or not, 63. Effect of under seal, 25. Not bind principal, 25. Contract — continued Oral evidence of, 27. Principal, avails himself of, 26, 57. Shown by parol evidence, 36. Written not contradicted, 37. Declarations of agent, 15, 42. Of agency, does not prove, 75. Made out of court, 80. May be by agent himself, 81. Part of res gestae, 15, ^8. Or authorized, 15. Reliance on agent's claim, 89. Incompetent evidence, 89. Deposits in own name, 44. Agent takes all risks," 44. Unless principal consents, 44. Distinctions : Agent, factor, broker, 56. And as to title, 56. Expenses of agent: Bound by agent's acts, 49. Have principal charged, 46. Charged in agent's name, 47. Cre'dit given to principal, 47, 48. Though furnished money, 46. Express orders of principal, 4. Agent liable, if deviated, 4. Sells for check, not cash, 4. Palse representations, 21, 45. Unknown tD principal, 45. Principal bound, 45. Fraud with other party, 58. Principal, not bound, 58. Furnished funds to buy, 52. Not buy on credit, 52. Principal not bound, 53. Unless has knowledge, 53. Unless ratified, 53. Husband as agent: Held out as agent by wife, 55. Sign note in her name, 55. Bound, though no agency, 55. Powers as for third party, 16, 42. Testify; presence or hot, 23. Wife's separate estate, 8. Known principal, 74. Principal's credit, 74. Lien of agent: Advances and services, 5. Favored in the law, 5. Money, principal no right to, 96. Agent personally liable, 96. PRINCIPAL AND AGENT 881 Money, etc. — continued Part payment, contract fails, 94. Action, recover back, 95. "Notice, to bind principal, 19. Brought home to agent, 19. Partnership : . Each agent of firm, 11. Principal "bound: -Accepts benefits of contract, 14. Gives sufficient authority, 41. Justifies dealing "with agent, 41. Quasi-trustees : Purchases of principal, 38. Jealous scrutiny, 39. Ratification : • Appropriates benefit, 3. Equivalent to authority, 30. Part, confirms whole, 2. Sub-agent's acts, binds, 1. Unauthorized contract; or disaffirm, 31. Realty : Parol,- clearly established, 54, 76. Written authority unnecessary, 13. Revocation of authority, 32. Death of principal, 32. Depends on notice to parties, 62. ! Exception; agent's name, 33. ' ' Estate held liable, 34. Revocation, etc. — continued Notice, for the future, is, 60. Person of previous dealings, 61. Qualification of rule, 35. Title in trust: Agent takes in own name, 6. Trust companies : Custom of dealing with, 91. Not same strict rules, 91. Plenary authority to act, 91. Principal's knowledge of charge, 92. Exceed express authority, 93. Germane to subject, 93. Held to be agent, 92. Unauthorized acts, 59. Agent professes so to be, 90. Himself liable, 90. Principal becomes notified, 59, 84. Must affirm or deny, 59, 85. Warranty or representation, 66. Wife, as agent: Bind husband, contracts, 9. Husband or third party, 7. Presumed, household only, 10. Not imply other, 77. Prove her agency, herself, 65'. Testify thereto, 7, 40. Direct questions, 40. 1. Where an agent substitutes another without authority, the prin- cipal is not bound by the acts of the latter, unless he ratines the acts of the sub-agent. — Sheldon v. Sheldon, 3 W. 699. 2. "A ratification of a part of an unauthorized transaction of an agent, is a confirmation of the whole." —Fargo v. Ladd, 6 W. 106, 117. ■ . 3. Where the principal ratifies and appropriates the avails of a trans- f action (satisfying a judgment for one half) he cannot repudiate by denying the agent's authority. — 'Sprague v. Hibbard, 6 W. 175. 4. "The express orders of the principal, when they are clear, possible and proper, leave no discretion with the agent" and the latter is liable for "full indemnity" if he violates his duties "by exceeding his authority, or positive misconduct, or by negligence or omission", or otherwise, as in this case selling for a check payable next day when directed to sell fo? cash. —Hall v. Storrs, 7 W. 253, 259. 5. "Agents generally have a particular lien upon the property of if their principals in their hands for the amount of their advances and services in respect to it, and this particular lien is favored in law." —Chappell v. Cody, 10 W. Ill, 114. Zimmerman — 56 882 PROBATE AND GENERAL LAW, CODIFIED 6. One who as "agent and protector of the rights of infants" or others, "and in that character obtains a conveyance in his own name, which was intended for their benefit, will be considered as holding the legal title in trust for them." —Bailer v. Sfiilmore, 13 W.- 26, 30. 7. Wife may act as agent for husband or third party and testify thereto. See Husband and Wife. — Birdsall v. Dunn, 16 W. 235. 8. Husband may act as agent for wife as to her separate estate. See Husband and Wipe. —Weisbrod v. C. & N. W. By., 18 W. 35, 40. 9. Wife's power to bind husband on her contracts for him, rests on agency merely. See Husband and Wife. 10. Except perhaps in household affairs, such agency is not pre- sumed. —Savage v. Davis, 18 W. 608, 613. 11. "In partnership affairs each partner is, as to the business which he transacts for the firm of which he is a member, the agent of such firm". —Lawrence v. Vilas, 20 W. 381, 388. 12. Agents who "had full authority to bind their principal, and did bind it," are not "personally liable".. — Charbonecm v. Henni, 24 W. 250, 255. 13. Authority in writing to the agent to make a contract for the sale of real estate is "not necessary." See Sale of Realty. — Smith v. Armstrong, 24 W. 446, 451. 14. "A principal cannot accept and enjoy the benefits of a bargain made by his agent, without at the same time adopting the instru- mentalities by which the agent consummated it". —Morse v. Byan, 26 W. 356, 362. 15. "It is well settled that the declarations of the agent, to bind or be admissible against the principal, must be made at the time of the act or transaction by the agent, and constitute a part of the res gestae ; or, if not so made, that they must be authorized by the principal". 16. "The power and capacity of a husband when acting as the agent of his wife are no greater than if he were acting as the agent of any other person". — Livesley v. Lasaletle, 28 W. 38, 41. 17. An authority to sell "confers no power to sell or transfer in pay- ment of the debts of the principal". —Butts v. Newton, 29 W. 632, 640. 18. The admission of the agent against the principal in the con- troversy as to a transaction may be received as "a part of the res PRINCIPAL AND AGENT 883 gestae in the course of the agent's employment about the matter in question". See Res Gestae. —Eazleton v. Union Bank, 32 W., 34, 48. 19. "Notice, to bind the principal, should be brought home to the agent while engaged in the business or negotiation of the principal, and when it would be a breach of trust in the former not to communicate the knowledge to the latter". —Pringle v. Dunn, 37 W. 449, 468. 20. The rule of law is that the principal "is responsible for all the means employed by his agent to effect the sale" of mortgage premises. 21. "If the agent effected it by means of false representations or fraud of any other description, although without authority from the plaintiff (principal) to do so, and although the plaintiff was entirely ignorant that he had done so, the legal status of the plaintiff is pre- cisely the same as it would have been had he made the false repre- sentations or committed the fraudulent acts to the same end, in person" 22. If the principal knew that the vendee "was induced to make the purchase by the false representations of L, and failed to inform him that they were false, he is in like manner responsible for the fraud, although L was not his agent". See also Fraud. — Law v. Grant, 37 W. 548, 557. 23. The husband may testify as to the acts of agency in or out of the presence of his wife, who is a party. But he must be' offered specifically. See Husband and Wipe. . ' ' — Menk v. Steinfort, 39 W. 370, 375. 24. An agent cannot act, without consent, for opposite parties with adverse interests. See' Commissions of Brokers, etc. —Meyer v. Hanchett, 39 W. 419, 425. 25. In a "contract under seal executed by an agent in his own name" . Which ordinarily "does not bind the principal not named therein," "if the instrument would be valid without a seal, then, ( although executed under seal, it is to be treated as written evidence of a simple contract, and the seal adds nothing to it." 26. "Neither is it a violation of the rule which prohibits the chang- ing of the terms of written contracts by parol evidence, to permit" the unnamed principal "to avail himself of the benefits of the agreement made for him" by his agent. 27. I^sueh a contract the rights of the principal "are co-extensive with those which" the agent "would have were he in court seeking to compel" the performance of the agreement. , —Stowell v. Eldred, 39 W.,614, 626. 28. "If an agent who makes a contract for his principal, sees fit to become surety for £he performance of such contract by the latter, no 884 PROBATE AND GENERAL LAW, CODIFIED good reason is perceived why he may not do so, and become thereby entitled to all the legal rights of a surety, although the consent of the principal thereto may not have been first obtained". 29. "If the agent is compelled to pay the damages resulting from a breach of such contract, because of his suretyship, one of those rights is to recover of his principal the amount so paid for him". 30. This is the case if the agent had authority, ' ' or, what is equivalent thereto, if he made the contract without such authority, and the de- fendant (principal) subsequently ratified it". 31. The principal may ratify by failing to disaffirm an unauthorized contract by his agent. See also Ratification. —Savelamd v. Green, 40 "W. 431, 438. 32. "The general rule is indisputable, that the death of the prin- cipal operates as a revocation of the authority of the agent to act". 33. "But this general rule has its exceptions. 'Where the act, not- withstanding the death of the principal, can and may be done in the name of the agent, there seems to be a sound reason why his death should not be deemed to be a positive revocation under all circumstances, and that a subsequent execution of it may be valid'. Storv on Agency, 495". 34. "The case before us seems to come within the exception", and the estate is held liable for goods furnished after the death of the prin- cipal, within a contract made by the agent prior thereto. 35. "Principles of public policy, and the interests of trade and com- merce, require some qualification of the rule of the common law — if it be a rule, — that the authority of the agent is extinguished by the death of the principal, when the act can and may be done in the name of the agent". — Lenz v. Brown, Admr., 41 W. 172, 184. 36. It is "no longer an open question in this court" that where one ■ signs a contract in his own name, but in fact, for a principal, such agency may be shown by parol." 37. But, it seems, "to allow evidence to be given that the party who appears on the face of the instrument to be personally a contracting party, is not such, would be to allow parol evidence to contradict the written agreement; which cannot be done". Higgins v. Senior, 8 M. & W. 834. —Western v. McMillan, 42 W. 567, 569. 38. "Agents may be quasi trustees to bring them within the broad rule applicable to trustees generally, that they cannot become pur- chasers of their principals". 39. "But whatever may be the nature of the agency, a court of equity regards every purchase by an agent from his principal with jealous scrutiny, to see that the agent takes no advantage from the confidence of his principal." See also Trustees. —Cook v. Berlin W. M. Co., 43 W. 433, 444. PRINCIPAL AND AGENT 885 40. A wife is a competent witness for her husband in matters of agency only, and such agency may be proved by preliminary direct questions to her. See Husband and Wipe. —Marsh v. Pugh, 43 W. 597, 600.' 41. " 'A principal is responsible, either when he has given to an agent sufficient authority, or when he justifies a party dealing with his agent in believing that he has given to the agent his authority'. This rule, says Prof. Parsons, may be called the foundation of the law of agency. 1 Parsons on Con. 44. —Kasson v. Noltner, 43 W. 646, 650. 42. "The rule laid down by this court in Livesley v. Lasalette, 28 W. supra," as to declarations of an agent, and of the husband's power as agent, is quoted and approved. — Austin v. Austin, 45 W. 523, 531. 43. The person who delivers a signed note in blank to another, makes the latter his agent' to do all necessary things "to make the note so ' signed accomplish the purpose ' ' designed. See Omissions. —Snyder v. Van Doren, 46 W. 602, 606. 44. When an "agent deposits money of his principal to his own credit in a bank, or loans it to an individual, unless it be done with the con- sent of the principal, the agent takes all the risks which attend such deposit or loan. Story on Agency, sec. 208". ■ — Sargeant v. Downey, 49 W. 524, 528. 45. False representations to the agent, unknown to the principal, inducing purchase by the agent, have the same legal effect, seemingly, as if made to the principal buying in person. — Ward v. Borhenhagen, 50 W. 459, 460. 46. An "agent (traveling salesman), having the money of his prin- cipals in his possession for the purpose of paying" expenses of livery, can "by neglecting to pay for it, charge them with the payment to the party furnishing the same, such party being ignorant at the time of furnishing the same that the agent was furnished by his principals with money and forbidden to pledge their credit for the same". 47. It was so held though the livery was charged on the books of ,the liveryman to the agent,. the jury having found that "the credit was in fact given" to the principals. 48. "This court has held substantially in Champion v. Doty, 31 W. 190; that charging the service in the plaintiff's (liveryman) books to the agent is not conclusive that the credit was given to him, but might ■be explained." 49. "Judge Story, in his work on Agency, sec. 127, says: 'The prin-, cipal is bound by all the acts of his agent within the scope of the I 886 PROBATE AND GENERAL LAW, CODIFIED authority which he holds him out to the world to possess, although he may have given him more limited private instructions unknown to the persons dealing wi'th hjm '. " , — Bentley v. Doggett, 51 W. 224, 229. 50. An agent signing a contract in his own name for his principal, the agency being known by the other party to the contract, "binds his principal equally as though signed in the name of such principal;" 51. And "parol evidence is admissible to show the fact of his agency 1 in order to charge the principal". See also Parol. —Wiener v. Whipple, 53 W. 298, 302. 52. "When the principal furnishes his agent to buy on his account sufficient funds to make the purchases, the law does not raise any pre- sumption that such agent may bind his principal by a purchase on credit, but the contrary. 53. And in such case the principal will hot be bound by a purchase made on credit, unless he has knowledge of the fact, and does something in ratification thereof, or unless if be shown that it is the custom of the trMe to buy upon credit". — Komoro-wshi v. Krumdicjc, 56 W. 23, 27. 54. "Parol agency to charge a principal's realty ought to be express, and clearly established. Lauer v. Bandow, 43 W. 556"". —Challoner v. Bouck, 56 W. 652, 656. 55. Where a wife holds out the husband's agency to sign a note in her name, she, as such "principal may be bound by such holding out, though no agency in fact exists. (Cases) ". —Bouck v. Enos, 61 W. 660, 664. 56.' As to distinction of authority as agent, of factor, broker, and as to title. See Commissions of Brokers. Factor. Title. —Edgerton v. Michels, 66 W. 124, 130. 57. "The rules laid down in Stowell v. Eldred, 39 W. supra," where the agent contracts in his own name, are followed and applied against the principal at the instance of the other party. —Kirschbmv v. Bonzel, 67 W. 178, 180. 58. A principal is not "bound by the unauthorized and fraudulent acts of his agent, done and performed pursuant to a corrupt con- spiracy, between suc,h agent and the person who seeks to obtain the benefit of the fraud". (Followed in Wilhelm v. Columbian Knights, 149 W., 585, 588). —Eanf v. N. W. Masonic Aid Assn., 76 W. 450, 454. PRINCIPAL AND AGENT 887 59. "Where agents ''had originally no authority to bind" a principal, "we think the law is clear that when the person for whom such agents have undertaken to act is fully notified of what they have done, it becomes the duty of the principal either to affirm or disaffirm the act of the supposed agent within a reasonable time after such notice, or he is bound by such act." —McWkwme v. Martin, 77 W. 182, 197. 60. "Notice by the principal to the person with whom the agent has done business for the principal, that he will not be allowed to do a particular thing in the future .is revocation of his authority to do it. Frederick v. Perkinson, (Cpm. PL N. Y.) 17 N. Y. Supp. 501. 61. Notice that the principal has withdrawn his consent for the agent to do a particular thing is a sufficient revocation of his authority to do it, to the person who has had previous dealings with the agent. Kirby V; Corning, 54 "W, 599. 62. The revocation of the agent's authority depends upon notice to the persons with whom the agent has had dealings for his- principal. Story, Agency, Sec. 470, and note. ' ' So held. 1 —Johnson v. Youngs, 82 W., 107, 110. 63. Where a broker signed a contract in his own name, it is said: "Having made such a contract, he cannot now relieve, himself from responsibility thereunder by showing that he was acting simply as agent or broker for a principal, whether such principal was disclosed or undis- closed. "Weston v. McMillan, 42 W., supra." — Cream City Glass Co. v. FriedUmder, 84 "W., 53, 58. 64. The rule of O 'Conner v. Hartford F. Ins. Co., 31 W., 160, was adhered to, "where it was distinctly held that the authority of an agent, when not in writing or required to be, may be proved by the agent himself, 65. And that this principle operates in the case where the wife acts as the agent for the husband, or the husband for the wife." —Roberts v. N. W. N. Ins. Co., 90 W. 210, 212. 66. As to agent's warranty or representation, and distinction as to same. See "Warranty. ' —Matteson v. Rice, 116 W., 328, 331. 67. "There is no legal presumption that an agency exists, in the absence of proof, 68. Hence it was necessary for the plaintiffs to prove, not only the fact of agency, but also the fact that the agent's authority was sufficiently extensive to authorize him to bind the principal by the contract which ' he assumed to make. u ... 69. This might be done by shbwing express authority given by the principal to the agent to make such contracts, 70. Or by showing that the principal had invested the agent with 888 PROBATE AND GENERAL LAW, CODIFIED i apparent authority to make such contracts, upon the face of which ' apparent authority the plaintiffs acted, 71. Or by showing that the principal ratified the act of the agent ' with full knowledge of the facts ' '. 72. "The power to purchase or contract for the manufacture of , im- portant machinery to be used in a shop is" not, "as matter of law, a reasonably necessary and proper incident to the power of a mere shop superintendent ' '. —Parr v. Northern Elec. Mfg. Co., 117 W. 278, 285. 73. "If in a simple contract made by an agent the agent does not dis- close his agency and name his principal, he will render himself liable. Royce v. Allen, 28 Vt. 234". 1 74. "Where one deals with the agent of a known principal in the regular course of conducting the principal's business by such agent, the presumption, in the absence of any evidence to the contrary, is that credit is extended to the former. (Citations) ". —Alexander & E. L. Co. v. McGeehan, 124 W. 325, 326. i 75. "The rule" is, "that the admission or claim of a person pre- tending to act as agent for another that he has authority to do so does not tend to prove the agency (Davis v. Henderson, 20 W. 520 ; 2 Jones, Ev. 359), 76. And the further rule" is, "that evidence definite and clear is required to establish agency in respect to real-estate' transactions". — McCune v. Badger, 126 W. 186, 191. 77. As to married woman's household management not implying agency. See Contbibution. - — Payne v. Payne, 129 W. 450, 454. 78. "In Parr v. Northern Mfg. Co., 117 W. supra, the court said: 'It is well understood that every delegation of power carries with it the authority to do all those things which are reasonably necessary and proper to carry into effect the main power conferred, and which are not forbidden, 79. And that secret instructions cannot affect such apparent powers to the detriment of third persons whoi have dealt with the agent on the basis of his apparent authority'." —Freeman v. Dells P. & P. Co., 150 W. 93, 100. 80. The rule ''that agency and agency authority cannot be established by proof of the declarations of the agent", "refers to declarations made out of court and offered as evidence by the testimony of the person ■to whom made, — 81. Not of the agent himself, as in this case. Such is always proper". 82. " 'The authority of an agent, when not in writing or required to be, may be proved by the agent himself, I PRINCIPAL AND AGENT 889 83. And such principle 'governs in the proof of all agencies' including 'where the wife acts as agent of the husband, or the husband as agent of the wife'. O'Connor v. Hartford F. Ins. Co., 31 W., 160; (other cases) ". —Sowiers v. Germmia Natl. Bank, 152 W., 210, 215. 84. "When an agent acts in excess of the authority conferred upon him, and the person for whom he has undertaken to act is fully notified of what has been done, 85. It becomes the duty of the principal to either affirm or disaffirm the act of the supposed agent within a reasdnable time after such notice or he is bound by such act. (Cases)". —Senger v. Melloy, 153 W., 245, 249. 86. "Third persons having notice that they are dealing with an agent are bound to inform themselves of the extent and limitations of his authority. ( Citations ) ". 87. "The authorities very generally hold that an agent with general authority to manage the business of his principal has not, by reason thereof, implied power to endorse or execute negotiable paper. (Cita- tions). 88. The mere fact that R. (such agent) had authority to receive negotiable paper in paj'melit for goods sold carried with it' no power to endorse it. (Cases)". — Pluto P< Co. v. Cuba City 8. B., 153 W., 324, 329. 89. Where, as a basis for recovery, "plaintiff relied on statements of L.", who made the contract, "to the effect that he, L. was the agent of defendants " .in the transaction, it is held that "this evidence was clearly incompetent. Aetna Ins. Co. v. N-W. I. Co., 21 W. 458 ; Meehem, Agency (2d Ed.) Sec. 285. Both of the defendants testified that L. never acted as agent for them". — Gunsten v. Gordon, 160 W- 481, 483. 90. "One who, professing to contract as agent for another, fails to bind such other, is himself liable as principal. (Citations) ". — Wis. Farm Co. v. Watson, 160 W. 638, 640. 91. "The custom of dealing with trust companies on the assumption that they possess plenary authority to do the things they hold them- selves out as having authority to do, is so general that incalculable hard- ships would ensue if their authority to act had to be established by the 'same strict rules that obtain in the case of an individual acting as an agent. J 92. Where to the knowledge of a principal they assume full charge of a business matter he must be held to have constituted them his agent for that purpose, 93. Even though they exceed express authority, so long as their action 890 PROBATE AND GENERAL LAW, CODIFIED is fairly germane to the subject entrusted in their hands ' '. So held as to accepting payments of principal before due. See also Payments. — Weigell v. Gregg, 161 W. 413, 419. 94. Where defendant, as agent of H., contracted to sell a farm to plaintiff who paid $100 down, and H. was unable to convey title, — an action "for money had and received" "arises from the implied agree- ment to return the part of the purchase price paid if conveyance is not made as agreed upon. 95. The person in, possession of the money has without consideration •been enriched at the expense of plaintiff, hence the latter 's right to recover it back. (Case)". 96. "An agent who has money to which his principal has no right is personally liable to the party from whom it is wrongfully withheld". (Case) . — Jensen v. Miller, 162 W. 546, 548.' PRINCIPAL AND SURETY. See Sueeties. PRIVILEGED COMMUNICATIONS. See also Attorney and Client. Expert Testimony. Attorney : Acts for two persons, 24. Waiver of one; not the other, 24. Aetual retainer unnecessary, 17. Not .fee payment, 17. Professional capacity, 17. ' Between party and another, 25 ] Attorney not privileged, 25. Character of legal advisor, 1. Contract with third party, 18. ' Implied right to testify, 19. Not professional, 20. "Waiver of privilege, 19. With one not attorney, 20. , Credibility: trial preparation, 26. Coaching of witness, 26. ' Not privileged, 26. Letters to wife, 3. Her attorney testifies, 3. . Representative; successor, 21. Cannot waive as to former, 21. Scrivener witness to will, 4, 27. Waiver; may testify, 4. Witness to agreement, 22. Circumstances proper, 23 Attorney — continued Not waiver of privilege, 22. Will witness, distinguished, 23. Attorneys, clergymen, physicians, 5. Not testify; waiver, 6. Privilege of client, patient, etc., 6. Protected after decease,' 7. Husband and wife: Communication between, 14. Testified; after decease, 14. Letters betweeil them, 2. Letters written to wife, 13. Privilege of either, 13. Wife as to deceased husband, 31. Physician : After patient's decease, 7, 30. Living not pormitted, 7. Benefit of the patient, 10. Examined as to mental capacity, 16. Not obtained to prescribe, 16. Testify to will probate, 16. Information to treat, 10. Liberal interpretation, 9. Necessary to know, 12. , , PRIVILEGED^ COMMUNICATIONS ' 891 ysician — continued Physician — continued ' Not general intercourse, 8. Privilege of patient, 12. Not permitted to disclose, 1Q, 11, 28, Testimony in court only, 9. 32 . Waived by patient; not physician, 15, Patient's will, consent, 10. 30. Patient testifying herself, 33. Will contest; competency, 28. Not waiver for physician, 33. Information from decedent, 28. 'Permitted"; no circumstances, 36. Physician's obsei rations, 28. Personal injury action, 34. Waiver, by patient only, 29. Whether jie treated her, 3"4. Whether she complained, 35. 1. "In order to give that character to a communication it must he ide to the counsel, attorney or solicitor, acting for the time heing the character of legal adviser. (Cases) ". —Brayton v. Chase, 3 W. 456, 459. i' 2. On trial for perjury, on the qiiestipn of knowledge of the residence his wife as to a divorce action, letters by plaintiff in "error to his wife, oduced against his objections, to show "the date and place from lich the letters appear to have been written, the address to his wife, d the signature" "together with the envelope and the post-marks d address thereon", with contents "not otherwise" offered, were held lisclosures of confidential communications between husband and wife ' ', d "such evidence was incompetent and inadmissible", under the itute, see. 4072, and otherwise. (Cases). 3. This testimony, produced and sworn to by the attorney for the wife the divorce proceedings, was also held "unlawful, as betraying the ivileged confidences between" the attorney and his client, under sec- m 4076, and otherwise. (Cases), —fielden v. State, 74 W. 271, 274. 4. The request to an attorney, the scrivener, to sign as a witness to a 11, is "held to be a waiver of objection to his competency (under sec. 76), so as to leave" him free to testify as to execution and as to he mental condition of the testatrix". See also Execution op Wills. —McMaster v.Scrwen, 85 W. 162, 168. 5. As to sees. 4074 and 4076 which provide that clergymen and OTneys "shall not be allowed to disclose", and sec. 4075 which pro- . led that physicians shall not be "compelled to disclose", certain Sessional communications, — it is said : . 3. "Under statutes providing that a professional witness 'shall not allowed to disclose' information so acquired, it has been held in a iat number of cases, and with entire uniformity so far as we have sn able to discover, that the privilege is that of the patient, client, ., and the information or disclosure cannot be given in evidence linst him, or persons claiming under him, unless waived. J. 'After one has gone to his grave, the living are not permitted to 892 PROBATE AND GENERAL LAW, CODIFJED impair his fame or disgrace his memory by dragging to light communica- tions and disclosures made under the seal of the statute.' (N. Y. cases). 8. The disclosure by a physician of information acquired in his pro- fessional character, in attending on a patient, where not made in the course of his professional duty, is a plain violation of professional propriety, but the law does not prohibit such disclosure in his general intercourse. 9. The statute relates only to his giving testimony in court in relation io information thus acquired, and it should receive, we think, a liberal interpretation, in order to carry out its evident beneficial purposes". 10. The statute as to physicians, sec. 4075, being "for the benefit of the patient", it is expressly held that information acquired "in order to prescribe for or treat the patient", "is privileged as to the patient, and that the physician can neither be compelled nor allowed to. disclose it, as a witness, against the will or without the consent of the patient". 11. (This ruling as to physicians is approved in Cohodes v. Meno- monee & M. L. & T. Co., 149 W. post, and the statute, sec. 4075, was amended by ch. 349, L. 1913, changing the word "compelled" to "per- mitted", thus making the statute in harmony with the decision, which, without such amendment, seems logically subject to the criticisms as indicated in Justice Newman's dissenting opinion). —Boyle v. Northwestern M. B. A., 95 W. 312, 321-23. 12. "Where a physician testified that the facts called for were "neces- sary for him to know in order to enable him to treat the ease intelli- gently",- it brings the case "within the provisions of see. 4075, and makes it a privileged communication. This court has recently held that in such a case the privilege is that of the patient. Boyle v. N. W. Mut. R. Asso., 95 W. supra". — Kenyon v. Gity of Mondavi, 98 "W. 50, 53. 13. On trial for adultery, the identity of defendant being in question, letters written to him by his wife are held to be "confidential com- munications between husband and wife, which are privileged and pro- tected, and not competent to be received in evidence against the objec- tion of either". Selden v. State, 74 W. supra. —Lanctot v. State, 98 "W. 136, 137. 14. Confidential and other communications between husband and wife, when may be testified to after decease. See Husband and "Wife. —Brown v. Johnson, 101 "W. 661, 662. 15. "See. 4075, is for the benefit and protection of the patient, and its prohibitions can be waived in her lifetime only by the patient, and not by the physician. Boyle v. N. "W. Mut. R. Asso., 95 "W. supra." 16. "The information obtained by the physicians", "one of whom PRIVILEGED COMMUNICATIONS 893 i had been the attending physician", at an examination of the deceased, "four months before the date of the will, to ascertain as to her mental capacity," to obtain a "release from guardianship", "was not obtained, for the purpose of enabling them to prescribe for the testatrix as physicians, and therefore they were not incompetent to give testimony hereof", at the probate of the will. — Will of Bruendl, 102 "W. 45, 47. 17. "In order to entitle a client to the statutory privilege, it is not absolutely essential that a fee should be paid, or that there should be an actual retainer", it appearing here that the attorney's advice was sought "in his -prof essional capacity", and the statute is held applicable. Bacon v. Prisbie, 80 N. Y. 394. —Bruley v. Garvin, 105 "W. 625, 631. 18. A party, "after fully authorizing his attorney, as his agent, to enter into contract with a third party, and after such authority has been executed and relied on", is not privileged from testifying as to the receipt of money thereunder, nor is the attorney as to the transactipn, under sec. 4076. 19. The transaction justifies the "inference of an implied authority to" the attorney "to testify with reference thereto, and waiver of any privilege of secrecy." 20. It is one of a multitude of "transactions which might as well be had by the client with one not an attorney at law are held not to be within the professional employment". Cases reviewed and discussed. —Koeber v. Somers, 108 W., 497, 503. 21. "The successor of a person acting in a representative capacity, such as an assignee," cannot "waive the privilege of his predecessor as to secrecy in regard to communications made by the latter to his attorney while he was in office". 22. "A person, by procuring his attorney to sign, as a subscribing witness, an instrument evidencing an agreement or transaction between such person and a third party, in the making of which and reduction thereof to writing such attorney served such person in his professional capacity", does not "waive the common-law privilege declared by sec. 4076, in respect to the transaction". 23. McMaster v. Scriven, 85 W. supra, distinguished, and testimony as "to the circumstance of his witnessing the execution of« the paper", held proper. 24. "If an attorney acts in his professional capacity for two per- sons", "the circumstance that one of them waives the privilege of secrecy", does not "affect such privilege as to the other". 25. "If a person employs an attorney to act in his professional capacity", though not "as a mere agent", "in a transaction between such person and another", "such attorney" is not "privileged from disclosing the communications which passed between him and such other in regard to such employment". Koeber v. Somers, 108 W. supra. 894 PROBATE AND GENERAL LAW, CODIFIED 26. Excusing the client "from answering on cross-examination as to whether, in the preparation of the case for trial, he was not examined by his attorney and his testimony to be given upon the stand -reduced to questions and answers, upon the ground that he was privileged from answering under the rule allowing secrecy as between attorney 'and client", was held erroneous on the question of "credibility". — Herman v. Schlesimger, 114 W. 382, 388. 27. An attorney called in as "a mere scrivener" and subscribing wit- ness, not givingadvice, does not act in a professional capacity and his testimony is held "clearly admissible" for such reason, if no other. See also Execution of Wills. — In re Downing' s Will, 118 W., 581, 593. 28. After discussing cases supra, and others, differentiating as to attorneys, and considering contra decisions elsewhere, and following especially Boyle v. N. W. M. R. Asso., 95 W. and Will of Bruendl, 102 W., supra, — as to a will contest, the ' ' exclusion of attending physician 's testimony and opinion as to mental competency based entirely upon information derived from decedent's statements or physician's observa- tion while treating her professionally and for the purpose of such treat- ment", — is sustained, and such rule adhered to. 29. We ' ' adhere to the views heretofore maintained by this court that sec. 4075 is to be enforced according to its words, with no exception, save in the presence of a clear waiver of the privilege of secrecy by the patient himself; 30. And that, after his ability to make such waiver is terminated by death, the pliysieian's lips are forever sealed under all circumstances". — Will of Bunt, 122 W. 460, 465. 31. As to testimony of wife with reference to her deceased husband. See Husband and Wipe. —Schullz v. Culbertson, 125 W. 169, 172. 32. The ruling of Boyle v. N-W. M. R. A., 95 W. supra, that under sec. 4075 the attending physicians information "cannot be disclosed over the plaintiff's objection", is followed. 33. "The contention that because plaintiff testified concerning her condition and the nature and extent of her injuries she thereby waived her rights under this statute is" "negatived in Green v. Nebagamain, 113 W. 508, which was adhered to in In re Will of Hunt, 122. W. supra" — Cohodes v. Menomonee & M.L.& T. Co., 149 W. 308, 313. 34. In a personal action, "the physician who treated the plaintiff after the injury" was properly not permitted on behalf of defendant to answer as to " whether he treated the plaintiff at that time for-' ' the affliction complained of as "resulting from the accident" PROBATE COURTS 895 35. Or as to "whether plaintiff complained to him of" suffering from such affliction. 36. "The word 'permitted' in this section (4075) 'was inserted by the amendment of 1913 (ch. 349) in place of the word 'compelled' ", "to make it absolutely certain that the information gained by a physician or surgeon for the purpose of treating a patient should not be disclosed under any circumstances". —Dreyfus v. Milwaukee E. B. & L. Co., 161 W. 524. See also Jurisdiction. PROBATE COURTS. Abolishing a county court, 15. Void, defect in title, 15. County court: Court of record, 6. Probate powers conferred, 12. Courts appoint assistants, 8, 13. Court .determines necessity, 14. Not taken away, 9. Jurisdiction : Judge of probate, 10, 11. Powers on county courts, 11, 12. Ch. 86, E. S. 1849, 12. Eecord must show, 4. Strictly complied with, 3. Offspring of common law, 1. Powers from statute, 3. Broad and comprehensive, 7. Same as circuit court, 7. \ ' On appeals from its orders, 7. Revoke, etc., records, 1. Incident to general powers, 1. Order irregularly made, 5. Same as in most states, 2. Statutory;, qualifiedly, 1. Strictly complied with, 3. As to subject matter, 3. 1. "Probate courts are only, in a qualified sense, the mere creatures of the statute". They are "the offspring) of the common law". They may review, revoke and correct their records to comply with the statute and such ',' authority must be regarded as incident to the general powers of the court". —Brunson v. Burnett, 2 Pin. 185, 189, 190. 2. "Our statutes regulating, the administration of the estates, the sale of the property, the payment of the debts and distribution of the assets of deceased persons, are the same substantially as those which prevail in most of the states". Dixon, C. J. —Williams v. Ely, 13 "W. 1, 7. :3. Probate courts "derive their powers from the statute, and can exercise none except those which the^ statute gives ' ', and to acquire "jurisdiction over the subject matter, * the statute must be strictly complied with". See Jurisdiction. —Sitzman v. Pacquette, 13 W. 291, 305. 4. "It is established that the records of probate courts must show jurisdiction in order to sustain their proceedings". —Gibbsv. Sham, 17 W. 197, 202. 896 PROBATE AND GENERAL LAW, CODIFIED 5. They may revoke an order irregularly made. See Amendment. —In re Fisher, 15 W. 511, 521. 6. "The county court acting as a court of probate, is a court of record". —Chase v. Whiting, 30 W. 544, 547. 7. "The powers possessed by the county court are the same as those conferred on the circuit court on appeals from its orders and judg- ments, which are very broad and comprehensive". See Sec. 4037. —Brook v. Chappell, 34 W. 405, 410. 8. "It is a power inherent in every court of record, and especially courts of last resort, to appoint such assistants (in this case, janitor) ; and the court itself is to judge of the necessity. This principle is well settled and familiar, and the power so essential to the expedition and proper conducting of judicial business, that it may be looked upon as very doubtful whether the court can be deprived of it". 9. "As a power judicial and not executive or legislative in its nature, and one lodged in a co-ordinate branch of the government separated and independent in its sphere of action from the other branches, it seems to be under the protection of the constitution, and therefore a power which cannot be taken from the court, and given to either the executive or legislative departments, or to any officer of either of those departments". — In re Janitor of Supreme Court, 35 W. 410, 419. 10. Section 14, article VII of the constitution, provides for a 'judge of probate' for each .county, " 'whose jurisdiction, powers and duties shall be prescribed by law; 11. Provided, however, that the legislature shall have power to abolish the office of judge of probate in any county, and to confer probate powers upon such inferior courts as may be established in said county' ". 12. "Under this proviso the probate courts were abolished in all the counties in this state by chapter 86 R. S. 1849; and the jurisdiction, powers and duties of such probate judges or courts were conferred upon the several county courts of the respective counties in this state (sees. 2440-2464) ". See Jurisdiction. —Lannon v. Hackett, 49 W. 261, 267. 13. In re Janitor of Supreme Court, 35 W. supra, quoted and fol- lowed as to power of circuit court ' ' to appoint necessary court attend- ants". 14. "The power to determine the necessity" "appropriately" rests "with the judge making the appointment", and "a broad and liberal discretion is vested in the judge respecting this power". — Stevenson v. Milwaukee Co., 140 "W. 14, 19. 15. An enactment "entitled 'An act to create a superior court in the county of Pond du Lac'," is held to be a local law and void as to the PROBATE OF WILLS 897 provision abolishing the county court of such county, the fact not being mentioned in the title, and therefore void in toto. (See also In re Wool- cott, 163 W. 34, 37, under Officers.) —State ex rel. Richter v. Chadboume, 162 N W. 410, 418. See County Judge. PROBATE JUDGE. PROBATE OF WILLS. See also Execution op "Wills. Privileged Communications. TAMENTARY CAPACITY. UNDUE INFLUENCE. WILLS. TES- Administration before probate,. 31. Application for: .Grantee of devisee, 27. Tax deed, not estop, 28. Whoever takes title, 29. Or ean use as evidence, 29. Common law: Changed by statute, 5. Conclusive" as to personalty, 3. Not as to realty, 3. Proved in ejectment, 4. Title muniment, 4. Conditional will, 32. Condition takes place, 32. ' Not defeat will, 33. Contestant : Non-heir legatee of earlier, 30. Construction : Rights of a widow, 22. Unlawful widow, 22. Definition of will, 24. Delay in probate immaterial, 75. Should be proved at once, 74. Devisees : Homestead included, 9. Lands subsequently acquired, 9. Take at once on death, 8. Duty to uphold will, 2. 'Effective: , Certificate annexed, 7. Eeeord in register's office, 7. Treated as conveyance, 7. Conclusive as to execution, 6. Personalty and realty, 6. When proved and allowed, 6. When duly proven, only, 25. Effective-when proven, 25. Zimmerman — 57 Executor named: I Appeal, in good faith, 71. Duty to probate will, 69. Public duty. also, 70. Eepresents testator, 69. Fraud; obtained by, 1. Instrument incorporated in, 19. Judgments of probate: Collaterally: revocation, 11. Fraud procurement, 13. * Porgery precluded, 12. Proceeding in chancery, 16. Subsequent will revocation, 14. Undue influence, 13. Will, safe from any attack, 15. Language not understood, 17, 34. Lease, not as will, 23. Natural justice will, 72. Strong nullifying evidence, 72. Will not natural one, 73. Weaker testimony, 73. No right to suppress or change, 74. ' Parties : Legatees and heirs, 20. Probate essential, title, 26. Proceeding in rem, 38. AH the world, parties, 38. ' Besides specific persons, 38. Binding all the worjd, 39., Public welfare involved, 39. Testator's rights regarded, 40. Parties to contrary, 41. , Proof requisite: J , Attestation clause, presumptive, 36. Overcome by evidence, 37. Unsupported by memory, 37. Oral evidence is not all, 35J Statutory conditions, affirmatively, 35. 898 PROBATE AND GENERAL LAW, CODIFIED Public policy, to probate, 70. Settlement among heirs, 74. Nevertheless proved at once, 74. Stipulation of all parties, 42. Different disposition, 42. Mental incompetency, 42. Testimony otherwise, 43. Not control the court, 44. Duty to public, 44., Perhaps to testator, 44. Stipulation; pro forma contest, 45. Statement : Circuit court, on appeal, 46. Radically changing provisions, 46. Admitted in county and circuit, 45, 46. All parties, including guardians, 46. Settlement proceeded to judgment, 47. Appeal again to circuit 47. Former judgment, res adjudicata, 47. Large attorneys fees, 46, [47. Will unambiguous, 48. Trust for long period, 48. Stipulation, immediate payments, 49. Use of income, some trust, 49. Res adjudicata contention, 50. As to first unappealed judgment, 50. Law: Subverting testator 's_ wishes, 51. Inviolability of trusts, 51. Stipulation — continued Trust termination rule, 52. Jurisdiction exceeded, 53. Power to change rule, 54. Testator 's interest, note of, 55. Contract void, where minors, 56. Adults, except as estopped, 57. Judgment, coram non judice, 58. Right to make will, 59. Includes carrying out, 59. Jurisdiction failure of, 60. For displacing will, 60. Decree, regarded as nullity, 60. Except county court probate, 60. Expenditures subsequent, 61. Unjustifiable waste, 61. Attorneys, etc., must account, 62. Judicial direction, faith, 63, 65. Not applicable here, 64. Executors personally liable, 64. Grounds of public policy, 66. Void judicial direction, 66. County court, full juris., 67. Acts there valid, 67. However erroneous, 68. Time of probate: Any time after death, 27, 75. Twenty-seven years after, 27. Though previous petition, 27. Two wills admitted, 21. As will and codicil, 21. Construed together, 22. Validity of provisions, 18. Immaterial at probate, 18. 1. As to, the power of a court of equity to set aside the probate of a will obtained by fraud. See Equity. —Archer v. Meadows, 33 W. 166, 169. 2. "It is" "the duty of courts to uphold and enforce" a testator's "will after death". See Wills. —Dodge v. Williams, 46 W. 70, 90. 3. "At common law the probate of a will was conclusive as to the personal property, but was no evidence as to the execution or validity of the will, so far as it affected real property. (Citations.) ' 4. At common law, and as to real estate, the will itself, on being duly proved in an action of ejectment or other suit affecting the title to realty, became a muniment of title. Colton v. Ross, 2 Paige, 396; (other cases) 5. But that has been changed by statute in England, as well as sev- eral of the states. (Citations) ". 6. "In this state no will is effectual to pass either real or personal estate unless it has been duly proved and allowed, etc.," "and the PROBATE OF WILLS 899 probate of a will of real or personal estate, as provided in our statutes, is expressly made) 'conclusive as to its due execution'. Sec. 2294." 7. When proved, with a certificate thereof annexed, "attested copy of every will devising lands; etc.," "is to be recorded in the office of the register of deeds. Sec. 2296. This indicates that the certified and attested copy of the will is to be treated as a conveyance. ' ' 8. Under Sec. 2278 "it has, in effect, been held that where there is an absolute, unconditional devise, the devisee takes at once on the death of the testator. In re Pierce, 56 W. 560; (other citations.) 9. This may include lands acquired after making the will (Sec. 2279), and the homestead (Sec. 2280). Ferguson v. Mason, 60 W. 387". 10. "The conclusiveness of judgments of probate has often been declared, and cannot reasonably be questioned. Archer v. Meadows, 33 W. 166 (cited under Equity.)." 11. It is indicated that after probate the party might "be forever precluded from attacking the will collaterally on" the ground of revo- cation. "According to Mr. Freeman he | would. Sec. 608. 12. It has been held that the probate of a will could not be collater- ally voided on the ground that the will was a forgery. Ibid. (Cases) . 13. So it has been held that it could not be collaterally avoided on the ground that the will so admitted to probate had been procured by fraud or undue influence (Archer v. Meadows, 33 W. 167) ; 14. Nor that it has been revoked by the subsequent execution of another will (Ibid; Davis v. Gaines, 104 U. S. 386, and cases there cited) ; see Waters v. Stickney, 12 Allen, 1, and cases there cited) ; 15. Nor Collaterallv impeached on any other ground (Vanderpool v. Van Valkenburgh, 6*N. Y. 190) ; 16. Nor set aside by proceeding in chancery. Archer v. Meadows, 33 W. supra; (cases) ". — Newman v. Waterman, 63 W. 612, 615. 17. As an original proposition, the court holds that a will otherwise properly admissible, where "the testator was correctly informed of the contents of the instrument", "was properly admitted to probate", "notwithstanding it was written in the English language, which she (the testatrix) could not read or understand ' '. —Will of Walter, 64 W. 487, 493. 18. "We do not pass upon the questions raised as to the validity of the provisions of the will presented for probate in this case. If the same was duly signed and witnessed, and if there was no fraud or undue influence, and the deceased was competent to make a will, then we think it should be admitted to probate." — Allen v. Griffin, 69 W. 529, 537. 19. Probate of an instrument not properly executed, incorporated as a part of a subsequent similar instrument properly executed as a will. See Execution of Wills. —Shwmer v. Am. Bible Sac., 92 W., 209, 212. 900 PROBATE AND GENERAL LAW, CODIFIED 20. "Legatees and heirs are all parties, in a proceeding to establish a will See Parties. — In re Vulentme's Will, 93 W., 45, 52. 21. Two wills, the second providing for its taking effect only if cer- tain bequests in the first are avoided, were admitted together as a will and codicil, and there being no appeal, such probate was held conclusive as to "the due execution of the two instruments, — the first as a will and the second as a codicil", and the second did not revoke the first. Newman v. Waterman, 63 W. supra. > 22. On construction, both instruments providing that certain bequests are "not to be considered as part payment of her dower interest or thirds in his estate", and that she shall also be entitled "to all under the law in such case made and provided as his widow, ' ' — I. W., named as widow, is held entitled also to dower and homestead rights, though being a niece also, she was not lawfully his wife, and "can only have such rights by virtue of the will". —Dicke v. Wagner, 95 W. 260, 263. 23. A lease 'for the term of his natural life from' the day of its date, with "nothing ambiguous in the language employed", and nothing therein indicating "that it, was intended as a will", is held not capable of probate. 24. "A will is an instrument by which a person makes a disposition of his property to take effect after his decease. Schouler, Wills, § 1 ". —Estate of Ogle, 97 W. 56, 58. 25. "Unlike most written instruments, a will, in this state, must be, established in court by proof, as prescribed by the statute, before it goes into effect. Sec. 3788; Jones v. Roberts, 96 W., 427 (See Execu- tion of Wilis). .26. Probaie of a will is essential to the passing of title to property. ■ Sec. 2294. The measure of proof to establish a will, in case of contest, is suggested by the requisite mental capacity to make a will as adjudged by the Courts". ( —In re Downing 's Will, 118 W., 581, 588. 27. Following Mass. cases that 'a will devising lands may be admitted to probate at any time after the death of the testator', it is held that probate should be granted on petition of a grantee of a devisee, twenty- seven years after the testator's decease, though a petition for probate had been filed shortly after the decease and had not been acted upon. 28. The fact that the devisee's "husband (a grantor) had obtained a tax deed on the land did not estop the defendant from claiming title under the will and the conveyance from the devisee." 29. "It has been held" "that 'whoever has a right to offer a will in evidence, or to take title. under it, may insist on having it proved'. Steb- bins v. Lathrop, 4 Pick., 33, 42". —Eanley v. Kraftczyk, 119 W., 352, 356. . PROBATE OF WILLS 901 * 30. A non-heir legatee of an earlier will as contestant of a later will. See Aggrieved Persons. — Will of Hunt, 122 W. 460, 464. 31. Administration had before a will was found and probated, held effective until set aside. See Administration. —Perkins v. Owen, 123 W. 238, 241. 32. Where "the will recited: 'This will is made in case I die on my journey home from California','' and was executed at the commence- ment of the journey, it was -found at the probate, on the facts, "she died on her journey, within, the contemplation of this provision of the will. 33. However, had she died after arriving home, there is abundance of authority to the effect that such provision would not defeat the will". -r-Wells v. Chase, 126 W. 202,, 209. 34. Following Will of Walter, 64 W. supra, where a will "Was 1 in the English language* which the testator did not understand", and it appears "clearly .that the testator was otherwise accurately informed of the contents and meaning", — it is held properly admitted. 35. While "the proponent must show affirmatively that all the con- ' ditions required by the statute in the execution of the will were, complied with", yet "the oral testimony of those present is not all the evidence." 36. On establishing the signing of the will by the testator, and- that the "subscribing witnesses signed a certificate which declares that all the steps required by the statute for due execution, there arises a strong presumption that such steps were taken, 37. And such presumption need not be supported by affirmative memory of witnesses, but, to defeat the will, must be overcome by evi- dence to the contrary. Gillmor's Will, 117 W. 302 (See Execution of Wills) ". , — Will df Arriescm, 128 W. 112, 115. 38. "The probate of a will is a proceeding in rem, to which all the world are in some sense parties", and it "may affect many other rights and interests", aside from those of "specific individuals", • , 39. It is a proceeding "binding all the world, and in which even public welfare and policy is involved", as "evinced by various statutes | in this state. ' ' 40. "Apart from the interest of the public", the "right of the tes- tator" "is recognized to direct at least the method of management and disposal of his property after his decease, 41. Which courts cannot be compelled to disregard to accommodate the. wishes of some or even all parties having pecuniary interest in the property. Dodge v. Williams, 46 W. supra; Bussell v. Wright, 133 W. 445 (See Trust Variation) ". 42. Held, that. where all the heirs, next of kin, beneficiaries, and the executor named, proponent, under a will, stipulated that the testator 902 • PROBATE AND GENERAL LAW, CODIFIED was mentally incompetent, and for a different disposition of the estate, ' and do consent and agree that said instrument may be disallowed and the probate thereof denied', — 43. And "upon the return day" "the subscribing witnesses attended and testified to the making of the will, the obvious sanity of the testator, and his apparent freedom from influence", . 44. Such stipulation "could not control the duty which the probate court owed to the public, and perhaps to the testator, to adjudicate as to the legal existence of the propounded document as a will: to estab- lish its status". "Will sustained in each of the three courts. —Will of Dwrdis, 135 W. 457, 461. 45. A will;— disposing of a large estate, the heirs represented by various sets of attorneys, and minors by general guardian and guardians ad litem, — being objected to by the adult heirs, was, after pro forma contest, admitted to probate the county court; 46. On appeal, in the circuit court, after like pro forma contest, and upon a detailed written stipulation radically changing the provisions and scheme of the will, and including large fees for all attorneys and guardians ad litem, signed by all adults, attorneys, general guardian and guardians ad litem, — the probate was affirmed and final distribution directed in accordance with the terms of the stipulation ; 47. Thereupon, settlement of the estate so proceeded in county court to final judgment, and on appeal therefrom the former judgment of probate was considered res adjudicata, and after trial judgment ren- dered in circuit court modifying the final judgment as to allowances of fees to attorneys and guardians ad litem, and appeals taken to the supreme court by the executor, heirs, aud various attorneys. 48. The will, in general provided (unambiguously) small annuities, and the bulk of the estate to be held in trust until the youngest grand- child became thirty years' of age, the- corpus then to be distributed as indicated. 49. The stipulation provided for considerable immediate payments to interested parties, and the use of the income, some of the estate to remain in trust for corpus distribution as the will indicated. 50. It was contended that the first circuit court judgment of probate and direction for distribution, not appealed from, was res adjudicata in the supreme court hearing. Statement and opinion of 90 pages. Held : 51. The attitude of attorneys and court in such judgment under the stipulation, now "in form res adjudicata", apparently proceeded from an entire "erroneous" "view of elementary principles" as to subvert- ing "the wishes of the testator", and "the public policy" "respecting the inviolability of trusts". Dodge v. "Williams, 46 "W. supra; (many other cases), p. 436. 52. "The only explanation of it is probable misconception - of the scope of the rule that all the beneficiaries of a trust, may, by agreement, the trustees consenting, terminate the trust and the limitation thereof PROBATE OF WILLS 903 as indicated in the decisions of this court". (See Tkust Variation). p. 437. 53. If "the result was not merely erroneous and so, binding on all parties", and, "if the court exceeded its jurisdiction of the subject matter, then the judgment is no protection whatever. It may be ignored altogether. (Many cases) ". p. 440. 54. "The circuit court" had no "judicial power over such subjects as changing the testamentary disposition of property from the plan made by the testator to one agreed upon by all the beneficiaries, espe- cially where they were, in part, minors". 55. ' ' The sole jurisdiction of the court is to take note of the testator 's interest, so far as it can be discovered by judicial rules and does not violate the law, and give effect to it". Will of Dardis, 135 W. supra, pp. 441, 447. 56. "A contract between those interested not to offer a will to pro- bate but to divide the property by agreement, is void where there are minors ; 57. And, even as to adults, such an agreement is inter partes and does not .affect the question of whether the will shall be probated as written, or not, or affect the matter as between themselves except in. so far as permissible under the doctrine of estoppel. Finch v. Finch, 14 Ga. 362". p. 448. 58. "It is considered that the whole subject was outside the judicial authority and the judgment violating the terms of the will was coram non judice. 59. So we must conclude, not only that there is a constitutional right to make a will but that such right includes a right of equal dignity to have it carried out ' '. p. 450. 60. "The conclusion is reached that, looking at the matter from any view point, the trial court had no jurisdiction of the subject matter of displacing Mr. R.'s will. The agreement to that end should have been ignored as in the Dardis Will 'Case. The decree, in form, except the affirmance of the probate in county court, must be regarded as a nullity. 61. All expenditures in the contest which followed incidental to the void agreement were an unjustifiable waste of trust funds!. 62. The attorneys, guardians ad litem, and others who participated in the depletion, however innocently they may have acted, received the money without right and must be held to account therefor." pp. 453-4. 63. The rule that an executor acting "in good fa,ith in disbursing the trust fund" under "judicial directions", is "entitled to protection against any personal liability", 64. "Does not apply if there is such want of jurisdiction as to render the proceedings utterly void", and "we do not see any way for the .executors to escape personal responsibilities as to that, 65. Though we confess it is a great hardship upon them, since they acted under professional advisers" of standing, and "on the judicial advice of the circuit judge. 904 PROBATE AND GENERAL LAW, CODIFIED 66. However, on grounds of public policy, it seems, an executor is not protected from distributing the property of the estate he represents by a direction which is wholly void", p. 463-466. 67. However, as "to the distinctively county court matters", that court "having full jurisdiction of the subject matter of settling the estate", "all distribution" directed by its "formal order except" as to matters "referable to the circuit court judgment, 68. Must be regarded as having been, however erroneous, made, pur- suant to, judicial direction, within the jurisdiction of the county court, and as to the executors made within the protection of the rule before indicated", p. 467. See also Administration Expenses. Compensa- tion op Adme., etc. Guardian ad Litem. Infants. Jurisdiction. Wilis. — Will of Bice, 150 W. 401. 69. An executor named "is the representative of the testator and is charged with the duty of seeing that the will is probated and its pro- visions carried into effect. 70^ Public policy also requires that a legally executed will be pro- bated, and the person named as executor has a public as well as a private duty to perform. 71. If he in good faith believes that the will has been wrongfully denied probate by the county court, he should appeal .from the deci- sion". (Cases). — Cowan v. Beans, 155 W., 417, 418. 72. "Where a will is made in accordance with the dictates of natural justice it will require strong evidence of lack of mental capacity or undue influence to nullify it". Will sustained as against county court's ruling, the evidence against it being "weak and unsatisfactory", and a third husband living left out, and the property having been acquired prior to his marriage with testatrix. — Gunderscm v. Rogers, 160 W. 468, 473. 73. Where a will is not "a natural one", weaker testimony and infer- ence, held to set it aside. See Undue Influence. — Elliott v. Fish, 162 W. 249, 253. 74. Though settlement was made among the heirs and interested parties, "if there be a will in existence it should be at once probated. No one has any right to suppress or change the terms of the will. Will of Dardis, 135 W. ; Will of Rice, 150 W. ; supra". — Schoenwetter v. Schoenwetter, 164 W. 131, 135. 75. "Delay in admitting the will to probate is immaterial". See Legacies. — Will of Brandon, 164 W. 387, 391. See Whitings. PROMISSORY NOTES, ETC. PRODUCTION OP PAPERS. 905 PROFESSIONAL ETHICS. See Attorney and Client. PROFITS. See Rents and Profits. PROMISSORY NOTES, ETC. See also Alterations. Checks. Handwriting. Joint Opliga- tions. Omissions. Parol. Sureties. Accommodation makers^ 104. Payment by maker, 104. Action: on note or debt, 11. Amend at trial, 13. Both without election, 13. Debt, if note altered, 12. Payment refusal; not waiver, 112. Alteration : Erasure, interlineation, 2. Explained before offered, 33. Interlined, no blank line, 95, 96. Not forfeiture of debt, 12. "Order" to "bearer," 2. Attorney's fees : Clause; non-negotiable, 45. Eecover in foreclosure, 47. Bill of exchange: Drawer has reasonable time, 84. Negotiable, order or bearer, 85. Order, non-negotiable, 83. Burden of proof; not shift, 118. Cashier : Cash or collateral turned over, 76. Proof of bank's money, 76. Discount authority, 75. Not his own notes, 75. Certificate of deposit is, 37, 43. Limitation statute, from date, 44. Not within exceptions, 101. Within general statute, 101. Receipt from cashier, 46. Consideration : Defense of without, 14. Consideration — continued Estate notes given for heir's note, 53. Deposit account checked out, 54. Heir estopped from defense, 55, Extend time of payment, 99. Failure, by nonperformance, 63. Failure, shown orally, 52. Between original parties, 52. Condition subsequent therein, 109'. Deceased endorser: Possession proof of, 116, 117. Burden does not shift, 118. Presumption only, 117. , Sec. 4192, not apply to, IMS. Deceased maker: Signature proof necessary, 72. Though no objection, 72. Definition of, 36. Dishonored : Interest past due, not, 18, 25. Duress : Not available; innocent holder, 60, 66. Endorsement : Deceased endorser; proof, 117. Effect of, in blank, 15, 19. Parol, not effect, 20. Payee and another, 8. Payee presumed first, 8. Possession is proof of, 117. Presumed made at date, 5. "Without recourse"; good faith, 30. Evidence of debt, merely, 68. Evidence, prima facie, 49, 74. 906 PROBATE AND GENERAL LAW, CODIFIED Evidence, etc. — continued Without denial, 49. Or other proof, 74. Express contract, definition, 69. Circumstantial evidence, 71. Fraud: tinctured with, 64. Estopped by negligence, 65. Forgery defense relied on, 113. Payment of forged note, 114. Admission of signature, 115. May be explained away, 115. Other forged notes, 114. Payment refusal; not waiver, 112. Lightning-rod -contract, 64. Forgery. See Fraud. Genuineness: questioned, 32. Appears on face thereof, 33. Explained before offered, 33. Denial, or evidence objection, 32. Husband and wife: Husband's debt; wife's estate, 60. Note and mortgage; duress, 60. Transfer before due; valid, 60. Interest :. Mere incident to debt, 23. Unpaid, not dishonored, 23. Joint and several, singular, 3. Judgment note: Entry in any state, 50. Power; name interlined, 94. Stipulated attorneys fees, 50. Maturity : Principal due; not interest, 24, 25. Negotiable instrument law: Ambiguous in terms, 98. Parol, even third persons, 98. Attorney's fees; negotiable, 102. Makes note itself proof, 74. Purpose of law; not radical, 108. General principles same, 108. Eegulates negotiable only, 86. Rules, conflict; former decisions, 103. Non-negotiable : Attorney's fees clause, 45, 102. Interlineation affects, 95. No authority for, 95. Payable from specified fund, 61. Notice of defense set up, 62. Notice to endorser, 59. "On or before", effect of, 67. Parol: Agreement at making, 4. Agreement, not of force, 42. Agreement not to be liable, 51. Ambiguous in terms, 98. Even as to third persons, 98: Blank endorsement, 20. Consideration failure shown, 52. Parol — continued Mistake; equitable defense, 93. Signatures, ambiguity free, 80. Conversations inadmissible, 81. Corporate, individually, 79. Surety shown by, when, 38. Unambiguous; not vary, 92. "Payable after my demise", 97. Payable to bearer: Bona fide payor protected, 16, 17. Lost or stolen; payment, 15. Or by blank endorsement, 15. "Order of", by endorsement, 94. Payment: for debt, 9. Action on note or debt, 11, 57. Burden of proof; on defendant, 58, 70. On person paying, 121. Extend payment time, 99. New note given for, 99. Merely suspends remedy, 57. New note, not discharge old, 41. Note merely suspends action, 10. Not unless expressly agreed, 9, 21, 56, 68, Person not the holder, 120. Presentation and demand, 59. Notice to endorser, 59. Received as security only, 89. Certificates of deposit also, 90. Agreement not proved, 91. Renewal notes; old stamped "paid", 77. Not intended as discharge, 77. Clear contrary evidence, 78. Third person's note is payment, 87. Contrary indorsement changes, 88. Then like his own debt, 89. In property purchase, 87. Possession; "payable to order", 105. Title in payee, 105, 106. Without endorsement, 105. Presentation and demand, 59. Protest for non-payment, 59. Renewal. See Payment for debt. Several, one mortgage, 6. Priority, not ratably, 6. Signature : Admitted if not denied, 48. Corporate name, by F., 79. And others, officers, 79. Binds all individually, 79. Conversations, inadmissible, 81. Corporate name by treas., sec, 98. Ambiguous: parol, 98. Word "secretary", omitted, 98. Deceased makers; proved, 72. Genuineness denied, 40. Indefinite proof, 40. PROMISSORY NOTES, ETC. 907 Signed in blank: Holder agent of signer, 34. Obtain other makers, 35. Implied power; blank required, 95. Singular, two signing, 3. "Surety" after one name, 3. Stipulation in: Credit, on endorsement, .22. Payments provable, 22. Surety: Shown by parol, 38. Depositing, collateral to new, 41. Sureties discharged, 41. Executory usurious contract, 39. If creditor has knowledge, 38. Release of collateral, 107. Surety pro tanto only, 107. Transfer : First assignee's good faith, 82. InuTes to his assignee, 82. Though latter had notice, 82. Transfer — continued Note secured by mortgage, 26. Like other negotiable paper; 26. Mortgage passes as incident, 27. Not notice of mortgage contents, 30. Suspicion of defect, insufficient, 28. Bad faith, to impair title, 29. . Nor mortgage security words, 31. ' ' Without recourse ' ', insufficient, 30. ' . Without final assignment, 7. Void between parties; law, 100. Drunkenness: invalid, 110. . Also holder in due course, 110. Ordinary intoxication, 111. Innocent holder enforce, 100. Whole contract; not presumed, 73. Without date; payment time, 1. Without name; order of, 96. No promise to pay anyone, 96. 1. "A promissory note is perfect without date or time of payment. / Mitchell v. Culver, 7 Cow. 336. This note is an acknowledgment of an existing debt, payable immediately, and bears interest from its date." No time of payment is given. —Husbrook v. Wilder, 1 Pin. 643, 644. 2. "Any material erasure or interlineation in a note vitiates it, unless explained." A change from ."order" to "bearer" apparently at the time of making the note, "explains itself." — Williams v. Starr, 5 W. 534, 549. 3. A note in the singular signed by A. and also by B. with the word "surety", such note is joint and several and both are liable as prin- cipals. — Dart v. Sherwood, 7 W. 523. 4. "Not competent to show by oral testimony this agreement or understanding, made at the time the note was given, for the purpose of varying or controlling its legal effect". —Gregory v. Hart, 7 W. 532, 539. 5. "The general rule is that an endorsement, in the absence of any evidence to the contrary, is always presumed to have been made a;t or about the date of the note". —Mason v. Nomum, 7 W. 609, 618. 6. Notes are payable out of mortgaged security by priority and not ratably. See Payments. — Marine Bank v. Inter. Banhi 9 "W. 57. 7. "The transfer of the notes carries with them the interest in the mortgage" without "formal assignment". — Bice v. Cribl, 12 W. 179, 182. 903 PROBATE AND GENERAL LAW, CODIFIED 8. Where the payee and another are endorsers, "the legal inference from the face of the note ' ' is that the payee is the first endorser, but parol evidence is admissible to show the contrary. —Cody v. Shepwrd, 12 W. 639, 642. 9. "In this state the doctrine is well settled, that the taking of a promissory note of the debtor ' either for a precedent liability, or a debt incurred at the time, is no payment unless expressly so agreed' by the parties". —Pame v. Vaorhees, 26 W. 522, 526. ,10. "It is the logical result of this rule (of Paine v. Voorhees, 26 W. supra), that the giving of a promissory note for goods sold or money loaned is no payment or extinguishment of the debt, unless such was the agreement, and that the taking of the note only suspends the action on the contract until the note is due". , 11. "But when the term of credit has expired, the creditor may bring his action and recover either upon the original consideration or on the note, as he may elect". . 12. "We think the better authority is, that 'an unauthorized altera- tion of the note works no forfeiture of the debt, so that there can be no recovery by the party making such alteration, for the original considera- tion for which the obligation was given ; ' and that this rule necessarily results from our decisions that the taking of the note of the debtor is not a payment or extinguishment of the demand for which it was given". 13. In this case recovery was allowed ; there was no fraud in making the alteration increasing the amount. Held also that the court prop- erly allowed an amendment at the trial alleging the new cause of action on the original consideration, and that there was not "any error in refusing the defendant's motion to, compel the plaintiff to elect whether he would proceed upon the claim for money loaned and interest, or upon the note. This was a matter resting in the discretion of the court"; and both claims being for the same money. —Matteson v. Ellsworth, 33 W. 488, 502. s 14. "The defense that the note was without consideration ought to be sustained by evidence which Waves no fair or reasonable doubt upon the subject". , — Pimeh v. Williams, 34 W. 268, 270. 15. "The rule of law applicable to this question (paying to bearer Who was not the real owner) is clearly stated in Byles on Bills, in the following language: 'If a bill 'or note payable to bearer, either origi- nally made so or become so by an endorsement in blank, be lost or stolen, we have seen that a bona fide holder may compel payment. 16. Not only is the payment to a bona fide holder protected, but payment to the thief or finder himself will discharge the maker or acceptor; provided such payment were not made with knowledge or sus- PROMISSORY NOTES, ETC. 909 - picion of the infirmity of the holder's title, or under circumstances ' which might reasonably awaken the suspicions of a prudent man '. Ch. 15, p. 172," 17. "In Story on Bills the doctrine is laid down in substantially the same language; and there can be no doubt of the rule upon the sub- ject". — Greve v. Schweitzer, 36 W. 554, 557. 18. Where a note not due, interest payable annually, has a year's interest "past due and unpaid, the law will construe that the note is dishonored", and that a buyer takes it subject to defenses and "could not be said to be an innocent purchaser". (Over-ruled by Kelley v. Whitney, 45 W. post) . , —Hart v. Stickney, 41 W. 630, 634, 636. 19. While "there is considerable diversity of judicial opinion", "we think the sounder doctrine is laid down in those cases which put all endorsements on substantially the same footing, and which hold that the legal effect of an endorsement in blank cannot be overcome" or destroyed by parol. 20. The contract by a blank endorsement is fixed by law, and should not be rendered uncertain by parol, any" more than when written out in full". —Charles v. Denis, 42 W. 56, 58. 21. ' ' In this state the law is well settled, that the taking by the cred- itor of the promissory note of the debtor, either for ,a precedent liability or for a debt incurred at the time, does not operate as a payment unless it is expressly so agreed by the parties. Paine v. Voorhees, 26 W. supra, and eases" cited." — Aultmm & Co. v. Jett, 42 W. 488, 491. 22. The stipulation in the note "No credit allowed on this note unless endorsed on the back by the payee", will not prevent "authorized pay- ments on the note" from allowance without going "into a. court of equity to compel the payee to make the proper endorsement of pay- ments", and "the more simple and reasonable process is to allow them in a suit (at law) upon the note, even though not endorsed thereon by the payee". — Kasson v. Noltner, 43 W. 646, 652. 23. "The interest is a mere incident to the debt, and although it is frequently provided that it shall be paid at stated periods before the principal falls due, we know of no authorities holding that a failure to pay it dishonors the note, so as to let in all, the defenses against subse- quent purchasers for value without any other notice of defects except, the mere fact that such interest has not been paid. And we do not think it should have that effect. 24. The maturity of the note, within the meaning of the commercial rule upon this subject, is the time when the principal becomes due. Boss v. Hewitt, 15 W. 260; 262. ' ' 25. On the question of maturity and dishonor, Hart v. Stickney, 41 910 PROBATE AND GENERAL LAW, CODIFIED W. supra, is overruled, and following the previous case of Boss v. Hewitt, 15 W. 260, it is said, — "we deem it our duty to adhere to the rule, that a purchaser for value of unmatured commercial paper, with interest overdue, is not, from that fact alone, affected with notice of prior equities or infirmities in the title". 26. "It is the settled law in this state that a negotiable promissory- note secured by mortgage may be transferred before maturity like other negotiable paper, and the holder takes it discharged of existing equities. 27. The mortgage in such a case passes as an incident to the note, and may be enforced by the holder in spite of equities which may exist between the mortgagor and mortgagee". 28. "And, 'as with other negotiable paper, mere suspicion that there may be a defect of title in its holder, or knowledge of circumstances ' which would excite suspicion as to his title in the mind of a prudent man, is not sufficient to impair the title of the purchaser. 29-. That result will only follow where there has been bad faith on his part'. Cromwell v. County of Sac, 96 U. S., 51." 30. The note "was indorsed by the payee and mortgagee 'without recourse'; but that 'is not sufficient to charge the assignee with notice of a defense against the note, "on the part of the maker, nor is it suf- ficient to put him on inquiry in reference thereto '. Stevenson v. 'Neal, 71 111., 314". ' 31. Nor are the words 'secured by real estate mortgage', " 'sufficient to inform third parties of the contents or terms of the mortgage, nor to' put them, upon inquiry'. Howry v. Eppinger, 34 Mich. 29-33", nor do these words on the note "limit or impair its value". — Kelly v. Whitney, 45 W. 110, 115. 32. " The .genuineness of the note offered could only be questioned in two ways: .either by the proper denial in the answer, or by objection to its introduction in evidence when offered, on that ground". 33. "When its alteration or want of genuineness appears upon the face of the instrument itself, the question must be raised, and the altera- tion explained, when it is offered and before it is received in evidence: (Cases) ". — Austin v. Austin, 45 W. 523, 530. 34. The signer of a note in blank makes the holder his agent for fill- ing out and doing all that is necessary to effect it s purpose ; 35. He may obtain the signature of other accommodation makers to the same. See Omissions. —Snyder v. Van Daren, 46 W. 602, 606, 36. " 'A promissory note may be defined to be a written engagement by one perscta. to pay another person therein named, absolutely and unconditionally, a certain sum of money at a time specified therein'. Story on Prom. Notes, Sec. 1. 37.' The ordinary form of a certificate of deposit of money falls pre- cisely within the definition, and it seems strange that there ever was PROMISSORY NOTES, ETC. 911 a doubt that it was in law a negotiable promissory note. O'Neill v. Bradford, 1 Pin. 390, and cases there cited. Such doubt, however, may now be considered at rest. (Cases)". — Elauier v. Big ger staff , 47 W. 551, 555. 38. Where the creditor has knowledge, a signer may be shown to be a surety, by parol testimony. 39. An "executory usurious 'agreement" to extend payment does not release the surety. See also Sureties. — Irvine v. Adams, 48 W. 468, 474. 40: "Where the genuineness of the signature was denied, and the attesting witness. "stated in substance, on his examination in chief, that he saw the defendant execute tihe note ; but upon cross examination- he was much less positive about having actually witnessed its execution, still, it was proper to admit the note in evidence, with the other testi- mony bearing on the question of its genuineness," as being sufficiently proven for consideration. — Holmes v. Cook, 50 W. 172, 173. 41. Taking up and depositing as collateral a note to secure a new note for such purpose, is held to discharge the sureties of the first note, but to estop the principal from alleging payment. See Sureties. —Greening v. Patten, 51 "W. 146, 151. 42. Evidence of a contemporaneous parol agreement that notes given "were not to be of any force against" the maker, "is clearly in con- travention of the well-established rule of law that parol evidence of matters which take place before or at the time of making a written contract cannot be received to nullify the written contract made by the parties. This rule has been applied by this and other courts to promissory notes. (Many cases)". —Davy v. Kelley, 66 W. 452, 456. 43. A certificate of deposit is held to be a promissory note, Klauber v. Biggerstaff, 47 "W. supra, being approved. 44. The statute of limitations thereon is held to run from its 1 date, from which ii is "due and payable", and not from the date of demand. — Gurran, Admr. v. Witter, 68 "W. 16, 22. 45. A clause in a note "to pay the expense of collection, including reasonable attorney's fees, rendered it non-negotiable, and hence no more enforceable by the defendant (subsequent holder) than the payee". "That the clause in the note agreeing to pay attorneys' fees rendered it non-negotiable was expressly held in First Nat. Bank v. Larsen, 60 W., 206; Continental Nat. Bank v. McGeoch, 73 W. 332." (But now changed; see par. 102, post). — Peterson v. Stoughton State Bank, 78 "W., 113, 117." 912 PROBATE AND. GENERAL LAW, CODIFIED 46. A receipt from a cashier, is held to have "all the characteristics of a certificate of .deposit," and delivery thereof a gift of the fund. See Gifts. , — Crook v. First Nat. Hemic, 83 W., 31, 36. 47. "Where a promissory note included a stipulated attorney's fee if suit be instituted, such fee is properly receivable as in foreclosure judg- ments. — Vipond v. Townsend, 88 W., 285, 286. 48. There being no denial of the signature, where "the plaintiff introduced the note described in the complaint in evidence, and rested," it was held sufficient. ' 49. "The note, on its face, showed that it had been signed by the defendants (sec, 4192; Neilson v. Schuekman, 53 W., 638), and had become due and payable, and its production by the plaintiff was prima facie evidence that it had been delivered." See also Consideration. Payment. —Studelaker Bros. Mfg. Co.. v. Langsdn, 89 W. 200, 202. 50. A judgment note, with "a general power of attorney purporting to authorize the entry of judgment in any court of record", authorizes such entry in any state, and a stipulation for reasonable attorney 's fees (here ten per cent) may properly be included therein. —Pine v. H. Stem Jr., & Br. Co., 97 W. 150, 153. 51. "The alleged oral agreement by which R. (a signer) was not to be liable upon the note was no defense. A written contract cannot be varied or controlled by a qontemporanebus oral agreement. Gillmann v. Henry, 53 W. 465 ; Kulenkamp v. Groff, 71 Mich. 675 ; S. C. 1 L. R. A. 594, and note. 52. Want of consideration is, however, a perfect defense between the original parties to commercial paper as it is to any other contract, and parol testimony isl competent to prove the absence or failure of consid- eration. Hubbard v. Galusha, 23 W. 398". —Remington v. Detroit D. M. Co., 101 W. 307, 309. \ 53. Where a Tennessee intestate, died, with a deposit account in a bank, and the bank held decedent s notes, and while the estate was apparently solvent, the administrator, an heir, gave his' personal note to the bank in exchange for the decedent's notes, and thereafter the administrator was allowed by the bank to check out the deposit account, which "by the law of Tennessee it was entitled to offset" against the decedent's notes, and the estate subsequently was found insolvent, — in an action by the bank on such substituted note, it was held : 54. There being no fraud, and while "it may perhaps be doubtful whether mere mistaken opinions as to the value of real estate can prop- erly be called such mistake of fact as would justify rescission of a con- tract", nevertheless "the defendant is estopped from making this PROMISSORY NOTES, ETC. 913 defense," under the facts, the bank having paid out the deposit balance after taking the heir's note. 55. The cancelling of the decedent's notes, " constituted a sufficient consideration" for the heir's note in place thereof, and in addition, the facts "also estop him from pleading want of consideration". — Union & P. Bank v. Jefferson, 101 W. 452, 455. 56. "As long ago as 1862 this court became committed to the prin- ciple that the acceptance by the creditor of the note of the debtor or of a third person for a precedent debt was no payment, unless it' was expressly so agreed. 57. The acceptance merely suspended the remedy during its currency, and after the expiration of the credit an action might be maintained upon the original consideration, upon producing the note at the trial for re-delivery or cancellation. Ford v. Mitchell, 15 W. 304. 58. This case has been followed by many subsequent eases, so that the principle may be said to be fairly well settled. (Many cases) ". "The burden of proving that the note was received as payment" is upon the defendant. So held. 59. Protest for non-payment is not required. "Timely presentation, and demand of payment, and notice to the endorser, are all that the law requires. Sumner v. Bowen, 2 W. 524". —Willow R. L. Co. v. Luger F. Co., 102 W. 636, 638. 60. A note and mortgage by a husband and wife, upon the latter's separate estate, for the former's debt, obtained by duress as to the wife, is held valid against her, where transferred before due, by the payee, to pay in part his liability as a former guardian, to the remaining co-guardian, as a bona fide holder. See also Unlawful Contracts. —Mack v. Prmg, 104 W., 1, 6. 61. A dated and signed instrument addressed to B., — "Please pay to ' the order of W. and E. the sum of $600, the same to be the last $600 due me on my contract, and charge the same 4. In Dunn v. German^ Amer. Bk., 109 Mo. 90, "it was expressly held that 'the right of a public administrator to take charge of an estate cannot be collaterally questioned \ To the same effect; Hoes v. N. Y., N. H. & H. R. Co., 73 App. Div. 363. In so far as this court has spoken on similar subjects of jurisdiction the same is in harmony with the authorities cited. (Cases)' 1 '. See also Administration. , —Jordan v. C. & N. W. B. Co., 125 W. 581, 587. PUBLICATION. See also Jurisdiction. Notice. Service. Affidavit, strictly construed, 1. Corrected, filed, 19. . Presumptive evidence, 22. Proprietor, foreman, 4. Kecital insufficient, 1. Arbitration, publication, 15. Corrected affidavit filed, 19. fcnglish, legal language, 27. Legal, official notices, 27. German newspaper, 3. ' ■ ' Most likely to give notice, 3. Laws, secretary's certificate, 2. Published volumes, 2. , Legal language : public expense, -24. Foreign language, paper, 26. Notice in English, 26. Silent as to language, 25. Papers, different editions, 14. Summons publication, 5. Attorney as commissioner, 5. Foreign judgment, 23., Personal liability here, 23. ■ Order 1 a judicial act, 5. Summons, etc. — continued Personal service supersedes, 7. Complete when, 8. Weeks, successively, three, 6. Computation of time, 13. First day or last, 13. Five weeks successively, 17. Mixed, insufficient, 17. Four successive w;eeks, 16. Mixed, insufficient, 16. Full, twenty-one days, 6. Mixed, held sufficient, 9. Once a week for six weeks, 18, 20. Correct publication, 20. Six successive weeks, 21. Mixed, sufficient, 21. Six weeks, successively, 18. Six successive; sale, 10. Forty-two days, sufficient, 12. Mixed, insufficient, 11. Three weeks successively, 22. Mixed, insufficient; 22. Weeks publication construed, 28. 1. The affidavit of publication of notice must be "in strict conform- ity " to the statute, and it is material that the printer "or foreman" should swear that he is such and not merely state it "by way of recital". — Hill v. Hoover, 5 "W. 354, 371. 2. > The publication of the statute and the time will be taken judicial notice of on "the certificate of the secretary of state, appended to the published volumes of the laws". ' — Attorney General v. Foote, 11 W. 14, 17. 3. "If the circuit , judge", in the case of an American, "directed publication in a German instead of an English newspaper, as being PUBLICATION ■ 921 most likely to give notice to the person intendud to be served, we see no legal objection to it," the publication being in the English language. —Wakeley, v. Nicholas, 16 W. 588, 592; 4. Affidavit made by "proprietor" instead of "foreman", is good. See Sale of Real Estate. —Reynolds v. Schmidt, 20 W. 374, 5. As to publication of summons it is said: "The granting of such an order is a judicial act. The commissioner or other officer granting it must hear evidence, and must be satisfied therefrom of the existence of certain facts; he must deliberate, decide, adjudge." The attorney in the action as commissioner, cannot perform "these judicial functions in any matter pertaining to such action". —Grouch v. Grouch, 30 W. 667, 669. 6. A publication "for three weeks successively next before such sale", "requires a publication of the notice of sale for twenty-one days. In other words, three weeks must intervene between the first publication and the day of sale". , —McCrubb v. Bray, 36 W. 333, 339. 7. On an order of publication and alternative personal service with- out the state, "it is obvious that where such personal service is made, it supersedes the necessity both of publication and of mailing". 8. The order of .publication .being for six weeks, such personal "service was complete, at the latest, in six weeks after it was made", the court not deciding whether the time might be less. — Pier v. Amory r 40 W. 571, 574. 9. v In a three weeks publication for probate of a will where the order was signed May 6th, published May. 4th, for hearing May 27th, and the first publication after date was May 7th and the last May 19th, it was held to be "clearly insufficient". —O'Dell v. Rogers, 44 W. 136, 167. 10. "Whatever may be the rule in the state of New York and else- where, it must be regarded as settled in this state, by the decision of this court, that the statute (sec. 2993) requires the publication to be for the full six successive weeks before the sale, and that six weekly publications are not sufficient unless for such full time". 11. In this case, "the first publication was on the 24th day of June, and the last on the 29th day of July, and the sale took place on the 2nd day of August, 1881. This was less than six full weeks'-' publication before the sale, as the statute requires", and "the sale was for that reason clearly irregular and void". . 12. "In Herrick v. Graves, 16 "W. 157, this court held,: sub silentio/ that the publication of notice of an execution sale, when the first pub- lication was on the 9th day of June and the sale took place on the 21st day of July, was sufficient, because the notice was published for forty- two days, casting out the first day or the last". 922 PROBATE AND GENERAL LAW, CODIFIED 13. ' ' The rule of computation of time of the publication of notice of judicial sales of real estate ought to be harmonious if the language of the various statutes will allow it, and if this were a new question we should not hesitate to hold as above; but it is sufficient that the question has been so decided". —Collins v. Smith, 57 W. 284, 286. 14. Where an order directed notice to be published, in the "Milwaukee Sentinel", and it was published in the "Milwaukee Daily Sentinel", there being also a "M. Weekly Sentinel" and a "M. Tri-weekly Sen- tinel", as "mere adjuncts of the daily", and no specific edition known only as "Milwaukee Sentinel", it was held "that the notice was pub- lished in the newspaper directed in the order", and that there was not "any defect in the publication of the notice of hearing". — Melms v. Pfister, 59 W. 186, 190. 15. In the arbitration statute (sec. 3545), 'the publication of the award', is held to be the filing in the clerk's office. See Arbitration. —Russell v. Clark, 60 W. 284, 285. .16. Where the statute required publication " 'once in each week, for four successive weeks prior to' the sale'-', and the printer's affidavit sworn to May 7th, "simply stated that the notice 'was published in said newspaper for the period of five weeks, commencing on the 9th day of April", which "covered a period of just twenty-eight days", it wasiheld insufficient as not showing publication "once in each week during the time". — Ramsey v. Hommel, 68 W. 12, 14. 17. Following Ramsey v. Hommel, 68 W. supra, under the same statute, where "the sale was advertised to take place May 13th", it was held that proof that the notice was published 'for five weeks successively commencing on the ninth of April, and ending on the seventh day of May, 1879', "fails to show a publication of the notice of sale 'once in each week' for four successive weeks prior to the sale". — Morris v. Carmichael, 68 W. 133, 134. 18. "The statute (sec. 2640) requires publication to be made 'not less than once a week for six weeks. ' The affidavit of publication states that the same was printed and published in such newspaper 'six weeks successively, commencing,' etc." Held not a compliance with the statute. 19. The publication being in fact correctly made, it is held that on motion "submitted at the argument for leave to file a corrected affi- davit," that the same may be done to correct the record. —Frisk v. Reigelman, 75 W., 499, 508. 20. Publication "once in each week for six successive weeks," under sec. 2640, is complied with where there are "six publications, each on PUBLIC POLICY 923 the first day of six successive weeks", from October 5 to November 9, the service being complete at "the expiration of the last week; that is to say, November 16." —Cox v. North Wis) L. Co., 82 W., 141, 146. 21. A publication on each of six successive Thursdays, and "only thirty-six days from the time of the first publication to the date of the last publication, inclusive," but "more than seven weeks from the time of the first publication to the time fixed for the hearing," under a statute, sec. 1702d, requiring publication 'for at least six successive weeks prior to the day of the hearing,' (without specific designation as to publication once or other number of times each week, was held "sufficient to satisfy the requirement of the statute. Cox v. North Wis. L. Co., 82 W., supra." —Johnson v. Hill, 90 W., 19, 22. * 22. Where the statute, sea. 3787, requires publication, of the notice of hearing to prove a will, for three weeks, and the affidavit of the printer recites such publication as "once in each week, for three weeks, successively", but further gives the first insertion as April 30th, and the last May 4th, it is held, — that no part can be rejected, as "the affidavit is 'presumptive evidence of such publication and the facts therein stated,' " and "was insufficient to show jurisdiction over the several heirs". See also Jurisdiction. —Flood v. Kerwin, 113 W., 673, 678. / 23. Effect of publication service, as to an Iowa judgment on personal liability and note here, and mortgage on land there. See Foreign Jurisdiction. — Fitch v. Huntington, 125 W. 204,, 207. 24. "Where a statute either directs or permits a publication at public expense, in the absence of language evincing a contrary. intention, such publication must be made in the legal language of the country. ' ' (Cases) . 25; It "has been decided", "that where a statute either authorizes or directs a publication to be made in a newspaper, and is silent as to the language in which such paper must be printed, 26. Publication may be made in a newspaper habitually printed in a foreign language, provided, the publication authorized or directed is made in the English language". (Cases). '27. In State ex rel. Goebel v. Chamberlain, 99 W. 503, "the court said : ' The English language is the language of the country, to be used in all legal apd official notifications or proceedings, in the absence of any statute authority to the contrary". —Hymcm v. Sibswmhl, 137 W. 296, 299. 28. (See subd. 25, of sec. 4971, created by ch. 227, L. 1917, construing "weeks" publication to be one insertion in each week). PUBLIC POLICY. See Policy of the Law. 924 PROBATE AND GENERAL LAW, CODIFIED PUBLIC TRUSTS. See Charitable Trusts. PURCHASE MONEY LIEN. See Lien. See also Services. QUANTUM MERUIT. Contracts: failure, 1. Part performance, 2. Contract price governs 1 , 4. . Sickness intervening, 2. ' Performed and accepted, 1. Treated as rescinded, 8. When recovery allowed, 9. Without quantum meruit, 8. Entire contract: i Excusable non-performance, 7. Express contract shown, 29. No recovery thereunder, 29. Infant, orphan, recovery, 3. Negligent, unskilful employee, 11. Allowed "to complete, 11. No meeting of minds, 21. Performance prevented, 10. Afterward completed, 10. Either remedy, 10. Pleading: both causes,' 23. Eeeovery on either, 23. Pleading express , contract, 24. Not recovery on merits, 24. i Without amendment, 24. No value proof; void' also, 26. No recovery allowed, 26. Son, after at age, 14. Eate or time not fixed, 14. Special instance and request, 27. Testamentary promise failure, 5. For part services, 28. Unliquidated demand, 6. Carries no interest, 6. Void: indivisible contract, 12. Contract to deed realty, 21. Service recovery, 21. Entire contract ; recovery, 25. Express promise, 18. Services contract, 15. As though not express, 17. Not evidence of value, 16. Eeputation for skill, 16. Services, improvements, 12. Special contract, 13. Services, improvements, 13. Sunday contract, 26. No value proof, 26. Eefusal to accept agreed lot, 19. Eeeovery for services, 20. 1. Where work, not performed in the manner nor within the time specified in a written eontraet,, was accepted and used, the workman is entitled to recover "the reasonable value of the benefit". —Taylor v. Williams, 6 W. 363, 366. 2. Recovery for part performance, sickness intervening, "is not for the contract price, but on quantum meruit." See also Sickness. —Green v. Gilbert, 21 W. 395, 400. 3. An orphan infant where there, is no agreement, and not standing in loco parentis, may recover on quantum meruit. See Infant. —Mountain v. Fisher, 22 W. 93, 97. QUANTUM MERUIT , 925 4. "Where there is a special contract between parties, and work done under it, the contract must govern as to the price to be paid for such work, even though the contract may have been but partially per- formed, and suit is brought to recover on a quantum meruit for the work Guardian ad litem; after six yeara, 26. Kecord fails, to disclose, 7. That hearing was had, 21. Minutes fail to show, 21. Not spread on record, 23. I Does, not invalidate, 23. On date noticed, 21. Special statute, 22. Same case considered, 2. Subsequent petition, 2. Stipulation in open court; 6. Entered; a verity, 6. Whole record in estate: Before court; each application, 2, 3. Continuous record, 3. Petition for license to sell, 4. Prior record, part thereof, 4. 1. "Anciently" the record could be amended only "during the term," but latterly "the general current of authority is to the effect that clerical errors may be corrected even at a subsequent term", "upon motion with due notice to the opposite party". — Rill v. Hoover, 5 W. 386, 388. 2. The record in the same case may be considered in connection with a subsequent petition. See Jurisdiction. — Siizman v. Pacquette, 13 W: 291, 304. 3. "We regard the whole record of the probate court respecting the settlement of any estate as one continuous record, and before the court on each application". 4. "And the petition for license to sell real estate is to be considered the same as though the appointment of B. (the Admr. de bonis non) by the probate court and all the proceedings relating to it had been inserted in and made part of the petition". — Frederick v. Pacquette, 19 W. 541, 552. 5. The "effect" of a record from another state, "or what it proves or does not prove, is for the court to decide", and not a jury. — Am,ory v. Amory, 26 W. 152, 158. 944 PROBATE AND GENERAL LAW, CODIFIED 6. "A stipulation of counsel in open court, and entered of record ", "while it stands, it imports absolute verity." See Stipulation; — Wilcox v. Bates, 45 W. 138, 146. 7. Where "the record does not disclose the reason for the appoint- ment" of an administrator, "it must be presumed that the Appoint- ment was for some good cause in the law." See Administrator de Bonis Non. —Oakes v. Est. of Buckley, 49 W. 592, 598. 8. The date of filing of a paper itself is presumed correct, though the paper is' antedated. See Presumption. — State v. Iieesa, 57 W. 422, 424. 9. "The integrity of a judicial record cannot ("thus) be overcome and destroyed by affidavits". 10. "The records and finding" "as to what issues were, tried by the court import absolute verity, and cannot be impeached by affidavits, as it was attempted to do". — Burnt v. Valley Lbr. Co., 63 W. 630, 633. 11. Where a paper, being a widow's election, is "found in the office of said court duly filed therein as one of the papers or documents belong- ing to the records of said court, nothing else appearing in the case to cast suspicion upon the paper or its filing, the presumption of law is that it was properly filed, and the burden of proof is upon the party denying the fact of such filing. Boyd v, Wyley, 18 Fed. Rep., 355". —Beem v. Kimberly, 72 W. 343, 362. 12. Where a petition was handed to the clerk when away from his office, and his endorsement made thereon. as filed that day, it is held that "the endorsement is certainly prima facie evidence that the petition was filed in the clerk's office on" that day, there being no evidence to the contrary. — Minton v. Underwood Lumber Co., 79 W., 646, 650. * 13. Where the claimant for a lien, left his claim with the clerk for filing, ' ' he will not be prejudiced by the neglect of the clerk to perform in respect to it his duty as directed by the statute," as for "failure to put his file mark on it and to make the docket entries ' ' required, and such failure "will not defeat the claim." — Goodman v. Baerloclier, 88 W., 287, 298. 14. An oral decision, amending a complaint, held valid, as entered ten days later by a nunc pro tunc order. See Pleadings. — Find/an v. Knickerbocker Ice Co., 104 W., 375, 378. 15. An oral order of discontinuance, in Juneau v. Hooker, 67 W. 322, was held sufficient, the court "holding that: 'An entry by the clerk in ' * RECORDS 945 his minutes of the judicial action of the court is sufficient evidence thereof. , 16. A formal order signed by the judge was not necessary. An order entered on the minutes of the clerk is sufficient for a full discontinuance of the case'." — State ex rel. City of Milwaukee v. Ludwig, 106 W. 226, 232. 17. As to filing of answers, under sec. 2664, held, in effect, seasonably filed at the opening day of court, there being "nothing in the record to indicate that such answers were not filed before the opening of the court on that day, and hence ' before the commencement of the ' ' ' term. —Evans v. Rector, 107 W., 286, 289. 18. "The rule is general that, when persons in public office are required by statute tp make a record of their official acts, such records are admissible in evidence if relevant to the controversy. Jones Ev.; 520". , —Schlei v. Struck, 109 W., 598, 601. 19. Where a foreclosure judgment was signed Jan. 14, 1896, "and the papers upon which it was based, were, all delivered to the clerk at or about that time", but were not "marked as filed by the clerk" until Oct. 25, 1897, it is held, that, 20. "The mere improper failure of the clerk to mark the judgment and the papers composing the judgment roll as filed did not prevent such filing from being effectual. Lang v. Menasha P. Co., 119 W., 1." — Hart v. Jos. Schlitz B. Co., 120 W., 553, 556. 21. Where the circuit "court had jurisdiction of the subject matter", and proper notice was given for a date set, and there "is the absence of any entry in the clerk's minutes of any proceedings had" on such date, "it is presumed that due proceedings were had at the time for which the proceedings were noticed, preparatory to the making of the order of" subsequent date. 22. And the fact that "this was a proceeding under a special statute," is held immaterial. 23. The fact that the final "order was not spread upon the record of the court as prescribed", being "an omission of the ministerial duty of the court's officers", does not "invalidate the order or decree". (Cases). —In re MarcKant's Est., 121 W., 526, 530. 24. Presumption as to priority of order entered on day. of ending and beginning of terms. Error not to be presumed.. As to termination of terms. See Teems of Court. —Cooper v. Granger, 129 W. 50, 53. 25. Record may be amended as to service, after judgment order. See Service. ' —Zahorka v. Geith, 129 W. 498, 5,04. Zimmerman — 60 946 PROBATE AND GENERAL LAW, CODIFIED 26. As to presumption alter sixty years that a guardian ad litem was appointed and letters issued, there beipg "no evidence of that fact"' "in the records" of the probate court. See also Presumption. ,— Chandler v. Mwnkwitz, R. & I. Co., 148 W., 5, 11. 27. "We fully recognize the principle that the announcement from the bench is the judgment in fact and that the written judgment gen- erally is merely the evidence thereof. Wallis v. First Natl. Bank, 155 W. 533 (See Orders). 28. It should be quite certain, however, that the oral pronouncement is intended to be the judgment and not merely an announcement of the opinion, of the court or an indication of what the judgment is to be; 29. In other words, it should be certain that the court intends to pro- nounce judgment and not merely to make a preliminary order which is expected to result in a judgment at a later period". —Wehr v. Gimbel Bros., 161 W. 485, 488. REFERENCE. Admr. ; surviving partner, 16. Clear preponderance, 14, 21. Not disturbed, 14. Compulsory : Account, fifteen items, 13. Containing other matters, 15. . Incidental to account, 15. Equity, as law cases, 16. Without consent; account, 12. Conditions of: Absence of any showing, 8. Long account, 8. Affirmative showing, 6. Against either 's consent, 5. Record Supplies facts, 7. Findings : Dignity of court findings, 14, 20. Hearing is "a trial", 9. Long account; cases, 12, 13. Sound discretion as to, 23. Long account — continued * Twenty items sufficient, 23. Order confirming report, 22. Not appealable, 22. Other incidental matters, 15, 17. Refer whole case, 17. Outside of county, 18. Large expenses allowed, 18. Re-refer case: Failure on material facts, 19. Stipulation : • Any issue in any court, 11. Consent in open court, 11. Finding of court, 3. Referee's fees, by parties, 10. Both liable to action, 10. Signed by the judge, 3. Waiver : Constitutional hearing right, ' 1, Hearing by court or jury, 2. 1. As to reference by "written consent of the parties" pursuant to statute, held, "it is clearly competent for parties themselves, to any litigation or controversy, not a proceeding for crime, without the assent of ' the legislature; to waive their constitutional rights with regard thereto. " 2. "They (parties) may waive their right under the constitution to have the same heard and determined by the courts and juries of the REFERENCE 947 > country. They may do so by submitting to an arbitration as at the common law. " —Home Ins. Co. v. Security Ins. Co., 23 W. 171, 174. 3. On a reference by stipulation of the parties, and that the report shall be the finding of the court and be signed by the judge/ held, on mandamus, that /'we cannot compel him (the judge) to sign it, since it is not an act resulting from his office." — State ex rel. Orton v. Mc Arthur, 23 W., 427, .430. 4. To make a reference valid, compulsory or by consent, "requires the court to make and enter such an order". On consent, there must be "written consent of parties to the reference", or "consent given in open court, and entered upon its minutes". ' —Stone v. Merrill, 43 W-. 72, 76. 5. In any action at law, "the right to have the issues determined by a referee and the court, against the consent of either party, is the excep- tion; and the party who claims the right to have such issues so tried must bring the ease within the exceptions pointed out in sec. 2864.< 6. He must show affirmatively that the case comes within the pro- visions of that section,_ either from the record and pleadings in the case, or by proofs aliunde". 7. Where "there are no such proofs," and the record does not supply them, as here, "the court had no authority to make the order". 8. "In the absence of any proof, either by the pleadings or other- wise, that an examination of a long account will become necessary on the trial of the issues, there is nothing upon' which the discretion' of •the court can be founded,' ' ■ ^-Knips v. Stefan, 50 W. 286, 290. 9. The "hearing before a referee is 'a trial of the cause'. " See Trial. —Hill v. Durand., 58 W. 160, 169. 10. On a stipulation by the parties for referee fees, fixed therein, both ■ parties are liable therefor "in a common law action," —Malone v. Roby, 62 W, 459, 461. i • • •. 11. "Any issue in any action may be referred if the parties consent thereto, and in this ease they did so consent (in open court), and are bound thereby. ' ' 12. In the trial of issues requiring "the examination of a long account",. of "over one hundred items in the disputed account" here, "the court had power, without such consent, to send such issues to a referee to hear and decide them. Sec. 2864". . • r —Crocker v. Currier, 65 W. 662, 665. 13. An account current which consists "of at least fifteen different items, and some of them subdivided," was held properly subject to' ( 948 PROBATE AND GENERAL LAW, CODIFIED compulsory reference. "This account ,within the meaning of the statute, may properly be called a 'long account'. Turner v. Nachtsheim, 71 W. 16." —Sutton v. Wegner, 74 W. 347, 348. 14. As to the "rule that the verdict of a jury will not be disturbed unless against -a clear preponderance of the evidence, " " the findings of a referee stand precisely like the verdict of a jury." (Many cases.) So held. —Briggs v. Hiles, 87 W., 438, 447. 15. Reference involving an account with numerous debit and credit items over a long period, was held properly ordered "since the suit was on an account, and the other matters, however necessarily triable with the main issue, were merely incidental to it. Littlejohn v. Regents of U., 71 W., 437." —Jordan v. Est. of Warner, 107 W., 539, 550. 16. Compulsory reference under sec. 2864 is held proper in equity as well as law cases, and in the case of Row ell v. Rowell, 122 W. 1, (See Surviving Paetnee), in. a partnership accounting against an adminis- trator and surviving partner. Druse v. Horter, 57 W. 644, contra., over- ruled. 17. "Where the primary purpose of the action was accounting, and the account must obviously be a long one, this statute conferred the authority to refer the whole case, and, in the court's discretion, to sub- mit to the referee all incidental , questions of law arising therein. (Cases)". 18. A referee has "power to act outside of the county where sits the court appointing him". (Cases). Very large and varied fees, includ- ing hotel and traveling expenses, and court expenses, allowed as "within the. field of discretion ' ' of the trial court, under sec. 2930. —Winnebago Co. v. Dodge Co., 125 W. 42, 45. 19. "The court below had the riglit to re-refer the case because of failure to find on material facts". See also Services. —In re Est. of Happell-Bossi, 133 W., 119, 122. 20. "Findings oi a referee have the same dignity, as regards being disturbed by the trial court on review, as the findings of that court have when challenged here as being erroneous ; 21. They are not to be disturbed unless, against the clear preponder- ance of the evidence". See also Judicial Decisions. — Ott v. Boring, 139 W. 403, 405. 22. "Under sec. 3069, no appeal lies from the order confirming the referee's report", as such "order does not present a final judgment". —Baker v. Bohnrrt, 158 W. 337, 338. 23. "The question as to the necessary length of an account in order , to justify a compulsory reference is largely a matter of judgment and REFORMATION 949 sound discretion on the part of the trial court. Twenty items have been held sufficient. (Cases)". —Astor Co. v. Dengel, 161 W. 1, 2. REFORMATION. Charitable trust deed, 33. Conditions of : Binding contract omitted, 10. " Original contract valid, 11. Sufficient consideration, 12. Not voluntary instrument, 12. Decree performance, also, 1. Deed after eight years, 34. Evidence : Beyond reasonable controversy, 29. Beasonable doubt compared, 29. Clear and convincing, 19, 31. Forfeiture not inserted, 20. Jurisdiction ancient, 32. Laches intervening, 34. Satisfactory explanation, 34. Mistake and fraud, 24. Mistake by scrivener, 26, 31. Mistake must be mutual, 22, 23, 32. .Belief, fraud, or mistake, 25. Statute of frauds : Harmony, binding contract, 14. \ Statute of frauds — continued Valid executory contract, 13. Testamentary sense, 28. Third persons rights, 34i Voluntary instruments, 12, 28'. Wife's defective conveyance, 15. As to separate estate, 16. '. Changed by statute, 18. Homestead rule as to, 16, 18, 21, 27, 30. Nor executory contract, 17. Subsequent death of husband, 18. "Will : Equity, not reform, 2. ' Making a voluntary acty 3. No court authorized, 5. Not to supply omissions, 9. Probate, not attaoked, 4. Bejeet inserted part in, 6. Arises before probate, 8. Er'aud; parol evidence, 7. 1. "Courts of equity * will reform a contract" to make it comply "with the real intent and meaning of the parties; and will also in the same suit" decree specific performance of the contract thus reformed. -—Waterman v. Dutton, 6 W. 265, 273. 2. "-An extended examination of the eases and authorities bearing on the question", "has satisfied us that it is not a proper exercise of the powers of a court of equity to reform a will by adding provisions thereto to make the will accord with the real intentions of the 'testator". 3. "The reason why courts of equity will not interfere in such cases seems to be, that an action to reform a written instrument is in the nature of an action for specific performance, and the making of a' will being a voluntary act, there is no consideration, as in actions to reform deeds or contracts, to support the action". 4. "There is another reason why a court of equity should not reform a will by correcting a mistake therein, after the will has been admitted to probate. Such probate is the judgment of the court that the instru- ment, just as it is written, is the last will and testament of the testator ; and on well settled principles that judgment cannot be attacked col- laterally. * 5. "While the judgment . of the proper court admitting the will to 950 PROBATE AND GENERAL LAW, CODIFIED probate remains in force, no court is authorized, in the absence of fraud, to adjudge that the instrument, or any of its provisions, is not the will of the testator. Neither can it add provisions not written in the will. It can only construe the instrument as it is written". 6. "It is probably competent for the probate court to reject any portion of an instrument propounded as a will, on proof that such por- tion was inserted therein against the desire or without the knowledge of the testator, and to admit the residue to probate ' '. 7. "The rule is, that if the question is one of fraud, or undue in- fluence (which is a species of fraud), or devisavit vel non, any relevant parol evidence is admissible. 8. But it would seem that the latter question can only arise before the will is probated, while the question of fraud may be tried at any time when rights are claimed under the will, whether the claim be made at law or in equity". 9. "But the rule does not authorize the probate court, or any other court, to supply omissions in the will; for that would be to make, a will for the testator which he has not made for himself in the form essential to its validity". See also Construction op Wills. —Sherwood v. Sherwood, 45 W. 357, 360. 10. "An essential condition upon which a court of equity will reform a written instrument is, that the parties thereto have made a binding contract, Which they mutually agreed to incorporate in the instrument, but which, through fraud or mistake, they failed to do. 11. The original contract must be valid, or no reformation of the instrument will be decreed, however clearly the mistake may be estab- lished." ' v 12. "An instrument not founded upon sufficient consideration — that is, a mere voluntary instrument — will not be reformed; neither will an instrument be reformed to express a contract which originally was nudum pactum." 13. Where the agreement was oral and within the statute of frauds, it is indicated "there is in such a case a valid and binding executory contract, which the parties intended and attempted to embody in the instrument sought to be reformed, but failed to do so. 14. Hence the cases which uphold the reformation of written instru- ments in proper cases, without regard to the statute of frauds, are in entire harmony with the rule above stated that there must be a valid binding contract to reform by, or reformation will not be decreed". ' 15. " Because of her disability to contract, it has uniformly been held that if a wife join her husband in the execution of a defective convey- ance, such conveyance cannot be reformed as to her, unless by virtue of an express statute". 16. "Our statute only removes the disability of coverture in respect to the separate estate of the wife. This homestead not being the sep- REFORMATION 951 arate estate of the wife, it is clear that she was under the common law disabilities of coverture when she signed the defective mortgage. 17. Being so, she would only validate her husband's mortgage of the homestead by signing it. She has signed no such mortgage, and could not make a valid executory agreement to do so. Hence, there is no ground upon which a judgment to reform the mortgage can legally be rendered", the homestead having been omitted from the mortgage signed by husband and wife as drawn as alleged by mistake, p. 452. 18. It is also held that the death of the husband, the descent of the homestead to the widow, and her subsequent marriage arid conveyance to her husband, do not change the situation. (As to reformation affect- ing the homestead and the wife the rule here stated is approved, not- withstanding the amendment by eh. 45, L. 1905 in Gotfredsoh v. Dusing, 145 W. post. But changed by ch. 222, L. 191J ). —Petescfi v. Hambach, 48 W. 443, : 446. 19. To reform or cancel, the evidence "must be clear and convinc- ing". See Rescission of Contract. — Lwassar v.' Wdshbunte, 50 W. 200, 201. 'I ' ' 20. Equity will not reform a deed by inserting a forfeiture clause.' See Forfeiture. — Mills v. Evansville Seminary, 52 W. 669', 671. 21. Following Peteseh v. Hambach, 48 W., supra, it is held that a defective deed of a homestead Would not be reformed as against, the wife, even after the land, ceased to be a homestead, { Changed by stat- ute). —Cowrad v. Schwaml, 53 W. 372, 379. 22. "A reformation of a deed or other conveyance of real estate will not be adjudged on the ground of mistake unless the mistake be mutual ; that is, in the absence of fraud", a mutual agreement must be shown, and that a "misdescription was inserted by mistake". 23. "Courts of equity will reform conveyances, first' where there is* a mutual mistake ; ~ 24. And second, where there is a mistake by one party, and fraud in the other in taking advantage of it and thus obtaining a contract with the knowledge that the party dealing with him is in error in regard to its terms, or its sufficiency to effectuate the real contract made between the parties. Welles v. Yates, 44 N. Y. 525 (and other cases) ". 25. On the evidence, the court was "at liberty to grant any relief, ' asked for in the complaint, whether the plaintiff was entitled to such relief on the ground of mutual mistake or on the ground of mistake on the part of the respondent and fraud on the part of the appellant. See Dane v. Durber, 28 W. 216". -^James v. Cutler, 54 W. 172, 175. 26. Where the scrivener by mistake, omitted to insert in a lease an agreed provision as to improvements, "a court of equity will correct 952 PROBATE AND, GENERAL LAW, CODIFIED such a mistake, and reform the instrument, where the evidence clearly shows what the real agreement was". —Silbar v. Ryder, 63 W. 106, 108. 27. Following Petesch v. Hambach, 48 W., supra, a mortgage signed by the wife, intended to cover the homestead, but by mistake did not, cannot '.'be reformed to include- the homestead." See Homestead. (But, see Gotfredson Bros. Co. v. Dusing, 145 W. post). —O'Malley v. Buddy, 79 W., 147, 150. 28. "A purely voluntary conveyance" from father to son, "without any prior consultation or agreement with the grantee," held to be "in a general sense, a testamentary disposition of property, ' ' will not, after the death of the grantor as against the heirs, be reformed to include land intended to be conveyed. — WUley v. Hodge, 104 \V., 81, 84. 29. Requisite evidence to reform a written contract is set forth, and it is said, and so held, that "this court" "has followed the rule which generally prevails, that the facts must be established" "beyond rea- sonable controversy. Perhaps it may well be said that the difference between" this rule and the rule beyond reasonable doubt, "is quite shadowy and inconsequential, yet it -is considered that there is a dif- ference". -^Glocke v. Glocke, li3 W., 303, 308. 30. A mortgage may now be reformed on account of mistake in description of a homestead. See Homestead. —Gotfredson Bros. Go. v. Dusing, 145 W., 659, 662. 31. The rule of earlier cases that "equity will not reform a written instrument for a mistake in reducing it to writing, unless such mistake is established by the most clear and satisfactory proof, ' ' is upheld. —Govier v. Brechler, 159 W. 157, 164. 32. "The jurisdiction of a court of equity, when seasonably invoked, to reform written instruments which by mutual mistake do not express the real meaning of the parties, is very ancient and well recognized. 33. A deed establishing a charitable trust may doubtless be thus reformed in a proper case providing the necessary parties are before the 'court. " 34. "It is probably very rarely the case that a court would be justi- fied in decreeing reformation of a deed after the lapse of eight years", because usually of ' ' inexcusable laches or rights of third persons ' ' inter- vening. There being satisfactory explanation, the deed was xso. reformed here. — Van Brunt v. Ferguson, 163 "W. 540, 545. RELATION. See Kin. REMEDIES RELEASE. See Agreements. Joint Obligations. Settlement. 953 REMAINDERS, VESTED AND CONTINGENT. See Devisees. Future Contingent Estates. Power. Trust Vari- ation. Vesting of Estates. REMEDIES. See also Rescission of Contract. Common law right, 20. Statutory cumulative, 21. Unless public policy, 21. Deficiency in f oreleosure, 5. Action on notes, 6. Election : Binding upon election, 2. Ignorance of material fact, 3. Opposite parties fault, 3. Tort and contract, 4. Two inconsistent positions, 10. Any unambiguous act, 11. Conclusive evidence, 11. Two inconsistent jremedies, 2, 4. Fraud induced contract, 12. Fraud induced, etc. — continued (1) Rescind whole contract, 13. Act with promptness, 14. (2) Recover damages for breach, 15. And enjoy fruits, 15. Promptness unnecessary, 16. Forfeiture clause: Enforced, or damages, 22. Land contract loan, 8. Action at law; equity, 8,- Deed shown to be mortgage, 9. Limitation statute: " Equity barred; legal also, 19. New right and remedy, 7, 17. Appeal, statutory, 18. Taken away, conditions, 1. 1. Remedies "will not be taken away without a negative expressed or clearly -implied. " See Repeal. —Goodrich v. Milwaukee, 24 W. 422-438. 2. "The doctrine that an election once made between two inconsistent remedies is binding upon the elector is well understood. (Many cases)." 3. "Also the exception to that doctrine, that an election once made, without negligence, in ignorance of some material fact as to which the opposite party owed the duty of disclosure, may be rescinded within a reasonable time after the discovery of the truth and before any act is done inconsistent with the exercise of that right." —Gay v. D. M. shorn & Co., 102 W. 641, 645. 4. "The doctrine of election is confined to cases where the plaintiff is required to chose between two remedies which are inconsistent with each other, such as a remedy in tort and a remedy in contract. 7 Ency. of PL & Pr. 362; Fuller-Warren Co. v. Harter, 110 W. 80." 954 PROBATE AND GENERAL LAW, CODIFIED 5. "The remedy by judgment for deficiency in the foreclosure action is perfectly consistent with the remedy by judgment in an action at law upon the notes", one in equity and the other in law, but both "seek to enforce the written contract upon the same grounds". — 6. So an "unsuccessful attempt" to bind the defendant in a fore- closure action, "is no bar to" an action on the notes, "either by way' of former adjudication or by way of election of remedies". — Carpenter v. Meachem, 111 W., 60, 63. 7. Where "a new right has been created and a complete remedy" provided, it is exclusive. See Paupers. —Saawille v. Barilett, 126 W. 655, 658. 8. A complaint in equity to recover a definite sum due, where a deed was given to secure a loan and a land contract given back, and a sale with the acquiescence of both parties made to a third party, — held demurrable "on. the ground that there is an adequate remedy at law" to recover the money. 9. "The fact that it (the deed) is in legal effect a mortgage may be shown in an action at law as well as in an action in equity. (Cases) ". —Bwrchent v. Snyder, 128 W. 423, 424. 10. "One having a right of choice between two inconsistent posi- tions who exercises that choice is finally concluded and confined to the rights and remedies appropriate to the position so chosen and excluded from those consistent only with the repudiated one. 11. Since such choice is merely mental, any unambiguous act con- sistent with one and inconsistent with the other of the elective positions will be deemed conclusive evidence of such election. Smeesters v. Schroeder, 123 W., 116." —Fox v. Wilkinson, 133 W., 337, 340. 12. Where one is "induced to make and execute a contract by" fraud ' ' the defrauded purchaser has as his election either of two rights : 13. He may rescind the whole contract, and upon returning air that he has received may recover back all that he has paid, so that the parties may stand in statu quo. 14. To this right it is doubtless essential that he act with reasonable promptness, and that enjoyment of rights under the contract will be deemed a waiver. 15. He also has, however, the right to enjoy all the fruits of what he receives under the contract and to recover damages by reason of- breach of warranty or deceit for whatever the property is in fact worth less than it would have been if as represented. (Many cases). 16. This latter right, when he does not rescind, is absolute and destroyed by no lapse of time less than that prescribed by the statute of limitations". —Jacobsen v. Whitehj, 138 W. 434, 441. REiMOVAL 955 17. Where "the law creates a new remedy to meet a new situation", "the remedy is exclusive and is subject to the conditions and limita- tions" therein provided. (Case). 18. "The right of appeal is purely statutory, and unless given it is withheld. Puffer v. Welch, 141 W- 304". - —Clancy v. Fire & P. Com., 150 W. ,630, 633,,' 19. One "having two remedies, the statute of limitations barred the equitable one at the same time the legal one was barred". See also Legacies. —Nolan v. First Natl. Bank, 161 W. 22, 26. 20. "Where a statutory remedy is provided for the enforcement of a common-law right without expressly, or by ne.cessary inference, inter- fering with freedom to resort to the old remedy, 21. The new one is cumulative unless the court, on grounds of public policy, sees fit to make its activity in that field more or less contingent upon the new remedy being exhausted. That is the logic of State ex rel. Superior v. Duluth St. R. Co., 153 W. 650". —Field v. Milwaukee, 161 W. 393, 395. 22. In a lease with a forfeiture clause, the lessor "has the choice" to sue for damages or to declare forfeiture. See also Landlord And Tenant. —Mohawk Co. v. Bankers Surety-Co., 162 W. 272, 276. REMOVAL. Admr. de bonis non; 13. Power of, etci — continued Without notice after removal, 13. Disabilities not limited, 6. Failure, within six years, 12. Statute from Massachusetts, 4. Implied and be valid, 3. Construction adopted, 5. Non-resident executor, 1. Without notice to others, 10. Not without notice, 1. Unless court directs, -11. Power of, discretionary, 2, 6, 7. Acrimonious, hostile, feeling, 8. Executor chargeable or not, 9. ,1. An executor cannot be removed for non-residence without being notified to settle his accounts, and the proceeding appointing an admin- istrator de bonis non in such case is void. — Humes v. Cox, 1 Pin. 551, 554. 2. The court's power for removal of executors, etc., is discretionary and not mandatory. See May. — Cutler v. Howard, 9 W. 309, 315. 3. The removal of an administrator may be implied and be valid as such. See Admr. de Bonis Non. —Bailey v. Scott, 13 W. 618. 956 PROBA-TE AND GENERAL LAW, CODIFIED 4. The statute for removal of an executor (in effect sec. 3803), "is substantially the statute of Massachusetts of 1783, eh. 24, sec. 10, which received judicial construction in that state long before it was enacted here". ' 5. "Under a familiar rule, the construction given to the statute by the supreme court of Massachusetts before it was enacted in this state, ought to prevail here ; and we adopt that construction the more readily because we believe it to be the true one". 6. In Winship v. Bass, 12 Mass., 201, it is held: " 'The statute gives a very broad discretion to the judge, evidently intending not to define or limit the disabilities which should be the causes of removal, but to leave room for the application of the power to ' all causes which may occur to render the execution of a will, or the administration of an estate, perplexed or difficult'. This construction was approved by the same court by Thayer v. Homer, 11 Met. 104, decided in 1846. 7. The same construction of our statute was practically adopted by this court in Cutler v. Howard, 9 W. 309, supra". 8. The removal by the, county court, sustained by the circuit court, is approved, and it is said : " Ii. the finding that, ' at the time of the filing of the petition (for removal) there was, and still continues to be, an acrimonious and hostile feeling between the appellant and respondent, which intercepts and prevents such a management and husbanding of the state of P. deceased, as prudence, sound policy and the interests of the devisees and' creditors require, ' is established by the proofs, we think that of itself would make a case for the exercise of the discretion of the court. 9. Such a condition of affairs, whether chargeable to the executor or not, would inevitably render the execution of the trust perplexed or difficult, and would be likely to interfere with the proper management and disposition of the estate". 10. The petition for removal was by the widow, a principal devisee, without ' ' making the other devisees or legatees under the will parties, ' ' .and the court says : 11; "We are inclined to think that any person interested in the estate may commence and prosecute such a proceeding independently of other parties having a like interest, unless the county court in its dis- cretion should think proper to bring in such other parties". (Subse- quently in 1905, and as amended by ch. 407, L. 1913, to sec. 3803, the proceeding is set forth, but notice to other parties does not seem to be required. — Est. of Pike: Kimball's Appeal, 45 W. 391, 395. 12. Refusal to remove the executor because of failure to complete the administration within six years. See Limitation of Actions. —Ford v. Ford, 88 W., 122, 134. RENTS AND PROFITS 957 13. An administrator de bonis non may be appointed without notice, on the removal of an executor. See also Admr. de Bonis Non. —Jenksv. Allen, 151 W., 625, 631. RENTS AND PROFITS. See also Landlord and Tenant. Trust Funds. Admr. as against heir, 2. No possession taken, 4. Apportionment of rents, 20. Paid in advance to decedent, 20. Claim for accounting, 19. Survives in trust estate, 19. Crop raised on shares, 6. Cropper, definition of, 12. No estate or ownership, 14. Facts stated of mere cropper, 11. Landowner,; legal title, 11. Not create partnership, 18. Stipulate as to title, 7. Charge on share, 7, 8. Tenant; estate and ownership, 13. Crop raised, etc. — continued Tenant in common; cropper, 10. Depends upon wording, 10, 15. Destruction by fire, 1. Future ' expectant estates, 17. \ Disposition not provided, 17. Future profits, recovery, 23. Based on past profits, 22. Heirs barred; admr. also, 5. Income of realty, is realty, 9. Infant, after at age, 3. ' ' Rent from my farm, ' ' 21. Additional provision, 21. Successive devises of, 16. Without sale power; void, 16. 1. "At. common law, the destruction of the premises by fire did not excuse the payment of rent". If a tenant failed to* protect himself in the lease "and agrees to pay rent in advance without qualification, and does so, " " the courts cannot relieve him ' ' and he cannot recover in case of fire. • —Cross v. Button, 4 W. 468, 484. i> ^ 2. An administrator is entitled to the rents as against the heirs. , . See Bxtrs. & Admrs. -^Edwards v. Evans, 16 W. 181, 184. • .. 3. Where lands are wrongfully withheld from the infant owner, he i, i may "recover damages accruing during- his minority", after he arrives , i at age, as mesne profits. — McCrubb v. Brcmj, 36 W. 333, .341. 4. The administrator cannot maintain an action for use and occupa- ': ] tion, where he has not taken or needed the possession. See Real Estate. 5. If the right of the heirs to recover rents and profits is barred, "it- must -necessarily bar the administrator also". —Filbey v. Carrier, 45 W. 469, 472. . 11 6. "Undoubtedly parties making a contract to raise a crop on shares may make valid stipulations for the disposition of the crop. 7. They may stipulate what interest each shall have in it, or that the [ ; legal title to the crop shall be and remain in one of them, with a charge 958 PROBATE AND GENERAL LAW, CODIFIED upon the crop or some part of it in favor of the other, and such stipu : lations will be valid as between themselves. 8. This view does not conflict with the cases in this court in which it has been held that a chattel mortgage of goods not in esse, or of afte* acquired goods, is inoperative". As in Comstock v. Scales, 7 W. 159; Hunter v. Bosworth, 43 W. 583; (cited under Chattel Mortgage). — -Lanyon v. Woodward, 55 W. 652, 656. 9. "Income of the real estate," under the statutes and adjudications, is real estate. See also Nuncupative Will. — In re Davis's Will, 103 W. 455, 457. 10. "It. is sometimes difficult to determine whether a person who works -the land of another on shares is a tenant in common of the crop with the owner of .the land or a mere cropper. Much depends upon the wording of the contract between the parties. Lanyon v. Woodward, 55 W., supra; (other cases) ". 11. Where the plaintiff landowner furnished the seed and defendant was to put in, care for and harvest the crop of potatoes for half, and partially neglected work ; which was supplied by the landowner, but harvested and divided the crop, retaining half, — on the facts he "was a mere cropper, and the plaintiff remained all the time the legal owner of the whole crop, and hence was entitled to recover in replevin." ( Cases discussed ) . 12. In 8 Am. & Eng. Ency. of Law (2d ed.) 324, "it is (there) said that: 'The term 'cropper' is applied to a person hired by the land- owner to cultivate the land, receiving for his compensation a portion of the crop raised' ". —Kelly v, Rummerfield, 117 W., 620, 621. 13. "The distinction between a tenant and a cropper is that a tenant has an estate in the land for a given time, and a right of property in the crops, and hence makes the division thereof between himself and the landlord in case of an agreement upon shares, 14. While a cropper has no estate in the land, nor ownership of the crops, but is merely a servant, and receives his share of the crops from the landlord, in whom the title is. (Citations). 15. It is always, a question of construction of the agreement under which the parties are acting". —Taylor v. Donuhoe, 125 W. 513, 517. 16. As to successive devises of rents and profits without power of sale, being void. See Trusts. —Will of Adelman, 138 W. 120. 123. 17. As to disposition of rents and profits not' provided for, of per- sonalty and realty of future expectant estates. See V fisting of Estates, Etc. ' — Will of Stark, 149 W. 631, 655. REPORTS OP GUARDIANS 959 18. "An agreement to turn over a part of the crop raised in payment of rent is not inconsistent with, the relation of landlord and tenant and does not create a copartnership." Question and cases discussed. —Wagner v. Buttles, 151 W., 668, 676. 19. A "claim for an accounting" for rents of realty in favor of one beneficially interested in a trust estate for the receipt of such rents, ' is held to survive. i 20. "Where a will gives to the widow a devise and bequest of the rents and profits from the farm, and the testator under a lease had for the current year received two notes "in payment of the rent and died during the year," that "did not deprive his widow of the whole year's rent", but the "year's rent should be apportioned between" his and her estates, she having subsequently died. 21. "Where the will gives to the widow "the rent from my farm", and subsequently provides "that the executor may out of any money in his hands, pay to his wife" "any sum that she may need 'more than her share of the rent from the farm for her support'," it is held that she and her subsequent executor, is entitled to "all rents from said farm", though she had not needed all for her support. See also Trustees. — Est. of Hemphill, 157 W. 331, 335. 22. "The rule is well established in this court that past profits of an established business constitute a legitimate basis upon which to esti- mate the future profits of the same business conducted in the same manner, 23. And that in a proper case such future profits may be recovered when the plaintiff has been prevented from making them by the wrong- ful conduct of the defendant. (Cases) ". —Huebner v. Huebner, 163 W. 166, 170. REPEAL. Implication not favored, 1. Negative, express or implied, 1. 1. "Repeals by implication are not favored in the law, especially with regard to previously existing remedies, whether by statute or common law, as to which it is held that they will not be taken away without a negative expressed or clearly implied." —Goodrich v. Milwaukee, 24 W. 422, 438. REPORTS OP GUARDIANS. See Accounts of Guardians. - 960 PROBATE AND GENERAL LAW, CODIFIED REPRESENTATIVE CAPACITY. See also Parties. "Aa" before administrator, 2. Capacity pleaded, 4. Contract obligations, 3. Proved by certified copies, 1. Not in appeal bond, 2. Bond and letters, 1. Without descriptive merely, 6. Wife witness for co-defendant, 7. Passes title personally, 5. 1. The representative capacity of an executor may be proved ' ' prima facie at least", by certified copies of his bond and letters.- See Extrs. & Adm'rs. - — Wittmann, Extfx. v. Watry, 45 W. 491, 493. 2. The word 'as', need not be inserted' before 'administrator* as the adverse party in an appeal bond, to give it validity ; 3. Though the courts have held that in the absence of 'as* in such ease in a contract, the words 'administrators, etc.', "may be treated as deseriptio personae". See also Extrs. & Admrs. —Kasson v. Est. of Brocker, 47 W. 79, 86. 4. Where the complaint alleged "that the plaintiff brings this action in his capacity of administrator" and then states that he was duly appointed "by the county judge", an objection demurrer ore tenus is held "not well taken", as proper capacity is shown, and proof of the appointment by the court could be made. —Parish, Admr. v. T. of Eden, 62 W. 272, 280. 5. An assignment of a judgment " 'to" W. F. V.', etc. 'administra- tors ', not to them as, or in their capacity as administrators ' ', is held to pass title personally. 6. "According to well-settled rules governing the construction of such instruments, there being no clear indication that the parties described as administrators took in their representative capacity, the word 'administrators' is to be regarded merely as descriptive of the persons. Robbins v. Gillett, 2 Pin. 439; Randolph Com. Paper, 440". —Vilas v. Bu-ndy, 106 W. 168, 181. 7. A wife is' a competent witness for a co-defendant of her husband whose interest is 'merely nominal. See also Parties. — Robinson v. McGinnis, 145 W., 476, 477. RES ADJUDICATA. Affirmance on other grounds, 19. Appeal -pending — continued All questions determined, 16. States, both ways, 11. Appeal pending, 10. Supersedeas, undetermined, 13. Federal practice, 12. , Defendants different, 5. i Followed here, 13. Demurrer decision, 8. Not affect judgment, 13, 17. In supreme court, 8. RES ADJUDICATA 961 ^Demurrer decision — continued Not circuit court, 9. General affirmance, 18. Interest, not presented, 14. , Ordered payment of money, 1. Absqiute or life, open, 2. "Part not appealed from, 15. Points: actually decided, 21. , Different claim or cause, 23. Only actual decisions, 23. Points — continued Might have been decided, 22. Rule of law stated, 3, 4. As in N. Y. case, 3. Parties and subject matter, 20. Identity of causes of action, 20. Supreme court errors, 6. Jurisdiction failure below, 7. Ee-hearing, correction only, 6. 1. Where the county court in a final judgment, directed that a sum of money, ''be paid by said administrator" to the widow, and that the administrator be discharged, this was held not an adjudication that the widow- "was the absolute owner" and was "entirely consistent with the theory" that she "was entitled to the use of the money for life". 2. "That court not having determined whether she was entitled to the surplus absolutely, or only for life, ,the question remains open". , — Trycm v. Fwnsworth, 30 W. 577, 582. 3. "We understand the rule of law on this subject to be as stated by Earl, C, in Woodgate v. Fleet, 44 N. Y. 1-13 : 'A judgment is con- clusive upon the parties thereto only in respect to the grounds covered by it, and the law and facts necessary to uphold it; and, although a decree, in express terms, purports to affirm a particular fact or rule of law, yet if such fact or rule, of law was immaterial, to the issue, and the controversy did not turn upon it, the decree will not conclude the parties in reference thereto'." , — Hardy v.. Mills, 35 W. 141,-;149. 4. "The rule is well stated in Hardy v. Mills (supra) in the language \ of Woodgate v. Fleet". —Lathrop v. Knapp, 37 W. 307, 314. 5. "This is the same controversy (ejectment) involved in Kent v. Agard, 22 W. 150. The plaintiff, in that case is plaintiff here; but the defendants are different. There the defendants were tenants of the, defendants -here. The judgment there is, therefore, not binding here. (Cases). And the views on which the judgment rested in that case are not res adjudicata in this". — Kent v. Lasley, 48> W. 257, 261. ' ' l . ' ' i 6. "The only remedy we know of for correcting the errors of this court is, by application for a rehearing in the same case". 7. "The right of the widow to an allowance in this case is res adjudi- eata even though the county riourt had no jurisdiction over the subject matter". See Widow. —Baker v. Baker, Extr. 57 W. 382, 391. 8. "By repeated decisions it has become tfhe settled ( law in this state that the decision of this court upon a demurrer is conclusive upon the questions legitimately involved, and is res adjudicata in that case. (Cases), . , ; Zimmerman — 61 962 PROBATE AND GENERAL LAW, CODIFIED 9. It is true that this court has decided that an order of the circuit court upon a demurrer is not res adjudieata", because "such an order is reviewable by statute upon appeal from the judgment. Hackett v. Carter, 38 W., 394." , — Ellis v. Northern Pacific E. Co., 80 W., 459, 465. 10. "In many of the states, and perhaps in most, it is held that a£ appeal destroys the "effect of a judgment as res adjudieata, and, while pending, the judgment cannot be pleaded in bar to another action for the same cause between the same parties. ' ' 11. "But on the other hand, in many of the states the courts of equal credit and respectability, hold otherwise, and we think with better reason." , 12. " ' In' the federal practice a writ of error to the circuit court does not have the effect, pending the proceedings, to suspend the operation of. the judgment as a bar or estoppel.' 2 Black. Judg., 510." In N. Y. and Ind., likewise, (cases). 13. "We prefer to hold, therefore, that a mere appeal does not affect the judgment as a bar to another action, sustained, as it is by reason and such respectable authorities." So held. Had there been "a super- sedeas or stay of proceedings, ' ' the effect then, is not determined. —Smith v. Schreiner, 86 W., 19, 23. 14. Where a judgment was affirmed on appeal, the question of interest not, being "presented, argued, or decided," it is held that on an appeal of the opposite party from the same judgment, theretofore pending, on the question of interest, the judgment as affirmed was not res adjudi- eata. ' —Taylor v. Hill, 87 W., 669, 672. 15. A judgment having been affirmed on appeal, that part thereof "not excepted to or appealed from by either party," is held on a sub- sequent appeal res adjudieata. —-Ford, v. Ford, 88 W., 122, 133. 16. ' ' It must be conceded that every question determined by this court on the former appeal is res adjudieata, and absolutely binding, not only upon the trial court, but also on this court. (Many cases.)" — Keystone Lumber Co, v. Kolman, 103 W., 300, 303. 17. "Even an appeal does not deprive a judgment of its effect as a bar to another action. It may be pleaded and relied upon pending an .appeal with the same effect as if no appeal had been taken. Smith v. Schreiner, 86 W., supra; (other cases)". 18. And ' ' a general affirmance of a judgment, based upon the findings of fact made by the trial court, leaves those findings intact unless they are specifically set aside in the decision or opinion". 19. "Mr. Van Fleet, in his work on Former Adjudication, at page 145, expresses the idea thus: 'If a cause is decided upon the merits, RES GESTAE 963 the fact that upon appeal the judgment is affirmed upon grounds which do not touch the merits does not remove the bar of res adjudicata'." (Cases). So held. See also Judicial Decisions. —T. of Fulton v. Pomeroy, 111 W., 663, 669. 20. "To furnish a basis for the rule of res ad judicata", "there must be not only identity of parties and of subject matter, but also an iden- tity of causes of action". (Many cases). —Lindemann y. Busk, 125 W. 210, 237. 21. "A judgment is a complete bar in a subsequent action between the same parties, not only as to every point actually presented and decided in the former action, 22. But also as to every point which might have been presented and decided therein when the second action is upon the same cause of action. 23. But when the second action is upon a different claim or cause of action, the former judgment is only a bar as to matters actually pre- sented and litigated therein. (Cases)". So held. See also Dower. —Huntzicker v. Crocker, 135 W, 38, .41. RESCISSION OF CONTRACT. See Page 937. RES GESTAE. Agent's representations, 2. Accompany transactions, 3. Within his authority, 3. • Concurrent with, 1. Contemporaneous only, 4, 10, 11, 16, 20. Not after intervening acts, 10, 11, 13. Not after narration, 4, 12. Whether oral or written, 16. Elucidate character of, 7, 17, 20. Connected with as part, 7, 20. Grow out of principal act, 8. Intestate's declarations, 6. Minor matters connected, 21. Not competent to prove major, 22.' Possession of property, 14. Assumption of ownership, 19. And offer to sell, 19. Explanatory of possession, 15. Principle set forth, 5, 7. Approved by Greenleaf, 17. Eule by Greenleaf, 20. Prior: to party leaving, 9. , Independent; prior act, 18. Not declarations after, 9. 1. "Communications between the" parties to the transaction, relat- ing to and "before the sale of the goods" "and the negotiations at the time of sale were all calculated to explain the nature of the sale, ' ' and were "proper and competent evidence. They were a part of the res gestae". —Eastman v. Bennett, "6 W. 232, 239. 2. "The admissions or representations of an agent, while engaged in any particular transaction for his principal, made in regard to such transaction, may be received as evidence against the principal in a controversy concerning such transaction. 964 PEOBATE AND GENERAL LAW, CODIFIED , 3. But to be received they must constitute' a part of the res gestae in the course of the agent's employment about the matter in question; they must accompany the transaction or the doing of the business, and must be within the scope of the delegated authority". — Hazleton v. Union Bank, 32 W. 34, 48. 4. "Declarations are verbal parts of the res gestae, only when th,ey are contemporaneous. The respondent's narrative, after the occur- rence", (of "an account of the meeting which he gave to strangers, after it had ended and the parties had finally separated") "belonged no more to the res gestae, than his evidence on the trial". — Sorenson v. Dundas, 42 W. 642, 643. 5. "The principle is elementary, that the acts and declarations of the parties, done and made at the time of the transaction which , is being inquired into, and connected with it, constitute parts of the res gestae. There is a very exhaustive discussion of the question in Roebke v. Andrews, 26 W. 313, where numerous cases are examined. (Cases) ". 6. Declarations of defendant's intestate, at the time of delivery of lumber the title of which is in question, "that he was satisfied the plain- tiff (from whom he purchased) had no title to it, and that he had paid W.,for it", were proper to be received as "part of the res gestae". —Allen v. 'Sey fried, 43 W. 414, 419. 7. "When the act of a party may be given in evidence, his declara- tions made at the time and calculated to elucidate and explain the' character and quality of the act, and so connected with it as to consti- tute one transaction, and so as to derive credit from the act itself, are admissible in evidence" as part of the res gestae. Lund v. Tyngs- borough 9 Cush. 36. 8. "There must be a main or principal f act or transaction, and only such declarations are admissible as grow out of the principal trans- action, illustrate its character, are contemporary with it, and derive some degree of credit from it' '. 9. "In the present case, the act of enticing — the res gestae — undoubt- edly terminated when the two defendants left the plaintiff's daughter;" deblarations prior thereto at the hotel were admissible, but those there- after were not. — Felt v. Amidon, 43 W. 467, 470. 10. A statement, by the plaintiff's minor son . exonerating defendant for injuries from the latter 's negligent handling of a pistol, "made after the accident occurred, and after his wound had been attended to and dressed by a physician who had been called for that purpose, and after he had taken his seat in a ( buggy to be. carried home", the length of the intervening time not being given, is held not part of the res gestae and should have been rejected, in accordance < with the quptation from Sorenson v. Dundas, 42 W. supra, as settling the question. RES GESTAE 965 ' 11. "The rule laid down in the case above cited was approved in Prideaux v. Mineral Point, 43 W. 513, 522, where it is said: 'The res gestae of this accident did not go with the team to the livery stable^ , but remained in the locus in quo, with the injured woman ; 12. And the declarations of the driver to the livery man were a sub- sequent narrative of the • res gestae, not admissible in. chief, as offered, though admissible upon proper foundation, to contradict the driver'. 13. In the ease last cited, what was said by the driver of the car- riage which had been turned over and thereby injured the plaintiff, immediately on his return to the stable after the accident was rejected by th/e court as inadmissible as part of the res gestae". —Muteha, v. Pierce, 49 W. 231, 233. 14. "The testimony as to what was said by the plaintiff and her (minor) daughter I. in respect to the gift and possession of the piano, was proper in connection with and as explaining their possession of the instrument, after its purchase by the mother and its gift to the daugh- ter," on the question of title. 15. "What is said by the person in possession of property, explanr atory of such possession, is part of -the res gestae. This is an elementary rule of evidence. 1 Greenl. on Ev. sec. 109. (See also Wambold by Gdn. v. Vick, 50 W. 456, cited under Gift). ... —Kellogg v. Adams, 51 W. 138, 145. 16. After citing the rule stated by Ryan, C. J., in Sorenson v. Dun- das, 42 W., supra, where the statement sought to be admitted was oral, it is said: "In the application of the rule, no difference ■ is perceived between verbal and written statements of a party. We have here writ- ten statements made too late to be regarded as of the resi gestae." —Goff v. Stoughton State "Bank, 78 W., 106, 112. 17. The doctrine of Lund v. Tyngsborough, 9 Cush., 39, as per Felt v. Amidon, 43 W., supra, approvingly quoted, and it is said: "In 1 Greenl. Ev., 108, Note 2, this case is fully approved as containing a correct statement of the law as to what declarations are admissible as part of the res gestae. 18. As already observed, the main or principal' fact or transaction in this case is the shooting of the dog. Most assuredly the declaration of ' the defendant's wife that the dog attempted to bite her did not grow out of such fact or transaction; neither does it derive any degree -of credit therefrom, because the act of shooting had not been committed or contemplated when the declaration was made," immediately before the gun was taken down and the shooting performed. —Ehrlinger v. Douglas, -81 W., 59, 62. 19. Evidence of assumption of ownership and an offer to sell, on the question of possession of the vendee in an oral contract for sale of 966 PROBATE AND GENERAL LAW, CODIFIED realty should have been admitted as acts falling "within the limits of res gestae". ( 20. As "guides laid down in the books", " 'the principal points of attention are,' says Prof. Greenleaf, 'whether the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration,' and whether they were so connected with it as to illustrate its character'. 1 Greenl. Ev., 108". —Cuddy v. Foreman, 107 W., 519, 524. 21. "Minor matters which constitute the res gestae of a major sub- ject are things so closely connected therewith as to be substantially involved therein and to explain or illustrate it. Andrews v. U. S. C. Co., 154 W. 82. 22. It follows" "that there must be a material major circumstance in order that there be evidentiary res gestae, and that the latter are 'not, primarily, competent to prove the former". —Andrzejewski v. N. W. Fuel Co., 158 W. 170, 175. RESIDENCE. See Domicil. RESIDUARY ESTATES. t See Bond to Pay Debts and Legacies. Construction op Wills. Legacies. Vesting op Estates, etc. RESIDUARY LEGATEE BOND. See Bond to Pay Debts and Legacies. RESIGNATION. Equivalent to refusal of, 2. Executor, etc. — continued Executor or administrator, 1. Not without statute, 1. 1. An executor or administrator cannot , resign in the absence of a statute authorizing it. — Sitzman v. Paequette, 13 W. 291, 306. 2. The resignation of a county judge was held to be equivalent to a refusal to qualify for a new term to begin subsequently. See County Judge. ^-$tate ex rel. Finch v. Washburn, 17 W. 658. REVOCATION RESULTING TRUSTS. See Implied Trusts. Tbusts. 967 RETROACTIVE. Intentions unmistakable, 1. Not from general language, 1. 1. "Statutes are never, so construed unless the intention that they should so operate is unmistakable." Not so construed from "general language" "which might include past transactions as well as future". — Seamcms v. Carter, 15 W. 548. REVERSION. See Devises. . Vesting op Estates, etc. REVOCATION. v See also Adoption. After-born Child. Lost Will. Wills. Administration: irregularly granted, 1. Begularly granted; will proved, 45. Agent's authority: Decease of principal, 3. Depends on notice to parties, 29. Notice to agent^ common law, 46. Life insurance policy: Beneficiary; revoked by death, 28. Orders irregularly made, 1, 2. Wills: After admission to probate, 47. Whether paragraph revoked, 48. By changed conditions, 48. Brought by divorce, 49. Declarations inadmissible, 51, 52. Paragraph held revoked, 50. Republication to stand, 53. Alteration without obliteration, 20. Want of re-attestation, 20. Codicil revocation effect, 42a. Declarations inadmissible, 17. Lost will, is different, 19. Not part of res gestae, 17. Unsworn testimony, 18. Destroying without intent, 13. Wills — continued Devised specific realty, 32. Contract, nominal sum paid, 34. Will conveys interest in, 34. No residuary clause, 35. > Contracted to' sell before death, 32. Common law, revoked, 32. Changed in England, 33. Changed in most states, 33. Expressed a desire to change, 36. "Implied by law," sec. 2290, 21. As at common law, 21. Marriage of a woman, 22. At common law, 22. - Changed by our statute,, 23, 31. Held not to revoke, 26. Great weight of authority, 27. Massachusetts, contra, 27. , Bemoved by implication, 24. Reason ceased to exist, 25. ' Widow; remarried, husband heir, 30. Did not revoke, 30. , Intent; without aet to will, 14. Signed, but not statutory, 15. 968 PROBATE AND GENERAL LAW, CODIFIED Wills — continued Lost, presumed destroyed, 43. Burden on proponent," 44. ■ Marriage of man; issue, 37. 1 At common law, revoked, 37. Mafriage and adoption, revokes, 38. Obliterated signature, 54. Genuine to attestation clause, 54. Once revoked, conclusive, 42. Second will, revoking last, 39, 40. Deposited former, revoke intent, 41. Did not restore former, 40. Wills — continued Seven ways of revoking, 7. All others prohibited, 8. Four by specific acts, 9. Three, signed, attested, etc., 10. Signed and dated, ineffective, 11 Failure to follow statute, 12. Statute of 29, Chas. II, 5. Substantially, sec. 2290, 6. Includes personality, 6. Subsequent will, expressly, 4, 39. Without express words, 4. 1. As to revocation of probate orders, and of irregular administration granted. See Administration. » — Brunson v. Burnett, 2 Pin., 185, 188. 2. The court can at any time revoke an order irregularly made. See Order. — In re Fisher, 15 W. 511, 521. 3. The death of the principal generally revokes the authority of the agent. See Principal and Agent. — Lenz v. Brown, Admr., 41 W. 172, 184. 4. "The testatrix, in the will of June 4, 1878, expressly revoked all former wills. That will would probably have operated as a revocation of any former will without words to that effect, since it made a complete disposition of the estate of the testatrix, both real aDd personal". —Farmer v. Sprague, 57 W. 324, 326. 5. Section 6 "of the statute of 29 Chas. II, 'for the prevention of frauds and perjuries' '", provides for the revocation in writing only of a will 'or any clause thereof. 6. ' ' Our statute relates to personal property as well as real estate, and has some words transposed, and is slightly different in some other respects; but otherwise sec. 2290, is substantially the same as that sec. 6. , 7. The statute is imperative upon the court, and is to the effect that 'no will, nor any part thereof, shall be revoked unless by (1) burning, (2) tearing, (3) canceling, or (4) obliterating the same, with the inten- tion of revoking it, by the testator, * or by some other (5) will or (6) codicil in writing, executed as prescribed in this chapter, or (7) by some other writing, signed, attested, and subscribed in the manner provided in this chapter for the .execution of a will '. Sec. 2290. ' ' 8. "Here are seven ways prescribed for revoking a will, and air other ways, except such as are implied by law, are expressly prohibited. 9. Each of the first four is by doing a specified act to the will itself, with the intention of revoking it. 10. Each of the last three must not only be in writing and signed, • REVOCATION 969 but also attested and subscribed in the presence of the testator by two or more competent witnesses. Sec. 2282." 11. In this case, the will occupied the first page of a four page sheet, and on the fourth 'there was "written in pencil, in the handwriting of the testatrix, the words: 'I revoke this will. Mary P. Ladd, October 7, 1879'/' and it was held the will was not revoked. 12. The "failure to execute in the manner prescribed by the statute manifestly prevented the words written in pencil from going into effect as a written revocation." 13. In discussing the ease White v. Casten, 1 Jones Law, 197, the court says, "the mere act of burning, tearing, canceling, or' obliterating the will itself, without the intent, is not enough. (Cases). 14. So the mere intention to revoke the will, unaccompanied by any act of burning, tearing, canceling, or obliterating, done to the will itself, is not enough. (Many eases) ". 15. "Even. if such intention to revoke be expressed in writing never so strongly,, and signed by the testator", yet without the^statutory execution, "it cannot operate as a revocation, when unaccompanied by any of the four acts, done to the will itself, specified in the statute. (Many cases)". 16. "Our statute as to the mode of revoking wills eame to us with its history, and the constructions which had been, put upon it by the courts." p. 199. 17. As to, statements of the testatrix showing "such intention to re- voke", it is said that "such declarations are clearly inadmissible, because they do not constitute a part of the res gestae ; 18. besides, to allow them to have the force of evidence would be admitting testimony of one unsworn, and without the privilege of cross examination. (Cases) , ' 19. The admission of such declarations to rebut the inference of fact arising from the absence or loss of a will is upon a different theory, as will appear from the well- written and able opinion of Judge Dyer in' Southworth v. Adams, 11 Biss. 256." 20. "So, where there has beeen an attempt to alter certain portions of the will by erasure, without obliteration, and by substituting new words in their place by way of interlineation, and the writing thus altered failed to go into effect for want of re-attestation, courts have held that there was no intent to revoke, except by way of alteration, which having failed the will remained intact as before. (Cases) ". — Will of Ladd, 60 W. 187, 190. 21. With reference to the statute of revocation, sec. 2290, " 'the revo- cation implied by law', thus excepted out from the operation of the prohibitory clause 1 of the' section by reason of such precaution, mani- festly means such as had previously been implied at common law. (Approvingly quoted in Will of Battis, 143 W. post) . \ 970 PROBATE AND GENERAL LAW, CODIFIED 22. At common law the marriage of a woman was revocation of her will previously made Forse's Case, 2 Coke, 439; (other cases)". 23. But under the statute, since 1859, a married woman "has had ' the absolute power of disposing of her property" by will, regardless of her husband. Sees. 2277, 2281. 24. "The rights and powers thus secured to married women by the statutes remove every reason upon which the common-law rule of revoca- tion by such subsequent marriage was based, and hence such rule by implication is removed by the same statutes. \ 25. The reason for the rule having ceased to exist, the rule itself also ceased. This is in accordance with a well-settled maxim of the law". 26. In this case, the testatrix,, while the wife of S., made a will giving her property to her^children of a former marriage. On the death of S; she married W., and had no children by either S. or W. • It was held that her marriage to W. did not revoke such will. 27., Notwithstanding a similar statute and contrary decision in Massachusetts (Swan v. Hammond, 138 Mass., 45), it is said that "the conclusions we have reached are supported by the great weight of authority of our sister states under similar statutes. ( Cases cited from 111., Mich., N. J., N. H., and Vt.)." — Will of Ward, 70 W. 251, 255. 28. Ordinarily in a life insurance policy, "the appointment of the beneficiary is revoked by his death". See Insurance. —Given v. Wis. Odd Fellows Ins. Co., 71 W. 547, 551. 29. "The revocation of the agent's authority depends upon notice to the persons with whom the agent has had dealings for his principal". "See Principal and Agent. — Johnson v. Youngs, 82 W., 107, 11.0. 30. Where a widow made a will, re-married, and died without issue, leaving her husband her heir, it is held, following will of Ward, 70 W. supra, "that the subsequent marriage of the testatrix did not revoke" her will; 31. That the statute, section 2290, as to revocation, ' ' merely preserves the common-law rule on the subject, except as abrogated by implica- tion" by the statute (sees. 2277-81) conferring "upon married women the absolute power of disposing of their property by last will ' '. — Will of Lyon, 96 W. 339, 340. 32. "At common law, if a man made a will devising specific real property, and before his death contracted to sell the same, this was deemed to be a revocation of his will as to this specific property ' '. 33. "In 1837, in England," this was changed by statute. Most of the states by statute or construction, also follow this change, and the will, operates on "such portioif of the estate as the testator had power to dispose of at his death." 34. Where a testator devised realty specifically to C, and subse- REVOCATION ■ 971 quently sold it on a land contract, but a nominal sum. being paid down at Ms decease, it is held, considering sec. 2278, that a "will shall be construed to convey all the estate of the devisor" of land, therein, there appearing no contrary intention, that, — 35. " ' A consideration of the circumstances, together with the fact that there was no residuary clause in his will, leads to the conclusion that it was the testator's manifest intention that C. should have this prop- erty. Wright's Heirs v. Minshall, 72 111. 584." — Est. of Lefebvre, 100 W. 192, 193. 36. The fact "that some time prior to his death he (the testator) expressed a desire to change, his will", is ineffective, "as the statute clearly points out the only ways in which the will may be revoked. Sec. 2290; Ladd's Will, 60 W. supra". — Deck Y.'Deck, 106 W. 470, 473. 37. "There can be no doubt but that, at common law, the marriage of a man, and issue of such marriage, operated to revoke his will previously made, disposing of 'all his property, as here. (Many cases) ' '. 38. Referring to Will of Ward, 70 W., supra, as to "revocation im- plied by law", under sec. 2290, it is held that under the adoption statute, sec. 4024, "that the marriage of the testator and the adoption of the child operated to revoke the will previously made". • —Glasc&tt v. Bragg, 111 W., 605, 607. 39. "Where a second will is drawn and executed with the formality required by the statute, and containing an unlimited revocatory clause, all former wills are. wiped out and held for naught. The operation of the revocatory clause is immediate and absolute". 40. "The fact that the second will drawn by the testator was de- stroyed, or could not be found after his death, did not revive or give legal vitality to the former one, ' ' 41. Though the testator deposited it with the county judge a second time, "with intention to revoke the same," and it was found there at his death. , 42. "We believe the better and safer rule to be to require that a will once revoked, to be revrved, must either be re-executed or adopted by some subsequent writing, executed as the statute requires." — In re Noon's Will, 115 W. 299, 301. 42a. Mere codicil revocation would not imply a gift of such part to 1 ' ' other 'beneficiaries. ' ' See Construction op Wills. —Lawrence v. Barber, 116 W. 294, 304. i < 43. "Where, as here, it is established that the will was last known to be in the possession of the testator, and could not be found upon his 972 PROBATE AND GENERAL LAW, CODIFIED death, it raised a prima facie presumption that he destroyed it with the intention of revoking it, 44. And that the burden of doing away with such presumption was upon the proponent ", " undoubtedly is the law ' '. See also Lost Will. —Gavitt v. Maidton, 119 W., 35, 48. 45. As to revocation of administration proceedings, where a will was afterwards found and probated. See Administration. —Perkins v. Owen, 123 W. 238, 241. 46. Revocation of authority at common law, must "be brought to the personal notice of the agent ' ', to be effective. See Deeds. — Best v. GuntKer, 125 W. 518, 520. 47. After a will was duly admitted to probate, it is held that, on petition therefor pending administration, "the court thereby acquired jurisdiction to determine, 48. Whether " a ' ' paragraph of the written paper admitted to probate as the will had been impliedly revoked and annulled under the pro- visions of sec. 2290, by the changed condition and circumstances of the testator subsequent to the making of the will". 49. Following cases supra, it is held, that "the change in the condi- tion and circumstances of one who has made a will, brought about by a divorce accomplished by an adjudication making a final division and distribution of his estate", "as between him and his wife", 50. Is "of such probative force as to sustain the conclusion that the husband intended that the provision he had theretofore made in his will for his wife's benefit should be revoked thereby", and was revoked. 51. As to evidence offered "to show that after the divorce the testator entertained a friendly feeling for his former wife", and had made declarations "that he had made provision in his will for her comfort and needs for the remainder of her life", 52. We "must hold that evidence cannot be received to rebut the presumption of an implied revocation of the provision in a will, 53. Or to show that the testator meant his will to stand as written, unless such evidence amounts to a republication of it". Wirth v. Wirth, 149 Mich. 687/ — Will of Battis, 143 W. 234, 238. 54. An obliterated signature, followed by a genuine signature after the attestation clause, held not a revocation, See Execution of Wills. — Gale v. Freeman, 153 W., 337, 340. REVOKING FRAUDULENT ORDERS. See Fraudulent Orders. RULES OF PRACTICE RIGHT OF WAY. See Construction of Deeds. 973 RULE IN SHELLEY'S CASE. "HeiTS of the body," 1, 3. Not in force this state, 2. Sec. 2052, opposite / doctrine, 3. What the rule is, 1. " 1. "The famous Rule in Shelley's ease, 1 Coke, 219", "is that the words 'heirs of her body' are words of limitation, and not of purchase, and the ancestof-^-the widow of the testator — takes the whole estate. 2. But the rule in Shelley 's ease is not in force in this state. 3. The opposite doctrine prevails here, and is contained in sec.. 2052, which provides that in such a case the heirs of the body of a tenant for life shall take as purchasers by virtue of the remainder limited to them. This saves the remainder, and effectuates the expressed intention of the testator." See Life Estates. —Jones, Eptr. v. Jones, 66 W. 310, 318. RULES OP PRACTICE. See also Judicial Decisions. Policy of the Law. Trial. Account items objected to, 24. Based on general conditions, 3. County court: Detailed practice points, 31. Formal rules; commentary, 32. Extra compensation, 18. Better to itemize, 18. Allowed against rule, 19. Findings of trial court,, 29. Some evidence, uncontroverted, Hearing after noticed day, 14. Presumed other business, 15. Or postponed regularly, 16. Record, valid probate, 17. Infirmity of rules, 2. Law of the land, 1. Judgments, decisions, rules, 1. Obiter dictum: Bouvier 's philosophic rule, 8, 21 All points to be argued, 8. Judicial dictum, 9. Bouvier 's rigid rule, 6. Few opinions wjthout, 7. Obiter dictum — continued Definition of, 9, 22. Different views, same conclusion, 5. Few judges do not offend, 10. < Great English judges, 11. Judges, lawyers, differ, 4. Not always reprehensible, 12. Origin by mere dicta, 12. Points necessarily considered, 21. 30. Not only result arrived at, 21. Order of proof directed, 13. > Discretion of court, 13. Prescribed by supreme court, 1. Law of the land, 1. Prior will, in will contest, 23. Recital in probate certificate, 20. Sustaining jurisdiction, 20. Trustee appointment, 20. Tried in open court, 26. Proceedings in open, 25. Violations, when material, 27. Immaterial errors, 28. 974 PROBATE AND GENERAL LAW, CODIFIED 1. "The rules prescribed by this court for the regulation of its own practice, as well as for that of the circuit court, are the law of the land, and are binding upon all courts, officers and parties, until altered by the court or the legislature. * So are the judgments and decisions." — Atty. Gen. v. Lum, 2 W. 507, 510. 2. "It is, perhaps, not altogether an uncommon infirmity of judicial rules, that they are made in view of exceptional conditions of things presently existing. 3. Passing evils or exigencies should have little weight in general rules of decision. • Judicial rules ought properly to be based upon the general condition of society, and to be broad enough to meet occasional derangements incident to it. ' ' Ryan, C. J. — Kla-uber v. Biggerstaff, 47 W. 551, 555. 4. "It would seem that judges, as well as lawyers, sometimes differ as to what may properly be regarded as obiter dictum. 5. It is not unfrequent, in courts of last resort composed of several judges, for all to come to the same conclusion, but from different views of the law, and hence it may at times be difficult to determine the precise principle upon which the case was decided, or what may properly be deemed mere obiter. 6. 'According to the more rigid rule', says Bouvier, 'an expression of opinion, however deliberate, upon a question, however fully argued, if - not essential to the disposition that was made of the case, may be re- garded as a dictum'." 7. "Under this 'more rigid rule', it is believed that, comparatively, there are but few opinions in the books which contain no obiter dictum ; that is, . nothing which was not absolutely essential to the disposition made of the case. Under that rule what is here being written is nothing but obiter dictum. 8. But Bouvier adds that 'it is, on the other hand, said that it is difficult to see why, in a philosophical point of view, the opinion of the court is not as persuasive on all the points which were so involved in. the cause that it was the duty of counsel to argue them, and which were deliberately passed over by the court, as if the decision had hung upon but one point'. 9. Such dictum, if dictum it is, should, it would seem, be regarded as 'judicial dictum', in contradistinction to mere obiter dictum, — that is, an expression originating with the judge alone, while passing, by the way, in writing his opinion, as an argument or illustration drawn from some collateral question. 10. But even in that sense, we apprehend, there have been but few judges, occupying the bench for any considerable length of time who have always been so precise and concise in their opinions as not to be subject to that criticism. 11. As illustrations, we call to mind such expression of obiter by no RULES OF PRACTICE 975 less distinguished judges than Sir Matthew Hale, Lord Chief Justice Kenyon, and Lord Chief Justice Denman, as will appear by reference to the following cases ; Steel v. Houghton, 1 H. Bl. 53 ; Parton v. Wil- liams, 3 Barn. & Aid. 341 ; Bast v. Byrne, 51 W. 536. 12. Besides, mere obiter is not always reprehensible. On the contrary, some of the most sacred canons of the common law had their origin in the mere dicta of some wise judges. To be valuable, however, they must of course be right." —Buchner v. C. M. & N. W. By. Co., 60 W* 264, 267. 13. "Error cannot, in general, be assigned upon a ruling directing the order of proof. That is a matter resting in the sound discretion of the trial judge. " See also Affirmative. — Cunningham v. Gallagher, 61 W. 170, 173. 14. Where "the published notice fixed Monday, the 24th of July, as the time for the hearing of the application to admit the will to probate, and the record shows that the matter was in fact heard on the 7th of August", there is "no merit in the objection that the will" was not duly "admitted to probate." 15. ' ' We must presume, in the absence of proof to the contrary, that other business prevented the hearing on the day named in the notice, 16. Or that the hearing was postponed to the subsequent day to suit the convenience of ,the parties in interest. 17. The record shows that it was established as a valid will, effectual to pass the title to real estate". — Field v. Apple River L. D. Co., 67 W. 569, 571. 18. It ' ' would be the better practice ' ' to itemize claims for extra com- pensation to an executor. See Compensation of Adme., etc. —Ford v. Ford, 88 W., 122, 130. 19. Extra compensation allowed, not in accordance with the court rule. See Accounts of Extrs., etc. — Sohinz v. Schinz, 90 W., 236, 248. • 20. Where certain, papers of the county court records were submitted as authority to appoint a trustee, not including "the petition for pro- bate, order of- notice, or proof of notice thereon", the jurisdiction was technically sustained by reason of a recitation in the certificate of pro- bate, "although the better practice would have been to have introduced the whole record of the proceedings in county court". See also Juris- diction. —Bichter v. Est. of Leidy, 101 W. 434, 438. 21. "It is a mistaken opinion that nothing is decided in a case except , tTip T'PS'nl 1" JHT1VGQ. Siti 22. The case of Buchner v. C. M. & N. W. R. Co., 60 W. supra, is approvingly quoted and discussed, and obiter is said to be mere observa- tions as "to some collateral matter by way of illustration." See Judi- cial Decisions. — Brown'v. C. & N. W. B. Co., 102 W. 137, 154. 976 PROBATE AND GENERAL LAW, CODIFIED 23. As to Considering a prior will in a contest on a later will, made by a legatee of the first. See Aggrieved Persons. —Will of Hwnt, 122 W. 460, 464. 24. Evidence as to items of an account specifically objected to, must be affirmatively submitted, to enable allowance. See Accounts op Extrs. & Ad.mrs. , —Fitch v. Huntington, 125 W. 204, 209. 25. "All court proceedings should be in the open; there should be no opportunity for doing things in a corner. ' ' 26. A party "is entitled to have his case tried _in open court from start to finish. There is safety in no other rule. ' ' See also Jury. —Hurst v. Webster Mfg. Co., 128 W. 342, 347. 27. "Violations of established rules or methods of procedure become material on appeal only when it is evident that they have impaired a party's right to a fair and impartial trial on the merits. 28. The Code and the court alike require a brushing aside of all errors that do not affect substantial rights". See alsp Claims. —C. W. Beggs S. & Go. v. Est. of Behrend, 156 W. 34, 36. 29. "The rule that findings of fact made by a trial court will not be disturbed unless contrary to the clear preponderance of the evidence", "is a very important one in the administration of justice"; 30. But "the logic of the rule contemplates that a finding is not, necessarily, to be sustained merely because there is some evidence which, if not controverted, would support it". —Krahn v. Goodrich, 164 W. 600. 31. (As to detailed points of practice in the various proceedings in county court, 32. And as to the formal County Court Rules with detailed com- mentary and discussion thereof, (ch. 34), — see Zimmerman's Probate Practice.) SALE OP PERSONALTY. See also Auction Sales. Personal Estate. Warranty. Administrator; absolute power, 1. Agreement to bid jpintly, 25. Acts in personal capacity, 20. Agreement to buy jointly, 23. Assumes air liabilities,' 21. Not nudum pactum, 24. Lien on estate, 21. Authority to sell, 7. Creditors and distributees, 3. Not for debt payment, 7. Holds title as owner, 19. Contract: actual sale, 4. Eepresents no principal, 21. Executory only, 5. To himself, is voidable, 22. May be in form of receipt, 10. Without order of court, 2. Disclaim purchase: keep goods, 9. SALE OP PERSONALTY 977 Evidence : Parties to the contract, 12. Proof of no contract, 13, 14. Fraudulent as to creditors, 16. Valid as between parties, 16. Implied title warranty, 15. Parol: Agreement to buy jointly, 23. Not within statute, 23. In form of receipt, 10. Not to vary contract, 10. Parol-^continued Plain and unquestionable, 11. Not as agreed on, 11. Sale on approval, 17. Sale or return, 18. Standing timber interest, 8. Stolen property sale, 15. ' Surviving partner to himself, 22. Without credit stipulation, 6. Reclaim upon delivery, 6. If payment refused, 6. 1. The sale of personalty is in the absolute power of the adminis- trator, to be set aside only for fraud. See Personal Estate. , —Williams v. My, 13 W. 1, 6. 2. Sale of personalty may be without any order of court. See Per- sonal, Estate. — Munteitlt v: ■Rahn, 14 W. 210, 212. 3. On a wrongful sale or pledge by the administrator, he and the vendee or obligee are responsible to the creditors and distributees, who must bring action. S.e'e Extrs. & Admrs. —Stronach v. Stronach, 20 W. 129, 133. 4. ' ' The rule laid down in the books is, that the contract amounts to an actual sale, if the specific thing is agreed- on, and is ready for'imme- dia1,e delivery ' ' ; 5. ''"Biit'that the contract is only executory when the goods have not been specified, or if, when specified, something remains to be -done to them by the Vendor, either to put them into a deliverable shape, or to ascertain the price. Benj. on Sales." — Gbdfrey v.' Germain, 24 W. 410, 415. 6. When goods are' sold without any, stipulation as to credit, the ven- dor may demand payment immediately upon delivery, and, payment bejng refused, he may reclaim the goods, not being considered to have parted with the title thereto. This right to reclaim must ordinarily be exercised promptly after refusal of payment. "• ■ '■ —Goldsmith v. Bryant, 26 W. 34: 7. It is a, plain and well-settled principle that "an authority to sell, strictly, anS nothing more", "confers no power to sell or transfer in payment of the debts of the principal". — Butts v. Newton, 29 W ; 632, 640. 8. A sale of an "interest in standing timber" is a sale of an interest in land. See Sale op Realty. —Daniels v. Bailey, 43 "W. 566, 569. 9. "The defendant having received the goods from the^ plaintiffs, upon their claim that he had purchased from them, cannot, in the absence of Zimmerman — 62 978 PROBATE AND GENERAL LAW, CODIFIED mistake or fraud, appropriate them to his own use, and then disclaim the purchase. (Cases)". — Wellawer v. Fellows, 48 W. 105, 109. 10. ' ' The contract of sale may be in the form of a receipt, and, if it is complete as such, it stands on the footing of all other contracts in writing, and cannot be contradicted or varied by parol. 1 Greenl. on Ev. 305; Terry v. Wheeler, 25 N. Y. 520; Dunn v. Hewitt, 2 Denio, 637". 11. "Where the meaning of the instrument, as in this case, is plain and unquestionable, and the meaning is not that which the parties have agreed upon, or where there is no uncertainty in its legal effect, it can- not be contradicted by parol evidence. 2 Pars, on Con. 563. ' ' —Schultz v. Coon, 51 W. 416, 418. 12. In an action for the purchase price of lumber where the defendant claimed the purchase was made by a contractor, the testimony of the latter "tending to show that he purchased the lumber of the plaintiff on his own account, and that the plaintiff sold the lumber to him and not to the defendant, ' ' was held admissible. 13. "It is not an attempt to prove what the contract between the plain- tiff and defendant was by proving what were the terms of a contract between the plaintiff and the witness, as it was in the case of Posey v. Rice, 29 W. 93". 14. "It was an attempt to prove that there was no contract between the plaintiff and defendant, by showing that the witness was the party to the contract instead of the defendant. The evidence was clearly admissible". — Dickmson v. Bvskie, 59 W. 136, 137. 15. In sale, there is "an implied warranty of title"; but in sale of stolen property, no title passes. See Title. , Factor. , —Edgerton v. Michels, 66 W. 124, 131. 16. A fraudulent sale as to creditors is "valid as between the parties". See Fraud. —Davy v. Kelley, 66 W. 452, 457. 17. In a "sale on approval", "there is no sale until approval is riven", and "notice to the seller within a reasonable time after the ?oods are disapproved is sufficient", without returning. 18. "But in a sale or return the sale becomes absolute after a reason- able time has elapsed without a return of the goods". (Many cases). —Exhaust Ventilator Co., v. C. M. & St. P. By. Co., 69 W. 454, 458. 19. "As to personalty, he (the administrator) was the owner and field the title for the beneficial interest of the creditors and heirs. 20. In dealing with it he acts voluntarily and as owner, and solely in his personal capacity. 21. In such transactions he represents no principal, and upon well- jstablished rules he assumes all liabilities as personal in character, SALE OF REALTY 979 relying upon his lien ,for indemnity out of the estate for expenses and liabilities incurred in a proper administration of his trust". See also Sale of Realty. —Wis. Trust Co. v. Chapman, 121 W., 479, 486. , 22. A sale as administrator and surviving partner, to himself, is void- able, and the trustee must respond with the property, or its value, and with profits made thereon, at the instance of the beneficiaries, though made without wrongful purpose. See Surviving Partner. —Howell v. Rowell, 122 ~W. 1, 13. 23. "An oral agreement to buy jointly", "irrespective of whether the joint property so bought was to be sold and the proceeds divided or the property itself divided in specie", is held "not within the statute of frauds, sec. 2308, nor within the Uniform Sales Act, see. 1684t-4", — the statute being "applicable only to contracts between seller and buyer", and "the parties do not stand in" such relation. 24. "The agreement was not nudum pactum. The consideration was a promise for a promise", each party agreeing "to furnish one-half the purchase price". 25. "Agreements to bid jointly at a public sale, if not made for the purpose of chilling or suppressing 'bidding, are valid. (Citations) ". —Stack v. Both Bros. Co., 162 W. 281, 287. SALE OP REALTY. See also Auction Sales. Commissions of Brokers, etc. Deeds. Incompetents' Sale of Realty. Infants' Sale of Realty. Land Contract. Power. Real Estate. ' Trustees. Admr. or Trustee purchaser, 39, 72, Adrnr. or trustee, etc. — continued Admr. conveys to E. for herself, 131. Subsequent bona fides, 63. ' Admx. against E. and K., 136. Statute prohibits purchase, 43, 60. Equity in admx. favor, 138. Through third party, 39, 58, 69. None without fault, 137. Trustees cannot purchase, 44, 90. Constructively fraudulent, 132. Injuries or not, 91. Cured by five year statute, 135. ' Voidable at election, 91. Ten year poss.; consid. paid, 131. Unless will authorizes, 44. E. conveys to K. with notice, 131, Void, used in sense of voidable, 60, 70, 133. 90. Valid till set aside, 134. Legal title passed, 60, 90. Verbal sale, effect, . executed, 139. Words void and voidable, 59. Wrong without moral turpitude, 132. Administrator appointment, 35. Breach of professional confidence, 63. Mugt be validj to i ioense) , 35- , Good faith, remedies, accounting, 129. Agents authority: Grantees, no notice of fraud, 61. Need no( . be in writing; 16 Laches, failure to investigate 64. , Eatifieati not writing; 16 . Suit twenty ^ars- after, 58. Alienat io„ incident to gift, 33. No actual fraud, voidable, 69, 72. .^ May set aside in equity, 71. ,..„., A . \- „ ,Not set aside in ejectment, 71. Lire interest, on executwn, 33. 980 PROBATE AND GENERAL LAW, V CODIFIED Bond: Not formally approved, 7. Confirmation order cured, 8. Circuit Court: i Not make order of license, 13. Claims : . Filed , unpaid, not 'allowed, 124. Justly due and owing, 125. When order for sale made, 124. Conditions of sec. 3919, 36, 37. Waived by guardian for ward, 56. Confirmation order : Appeal from order confirming, 121. Facts requiring withholding, 119. Fraud unnecessary, 120. False representations, 104, 105. Not conclusive, when, 36. Sec. 3919,- complied with,- 36, 37. ''Court having jurisdiction," 11. Pqmicil of decedent, 11. Contract by letters, 109. Conditional acceptance, 140, 141. Place of payment, 140. Equitable conversion: "Be treated as money," 32. Evidence of other sales, 130. Improper to show value, 130. Expenses: of the sale, 9. Administration, not in order, 86. Executors must all join, 49. Exercise best judgment, 49. Not in petition for, 47. False representations, 4. Discovery before confirmation, 104. Entitled to rescission, 105. Fraudulent sale; by decedent, 45. As to creditors, 108. Not wholly void, 108. Gross sum ,to be paid, 144. Number of acres, descriptive, 145. "More or less,'' 144. Without fraud or mistake, 146. Guardian's sale: Fraud, to nominal third party, 65. Set aside, after twelve years, 65. Not covenant for ward, 1. Notice to' ward, unnecessary, 46. Unlawful acts of guardian, 15. Wards not estopped, 15. Waive conditions of sec. 3919, 56. 'Ward settlement, (ineffective, 40.. Homestead : Administration expense, when, 123. Not liable in ordinary sense, 122. 1 Parol contract of husband, 41. Part of mortgaged premises, 126. Homestead — continued ,,> Purely lawless proceeding, 110. Minors without remedy, 110. Adverse possession statute, 116. Five year statutes, 112, 114. Ten year adverse possession, 111. Eecord silent as to, 17. Void, collaterally, 17. , Sale without considering, 107. Title held invalid, 107. • Inadequacy of price: Not sufficient to set aside, 66, 117. , Different with other facts, 11, 119. Fraud unnecessary, 120. Not alone ground for attack, 67, 118. Sale at, a sacrifice, 2. Confidence in sales, 2. Not set aside, 3. Index in register's office, 68. Not affect validity, 68. Jurisdiction : presumption : As in general courts, 30., Eecord regular on face, 30, See also Power. Notice. Liability: '■ Differs from personalty, 95, 98. Notes and mortgage by admr., 99. Administration concluded, 99. Admr. not personally liable, 103. Must be construed together, 100. Payment out of proceeds only, 102. Representative, not personal, 101. License limitation, 86. Discretion after first year, 87. Within two year limit, 87. Laches of administrator, 88. Extension properly refused, 89. Life interest, on execution, 33. Limitation statutes: Accrues from sale date, 19. Barred by ten and five years, 20. Barred by ten and one yeai', 73. Minor after at age, 73. Errors after five years, 18. Purely lawless proceeding, 110. Deed gives color of title, 113. Five and ten year statues, 111, 112, 114. No accounting right, 115. Ten and twenty year adverse, 116. Good faith immaterial, 116. See also License limitation. Suspension of administration, 74. Terminates at discharge, 74. Minors : No guardian at probate, 48; Widow elected, 48. SALE OF REALTY 981 "More or less," meaning of, 142, 144. Mortgage including homestead, 126. Nunc pro tune order after sale, 126. Order to include entire estate^ 126. > Special notice to mortgagee, 127. Notice : Collateral proceeding, 5. Given as required, or void, 23. Mortgagee, under sec. 3884, 127. Notice to adverse parties, vitaly 46. Notice to ward, unnecessary, 46. Omission of place, void, 24. Par with general court, 25. Presumed in general court, 21. Where record is silent, 22. Proof of by proprietor, 12. Eeeital held insufficient, 6. Pacts not specified, 6. Record fails to show, 5. Record is not silent, void, 25. Special jurisdiction, by due notice) 81. Time and place of sale, 37. Twenty-one days' publication, 38. Nunc pro tunc correction, 128. After sale; invalid, 128. Oath: Failure to take, 14. No title passed, 14. Petition : , Administration expenses and debts, 86. Order for debts only, 86. By two of three executors, 47. Homestead not indicated,' 107. Omitting personalty value, 10. Policy to uphold sales, 29. Though record defective, 29. Power strictly confined, 57. Future interests, mortgage, 106. Holder ought and will not, 77. Interested parties, 57. Must be found in statutes, 78. Especially county courts, 78. Unless owners authorized, 78. Pay debts; statute strictly, 79, 92. Preserve from destruction, 76. Power, and direction of court, 94 1 . Enforce creditors ' claims, 97. , Differs .widely from personalty, . 93, 98."' '"' ' Specific duties imposed, 96. Sell, not include mortgage, 75. Special jurisdiction of parties, 80j 83, 93, Again acquired by notice, 81. Trustees limited by see. 4030, 82. Sell at life tenant's direction, 84. To life tenant; mortgage back, Speeial jurisdiction necessary, 83. Proceeds' are realty, 31. Pent of mines, realty, 31. Restitution conditions : Money applied , on mortgage, etc., 28. Money , returned, less profits, 26, Interest; improvements, 26. 'Permanent improvements; taxes, 27. Reversion, to pay legacies, 55. ' x ; Standing timber, realty, 34, 42. Oral, unexecuted, void, 42. , Vendor fails as to title, 143. Vendee recover payments, 143. 1. A guardian cannot covenant for his ward "in his representative character." See also Real Estate. —Person v. MerricL;>5W. 231, 239. * 2. "At sheriff's sales, property is almost always, in this country, sold at a sacrifice". "And it is highly important, in order to secure reasonable competition, that there should be confidence in the stability of these sales, otherwise the great inducement for 1 bidding will be taken away". , 3. A sale of real estate at a sacrifice is not set aside in the absence of surprise, mistake or fraud. ' See also Real Estate. —Hill v. Hoover, 5 W. 354, 375.' 4. The party selling knows or is presumed to know of representations as true or false, and is liable for fraud in either case. See Fraud. . —Miner v. Medbury, 6 W. 295, 309. 982 PROBATE AND GENERAL LAW, ' CODIFIED 5. "An administrator's sale under a license from, the probate court" cannot in a collateral proceeding "be sustained, where the record fails to show notice to the heirs at law as required by the statute," such notice being jurisdictional. 6. "A recital, in the order granting the license, to the effect that it appeared to the judge that the notice had been ' published in the Wiscon- sin Enquirer, ' but leaving blanks at all the places where the facts should have been specified showing such publication to have been according to statute", is held insufficient "in the absence of any other proof of notice in the record failing to show or even recite the necessary facts ' '. —Gibbs v. Shaw, 17 W. 197, 201. 7. The sale of infant's real estate is valid though the bond was "not formally approved." See Bonds. 8. "The lands were not sold in the order of the license. , This defect, if such it was, was cured by the order of confirmation", the court having "power to modify" in this particular. 9. "A fair construction of the order" of sale, authorized the raising of "expenses of the sale" in addition to the sum named. — Emery v. Vromcm, 19 W. 689, 700. 10. "The defect in the petition, of omitting to state the_value of the personal property in the hands of the administrator, is -not such an irregu- larity as avoids the sale", in a collateral proceeding. 11. "By 'the probate court having jurisdiction' is obviously meant the probate court of the county where the deceased resided at the time of his : death, and which had jurisdiction of the estate." 12. Proof of publication of the notice "made by the proprietor of the newspaper" instead of by the printer or foreman of such printer is held valid. — Beynolds v. Schmidt, 20 W. 374, 379. 13. The circuit court can make no valid order of sale for payment of debts, on transfer from the county judge because the latter had been counsel for interested parties. See Circuit Court. —Morgan v. Hammett, 23 W. 30, 41. 14. As to guardian's sale of real estate : "In this case it does not appear that any oath (prescribed by the statute) at all was taken by the guardian; and the consequence is, that no title whatever passed by virtue of his deed". 15. In an action of ejectment brought after the wards became of age, it was held they were not "estopped by the unlawful acts of the guardian" though they received the benefit, and that "the remedy of the purchaser must be upon the covenants in the guardian's deed". — Willrinson v. Filby, 24 W. 441, 444. 16. "Authority in writing from S. to her husband, assuming her to lave been the real owner, was not necessary in order to authorize him SALE OP EEALTY 983 to enter into the contract for the sale of the land (Dodge v. Hopkins, 14 W. 630) ; and hence a ratification in writing by her of the contract was not required". — Smith v. Armstrong, 24 W. 446, 451. 17. A sale of the homestead at an administrator's sale was held void, collaterally, for the reason, "that the record of the probate court fails to show any allegation or finding that the land was not the homestead. ' ' —Howe v. McGivern, 25 W. 525, 532. 18. An administrator's sale cannot be set aside for errors, "where the statute of limitation (5 years) has run so as to give good title."' See Vacating Judgment. —Betts v. Shotton, 27 W. 667, 670. 19. Where, on a sale of realty for the payment of debts, by reason of irregularities, "the deeds executed by the administrators to S. (the grantee) were invalid ' ', the right of action by the heir ' ' accrued when the administrators sold and conveyed the premises in controversy", and not when the administrators were discharged, though "it does not appear that the estate has ever been fully settled". 20. "This action is barred by either of the statutes of limitation", to- wit: that of "an adverse possession of lands of ten years under claim of title", and that barring such an action "unless it be commenced within five years next after the sale", there having been in this case a lapse of eleven years. — Jones v. Billstein, 28 W. 221, 224. 21. " In a court of general jurisdiction, it is well settled that we should be authorized to presume that due notice of the petition of the adminis- trator for license to sell the real estate, was given to the parties interested, and also to presume the existence of any other jurisdictional fact con- cerning which the record is silent". / 22. "It is only in cases where the record is silent in relation thereto, that the existence of facts is presumed in favor of jurisdiction". See Jurisdiction. 23. "A notice of the time and place of sale must be given, in the manner required. by the statute, or the sale will be void." 24., "The omission of the place of sale therefrom entirely destroys the value of the notice". 25. "Were the records silent on the subject, we might, perhaps, pre- ' sume a legal notice" by virtue of the statute (sec. 3906) placing the matter on a par with a court of general jurisdiction. ■26. On such failure of title "the whole purchase money paid _ by the defendant (purchaser) for the land in controversy, and the_ interest thereon, less the mesne profits of the land (exclusive of the improve- ments placed thereon by him), during his occupancy thereof" for the six years prior to the commencement of the action, "is a lien and charge upon the land", and the heirs "cannot Have restitution of the land claimed by them, until the amount of such lien and charge is paid", p. 192. See Equity. 984 PROBATE AND GENERAL LAW, CODIFIED 27. ''The defendant (purchaser) will also, upon proper chaim^ be entitled to recover for permanent - improvements^ and for the taxes, paid by him upon the land." 28. In this case, as a moving cause for the interference of equity apparently, ' ' the whole of the purchase money was applied to the pay- ment of the mortgage (on the premises), of other debts against the estate, and of the expenses of 1 administration". 29. "It is the policy of this state" to uphold judicial sales though the record be somewhat defective. See Policy of the Law. —Blodgett v. Hitt, 29 W. 169, 178. 30. The records of probate court sale proceedings, "regular on their face, create a presumption of jurisdiction in all respects sufficient to sustain the sale until the contrary was shown," especially under the statute (ch. 127, L. 1861; sec. 3906), "which creates the same pre- sumption in favor of the jurisdiction of the county court", in sale of realty therein, "as prevails ill favor of the jurisdiction of courts of general jurisdiction and of the validity of their proceedings". —Fwrrimgton v. Wilson, 29 W. 383, 398. 31. "The proceeds of the- sale of real estate is realty; and no good . reason is perceived why the rent of mines", "is not also realty". 32. But where such proceeds are to- "be treated as money for all purposes", a disposition thereof is "a' bequest of money" and not a devise. See also Construction of Wilds. —Chandler's Appeal: Est. of McCoy, 34 W. 505, 510. 33. The interest of a life beneficiary "in the lot in controversy is liable to be sold by virtue of an execution issued on a judgment against •. him", though the testator restricted him "from selling the same", but failed to provide "that the estate so devised should terminate in the event of an alienation thereof. Failing so to provide, the rule is stated by "Judge Redfield*', to be, 'that property cannot be given either for life, or absolutely, without the power of alienation being incident to the gift'." —Bridge v. Ward, 35 W. 687, 690. 34. A sale of standing timber "is an interest in the land". —Warner v. Trow, 36 W. 195, 200. 35. "If the court had no power to appoint an administrator de bonis non, or to grant letters of administration with the will annexed", then ' ' it could not grant a valid license of sale. Before a step can be taken towards granting such license, there must he a lawful executor or administrator." 36. "The order of the county court confirming the sale" cannot "be held conclusive of the jurisdiction of the court and of the regularity of SALE OF REALTY -985 all proceedings in the matter prior to such confirmation", where the conditions of the statute (sec. 3919) are not complied with. —Chase v.. Boss, 36 W. 267, 276. 37. In Chase v. Ross, supra, "We held that if any of the conditions specified in ? ' sec. 3919, "are wanting, or do nbt appear by direct proof or legal inference, a sale of land made by an executor,, administrator or guardian .under that chapter, is void, Applied to this ease, one of those conditions is, that the administrator 'gave notice of the time and place of sale as in this chapter prescribed' ". 38. "It must be held that the statute", "requires a publication of the notice of sale for twenty-one days.:, In other words, three weeks must intervene between the first publication and the day of sale." 39. Where the account of the administrator allowed was $1,50Dl00, and, "the land was bid off" by; a third party for that sum and imme- diately conveyed to the administrator^ held he was not ' ' one who pur- chased in good faith", and that such sale was invalid. (See also par. 72, post.) —McCrubb v. Bray, 36 W. 333, 339; 40. On a void sale by. guardian of an insane person, the ward is not estopped from action by reason of a settlement with his guardian after his sanity is established. See Incompetents' Sale op Realty. —Mohr v. Tulip, 40 W. 66,' 80. 41. A parol contract by. the husband is, held valid as. to his interest. See Homestead. , — Goodell v. Blumer, 41 W. 436, 442. 42. The sale of an ''interest in the standing timber; upon certain, ' land", or of an "interest in a contract; of sale of the standing timber" where "the sale proved was by parol, wholly, unexecuted, was equally ~;the sale of an interest in land, and void under the statute of frauds. (Cases) ": —Daniels v. Bailey, 43 W. 566, 569. ' 43. The statute, sec. 3914, ' ' in terms, prohibits executors and adminis- trators making sale of real property to pay debts, from purchasing, directly or indirectly, or being interested in the purchase of, any part of the real estate so sold* and makes all such prohibited sales void. . 44. This statute, in terms, may not be broad enough to include sales by, executors by direction of the will; but the reason and necessity of the prohibition are greater in the latter case than in the former, and it is held that, without such a statute, where the executors are made trustees by the will, with power of sale, they cannot become the purchasers, unless the will expressly authorizes it. 3, Redfield's Law of Wills, 551". —O'Dell v. Bogers, 44 W., 136, 177. 45., The recovery and. sale of realty conveyed by deceased "in fraud of creditors", may be had in an action, in circuit court. See Creditors' Actions. — German Bank v. Leyser, 50 W., 258, 264. i 986 PROBATE AND GENERAL LAW, CODIFIED 46. While want of notice to the incompetent, where a guardian i licensed to sell realty, is not fatal to the proceedings, yet notice t adverse parties in executor's and administrator's sale is vital, to him such parties. See Incompetents' Sale of Realty. — Mohr v. Porter, 51 W. 487, 49E 47. Under the statutes, subds. 2 and 3, sec. 4971, "we have no difficult in holding that the heirs cannot avoid the executors' sale merely becaus the license was obtained on the petition of only two of them, and gav to them authority to make the sale, especially as the executrix (the thiri executor) had refused to take under the will, and joined in making th report of sale, and in giving the deed thereon". 48. The sale was held valid, though minor heirs were not representee (being unharmed) , at the probate, the widow a sole devisee having electei to take under the law. See Jurisdiction. —MeVms v. Pfist&r, 59 W. 186, 19c 49. " It is the clear duty of the executors to exercise their best jude ment, — use their most intelligent efforts to sell the real estate for th best possible price which can be obtained therefor", under the powe in a will, and all must join in the sale. See also Power. —Crowley v. Hicks, 72 W., 539, 54£ 55. A reversion or remainder may "be sold to enable an adminis trator to pay legacies which are a charge upon such interest". Se Legacies. ' — Will of Boot, 81 W., 263, 261 ' 56. The statutory provisions of sec. 3919, cannot "be waived by th guardian so as to bind the ward". See Infants' Sale of Realty. — Weld v. Johnson Mfg. Co., 84 W., 537, 54c 57. A deed and mortgages of realty, executed by the interested parties but not in accordance with the express power of sale in the will, wen on suit of such parties, declared a nullity. See Power. —Goebel v. Thieme, 85 W., 286, 28< 58. In an executor's public sale of mortgaged realty, to one F., wh purchased in fact for the use and benefit of Mrs. M., the widow an one of the executors, in an insolvent estate, and the realty includin a homestead was some months thereafter sold to a third party P. & S —on suit some twenty years thereaf tef, and several years after th youngest heir had become of age, of the heirs to recover, it is held : 59. As to "the words void and voidable", in the statutes, "the wor void is often construed as meaning only voidable. (Cases)." 60. As to the purchase of estate realty by an executor being "void under section 3914, "we think that the word void was used in th statute in the sense of voidable, and that the legal title to the premise SALE OF REALTY 987 passed to F. by the executor's deed, subject to be questioned or im- peached" for fraud as to creditors and heirs. 61. That the subsequent grantees did not have "notice, in fact, of the fraud and illegality " ; / _ 62. That the attorney for the widow, in the first transaction under the license, who acted later as attorney for both parties, could not with- out " a breach of professional confidence, ' ' disclose to or bind such pur- chasers by his knowledge so obtained ; 63. That, therefore, "P. & S. were bona fide purchaser for value without notice of any fraud or illegality in the executor's sale, and thai the claim of title of the plaintiffs cannot prevail. " 64. And that "under the fact and circumstances disclosed, the relief sought by the plaintiffs was properly denied for the reason that they had been guilty of laches in failing to investigate and bring forward their claims within a.reasonable time." (See also as to sale of the home- stead, Melms v. Pabst Brewing Co., 93 W., 140, 146, under Widow.) See also Attorney and Client. Laches. —Melms v. Pabst Brewing Co., 93 W., 153, 164-170. 65. Fraudulent sale- by guardian to a nominal third party, set aside twelve years later. See Incompetents' Sale op Eealty. — Heyl v. Goelz, 97 W., 327, 331. 66. "Mere inadequacy of price has rarely been held sufficient in N itself to justify setting aside a judicial sale. Schroeder v. Young, 161 U. S. 334; (other cases)!'. 67. Where the land was sold on execution sale at $90, and said to have been worth $600, there being nothing "to impugn the good faith of the plaintiffs, their title, if otherwise goodj cannot be attacked on the ground alone that the grantor bid an inadequate price at the sale under which he took title". 68. ' ' The validity of the sale is in no way made dependent upon the proper indexing of the papers filed" in the register of deeds office. —Phillips v. Hylcmd, 102 W. 253, 255. 69. On the facts, where the son of the administrator bid off the premises at a fair valuation, at an administrator's sale, but subse- quently received some of the money to pay therefor from the father, and the administrator also "came into possession of nearly one-half" thereof, and mortgaged some of his own land to pay therefor, it is held that his explanations are not 1 satisfactory, and that he was "directly or indirectly interested in the sale", though no "actual or intentional fraud" was proven. 70. Held, following Melms v. Pabst B. Co., 93 W. supra, that the sale "is not absolutely void, but voidable only at the election of the persons entitled to avoid it". 71. Such sale cannot, however, be set aside in an action of ejectment, hut "must be avoided, if at all, in an action in equity". r 988 PROBATE AND GENERAL LAW, CODIFIED 72. The "point was nowhere raised in" McGrubb v. Bray, 36 "V supra, and ' ' the statute had not then been construed to mean that sue a sale was voidable only, so we do not consider the question as settle in that case". —Gibson v. Gibson, 102 W. 501, 50 73. As to a questioned administrator's sale of realty (see Gibson Gibson, 102 W., supra) , a minor being interested and having within fi> years and over one year subsequent to his becoming of age, and moi than ten years after the occurrence, brought this action to set aside tl sale, being "not the recovery of real property" under section 4218, "bi the cancellation of the administrator's deed" under sec. 4221, the te years statute, the latter applied together with the one year limitatic after majority under sec. 4233, and the action is held barred. 74. And "the suspension of the statute of limitations" because i ■ trusteeship as administrator, by subsequent notorious adverse posse sion, terminated upon his discharge- as administrator. See also Limit tion of Actions. — Gibson v. Gibson, 108 W. 102, 10 75. A will giving an exeutor power to sell realty, it is held, ' ' conf em no power to effectively mortgage this property. Authority to sell do not confer power to mortgage. Minnesota S. Co. v. McCrossen, 110 "N 316- (See Deeds) ". 76. While "in an extreme case a court of general equity jurisdictii may transfer title in order to preserve an estate from destructii (Ruggles v. Tyson, 104 W. 500; See Trust Variation), 77. And "when the holder of title ought to convey and will not, a cou of equity can ' ' pass the title, yet, 78. "Apart from a few such instances as these, however, it is believ that the power of the courts, and especially county' courts, to make co veyances not authorized by owner's must be found in the statutes", 79. And "in settlement of estates, title may be passed to raise mon to pay debts, but only by virtue of ch. 167, stats., and in strict comp ance therewith". 80. Under the statutory proceedings, "the court has not jurisdicti over the parties in interest for the special proceeding merely becai jurisdiction over them has been acquired for the general one. 81. Notwithstanding parties are before the county court for the pi pose of the settlement of the estate, jurisdiction must be again acquii over them by due notice, or the proceedings under ch. 167 will be v< as to such as not notified and do not appear. McGrubb v. Bray, 36 " supra; (other cases) ". 82. And by analogy, "we cannot doubt that the power of the cour court over real-estate titles in the hands of testamentary trustees strictly limited by sec. 4030, and that acts in violation thereof are i only erroneous, but beyond its power, 83. And void as to those over whom personal jurisdiction is not tained by notice or by their appearance or assent". —Bloor v. Smith, 112 W. 340. 3 SALE OF REALTY , 989 ,84. A power to trustees to sell, at the direction of a life tenant, was upheld where the trust otherwise failed under sec. 2081. 85. A sale to such life tenant, with mortgage in part payment tafcen, is upheld. See Power. —McLenegan v: Yeiser, 115 W. 304, 309. 86. "Where an order of license to sell realty for the payment of, debts only, on petition to sell to pay debts and administration expenses, was entered. May 23, 1898, and after appeal therefrom the supreme court directed an order for both purposes, which was thereupon entered by the county court, Jan. 16, 1900, the latter is held the pnly effective license from which the time was to run. *87. And, it is held, that,, under sec, 3889, the county court may exer- cise its discretion, after the expiration of the first year from the date of the license, and "within the two-year limit", to extend the time for sale under the license ; 88. But where the administrator was chargeable with delay of more than six years, and made application for extension more than a year after entry of the valid order of license, and more than three years after the original erroneous order, and more than six months after 1 the dismissal of an injunction against him, 89. And there were then only administration expenses to pay, — he was held guilty of laches and the order was properly refused for that reason. See also Limitations of Actions. —MacJciM v. Habis, 116 W. 528, 531. 90. "A trustee can at best obtain but a voidable title by purchasing the subject of his trust at his own sale. , 91.' Such a proceeding is voidable" "at the election of the cestuis que trustent if they move seasonably, and that is so whether the sale was really injurious to them or not". (Citations) ; Heyl v. Goelz, 97 W. supra. So held in case of a receiver's sale. —Harrigan v. Gilchrist, 121 W. 127, 363. 92. "To render a sale or mortgage of the lands valid within these provisions (for the payment of decedent's debts), there must be a sub- stantial compliance therewith under the direction and authority of the county court. ! ' ! ' n ' 93. In exercising these powers administrators act as the instruments of the law, and they are strictly bound by the special authority vested in them for this purpose. '94.' A transfer of the real estate by an administrator, 1 under thie power and direction of the court, should therefore be viewed in the light of ■ his relation to the property and the objects to be accomplished, and the words of transfer should be given interpretation limited to the occa- sion". ' 95. "We must observe at the outset that this transaction of the ad- ministrator differs widelv from the duties imposed on him by„the law 990 PROBATE AND GENERAL LAW, CODIFIED in the administration of the decedent's personal estate", where he has the title and assumes personal liability. (See Sale of Personalty). 96. "In the disposition of real estate his duties are imposed by law and directed by the court, under the authority of the statute, and can be carried out only in the prescribed manner. 97. He has no interest in or control over the property, except as he executes the mandates of the court to enforce the creditors' claims against the decedent's real estate. 98. These grounds have been held to furnish the distinction between the administrator's liability in his personal and representative capacities in performing his duties as administrator of the estate ' '. ■ 99. As to notes and mortgage given by the administrator pursuant to the statutory proceedings, administration having been concluded, and foreclosure instituted, it is held, — 100. That the notes and mortgage "cover the same transaction and must be construed together"; 101. That the language, "administrator of the estate of B. deceased, acting under an order of the county court", etc., shows "that he acted in his representative and not in his personal capacity", and "gave notice to the purchasers" to that effect; 102. That the mortgagee "and its assigns can only enforce payment out of the proceeds of a sale of this real estate ' ' ; 103. And that the administrator "is not personally liable for the ,amount due on the notes and mortgage". — Wis. Trust Co. v. Chapman, 121 W. 479, 486. 104. "Where an administrator, subsequent to a duly authorized attempt at public sale, sold at private sale lots,' on false representation by dia- gram that such lots were on a sixty-foot street, and the purchaser paid the money which the administrator per arrangement was to pay, and mostly did pay out for mortgages and' taxes thereon, before confirma- tion and before he and the purchaser discovered that such street was but twenty-four feet wide, and the county court thereafter confirmed such sale, the purchaser opposing, — it is held : 105. The purchaser "by the false representations" "was induced to make the purchase. He was entitled to a rescission by reason of such false representations, without proof of actual damage". ( Cases). — Greiling v. Watermolen, 128 "W. 440, 446. 106. Power to mortgage future interests, under power of sale and management. See Power. — Lueft v. Lueft, 129 W, 534, 540. 107. Where a sale of lands under license to pay debts was made on "petition to sell the lands as if no question of homestead was involved, and the sale presumably was made accordingly", the lands including a homestead, it is held that the purchaser obtained no title. —Steinberg v. Saltzman, 130 W. 419, 429. SALE OP REALTY .991 108. "A transfer of real estate in fraud of creditors is not wholly void under see. 2320. The word 'void', as used therein, means void- able". French L. Co. v. Theriault, 107 W. 627. —Eyman v. Landry, 135 W. 598, 600. 109. A valid contract for sale of realty "may be made through the medium of letters". See also Writings. —Curtis L. & L. Co., v. Interior L. Co., 137 W. 341, 345. 110. Where "gross and glaring irregularities were committed in the administration of the estate" "which amounted to constructive if not actual fraud", and the county court's order "to sell the homestead to pay" debts "was a purely lawless proceeding", and there being minors interested, — the administrator's deed, void in its inception, was held to give defendants, parties to the fraud, title to such realty, and the minors to be without remedy, for the reasons, — 111. That the defendants held possession adversely under color of title more than ten years, under sees. 4211 and 4215, which "make.no exceptions in favor of minors" or "eases of fraud"; 112. "Sec. 4218, does not aid the plaintiffs, as no action was com- menced within" 'five years after the disability' ceased on coming of age. (Cases) ; 113. "There can be no doubt that the administrator's deed involved in this ease conveyed color of title. (Cases) ". 114. ' ' This aetion " " might well be governed by see. 3918, which limits the time" on an administrator's sale "to five years after the sale" and "in case of minors" "within five years after they become of age". 115. "No right to an accounting exists" under subd. 7, see. 4222, as the statutes referred to in effect also "vests, title in the defendants. (Cases) . 116. Title by adverse possession under the ten-year statute as well as the twenty-year statute may be acquired although there is no element of good faith in the entry or in securing the deed". —Steinberg v. Salznum, 139 W. 118, 122. 117. While "it is the settled practice of courts of equity to refuse a resale (foreclosure here) for mere inadequacy of consideration" (Mee- han v. Blodgett, 86 W. 511), 118. ' ' It jnust be strictly confined to cases where there is absolutely no fact appearing except that the price is inadequate. 119. Whenever other facts appear, such as mistake, misapprehension, or inadvertence on the part of, interested parties or of intending bid- ders", "the court will readily refuse to approve the sale. 120. No fraud is necessary to justify the court in so withholding its approval ' '. — Griswold v. Barden, 146 W. 35, 37. 992 PROBATE ANDv GENERAL LAW, CODIFIED 121. On appeal from an order reversing "an order of the county court cqnfirming, the sale of real estate by an administrator under license from the latter court ", it is held : ,122. Under sec. 2271, if there be children of a deceased woman, though no minors, the homestead "is not liable for debts in the ordinary sense of the latter term " ; 123. And "it-cannot", under "sec. 3874a, be sold to pay the charges of administration". (Undoubtedly, since the repeal of see. 3874a and amdt. of sec. 3874 by ch. 480 L. 1913, it can now be so sold if there be no widow or minor). 124. Where ' ' it appears in the petition that certain claims had been filed, and in the order for sale that these claims had been filed, and remained unpaid, but it does not appear that they had been allowed at the time the order was made, except certain costs and charges of admin- istration", 125. "We need not and do not decide" "whether sec. 3881 as" to debts 'justly due and owing', "was sufficiently complied with". 126. "The order of Sale was invalid because it did not provide that the entire estate or interest, including the interest of the mortgagee; be sold", as provided by see. 3884, "assuming that" "the homestead was part only of" the premises "the whole of which was subject to a mort- gage", 127. It appearing also that "the mortgagee had no notice of these proceedings except such as might be inferred from publication from an order of hearing". 128. The "order nunc pro tunc after the land had been" "sold, and after objection made to such sale", correcting such defect in the order of sale, "was beyond the prfwer of the county court and invalid". See also Homestead. ^-Milwaukee Trust Co. v. Clark B. Co., 146 W. 230, 236. 129. As to invalidity, laches, good faith, remedies, accounting, etc., on sale of realty by a trustee to himself. See Trustees. —McClear v. Root, 147 W. 60, 63. 130. Evidence of other sales, to show market value, held properly excluded. See Evidence. — O'Day v. Meyers, 147 W. 549, 553. 131. Where an administratrix S. conveyed title to estate realty to E., to be conveyed to herself, and she having paid the consideration and being in "open notorious possession ", for more than ten years, when E. conveyed to plaintiff K. who had notice of such possession and con- troversy, — it is held : 132. That the title be vested in S. ; that though the administratrix sale was "constructively fraudulent" and voidable under sec. 3914, she "committed a wrong in law without moral turpitude in the particular circumstances " ; SALE OF REALTY 993 133. That K. "took title" "with efficient notice" of S.'s possession, - and was "presumed to act with notice of all facts which such situation would suggest, or which could be obtained by diligent inquiry. (Cases) " ; 134. That until such "voidable" sale "be set aside in a proper action, the purchaser is vested with the legal title" until divested in a "proper action brought within a proper time by a person entitled to challenge, efficiently, the validity of the sale. (Cases). 135. The defect in the sale here, even as to a person the statute was designed to protect, was cured before commencement of this litigation by sec. 3918 limiting the operation of sec. 3914, in the circumstances Of .this case, for five years next after the sale. 136. Moreover", "neither E. nor appellant (K.) is within- the saving grace of the law", sec. 3918. While S., to be entitled to equitable relief must "come into such jurisdiction with clean hands", 137. Yet, it is not "literally true" "that a person cannot success- fully appeal to a court of equity unless he, himself, is without fault". , 138. The contention of K."is wholly without equity and, notwith- standing the initial fault, there is a very strong equity in" S.'s favor. 139. There was "in practical effect, a verbal sale (from E. to S.), , void in. its inception under sec. 2304, but after the lapse of time and under the circumstance of part performance, enforceable under general principles of equity jurisprudence and sec. 2305". —KeUly v. Sever son, 149 W. 251, 254. 140. ' ' The purchaser has; not the right to change the place of payment where he attempts to accept an offer, and" "an acceptance of this kind is not an unqualified one such as is necessary to make a binding con- tract to sell real estate by letter. (Cases) ". 141. The owner "had the right to withhold the offer before there was an acceptance of it. (Cases) ". — Cram v. Long, 154 "W., 13, 22. . -I 142. As to meaning of the words "more or less". See Words and Phrases. —Frey v. Etzel, 160 W. 311, 314. 143. "Where the vendor cannot convey title as agreed by the contract of sale the vendee may ,re,fuse further payments of the purchase price and recover the amounts paid thereon " v (Cases). See also Construc- tion op Deeds. ■ — Neff v. Rubin, 161 W. 511, 515. 144. Where a contract for the sale of realty gave the number of acres 'more .or less' and a gross sum to be paid therefor, and it appeared later, and before the deed was given, that there was in fact about eight acres more than named, — it is said: "Applying the law" "in Doctor v. Fureh, 76 W. 153, we' are of the opinion that the sale in the instant ease is a sale in gross"; 145. "That is, it is a sale: of a tract in which, though a supposed quantity by estimation is mentioned in the contract, the reference is Zimmerman — 63 994 PROBATE AND GENERAL LAW, CODIFIED only for the purpose of description and the circumstances are such as 1 show that the parties intended to risk the contingency of quantit; Haekbarth v. Wollner; 88 W. 476." 146. ' ' There is no claim of fraud and the discrepancy is not so gre< as to indicate gross mistake". { —PereUs v. Milwaukee Co., 164 W. 208, 21. See Insane Persons. Authority under seal, 5. By like instrument, 5. Except partners, 5. Certificate of clerk, 4. Not' of judge, 4. Contract not requiring, 7. Seal adds nothing, 7. Corporations : May act without, 9. Except as provided, 9. L. 8. sufficient device, 3. Neglect, with co-signers, 2. Not different instruments, 14. Presumed to adopt, 2. Seal with first, 11. SAftlTY. SEAL. Notes, chose in action, 1. Presumption : Adoption of later signers, 11. Executory instrument, 10. Import's consideration, 10. Import's validity, 8. "Sealed with our seals," etc., 15. Omission of scroll, 16. Several may adopt, same, 12. Warrant of attorney, 6. By a corporation, 8. Not essential to validity, 8. Not extend limitation, 6. Wrong court seal, 13. Allowed corrected, 13. 1.' A sealed note is. a chose in action and may be assigned by par or deed. — Caprington v. Eastman, 1 Pin. 650, 65 2. "When a party" neglects to affix a seal where co-signers do an the instrument purports to be sealed by all, he "is considered to hai adopted the seal of some one of the other signers," he not indicatir an intention not to be so bound. • — Yale v. Flanders, 4 W. 96, 10 3. "The printed letters (1. s.) inclosed in brackets or parenthes in the usual place of a seal, is a sufficient device" "to answer the pu pose of a seal ' '. — Williams v. Starr, 5 W. 534, 54 4. The seal of ascourt must be annexed to the certificate of the clei and not to that of the judge, to entitle the record to admission as e\ dence. — Kirschner v. State, 9 W. 140, 14 5. "Authority to bind another by an instrument under seal, mu itself be created by a like instrument", but partners may give eat other authority even to deed real estate, by parol. — Wilson v. Hunter, 14 W. 683, 68 SEAL 995 6. "A warrant of attorney under seal, given with a promissory note," does not extend the period of limitation to an action on the, note, or authorize judgment on the warrant after the note is barred. —Walrod v. Hanson, 23 W. 393. 7. In a contract not requiring a seal, made under seal by an agent, "the seal adds nothing to it". See Peincipal and Agent. —Lowell v. Eldred, 39 W. 614, 626. 8. As to a power of attorney by a corporation to confess judgment, "the seal would only be presumptive evidence that the execution of the instrument was a corporate act. If it be such in fact, or if the circumstances be such that defendant H. had a right to rely upon it as such, then the absence of the seal makes no difference; the seal was not essential to the validity pf .the- instrument. , (Citations)." 9. "Such bodies (corporations) may now act without a tseal, very much as individuals can, except when otherwise provided by statute or cheir articles of organization", the old strict doctrine being "very much modified. ' ' —Ford v. Hill, 92 W., 188, 198; 10. A bill of sale being under seal, held to import validity as to con- sideration. "A seal even upon an executory instrument, is presumptive evidence of a sufficient consideration. Sec. 4195 ; Warder v. Baker, 54 W., 62." , ;, —Carey v. Dyer, 97 W., 554, 559. 11. Where on an assignee's bond, "there: was but one seal or scroll, and that was opposite the signature of the assignee, H., the .first on the list", there being* ninety -five sureties, the bond was sustained. 12. "It is, undoubtedly, the law that two. or more persons may adopt a single seal, (pases). This is not in conflict with Yale v. Flanders, 4 W. supra". — Rollins v. Humphrey, 98 W. 66, 71. 13. A seal of the wrong court, after proceedings thereunder was allowed to be corrected as if originally so affixed. See Nunc Peo Tunc. — Dwelaw v. Blue Mound I. Co., 110 W., 470, 473 14. Where the contract was under seal, a written guaranty not under seal, "though indorsed upon the back of the contract", "was never- theless a separate and independent contract", is' not governed by ith'e seal and, six years having elapsed, "is barred by the statute of limita- tions. Subd. 3, see. 4222". —Spencer v. Holman, 113 W., 340, 345. 15. Where "a bond contains a penal clause with a defeasance, and also the following: 'Sealed with our seals and dated, etc.'," "this must be considered a sealed instrument. ''■''' 16. The mere omission of a scroll- or flourish after the names of the 996 PROBATE AND GENERAL LAW, CODIFIED signers" "cannot outweigh the consideration that" "it is expressly- stated to be sealed with the seals of the signers". —Oconto Go. v. MacAllister, 155 W., 286, 295. SERVICE. See also Jurisdiction. Notice. Publication. Amend return: Amend, even after judgment, 26. By private, person serving, 18. As an officer might, 18. , Not after filing, without leave, 19. Better also^ after notice, 20. Notice or leave; not always, 21. Appeal general, reversed, 17. ' ' ; Pact of service, not proof,; 24. Proof may be faulty, 25. Amend; after judgment, 26. Insane, not judicially, 5. Mailing : "Double the time required," 6, Acts to be done, 6: Notice of appeal, 8. ■ Not of acts done, 6, 7. Minors : , Additional copies to parent, 9. Failure of jurisdiction',, 10. ., ,, ■ ;, Subsequent guardian, ineffective,, 10. Officer's return must prevail, 29. Denial by interested party, 30. Officer's evidence supports, 31. ' Official certificate, evidence, 22. Not others, though by officer, 23. Personal; actual delivery, 3. Defined ' specifically, 14. Must be within the state, 16. Appeal general; reversed, 17. . Proof must so state, 16. Privileged from service, 28. Attendance at court, 28. Prom another state, 28. > Witness or party, 28. Proof: Clerk's filing mark, proof, 15. Defective affidavit, 11. 1 Condition precedent, 12. Jurisdictional, 11; Failure to state, time, 13. jurat date presumed, 13. Piled after many years, 27. After judgment, 27. •• Neglect in filing, 4, 27. , Nunc pro tunc, 4, 27. Personal, within,, state, 16. Sheriff's return, conclusive, 1. Solicitor : Before notice of change, 2. 1. "The rule of law is, that as between parties and privies, the sheriff's return, made to returnable process, is not only competent, but generally- conclusive evidence. ' ' — Enowlfon v. Ray, 4 W. 288, , 291. 2. Service upon the solicitor of record, before being notified of his disconnection with the case, is "entirely, sufficient". — Boyd v. Stone, 5 W. 240. 3. Personal service means "actual delivery" to the person. —Moyer v. Cook, 12 W. 335, 337. 4. Proof of service not filed "through inadvertence", may be filed after judgment nunc pr6 tunc. See Nunc Pro Tunc. —Sueterlee v. Sir, 25 W. 357, 358. SERVICE 997 5. Service of summons upon "a person insane in fact, although not -judicially "declared to be insane", is valid. —Gerster v. HUbert, 38 W. 609, 612. 6. The provision of the statute for service by mail allowing "double the time required", "appears to limit service by mail to papers relat- ing to acts to be done in the future, and to exclude notices of acts done. 7. When a statute or rule requires notice of an act done to be given within a time limited there is no time of service to be doubled ; and the provision of the sections (sees. 2821, 2822) "in question is wholly inap- plicable". 8. So held as to mailing of notice of appeal "on the clerk and the party, within the time limited for appealing". —Stevens v. Wheeler, 43 W. 91, 92. 9. Under that statute (subd. 1, see. 2636) requiring service of sum- mons on a minor under fourteen, by delivery ' ' to such minor personally, and also to his" parent, guardian, etc., it is held that delivery of a copy each to the mother and two such minors, where the three were defend- ants, was insufficient as to the minors without delivery of additional copies to the parent for the infants. 10. ' ' The court having failed to acquire jurisdiction by proper service on the infants, the subsequent appointment of guardian ad litem was clearly irregular, and did not aid or cure such want of jurisdiction. Foster v. Hammond, 37 W. 185." — Helms "v. Chadboume, 45 W. 60, 69. 11. Where the affidavit of service "fails to state that a copy of the summons was left with the defendant", "the circuit court had no juris- diction to render the judgment appealed -from, because" the service was not such as the statute requires. Sub. 2, Sec. 2642 ; Matteson v. Smith, 37 W. 333. 12. "Proof of service of the summons is a condition precedent or prerequisite to the rendition of a judgment by default". — Hall v. Graham, 49 W. 553, 554. 13. Where the affidavit of service omits to state the time of service and "the jurat shows the date of signing and swearing to the affidavit, which was several months before the judgment was rendered, the jurat must be read with the body of the affidavit", and "we think the legal presumption is that the serviee was made on the day the jurat bears date". — Reed v. Catlin, 49 W. 686, 689. 14. "Personal service is defined to be the 'delivery of an original writ, notice, or other paper, or a copy thereof, with oral information as to the contents, to the person who is to be affected by the service'. 998 PROBATE AND GENERAL LAW, CODIFIED Anderson, Law Diet. ;> Personal Service. Black Law Diet., is to the same effect ' '. ' —Mmard v. Burtis. 83 W., 267, 270. 15. The clerk's filing mark on a notice of appeal, it is held, "suffi- ciently proves the service " upon him. See also Appeal. —Will of Madden, 104 W. 61, 64. 16. "Personal service, in order to give jurisdiction, must be made within the state of Wisconsin, and the fact that service was so made is an essential element of the proof of service required for the entry of judgments by default by sec. 2891. Sayles v. Davis, 20 W. 302 ; Weis v. Sehoerner, 53 W. 72." 17. A judgment so taken by default, with failure of jurisdiction for want of proof of proper service, will be reversed, though the appeal is a general one from the whole judgment. —Zimmerman y. Gevdes, 106 W. 608, 609. 18. Where the service is legally made by a private person, the statute "by necessary implication gives such person authority to amend" a defective return- "to the, same extent as an officer might under the same circumstances". 19. "The general rule" is "that after the papers have been filed it (the return) cannot be amended except upon leave of court, 20. And the better practice is only upon leaye granted after" notice to the adverse party. 21. However, it as indicated, notice is not essential, nor, necessarily, in all cases, leave of court. —First Natl. Bank v. Kramer, 126 W. 436, 438. ' 22. "An official certificate is evidence only by virtue of the statute." "The notice in question (of sub-contractor's lien) is in no sense process. It issues from no courts but is wholly inter partes. (Case) ". • 23. ' ' There is no evidentiary f oipee whatever to the so-called return or certificate signed by the deputy sheriff", of inability to find the person for such service. —Ponti v. Eckels, 129 W.*26, 29. 24. "This court has recently held that it is the fact of service and not the mere proof of it that gives the court jurisdiction. Schmidt v. Stolowski, 126 W. 55. In that case it was expressly held: 25. ' If the summons was in fact served upon the defendants the court has jurisdiction, although the proof of service be faulty; 26. And in such a case the court may, even after, judgment, permit the record to be amended so as to show the service actually made'. See Est. of Newman, 75 Cal. 213. 27. So the mere fact that such affidavit showing the mailing and posting of ! copies of the summons and complaint, as required by the statute, was not on file June 21, 1890, did not deprive the court of SERVICES 999 jurisdiction to order judgment in the divorce action Sept. 6, 1890", though it appears that the proof of service was not in fact filed until May 19, 1904. See also Nunc Eeo Tunc. —Zdhorka v. Geith, 129 W. 498, 504. 28. "A witness or a party from another state necessarily present and in attendance upon a court within this state and present for such pur- pose only, is privileged from the service of a summons while so neces- sarily within the state. (Many cases) ". —Rixv, Sprague, C. M. Co., 157 W. 572, 575. i 29. "The rule" is "that an officer's return of service must prevail until shown to be false by the most clear and satisfactory evidence, < 30. And that, ordinarily, the mere denial of service by the interested party is not sufficient therefor, 31. Especially so when the return is supported by the officer's evi- dence, as in this case". Service upheld. —Arapahoe S. B. v. Houscr, 162 "W. 80, 86. SERVICES. See also Bond for Maintenance. Consideration. Entire Con- tracts. Master and -Servant. Quantum Meruit. Absent during period, 36. Accepts, avails himself of, 30. Adoption, parent and child, 24, 99. Unofficially, receiving, 26. After period, expiration, 35. Board, no relation, 111. Implied contract, 112. Certain rate per year, 11. Child after at age: At intervals many years, 162. New contract, past, future, 163. Conveyance, not voluntary, 33. Must prove express contract, 57. No promise implied, 19, 39, 56. Not unless understanding, 4. See also Family relation' rules. Stepson, same rule applied, 110.. Understanding, not gratuitous, 2, 23. Conversion : , Defense to a claim, 151. Demurrer 1 , proper objection, 155., Otherwise waived, 155. Executors maintain action, 152. Waive tort; implied contract, 153. Executors same remedies, 154. Title tried in action for, 154. Conveyance: not voluntary, 33. Part, and part cash, 43. Custom to pay for, 47. Declarations of payment by, 93. Domicil separate, weaker, 72. Employed by the month, 37. Interest allowances, 38. , Six year bar, 37. Evidence: See also Family relations. Performance and value, 145. ' By claimant, 145. Sufficient competent, 142. , Incompetent immaterial, 142. Family .relations, rules : Adopted unofficially, 24, 26, 100. Agreement or understanding, 18. , , Arrangement or contract, 17. Aunt and nephew, same rule, 71. Brothers; separate houses, 105, 108. Estate not show negative, 14. Evidence : Circumstantial, as direct, 23, 27, 29, 40, 57, 64, 97. Short of positive proof, 23. Circumstantial, conclusive, 74, 120. Devise realty and personalty, 77. Evidence sufficient, 76. , Clear, direct, positive, 16, 21, 27, 57. Declarations of deceased, 97, 121, 138. 1000 PROBATE AND GENERAL LAW, CODIFIED Family relations, etc. — continued Evidence — continued Drawn out as cross-examination, 65, 98. Expectation to receive, and pay, 28, 75. Intervals; past and future, 162, 163. Oral conversation of girl, 162. Legacy, definite sum promise, 164. ' Evidence of; not conclusive, 171. Long after the'service, 164. Recovery quantum meruit, 164. Not inferred, circumstances, 21. Payment, defense ^matter, 139. Eemote relatives; weaker, 72. Short of express contract, 73. Eeserving house for him, 130. Going to give it to him, 131. Surrounding circumstances, 98, 121. That complaint was true, 65. True value inquiry, 172. Unsatisfactory affirmed, 122. Border line conjecture, 124. Following trial court, 123. Vague, doubtful, ambiguous, 29. Void contract, rebutting, 69, 80, 102. Warrant express contract, 22, 25, 40, 57. Express contract to pay, 22, 23, 27, 40, 57, 110. Guest hospitality, 106, 107. Intervals; new contract, 162. Past and future work, 163. Mother-in-law, separate house, 108. Services Versus support, 109. Minority question, immaterial, 62. Niece as housekeeper, 96. No promise implied, 19. Not relative; family relation, 85, 127, 128. Legacy proof failed, 86. Prayer amended therefor, 87. Quantum meruit, 86. Other near relatives, 15. Parent and child relation, 4, 15. Parent's services for child, 59. Clear case to be made, 59. Same rule applies, 60. Payable at death, 125. Services ceased before, 125. Presumed rendered gratuitously, 20. Presumption, no payment, 15. Bate or time, not agreed on, 41, 58, 138. Quantum meruit, 42, 58. , Eemote relatives; weaker, 72. Eule again stated; expectation, 173. Family relations,, etc. — continued Eule "well summarized," 91, 92, 128, 129. Son-in-law, at intervals, 89. Intervals, immaterial, 90. See also Void contract. Step-daughter, same rule, 63, 64. Step-son, after age; same rule, 110. Strangers; family relationship, 61, 127. Guest hospitality, 106, 108. Husband's claim against wife, 174. Different after marriage, 177, 178. Stronger evidence, 178. Express contract, 175, 176. Not quantum meruit, 176. Inconsistent claims, 178. Settlement made, 175. Husband for wife's support, 150. On neither express or implied, 150. Implied promise to pay, 45. Eule against stated as to, 173. See also Family relation rules. Inconsistent claims, 178. Limitation statute: Barred by quitting service, 103. Considered, though not pleadedy 165. Implied contract, servant, 1-16. Accrues at completion, 116. Demand not necessary, 117. Legacy, oral, later promise, 166. Begin to run, before promise, 169. Not new contract, 166. Seasonable value only, 170; Substitutionary only, 166. Not necessary to plead, 104. Payment at decease, 10, 81, 125, 151. At or before decease, 151. Service terminates before, 115, 116, 125, 136. Services until decease, 82, 132. Void contract; accrues when, 135. Six years before death, 136. Lost days during term, 35. Negligent and unskillful, 13, 34. Contract not performed, 34. Hired by the day, 44. Present and looks on, 44. Officer of corporation, 95. Orphan infant: Not in loco parentis, 3. Quantum meruit, 3. Payment: affirmative defense, 146. Counterclaim ; personalty conversion, 151. "Deceased deemed reasonable," 147. Died without fixing, 147. SERVICES 1001 Payment — continued > < Ordinarily must be pleaded, 159. Court rule provision, 161. Not county court claim, 160. : Value of realty transferred, 158. Not pleaded in answer, 159. Nevertheless held available, 160. Pleadings : Amendment at trial, 87. As to payment at death, 126. For alternative prayer, 87. Counterclaim of conversion, 151. Answer shows. the facts, 152. Demurrer,, proper objection, 155. -Payment, ordinarily pleaded, 159. Court rule, unnecessary, 161. Not county court claim, 160. Value of realty, conveyed, 158. Presentation of bill for, 31, 32. Promise : Past work and for future, 163. Subsequent promise, 8, 163. Whether before or after, 7. Quantum meruit, when not, 176. Received back after absence, 36. Ee-referenee, upheld, 140, 141. Several liable for support, 119. Skill, general reputation, 51. Special instance, request, 143. Performance and value, 144. Quantum meruit, 143. ; Strangers; family relationship, 61. Testamentary promise: Cause accrues at death, 10, 81. Legacy oral, promise after, 164. Stated sum; quantum meruit, 170. ' Evidence of; not conclusive, 171. Substitutionary, promise, 166. True value inquiry; interest, 172. Valid consideration, enforcible, 167. Past services, stranger, good, 168. None in fact made, 5, 9, 86, 96, 99. Not barred by statute, 10, ' 81. Oral; as to personalty, valid, 88. I* Recovery quantum meruit, 6, 69, 79, V ; 86, 96. See also Family relation rules: Testamentary, etc. — continued ' fettled by payment, 94. Told that provision made, 6. Void, realty and personalty, 66, 101, 114. Indivisible, whole facts, 67, 78, 101. Value of: . Experts, advisory only, '84. Not bound to credit testimony, 83. Though uncontradicted, 83. Not by particular cases, 1. ' Presentation of bill for, 32. "Prevailing wages," not conclusive, 156. Court scale within figures, 156, 157. Prove by customary rule, 1. Stated sum is evidence of, 171. ■ Not at all conclusive, 171. Third person, similar, 46. True value inquiry; interest, 172. Void contract: As though no express, 55. Convey realty, oral void, 70. Not permitted to perform, 70. Devise realty and personalty, 66, 78, , 96, 113. Indivisible, whole fails, 67, 78. Performance not sufficient, 68. Gratuity, rebutted by, 69, 80,, 102. Implied promise, to pay, 55. Indefinite of duration, 149. , Not admissible for value, 50. Not extend payment time,. 103. Partial performance of, 118. "Property left," realty and personal, 113. Eemoves presumption, 132, 148. Leaves implied contract, 132. Express contract first, 133. Not by strangers, 134. Verbal, not within year, 48, 53. Quantum meruit, 49, 50, 54. Weekly payments in full, 52. Work by the day, 12. Deduction for defect, 13. Ordinary care and skill, 12. I 1. The value of services is proved by the customary rule, and not by particular cases. See Evidence. — Pfeil v. Kemper, 3 "W. 315, 317. '2. The services of a child after arriving of age, might be recovered for, on an understanding that the services were 'not to be gratuitous, and the ordinary relation of parent and child not existing, without an express contract. (See also par. 23, post). —Fisher v. Fisher, 5 W. 472, 474. 1002 PROBATE AND GENERAL LAW, CODIFIED 3. An i orphan infant "not standing in loco parentis" may without an agreement, recover quantum meruit for services, i See also Infants. —Mountain v. Fisher, 22 W. 93, 97. 4,. A son working for the father after arriving at age is not entitled to compensation, there being no prior "arrangement or understanding" to that effect. See Parent and Child. — Eaye v. Crawford, 22 W., 320, 322. 5. "In law the claimant is entitled to recover of the estate enough to make up what his services were reasonably worth, provided they were rendered upon an understanding that they were to be compensated, in part at least, by a testamentary provision, no such provision having in fact been made". 6. Proof that the employe after leaving, was induced ' ' to come back ' ' on representation that "it should all be right, and that he had remem- bered him in his will", and claimant "thereupon remained in the service as long as the deceased continued the business", was held suffi- cient to allow recovery on quantum meruit, no testamentary provision having been made. — Bayliss v. Est. of Pricture, 24 W. 651, 652. 7. "Past services are a sufficient consideration to support a promise to pay for them. It is immaterial whether the promise be made before or after the services". > 8. "The subsequent promise to pay implies that the services were rendered upon previous request". 9. "Services rendered under promise of compensation by will, create a good claim against the estate, if no will be made", and such agree- ments "are not within the statute of frauds'" 10. Such a claim is not "barred by the statute oE limitations", as "the day of payment did not arrive until the death of the testatrix (promisor), and no cause of action occurred until that time, and until it appeared that she had failed to . make the testamentary provision agreed 'upon". —Jilson v. Gilbert, 26 W. 637, 641. 11. An agreement to compensate future services at a certain rate per year, is not of itself a hiring for a year or any definite time. —Prentis v. Ledyard, 28 W. 131, 133. 12. ''Where a man works by the,day, he is required to exercise ordi- nary care and skill, and to do his work in an ordinary, fair, workman- like manner, and, 13. If he does not, he cannot recover as wages the value of work properly done, hut the employer is entitled to a deduction for any defect in the labor, or in the manner of its performance". —Eaton v. 'Woolly, 28 W. 628, 630. SERVICES T 1003. ' 14. In a claim by a relative for services, "the rule of law is not that the administrator or representative must establish a negative in order to' defeat the claim". 15. "The relation, existing between the parties, as parent and child, step parent and step child, brother and sister, and the like, is itself strong negative proof, and raises a presumption that no payment or compensation was to be made beyond that received by claimant at the time, which can only be overcome by clear and unequivocal proof to the contrary". , 16. "The evidence must be clear, direct and positive that the relation between the parties was not the ordinary one of parent and child, or of brother and sister, (as here disallowed), but that of debtor and -creditor or of master and servant ". ..■,..! 17. "To establish this new relation, it is obvious that some arrange- ment or contract to. that effect must be shown. No man is to be made debtor without his knowledge or assent, or under circumstances where he has no reason to expect that such is his position or liability".' 18. "The party seeking to recover compensation for services rendered under such circumstances must show ah 'agreement or understanding that they were to be paid for '. ' ' Per Dixon, 0. J. —Hall v. Finch, Adam., 29 W. 278, 286. 19. Where the relation of father and son exists, "it is well settled that the law will imply no promise on the part of the father to pay for the services of the son rendered by the latter after he arrives at age". ' 20. "The presumption' is that the child renders the services gratui- -tously, or in consideration of having a home with his father,' -of being furnished with board and clothing, and of receiving care and atten- tion in case of sickness". 21. The "rule is, that the evidence of a contract to compensate the services of a child must be positive and direct, and the contract cannot : be inferred from circumstances and probabilities". 22. It is held in this case that "there should be evidence which would warrant a jury in finding that there was an express contract or agree- ment to that effect". 23. And it is stated in an additional concurring opinion, by Dixon; C: J., that, "an express contract to pay, or the relation of master and servant, may be as fairly and incontrovertibly established by circum- stantial evidence as by that which is direct. It was held in Fisher v. Fisher, 5 "W. supra, that where a son continued to reside with and' labor for his father, after arriving at the age of majority,, there might, be circumstances, short of direct and positive proof of an express promise on the part of the father, entitling the son to recover for such services": ■ —Felloffe v. Pellage, 32 W. 136, 142. 1004 PROBATE AND GENERAL LAW, CODIFIED 24. "The adoption of an infant into a family as a child implies no contract to pay for its services to the family ; and an infant so adopted (unofficially in this case) can recover for such services against the head of the family only upon express contract". 25. "The rule of evidence by which such express contract between parent and child, by blood or by adoption, must be established, is laid down in Pellage v. Pellage, 32 W. supra." 26. The mere receiving of such child into the family "implied no eon- tract to pay her wages for any services", and if the circumstances indicated "that she was so received in the relation of a child, the law excludes an implied contract to pay her wages for her .services". 27. But "she could recover upon an express contract to pay her, which might be established by direct and positive evidence or by circum- stantial evidence equivalent to direct and positive". 28. "And mere expectation on his part (the testator's) to pay and on her part to receive wages, would not .constitute an express contract, unless by mutual expression of the expectation it became consensual". 29. "And, though the express contract required by the rule may be established by circumstantial evidence, vague, doubtful, ambiguous cir- cumstances are insufficient for that purpose; but only' such circum- stances, clearly proved, as are equivalent to direct and positive proof. Pellage v. Pellage." —Tyler v. Burrmgton, 39 W. 376, 380. - 30. "If one accepts or knowingly avails himself of the benefit of services done for him without his authority or request, he shall be held to pay for them". ' —Wheeler v. Hall, 41 W. 447, 451. As to step-son after at age. (See par. 110 post). — Wells v. Perkins, 43 W. 160, 163. 31. "The defendant having denied all liability for the plaintiff's claim and refused to pay any part of it, he was not called upon to dispute the correctness of the bill presented, as to the amount of the claim, ' ' 32. And, "we think the learned judge erred in holding that the evi- dence given in this case as to the presentation of the bill for services tended to establish the value of such services. ' ' — Hinton v. Coleman, 45 W. 165, 171. 33. "Within the rule of Tyler v. Burrington, 39 W. supra, and the cases there cited, if an express agreement to pay wages was made," by a father with his son after arriving at age, a conveyance of real estate in payment thereof ' ' is not a mere voluntary one, ' ' but is supported by "an adequate and valuable consideration," valid as against creditors. —Manseau v. Mueller, 45 W. 430, 434. SERVICES • 1005 34. Where the "plaintiff was negligent and unskillful" and "had not fully performed his contract of employment", he "would be entitled to-recover what his services were reasonably, worth, so long as the appel- lant allowed him to continue in his employment", the action being "brought in the quantum meruit". —MioCormick v. Ketchwm, 48 W. 643, 646. 35. "A party contracting to labor for a limited period cannot be required, after the expiration of the period, to render additional services under such contract, without any new agreement, merely because he had lost certain days during the term". 36. "It is certainly equitable, and, we think, according to well estab- lished principles of law, to hold that* when an employe for a fixed period, without any fault of his employer, absents himself for a short time, and then the employer, with knowledge of the fact, receives him 'back into his service without objection, and retains him until the termi- nation of the contract, he thereby waives the right to declare the contract forfeited as to the services actually rendered", i — Bast v., Byrne, 51 W. 531, 535; 37. "Where a person employed by the month is entitled to his wages at the end of each month, but fails to collect the same, and continues such services by the month for more than six years, the statute of limitations is a .good bar to so much as accrued more than six years prior to a suit therefor". 38. In this case the major portion was collected for each month and recovery for. each monthly balance with "interest on such balances as they, accrued from time to time ' ', was allowed, the ' ' monthly balances, being readily ascertainable by computation". —Butler v. Kirby, 53 W. 188, 192. 39. "There is no implied contract on the part of a father to pay wages to his child who remains with him and renders him services after becoming of age. 40. To recover, in such a case, the child must show' an express .con- tract by the ^father to pay such wages, either by direct and positive evidence of the fact, or by circumstantial evidence equivalent to direct and positive. Tyler v. Burrington, 39 W. supra, and cases cited ; Wells v. Perkins, 43 W. 160". 41. "But it is not essential that the rate, of wages or the time of payment be agreed upon. 42. If 'there "is an express contract in such cases to pay for the services, the child thereby becomes the servant oi his father in respect to such' services, and may recover quantum meruit. This is the doctrine of Wells v! Perkins, supra; also of Manseau v. Mueller, 45 W, supra". 43. In a conveyance of realty for part cash, and in part of such services where the son has no actual knowledge of a judgment against 1006 PROBATE AND- GENERAL LAW, CODIFIED such lands which had ceased to be a lien thereon, it is said, "we do not think the defendant (son) chargeable with constructive notice" of such unpaid judgment, and that he took "his conveyance in good faith and without knowledge of any indebtedness owing by his father", as to such judgment. — -Byrnes v. Clark, 57 W. 13, 21. 44. If an employer ' ' hires a man or a machine by the day, at a stipu- lated per diem", indefinitely, "is present and sees for himself the quality of the work performed, he must pay the stipulated wages so long as he voluntarily continues the employment", and. cannot ''recoup for damages", on account ,of bad work. *.' ' ' f I . i —Starke v. Crilley, 59 W. 203, 204. 45: "In the absence of an agreement or understanding that the serv- ices were to be rendered without' compensation, the law would imply a promise" '"to pay what they were reasonably worth." 46. : Evidence what a third person ' ' had been paid for ' ' similar serv- - ices rendered, "had no relevancy whatever; 47. Nor would the fact, if shown, 'that it was the custom to pay for such, services, and to prove or disprove the issue", as to whether "the services were gratuitously rendered". — Kelly v. Houghton, 59 W. 400, 401. 48. A contract for services which ''was a verbal' agreement, and by its terms was not to be performed within one year from the making thereof", "was void under the statutes of frauds". 49. "Where a person renders services under a contract which is void, he' can recover upon quantum meruit the value of such services. (Many cases) ". !■■'•' ' ' ■ 50. The void contract "is not admissible in evidence to determine the value of the services, but the servant recovers what he can show his services Were reasonably worth." i ,' !f ' '• ■ 51. -Evidence of "general reputation",' is "incompetent to establish ' the fact of skill". 52.- Where "weekly payments were intended by the parties when made to be ' in full compensation for the services rendered ". " there can be no further recovery for services which have thus been paid for". ;l —Cohen v. Stein, 61 W. 508. '53: Where there was a verbal contract for services for more than a year, it is said: "The statute making the parol contract absolutely void,, it furnishes no ground of action in favor of the plaintiff, nor can it be used by the defendants as a basis upon which to found a defense. ' ' 54. "This court long ago repudiated the rule", of some other courts, as to a void contract, that '"if a party enters upon a performance of it, be cannot recover for the value of his labor done under it, unless he performs the whole of the void contract on his part . ■■ SERVICES 100.7 55. "In such ease the parties must stand as though no express eon- tract was made, and the plaintiff may recover upon quantum' meruit lor the work done upon an implied promise of the defendants to' pay what the services are reasonably worth. " > ■ r ■ ■ — Sail v. Campbell, 65 W. 405, 408. i 56. "Where a daughter continues to work for her father after becom- ing of age, such facts "raise no implied promise to compensate her therefor. 57. Before she can recover compensation for her services she must prove an express contract by her father to pay such compensation", "by positive and direct evidence, or by circumstantial evidence, equiva- lent thereto". "Tyler v. Burrington, 39 W. and other cases, supra. 58. In this case a verdict was upheld upon evidence that when she "became of age she proposed to leave, her father,' but remained ,in his service upon his assurance, repeated many times thereafter, that' she should be well paid for her services". —Geary vl Geary, 67 W. 248, 249'. 59. "It seems to us that a father and mother livijig in the family of a son, having all the necessary wants supplied by the son as members of his family, the father being of the age of seventy-seven years when he commenced so living, and living with him until he was about eighty- two years old, ought to make put a pretty clear case of an agreement on the part' of the son to pay him wages for his services, when. he seeks to charge the estate of such son with a claim for such services after his death". (Many cases, supra). 60. "Most of the cases cited are cases where the son or daughter claims for services rendered for the father, but the same rule applies where the father claims for services rendered for the son under similar circumstances. See Leary v. Leary, 68 W. 662', 671, and Harris y. furrier, 44 Vt. 468". —Bostwick v. Est. of Bostwick, 71 W. 273, 275. 61. "If the principle can ever be extended to, embrace strangers,; or those not of kindred relationship, as members of the same family, which maybe doubtful, most certainly there should be such circumstances of family relationship as would imply that the, plaintiff's services should be ^gratuitous." Orton, J. 62. "Minority has nothing to do with the question as to whether kindred of the same family can recover compensation of each other for < personal services. The same obligation to render to each other gratuitous! services continues beyond minority." But the "question of gratuitous service", "is not in this case." —McMillan y. Page, 71 W. 655, 1 661. 63. " Undoubtedly the claimant, E., being, the stepdaughter of the, deceased, G., and a member of his family, cannot recover against his 1008 PROBATE AND GENERAL LAW, CODIFIED testate for ber services without proving an express promise Or agree- ment on his part to pay her therefor. 64. And such promise or agreement must be established by direct and positive evidence, or by circumstantial evidence equivalent thereto. ' ' 65. "On her cross-examination, in answer to a question by counsel for administrator, she (claimant) testified that she had read the state- ment of her claim in .the complaint and that the same is true. This is direct and positive evidence of the alleged express agreement, and is not controverted directly". 66. An oral agreement to devise both real and personal estate is "within the statute of frauds. Sec. 2304. The fact that it included personal as well as real estate does not- take it out of the statute, even as to such personal estate. 67. Such a contract is indivisible, and, failing in part, the whole fails. It was so held in Clark v. Davidson, 53 W. 317. Such is doubt- less the law", (Followed in Dixon v. Sheridan, 125 W. 60, 64.) 68. Performance on the part of the claimant, "is not alone suffi- cient to take the agreement out of the statute of frauds. This is well settled." But "had the deceased put her in possession under the otherwise void agreement, it is probable that we should have a proper case for specific performance, but he did not do so." 69. Held, in this case, "that the presumption of gratuitous service may be rebutted by proof of an express promise or agreement to re- munerate therefor, which by reason -of some provision contained in it is void as a, contract", and claimant's recovery on quantumv meruit was sustained. ' — Ellis v. Gary, 74 W. 176, 183, 70. Under a void oral contract to pay for services by a conveyance of land, though the defendant offers and is desirous" to convey pursuant to the agreement, sUch performance is held not permissible, but the plaintiff is allowed to recover quantum meruit. See also Quantum Meruit. —Koch v. Williams, 82 W., 186, 191. 71. While "the relation of aunt and nephew seems to be within the rule" which "rebuts the presumption which would exist in other cases that compensation was intended", 72. Yet "as between remote relatives, at least, there is great reason for holding that the presumption that the services were intended to be gratuitous is relatively weakened, especially if, as here, the parties had not previously been domiciled together. Quigly v. Harold, 22 111. App. 269. 73. And the more liberal rule may perhaps be applied where the evidence is such as to rebut the presumption arising from the relation- ship and mutual intercourse between the parties that the services were to be gratuitous, by evidence falling short of an express contract". 74. "The relation of master and servant, or an express contract to SERVICES ' 1009 compensate a relative for services rendered, may be established as fairly and fully by circumstantial evidence as by that which is direct. 1 75. 'Proof of expectation on the' one -hand to render compensation, and on the other to receive it, is competent evidence, in connection with the facts and circumstances of the case, to give color to them, tending to show that such expectations ripen into >a mutual understanding,— an express contract'. (Cases supra) ". (Approvingly quoted in Marx v. Marx;' 132 'W. post). : i 76. Having been sent for from abroad, and serving nine years, the punt's declarations, "at various times, that 'what she had was to be* his;' that 'when she got done with all she had, then it was to go to' " him, and similar statements, and "that she was going to give him her property", and the like, is, with other facts and circumstances held — '77. To establish an agreement, " to convey or devise and bequeath her real and personal property as compensation" for the* services rendered. 78. Such agreement was "clearly within the statute of frauds (sec. 2304) as to the real estate, and; the contract being invisible and fail- ing in part, the whole agreement therefore fails;, 79. But the respondent may recover for his services rendered under such promise- or agreement what they may be shown to. have been reasonably worth, 80. And such void promise or agreement cannot be set up as a defense to the claim, but it may be" shown in evidence to reout the presump- tion that the services in question were rendered gratuitously. Ellis v. Cary, 74 *W. supra ; Freeman v. Foss, 145 Mass. 361 ; Wallace v. Long, 105 Ind. 522; Schwab v. Pierro, 43 Minn. 520". 81. "The cause of action' quantum meruit did not accrue until the death of the intestate", and "filing his claim against the estate", is held , a sufficient demand, and the claim is held not within the six year limita- tion statute. Tucker y. Grover, 60 W. 240, 82. . (In Taylor v. Thieman, 132 W. post, where the statute was held a bar, it is said that this decision is 'not in conflict, because here "the services were continued up to the time of the death of the promisor")'. —Est. of Kessler, 87 W. 660, 664. ,83. As to value, of services, found at less than testified to, it is said: "The jury was not bound; as a matter of law, to credit the testimony of a witness so, interested (being the party), given on his own behalf, even when uncontradicted by any other witness. Elwood v. W. U. Tel. Co., 45 N.,Y. 549; Kearney v. New York, 92 N. Y. 617", 84. "Nor were the opinions of experts on the value, of the services conclusive upon the jury. Sueh opinions are advisory only. The jurors must, in the end, use their 'own judgment in determining the value of the services, guided by the evidence and assisted by the opinions of the experts". • —Moore v. Ellis, 89 W. 10,8, 111. .Zimmerman — 64 "' i'"'f • ' " 7< '.'.•■■' 1010 PROBATE AND GENERAL LAW, CODIFIED 85. Claimant, not being related, coming ,into tne family 'as a boy and receiving board, clothing, and a little schooling, and then remained and worked for the widow, on her promise in consideration of his services during her life, she would, at her death pay and compensate him therefor; 86. Deceased having "failed to make any provision for him in any will," or otherwise compensate him, and claimant having failed to estab- lish his claim that she agreed "to bequeath to the plaintiff all her property at her death, ' ' for such services, > he is held on the evidence "entitled to recover the value of his services." 87. An amendment at the trial, at the conclusion of the evidence, of the "prayer for relief, so that it should pray to recover the value of his services in case- he was adjudged not entitled to the whole estate," was held proper, it being ' ' consistent with the facts proven on the trial, and, had there been no amendment, the judgment would not be reversed. Sec. 2886; Porcy v. Leonard, 63 W., 353". - 88. (Referring to this case, it is said in Murtha v. Donohoo, 149 W., post, that "it has (however) been : decided by this court that, an oral contract based upon a valid consideration to leave the promisee a legacy (personal property) is valid and enforceable".) —Slater v. Est. of Cook, 93 W. 104, 106. 89. The deceased for about twenty years "had, visited, boarded, and lodged at the home of the claimant, (his son-in-law) and his wife," "at intervals : of several weeks and months," and claimant has assisted deceased "in conducting, in part, his business correspondence", etc., but claimant never demanded compensation, nor gave deceased to under- stand that he expected compensation, and though the claim was allowed in the county and circuit courts,, the judgment was held erroneous. 90. "It cannot make any difference that the, testator did not become continuously a member of the claimant's family." 91. "The case falls within the rule that where near relations, by blood er marriage, reside together as one common family, and one of them renders services to another, and such other furnishes him board and lodging or other necessaries or comforts, the presumption arises that neither party intended to receive or pay compensation for the services, on the one hand, or for the board and lodging or other necessaries or comforts, on the other; that they were intended as mutual acts of kind- ness, done or furnished gratuitously. Kessler's Est., 87 W., supra". 92. (In Williams v. Williams, 114 W., post, this paragraph is approv- ingly quoted, the court saying that ' ' the rule laid down in these cases (supra) is well summarized" as here given.) —In re Schmidt's Est., 93 W., 120, 123. 93. Oral declarations of decedent vendor that a land, contract was paid % services, instead of money as provided, were admitted, and specific performance decreed. See Land Contract. —Boles v. Welch, 94 W., 189, 190. SERVICES 1011 94. Services to be paid by a legacy, and prior settlement by a receipt "in full of all demand," See"SETTiiBMENT. ' —Gonant v. Est. of Kimball, 95 W., 550, 552. 95. When payment is implied to be made for services of an officer- of a corporation. See Administration Expenses. Attorney and Client. —Lowe v. Ring, 106 W. 647, 655. 96. On a claim for services of a niece "as housekeeper and servant, based upon a promise that, if she would perform such services he would leave her his property", she remaining until the uncle's decease, intes- . tate, — on disallowance by the county court, and allowance by the circuit court as "reasonably worth the sum stated" on "relying upon Such agreement," found as orally made as to both the realty and personalty, judgment is affirmed, following Ellis v. Cary, 74 W., and Est; of Kess- ler. 87 W., 1 supra. 97. While the claimant, being a niece and becoming "a member of his family during her infancy, ' ' must establish ' ' an express, promise ' ' to pay, to> recover, " such promise may be established by admissions of deceased and by circumstantial evidence confirmatory thereof." See also McDonald v. Provident S, L. A. Soc., 108 W., 213, 218 (under Promissory Notes). 98. Here, "such agreement is established by the claimant, by testi- mony drawn out on cross-examination, and by direct admissions of the fact made by the deceased to several witnesses. The! surrounding cir- cumstances very much confirm this view". —Leitgabel v. Belt, 108 W., 107, 108. 99. Where an unofficially adopted boy of eight years is taken into a family, "within oral agreement with the boy's parent to leave him" the property, realty and personalty, ' ' in consideration of his services, ' ' and he does ordinary farm work until twenty-One, when he leaves, 'and eleven years later files a claim for services against the estate of the' deceased adoptivfe woman, it is held : — 100. That being "received into her family as a son, and the services" so rendered, he must establish "an express contract to pay for them. Tyler v. Burrington, 39 W., supra; Wells v. Perkins, 43 W., 160. 101. The express contract which was shown was oral, and was in part a contract to devise real property, and hence within the statutes of frauds (sec. 2304), and, being void as to the real estate, and indivisible, is void in whole. (Cases supra. Contra: Wright V. Wright, 99 Mich., 170). 102. This contract, though absolutely void, still has the effect of rebutting the presumption that the services were to bo gratuitous (Est. of Kessler, 87 W. supra), and so opening the way to a recovery of the reasonable value* of the services. • (Cases supra.) 103. Manifestly, however, the void contract did not extend the time 1012 PEOBATE AND GENERAL LAW, CODIFIED of payment for the services", which matured when the services ceased, and this action "was barred by the six-year statute of limitation (sec. 4222) before the death of the intestate" eleven years later. 104. "It was not necessary to plead" the statute of limitations. "The statute forbids the allowance of a claim which is shown to be barred by the statute of limitations. Sec. 3841''. —Martin v. Est. of Martin/, 108 W., 284, 288. 105. As between brothers, between forty and fifty years of age, each married, and neither dependent on the other, where claimaut first resided '• for six weeks with the deceased, and then, his family arriving, set up house-keeping on his own account, it is held, that there is no presumption of gratuitous services such as to prevent recovery upon quantum meruit for services rendered after claimant ceased to be a guest and set up house-keeping. 106. "As said in the case of In re Schmidt's Est., 93 W, supra, 'The law would not imply a promise on the part of a guest to pay for board and lodging', ; 107. Nor, on the other hand, would it imply a promise to pay for services rendered by him while receiving the hospitality i accorded to him as a guestj, Moulin v. Golumbet, 22 Cah, 508,;, Scully, v. Scully's Extrs., 28 la., 548". —Williams v. Williams, 114 W., 79, 83. 108. Following the principle of Williams v. Williams, 114 W., supra, recovery for services is upheld, where a mother-in-law, living .in her own home, and supporting herself by . " doing washing, laundry work and "cleaning", performed such services for a neighboring son-in-law four days each week, for six years last past, at one dollar per day, she keeping no account thereof, and "no agreement was made between the parties whereby such labor was to be rendered gratuitously, or in con- sideration of benefits" rendered incidentally by the defendant. 109. "Had he been furnishing her with her support either wholly or in large, part, the question would have been, different." —Winter v. Greiling, 114 W., 378, 380. 110. In the case of services by plaintiff after becoming of age, for his stepfather, the rule as to. evidence of express contract given in Tyler. v. Burrington, 39 W;, supra, is followed and strictly adhered to. —Wells v. Perkins, 43 W., 160, 163.' 111. On a claim for board of decedent, there being no relationship,, the rule of evidence as to express contract, of Tyler v. Burrington, 39, W,, supra, does not apply, "as in the present case", 112. And "there is no presumption to be overcome, and an express contract may be shown by proof of independent facts and circumstances which convince the jury that the contract was in fact made, just as any other fact in issue may be proven by such evidence. ' ' —Oates v. Erskime's Est., 116 W., 586, 590. SERVICES 1013 113. A contract to pay for services in part "by a provision out of" the employers property, the property being then and at his decease ' largely realty, and to be out of "the property left when 'they got through with it','' is held to contemplate "realty and personalty", and to^be void as _" ruled by Ellis v. Cary, 74 W. and Martin v. Est. of Martin,- 108 W. supra, ' ' under sec. 2304. 114. Such contract "being void for one purpose it is void for all pur- poses, as regard's forming the basis for a right measured in any sense by its terms". It can be "referred to", "only to. rebut the legal pre- sumption that would otherwise control, that her services, were gratuit- ously rendered", to enable recovery quantum meruit. 115. Though the services terminated according to such contract on the marriage of the claimant, more than six years, before the time of payment thereunder at the time of the decease, yet, 116. Since the "right to recover on the facts is limited to a cause. of action upon implied contract, such right matured and was enforceable the instant the services were completed, and .the,. six-years; statute of limitations (See. 4022) then commenced to run. 117. Demand for payment was not necessary to set the statute in motion", and the claimant's "right was extinguished by the statute". See also Ambiguity. — Loper v. Est. of Sheldon, 120, W. 26, 31. 118. On partial performance, for services under a, void contract, recovery may be for reasonable value. See, Frauds, Statute of. —Close, v.HwiWey, 126 W. .75, 79. 119. As to contribution where several are liable, for support of a mother. See Contribution. — Payne v. Payne, 129 W. 450, 454. 120. In the case of a son's services, " it i having been, established" "that it is competent to establish the agreement by circumstantial evi- dence from which the agreement is reasonably inferable' (Est. of Kess-', ler, 87 W. ; Leitgabel v. Belt, 108 W. ; supra) , 121. And that declarations of the deceased together with suggestive circumstances may properly be regarded as controlling (Leitgabel v. Belt, supra), , 122. It is easy, to see how wide the door is open for the introduction of. evidence of quite unsatisfactory character, as viewed here, 123. But of sufficient probative force that this court; in- the face of, a decision of the trial court, who heard it; cannot condemn it as not being worthy of any credence at all". 124. Even where .conflicting evidence flf declarations pro and con, "leaves the truth of the matter" "quite close to the border line of mere conjecture", "the decision of the trial court" deserves affirmation. 125. Claim upheld for services from 1878 to 1895, when claimant "left the farm", and "made no claim for compensation till after the father died", presumably more than six years thereafter,— the claim- ant contending that the services were to "be paid for at the death". , 1014 PROBATE AND GENERAL LAW, CODIFIED 126. As to allowing amendment that the services were to be paid for at death. See Amendment. ■ — Longwell v. Mierow, 130 "W. 208, 212. 127. Following cases, supra, where claimant, "an orphan five years of age not related" "went to live with the deceased as a member of his family", and was "treated as a son, though not formally adopted", makes claim for board, lodging, and services, furnished deceased, after claimant's majority, — 128. He comes under the same rule as parent and child, as to pre- sumption, "that the board and services mutually rendered are intended to be gratuitous, and no contract to pay therefor on either side will be implied ; 129. But there must be an express contract shown either by direct and positive evidence, 1 or by circumstantial evidence equivalent to direct and positive. (Cases, supra)". 130. "Considerable evidence" "that the deceased said at numerous times that he was reserving the house for his son J. (the claimant) or that he was going to give the house in which he lived to his son J. for the help which J. has always given him'', with "no direct evidence of any contract", is held, — 131. "Were sufficient to go to the jury in connection with the other circumstances in the case upon the question whether an express promise to pay for the services in some way was made by the deceased. ' ' 132. "A recovery" on a void promise to give real estate, on the prin- ciple that, it ''removes the presumption and leaves the ground clear for a recovery of the reasonable value", "is logically and truly a recovery upon the implied Contract, 133. But it is differentiated from an ordinary recovery upon implied contract by the fact that it only becomes possible by virtue of the previous establishment of the express promise, 134. While in controversies between strangers no such previous express promise need be shown. (Many cases, supra.)" 135. In such cases, "the cause of action accrues when the services are rendered as in other cases of implied contract, 136. So that if the services were rendered (as here) more than six years before the death of the deceased the statute of limitations will run against them and bar a recovery, unless the operation of the statute be in some way suspended. Martin v. Est. of 1 Martin, 108 W; Loper v. Est. of Sheldon, 120 W ; supra. 137. The decision in the Kessler Case (87 W., supra), which might at first glance seem to be to the contrary, is not really so, because in that case the services were continued up to the time of the death of the promisor". Recovery held barred. See also Limitation of Actions. ' —Taylor v. Thiermn, 132 W., 38, 43. 138. As to recovery for services of an adult son for a father, on agreement established by declarations, but none as to amount, cases supra, followed. SERVICES ' 1015 , 139. An instruction "that the question as to the payment for such services was a matter of defense", held "no error". —Marx v. Marx, 132 W. 113, 120. 140. While, in a claim disallowed, in the county court, and in "the first finding of the referee, to the effect that the claimant had been paid for his services", — "the facts and circumstances strongly indicate" such finding to be "correct", 141. Yet, "the court below had the right to re-refer the case because of failure to find on material facts", and a finding of recovery is upheld. 142. "It is well settled that if there is sufficient competent evidence to support the findings the judgment will not be disturbed because incompetent evidence was admitted. (Cases) ". 143. A claim for "services performed at the special instance and request of the deceased and with her knowledge ' ', with reasonable value stated, "is a good claim on quantum meruit", not on "express contract", >■ , r 144,. "And would be supported by proof of performance and value" on a "prima facie case" so made out. , : 145. ' ' This he could do by his own testimony, . because the perform- ance of the alleged services and their value did not involve a transaction personally with the deceased, within the meaning of sec. 4069. Besides, there is "other evidence thereof. , 346. ''Payment being an affirmative defense, it was incumbent upon the appellants (the estate) to prove it". 147. Where claimant "was to receive for his services such remunera- tion" "as deceased might deem reasonable " and she "died without having determined the value", "the claimant became entitled to recover the reasonable value of his services. . ■ (Cases) ' '. — In re Est. of Happel-Bossri,, 133 W. 119, 122. 148. Referring to Taylor v. Thieman, 132 W. supra, it is held, where a son after coming of age remains and serves his father "in reliance upon an express oral promise to deed, or devise real estate", recovery quantum meruit may be had, . ■ ■ 149. And "no reason is perceived why an express promise which is indefinite as to the duration of the services should not have the same effect as one which fixes a definite time". —Voss v. Voss, 134 W. 52, 54. 350. As to services of husband for support of wife, not entitling recov- ery upon express or implied contract. See Marriage Contract. —Ryan v. Dockery, 134 W. 431, 434. ,151. On a claim by a son for twenty years' services to be paid for at a "fair value upon or prior to the death of the decedent" father, objections to allowance included "a counterclaim for the value of cer- tain personal property" of the deceased, there being a reply that this 1016 PROBATE AND GENERAL LAW, CODIFIED "was not pleadable in the action"/ and "a demurrer ore tenus was interposed to the counterclaim for" like 1 reason, — it is not decided "whether sec. 2656 would admit the matter" "as a counterclaim". 152. "The answer stated facts sufficient to show a conversion, and we see no reason why executors may not; in an appropriate case main- tain an action for conversion. 153. Neither is any reason apparent why they may not waive (as "expressly" done) the tort and sue on implied contract. (Cases)". 154. "Title can be tried in an action of conversion as well as in an action of replevin, and" "personal representatives" have "the ordi- nary remedies that are open to other suitors" as to property "unlaw- fully Converted". 155. "The objection should have been taken by demurrer, and, not having been so taken, it was waived. Sec. 2660. ' ' 156. The evidence of claimant's witnesses, there being no other, as to "prevailing wages" was held not "conclusive upon the court, or that it was error for the court to adopt a scale of wages within the figures testified to^ ' ■■, 157. Inasmuch as such testimony ■ did not go directly to the value of the services rendered by the claimant, and in view of" "other consid- erations. ' ' 158. The value of realty transferred to claimant several years before the decease, Was held properly charged to claimant, in view of "the existence of the contract of employment" and decedent's indebtedness on account thereof. 159. While no reference to such payment was made in the answer, and "payment is a defense that must ordinarily be pleaded in order to be available ' ', ; yet, 160* "We find no statute or county court rule now in force requir- ing" such pleading by the "representative of a decedent" "to enable him to defeat recovery on a claim filed against the estate by showing payment. 161. On the contrary, county court rule 14 expressly provides that 'no claim shall be allowed, whether objected to or not, until the court is satisfied that it is a just claim ' ' '. —Heber v. Est. of Eeber, 139 W. 472, 474. 162. Where claimant M., after becoming of age, "worked for his father, the decedent, on the farm of 1 the latter at intervals" from 1889 to Apr. 1905, and then on the "testimony of a girl then temporarily in the family", "his father said he would, give M. $1000 for the work he had done and $20 per month for future work. M. said: 'All right'," and so continued to work until the father's death Oct. 1906. Held: 163. That by such "oral conversation" "and the subsequent acts of the parties, a new contract was created whereby" M. "agreed to con- tinue to work" "in consideration' 1 ' for such payment "for past services and" "for future services, and this was performed", — there being "a SERVICES 1017 valid consideration to uphold the whole contract". Loomis Vt* New- hall, 15 Pick. 159 ; (other cases) . -^Olson v. Olson, 149 W. 248, 249. 164. Where claimant performed services for decedent "during the six years prior to" 1898, and decedent in 1901 said to claimant that for such services "he would by his last will give to" claimant $1000, and the latter said "that that would be all right", — recovery quantum meruit allowed. i 165. "The statute of limitations in such cases must always be con- sidered although not pleaded, Sec. 3841". 166. "Recovery is not barred under sec. 4243, notwithstanding the agreement to compensate by legacy was not in writing", it, not being "regarded as a new promise", ''but an independent and substitution- ary contract within "'the rule of Jilsonv. Gilbert, 26 W ; supra. (Other cases) . 167. "An oral contract based upon a valid consideration to leave the promisee a legacy" is. "enforcible", 168. And past services by a stranger "constitute a good considera- tion for a promise to pay for such services. (Cases, supra) ". 169. Here the statute "had begun to, run against" the "right of action" before the legacy promise for "services previously rendered", and the decedent "makes his promise to extend (for payment at his death) in consideration of a valid and binding promise to reward him by legacy". ■ ... , u , ,,.-;.,, 170. "We must hold that the promisee suing to recover for a breach of agreement to provide for him by will, where the services are per- formed prior to the promise so to provide, is entitled to recover only the reasonable value of the services so performed. 171. The parties may offer" "evidence of the amount agreed to be paid by legacy as having some evidential bearing on the reasonable value of the services where the disparity is not too great, but this is not at all conclusive upon the court or jury. i72. The true inquiry" is as to "the reasonable value' of services performed and the amount of money paid to or to the usfe of decedent at his request? and the amount so ascertained with interest at the legal rate will be the amount of ' recovery". —Murtha v. Donokoo, 149 W. 481, 483. 173. "In order to raise an implied contract to pay for services", "the services must have been performed under such circumstances as to giye the recipient thereof some reason to think they are not gratui- tous, not performed for some other person, but with the expectation of compensation from the recipient". — Segnitz v. A. Grosseniach Co., 158 W. 511, 514. 174. Where S. was employed as a hired man by decedent in her life- time on lands owned by, her and her children, before ,her marriage to 1018 PROBATE AND GENERAL LAW, CODIFIED S., and such labor continued after the marriage, — on a claim by such, husband against her estate^ disallowed in the county and allowed in the circuit court, the evidence was held insufficient for allowance on an express agreement, either as to services before or after the marriage. 175. The evidence indicates that about the time of the marriage seven years before her decease, "they made some settlement or adjustment of their differences, but what that new contract of settlement was does not appear. 176. This showing that there was an express contract between them takes away any basis for a finding on the theory of an implied contract to pay the reasonable value of such services, for this would be to make a new contract for them". 177. "The position of the parties" after "the marital relation" became "substantially different from that existing prior thereto, 178. And what might be considered a sufficient to support a finding 6f a contract between the two for services and compensation therefor before marriage would not necessarily be sufficient to support a finding of such a contract subsequent to marriage ' '. 179. A claim" for money loaned "to deceased to be invested in per- sonal property" and a claim of ownership of such personalty "by rea- son of his having advanced money to purchase the same", being incon- sistent, the claimant "cannot be permitted to occupy the two positions", and such claim, as Well as for services, "must also be disallowed." See also Husband and Wipe. — Est. of Smimson, 164 W. 590, 594. SESSIONS OF COURT. See Teems op Court. SET-OFF. COUNTERCLAIM. Accounting action, 18. . u Decree, without pleading, 18. Accounts after decease, 1. Action by executor, 39. Between all parties, 36. And only parties, 36. Claim not due, 20. i _ Not set-off against due, 26. Statute; common law, 21. Counterclaim / statute, 5. Definition of, 2, 4. Between all parties, 36. Cross-action; mutuality, 35. Distinct demand, 4. Term, counterclaim, 10. Determined as separate action, 19. Dismissal of action, 6, 8. Demand in reconvention, 7. Not carry counterclaim, 6. Equitable defense, ejectment, 9. Equitable setoff permitted, 32. Insolvent estate : debtor,' ' 16. Bank lien, if due and payable, 20, 24. Bank not against deposit, 28. Claim not due, 20, 28. Debtor to insolvent waive, 31. Set-off, from estate, 31. Equal distribution required, 23. Equitable setoff permitted, 32. Insolvent debt not. due, 29. Different principle, 29. No 1 authority to waive, 30. SET-OFF. COUNTERCLAIM 1019 Insolvent: estate — continued Owing by insolvent and due, 25. ■ Not due not enforeible, 26. Purchase claim; setoff, 16. Eight fixed at decease, 22, 27. Statute; common law, 21. Judgments mutually set off, 33. Higher and lower courts, 34. Legatee's note against share, 37. Liquidated, liquidatable, 3. Must be so dominated, 12. Objection by demurrer, 39. Failure; stand as answer, 40. Partnership claims, 13. Action on deceased's note, 13. Perfectly actionable form, 5. Pleaded: as counterclaim, 12. Action by executor, 38. Not pleaded as setoff, 38. Setoff as counterclaim, 15. Qualify plaintiff's right, 11. Replevin by administrator, 41. Not claim againBt deecased, 41.- Statute, not common law, 2. Borrowed from civil law, 7. When allowable, when not, 14. Withdrawal of setoff, 17. , 1. Accounts accruing subsequent to the death of the intestate, cannot be set off against demands included in the assets of the estate. (See also par. 23, post) . —Armstrong v. Pratt, 2 W. 299, 307. 2. "The right of set-off is given by statute, and did not exist at common law." It must be a demand, "arising upon a judgment, or upon a contract express or implied ' ', that is, ' ' upon contract in con- tradistinction to those (demands) arising in tort." 3. The set-off must be liquidated or capable of calculation. In a suit for wages, set-off which would make the plaintiff guilty of larcey or embezzlement, is not allowed. — Pierce v. Hoffman, 4 W. 277, 278. 4. "A set-off or counterclaim is a distinct demand, the allowance or disallowance of which does not' affect the existence or validity of the demand on the other side. If allowed, it is so much to be taken out of the sum legally due upon the demand against which it is pleaded." Dixon, C. J. —Parry v. Wright, 20 W. 483, 484.. 5. Our counter-claim statute does not change the common law rule that a cause of action, whether set up by plaintiff or defendant, must be one existing "in a perfectly actionable form at the time the suit was commenced". —Orion v. Noonav, 29 W., 541, 545. 6. Dismissal of action by plaintiff, does not carry with it a counter- claim. See Discontinuance. i 7. The "right or practice of counterclaim is borrowed from the civil law, «where it is designated 'demand in reconvention ',',' and "by the rules of the civil law, a discontinuance of the action by the plaintiff is ineffectual to put a defendant out of court who has interposed a 'demand in reconvention'." —Bertschy v. McLeod, 32 W. 205, 2ll. 8. The court cannot dismiss on plaintiff's,, motion, when a counter- claim is interposed. See Discontinuance. —MoLeod v. Bertschy, 33 W. 176, 179. 1020 PEOBATE AND GENERAL LAW, CODIFIED 9. "An equitable defense in ejectment can be made by counterclaim only, and not by mere answer". Lombard v. Cowham, 34 W. 486. —DuPont v. Davis, 35 W. 631, 639. 10. "The term counterclaim, of itself, imports a claim opposed to, or which qualifies, or at least in some degree affects, the plaintiff's cause of action". 11. "It has been held in New York that a counterclaim, to be valid, must to some extent impair, affect or qualify the plaintiff's right to the relief to which he would otherwise be entitled by his action"; which is here approved and followed. —Dietrich v. Koch, 35 W. 618, 626. 12. In order that "the rule on this subject should be Certain and uniform" "we take this occasion to say that hereafter no averment in an answer will be held to constitute a counterclaim, unless it is so denominated and the appropriate relief prayed". —Stowell v. Eldred, 39 W. 614, 630. 13. "Claims growing out of the partnership business and dealings between" the defendant and the deceased "were not proper subjects of set-off or counterclaim in "an action by the widow on a note of the deceased, "as there had been no accounting or final settlement of the partnership affairs. Linderman v. Disbrow, 31 W. 465". —Tomlinson v. Nelson, 49 W. 679, 683. 14. When allowable and when not, on claims and in actions fully set forth. See Actions by Extrs..& Admes. Claims. — McLaughlin, Admr. v. Winner, 63 W. 120, 126. 15. A set-off "pleaded as a counterclaim", sec. 4264, "may be sus- tained as a set-off", and "not vitiate the pleading, or render it subject to a demurrer". — Schumacher v. Seeger, 65 W. 394, 396. 16. "It has often been held in effect, at common law and under statutes similar to ours, to be contrary to public policy to allow a person indebted to an insolvent estate to purchase a claim against such estate after the death of the intestate and' make it available as a set-off in order to escape payment of his own debt. Root v. Taylor, 20 Johns. 137; (other cases) ". So held in this case. See also Debts. 17. Where "the administrator improperly interposed a set-off in the county court", he is not estopped from withdrawing it in circuit court on appeal. " —Union Nat. Bank v. Hicks, 67 W. 189, 19'2. 18. In an action for an accounting either party "is entitled to an affirmative decree," though no counterclaim is interposed. See also Discontinuance. — Hutchinson, Admr . v. Paige, 67 W. 206, 209. SET-OFF. COUNTERCLAIM 1021 19. "A counterclaim is an action by the defendant against the plain- tiff, and his rights are to be determined as though he was pursuing the plaintiff in a separate and independent action." —Hewitt v. J. W. Lumber Co., 77 W., 548, 554. 20. In the case of a voluntary assignment of an insolvent, who had a ; deposit in a bank to his credit, a promissory note against him,' held by the bank, not due at the date of- the assignment by reason of exten- , sions, was held not "a proper set-off against the amount of said deposit." 21. "This was never allowed at' common law." "By our statute (sec. 4258) the set-off in all cases must be due, and it makes no excep- tion in favor of banks or on account of insolvency." 22. ''All creditors must be treated alike, and their rights are fixed at the date of the assignment," as of an estate at the decease. Union Nat. Bk. v. Hicks, 67 W., supra (and see Debts). 23. "In Armstrong v. Pratt, 2 W., supra, the defendant sought to set off a debt which had not matured at the time of the death of the intestate against a claim of' the estate held against him as one of the assets of the estate. This was not allowed, for the reason that it would affect the equal distribution of the assets of the estate, and tend to the prejudice of the claims of other creditors. The same reasons would obtain in voluntary assignment." (Many cases, N. Y., Ohio, Mich.,). 24. "In Jordan v. Nat. S. & L. Bank, 74 N. Y., 467, the court says that," "the bank, has a lien on the funds of the depositor in its pos- session for the balance of the general account, if that balance is due and payable". —Oatmwi v. Batavian Bank, 77 W. 501, 503. 25. "While cases, have been cited to the effect that an equitable set^ off may be enforced of a debt owing by the insolvent and due, against a debt owing to him but hot due, 26. "We are referred to no ease which allows the holder of the debt hot due to enforce such set-off against one that is due. The authorities are all to the contrary". Spaulding v. Backus, 122 Mass., 553; Brad- ley v. Angel, 3 N. Y. 475. —Kinsey v. Ring, Admr., 83 W., 536, 539. 27. "Undoubtedly the rights of the creditors and debtors of an insolvent assignor as to set-offs become fixed immediately upon the com- pletion of the assignment, in analogy to the rule applicable to debtors and creditors in the case of a deceased insolvent. Union Nat: Bk. v. Hicks, 67 W., supra: 28. Accordingly it has been held by, this court that 'a bank cannot, set off, against & deposit to the credit of an assignor for the -benefit of creditors, a note held by it against him, but not due at the time of the assignment'.. Oatman v. Batavian Bank, 77 W. supra., 20 Amer. St. 1022 PROBATE AND GENERAL LAW, CODIFIED Rep. 136". "To the same effect is the decision of this court Kinsey v. Ring, 83 W. supra; and see, also, Pera v. Wickham, 135 N. Y. 223". 29. But this case "turns upon a different principle. Here it was not the indebtedness (plaintiff's hank deposit) of the insolvent debtor (bank) that was not due", "but a portion of the indebtedness (notes) from the plaintiff" to the insolvent bank. 30. "An assignee of such insolvent debtor has no authority to waive the time of credit secured for the. sole benefit of his assignor, ,and pay a debt not due, with credits or the avails of credits which are due to the assignor at the time of making the assignment, for to do so would tend to prejudice the creditors of the insolvent's estate; 31. But a debtor to such estate, whose debt was not due at the time of the making of such assignment, has the authority to waive the timer of credit which was secured for his own benefit, and pay the same at once in money or by the way of setoff of the amount due him from such estate. 32. This rule is firmly settled in other states, and has in effect been sanctioned by this court. (N. Y. & 111. cases)." "As pointed out by Chancellor Walworth in Lindsay v. Jackson, 2 Paige 581, and in the opinions of the courts in some of the other cases cited, a court of equity will permit such equitable setoff whenever justice requires it, even in a case not coming within the statute of setoffs". Seligman v. Heller, Bros.' Co. 69 W. 410. Setoff of such debt not due, as well as due, allowed. —Jones v. Pieming, 85, W. 264,' 267. 33. "The policy of courts to set off mutual judgments held in the -same rights between the same parties is well established in the absence of countervailing rights or equities, as recognized in Taylor v. Williams, 14 W. 155 ; (other cases) ". 34. So ordered, as to a judgment in the supreme court and one in the Dane County circuit court, on application' in the. former court " where the judgment exists against" the applicant. r-Welsker v. TAbby, M. & L., 107' W. 47, 48. 35. "The nature of a set-off is predicated upon the grounds that it constitutes, in effect, a cross-action by defendant against plaintiff, and requires that there be mutuality of claims. 36. In cases of statutory set-off the right thereto must exist between, all the parties plaintiff and all the parties defendant, and from and to those persons only who are parties to the action, except in cases for equitable consideration. (Cases)". — Carpenter v. Fulmer, 118 W., 454, 457. 37. A legatee's note, charged against her share of the estate. See Foreign Jurisdiction. — Fitch v. Huntington., 125 W. 204, 207. SETTLEMENT 1023 38. "While in an action by an executor, a set-off under sec. 3847 must be one "enforceable", as a claim in the county court, it need not be so pleaded. See. Actions by Exte. & Adme. — Rust v. Fitzhugh, 132 W., 549, 555. 39. Where the objection to a counterclaim for the value of personal property was not but "should have been taken by demurrer", 40. It was allowed to stand as the facts stated were "sufficient to show a conversion". See also Seevices. —Heb&r v. %st. of Eeber, 139 W. 472, 475. 41. In a replevin action by an administrator, the defendant who obtains possession of estate property cannot ' ' off-set his demand against deceased" for his claim, — in this case a "demand for rent existing against the decedent". "Sec. 3847, relates to a different class of cases". Defendant "should have filed his claim in the county court". — Weissmm v. Weissmmi, 156 W. 26, 28. SETTLEMENT. .See also Accord and Satisfaction. Compeomise. Judgments. Admr. de bonis npn, 12. Eeeeipt to. be filed, 12. Before will was found, 44. After administration, 44. Effective as estoppel, 44. Compound interest included, 18. Deliberately made, 17. Distinctions : Settlement, compromise, accord, Ejectment: Estate not settled, 5. Encouraged, fairly made, 53, 55. Estate claim with heir, 51. Before administration, 51. Binding on administrator, 51. Estates : Final judgment six years after, Action, within three years, 40. Of fraud discovery, 40. Laches, not found, 40. Amount need not be named, 34. Nor dollars to each,' 34. i . Recitation merely, 35. Might have ordered sale of, 37. , Not found securities ' value,, 35. , Partition, mutual mistake, 39. Fraud and forgery, 39. Estates — continued Final Judgment, etc. — continued Partition not called for, 36. ; Not undertake to make; 36. Recitals not essential part, 38. Not conclusive, 38. Securities assigned to heirs, 33. Fraudulent, forgeries, 33. 25. Preserve for all parties, 23. Proceeding in rem, 23. Settlement proof, 12. Even of sole heir, 12. Evidence of without objection, 45., Fraud or mistake, 1, 14, 23, 33, 39, 46. Proof clear, convincing, 47, 54. Heirs, convey equitable rights, 52, 57. Admr. to recognize, 52. 33 Heirs; without administration, 58. Bound by estoppel,* 59. Creditors may administer, 59. Admr. or executor, also, 59. Have equitable title, 57. Note given for personalty,, 58. Estopped; consideration defense, 60. Reliance on note as valid, 60. Legatees : , Deduct notes against, 19. l^art only of shares, 6. Not conclusive, 7. 1024 PEOBATE AND GENERAL LAW, CODIFIED Legatees — continued Eeceipt in, full, 4. Not foreclosed, 4. Mutual accounts, conclusive, 1, 14. Findings of trial court, 15. Fraud or mistake, 1, 14, 23. Items not mentioned, 22, 23. Offers not admissible,- 55. Part for the whole, 9. Compromise, 10. Partners; assumed settlements, 56. Prior negotiations, 49. Merged in agreement, 49. Becomes- conclusive, 50. Receipt: in full, 4, 32. Amount named paid, 32. 'Boiler account in full", 41. Elements of contract, 28, 31, 41. Full of all claims, 29. Form of, conclusive, 27. Inconclusive, 8. Eeceipt— continued Part for the whole, 9. Compromise, exception, 10. Subject to explanation, 8, 11, 30, 32. Though payor is deceased, 32. Varied, contradicted by parol, 30, 41. Eents : Admr, charges himself, 13. Waiver as devisee, 13. Services : Legacy to be made, 26. Eeceipt, conclusive, 27. Settled before administration, 3. "Settle", legal meaning, 2. Signer neglects to read, 48. Full opportunity, 48. Six-year limitation, 20. Ajdministered, as will, 21. Voluntary settlement, 42. Jurisdiction to dismiss, 43. Passed out of existence, 42. Waiver of appeal, 16. 1. "Principle and public policy alike require that when parties, after a full and fair opportunity of examining and deciding upon their mutual accounts, have adjusted and settled them, that the settlement should be conclusive". —Martin v. Beckwiik, 4 W. 219, 220. 2. "The word 'settle 'has an 1 established legal meaning, and implies the mutual adjustment of accounts between different parties and an agreement upon the balance. ' ' • — Baxter v. State, 9 W. 38, 44. 3. "Where a will was duly probated, but nothing further done, no executor appointed, and no administrator appointed until some eight years thereafter, there ,being then no personal estate and no debts, and the devisees having entered into possession of the land, it was held that the "estate had been settled long before letters of administration were granted", though "it had not been settled through the instrumentality of formal proceedings in the county court;" and such settlement "cut off the right of the administrator to the possession of the land". —Flood Admr. v. Pilgrim., 32 W. 376, 379. 4. Certain legatees accepted legacies and gave receipts in full, under a construction of the will by the circuit court, while certain other like legatees appealed and were awarded more in the supreme court; on subsequent appeal a like ruling was made as to the original paid legatees, without prejudice to the right to further litigate said matter. See also Appeal. — Wheeler v. Catlin, 44 W. 464, 466. 5. "Although the estate has not been settled and distributed by judg- ment of the probate court", and administration is pending, "the heir SETTLEMENT , 1025 may maintain ejectment for the land", if not in possession of the administrator. See Real Estate. —Filbey Admr. v . Carrier, 45 W. 469, 471. 6. "Receipts in full given by the legatee plaintiffs to the executors, upon the actual receipt by them of only a part of their legacies given by the will" according to the decision on appeal (Wheeler v. Catlin, 44 W. supra) are held not conclusive. 7. "There is greater reason to hold these receipts not conclusive in this case than there was for holding similar receipts in full not con- clusive in Butler v. Regents, 32 W. 124 ; Smith v. Schulenberg, 34 W. , 41; and Woodman v. Clapp, 21 W. 350". 8. ' ' There is not such sacredness, or rather sacrilege, about a mere receipt, which is never to be held conclusive if there is any good legal reason that it be held otherwise, and which is always subject to explana- tion and construction, in view of the circumstances under which it is given. 9. The law is, 'that the payment of a part of a debt, or of liquidated damages, is no satisfaction of the whole debt, even when the creditor agrees to receive a part for the whole, and gives a receipt for the whole demand'. 10. The only exception is when the payment of the part is in com- promise of the whole, which is in dispute, and we have iseen that this was not the case here. 2 Parsons on Con., 614. 11. 'A receipt for money is peculiarly open to evidence', and may always be explained. 2 Parsons on Con. 554". —Catlw, v. Wheeler, 49 W. 507, 522. 12. The record must show that the administratrix filed "some proof tbat she had paid the moneys in her hands to the proper person, in order to have made a final distribution of the estate" even though she claims to be the sole heir at law ; otherwise there is no such final settle- ment as to prevent "the appointment of an administrator de bonis non. ' ' See Admr. de Bonis Non. —Oakes v. Est. of Buckley; 49 W. 592, 598. 13. Where the executor charges himself, with rents as such, he waives the right to settle as a devisee in possession. See Accounts of Extrs. & Admrs. —Baker v. Baker, 51 W. 538, 546. 14. "A full and final settlement of mutual accounts, which has been fairly and deliberately made, is held conclusive, and will not be set- aside except upon clear and satisfactory evidence of mistake or fraud therein. ' ' 15. But where the trial court has set aside such settlement, the fore- going rule "is met by another well established rule of this court, which is, that it will not set aside the findings of the trial court, on questions Zimmerman — 65 1026 PROBATE AND GENERAL LAW, CODIFIED of fact, unless they appear to be contrary to the fair preponderance of evidence." — Birkett v. Hird, 55 W. 650. 16. A settlement including waiver of appeal "would probably be enforced." — See Appeal. — Sloane v. Anderson. 57 W. 123, 129. 17. The rule-, "as often stated by this court, is that a settlement once deliberately made is not to be opened except upon the clearest and most positive proof of fraud or mistake therein. (Many cases) ". 18. Settlements may be made to include compound interest, notwith- standing the statute. See Interest. — Case v. Fish, 58 W. 56, 108. 19. The executor may deduct from legacies, the amounts of notes and mortgages of the estate against legatees. See Legacies. —Brunn, Extr. v. Schuett, 59 W. 260, 271. 20. Under the six-year limitation (sec. 3850), held that after six years, and at the assignment, "the functions of the executor, as such, had ceased". See Limitation of Actions. — In re Est. of Pierce, 56 W. 560, 564. 21. While the six-year limitation under sec. 3850, "is to secure a speedy settlement," yet "the estate is to be administered according to the will". See Limitation of Action. —Scott, Extrs. v. West, 63 W. 529, 555. 22. "The mere failure to mention all the items of work or deal between the parties at time of the settlement, did not prevent its being conclusive ' '. 23. "A settlement of mutual accounts or claims presumptively cov- ers everything, whether mentioned or not; and is conclusive unless impeached for fraud or mistake". —Freeman v. Bolzell, 63 W. 378, 379. 24. The settlement of estates is a proceeding in rem, and administra- tion is had to preserve the same for all parties interested. See Admin- istration. — State ex rel. Sanderson v. Mann, 76 W., 469. 25. As to distinctions between settlement, compromise, and accord and satisfaction. See Compromise. —Continental Natl. Bnlt. v. McGeoch, 92 W. 286, 312. 26. Where services were to be compensated "by a legacy to be made", and the "contract clearly was entire", in that claimant was to serve during the lifetime of, but "abandoned the deceased six years" before his death, and also gave "a receipt, showing a full settlement of all SETTLEMENT 1027 matters between them", "shortly before the latter 's death",— a finding of recovery, was reversed. 27. "But, if we concede that", on the evidence, recovery on the con- tract might otherwise be sustained, yet, the receipt of claimant for "ten dollars in full of all demand to date", establishes "that all the claims and demands", "were fully settled and discharged during the" decedent's lifetime. 28. "Where the instrument is in the form of and contains all the elements of a receipt, and also includes the elements of a contract, the latter part is governed by the same rules as other contracts, and cannot be varied, explained, or contradicted by parol evidence, though it may be set aside and avoided for fraud or mistake. (Citations) ; Fire Ins. Asso. v. Wickham, 141 U. S. 564. (Approvingly quoted in Twohy M. Co. v. Est. of McDonald, 108 W. post). . 29. A receipt in full of all claims is of such a character. Henry v. Henry, 11 Ind. 236, 71 Am. Dec. 354; Grumley v. Webb, 44 Mo. 444, 100 Am. Dec. 304". So held here. —Concmt v. Est. of Kimball, 95 W. 550, 552. 30. "The rule of law is well settled, not only in this state but else- where, that a mere receipt for money is open to explanation, and may be varied or contradicted by parol". Catlin v. Wheeler, 49 W. supra. 31. "No less well established; however, is the rule summarized in Conant v. Est. of Kimball, 95 W. supra," that where the elements of a contract enter, it cannot be so varied. 32. "But in the ordinary custom of commerce the words, 'Beceived payment in full', written at the foot of a bill specifying the amount due (as here), ordinarily have no significance except to declare that the amount thereof has been in fact paid. They do not indicate an agreement" as to anything else, and oral "evidence to contradict the fact of payment" was held properly admitted, though the purported payor was then deceased. —Twohy M. Co., v. Est. of McDonald, 108 W. 21, 23. 33. In an action commenced in circuit court, more than six years after the entry of final judgment in the county court assigning the estate of a decedent, to vacate and set aside such judgment, giving securities to five heirs, "amounting in all to $43,547.15", "in equal shares, being one-fifth thereof to each", $8,709.43 to each, under sec. 3940, and a partition of such securities was made by heirs, some of such securities being subsequently discovered to be fraudulent and forgeries, — it is, in. effect, held; 34. "That this statute did not require the county court to name the aggregate amount of such residue, nor the amount in dollars and cents which each person was to receive". 35. That' such was merely a recitation from the final account, and 1028 PEOBATE AND GENERAL LAW, CODIFIED the statute "did not require, and the court did not find, nor under- take to find, the value of any notes and mortgages on hand. 36. The court was not called upon to make partition of the estate, and did not undertake to make such partition. Sees. 3942, 3947, 3952. 37. The court might have ordered the sale of such notes and mort- gages, but it did not. Sec. 3924. ' ' 38. "Such recital of amounts was merely incidental, and was not necessary under the statute quoted (Sec. 3940), and hence did not constitute an essential part of the decree, and is not conclusive upon the parties. This has recently been held by very high authority. (English case) ; Frame v. Thormann, 102 "W. 653, 671, affirmed in Thor- man v. Frame, 176 IT. S. 350, 356 (see Foreign Judgments) ". 39. "Partition and settlement having been made under such mutual mistake or ignorance of fact as to the fraud and forgery, the plaintiffs are justly entitled to relief from the same. Such is the settled law in this state as well as others. (Cases)." 40. The action was brought within less than three years after dis- covery of the fraud, and it is held "upon the facts alleged, the case is not barred by any statute of limitations nor by laches". — Maldaner v. Buerhaus, 108 W. 25, 31. 41. A signed memorandum,—" Received $200 from S. to balance boiler account in full", following cases supra, "must be held to be a mere receipt", with no additional "elements of a contract", and "it was competent for the parties to make an agreement" at the time in connection therewith, concerning which parol evidence was admissible. -—Seeper v. Manitowoc S. B. W., 120 W. 11, 14. 42. Where ther.e was a "voluntary settlement of the controversy by the parties pending the litigation", "although there was no jurisdic- tion to try the controversy because the controversy had passed out of existence, 43. Still there was jurisdiction left in the eourt to dismiss" the proceedings, that the action need not "be left forever hanging between heaven and earth, like Mahomet's coffin". -^Shoop F. M. Co., v. Schowalter, 120 W. 663, 667. 44. A settlement between the parties, made after administration pro- ceedings, and before a supposed will was found and probated, was held effective, both on the ground of estoppel and as "a compromise of doubtful rights". See Administration. —PerUns v. Owen, 123 W. 238, 241. 45. "While no defense of settlement was pleaded, the evidence of settlement was received without objection on that ground, and hence" "the question must be considered as having been litigated by consent". —Petersen v. Elholm, 130 W. 1, 9. SETTLEMENT 1029 46. "The agreement of settlement expressed in the written release *s of course, a complete defense unless impeached for fraud or mistake. (Cases). 47. To accomplish impeachment of a formal written instrument on such grounds the proof must be clear and convincing beyond reasonable controversy. (Many cases)". , i': 48. "The law does not allow a plea of mistake as to the contents of a written instrument which the signer has full opportunity to read but neglects to, unless deterred by some act or representation by the other party. (Cases)". 49. The testimony "indicates that the prior negotiations and con- versation proceeded upon the basis of a gift instead of a settlement, but all such negotiations became merged in the written expression of the agreement finally executed, 50. And that becomes the conclusive and exclusive proof of the con- tract upon which the minds of the parties met and to which they are bound. (Cases) ". —Steffen v. Supreme A. of D., 130 W. 485, 486. 51. A settlement -of a claim in favor of an intestate estate, made with the sole heir before administration granted, is held binding on the administrator subsequently appointed, there being sufficient other assets to protect creditors. 52. Administrators are trustees "in the broad sense"; "beneficiaries of trust property" "may deal with and convey their equitable inter- ests"; "and the trustees will be required to" recognize such dealings, if "not contrary to the terms of the trust". See also Trustees. —McKeigue v. C. & N. W. B. Co., 130 W. 543, 546. 53. "Settlements fairly made and untainted by fraud are to be en- couraged rather than law suits.",,, ., , 54. ' ' To impeach a formal written instrument on the ground of fraud or mistake the proof must be clear and convincing beyond reasonable controversy. (Cases)". —Schweikert v. John R. Davis L. Co., 147 W. 242, 249. 55. "Offers of settlement made before or after suit are not admissible in evidence against the party making them, because 1he settlement of controversies is favored in the law." Taylor v. Tigerton, 134 W. 24. —Tobin v. Nichols, 156 "W. 235, 237. 56. As between partners, attorneys, it is held "there may easily have been settlements from time to time resulting simply from accept- ance by the partners without question of the reports or statements sub- mitted to them by" the partner "intrusted" with "the financial matters of the firm". See also Contribution. | —Est. of Ryan, 157 W. 576, 579. 1030 PROBATE AND GENERAL LAW, CODIFIED 57. While "legal heirs or legatees" "obtain no legal title to personal property by the death of the ancestor", they, "however, are beneficially interested in the estate, and they doubtless possess the equitable title subject only to the expenses of administration and the payment of debts. McKeigue v. C. & N. W. R. Co., 130 W. supra". 58. Where the heirs, adults, entered into an agreement appointing one E., 'as trustee of the estate of their deceased mother, "to settle her estate without legal proceedings", and allow the mother B., to retain the estate personalty and B. with L. as accommodation maker giving their note for the amount thereof payable to E. as such trustee, — upon suit by E. four years later on said note, it is said : 59. That while "the right of a creditor to procure" administration, or "the rights of an administrator or executor", are unaffected, "no reason is perceived why the parties now before the court should not be bound by their agreement on well established principles of estoppel". So held. 60. The heirs having relied "on this note as a valid obligation", and lost the "enjoyment of their shares of the estate for several years", it is clear that both defendants are estopped from asserting the defense of lack of consideration".* See also Estoppel. — Schoemvetter v>. Sckoenwetter, 164 W. 131, 134. SEVEN-YEAR ABSENCE. See Presumption op Death. SHALL. SHARES IN CROPS. See Rents and Profits. SICKNESS. Entire contract, 3. Excuses non-performance, 1. Exeuses performance, 3. Personal services, 1. Kecovery quantum meruit, 2. 1. "Sickness is sufficient to excuse delay, or even non-performance of contracts for personal services, and is regarded as the act of God. See Wolfe v. Howes, 20 N. Y. 197, and authorities there cited. SPECIAL 'ADMINISTRATOR 1031 2. But in such cases the recovery is not for the contract price (for part performance), but on quantum meruit". —Green v. Gilbert, 21 W. 395, 400. 3. Sickness is held generally to excuse the performance of an entire contract. See Entire Contract. — Jennitigs v. Lyons, 39 W. 553, 557. SIGNATURE. See Execution op Wills. Handwriting. SOLE BENEFICIARY BOND. See Bond to Pat Debts and Legacies. SOLE EXECUTOR. See Executors and Administrators. SPECIAL ADMINISTRATOR. Administrator, defective notice, 6. Personal, etc. — continued Power of special, 6. Bring an action, 8. "Granting of letters", 9. Subsequent administration, 8. Included in, 9. Power: Auxiliary; procedure, 11. Take and preserve property, 10. ,. J '. . ' Fully as regular, 10. Intervene m action, 3. Preservation of property, 4. To preserve property, 4. Responsible as such, 1. Irregular appeal, 5. Until admr. qualifies, 2. Personal representative, 7. Specific purposes; procedure, 11. 1.- The special administrator is "responsible as such" and is holden until the administrator is' regularly appointed. 2. He continues "to hold the property and effects of the estate, and was responsible as such, notwithstanding his appointment as adminis- trator", and so remained "until the requisite statutory security was given, or expressly waived by the parties in interest". — In re Fisher, 15 W. 511, 521. 1032 PROBATE AND GENERAL. LAW, CODIFIED 3. "There can be no question of the right of the special administra- trix to intervene in the action against her intestate, for the purpose of avoiding the judgment against him." 4. "This was necessary in order to preserve the property of the deceased for the administrator thereafter to be appointed, which is one of the chief functions of a special administrator. Sec. 3811." 5. An appeal from an order denying her motion, erroneously signed by her as special administratrix, she having in the meantime become general administratrix, is held "too trifling and inconsequential to work so serious result as a dismissal of the appeal" especially as "she had- an individual right to appeal" from the order which "imposed costs upon her individually". — Jefferson Co. Bank v. Bobbins, Adtnx., 67 W. 68, 70. 6. In the case of a defective notice as to probate and appointment of an administrator, and after assignment of the estate and the* per- sonalty in question, it was held, in foreclosure proceedings fifteen years later, that "for the purpose of making such transfer of the note and mortgage we think the administrator in question must be regarded as having at least the powers of such special administrator ' ', the legal title being in him "and the court (having) had power to appoint a special administrator without notice to any one". —Portz v. Schantz, 70 W. 497, 506. 7. While it is doubtful whether, under "sec. 3811, a special adminis- trator would have power to bring" an action for damages for "the wrongful death" of his decedent, yet, sec. 4256 .empowers the "per- sonal representative" so to do, and "a special administrator is 'the personal representative' of the deceased so long as he continues in office". 8. "He may bring such an action", and the general administrator when appointed "may be admitted to prosecute the action to judg- ment. Sec. 3813". —Swan v. Norvell, 107 W., 625, 626. 9. In strictly construing the phrase 'before the granting of letters testamentary or of administration', in the conversion statute, sec. 3824, "penal in its nature", "special administration" is held to be included in the terms of such phrase. 10. "A special adminstrator has such power," — "to take and pre- serve the property", — "for the time being as fully as a regularly ap- pointed administrator". — Dixon v. Sheridan, 125 W. 60, 65. 11. (As to the, detailed procedure both concerning auxiliary special administration and independent special administration for specific pur- poses, — see Zimmerman's Probate Practice, §§ 78-94.) SPECIFIC PERFORMANCE 1033 SPECIAL GUARDIAN. Appoint after general, 1. No jurisdiction, 1. Though appeal and stay, 2. Appointment, without notice, 8. Whether constitutional, 3. 1. Under sec. 3995c, (L. 1905, ch. 89), where a special guardian was appointed, after the general guardian had been appointed and quali- fied, it is held, "that the jurisdiction of the court to appoint a special guardian" "terminated with the appointment and qualification of the guardian, 2. Although' an appeal had been taken from the order of appoint- ment and a stay of proceedings had. (Cases)". Therefore the special guardianship proceedings ' ' are void and ■ ! should be set aside and vacated. ' ' ' 3. Whether this "law, which provides for the appointment of a special guardian without notice", is constitutional, "we do not determine". —State- ex rel. Deleglise v. Parsons, 131 W., 606, 607. SPECIFIC LEGACY. See Legacies. SPECIFIC PERFORMANCE. Circumstances control right, 7. Conditions governing refusal, 28. Discretion; inequitable, 7. Faets of particular case, 29. Well founded objection, 8. Damages, remedy, 8. Definition of, 6. Eedemption distinguished, 6. Discretion of court, 7, 14. Not absolute right, 21. Essential requisites, 36. Fails to specify time, 4. Homestead : Parol agreement of both, 26. Husband's deed alone, 26. Void; son as against heirs, 27. Inadequacy of consideration, 15. Inchoate dower withheld, 34. Wife not having signed, 34. Mutual relief right, 13, 31. Parol land sale, 9. Essential requisites, 36. Fraud is practiced, 23. Parol land sale — continued Part, and offer of balance, 35. Possession and part .payment, 25. Possession trespasser, 24. Tenant in common, ,10! Void, not voidable, 22. • Other states, contra, 22. Parol lease; fraud, 11. Estoppel as to statute, 11. Parol to devise land, 30. Performance, possession, 30. Part performance ; fraud, 11, 12. Personalty and land, 32. Eealty, part performance, 33. Eefprm, with decree, 1. Not actual contract, 5. Signed by one party, 18. Terms definitely expressed, 2. ' Authorized presumption, 3. Time not of essence, 16, 17. If possible before decree, 16, 17. Uncertain description, 19. Can be made certain, 20. 1. Courts of equity will reform a contract and decree specific per- formance in the same suit. See Reformation. —Waterman v. Dwtton, 6 W. 265, 273. 1034 PROBATE AND GENERAL LAW, CODIFIED 2. "No rule is better established than the rule that a court of equity will not decree specific performance of a contract unless the terms of the contract are clearly and definitely expressed. 3. If the court is unable from the contract itself, aided by authorized legal presumption, to arrive at a clear result of what its all essential terms are, the contract will not be specifically enforced. (Cases cited) ". 4. Where the contract "fails entirely to specify the time when a portion of the purchase money shall become due and payable ' ' and only provides that it 'may stand upon the farm', "the defect cannot be sup- plied by any authorized legal presumption", and specific performance cannot be decreed. 5. ' ' There is no claim that the written agreement does not fully express the contract which the parties actually made, and no reformation of the writing is sought. Hence, Waterman v. Dutton, supra, is not applicable here," to allow parol evidence to supply the omission. —Schmeling v. Eriesel, 45 W. 325, 327. 6. ' ' Specific performance enforces a contract by giving a party some- thing to which he had not title before. Redemption gives a party noth- ing new, but enforces his right to repurchase his own, incumbered for a debt. Redemption restores the parties to their former rights of prop- erty. Specific performance .gives them new rights of property". 7. "Circumstances control the right of specific performance. It is therefore discretionary. Specific performance will not be decreed when, for any reason, it would be inequitable." 8. "A court of equity must be satisfied that the claim for a deed is fair and just and reasonable, and the contract equal in all its parts, and founded on an adequate consideration, before it will interpose with this extraordinary assistance. If there be any well founded objection on any of these grounds, the practice of the court is to leave the party to his remedy at law for a compensation in damages. ( Cases) . ' ' (Quoted approvingly in Engberry v. Rousseau, 117 W. 52). — Williams v. Williams, 50 W. 311, 316. 9. "The rules which govern the courts of this state in granting or refusing specific performance of" "a parol " contract for the sale of land", "are laid down in" Horn v. Ludington, 32 W. 73 (see Part Performance) . 10. Seemingly contrary to Workman v. Guthrie, 5 Casey, 512, and other cases, it is held, "that a tenant in common in possession" can pur- chase "by parol of his co-tenant also in possession", and "take the exclusive possession of the land from thenceforth, and on performance of the contract maintain an action for its specific performance, especially if in good faith he makes valuable improvements upon the land". '—Littlefield v. Littlefield, 51 W. 23, 29. 11. Where on a verbal agreement to lease for five years, a written lease being tendered and through neglect unexecuted, and the lessor SPECIFIC PERFORMANCE 1035 "was put to great expense to change and remodel" the premises, and. the lessee went into possession and for two years paid the stipulated rent and then removed from the premises and refused to further pay rent,— equity will enforce a specific performance of the oral lease on the ground, as stated in Potter v. Jacobs, 111 Mass. 32, that "the refusal to complete it is in the nature of a fraud, and the defendant is estopped to set up the statute of frauds in defense ' '. 12. "In Paine v. Wilcox, 16 W. 202, this court has laid down the same doctrine, as follows: 'But verbal agreements for the sale of lands are enforced in equity when there has been such a part performance that it will operate as a fraud upon either party to allow the other to repudiate '. " 13. "It is self-evident that this equitable relief must be mutual. If there has been sufficient execution or performance of the parol contract to entitle the lessee to enforce it, the leslbr has the same equity, and both will be equally entitled to specific performance". — Seamcm v. Aschermann, 51 W. 678, 681. 14. "The law is well settled, that a specific performance of a contract of sale rests largely in the sound discretion of the court, upon a view of all the circumstances. Williams v. Williams, 50 W. supra". —Benson, Acknx. v. Cutler, 53 W. 107, .113. 15. Where the value of the land is given as $1,300, and the contract price $900, "this is not such an inadequacy of consideration as will defeat the right to specific performance of the contract". —Conrad v. Sohwamb, 53 W. 372, 378. 16. "It seems to be settled that a court of equity will decree specific performances of a contract for the sale of land in which time is not of the essence of the contract, if the vendor is able to make a good title at any time before the decree is pronounced. Hepburn v. Dunlop, 1 Wheat. 179". 171 The same rule applies in case of foreclosure of a contract, where "the vendor can make a good title at the hearing", but could not "when the action was commenced". —McKinney v. Jcmes, 55 W. 39, 50. 18. "The mere fact that the agreement to convey was signed by the defendant alone will not prevent specific performance if it was other- wise sufficient". 19. "The law will not declare an agreement void for uncertainty when the light which contemporaneous facts and circumstances furnish renders the description definite and certain. (Cases). 20. A description which can thus be made certain by proof of an extrinsic fact referred to in the agreement must be regarded as suffi- ciently certain to enforce specific performance". —Doctor v. Hellberg, 65 W. 415, 421. 1036 PROBATE AND GENERAL LAW, CODIFIED 21. ' ' Specific performance is not a matter of absolute right, but rests in the sound discretion of the court, in view of all the circumstances. Williams v. Williams, 50 W. supra." —T. of Memsha v. Wis. Cm. Ry. Co., 65 W. 502, 506. 22. Under our statute (contrary to other states and 29 Car. II) sec. 2304, a parol contract for the sale of land is 'void, not merely voidable. 23. "In Smith v. Pinch, 8 W. 245, Whiton, C. J. says: 'It is only in eases where the defendant would be enabled to practice a fraud upon the complainant unless the contract is specifically executed that a court of equity will interfere. 24. If the purchaser has gone into possession of the land so as to render him liable as a trespasser if the agreement is held void, the court will enforce the performance' ". — Popp v. Swcmke, 68 W. 364, 368. « 25. In an oral contract for the sale of land, "the payment of any con- siderable part of the purchase money, and entering into the possession of the purchased premises and making improvements thereon, are suffi- cient to take the case out of the statute and justify the enforcement of the contract. Bowen v. Warner, 1 Pin. 600 ; Blanchard v> McDougall, 6 W., 167 ; District No. 3 v. Macloon, 4 W., 79 ; Fisher v. Mooliek, 13 W., 321 ; Ingles v. Patterson, 36 W., 373 ; Smith v. Finch, 8 W., 245 ; Cameron v. Austin, 65 W., 652; Seaman v. Aschermann, 51 W., 678, 682." —MaWhinne v. Martin, 77 W., 182, 196. 26. On the deed of homestead by husband alone, with oral agreement of husband and wife to son, specific performance is granted as against the other heirs. See Homestead. 27. Where a void deed of a homestead was given to a son, it was held that he was, "entitled to a specific performance" as against the heirs. See Homestead. — Whitmore v. Hay, 85 W., 240, 249. 28. For some years "the plaintiffs not only failed to perform during the time mentioned, but, after having expressly refused to perform, they attempted, during all that period, to compel, the performance of an alleged contract never made, and thereby caused great expense to. the defendants", and specific performance was refused. (Many eases). 29. "While courts are to be guided by the settled principles of equity in decreeing or refusing to decree specifie performance, yet it is always to be done with reference to the facts of the particular case. Hennessey v. Woolworth, 128 U. S. 438 ; McCabe v. Matthews, 155 U. S., 550." —Doctor v. Furch, 91 W., 464, 478. 30. It is intimated that specific performance of an oral contract to devise lands for services, might be had, on performance of the services and being "put in possession by the promissor". See Parol. — Rodman v. Rodman, 112 W., 378, 384. STARE DECISIS 1037 31. ' ' The law seems to be that, in ease the vendee might have specific performance for a similar breach on the part of the vendor, the doctrine of mutuality requires equity to give similar relief to the vendor on his application". . 32. "Where part of an entire contract relates to personal property, and the rest to a subject matter such as land, over which the jurisdiction is ordinarily exercised, specific performance may be had of the con- tract as a whole, including the clause relating to personal property. (Cases)". , 33. Part performance as to the realty is held to entitle specific per- formance as to the personalty. See also Frauds, Statute of. —Kipp v. Laun, 146 W. 591, 602. 34. Value of wife's inchoate dower interest computed and withheld, she not having signed the contract, and refusing to deed. See Land Contract. —O'Malhy v. Miller, 148 W., 393, 394. 35. In an oral contract to convey lands, -"a partial and substantial performance with an offer to perform the balance", is considered "equivalent to. an obligation to perform. 36. But", "the contract itself meets with the requirements entitling it to specific performance. It is definite, mutual, and founded upon a valuable consideration. It is free from fraud or mistake, and is reasonable in its scope and purpose. These are the essential requisites. Mulligan v. Albertz, 103 W. 140". — Dingman v. Bilberry, 159 W. 170, 178. SPENDTHRIFT. See Guardian and Ward. Incompetents. STARE DECISIS. See also Judicial Decisions. Appellate court's errors, 9. Corrected without prejudice, Long stood at rest, 2. Stand for all cases, 3. Once decided by court, 1. Trial courts guide, 7. Though may be righted, Wrong rule firmly fixed, 4. Eule of property, 5. 1. "When the precise point in controversy has been once decided by this court in a case where it has properly arisen, and such decision has not been overruled by this court, it will be treated as settled in future 1038 PKOBATE AND GENERAL LAW, CODIFIED cases, except where, conceding the decision, this court is asked or deems it proper to review or overrule it. 2. And even then it should not be disturbed after it has long stood at rest as an established principle of law, affecting the rights of prop-' erty, which have for a long time been adjusted in accordance with it, without the most cogent reasons. 3. Affirmatively and prima facie, at least, it will stand as the law of all cases, and require no authorities or decisions elsewhere to support it". —Hawks v. Pritzlaff, 51 W. 160, 161. 4. "The rule of stare decisis" "is grounded upon the idea that it is better to abide by a wrong rule firmly established than to seek to avoid or right it at the expense of those who have relied upon it. 5. That doctrine has controlling force where the wrong rule of law .has become the rule of property, unless the circumstances indicate an overpowering necessity to change it, which necessity cannot be satisfied by the exigencies of any particular case. 6. When, however, the rule of stare decisis is invoked to secure adher- ence to a wrong doctrine which may be corrected without prejudice to anyone other than a party before the court, and others similarly situated as regards pending litigations, where no rule of property is required to be changed, courts are not so firmly bound by a previous ruling but that they may correct it with considerable freedom, if- firmly convinced that it stands in need of correction". 7. "Trial courts are expected to be guided by the decisions of this court, and where, they reasonably submit to such guidance and con- siderately decide accordingly, their decisions should not be disturbed even though the result be that the question involved, as an original proposition, is decided wrong. 8. The rule of stare decisis must go that far, even where the judicial rule involved, though wrong, need not be sustained as a rule of prop- erty, the disturbance of which would be injurious to public interests ' '. 9. Such adherence may cause occasional "sacrifice of individual rights", but "that does not militate at all against judicial freedom in appellate courts to correct their own errors in all proper cases". — iWhereatt v. Worth, 108 W. 291, 295, 303. STATUTE OP FRAUDS. See Frauds, Statute op. STATUTE OF LIMITATION. See Limitation of Actions. STAY OP PROCEEDINGS 1039 STATUTES See also Construction of Statutes. Administration of estates, 2. Judicial notice, publication, 1. Substantially as most, 2. Probate courts, from statutes, 3. Conveniently classified, 4. 1. Courts will take judicial notice of the fact and time of publication, and "the certificate of the secretary of state, appended to the pub- lished volumes of laws," will be taken as proper proof of such fact and date, in the absence of other evidence. —Atty. Gen. v. Foote, 11 W. 14. 2. "Our statutes regarding the administration of the estates, the sale of the property, the payment of the debts and distribution of the "assets of deceased persons, are the same substantially as those which prevail in most of the states". —Williams v. Ely, 13 W. 1, 7. 3. Probate courts derive their powers solely from the statutes. See County Court. — Sitzman v. Pacquette, 13 "W. 291, 305. 4. (For the statutory provisions conveniently classified under the various chapters covering the specific proceedings in the administration of estates, and matters akin thereto, — see Zimmerman's Probate Practice. ) STAY OP PROCEEDINGS. Ancillary proceedings authorized, 5, 11. Sale vacation, appeal: Separate action, pleading appeal, 6. Suspended the order, 3. County court order staying, 15. Judgment in force, 3. Bond order, 'acted upon, 13, 14. . Will probate appeal: Interpret such stay, 12. Creditor's order after appeal, 10. Within judicial powers, 16. Executor qualifies before, 7. Guardianship appeal: Order notice to creditors, 7. Prom order appointing, 1. Effective pending appeal, 8, 9. Not authorized to act, 1. Letters not granted, 2. Matter appealed from only, 4, 11. 1. On an appeal to the circuit court from the order of the county court appointing a guardian of an incompetent person, it is held that the guardian could not "be authorized to act", "because the appeal would have the effect to suspend the order appointing Him, until the determination of the appeal". —Gaston v.'Babcock, 6 "W. 503, 508. 2. "The county court could not proceed and act upon the petition for letters of administration with the will annexed, pending the appeal 1040 PROBATE AND GENERAL LAW, CODIFIED from the order approving the will. All proceedings in that respect were suspended until the matter of the appeal was finally decided, and the cause remitted to the county court". —In re Fisher, 15 W. 511, 521. 3. An appeal having been taken from an "order vacating the sale," under a judgment of foreclosure, it is said, — "we are of opinion that the appeal suspended the order appealed from, and made it entirely inoperative, and consequently that the judgment remained in force dur- ing the pendency of the appeal". —Aetna Life Ins. Go. v. McCormicJc, 20 "W. 265, 272. 4. Quoting the statute, sec. 4036, as to staying proceedings on appeal, it is said, of Gaston v. Babcock, 6 W. supra, and In re Fisher, 15 W. supra, "that the decisions so far made have only gone to the extent of holding that no proceedings could be taken. in the county court in furtherance of the matter appealed from, pending the appeal. 5. It was not the purpose of the statute to limit or suspend the right the party might have to commence and maintain ancillary proceedings authorized by law in some other court", unless the judgment or order "entirely suspends its efficacy for any purpose". See also Smith v. Schreiner, 86 W-. 19, 23 (under Res adjudicata). ,- 6. Here a claimant who obtained judgment, was sustained in bring- ing an action as a creditor to obtain uninyentoried assets under section 3835, pending an appeal from his judgment on his claim. —Richter v. Leiby, 99 W. 512, 515. 7. "Where "a will was duly admitted to probate, and the executor qualified", "an order was made limiting the time for" claims, and "publication of the notice of such order was begun", and "a few days after the first publication, an appeal to the circuit court was taken from the order admitting the will to probate", and there such order was reversed, and subsequently the supreme court reversed this judg- ment ' ' and the cause remanded with directions to affirm the original order of the county court", it is held, — 8. That "it is clear that" neither sec. 4036, or any other, "operates to stay the running of the limitation" as to claims. 9. ' ' Neither the publication of the notice to creditors, nor the running of the limitation, can properly be called a proceeding 'in pursuance of the order admitting the will "to probate. 10. The order limiting the time for creditors to present claims may perhaps be so called, although this is not decided; but this order had been made at the time the appeal was taken, and hence it could not be affected thereby". — Butler v. Templeton, 115 W. 382, 384. 11. Following Richter v. Leiby, 99 "W. supra, it is held that "the appeal from the order of county court", in a guardianship accounting, STIPULATION 1041 "did not serve to stay the institution of suit in circuit court on the bond, but merely further proceedings in the county court in pursuance of the order appealed". —Wescott v. Upham, 127 W. 590, 596. 12. "The county court has power, after requiring an executrix ap- pointed by the will without bond to give bonds and after stay of pro- ceedings on such order ( 430. 2. "Curious ground of error is assigned, that a stipulation of counsel in open court, and entered of record,- was not made in fact. Possibly, in such a case, we might take jurisdiction by mandamus to the court below to vacate the entry. But upon appeal we can listen to no sugges- Zimmerman — 66 1042 PROBATE AND GENERAL LAW, CODIFIED tion, accept no proof, that such an entry is untrue. While it stands, it imports absolute verity. Germann v. Schwartz, 21 W. 661". —Wilcox v. Bates, 45 W. 138, 146. 3. "Stipulations entered into in relation to the management and con- duct of an action by an attorney are binding upon his client, and cannot be set aside or disregarded at his mere caprice or option. 4. The court, however, may, upon proper cause shown, relieve a party from the effect of a stipulation, or set it aside ; and what is proper cause is a matter of discretion with the court, the exercise of which will not be interfered with on appeal, unless this discretion has been abused". 5. A stipulation to waive a jury trial was held properly set aside, conditions and the importance of facts appearing different from what were supposed. — Brown v. Cohn, 88 W., 627, 636. 6. A stipulation of the parties to a will contest, for counsel fees out of the estate, is held not binding, and against public policy. See Costs and Pees. — Fox v. Martin, 108 W. 99, 101. 7. A will contest adjusted by stipulation, held not to thwart the will, — the parties being enabled otherwise to effect adjustment accord- ingly. See Trust Variations. —In re Luscombe's Will, 109 W., 186, 198. 8. Where a material date was stipulated, "and that no testimony should be received in conflict with the stipulation", and the testimony taken indicated a different date, — "as no application was made to the trial court by the appellant to be relieved from the stipulation, it must be held to control". — Abrmns v. 77. S. Fidelity & O. Co., 127 W. 579, 585. 9. "When all parties to a litigation stipulate or consent to certain action by the court, such stipulation should be carried into effect" "as a general proposition, though obviously with some limitations. 10. For example, a court could not be compelled to stultify itself by solemnly adjudging absurdity or a falsehood because parties stipulated for such act. 11. Independently however, of" such exceptions, "doubtless it should give effect to a stipulation so far as it affects the individual rights of the parties thereto". 12. And parties to a stipulation may "preclude themselves individually frota setting up any rights in opposition to such stipulation". 13. A stipulation by all the heirs as to incompetency of testator, and to disallow a will, is held not to control. See also Probate of Wills. — Will of Dardis, 135 W. 457, 461. 14. The authority to set aside a stipulation, "is a judicial discretion to be exercised in promotion of justice and equity and not in subversion thereof". SUBROGATION 1043 15. "Especially impregnable is such a contract (of mutuality) when the one party thereto has received and enjoyed the fruits thereof, and the other, on the faith of it, has so changed his situation that he will be seriously and irremediably prejudiced." ' 16. Where "the parties have so acted in execution thereof that the statu quo cannot be re-established as to one of them, 17. It is only in a plain case of fraud, mistake, or oppression that the court should set it aside. ' ' See also Attorney and Client. —III. 8. Co. v. Warms, 141 W. 119, 124. 18. An agreement by all parties to a will contest to substitute a dif- ferent distribution than the will provides, is held void though approved by the judgment of the court. See Probate op Wills. —Will of Bice, 150, W. 401, 448. 19. An agreement to settle a contest and that the widow 's proportion of the residue be intestate estate, after widow's election, — contrary to the will, — held inoperative. See Descent and Distribution. —Will of Reynolds, 151 W., 375, 384. STRANGER. Administration granted, 1. Cannot move the court, 2. Though subsequent purchaser, 3. First procure status, 2. 1. Administration granted to a stranger within thirty days of the decease, is irregular and should be annuled. See Administration. — Brunson v. Burnett, 2 Pin. 185, 188. 2. ' ' Stranger to the record, and not in any sense a party to the suit, ' ' is not competent ' ''to appear therein and make a motion. He must pro- cure a status in court by petition or bill", first. —Ward v. Clark, 6 W. 509, 512. 3. "A stranger to the record", though a subsequent purchaser of lands upon which a judgment has become a lien, cannot move the court to vacate a judgment for irregularity in entering or docketing it. —Packard v. Smith, 9 W. 184. SUBROGATION. i Compelled to pay mortgage, 24. Contribution, between sureties, 4. Interest by verbal contract, 25. American, statute, rule, 6. Possession; improvements, 25. Equity; and law, 5. 1044 PEOBATE AND GENERAL LAW, CODIFIED Contribution, ■ etc. — continued . Keep judgment alive, 6. Surety has creditor's rights, 6 Surety who has paid, 4. Definition of, 10, 20. Independent of contract, 13. Misapplied by trustee, 22. Eecognized equity principles Rights of original, only, 11. Favored by the law, 20. Homestead : Mortgage paid by wife, 12. Laches; third persons, 19. Limitation period, 19. Life tenant; incumbrance, 8. Existing mortgage paid, 15. Mortgage on the fee, 16. Life tenant — continued Remainderman; grantee, 9. Security turns out void, 17. Loan to pay estate debts, 1. Defective mortgage security, 1. Not treated as volunteer, 2. Money: for purchase price, 3. 14. Failure to secure; fraud, 7. To pay off a mortgage, 7. Security turned out void, 17. Not regarded as volunteer, 18. Volunteer : / Interest to protect, 18, 21. Misapplied by trustee, 22. Without security promise, 23. No subrogation right, 23. 1. Where the plaintiff loaned money to executors to pay a $600 mort- gage of M. and taxes, "which were incumbrances" and liens prior to subsequent mortgages of M., "at the solicitation of the executors, to take up and relieve the estate," and took as security and relied on a mortgage from the executors under license of the court, which proved "defective and does not bind the heirs", — his money has been "applied to the discharge of just debts against the estate, and he has the prior right to be reimbursed out of the estate to the extent of the incum- brances which he has removed ' ', on the principles of subrogation, though the $600 mortgage was not assigned, but paid. 2. "Plaintiff loaned his money at the request of the executors, rely- ing upon the validity of the mortgage which they had been ordered by the probate court to execute, and is not to be, treated as a volunteer in the legal sense of that term." — Levy v. Martin, 48 W. 198, 206. 3. One who furnishes the money actually paid, may be "subrogated to the right of the vendor to an equitable lien upon the land for such purchase money." See Lien. — Carey v. Boyle r 53 W. 574, 579. 4. "Actions to enforce contribution between sureties, and to subro- gate a surety who has paid the debt of the principal debtor to the securities and rights of the creditor, are constantly sustained by courts of equity, and have been from the earliest time". 5. "Although courts of law have a very extensive concurrent juris- diction over the same subject, the right of the plaintiffs (co-sureties who paid the judgment) to be subrogated to the remedies of the judg- ment creditor, is, also, clearly a matter cognizable by a court of equity ' '. 6. "The American rule is fully recognized in our statute", (sees. 3021-24), and as "formerly held in England, following the Roman law", provides "that a surety subrogated to the rights of a creditor had pre- cisely the same rights the creditor had, and stood in his place ' ', i. e. he "may keep the judgment alive, and retain the lien thereof upon the SUBROGATION 1045 lands of the other judgment creditors, for the purpose. of enforcing contribution by the latter' '. —]tf ason v pi erron ., 63 W. 239, 244. 7. Where one loans money to two of the defendants to pay off a mortgage on their land, and by "agreement, was to have equal security on the land, and, to protect that interest,, caused the first mortgage to be discharged," on the principle of Levy v. Martin, 48 W. and Carey v. Boyle, 53 W., supra, is entitled to "be subrogated as mortgagee to the mortgage paid and discharged," where these two defendants failed to execute a new mortgage, but instead conveyed the land to the third defendant with knowledge and with intent to defraud. —Wilton v, Mayberry, 75 W. 191, 193. 8. A life tenant paying an incumbrance, when and when not subro- gated. 9. As between life tenant and remaindermen, and subsequent grantee. See Widow. — Mehns v. Pabst Brewing Co., 93 W., 140, 148. 10. Subrogation "may be said to be that equitable right by which one person who has paid a debt for which he is only secondarily liable is entitled to succeed to and utilize the security and remedies possessed by the original creditor. Bispham Eq., 335. 11: Manifestly,. the right of the person subrogated is measured by the right of the original creditor, and cannot be extended further. Franklin S. Bank v. Taylor, 131 111. 376 ". —Evison v. Hallock, 108 W. 249, 251. 12. As to subrogation upon payment of a mortgage on a homestead, by the wife, and as to recovery being barred. See Claims. Limitation of Actions. • — Gharmley v. Chwnrtle'y, 125 W. 297, 303. 13. "The right of subrogation exists independently of contract and is equitable in its nature. 14. It is a means by which justice may be accomplished by subrogating one party to the rights of another in accordance with the recognized principles of equity jurisprudence. (Citations)." 15. Where a life tenant and executrix gave a mortgage to H. on the whole property, and with the proceeds paid an existing mortgage due thereon, which was satisfied, and the parties intended to give and receive "a mortgage upon the fee to the extent, at Least, of giving" such mort- gagee "all the rights of the original mortgagee", 16. ' ' The agreement of the life tenant and executrix to give a mortgage on the fee, and the execution and delivery of it and payment of the original mortgage with the money, would bind the fee to the extent of subrogating H. or his assignee to the interest of >the original mortgagee. (Many cases)." 17. "Where the security given for the loan which is used to pay off an encumbrance turns out to be void, although the party taking it ex- pected to get good security, he will be subrogated to the right of the holder of the lien which the money advanced is used to pay, and," 1046 PROBATE AND GENERAL LAW, CODIFIED 18. "In such case the party advancing the money cannot be regarded as a stranger or volunteer". 19. As to laches, where "no rights of third parties have intervened who are prejudiced by the delay ' ', it is said that ' ' in the absence of an equitable estoppel the ordinary rule is that nothing short of the statutory period of limitations will bar the right" of subrogation. See also Limita- tion of Actions. — Hughes v. Thomas, 131 W. 315, 319. 20. ' ' The doctrine of subrogation, by means of which a debt once paid or a security discharged is kept alive as against the principal debtor for the benefit of a third person who, not being a mere volunteer, has paid the debt, is an equitable doctrine, favored by the law. ' ' 21. "It is well settled that one who is legally bound to pay the debt or who has an interest to protect thereby is not a volunteer. 22. It is also held without substantial conflict of opinion that where a fund is misappropriated by an agent or trustee without the owner's consent to the payment of the debt to another, the owner of the fund is not a volunteer, but will be entitled to subrogation if necessary for his due protection. ' ' — Reddington v. Franey, 131 W. 518, 521. 23. ' ' This court is committed to the doctrine that in the case of a loan of money or credit unaccompanied by a promise to give security, no right of subrogation exists, even where it is understood that the money is to be used in paying a secured debt. (Cases) "- —Murphy v. Baldwin, 159 W. 567, 571. 24. "One who is compelled to pay off a mortgage on land in order to protect his own interest therein is entitled to be subrogated in place of the mortgagee and have the mortgage lien enforced in his own favor so far as necessary to protect himself against loss. Charmley v. Charmley, 125 W. supra." 25. So held, where the "interest in the land" was acquired "under a verbal contract of purchase" of the life estate, the purchaser "having taken possession" and made improvements. See also Title. —Tellett v. Albregtson, 160 W. 487, 491. SUBSCRIBING. See Execution of Wills. SUBSCRIPTION. Action; part for all, 3. Liability is a debt, 4. Have incurred obligations, 2. But not absolute, 4. Sufficient consideration, 2. Telegram attached, 1. SUNDAY 1047 1. A subscription by telegram, attached to the subscription list, with a condition, "was a continuing offer" and "revocable until accepted", and "made a binding contract", where acted upon "within a reasonable time", and before revocation. 2. ' ' The doctrine is well settled in this court, and the authorities are collected in Gibson v. Grinsel, 79 W., 365, 371, where it is said that all the authorities agree that, where 'the persons to whom the subscrip- tions run have expended money or incurred obligations on the faith of such subscriptions, it is sufficient consideration to support the promise to pay'. (Citations.) No formal acceptance was necessary," expending money, etc., being "a sufficient acceptance." —Superior C. L. Co. v. Bickford, 93 W., 220, 222. 3. "An action at law by a part of the subscribers to a building fund, who had incurred obligations" thereunder, may, under sec. 2604, be brought for all, there being seventy-five. The liability is several, and "is to be enforced in an action at law against ' ' one. Superior C. L. Co. v. Biekford, 93 "W., supra; Gibbons v. Grinsel, 79 W., 365. —Hodges v. Natty, 104 W., 464, 467. 4. "A subscription liability for capital stock in a corporation is a debt, as said in 1 Cook, Stock, § 105, and in Hatch v. Dana, 101 U. S., 205". "but not an absolute debt", being "payable in the i future." See also Contingent Claim. —South Milwaukee Co. v. Murphy, 112 "W., 614, 622. SUBSTITUTION. See Attorney and Client. SUCCESSION TAX. See Inheritance Taxes. SUNDAY. See also Unlawful Contracts. Burden of exception, 10. Contracts mature; next day, 4. Car-load of potatoes, 34. Deed, checks, recording, 32. Delivery, payment, Monday, 35. , Defense not set up, 28, 33. Oral; void two reasons, 34. Delivered after, valid, 37, 42. 1048 PROBATE AND GENERAL LAW, CODIFIED Estoppel no aid, 40. Ratification, etc.; — continued. Executed on week day, 14. Dated following day, 38. Last day Sunday; years, 22. Deed, check, recording,- 32. Days under sec. 4971, 23. New contract made, 30, 35. Performed preceding day, 22. Recognition acts, 29, 35. Lease; absolutely void, 15. Release of damages, 18. Incapable of ratification, 15. Remedy: neither party, 20. Not competent to prove, 16. Not enforce or set aside, 19. Materials furnished, 21. Services' quantum meruit, 13, 31. Account stated, 21. Amend to conform, 13. Unless subsequent promise, 21. Ground not set up, 28. Money loaned; business, 5, 9, 11, 24. New contract shown, 31. Money paid and retained, 17. Settlement, old account, 25. Not enforced in law, 7, 8. Kentucky law same, 26. Not void for all purposes, 6. Signing of a petition, 12. Partial payments, effect, 39. Signed, delivered after, 37. Pleadings, secular day, 41. Mailed after, valid, 42. Might not be conclusive, 41. Subscription; build church, 27. Publication Sunday, 36. Subsequent promise to pay, 2. Ratification, incapable of, 15, 29, 34, 38, Tort; defective bridge, 1. 40. Navigating on canal, 3. ■ 1. The fact of driving cattle across a defective bridge on Sunday in violation of law, will not prevent recovery in "an action of tort, founded not on the contract, but on the tort or wrong subsequently committed by the defendant." Cases fully discussed. —Sutton v. Wauwatosa, 29 W. 21, 27. 2. "Where a contract, otherwise valid, is void by reason of having been made on Sunday, as where property is sold and delivered on that day on credit, a subsequent promise to pay for the goods, made on any other day than Sunday, is valid, and an action can be maintained on such new promise ' '. See also Consideration. —Melchoir v. McGarty, 31 W. 252, 256. 3. In a tort action, "the same state of facts which would entitle the plaintiff to recover, had the injury happened on any day other than Sunday, will entitle him to recover in this action, notwithstanding the injury was received on Sunday, and when he was unlawfully navigating the canal with his boats". —McArthur v. Green Bay & M. C. Co., 34 W. 139, 150. 4. Contracts maturing on Sunday are applied to the succeeding day. See Holidays. —Siegbert v. Stiles, 39 W. 533, 535. 5. After a review of many cases, it is said: "The decisions of this court are clearly in harmony with the weight of authority upon the point here involved." 6. "In Moore v. Kendall, 2 Pin. 99, the court said: 'Admitting the sale of the goods to have been made on Sunday, it by no means follows that it was void for all purposes' ". SUNDAY 1049 7. "Following that decision, this court, in Hill v. Sherwood, 3 W. 343, held that 'a contract or agreement made on Sunday will not be enforced in a court of law'. Melchoir v. McCarty, 31 W. supra, is to the same effect, and there too there was a subsequent promise". 8. In this case "there was ho subsequent express promise, written or oral", and ''without questioning Melchoir v. McCarty, we desire simply to hold : 9. (1) The loaning of money on Sunday is 'business', within the ' meaning of the statute, and presumptively illegal. 1 10. (2) Any party desiring to bring himself within the exception of. the statute has the burden of doing so. 11. (3) The mere fact that' a person borrowing money on Sunday retains it and converts it to his own use, does not raise an implied promise binding in law, and upon which an action can be maintained". — Troewart, Admr. v,i Decker, 51 W. 46, 52.; 12. The signing of & petition to issue bonds in aid of a railroad, is held to be "business" within the meaning of the Sunday statute, as to avoid- such petition where the number of petitioners is insufficient without such Sunday signatures. —DeForth v. Wis. & M. 71. Co., 52 W. 320. 13. Where a contract for services was void, because found by the jury to have been made on Sunday, ' ' on proper pleadings the plaintiff would be entitled to recover for his services quantum meruit," and i the court properly allowed such amendment "after verdict to agree with the proofs". —Thomas v. Hatch, 53 W. 296, 297. 14. An agreement for damages for a trespass, made on Sunday and "fully performed and executed on a week day, was valid. (Cases) ". —Taylor v. Young, 61 W. 314, 324. 15. A lease was dated Saturday, possession was to be given by its terms, Monday, and in fact was executed and possession delivered on the inter- vening Sunday. Held, the "lease was absolutely void under the decisions of this court, and was incapable of ratification. ' ' 16. Whatever tenancy and subsequent payment of rent there was, was governed by such subsequent proceedings only. The written instrument "was not Competent to prove the contract", between the parties. — Yinz v. Beatty, 61 W. 645, 648. 17. "It is settled that money paid out on Sunday, and retained, dis- charges the debt. Johnson v. Willis, 7 Gray, 164." — Shields, v. Klopf, 70 W, 69, 73. 18. An "agreement of release of damages", from a railway company, executed and delivered on Sunday, is held void following De Forth v. Wis. & M. Ey. Co., 52 W., supra. —Smith v. C. M. & St. P. By. Co., 83 W. 271, 273.. 1050 PROBATE AND GENERAL LAW, CODIFIED I'D. ' ' The court will neither enforce nor set aside a contract which is illegal, and not fraudulent, from being made on Sunday. (Many cases). 20. The full statement of the principle is that when both parties enter into an illegal contract, without fraud on the part of either, the courts will leave the contract as they find it, without a remedy to either party." Dismissal upheld. — Cohn v. Heimbauch, 86 W., 176, 180. 21. Recovery cannot be had for materials furnished on Sunday, but "a recovery might have been had if there had been a subsequent promise on a secular day to pay for the materials, or if there had been an account stated between the parties (Melchoir v. McCarty, W., supra) ", but not with an account merely "rendered for it". 22. "By the great weight of authority, where the time for doing an act is one or more years, and the last day falls on Sunday, it cannot be lawfully performed on the next- day. In such case the act should be performed on the preceding day. (Many citations,) 23. The ease is not within the statute (sec. 4971), which applies only to cases where the time in the statute 'is expressed in days', and is not controlled by Buckstaff v. Hanville, 14 W. 77 ' '. So held as to a labor lien. —Williams v. Lane, 87 W., 152, 158. 24. ' ' Loaning money and taking a note therefor is business within the meaning of the statute. (Sec. 4595.) Troewert v. Decker, 51 W., supra. 25. By the same reasoning the settlement of an old account for mer- chandise sold, and the taking of a note therefor, is business". 26. Such business under a similar Kentucky law, on Sunday, is held invalid there, and therefore here. See also Foreign Laws. —Howe v. Ballard, 113 W., 375, 378. 27. "A subscription" to build a church, made on Sunday, is held "to come within the exceptions of the statute ' ', sec. 4595, and is valid. —Hodges v. Nalty, 113 W., 567, 573. 28. Where the proof showed the contract made on Sunday, no recovery could be had' though such ground was not set up in the answer. See also Quantum Meruit. —Pearson v. Kelly, 122 W. 660, 663. 29. A contract made on Sunday, notwithstanding "acts of subsequent recognition," is "absolutely void, and hence incapable of ratification. • 30. A new contract might be made between the parties, either expressly or by implication, from their dealings; but this would be an independent contract, and not a ratification of that which was void." 31. On such "subsequent dealings", a party may "prove either that a new contract was made", or "show the reasonable value of" labor and material furnished in such dealings. —Sherry v. Madler, 123 W. 621, 624. SUNDAY 1051 32. Where the transaction, including delivery of the deed and of a check therefor, occurred on Sunday, — the fact of subsequent payment on the check and subsequent "acknowledgement, the recording, and the transmission of the deed", "were mere incidents to the transaction", and the contract being void was ' ' not susceptible of ratification ' '. (Many cases.) 33. "The fact that the defendant in his answer did not assert the invalidity of the contract upon the grounds" that it was made on Sunday, "does not preclude him from insisting that the agreement cannot be enforced. ' ' See also Checks. — Jaeobson v. Bentzler, 127 W. 566, 568. 34. While an oral contract for a car-load of potatoes at a given price, made on Sunday, is void and incapable of ratification, and is also void under the statute of frauds, (cases, supra) yet, 35. A delivery and payment therefor made on Monday following, and a warranty, "was tantamount to a sale on that day" and "to an agree- ment upon the price to be paid, and the conclusion therefore follows that the transaction on Monday constituted a complete contract of sale and delivery". —King v. Graef, 136 W. 548, 551. 36. Citing Williams v. Lane, 87 W. and other eases, supra, it is held that, in an action "on quantum meruit to recover" for advertising in Sunday issues of a newspaper, "no recovery could be had therefor". Sec. 4595. —Sentinel Co. v. A. D. Meiselbach M. W. Co., 144 W. 224, 229. 37. "A contract signed on Sunday but not delivered till a secular day is valid. (Cases)". —O'Day v. Meyers, 147 W. 549, 556. 38. A "contract having been made and delivered on Sunday", and dated the following day, "was void and incapable of ratification. King v. Graef, 136 W. supra; (other cases) ". 39. "Partial payments made under a Sunday contract are not suffi- cient to import a new contract. (Many cases) ". 40. "The terms of a Sunday contract cannot be given life upon the principles of estoppel any more than upon the principles of ratification. (Many cases) ". —Cist v. Johnson-Cary Co., 158 W. 188, 194. 41. Where "the complaint alleges and the answer admits that the contract was made on a secular day", it "might not be conclusive if it appeared beyond doubt that the contract was fully completed on Sun- day. (Case)". 42. If "drawn and signed on Sunday", and "delivered by mail on a secular day", it "thus became a valid contract. Gibbs & S. M., Co. v. Brucker 111 U. S. 597". —Zielica v. Worzalla, 162 W. 603, 607. 1052 PROBATE AND GENERAL LAW, CODIFIED SUPPLEMENTARY PROCEEDINGS. In the action itself, 1. Substitute; creditor's bill, 2. 1. "A supplementary proceeding is a proceeding in the action itself, and not a distinct and independent action or proceeding, like the former creditor's bill in equity". 15 How. Pr. R. 412. 2. "The very name supplementary proceeding implies that it is a proceeding in the same action, although it is to some extent, and in many cases, perhaps, fully, a substitute for a creditor's bill under the old practice." , —Barker v. Dayton, 28 W. 367, 380. SUPPORT AND MAINTENANCE. See Bond foe Maintenance. "Widow. SUPPORT OF INSANE, POOR, ETC. See Paupers. SURETIES. See also Bonds. Contribution. Subrogation. Additional bond: Insolvency; interest; penalty, 35. Appeal bond: Liability thereunder, 86. Not impeach judgment, 34. "Appointment of guardian", 53. Includes qualification, 53. Breach fixed by judgment, 58, 68. Conclusive on sureties, 68. Insolvent in insolvent bank, 59. Permissive; sue; deceased surety, 79. Default not determined, 80. Without notice, 81. Though absconded or died, 58, 78. Valid promise of principal, 60. To indemnify, 60, 61. Contingent claim: Surety; deceased principal, 42. Contribution : co-surety, 13,, . 36. At law; equity, 50, 72. Bound for same obligation, 67. Different instruments, 67. Contribution — continued One surety 1 pays whole debt, 73. Reasonable attorney's fees, 74. Principal's insolvency immaterial, 75. Discharge powers statutory, 62. Principal by law, 66. Fraudulent deed set aside, 71. Surety not paid debt, 71. Incompetent 's realty sale : Limited to bond stipulations, 70. Mortgage,' not mentioned, 69. Sureties and ward; not liable, 69. Indemnify; Implied promise to, 60. Not within statute, 8. "Valid oral promise, 61. Without payment, 61. Liable to third person, 88. Limitation, against co-surety, 43. Equity, ten years statute, 46. Four-year statute; ward, 85l Guardian 's accounting, 85. SURETIES 1053 Limitation — continued Runs from each installment, 44. Six years from payment, 45. Married woman: Separate estate; applicable, 7. Husband; third person, 7. Not binding at law, 5. Likewise in equity, 5, 6. Not made a party, 87. Not concluded or relieved, 87. Obligation of: Nothing by inference, 22. Not materially changed, 23. Official bonds: Fraud upon his sureties, 33. Judgment against principal, 21. Evidence against sureties, 21. Open judgment, when, 65. Pay when due; sue co-surety, 38. Without demand or notice, 38. Probate bonds: Concluded by proper decree, 52, 55. Though not parties, 56. Contribution at law; equity, 50. Permission unnecessary, 50. Contribution; co-surety, ' 11, 36. Accounting order conclusive, 11. Co-surety, subrogation rights, 37. Demand not requisite, 20. Discharge powers statutory, 62. Failure, object to inventory, 48. Judgment conclusive on, 47, 52, - 68. Not notice to sue, 9, 20. Payment after suit 1 threat, 49. Subsequent trustee may sue, 57. Two sureties, expected others, 51. Promissory notes: Discharged : Credit extended principal, 10. Creditor; act injurious, 3, 16. Extension of note, 4, 41. Promissory notes — continued Discharged — continued Extension; usurious agreement, 26. Invalid; not released, 26. Extension; usurious bonus, 28. Binding, surety released, 28. Premium paid in advance, 30. Twenty or thirty; definite, 29. New note to take up, 31. First note collateral, 32. ■Stockholders and officers sureties, 63. Officer extends time, 63. Voluntary release, 64. Unexecuted agreement, extend, 27. May pay, without suit, 2. Show relation by parol, 4, 24. Not appear by the contract, 25. Where creditor knows, 24. Singular, A. and B., "surety", 1. Principles of suretyship : Collateral to contract, 12. Creditor not diligent, 15, 19. Equally with principal, 13. Equity sometimes interferes. 17. Compel principal, or creditor, 18. Right to notify creditor, 19. Liability of principal, 14. Surety's diligence required, 15. Release of principal, 39. Releases surety, 39. Surety fully indemnified, 40. Release without payment, 40.- Signatures: proper place, 76. Question of evidence, 77. Surety dies; estate settled, 82. Executor's liability, 83. No claim filed, 82. No final distribution, 84. Without having paid, 54. May sue in equity, 54. 1. A singular note signed by A., and by B. "surety", is held to be joint and several, and both liable as principals. , — Dart v. Sherwood, 7 "W. 523. 2. A surety "might at any time become a creditor of" his principal's estate by paying the note. "It was not necessary that he should be sued *, in order to render him a creditor". 3. "If a creditor does any act injurious to the surety, or inconsistent with his rights, or omits to do any act when' requested by the surety, which his duty, enjoined him to do, and the omission proves injurious to the surety, in all such cases the surety will be discharged". — Gardner v. Van Norstrand, 13 "W. 543, 544. 1054 PROBATE AND GENERAL LAW, CODIFIED 4. A surety who signs as principal is held "absolved from responsi- bility as surety" where the time of payment on a note was extended; parol evidence is admissible ' ' to show his real relations to the other con- tracting parties". — Riley v. Gregg, 16 W. 666, 671. 5. ' ' The obligation of a surety is stricti juris ; and if his contract is not binding at law, there is no liability in equity founded on the con- sideration between the principal parties". 6. "A court of equity will not enforce a liability upon a surety, where he is not held at law". 7. "The principle governing the rights of sureties in general, is equally applicable to the case of a married woman having a separate estate, who has entered into a contract as surety for her husband or some third person. Yale v. Dederer, 18 N. Y. 276." —Leffingwell v. Freyer, 21 W. 392, 394. 8. "A promise to indemnify a surety for becoming responsible for the principal, which is made by a third party at whose request and upon whose credit the surety enters into his engagement, is not within the statute" of frauds. —Vagel v. Melms, 31 W. 306, 311. 9. A surety on an administrator's bond is not entitled to notice before permission to sue is granted.' See Bonds. —Elwell, Judge, v. Prescoti, 38 W. 274, 278. 10. Where credit is extended by the principal "without the consent of the sureties" for the payment of "any sum which had become due", "the sureties were thereby discharged from liability on the bond for such sum". —Weed & M. Co. v. Oberreich, 38 W. 325, 328. 11. In an action by a surety against a co-surety for contribution, the order of the probate court on an accounting is conclusive on the sureties. See Bonds. —Shepard v. Pebbles, 38 W. 373, 378. 12. ' ' The contract of a surety is essentially different from the con- tract of a guarantor. (Cases). The contract of a surety is collateral to the contract of his principal, and binds the surety for the contract of the principal. 13. It is not merely a contract to perform upon failure of the prin- cipal, but binds the surety equally with the principal for the per- formance of the contract of the principal. 14. The surety assumes for himself the liability of his principal". 15. "And, as Lord Eldon remarks in Wright v. Simpson, 6 Vesey, jr. 714, as between the creditor and the surety, the creditor assumes no obligation of active diligence against his principal ; and it is the business of the surety, not of the creditor, to see that the principal performs". 16. And it is held that Gardner v. Van Norstrand*, 13 W. supra, "does SURETIES 1055 not attempt to define the rights of the surety, or the duty of the creditor". 17. "While the foregoing states the legal contract, yet, "because the surety has no interest in the contract of his principal, and because the creditor or the principal debtor may prejudice the surety by delay, equity will sometimes interfere in behalf of the surety, either against his principal or against his creditor. 18. In such a case the surety may proceed in a court of equity against the principal, to compel him to pay the debt, or against the creditor to compel him to proceed at law to collect his debt, from the principal. (Cases)". 19. "This well established equitable jurisdiction appears to preclude the legal right claimed in this case for the surety: the right to notify the creditor to proceed, and, upon failure to do so, to stand released at law". —Harris v. Newell,' 42 W. 687, 690. 20. "A demand upon sureties is not requisite. Elwell, J., v. Prescott, 38 W. supra". —Vincent v. Storks, 45 W. 458, 463. 21. "Whilst we are compelled to admit that the authorities are con- flicting upon the question under consideration, we are clearly of the opinion that the weight of authority is in favor of holding the judgment against the principal in an official bond (of a deputy sheriff) prima facie evidence against the sureties," in an action against them there- after. —Stephens v. Shafer, 48 W. 54, 65. 22. " 'The obligation of a surety of a bond is strictissimi juris, and nothing can be taken against him by inference or intendment'. Smith v. Lockwood, 34 W. 72." 23. "In Sage v. Strong, 40 W. 575, Mr. Justice Lyon, in his opinion, says : ' The rule is elementary, and of almost universal application, that a surety for the performance of a contract or obligation is discharged if such contract or obligation be materially changed without his con- sent' ". —Nichols y. Palmer, 48 W. llO, 111. 24. Notwithstanding "the well settled rule of evidence, that a written contract cannot be contradicted or varied by parol testimony", still "where the creditor knows, when the note is executed, that a party signs as surety, then, as we understand, the great weight df authority admits parol testimony to show that fact. It was so decided by this court in Riley v. Gregg, 16 W. supra, where the question was directly presented", "and we are all now fully satisfied that the latter case lays down the true rule upon the subject". 25. "It is not necessary that it 'should appear from the contract itself that one signed as surety and not as principal. Suretyship, being a collateral fact, may be shown by evidence aliunde. Carpenter v. King, 9 Met. 511". 1056 PROBATE AND GENERAL LAW, CODIFIED 26. Where the time of payment was several times extended without the knowledge of the surety by "an executory usurious agreement" which, '.'under the decisions of this court, does not constitute a 'basis or consideration upon or out of which any binding promise for that purpose could arise or be created (cases) ", such agreements were void, did not bind the plaintiff not "to enforce collection of the note by action", and "under such circumstances the surety was not released". — Irvine v. Adams, 48 W. 468, 474. 27. "An agreement, which was neither executed nor based upon any new consideration", to extend the payment of notes, does not release the surety. — Jaffray v. Crane, 50 W. 349, 351. 28. A "usurious bonus" for extension taken by the holder of a note, though illegal, is "a sufficient consideration to bind" him, "so that he could not maintain a suit on the note until after the twenty days exten- sion had expired," "the defense of usury is so far personal to the borrower and those in privity with him". 29. "We therefore hold, (1) that an agreement for an extension of the time of payment of a note past due for twenty or thirty days, is for a definite period of at least twenty days; (2), 30. That an agreement by the holder of a note past due, with the maker, for an extension of the time of payment for a definite period, in consideration of an usurious premium paid in advance, without the knowledge or acquiescence of the endorsers, discharges the latter." —Hamilton v. Prouty, 50 W. 592. 594. 31. "Where the principal maker of a note past due, without the knowledge or consent of his sureties to the same, borrows money upon a new note with other sureties, for the purpose of taking up the first note", which was to "be transferred to such new sureties as collateral security and the money so borrowed is" so used, "it amounts to a pay- ment of the" first note, "and the sureties thereon are thereby dis- charged ' '. ! 32. "The principal maker, by so transferring the first note, after its payment, to the new sureties in consideration of their becoming such, is thereby estopped from alleging that such first note was in fact paid ' '. — Greening v. Patten, 51 W. 146, 151. 33. The obligee "is not interested in the question whether D. (prin- cipal) committed a fraud on his sureties in obtaining their signatures to the bond upon condition that he would procure" another "to sign it also". —School Dist. v. Dreutzer, 51 W. 153, 155. 34. A surety on an appeal bond cannot impeach for fraud the judg- ment appealed from, though he may so impeach an affirmance of the judgment by fraud or collusion. — Krall v. Libby, 53 W. 292. SURETIES 1057 35. Liability under additional guardian's bond, insolvency of guard- ian, interest where the damages exceed the penalty, and otherwise. See Bonds. —Clark Gdn. v. Wilkinson, Extr., 59 W. 543. 36. As to claims for contribution by co-sureties on an executor's bond, against a deceased surety. See Contingent Claim. —Ernst v. Nau, Extr., 63 W. 134, 139. 37. A co-surety who has paid the judgment against sureties, has the rights of the creditor, by subrogation. See Subrogation. —Mason, Admr. v.' Pierron, 63 "W. 239, 245. 38. "A surety may, without compulsion, pay the debt when due, and immediately sue his co-surety for contribution without demand or notice. (Citation). -Indeed, the rule is elementary". — Mason, Admr. v. Pierron, 69 W. 585, 590. 39. ' ' The general rule undoubtedly is that the release of the principal debtor, without the consent of the surety, releases the surety. 40. But if the surety is fully indemnified against loss by reason of having become such, a release of the principal without payment of the debt does not release the surety. •41. This is the rule laid down in Fay v. Tower, 5$ W. 286, as applied to a case in which an unauthorized extension of credit had been given to the principal." — Jones v. Ward, 71 W. 152, 154. 42. Sureties may file their obligations against a deceased principal debtor's estate, as contingent claims, within one year after it becomes absolute by payment. See Contingent Claim. —Webster v. Est. of Lawson, 73 W. 561, 571. 1 43. In an action at law "by a paying surety against a co-surety for -contribution", it is held "that the plaintiff's right of action upon the liability of the co-surety is limited to the six years from the time he pays the creditor more than his proportion of the debt. ( Citations) . 44. Where a note payable by installments is paid by a surety, the , statute begins to run against him from the time he pays each install- , ment. Bullock v. Campbell, 9 Gill, 182. 45. It seems to be clearly established that, where a surety has paid more than his share of the debt, every such payment gives a right of action for contribution, and, as a matter of course, the six years statute (subd. 3, sec. 4222) begins to run upon it". 46. While a court of equity might "take jurisdiction to enforce con- tribution," and the ten years statute, (subd. 4, sec. 4221) might then apply, the question is not determined. —Bushnell v. Bushnell, 11 W., 435, 437. Zimmerman — 67 1058 PROBATE AND GENERAL LAW, CODIFIED 47. ' ' The circuit court properly held that the judgment of the county- court, charging P. as administrator de bonis non", on the usual notice for final settlement, "was in this action (on the bond) conclusive as against his sureties. Heard v. Lodge, 20 Pick. 58. This is the necessary- result of the conditions of the bond." See also Guardian and Ward. —Holden v. Gurry, 85 W., 504, 512. 48. The sureties are not held released because of failure to object to the inventory by interested parties, who had knowledge of exclusion of property therefrom. See Estoppel. —Murray v. Kluck, 87 W., 566, 571. 49.. Where a surety on an executor's bond paid the liability in full after demand made and suit threatened, it is held not a voluntary payment. 50. An action by such surety against a co-surety for "contribution may be enforced in a suit at law as well as in equity", and such "is not an action on the bond," and "there was no necessity for obtaining any permission from the county court before commencing the action," sees. 4014, 4016, not applying. —Eardell v. Carroll, 90 W., 350. 351. 51. Two sureties who expected others to sign, who did not, are held liable on their administrator's bond. See PjOnds. —Belden v. Hurliut, 94 W., 562, 567. 52. It is alleged "that the final account of the guardian has been settled, the amount that he should pay over determined, an order entered for its payment, and neglect or refusal of the guardian to comply with such order. That is conclusive on the sureties, and sufficient to authorize suit, upon the ,bond, as held, in effect, in Holden v. Curry, 85 W., supra." 53. Alleging "appointment of the guardian," is held to include qualification and due approval of the bond as a condition precedent. —Schoenleber v. Burhhardt, 94 W., 575. 577. 54. "It seems to be well settled that a surety against whom a judg- ment has been rendered may, without making payment himself, proceed in equity against his principal to subject the estate of the latter to the payment of the debt, in exoneration of the surety. (Many citations) ". So held. . —Dobie v. Fidelity & G. Co., 95 W., 540, 541. • 55. ' ' This court has definitely adopted the rule that the sureties upon a probate bond are, in the absence of fraud or collusion, concluded by the decree of the proper court, rendered upon an accounting by their principal, as to the amount of the principal's liability; 56. And this is the rule even though the sureties be not parties to the accounting. ( Cases, supra. ) The same^ rule prevails in many courts. SURETIES 1059 (Cases,— 'Mass., Cal., Ark., Ala.., 111.) ; Stovall v. Banks, 10 Wall., 583." So held as to a testamentary trustee bond. 57. While sec. 4014, subd. 4, and sec. 4015, require prosecutipn by the county judge, it is held that the subsequently appointed trustee as "the real party in interest," is entitled to recover in his action against the defaulting predecessor and his sureties. —Meyer v. Bartk, 97 W., 352, 355. 58. In all cases, though the "trustee has died, or has absconded", "it would seem, the breach of theibond must be fixed by the judgment, decree, or finding of the court having jurisdiction, before an action will lie against the sureties on the bond. (Cases)." (Modified as to sec. 4014. See Wallber v. Wilmanns, 116 W. post) . 59. Where an insolvent trustee deposited the trust funds in an in- solvent bank, and absconded, there being no proceedings in the court fixing liability, ' ' we must hold that there was no default in the bond which would have authorized an action thereon in favor of the estate and against the sureties at the time the defendants (sureties) levied their attachment" against the principal. 60- -' ' It is well settled that no action could have been maintained by the sureties upon" the implied promise of the principal to indemnify them, even had the latter "been adjudged in default, without first mak- ing payment; and then only to recover back the amount so paid, with interest." (Many cases) ; 61. Nor upon an express valid oral promise to indemnify the sureties, "without first making payment, except where the principal has broken ' his promise to do or refrain from doing some particular act or thing, or to save the sureties from some particular charge or liability". So held, and that in this case such promise was not then broken. —Barth v. Graf, 101 W. 27, 37. 62. "County courts, in the absence of express statute (as now exists in sec. 4281b), have no power, either by taking a new bond or other- wise, to discharge sureties from liability for either past or prospective misconduct". —Richter v. Leiby, 101 W. 434, 443. 63. Where of two sureties to a note of- a corporation, the first merely a stockholder and the second an officer also, the latter extended the note as such officer, "in consideration of the prepayment of interest", the first was discharged, but the second was/not though he acted merely as officer in the extension, and giving no notice as to no consent "in his character as surety, we think that well-known rules of estoppel must be held to prevent him from asserting that he is discharged as surety because of lack of consent". 64. The release of the first "must' be given the same effect as a volun- tary release", and as sec. 4204 applies "to joint sureties as well as to 1060 PROBATE AND GENERAL LAW, CODIFIED principal debtors", such release "will operate to relieve his co-surety from liability for one-half of the debt." —Eallock v. Yamkey, 102 W. 41, 43. 65. Following the principle of Meyer v. Barth, 97 W. supra, it is held that a surety "would have no right to open the judgment", against his principal "where the principal would not have such right". —Ingersoll v. Seatoft, 102 W. 476, 479. 66. Sureties to a penalty bond are not discharged "by a discharge of the principal by operation of law. ' ' See Bonds. — Whereatt v. Ellis, 103 W., 348, 352. 67. "If sureties are bound for a common principal, to insure the performance of the same duty or obligation, the fact that they may be bound by different instruments given at different times is imma- terial; the right to contribution exists." Thompson v. Dekum, 32 Ore., 506. So held, as to sureties on an executor's bond and a subsequent bond, before sec. 4281b, ch. 335, L. 1897, allowing a county court to discharge the original sureties. Richter v. Leiby's Est., 101 W., supra. —Rudolf v. Malone, 104 W., 470, 473. 68. Where a "defaulting trustee w,as properly cited to account", and he did account, the indebtedness' established, the "order for its pay- ment entered", and a showing of service on him, and "that he had neglected to comply therewith," — "this was conclusive upon the sure- ties, and sufficient to authorize suit upon bond (Holclen v. Curry, 85 W., supra •. Schoenleber v. Burkhardt, 94 W., supra) ' ', and a sufficient ' ' de- vastavit was established" as a "demand and refusal to pay". —Richter v. Est. of Leihy, 107 W., 404, 409. 69. Neither the sureties on the guardian's bond in an incompetent's sale of realty, nor the ward, are liable to the assignee of the purchaser who paid an existing mortgage on the realty, — such mortgage not having been mentioned or considered in the sale proceedings, the guardian hav- ing "made the usual guardian's deed" "without warranties", though he received the consideration ' ' for a clear title " " and agreed to pay the mortgage and have it discharged, but failed to do so" and embezzled the money and died insolvent. 70. The' sureties' liability was "limited to the stipulations of the bond", and failure to pay the mortgage "was not the breach of any duty", as "no court has at any time directed or 1 authorized the guardian to pay off this mortgage". —Evison v. Eallock, 108 W.. 249, 251. / 71. "A surety who has not paid the debt cannot bring a suit to have a fraudulent conveyance of property made by his principal set aside. (Cases) ". — Ellis v. Southwestern L. Co., 108 W., 313, 315. SURETIES 1G61 72. "The liability of a surety to contribute to one who has paid more than his share of the common debt is one that is now recognized and enforced both at law and in equity. " , 73. "It may be said to be the established law in this state, as well as others, that when one surety has paid the whole debt, he may compel contribution from such of his co-sureties as are solvent and within the state. (Many cases) ; Hardell v. Carroll, 90 W., supra." 74. And "reasonable attorney's fees, prudently incurred for the com- mon benefit of the sureties," were 'held properly recovered. Paurot v. Gates, 86 W., 569. 75. In an action for contribution, "the insolvency of the principal need not be averred or approved. ' ' 1 Brandt Surety. & G. 290. —Boutin v. Etsell, 110 W., 276, 278. 76. "It is not essential to the validity of a bond that the signatures of the parties thereto should be in their proper places ' ', . 77. But, "if the signature of a surety to a bond is placed as to fairly raise a question as to whether it was affixed with intent to execute the instrument, that question must be solved as one of fact upon evidence". Kiehardson v. Boynton, 12 Allen 138; (other citations). —Polacheck v. Moore, 114 W. 261, 265. 78. "The statement in Barth v. Graf, 101 W. supra (par. 58), referred to, must be considered as modified as to all cases coming within the purview of sec. 4014 ; ' ' 79. And it is 'held, that where, on an executor's accounting, "the amount that should go into the hands of the trustee had been established by the court, and a demand and refusal of the trustee to pay over shown", permission to commence an action on the executor's bond, against a deceased surety's legatee was properly granted", 80. And that a judgment against such legatee is not "void because a devastavit and default had not first been determined as against the executor". 81. "The order permitting the trustee to commence this action was one which might have been secured without notice, and was not open to collateral attack. Roberts v. Weadock, 98 "W. 400 (See Bonds".) 82. "Where a surety died and his estate was settled long before the account of the insolvent principal was filed and settled, the fact that "no claim was filed against the estate of deceased surety'*,' did not bar an action against such surety's legatee. (Cases) 83. "The executor's liability is held to continue until his account is settled and the estate fully ^administered. (Citations) ".' , 84. The fact that the executor was himself a beneficiary under the will, does not invalidate a judgment in "an action at law on the bond" for the full amount coming to the trustee, there having been no final distribution of the estate. See also Trustees. —Walller v. Wilmanns, 116 W. 246, 250. 1062 PKOBATE AND GENERAL LAW, CODIFIED , 85. Action against sureties under the four-year limitation of sec. 3968, accrues at the ward's majority, independent of the guardian's account- ing. See Guardian and Ward. —Wescott v. Upkam, 127 W. 590, 593. 86. On an appeal bond, it is held that "the sureties are only held according to the language of their bond", and were held not liable where the judgment could not "be construed as an affirmance even in part". —Lehman v. Amsterdam C. Co., 151 W., 207, 209. 87. A surety not being made a party to a suit on a breach, is held not concluded nor relieved by the judgment. See Landlord and Tenant. —Mohawk Co. v. Bankers Surety Co., 162 W. 272, 276. " 88. A surety is held liable to a third person on a bond made for the latter 's benefit. See Contracts. —Concrete S. Co. v. III. Surety Co., 163 W. 41, 43. SURVIVAL OP ACTIONS. See Actions. Actions Against Extrs. or Admrs. Actions by Extrs. or Admrs. Creditors' Actions. SURVIVING PARTNER. Accounting in circuit court, 65, 74. Good will value found, 63, 75. Not barred by sec. 3844, 69. Shares, as a going business, 77. 1 Transfer as one thing, 76. Actions : survivor 's . name, 4. Administrator not joined, 4. Survivor against heirs, 40. • After estate settlement, 40. ' Misjoinder, legal, equitable, 41. Advances, or receipts, 23. Contingent'. till wind up, 26, 28. Contribution after winding up, 25. Bemedy after winding up, 23. Agent; each partner is, 6, 29. Assets disposed of as others, 71. Applied to firm debts, 72. Contingent claim: Assets converted ; debts paid, 28. Not absolute; firm assets, 20. Present after settlement, 21, 42. Survivor for contribution, 19, 43. Contingent claim — continued Unascertainable till close, 26, 43. Continuance of business, 16. Administrator, apply for receiver, 24. Survivors continue many years, 64. Accounting in circuit court, 65. Survivors must wind up, 22. Contract, joint merely, 39. Written or oral, 81. County court: Not bring in survivor, 65. Not judgment against survivor, 65. Creditors : ' No lien on the property, 70. Eemedy against survivor, 9. Administrator 's waiver, 10. Before deceased's estate, 9. Survivor is insolvent, 11. Definition of partnership, 13, 34', 80. See also Test of partnership. Dormant partner, defined, 31. Creditors; themselves, 44. SURVIVING PARTNER 1063 Dormant partner — continued - Death of ostensible partner, 46. Dissolve for all purposes, 46. Dormant entitled to assets, 47. Not to continue business, 48. Heirs and admr. continued, 49. For the estate alone, 49. Vested in administrators, 50. Not necessary party, 31. Ostensible, trustee for, 32. Trustee of express trust, 45. Entitled to the assets, 1. Against administrator, 1. Exclusive possession rights, 4. Hold as trustees, 27. Equitable conversion, 37. Realty, personalty when, 37. Survivor dispose of, 38. Equity take cognizance, 58. Accounting, long continuance, 64. Deceased's rights in admr., 66. No accrual till admr., 67. See. 3844, not present according, Survivor's presence essential, 65. Ten-year limitation, 68. Executor's partner, 3. Not to share in fees, 3. Heirs; no legal title, 56. Equitable beneficial interest, 57. Husband and wife, 33. Wife with stranger, 33. Judgment against partner, Releases the others, 39. Lien filed with either, 29. Notice to one ; is to all, Partner against co-partner, Individual debt, separate, 36. Personal services; compensation, 7. Petition, "him" for "them", 30. 69. 39. 35. Real estate; partnership, 2, 84. Enforceable by performance, 85. Within fraud statute, 2. Realty; after settlement, 18. Personalty, to: pay debts, 37. Survivor, sell to pay debts, 38.. Sale of partner's interest, 73. ' Rights to assets lost, 73. Set-off individual survivor, 12. Survivor also administrator, 17. Admr. nor heirs, interest, 53. Admr. allied with wrongdoer, 58. Equity may act directly, 58. Disregard legal title, 59. Conveyance of business, 54. Not of estate account, 54. Conveyance to corporation, 55. Heirs recovered profits; equity. 55. Superseding accounting, 55. Duty to account to estate, 52. Holds as surviving partner, 17, 51. Sale, practically to himself, 60. Account for profits, 61., And full property value, 62. "Good will" included, 63. Valid or voidable, 60. Survivor sued personally, 14. Part firm and part personal, 15. Test of partnership, 13, 34, 78. Contract as to themselves, 78. Contract need not be shown, 81. Acts and conduct of parties, 83. Proven by circumstances, 82. Need not so call themselves, 79. Conditions make partners, 80. Transfer title to executor, 5. Until partnership settlement, 42. No personal claims, 42. 1. The surviving partner "is entitled to the assets of the firm, for the purpose of paying its debts", and "can, as such survivor, maintain actions at law for the purpose of collecting debts, due the firm, to .the exclusion of the administrator of the deceased partner", and may main- tain an action against such administrator for the property. —Shields v. Fuller, 4 W. 102, 104. 2. "An agreement for a partnership to consist in dealings in real estate, is within the statute of frauds, and void unless in writing ' '. —Bird v. Morrison, 12 W. 138, 162. 3. The partner of an executor is nqt entitled to share in the latter 's fees, though the executor intended to so allow him. —Kinq v. Whiton, 15 W. 684, 689. 1064 PROBATE AND GENERAL LAW, CODIFIED 4. "A surviving partner has the exclusive right to the possession of the assets of the firm, as against the representatives ■ of the deceased partner, for the purpose of paying its debts and settling its affairs" and ehoses in action should be prosecuted in the name of the survivor and not joined with the executor or administrator. 5. "The surviving partner may transfer the title to a chose in action of the firm, as he could transfer, any other partnership property ' ', and the executor could so receive the title and sue as executor in that case. — Boys v. Vilas, 18 W. 169, 173. 6. "Each partner is * the agent of such (partnership) firm." See Principal and Agent. — Lawrence v. Vilas, 20 W. 381, 388. 7. ' 'It is a general rule, that a partner is not entitled- to compensa- tion for his personal services in the business of the partnership". — Drew v. Ferson, 22 W. 651, 655. 8. "Notice or knowledge of any one partner is notice or knowledge affecting all the rest, or rather the partnership as a whole". —Hubbard v. Galusha, 23 W. 398, 399. 9. It is held in New York, per Selden, J., in Voorhis v. Child : s Extr., 17 N. Y. 354, as to creditors of a partnership, "either that the remedy against the survivors must first be exhausted, or that it must appear that they were insolvent and unable to pay," before the remedy could be pursued against the personal representatives of a deceased partner. 10. In an action on a note, pending against partners, one of them died, and his administrators "saw fit to waive the equitable forum, asked and obtained leave to litigate the liability of the estate in a court of law ' ' in this action. ' ' The order making the administrators parties was granted on their application; they filed an answer, and contested the liability of the estate, and must abide by the result". 11. "But while we hold this, we are disposed to adopt the New York rule, that, in order to recover against the administrators, the plain-tiff should allege and show that the surviving partner is insolvent, the same as he would be bound to do were the proceeding in equity." See also Joint Obligations.' , — Sherman v. Kreul, 42 W. 33, 39. 12. Where there had been no accounting of partnership affairs "claims growing out of the partnership" "were not proper subjects of set-off" in an action against the surviving partner on a personal note. —Tomlinson v. Nelson, 49 W. 679, 683. 13. "A community of interest in the profits and losses of the busi- 'is one of the usual tests of a partnership". — Nicholaus v. Thielges, 50 W. 491, 492. SURVIVING PARTNER , 1065 14. "The rule would seem to be elementary", as "held by Lord Chief Justice Holt, in Hyat v. Hare, 1 Comb. 383, that: 'if there be two partners in trade, and one of them buy goods for them both, and the other die, the survivor may be charged by indebitatus assumpsit, gen- erally, without taking notice of the partnership,! or that the other is dead and he survived'." ', , ; 15. And it is held that an action for services in, part "to the defend- ant's firm, and a portion to him personally after the death of his" partner, may be brought as one cause of action. —Butler v. Kiroy, 53 W. 188, 191. 16. "If there had been no provision (in the will) for continuing , the business, it would have had to be closed up on the 1 death ,of D. (testator) . Its continuance, therefore, was a favor, and , could not have been claimed as a right by the surviving partner". —Dean, Extr. v. Dean, 54 W. 23, 35. 17. The surviving partner acting as administrator of a deceased part- ner, while the co-partnership "debts remained unpaid", he held the partnership "property as surviving partner, not as administrator". 18. The rule as stated "by Chancellor Walworth in Buchan v. Sum- ner, 2 Barb. Ch. 165" is-. 'As between personal representatives and the heirs at law of a deceased partner, his share of the surplus of the real estate of the co-partnership, which remains after paying tjhe debts of the co-partnership and adjusting all the equitable claims of the different members of the firm as between themselves, is considered and treated as real estate'. Page 201. Bird v. Morrison, 12 W. 138, 170; Pierce v. Covert, 39 W. 252 ; etc. —Martin v. Morris, 62 "W. 418, 427. 19. "It is very clear to our minds that the claim of the plaintiffs against the estate of D., for contribution for the payment of the debts of said partnership, was a contingent claim of the, surviving partners against said estate, 20. And that such claim did not become absolute in favor of said survivors until they had settled and paid all the debts of said, firm, and applied all the assets of said firm to the payment thereof , 5 ■ - 21. And if such contingent claim was one which might ,haye, kee» presented to the county court for adjustment (a question which we, do not decide), still the plaintiffs were not bound under the law to present the same until it became absolute and ascertained by the settlement and payment of the debts and liabilities of said firm and the applica- tion of the assets of the firm to that purpose. 22. The law is very plain that the surviving partners must wind up the affairs of the partnership. (Cases)." - 23. "Until the affairs of the firm are woundup and all the debts paid, 'neither partner has any remedy against, or liability to the flther for 1066 PKOBATE AND GENERAL LAW, CODIFIED payment from one to the other of what may have been advanced or received' in said business. (Cases) ' 24. The representative of a deceased partner may, however, upon a proper showing apply to a court of equity for the appointment of a receiver and the settlement of the partnership business, in that way. ( Citation) . 25. After the affairs of the partnership are dosed up and the debts paid," "if the firm is insolvent, and some of the partners have paid more than their proportionate share towards the discharge of such debts, they may maintain an action for contribution against those members of the firm who have not paid their just proportion of such debts. (Citation)". 26. "It is very clear that the surviving partners could not maintain any action or proceeding" against a deceased partner until the firm affairs had been settled, and "their claim against the estate of the deceased was a purely contingent claim, not clearly ascertainable until the business of the firm was wound up and settled. % 27. The surviving partners hold the property of the firm in the character of trustees, for the settlement and payment of the debts of the firm, and for the purpose of distributing the surplus, if there be any, to the several members of the firm, and to the representative of the deceased member. (Citation)." 28. "In any view of the case, the claim of the surviving partners against the estate of the deceased partner for contribution is a con- tingent claim within the meaning of the statute, and became absolute only when the business of the firm was finally settled, the assets con- verted, and the debts paid. This, we think, was fairly settled by this court in the case of Ernst v. Nau, 63 W., 134." See also Contingent Claim. —Logan v. Dixon, 73 W. 533, 536. 29. " 'It is clear that the petition (for lien) might be made and filed with either of the partners in the name of the firm, in the absence of the other, and without his knowledge. Each partner is the agent of the firm for the transaction of all matters pertaining to its ordinary business and affairs. ' White v. Dumpke, 45 W. 454. 30. In the petition the pronoun 'him' is used for 'them', but this is a mere clerical mistake, and could mislead no one ", " and should be dis- regarded". —Garland v. Hickey, 75 W. 178, 181. 31. "A dormant partner is one who takes no active parti in the busi- ness of the firm, and whose name does not appear in the title of the partnership, and who is unknown to those who give credit to the firm. 17 Am. & Eng. Ency. of Law, 928". He is not a necessary party "in an action to recover partnership demands." 32. The ostensible partners are "trustees and agents of such dor- mant partner", and it is indicated that they are trustees of an express trust in harmony with sec. 2607 as to such trusts. —Piatt v. Iron Exch. Bank, 83 W., 358, 360. SURVIVING PARTNER 1067 33. As to husband and wife as partners, or wife with a stranger. See Husband and Wife. —Fuller & Fuller Go. v. McHenry, 83 W., 573, 578. 34. "As accurate and satisfactory as any we have seen", and which '< definition seems to be preferred" by the Am. & Eng. Ency. of, Law, 828, "is as follows: 'A partnership is the contract relation subsisting between persons who have combined their property, labor, and skill in an enterprise or business, as principals, for the purpose of joint profit,' 1 Bates Partn. 1". —Spcmldmg v. Stubbiilgs, 86 W., 255, 262. 35. "A partner has no claim against his co-partner individually, on account of partnership transactions. If a partner is in arrears in his partnership accounts, he is the debtor of the firm, not of his co-partner. Sprout v. Crowley, 30 W. 187. 36. But if he owes an individual debt to his co-partner (as in ,the case just cited) the firm has nothing to do with it, and a claim, therefor by the creditor partner cannot have any place; in an , action to dissolve the partnership and settle its affairs." So held here. —Smith v. Diamond, 86 W., 359, 360. 37. "The doctrine of 'equitable conversion,', by which partnership lands remain personal property until the indebtedness is paid and the equities between the partners are adjusted, has grown into an elementary principle of law in this state. (Many cases)." Orton, J. 38. "The right of a surviving partner to dispose of the partnership real estate, so far as necessary to pay partnership debts and close its affairs, is undoubted." Winslow, J. —Weld v. Johnson Mfg. Co., 86 W., 552, 561-2. 39. "Since partnership contracts are to be considered as joint merely, and not joint and several (17 Am. & Eng. Ency. of Law, 1062) , a judg- ment against one partner for a firm debt releases the other partners, so that no new action can be maintained against them upon it. Bowen v. Hastings, 47 W., 232; Lauer v. Bandow, 48 W., 638." —Keith Bros. & Go. v. Stiles, 92 W., 15, 17. 40. "Where the estate of a deceased partner has been settled in county court and no firm debts were made claims therein or there paid,— in an action under sees. 3274 et al, by the surviving partner against the heirs for .settlement of partnership transactions,; and payment of claims aris- ing therefrom, it is held, that a demurrer ore tenus should have been sustained; 41. That there was a misjoinder of a legal cause of action against the heirs, and an equitable one for a partnership accounting, "and requir- ing different parties"; 42. Until ar settlement of partnership affairs, "whatever is due from 1068 PROBATE AND GENERAL LAW, CODIFIED each partner is due to the partnership, and whatever is due to a partner is due from the partnership." " Smith v. Diamond, 86 W., supra. (Other cases). 43. So, until such settlement, it cannot be said whether there is any claim. "It was, indeed, little more than a possibility of a" claim." "Evenif it should be deemed that the plaintiff had a contingent elaitii against the estate, such claim remains contingent, and" has not become absolute." ,: '"• —Blakely v. Snibck',<98 W.', 611, 613. ■44. Where '0. 1 & S r .' by virtue of their agreements were ' ' co-partners, not only as to creditors, but also as between themselves", "yet, as the business 'was conducted wholly 'In' the' nam^'of O. 1 ,' Si was what is kndwn ift'law as 1 a f 'secre't ''or 'dormant? 1 partner. Benjamin VI, Covert, 47 W: 382,' and cases' there 'Cited;' ■*■• 'i<> -to. ■/ ,,^ '•:' 45. As 0. was the ostensible proprietor of the business, he was, as has b'e'en held'hy this 'court, a trustee' of an express 1 trust, within the meaning of the statute, to the 'extent that he 1 might' have sued upon a partnership dem'a'ild of' the firm 1 without joining 1 liis 1 dormant partner. .Sec. 2607';'' Piatt v. Iron Exch. Bank, 83 ! W. supra 1 '".' ■'■ ■ i; ' - '' '" l : ' ■ '. '' !l1 46. The death of '0., "tbfe ostensible" proprietor, "of itself dissolved the firm for all purposes. The reason is that a surviving partner is not tS 'be bound 1 by the acts of agents not of his own choosing, 'as the repre- sentatives ' tif the deceased' 'partner would be". '"' This 'is applicable^ to a partnership, either for" a fixed or an indefinite 'peffifld. l( 2' Bates Part. 580, "' " ' ! sirl + -47. Upon! the death 'of '0.,"then S.;'ithe "surviving partner,' was un- doubtedly entitled tdlthe 'Possesshm! of the "assets of the firm ! for the 1 purpose of paying the debts and' settling 'the partnership' business. Shields tV Fuller /"^ W. siip'ra^ Royg-vY Vilas, 18 W. supra. 48. But as such surviving partner he would have no right to mix the assets" of the firm with his o'ftni 1 and continue'' the business the ; same "as though there 'had heen "&&' such 1 dissolution. ' Jennings'* Admrs'. v. Chandler, 10 W. 21". ' "'< • '' 49: Where the heirs of the deceased partner 0. /continued the business for a time, and subsequently with administrators 'appointed, with the knowledge' arid acquiescence of " the ' surviving partner, and the latter ' ' did not take, nor assume to take, actual possession of any part of such assets"', and the ' business 1 ' becatae insolvent; '"we must hold J that after the death of 10. the business ! waS Conducted by the Administrators alone for th6> benefit 1 of the estate''. 1 ->■;,, ,-< .. 50. The deceased'^ interest in the ''•''property and business in question did not descend to his heirs, but became vested in his' 'administrators, immediately upon their appointment; and such vesting related back to 'the time df such : death. ' (Cases) 1 ".' " r 'i-"i i'n r *\\n 'v;- 11 ! —StiMings'v! O'Oonmor, 102 W. 352, 360.' 51. Where, fr6m' ; lumber partnership 'assets; 'material, as a basis' for a lien, was furnished after the decease of a partner F., while "S. was SURVIVING PARTNER ' 1069 running the business as a surviving partner", he being also the adminis- trator of the estate of P., "the title to the property was in him, and the debt for the material furnished was due to him, as absolutely and in- dividually as if there had never been any partnership, (Many citations) . 52. The only difference resulting from the fact of his being a sur- viving partner was that he owed a duty, after disposing of all assets and paying all debts, to account to the estate of his< deceased partner for the proper share of the net proceeds. 53. But this gave, neither him as administrator nor to those benefi- cially interested in the estate, any interest whatever 1 in either the stock of lumber or choses in action". 54. Therefore a "conveyance of this demand" to a new firm, by S., was effective, but such conveyance by him as administrator, was not "an assignment of this account", but "a transfer of a mere equity to. a share in the net proceeds of all the assets of that business, and con- veyed no Interest in this particular chose of action. Rommerdahl v. Jackson, 102 W. 444". —Shearer v. Browne, 102 W. 585, 586. 55. A surviving partner, and also as administrator of the deceased partner, continued to conduct the partnership business for a term, then mentally and subsequently actually, sold the estate 's share to a corpora- tion of which he was the guiding spirit, the sale being practically to himself ; the heirs of the deceased partner thereafter brought an action in equity against the administrator for mismanagement, and for a pro- portionate share of the profits, and of the interests of the corporate business; recovery was sustained, the decree being a "supersession of an accounting in county court", and a "complete settlement of their respective trusts in that court"; 56. Although the "heirs or distributees, have no title to any property left by" the deceased partner, the legal title "being vested in the administrator" as "to any specific personal property" (cases), 57. "Nevertheless the equitable beneficial interest in all property of a solvent estate is in the legal distributees during the whole period of administration". 58. When the administrator, as here, "allies himself with the wrong- doer, and serves as an obstacle to, instead of a protector of, the rights of his'cestuis que trustent, courts of equity" properly may act directly, 1 59. And, there being no other "legal right of the administrator" to enforce, "the circuit court, under its plenary jurisdiction to do all that the county court could, may disregard this question of mere temporary legal title, and pass the" property directly. (Cases). 60. The sale "as administrator and also as surviving partner", prac- tically to himself, of the partnership property, "is valid or voidable at the choice of those for whom he was fiduciary, and that, too, without regard to any conscious purposes to wrong or defraud them. (Oases)." 61. And, "the beneficiary may in such case hold the fiduciary to account for all profits he has actually realized from either use or ulti- mate disposal of the trust property. 1070 PROBATE AND GENERAL LAW, CODIFIED 62. In. addition, of course, he must respond for the full value of the property, if he has disabled himself from returning it." 63. And here, a high value on "the 'good will' of the old firm", was held properly included in the disposal of the partnership property. (Good will, fully discussed). — Bowell v. Rowell, 122 W. 1, 9. 64. Where a partner dies in 1886, leaving will, which was proved but no executor or administrator was appointed until, 1903, when ipjaintiff, a son just attained majority, made application and was appointed administrator, and brought an action against a surviving partner H., and the executors of another subsequently deceased partner K., for an accounting of the partnership business which had been con- tinued, — it is held: 65. The circuit court had jurisdiction, "for the reason that the county court, in the settlement of the K. estate, cannot bring before it, or render judgment against, the surviving partner H., whose presence is essential. to the ascertainment and full adjudication of the rights of all parties. (Cases)." 66. "All rights in any of the personal property left by the deceased, including the right to recover his interest in that co-partnership, are now vested in that administrator, and must.be sued for by him;" 67. "No cause of action can accrue until there is some person. in existence who can bring it, and there is no person in existence to bring an action in favor of the estate of a deceased person, which arises after death, until i an executor or administrator is appointed. (Cases)"; 68. "Hence this cause of action did not accrue until the appointment of plaintiff as administrator in 1903", and the time of limitation, ten years under subd. 4, see.. 4221, not having doubled as provided in sec. 4251, the action is not barred ; 69. Sec. 3844, as to filing claims in the K. estate, "cannot have any effect to prevent the partnership accounting, nor the reaching of prop- erty belonging to the partnership, whatever its effect on any money recovery against the K. estate". Order overruling demurrer, sustained. Stehn v. Hwyssen, 124 W. 583, 587. 70. "It is fundamental in partnership transactions that creditors have no other claim or lien than creditors generally have on the debtor's property. 71. A partnership has the same right of disposition of the partner- ship assets that individuals enjoy in the law. (Citation). 72. There, is an equity between partners giving them the 1 right to compel application of firm assets to the payment of its debts", and "this right" when "preserved by an outgoing partner" "will inure to the, benefit of creditors". 73. The sale of his interest by an outgoing partner "operated as a dissolution of the partnership", and relinquishment of "his equities to have the firm assets applied in payment of the firm's debts". — BedMngton v. Franey, 124 W. 590, 592. SUEVIVORSHIP 1071 74. In an action fori accounting in the circuit court of a large mercan- tile business, by the surviving partner, at the decease of the other partner, though "the personal element was extinguished" and "the advantage of the particular location passed likewise", 75. A finding for "good will" of about one-eighth of the value of the stock and book accounts, the two latter on the "basis of cash, as if the business were to be presently discontinued and the property turned into its money equivalent", — was sustained. 76. "All the property had to be considered, the merchandise, the book of accounts, and the good will, such as there was, which could pass with a transfer of the whole as practically one thing. 77. The plaintiff (survivor) was entitled to his share of the whole as an organized going business with its line of customers and connec- tions with sellers as well as buyers." — OU v. Boring, 139 W. 403, 411. 78. "There can be no partnership as between the parties themselves unless a contract of partnership be shown, and" "it must include an agreement to share profits, as profits, i. e. as common owners thereof. Sullivan v. Sullivan, 122 W., 326. 79. But it is not necessary that the partners should call themselves such. ■ ; 80. If they engage in a joint business enterprise, each putting in capital or labor or both, with an agreement to share profits as such, there will be a partnership whatever they may call themselves. •81. Nor need any express contract, either written or oral, be shown. Like other contracts which the law does not require to be in writing, -, 82. A contract of partnership may be proven hy circumstantial evidence, 83. That is, by showing acts and conduct of the parties from which the fact may be inferred that the parties have agreed to become part- ners and share profits as such. (Citations') ". —Bwrtelt v. Smith, 145 W., 31, 35. 84. "A verbal agreement (in partnership dealings) to deal in land, unexecuted, is void and cannot be enforced. (Cases). 85 But it is well settled 1 that a verbal contract to deal in land may be rendered enforceable by performance. (Cases)". —Steuerwaldv. Bidder , 158 W. 597, 601. SURVIVORSHIP. See also Descent and Distribution. Death of two or more, 1. Death of two, etc.— continued -From a common disaster, 1. Succession: of causes, 3. Absence of evidence, 2. Burden on those claiming,, 4. Death at same time, 2. Bealty; and personalty, 4, 5. Question of evidence, 1. 1072 PEOBATE AND GENERAL LAW, CODIFIED 1. In Pell v. Ball, 1 Cheves Eq. 99, the "adjudication as well as the weight of the authorities and reason, is to the effect that where the death of two or more persons results from a common disaster the case must be determined upon its own peculiar facts and circumstances, whenever the evidence is sufficient to support a finding of such survivor- ship; 2. But in the absence of any such evidence the question of such survivorship must necessarily be regarded as unaseertainable, and hence, in such case, the rights of property must he determined as if death occurred to all at the same moment of time. (Many cases) ". 3. In this case the circumstantial evidence shows that "the death of the several victims resulted from a succession of causes. The probable location of the several members of the household is established beyond controversy ; ' ' 4. And it is held that as to real estate vested in infant children, "those who claim any part of such real- estate by descent from children (subd. 2, see. 2270), under J. (the father), have the burden of proving that he survived the death of each and all of those children. Newell v. Nichols, 75 N. Y. 78; Puller v. Linzee, 135 Mass., 468;" 5. And as to the personalty and "property owned by him in his own right", by the father J., the burden "of proving that the widow and children, or some of them, survived J., rested upon those claiming under and through such widow and children. (N. Y. & Mass. cases, supra) ". — Will of Abram EMe, 73 W. 445, 459. SUSPENSION OF POWER OF ALIENATION. See Perpetuities. TAXATION OF ESTATES. See also Inheritance Taxes. Income, annuities : Could be liquidated, 17. Inheritance tax paid, 16. Whether trustees must pay? 18. Non-resident 's income, 20. Property from Wis. courts, 21. Trustee and securities, without, 21 . Sources within state, 20. Not necessary to file claim, 15. Personalty : Assessable to administrator, 1. Not yet been appointed, 2. Personalty — continued Possession not relate back, 3. When in possession as such, 1. Assessed to estate, when, 4, 5. Decedent, a resident of A., 1. Admr. a resident of O., 1. Not in possession nor held, 1. Not decided as to A. 's right, 4. District: where owner resides, 6. Where administrator resides, 6. Re-assessment, previous years, 8, 9. TAXATION OF ESTATES 1073 Personalty— continued Personalty-r-continued Administrator, in town, 8. City, not against estate, 8. Appointed before May 1, 14. If executors have personalty, 13. Assessable against executors, 10. Realty :_ without the state, 19. Back taxes, omitted, 9. Special admr. is administrator, 7. Because tax roll, evidence, 11. Trustees; one in state, two without, 22. Burden on executors, 12. Resident receives income; taxable, 22. 1. Where the decedent died April 29th, a resident of A., and a special administrator residing at 0. in the same county, was appointed May 14th, under the statute (sec. 1033) providing "that all personal property shall be assessed in each year as of the first day of May in such year", and under section 1040, "that no change of location or sale thereof" after May '1st "shall affect the assessment made in such year", and under section 1044 which "makes personal property assessable to an administrator only when the same is in his charge or possession as such", it is held that the personalty of such decedent was not "assess- able in that year in the city of 0." against the administrator. 2. So held because the administraor was not in possession of the personalty May 1st, not having been then appointed ; 3. The doctrine "that the title of the administrator to the property relates back to" "the date of the death of his intestate", is not "suffi- ciently elastic to authorize us to hold, not only that the administrator was on the first day of May, 1885, the legal owner by relation of the demands against the 0. banks evidenced by their certificates of deposit, but that he was' also, on that day, in charge or possession thereof as such administrator. "We find no sanction in the law for such a ruling". 4. It is not determined whether this property was assessable that year at A. "as parcel of the estate of H., awaiting the appointment of an administrator to determine who was the legal owner thereof". —Hoyden v. Roe, 66 W. 288, 290. 5. "In but one case can it (estate personalty) be assessed to the estate of the deceased owner, and that is when no executor or adminis- trator has been appointed before the 1st day of May' '. 6. It "must be assessed in the assessment district where the owner resides" sec. 1040, "as of the 1st day of May in the year in which the assessment is made", sec. 1033, "to the owner, save as provided in sec. 1044" and "assessed to such executor or administrator", if in his hands, and so assessed in the district in which such personal represen- tative resides. 7. "A special administrator is doubtless an administrator within the meaning of the word as used in sec. 1044. Hayden v. Roe, 66 W. supra". • 8. And it is held "that the city could not make the reassessment" for previous years against the estate, and that the property should have been assessed to the administrator, who "resided in another assessment district", being in the town. » —Fond du Lad v. Est. of Otto, 113 W. 39, 43. Zimmerman — 68 ' 1074 PROBATE AND GENERAL LAW, CODIFIED 9. In an action brought by executors "to restrain their collection of a tax lexied in 1907 (after decease) for the years 1904, 1905, and 1906 upon property alleged to have been omitted from the roll in such years", ■ — judgment was directed against the executors for the amount of such tax on defendants' counterclaim therefor. 10. "We think the omitted property was properly assessable against the executors, under existing statutes, though not in possession of the executors May 1, 1907. 11. Sec. 1044b, makes the tax roll prima facie evidence of the justice and regularity of the tax ; 12. Hence the burden was upon plaintiffs in all respects, and espe- cially" as to its being "omitted property or merely undervalued property". 13. " 'Back taxes' against the personal representatives" "upon prop- erty of deceased which escaped taxation" may be assessed, "when the personal representatives have personal property in their possession belonging to deceased subject to taxation" (sees. 1059' and 1044 et al), "even though not the identical property omitted." ,14. "The instant case is unlike Hayden v. Roe, 66 W. supra", "since in that case the administrator was appointed after May 1st of the year of the assessment". 15. It was not "necessary to file the claim , against the estate before the expiration of the time limited for filing claims" as to "omitted" or "other property" as "the assessment is against the executors". See also Judgments. —Bogue v. Laughlin, 149 W. 271, 280. .16. Where an "inheritance tax is paid" on an annuity in a trust estate, "the yearly payments made thereafter to the annuitant" do not "constitute income under the income tax laws". Subd. i. sec. 1087m-4. 17. Such annuity was "subject to the inheritance tax law" and "could be valued, the transfer tax be assessed thereon, and be wholly liquidated". Subd. 4 and 5, sec. 1087-15 et al. 18. "Whether the income of the estate paid by the trustees to the annuitant should form part of their taxable income, is not affected by what is here decided". —State ex rel Kempsmith, v. Widule, 161 W. 389, 391. 19. "Assuming, without deciding, that relators inheritance of real estate located in the state of Michigan is income within the meaning of this statute", it is, not "assessable under the provisions of this act", being from "without the state", and not included in subd. 3 of sec. 1087m-2, — as "construed in the case of State, ex rel Arpin v. Eber- hardt,' 158 W. 20 ' '. —State ex rel Brenk v. Widide, 161 W. 396, 398. 20. Subd. 3, see. 1087m-2, of the income tax law, "imposes a tax only upon such part of a non-resident's income as is . derived from sources within the state or within its jurisdiction". (Cases). TENANTS IN COMMON , 1075 21. And where the securities and the property represented by them, and the cestui que trust entitled to the income, and the trustee, are all without the state, and non-resident, — the fact that the property was derived from the estate of a resident, and that a "county court in Wis- consin was administering the trust", it is held, does not make such property taxable. —Bayfield Co. v. Piskon, 162 W. 466, 470. 22. Where two of three testamentary trustees are non-residents, one of them also being the beneficiary, and the third resident trustee receives the income "fund for which it was assessed", being "dividends derived from stocks and interest derived from money loaned or invested in notes, credits, bonds, or other evidences of debt",— such fund is held "subject to taxation as income" in this state, under sees. 1087m-2, 1087m-10. —State ex rel Wis. Trust Go. v. Widule, 164 W. 56, 61. TELEGRAMS. > • Dispatch delivered, first, 2. ' Message received, original, 1. * Default, contents shown, 2. For evidentiary purposes, 1, 2. 1. The message received was held to be the original for evidentiary purposes, and the court states "that the law applicable to this case is eorrectly stated by Judge Redfield in Durkee v. Vt. C. Ry. Co., 29 Vt., 127 ' ', as follows : "In regard to the particular end of the line where the inquiry is first to be made for the original, it depends, upon which party is responsible for its transmission across the line, or, in other- words, whose agent the telegraph is. 2. The first communication in a , transaction, if it is all negotiated across the wires, will only be effective in the form in which it reaches its destination. In such case, inquiry should first be made for the very dispatch delivered. In default of that, its contents may be shown by the next best proof". —Saveland, v. Green, 40 W. 431, 441, 442. TENANTS IN COMMON. Each seized of his share, 2. Possession once obtained, 11. Lease, possession, expiration, 6. Can hold by force, 11. Established by evidence, 7. Property not severable: i&old-over presumption, 6. One not exclusive possession, 5. Otherwise, original tenancy, 8. Property severable: One tenant: Creditor may seize, share, 4. Convey undivided part, 2. One could take share, 3. Lease distinct portion, 1. Become owner thereof, 3. Oral contract of purchase, 9. Take property by force, 10. 1. "One tenant i,n common could not demise (lease) a distinct portion by metes and bounds", of the real estate so owned. 1076 PROBATE AND GENERAL LAW, CODIFIED 2. "A demise or conveyance of an undivided share of an estate by a tenant in common is valid, because each tenant is considered to be solely and severally seized of his share. 4 Kent, 368." —Sheparjfoon v. Rowland, 28 W. 108, 112. 3. "As to all property in its nature severable", (as oats, bay and wheat, in this case,) held that "the plaintiff had the right, without the consent of his co-tenant, to sever and take exclusive possession of his share of the property so held in common; which share would upon such severance become the exclusive property of the plaintiff". See also Common Law. 4. "It would follow from this, that a creditor of the plaintiff might lawfully seize and sever the plaintiff's share therein, or at. least, so much thereof as is not exempt by law from being thus seized". —Newton v. Howe, 29 W. 531, 536. 5. But as to property not severable, as "horse, buggy and harness," they "are incapable of division, as a matter, of course, and it is impos- sible for the Court to say that the plaintiff might have the possession of them to the exclusion of his co-tenant". —Wright v. Pratt, 31 W. 99, 104. 6. "Unlike an ordinary tenancy, where possession is taken under a lease and continues after itsi expiration", under lease in case of a ten- ant in common "no presumption that he continues to hold under the lease (from his co-tenant) arises after its expiration". 7. "But such tenure, if relied upon, must be established by evidence aliunde, showing, either expressly or impliedly, that he has recognized his continuing relation and obligation as tenant under the lease, and occupies subject to its conditions and the payment of rent as therein specified". 8. In the absence of such "evidence aliunde", he will hold posses- sion "in virtue of his original right as tenant in common, which entitles him to the use and enjoyment of every part of the premises, one as much as another, until his co-tenant comes and demands admission, and subject, of course, to acount to his co-tenant". —Boclauell v. Luck, 32 W. 70, 72. 9. A tenant in common can have specific performance of an oral contract of purchase of his co-tenant's interest. See Specific Perform- ance. —Littlefield v. Littlefield, 51 W. 23, 31. 10. "It is well settled in law that one tenant in common has no right to take personal property from his co-tenant by force ; 11. But if he can get possession without a resort to force, then he can hold it and protect his possession by force. Coke's Litt. 199b". —Tollman v. Barnes, 54 W. 181, 185. TENDER 1077 TENDER. See also Money. Check: deposited in court, .'!. Legal tender — continued .Good to stop interest, 14. When st!op interest, 14. 11,1 Ground of objection, 14. Mere offer to pay, 7. Cl$iim M on land contract, 2. Not necessarily money, 5. Conclusive admission, 11. Paper currency, ■ bank-motes, 4. • Duetto, tenderee, 11. Unless objected to, 4. Where not essential, 12. What constitutes valid, l. : Court, rute; legal actions, 9. Without condition, 1. Dispute as" to' amount due, 16. Rescission: Tender kept good, 16. Tender to return,, 6. Equity':" ' Unconditional offer, 13. CouVf'rule, legal actions, 9. Not part for whole, 13. More liberal' ■ tHan law, 10. Valid legal tender, 1. Otfer to bring money in, 8. Without condition, L' Legal, tender: Waiver: ^bpolut^jjani^ unconditional, 7. Refusal to accept, 15. Check good.wjieuv^. Repudiate contract in toto, 17. ]<■;■ •' /. 1. "To constitute a valid legal tender, there must be an actual offer oijjthe^sum, due, unless the actual production of the money be dispensed w^th, by ftjjpe&tsa^l to accept, or something equivalent thereto, and this offer must^be, an absolute one, not coupled with any condition". .HIT L'U •'/ ,i\! — Hunter v. Wwrribr, 1 "W. 141, 147. .;2i A tender of aideed before allowing a claim on land contract there- for, is unnecessary, i See Claims. — Gale v. Best, 20 "W. 44, 47. iu! ■■>!■ I .ii>i 'Paper .currency, bank-notes which are current de jure et de faato> are, legal tender unless specially objected to at the time of tender, for the reason that they are money, though not absolutely legal tender. With, some exceptions this doctrine is general in this- country. (Many Cases) "du ,,';<) '; ' ■,.§,, ",Th~e property of 'being legal tender is not necessarily inherent in money; it. ; generally (belongs no -more to inferior coin than to paper mopey' If See ralso Money. —Elauber v. Biggerstaff, 47 W. 551, 560. 6. In rescission, no formal tender to return the property, is necessary. See Rescission op Contract. — Potter v. Taggart, 54 W". 395, 401. > v 7. "A mere offer to pay" and a "refusal to take it", and demand for more, "falls far short of a legal tender. The tender must be under- stood as a tender, and be absolute and unconditional". —Elderkin v. Fellows, 60 W. 339, 341. 1078 PROBATE AND GENERAL LAW, CODIFIED 8. "In Breitenbach v. Turner, 18 W., 140, it was held that in equity it is sufficient for the party relying on a tender to offer to bring the money into court, and to be ready to comply with the direction of the court in regard to it. 9. The circuit court rule (16), "evidently relates to legal actions on instruments for the payment of money only", and "was not intended to be broader than the statute (sees. 4265, 4266), or to disturb or modify the decisions on the subject made in equitable actions under it. ' ' 10. " It is well established that the rules in respect to tender are much more liberal and flexible in equity than at law. ' ' —Marikel v. Belscamper, 84 "W., 218, 225. 11. "The tender and payment into court, for the tenderee, of the money tendered, is a conclusive admission that the amount so paid in is due to the tenderee ; and, hence, that money belongs absolutely to him, whatever may be the fate of the action. Schnur v. Hiekcox, 45 W. 200 ; 25 Amer. & Eng. Ency. of Law, 943. 12. The fact that the tender was not essential to the plaintiffs' right to relief does not make the case an exception from the rule". —Fox v. Williams, 92 W. 320, 324. 13. "In order to constitute a valid tender it must be an uncondi- tional offer of the amount tendered. An offer to pay a certain sum of money in satisfaction of the whole debt is not sufficient. (Cases) ". —Mann v. Roberts, 126 ,W. 142, 146. 14. "The offer of a check constitutes a good tender so as to stop interest if no objection be made to it at the time on the ground that it is not legal tender, but it is refused on some other ground, as for instance that it is not enough. 38 Cye. 147; Mitchell v. Vermont C. M. Co., 67 N. Y. 280." See also Pleadings. —Eieferi v. Maple V. M. E. F. Ins. Co., 158. W. 340, 342. 15. "The eases of Kreutzer v. Lynch, 122 W. 474, and Inglis v. Fohey, 136 W. 28", "to the effect that plaintiff waived the tender by refusing to accept the money, 16. Do not apply to a case like the one at bar where the dispute is as to the amount due", and where the tender must be "kept good." 17. "The cases mentioned are where the party to whom the tender was made repudiated in toto the contract relied upon by the party mak- ing the tender". — Weigell v. Gregg, 161 W. 413, 420. TERMS OF COURT. Adjournment: County courts: No specific time, 12. Adjournments; continuances, 15. Subject to judge's order, 11. General and special terms, 15. Adjourn from day to day, 4. Pinal adjournment, 2. Effect of omission, 4. Not delegated to clerk, 3. TERMS OP COURT 1079 Motion; not decided, 10. Term: Entered at next term, 13. Anciently a single session, 7. Order made and signed, 13. Continuance of term, 5. Presumption of regularity, 14. May be many sessions, 7. ' Power as to business, 8. Until court acts, 5, 12. Limited by abuse, 9. Until next term, 5, 12. Sessions of court, 1. End and commencement same day, 14. Many within term, 6. Presumption of regularity, 14. 1. "For all general purposes, the court is considered as in session from the commencement till the close of its term. The jurors, officers and parties are all under its direction". —Barrett v. State, 1 W. 175, 181. 2. "Final adjournment is a judicial act, requiring the presence of the court to perform". 3. "Many of the authorities hold that the power to perform such act cannot be delegated to the clerk; so that, even had Judge B." "definitely instructed the clerk to finally adjourn the term on January 1st, it would not have been effective to authorize such act. In re Terrill, 52 Kas. 39; In re McClaskey, 2 Okl. 568". 4. Under sec. 2572, "no omission to adjourn from day to day, previous to final adjournment, shall vitiate any proceedings in such court. The same conclusion has been reached by other courts without such legisla- tion. Schofield v. Horse Springs C. Co., 65 Fed. Rep, 433; People v. Sullivan, 115 N. Y. 185 ; In re Dossett, 2 Okl. 369. 5. According to modern policy and methods, a term of court, having been duly commenced, continues until the court itself, by an affirmative judicial act, terminates it, or until the next term. Freeman, Judgments, 90; Hume v. Bowie, 148 U. S. 245; Schofield v. Horse Springs C. Co., supra'; U. Pac. R. Co., v. Hand,, 7 Kas. 380. 6. In deference to modern methods of business in court; involving in many jurisdictions the combination of equitable and legal proceedings, the ternfof court has come to mean a period of time within which there may be many sessions, 7. "While anciently it meant a single session, indeed, originally, a sin- gle day, which in order to meet the demands of business was enlarged in fact to several, although in theory the single day extended over the whole sitting". 8. "It may safely be said that between the legal commencement of .the term, and the time when it is expressly terminated by a judicial determination or by the commencement of a new term, the power of the court over the time when, and the manner in which, business before it shall be conducted, is complete (Barrett vi State If, supra; Green v. Morse, (Neb.) 77 N. W. Rep, 925), , 9. With only the limitation that if such power is abused to the preju- dice of a litigant error may be predicated thereon and may be reviewed and corrected". —State ex rel Barber v. McBam, 102 W. 431, 434, 1080 PROBATE AND GENERAL LAW, CODIFIED 10. "The statute (see. 2878) provides that a motion made but not decided during the term is deemed to be overruled, and an exception to such constructive denial is to be allowed". 11. Adjournments of court "subject to the order of the judge, with- out any adjournment to a specific day", do not operate "as a termina- tion" of the "term of the court". 12. "Under this section (2572) it has been held that 'a term of court does not come to an end by failure to adjourn to a specific time, but once commenced it continues until terminated by an affirmative judicial act or by the commencement of a new term'. State ex rel Barber v. McBain, 102 W. supra". 13. Where a term had not been specifically terminated, an order recit- ing a hearing " 'on an adjourned day -of said June, 1904, term of said court', being Jan. 3, 1905, on which day the order was made and signed", the record so showing and that "the court adjourned 'sine die'," "was effectual though not entered of record until June 6, 1905 ' ', and though a new term commenced Jan. 3, 1905. 14. "The adjournment of the June 1904, term was the same day as the opening of the new term. The fair presumption is that such adjourn- ment of the June 1904, term took place prior to entering upon the business of the new term. Certainly, error is not to be presumed ' '. —Cooper v. Granger, 129 W. 50, 53.. • 15. (As to terms in county court, including detailed commentaries on special and regular terms, and on adjournments and continuances, — see Zimmerman's Probate Practice, §| 9-10, and §§ 483-488.) TESTAMENTARY CAPACITY. See also Incompetents. Insane Persons. Privileged Communi- cations. Competent giving directions, 26. Evidence — continued Presumption to execution, 26. Declarations of testator, 57. Declarations of testator, 57, 58, 64.> About time of will, 57. Evidence: After the will execution, 58. Affirmative proof required, 43. Prior and subsequent, 64. Before sanity presumption, 44. Guardianship proceedings, 92, 98. Burden then' on contestant, 45. Persuasive effect, 93, 98. Attesting clause presumption, 76, 77. Impeaching scrivener, witness, 61, 86. Many years later; wit. memory, 74, Own contradictions, 61, 62. 77. . : Letters, during year prior, 12. Attorney, witness testify, 88. Natural justice will, 100. Burden upon contestant, 21, 45. Strong evidence required, 100. Presuinption ; some proof, 22. Non-expert opinions rejected, 67. Confidential relations, 33, 34. Much favorable evidence, 66. Burden of proving fairness, 34. Opinion without grounds, 60. TESTAMENTARY CAPACITY 1081 Evidence — continued Physician's lips sealed, 78. , Physician, witness, impeached, 85, 86. Witnesses; against experts, 87. Physicians present; witnesses, 95. Against experts; witnesses, 95. Physician, witness, testify, 89, 90. Scrivener and witnesses favor, 82. Physicians, experts, contra strong, 83. "Seemed intelligent, reasonable", 68. Sufficient at deed execution, 48. Overshadowed by circumstances, 48. See also Guardianship. Slight affirmative required, 46. Burden on contestant, 47. ' Wife as to knowledge of will, 28. Wife; deceased husband, 79. Guardianship : Capable and comprehending, 50. Condition been the same, 54. Adjudication admissible, 55. Does not disqualify, 49. Future presumption, 53. Pending at will making, 98. Filing, effect on wills, 99. Physical disabilities, 98. Eecord evidence at the time, 51.' Testimony substantially i same, 91. Not res adjudicata, 92. Persuasive in effect, 93, 98. Ward 's declarations, 56. After execution of deeds, 56. Ignoring existing heirs, 41. Incompetency indicia : Approved by bowing head, 74. Attesting clause presumption, 76. Corroborating evidence, 77. Contents from \vidow, 75. "Years after, witness old, 74. Capacity up to signing; death, 84. Change of former habits, 63/ Greater susceptibility, 64, 65. Immoral tendencies, 63. ■ Eccentric, arbitrary, prejudiced, 80. Prejudices explainable, 81. Eelationship not determine, 81. Eeferring to deceased heir as living, 94... Not overcome strong evidence, 94. See also Insanity indicia. Suffering, .responded, by nods, 72. Will imposed on him, 73. Tortured with pain, 59. Not incoherent or deluded, 59. Violent, suspicious, unreasonable, 70. Insanity indicia instances: ! Belief ,in clairvoyants, 9. ; Dementia apd delusions, 10. Despondent; attempted suicide, 68. Afterward became : insane, 69. Seemed intelligent, reasonable, 68. Epileptic fits; unconscious, 23, 24. Before and after making, 23. ' Faculties up to fit, 25, Poisoning motives imputed, 35, Otherwise of sound mind, 36. Separately or ' collectively, 9. Softening of the brain, 42. , Mind clear at times, 42. Nervous prostration, , 42. , Spiritualism; eccentricities, 27, 28. High intellectual powers, 29. Spiritual mediums, dreams, 9. Wife unchaste, son, illegitimate, 16. Delusion, without evidence, 17. Insanity . rules of law: Delusion; impute motives, 17, 18. Distinptions, difficult, 20. Sane persons so afflicted, ,19. Hallucinations inoperative; 14. Will unaffected by, 14, 15. Old-age insanity, 96. ■ Lucid intervals,: 97. Partial insanity may defeat, 13. Presumption of sanity, 21. Burden upon contestant, 21, 22. Some" sanity proof required, 22. Eules governing : "Correct statement of the law", 2. By Davies, J., of New York, 3, 11. Capacity to comprehend, 3, 2ii. Collect without prompting, 4. By Selden, J., of New York, 5. Some intelligence, insufficient, 5. By Chancellor Walworth, 6. Sound, discerning mind, 6. By Bedfield, J., of Vermont, 7. Foregoing N. Y. rules, 7. English and American cases, 8. Eeferred to and upheld, 30, 59, 73. Understand the nature, 37. Affections not poisoned, 39. Appreciate the claims, 38. No' insane delusions, 40. Test: not best or wisest will, 71. , Eelationship not • determine, 81. Testamentary qualifications, 71. Weakness of understanding, 1 . Person ninety years old, 31. Clearer proof required, 33. i More easily influenced, 32. 1082 PROBATE AND GENERAL LAW, CODIFIED 1. "Mere weakness of understanding or the liability to be sometimes deceived and duped, will not in general suffice for this purpose (to set aside a conveyance), but it must be such as to render the party in a legal sense non compos." The conveyance was set aside. — Henderson v. McGregor, 30 W. 78, 80. 2. In the opinion, per Lyon, J., denying a motion for re-hearing, it is said: "We unhesitatingly accept the foregoing views of Judges Red- field, Davies and Selden, and of Chancellor Walworth, as correct statements of the law concerning what is, and what is not, testamentary capacity". The Judges' views thus endorsed follow:. 3. " 'We have held that it is essential that the testator has sufficient capacity to, comprehend perfectly the condition of his property, his rela- tions to the persons who were, or should or might have been, the objects bf his bounty, and the scope and bearing of the provisions of his will. 4. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transcated, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them' ". Judge Davies, in Delafield v. Parish, 25 N. Y. 9, 29. ,5. In a dissenting opinion in the same case (Delafield v. Parish, supra) as to the capacity of the testator, Selden, C. J., says: " 'It is not enough that he should be found to have possessed some degree of intelli- gence and mind. He must have had sufficient mind to comprehend the nature and effect of the act he was performing, the relation he held to the various individuals who might naturally be expected to become the objects of his bounty, and to be capable of making a rational selection among them', p. 105." 6. ' ' The same rules of law were laid down by Chancellor Walworth in Clark v. Fisher, 1 Paige 171, * . The Chancellor there said: 'The general principles in relation to the capacity of a person to make a will are well understood. He must be of sound and discerning mind and memory, so as to be capable of making a testamentary disposition of his property with sense and judgment, in reference to the situation and amount of such property, and to the relative claims of different persons who are or might be the object of his bounty'." 7. "In Converse v. Converse, 21 Vt. 168, Judge Redfield states the law as it is stated in the foregoing quotations. Indeed that portion of Judge Davies' opinion which refers to the language of the eases, is copied from the opinion in Converse v. Converse. 8. The cases, both English and American, which hold the same doc- trine, are very numerous. It is not my purpose to review them. The doctrine is so reasonable' and just, and commends itself to the approval of the judgment so readily, that neither labored arguments nor citatiqns of numerous authorities are necessary to sustain it". —Holden v. Meadows, 31 W. 284, 294. TESTAMENTARY CAPACITY 1083 .9. A testator who believed in "clairvoyants, fortune-tellers and spir- itual mediums", also in dreams, in living "without committing sin", had many peculiar mechanical notions, "insisted that the sun revolved around the earth", owned many firearms, believed a former wife unchaste, a child illegitimate, "of most positive character and most intense convictions", was "visionary and illogical", but could be rea- soned with, was of "strict integrity in business affairs", and whose "busi- ness capacity remained unimpaired", who cut off his children and gave his wife a life estate, and whom a jury in circuit court found of unsound mind,— was held to be "of sound mind" with testamentary capacity, "whether the alleged indicia of insanity be considered separately or collectively". See also Insane Persons. —Chafin Will Case, 32 W. 557, 568. 10. Where the will was sustained by the county court, but not by the circuit court, which latter court found the testatrix "of unsound mind and chronically insane", of the type "known as dementia, accompanied by insane delusions", and the supreme Court finds "she was excitable, nervous, flighty and hysterical", "suspicious of all, discontented and unhappy", had "frequent fits of crying and laughing without any apparent cause, her conduct oftentimes was strange and unnatural", "easily excited into passion and frenzy", was partially paralyzed sev- eral months before and at the time of making the will, became insane and was committed some months after the making of the will, and so died there about six months after commitment, gave her estate to religious charities, and not to her husband, her sole heir, though she had other relatives with whom she was on good terms ; it was held upon the evidence, "that the testatrix was laboring under no insane delusions when she executed her will, nor were her mental powers so feeble that she was then wanting in testamentary capacity within the statute". See also Insane Persons. 11. On the question of testamentary capacity, Holden v. Meadows, 31 W. and the Chafin Will case, supra, and the rule laid down, "by Judge Davies in Delafield v. Parish, 25 N. Y., 29 ' ', there quoted, and Burnham v. Mitchell, 34 W. 117 (See Insane Persons); are fol- lowed and approved. ' 12. Letters written during the year prior to the making of the will, were held "entitled to considerable weight as bearing upon the question of her mental condition and testamentary capacity prior to, 1 and shortly before, making the will". —Will of BUkely, 48 W. 294, 297. 13. "The law, as laid down by Sir John Nicholl in the great leading case of Dew v. Clark, 1 Add., 279 ; S. C. 3 Add. 79, is that partial insanity may defeat a will if it can be fairly inferred that the instrument is the direct offspring of the delusion. 14. But if the. hallucination of the testator is inoperative when he 1084 PROBATE AND GENERAL LAW, CODIFIED executes the will — if the instrument is solely the offspring of his sane faculties, untainted and unaffected by his delusion, — it is a valid will. 15. This rule of law is supported by sound reason, and cannot be abrogated without greatly endangering the testamentary right". 16. The will in this case is sustained, it being held that "the claim that the deceased was of unsound mind, if sustained at all, must be sustained on the ground alone that his belief that his wife was unchaste and his son illegitimate amounted to insane delusion". 17. "It must be conceded that the belief of deceased in respect to ( the unchastity of his wife, persisted in as it was without evidence to support it and against all reasonable probabilities of its truth, looks very much like insane delusion. Yet it is not necessarily so. 18. Observation teaches us that there is a very large class of people, whose sanity is undoubted, who are unduly jealous or suspicious of others, and especially of those closely connected with them, and who, upon the most trivial, even whimsical grounds, will wrongfully impute the worst] motives and conduct to those in whom they ought to confide. 19. This insanity, which is developed in a great variety of forms, is altogether too common, and too many persons confessedly sane are to a greater or less extent afflicted with it, to justify us in saying that because the deceased was so afflicted he was insane, or the victim of insane delusion". 20. "The line between the unfounded and unreasonable suspicions of a sane mind (for doubtless there are such) and insane delusion is sometimes quite indistinct and difficult to be defined. 21. However, the legal presumption is in favor of sanity, and on the issue of sanity or insanity the burden is upon him who asserts insanity, to prove it. « 22. Hence, in a doubtful case, unless there appears a preponderance of proof of mental unsoundness, the issue should be found the other way". (But it appears that some "affirmative proof" of sanity must be made before the "presumption of sanity" arises. See Will of Sil- -verthorn 68 W. post.) — Will of Cole, 49 W. 179, 182. 23. Where the will was sustained by the county court, but not by the circuit court, on the, testimony, including the fact that the testator "was suddenly seized with a fit and became unconscious" the day before the will was drawn, and, after some conversation, "fell into a severe epileptic fit", about five minutes after the will was signed, which "passed off, and consciousness returned, but he sank rapidly thereafter", and died two days later, — it was held, on ' ' the test of testamentary capacity as stated by Judge, Davies ", quoted in Holden v. Meadows, 31 W., supra, and cases following, that the testator had testamentary capacity. 24. The fact that the testator "became unconscious soon after the execution of the will, is not very significant". 25., "It is doubtless within the knowledge of almost every person of ordinary intelligence, that the victims of that malady (epilepsy) fre- TESTAMENTARY CAPACITY 1085 quently retain their mental faculties fully to the moment of attack, espe- cially in the earlier stages of the malady ' '. 26. Where the testator "was entirely competent to make a testamen- tary disposition" when he gave the scrivener "directions to draw his will", "the presumption is that he continued competent to do so until the will was executed". — In re Lewis's Will, 51 W. 101, 104. 27. "Where the will was allowed in the county court, and disallowed by the circuit court after a jury had found the testator of unsound mind, and that undue influence was exercised upon him, the supreme court sustains the will on the evidence, though it appears the testator was somewhat eccentric and believed in spiritualism; that he believed in good and bad spirits, was influenced in his personal actions by them, but probably only ' ' where the advice he received corresponded with his own views"; and it is said: "It is difficult to find evidence of insane delusion, or of any peculiar exposure of liability to undue influences, in a faith thus absolutely subordinated - to the judgment ; " that ' ' one of the most significant", reasons for disallowance is the reason given in the will "for disinheriting his children", that they "will take every advantage of his wife", while it appears the relations between them were friendly, though the wife was a stepmother to, the children, and their relations "were, however, naturally somewhat antagonistic"; and, 28. "It is stated in the alleged will that it was executed without the knowledge of the appellant (the wife), and she testifies that she knew nothing of it until after it was executed"; and "there is no other direct testimony on the subject"; nor that the' execution was prompted "by his wife or any other person". 29. It also appears the testator was ' ' of excellent moral character, and that his intellectual powers were of a high order". "He possessed great self-reliance and firmness, and was not easily swerved from a purpose deliberately formed". 30. "The subjects of testamentary capacity, insane delusion and undue influence have been fully considered by this court in the cases of Jack- man's "Will, 26 "W. 104, (cited under Undue Influence) ; Holden v. Meadows, 31 "W. supra" and the cases following, supra, and "the prin- ciples established by those cases", applied. — Will of J. B. Smith, 52 "W. 543, 550. 31. With a person ninety years old, with little or no proof, "we could well understand", "that his faculties might be so impaired that he could not readily comprehend the nature and effect of contracts, nor remember ordinary business matters which he had transacted, 32. And that he would be more easily influenced by another, and more likely to be imposed upon, than one in the vigor of manhood. 33. All this is so natural and probable that we would not require these facts to be established by that clear proof which is demanded to show mental incapacity in younger persons". 1086 PROBATE AND GENERAL LAW, CODIFIED "A less degree of proof also would satisfy us" that he "might easily have been influenced by one standing in a confidential relation to him ' '. 34. Where H., aged ninety "was 1 induced by the defendant to make a conveyance" to him, which H. could not and did not read, or had explained to him, or understand, "it is most emphatically a case, con- sidering all the circumstances, where the burden was upon the defendant, (a son-in-law) of proving the perfect fairness of that transaction and the capacity of H." —Smith v. Smith, 60 W. 329, 330. i 35. The facts show that the testatrix ' ' was laboring under these insane delusions as to the conduct and motives of her daughter and son-in-law, and that these delusions, in all probability, influenced her in disposing of her property" to strangers. "Her affections had become so alienated from her only child, and her sense of right so perverted, that she repeat- edly imputed to her daughter the wish to poison her", an "utterly groundless notion. ? ' " She carried her dislike to that extent that she did not wish her daughter to see her while alive. ' ' 36. "In view; of these incontestable facts, we must consider her insane and incapable of making a will, notwithstanding she may have been of a sound mind in other respects." (Cases). The county court sustained the will ; a jury and the circuit court, contra. 37. "In the execution of a will it is essential that the testator shall understand the nature of the act and Jts effects ; 38. Shall be able to comprehend and appreciate the claims which he ought to regard and satisfy; 39. And that no disorder of mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; 40. That no insane delusion shall influence his will in disppsing of his property and bring about a' disposal of it, which, if his mind had been sound, would not have been made. Cockburn, C. J. in Banks v. Good- fellowj L. R. 5 Q. B. 549; etc." —Ballantine v. Proudfoot, 62 W. 216, 220. 41. Where the testatrix told the scrivener that three named children "were all the heirs she had, thus forgetting or ignoring the fact that she then had six living grandchildren (of deceased children), who were also her legal heirs", it is said "it is very doubtful whether she was competent to make a valid testament". Ballantine, Extr. v. Proud- foot, supra, cited on testamentary capacity. See also Undue Influence. —Will of Farnsworth, 62 W. 474, 477. 42. Where the testator was old and "physically quite infirm", and "softening of the brain had been going on for several years", which "caused serious nervous disturbances", had "nervous prostration" at intervals for several days at a time, but at other times "his mind was reasonably clear", and at the time of making his will, and the elements TESTAMENTARY CAPACITY 1087 of which "were few and simple", and the disposition reasonable, the decisions of the county and circuit courts upholding the will were approved. > 43. "This question of onus probandi in such cases does not neces- sarily arise on this appeal," but Lyon, J., "on his own responsibility," says: "That the statute (sec. 3788) requires affirmative proof to be made of the mental soundness of the testator before the will can be admitted to probate, 44. And that until such affirmative proof is made there is no pre- sumption of sanity ; 45\ But that, when ai prima facie case of; sanity is made by the proofs, and some contestant makes an issue as to the sanity of the testator, the presumption of sanity arises, and the burden of proving the testator of unsound mind is upon him who asserts it" ; and that this was intended in Will of Cole, 49 W. supra. —Will of Silverthom, 68 W. 372, 377. 46. "In the absence of any testimony tending to show a want of testa- mentary capacity, slight evidence of such capacity is all that is needed to authorize " the, probate of a will. 47. "In a case which does not disclose any facts which 'tend to show incompetency, slight evidence of the competency of the testator is suffi- cient to put the contestant to his proofs upon that question." —Allen v. Griffin, 69 W. 529, 537, 48. Where "the only witnesses who testified to what occurred" at the execution of deeds at the fatal illness of the grantor, six days before his decease, including the scrivener, physician and another, (with three others present), established such competency that the court says, "it is conceded that such testimony, standing alone, is sufficient to support the finding" that the grantor "then had sufficient mental capacity to make a valid conveyance of her property, ' " but that the facts of her con- dition "both bodily and mentally, immediately before and immediately after the execution of the deeds, as well as from the time she was injured until she died," overshadows such testimony, and she was held "mentally incompetent to make a valid conveyance", at the time the deeds were executed. See also Undue Influence. —Vavis v. Dean, 66 W. 100, 106. 49. "The mere fact that a testator is, at the time of making his will, under guardianship as to his person and property, may not of itself incapacitate him to make a valid will, 50. Provided he is capable, at the time, of comprehending the con- ditions of his property, his relationship to the natural objects of his bounty, and the disposition actually made of his property by such will;" and it was held, contrary to the verdict of a jury, that he had mental capacity. See also Undue Influence. — Will of Slinger, 72 W. 22, 26. 1088 PROBATE AND GENERAL LAW, CODIFIED 51. The guardianship "records were proper evidence as to the mental condition of G. at the time the guardian was so appointed. It has been so decided by this court. Burnham v. Mitchell, 34 W. 117" (see Insane Persons). 52. " It is no doubt the general principle that the adjudication cannot relate back to a prior time as evidence of incapacity. 53. And so, too, as to the future also, except by the presumption that it continued. Semel furibundus semper furibundus praesumetur. 54. But when it is shown that the mental incapacity and condition has been the same for a considerable time, and was the same at the date of the act tq be affected by it as when adjudication was had, the adjudication is none the less competent. This was held in Terry v. Buffington, 11 Ga., 342". 55. In this case "where the mental weakness and incapacity of the concommitants of old age", "such evidence is competent to show that the conditions had not changed, but were the same as when the adjudica- tion was had ; and the adjudication itself is admissible as the foundation of such an inquiry. (Cases) ". (Expressly affirmed in Small v. Cham- peny, 102 W. 61, 66. See Incompetents). 56r "The testimony or declarations of" the ward, within ten months after, "on the inquisition (de lunatieo) were not too late, or remote to have a legitimate bearing upon his mental condition when he executed the deeds, by the general current of authorities, and were clearly admis- sible on the trial." 57. In Robinson v. Hutchinson, 26 Vt. 47, "declarations about the time and after his will was made were (held) competent as tending to show the condition of" an aged testator's mind, "when he made it, and his liability to undue influence." 58. And "many cases are cited to show that the declarations of the person claimed to have been incompetent to make a will by reason of weakness of mind and imbecility arising from old age, made after the will was executed, were competent evidence. (Pa., Conn., & Mass. cases.)" —Giles v. Hodge, 74 W. 360, 366. 59. Though the testatrix "was racked and tortured with pain which it was extremely difficult to endure, and which had reduced her physical and mental vigor", her mind did not wander, she was not incoherent, and she had no delusions ; and though a 'number of witnesses ' ' expressed opinions unfavorable to her testamentary capacity ""on few facts, it was held by the county, circuit and supreme courts, on the evidence, that she was competent, on "the test of testamentary capacity acted on in Delafield v. Parish, 25 N. Y. 9" (Cited and as quoted in Holden v. Meadows, 31 W. supra) and which "has been adopted in this state, and applied in numerous cases, (supra) ". 60. As to testimony on testamentary capacity, it is said, that "mere opinion without substantial grounds to justify it, is of comparatively little value." See also Witnesses. —XfcMasicr v. Striven, 85 W. 162, 168. TESTAMENTARY CAPACITY 1089 61. Where the scrivener, being a subscribing witness and the executor named, presented "his petition for probate, under oath, in which he stated, among other things, that the 'deceased left a will duly made and executed, ' as he was informed and verily believed, ' ' as the principal witness for contestant, gave "numerous expressions of his opinion to the effect that the testator had not the mental capacity to make a valid will", on. facts testified to by him "far more convincing" to the con- trary, — it is held that he "is impeached by his own testimony, and that, in view of it, his opinion as to the testator's want of capacity is overwhelmingly disproved by the evidence in the case. 62. Certainly, the trial judge was justified, upon his own admissions, in characterizing his conduct as a 'gross impropriety'." In re Lewis's Will, 51 W. supra. The will was disallowed by the county court, allowed by circuit court and a jury, and the judgment sustained. — Loughney v. Lott-gUney, 87 W. 92, 101. 63. Where an elderly testator 's habits and manner of living during , the last few years of his life "were materially different than pre- viously", evidenced especially by association with women, and "people of questionable repute", "such changes are frequently evidence of im- paired and enfeebled intellectual faculties", but, here, there is "grave doubt" whether the evidence justified a finding of mental incapacity, "had no undue influence, been brought to bear upon him". 64. I|ut such impaired "condition of mind" caused greater suscepti- bility to influence, and "it is upon this theory that prior and subsequent declarations of the testator are admissible in evidence on the question pi undue influence". 65. The finding of the circuit court and jury, disallowing the will on both objections, contrary to the county court's finding, is upheld, citing cases supra, and, especially, Will of Slinger, 72 W. supra. —Bryant v. Pierce, 95 W. 331, 339. 66. Where ' ' there . is considerable credible evidence respecting how the testator acted before, at the time of, and after the will was exe- cuted, indicating" uninfluenced comprehension, — 67. "A large amount of evidence by non-experts, and some by experts, that the testator was of unsound mind," "might very properly" be rejected, as "such evidence, even when given by experts, is often of the most unsatisfactory character and entitled to little or no weight." Danials v. Foster, 26 W., 686 (See Expert Testimony). —Jones v. Roberts, 96 W., 427, 430. 68. On the question of mental capacity to execute a deed, "witnesses, apparently intelligent and disinterested, who had known" the deceased grantor, "for a long time, testified that he seemed intelligent and reasonable, and that they did not notice anything wrong with him mentally. ' ' Zimmerman — 69 1090 PROBATE AND GENERAL LAW, CODIFIED 69. This evidence is held to establish capacity though several months before, decedent had become despondent, and "attempted to commit suicide", and about six years thereafter he became insane, and was con- fined in asylum until he died seven years later. —Jones v. Bice, 99 W. 429, 435. 70. That the testator ' ' was an old man of irascible and violent temper", "frequently suspicious and violent," "did not reason with entire justice to his children or his wife", — "all these things do not show incapacity to make a will", there being family differences and guard- ianship proceedings having been started. 71. "The test is not whether the testator did the best or the wisest or the theoretically just thing in his will ; but, Did he have ' ', the estab- lished testamentary qualifications (stated), as per In re Lewis's "Will, 51 W., supra. See also Expert Testimony. — In re Butler's Will, 110 W., 70, 77. 72. Where the deceased lived with the principal beneficiaries named, many years, made a will several hours before his decease, signed by his mark, witnessed by his physician and an attorney who was the scrivener, was sixty -nine years old, "appeared to be a very sick man, suffering much, in constant pain", responded to the names suggested by nods only, spoke but two words as to an executor, — on these and other facts, it was held, 73. That the instrument "did not emanate from his mind, but was made by others and imposed upon him", in his weakened mental con- dition, — following the rule of Holden v. Meadows, 31 W., and other cases, supra, the county and circuit courts having held to the contrary. (Distinguished in Hanley v. Kraftczyk, 119 W. post) . See also Execu- tion op Wills. — In re Downmg's Will, 118 W., 581, 587. 74. Where a will was executed twenty-nine years before the trial, and the scrivener, being eighty -five years of age, testified "that his recollection in respect to the will was pretty poor", "that the testator was sick, and said nothing and was an habitual drunkard", that he approved "by bowing his head", that he "knew the business trans- acted", 75. That the scrivener "got the contents of the will from the testator's wife", she being the principal beneficiary, and gave other slight details, it is said, that while such testimony only, might "bring the case within the ruling of this court in the Will of Downing, 118 W. supra, There is, however, this difference, that in that case there was an absence of the requisite facts as to the execution of the will, 76. Whereas here there is an absence of the memory of such facts by the particular witness named, and yet he testified that the attesta- tion clause correctly states the facts that took place there at the time the will was executed. TESTAMENTARY CAPACITY 1091 77. If that is true, then the instrument" was properly executed, following the rule of presumption in In re Gillmor's Will, 117 W. 302 (See Execution of Wills). ''But it is unnecessary to rest upon such presumption", as here there was favorable corroborating testimony by the two other subscribing witnesses. —Hcmley v. Kraftczyk, 119 W. 352, 360. 78. After the decease, the attending physicians' "lips are forever sealed" as to mental capacity, as no one can waive the privilege. See Privileged Communications. —Will of Hunt, 122 W. 460, 469. 79. As to testimony of the wife as a party, as to the mental compe- tency of her deceased husband. See Husband and Wife. —Sckultz v. CuHberison, 125 W. 169, 172. 80. Where the testator was eighty-five years old, "a self-willed, arbi- trary an eccentric person, who resented interference", "controlled his financial. affairs", was penurious, intemperate, had "prejudices towards those naturally closest to him", had proper comprehension of his prop- erty and relatives, — his will largely cutting off an adopted daughter, and giving most of his property to his financial adviser, was disallowed in county court, and allowed in the circuit and supreme courts. 81. Where prejudices and circumstances are "explainable" "as com- patible with mental soundness", "whether or not he reasoned and dealt justly under the circumstances with those nearest to him through family relationship does not determine his capacity to make a will". — Field v. Pickard, 126 W. 229, 235. 82. Where a grantor, on his death-bed, conveyed all his property to his sister with whom he had lived, excluding other sisters and brother, a finding of mental competency on the testimony of the, scrivener and witnesses was sustained, against the testimony of the two attending physicians as experts, who were not present at the execution, and, 83. Who testified "to the effect that the deceased was in a semi- comatose condition from the morning of the day when the deed was made and executed until death" and "practically unconscious and incapable of having an intelligent comprehension" "of his surround- ings and business affairs". —Hermann v. Zachow, 126 W. 441, 445. 84. Where a will, was disallowed by the county and circuit courts, a jury also finding unsoundness of mind, and there being no question as to regularity i and capacity "up to the time of the signing of the instrument", after which "death followed in a few moments V,— the will was sustained on the evidence. , . ' 85. One -of two subscribing witnesses, being; the attending physician, and taking an active part, testified to soundness of mind "when this writing was drawn and signed, but that, in his opinion, the deceased 1092 PROBATE AND GENERAL LAW, CODIFIED had not sufficient mental capacity to make a will, and that he took no conscious active part in the attestation of the document. 86. The facts and circumstances, as detailed by him, clearly contra- dict his opinion statements" as given, and "as indicated in Winn v. Itzel, 125 W. 19 (See Undue Influence) : 'Certainly such testimony is thoroughly impeached by the witness himself '. Loughney v. Loughney, 87 W. supra. 87. All the other evidence (being that of the other subscribing wit- ness, and of a non-related beneficiary), except that of the experts (two on each side), points clearly and directly to" "testamentary capacity, and that he consciously participated in the completed execution of the instrument". — Will of Muellenscblader, 128 W. 364, 372. 88. Where "an attorney who drew the deed and agreement" "was requested by" the (now deceased) grantor "to sign the papers as a witness and did so", "the admission of his evidence' was proper" "re- specting the mental competency of" the grantor "at the time of the execution of the papers". MeMaster v. Seriven, 85 W. 162, (-See Exe- cution of Wills) ; Will of Coleman, 111 N. Y. 220. 89. Likewise as to a physician who "signed the deed as a witness. His evidence was therefore competent". 90. Besides, his answers involved no "disclosure of any communica- tions received" as attending physician. —Boyle v. Robinson, 129 W. 567, 579. 91. A will was denied probate in the three courts, "on the ground" of incompetency, and that it "was procured by fraud and undue in- fluence", on evidence "much the same as that given on the guardian- ship proceeding" begun in 1905, the will being made August 15, 1907, and the decease occurring December 20th, 1907, and guardianship being sustained "just one week prior to the death of the testatrix", in In re Deleglise, 134 W. 41 (See Incompetents). 92. "While the adjudication in the guardianship proceeding was in no sense res adjudicata in this case, 93. It was doubtless considered by the trial court as quite persuasive in its effect, and rightly so, in as much as there was no claim that the mental condition of the deceased had improved". \ —Deleglise v. Morrissey, 142 W. 234, 235. 94. "The sound mental condition of the testator" being "shown by very strong evidence", the fact that the will divides property 'between my two brothers, O. and G., or their heirs', when O. was dead at the time, does not "overcome such evidence", as "the language may have been used with knowledge of the death of O. as apt and convenient language respecting the disposition to the heirs of both brothers and the living brother". — Evenson v. Rust, 152 W., 113, 115. TESTAMENTARY TRUSTS 1093 95. "Where "a capable county judge" and an "experienced circuit judge" disallowed the will because of incapacity, such holding was reversed because "against the clear preponderance of the evidence", — the evidence of the family and another physician, the two subscribing and another witness, all being \ present at the making of the will, and that of other witnesses, showing competency, while two other physicians and other witnesses testified to incompetency and mental weakness indi- cating senile dementia, and the hypothetical questions excluding pro- ponents' evidence. Blakely Will Case, 48 W., Cole Will Case, 49 W., and Silverthorn Will Case, 68 W., all supra, are cited as similar cases. 96. In "old-age insanity" "the mind gradually loses its alertness and power of concentration until it is no longer capable of forming an intelligent judgment. 97. When that period arrives, it is probable that there are no lucid intervals, although the person afflicted may be brighter at some. periods than at others. (Citations)", p. 79. 98. The pending of "guardianship proceedings"- at the time of mak- ing the will, resulting in a guardian appointment shortly thereafter, "would ordinarily be quite persuasive", but "has no force here" be- cause guardianship "was sought because of physical and not mental disabilities", and "no guardian should have been appointed on Jhe showing made". 99. Sec. 3979, as to the filing of the petition in register of deeds office, voiding all gifts and transfers after guardian appointed, "we do not construe " " as applying to wills or legacies provided for by the will", p. 82. — Est. of Beam,, 159 W. 67, 69. 100. "Strong evidence" is required "to nullify" a will "made in accordance with" "natural justice". (As to a will not so made, see Elliott v. Pisk, 162 W, 249, Undue Influence). See also Probate oe "Wills. — Gunderson v. Rogers, 160 W. 468, 473. TESTAMENTARY GUARDIAN. See Guardian and Ward. TESTAMENTARY INSTRUMENTS. See Wills. TESTAMENTARY TRUSTS. See Trusts. 1094 PROBATE AND GENERAL LAW, CODIFIED TESTIMONY. See Evidence. Impeachment op Witnesses. Witnesses. TIME. See also Publication. Computation: Hearing date later, 10. Appeal; judgment entry, 9. Begularity presumed, 10. Days or weeks before, 5. Night and 'day time, 12. Posting of notices, 6. Per diem compensation, 14. Specific instances, 7, 13.. Splitting up of days, 15. Statute, publication only, 8. When, and when not, 14, 15. Tax deed; time issued, 11. Priority presumption, 1. Extended by parol, 4. Acts on the same day, 2. Fraction not considered, 3, 13. Statute, publication pnly, 8. « 1. "Prima facie, the presumption of law is that the several acts or steps in the course of a legal proceeding take place in the order neces- sary to give them legal effect". 2. "But, whenever an inquiry into the priority of acts, on the same day, becomes necessary in order to protect the rights of parties, the ordinary presumption must give way to the facts of the case". 3. "In general, it is true that, in computing time in respect to the service of papers, the issuing of process, the calculation of interest, the running of statutes, and many other like matters, the fractions of a day will not be considered". —Knowlton v. Culver, 2 Pin. 243, 246. 4. Time may be enlarged or extended by parol or written agreement. See Parol. —Webster v. Tibbits, 19 W. 438, 444. 5. "In the absence of any statutory provision governing the computa- tion of time,- the authorities are uniform that where an act is required to be done a certain number of days or weeks before a certain other day upon which another act is to be done, the day upon which the first act is to be done must be excluded from the computation, and the whole number of the days or weeks must intervene before the day fixed for doing the second act. (Many cases}." 6. Sec. 1130, for posting of notices for tax sale, 'at least four weeks previous' to the day of sale, "brings the case within the rule laid down by the authorities, and is a clear direction that four full weeks or twenty-eight days must intervene between the day of posting the notices required and the day upon which the sale is to be made, ' 7. And that a posting of such notices on the sixteenth day of April TIME 1095 is not sufficient for a sale to be made on the fourteenth day of May thereafter", being "one.day short of the time required". 8. Sec. 4273, is held not to govern in such notice, as "it relates only to the publication of legal notices, and not to the giving notices in any other way or manner". — Ward v. Walters, 63 W. 39, 44. 9. "In computing the time in which an appeal .may be taken, the day the judgment was entered shall be excluded. ' ' —Bennett v. Keehn, 67 W. 154. 10. Where the date of hearing is later than the date noticed, regu- larity is presumed. See Rules of Peactice. — Field v. Apple River L. D. Co., 67 W. 569, 571. 11. On a tax sale on September 4, 1866^ a deed was given September 4, 1869, and held void, the court saying, "The three ; years did not expire, and no deed on such tax sale could lawfully be issued, before September 5, 1869," nor "until the expiration of three years after the date of the certificate of sale". —Whittlesey v. Hoppenyan, 72 W. 140, 144. 12. As to night and day time, it was held that an instruction as being one hour before sunrise was erroneous, and Blackstone's rule (Vol. 4, page 224) is approved; " 'if there be daylight or crepusculum enough, begun or left, to discern a man's face withal it is not burglary. But this does not extend to moonlight' ". So held in Nicholls v. State, 68 W. 416, as to burglary; here as to "violation of the game laws". —Klieforth v. State, 88 W. 163, 165. 13. "The 11th day oftthe month" is "six days before the 17th day", under the statute. Sec. 4971, subd. 24. "Parts of days are to be dis- regarded. 5 Amer. & Eng. Enc. It., 89." — Young v. Krueger, 92 W. 361, 363. 14. While "under statutes allowing a per diem compensation to officers", it has been held that "a day could not be split up, and that the officer was entitled to a full day's pay if any time was occupied in the service, although the whole day was not consumed (Smith v. Jefferson, 10 Colo. 17),"— 15. Yet, it is said that under a statute 'for each day he shall be actually engaged', it is "the intention only to allow for the time actually con- sumed", and "necessitates a splitting up of days and a charge by the hour", — though the question was not here controverted." —Hoffman v. Lincoln Co., 137 W. 353, 357. 1096 PROBATE AND GBNEEAL LAW, CODIFIED See also Delivery. Estates. TITLE. Personal Estate. Real Estate. Vesting of Absolute deed as security, 48. Legal title in grantor, 66. Satisfaction clears, 48. Administrator : Has title to personalty, 2. Not vindicate realty title, 8. Adverse possession: Always strictly construed, 9. Certificate of descent, 74, 76, 77. Deed, grantor to another, 78. Manual delivery, 78. Letter of the statute, 10. Not marketable title, 50. Quit claim deed, 75. Heirs omitted, 77. Tax title claimant, 11. Any actual occupation, 11. Void county court judgment, 16. Possession before; not apply, 16. Certificate of descent, 74, 76, 77. Claim of deceased, 52, 54. Lapse of time, immaterial, 56. Sole heir; administration, 55. Cloud on title: ; Defect, apparent cloud, 72. Enjoin homestead ,sale, 14. Sheriff's deed issue, 14. Not equity, if law remedy, 13. Color of title, 1. Void administrator's deed, 51, 65. Improvement recovery, 51, 78. Contested claim title, 5. Deed; execution, delivery, 73. Quit claim, 75. Devisees : Administrator not vindicate, 8. Also executor with power, 37. Deed by devisee passes title, 37, 38. Equity : Acts on whole title, 47. Future, vested, contingent, 47. Fraud of creditors, 49. Voidable, not void, 49. Legal title: Personalty in administrator, 2. Eealty in the heirs, 2. Life estate in possession, 69. Erroneous judgment, 70. Adverse possession, 70. - Remainderman 's rights, 69. Life tenant purchases, 58, 59. Contribution; remainderman, 60. Life tenant, etc. — continued Deeds to third party, 58. Foreclosure sale, 58. Improvements, taxes, 62. Remainderman 's rights, 63. Subrogated to a lien, 61. Marketable : Adverse possession not, 50. Not open to judicial doubt, 41. Not where action necessary, 42. Not where parol necessary, 50. Tax deed extinguishes title, 40. Tax deed, is marketable, 43, 64. Twenty years possession is, 46. Payment of taxes, 46. Mortgagor's decease; to heirs, 35. Conveyance by heirs to mortgagee, 35. Note, administration only, 36. Personalty : Administrator has title, 2, 24. Chattels; sale of, stolen, 25. Implied title warranty, 27, 30. Civil law; English, contra, 28. General American rule, 30. Later English cases, 29. Sale without title, 26. Claim of deceased husband, 52. Sole heir; administration, 53. Custody in bailee, 79. Until donor's decease, 79. In administrator's hands, 57. Passed by circuit court, 57. Legatees fend kin, not, 15. By administration only, 18. Note and mtge. to administrator, 32. Where money paid to heirs, 32. Residuary legacy, same, 24. Sole heir; not right to claim, 52, 54. Administration only, 55. Lapse of time; immaterial, 56. Possession: prima facie, 17, 31. Against void tax title, 44. Personalty also, 22. Twenty years; marketable, 46. ' Partial sale; part performance, 71. Realty : Passes by the will, 45. Court's power to assign, 45, 68. Vests in heirs at decease, 2. - Subject to debts, etc., 2, 68. Vests in devisee at decease, 67. Runs to centre of street, 3. TITLE 1097 Trustees: , , Will: Pending life estate, 21. Ineffectual until probate, 23. Coupled with trust duties, 21. Passes title, when proved, 6, 12, 45. Violation of trust, 4. Issuing letters, immaterial, 7. Passes title, when, 4. Relates back to the decease, 12. Void: administrator's deed, 20. Taking benefit; not contest, 33. Color of title; improvements, 51, 65. Not apply to other persons, 34. Presumptive evidence, 2(L ■ Vests at the decease, 67. Widow, sole devisee elects, 19, 39. Decree; rights deceased had, 68. Pee descends to heirs, 39. 1. "Color of title" is "that which in appearance is title but which in realty is no title." A tax deed void on its face is "color of title". —Edgerton v. Bird, 6 W., 527, 536. 2. "The legal title to the personalty is vested in the administrator". But the "legal title to the real estate * is held, to descend to the heirs, and vest in them on the death of the ancestor, subject to be divested by a sale for the payment of debts". —Stark v. .Brown, 12 W. "572, 582. 3. The title to lots runs to the center of the street, subject to the public easement. —Ford v. C. & N. W. By., 14 "W. 609, 616. 4. A trustee with the legal estate passes title "although the convey- ance is in violation of the trust", while a conveyance by a trustee "not having the legal estate, but acting under a power simply", does not pass title. —King v. Whiton, 15 W. 684, 688. 5. In a contested claim the title may be the claim v. "Estate of M. deceased". See Appeal,. — McNighi v. Estate of McNight, 20 W. 446. 6. A will devising real estate "originally proved and allowed", or a "duly authenticated" foreign will, duly admitted and allowed, passes title, subject to the payment of debts, expenses of administration or other charge. ' 7. " The failure to issue letters testamentary or letters of administra- tion in this state does not divest such title; and the issuing thereof is not a condition precedent to rendering the will thus allowed effectual to pass the title". —Markwell v. TJiorh, 28 W. 548, 559. 8. The administrator cannot "vindicate the title of devisees to lands devised", especially when clouded after vesting. See Extes. and Admes. —Flood, Admr. v. Pilgrim, 32 "W. 376, 380. 9. "Evidence of adverse possession is always to be strictly construed, and every presumption is to be made in favor of the true owner." << 10. "The party whose title is to be destroyed or remedy barred, may 1098 PROBATE AND GENERAL LAW, CODIFIED properly stand on the letter of the statute, and insist upon a strict compliance with its conditions". 11. "Any actual occupation and use of the premises under which his title (however weak) for any portion of the three. years" by the true owner, will bar a tax title claimant from his remedy and "relieve the former owner from the conclusive effect whieh would otherwise be given to the tax deed". —Wilson v. Henry, 35 "W. 241, 245. - 12. The court adopts Judge Story's construction of a statute of Maine, like ours (Sec. 2294) that: 'By the probate, when granted, the will, under the section, takes effect by relation back from the death of the testator. It recognizes and vests the title in the devisee from that moment'; and holds that in Markwell v. Thorn, 28 W. supra, "the expression is inaccurate" which indicates that the probate passes title. "It should have been said that the probate rendered the will effectual to pass the title". —Bridge v. Ward, 35 W. 687, 692. 13. "If the plaintiff has an adequate remedy at law (ejectment here), he must necessarily fail in this equitable action" to quiet title. —Gray v. Tyler, 40 W. 579, 580. 14. "Where "a plaintiff claims that the judgment upon which the execution issued never became a lien on the property (because a home- stead), and he seeks to enjoin the sale because the sheriff's certificate or deed would, be a cloud on his title, there can be no doubt that a court of equity will exert its jurisdiction and grant relief in such a case. (Many cases)." — Goodell v. Blumer, 41 W. 436, 442. 15. "Pending the administration of the estate, the legatee or next of kin has no title". See Personal Estate. — Est. of Kirkemdall :■ Cramer's Appeal, 43 W. 167, 179. 16. The evidence shows that the claimant's grantor "did not enter into the possession of the premises, under a claim of title founded upon the (void) judgment of county court upon final settlement of the estate, but that he entered into such possession more than a year before he took the first step in the administration, probably by claiming by descent; and therefore such possession cannot be adverse under the statute (sec. 4211, ten years' possession), as an entry under such judgment. Quinn v. Quinn, 27 W. 168 ' '. See Presumption of Death. — Melia v. Simmons, 45 W. 334, 338. 17. It is a well settled principle of law, "that prior possession is prima facie evidence of title, to maintain an action to recover the prop- erty or its value as against a mere wrong-doer. Rogan v. Perry, 6 W. 194, Armory v. Delamirie, 1 Smith's Lead. Cases, 584; Coffin v. Ander- son, 4 Blackf. 395". — Wambold v. Vick, 50 W. 456, 457. TITLE ' 1099 18. The title to personal' property of a deceased, can be obtained by the heirs only through administration. See Personal Estate. —Murphy, by Gdn. Hawrahan, 50 W. 485, 490. 19. Where the widow as sole devisee, elected, the title to the realty vested in the heirs subject to the right of the executors to sell it for payment of debts. See Jurisdiction. —Mehns v. Pfister, 59 W. 186, 192. 20. A void administrator's deed is "presumptive evidence of a valid title in the grantee." See Deeds. ^-Hoffman v. Wheelock, 62 W. 434, 438. 21. As to the legal title, of real and personal property' and income, given to remaindermen, being in executors as trustees, pending a life estate, coupled with trust duties. vSee Vesting of s Estates. —Scott, Extrx. v. West, 63 W. 529. 22. Mere possession -of personal property is sufficient evidence of title to recover against a mere wrong-doer. See Married Woman.: — Cummings v. Friedman, 65 W. 183, 184. 23. "The will was ineffectual, even as to the real estate, until admitted to probate. Newman v. Waterman, 63 W. 616 (cited under Probate of Wills)." 24. "This court has held 'that where personal property is disposed of by a residuary legacy, as here, it does not vest at once and directly in the legatee, but in the executors, by operation of law, subject to dis- tribution, as in case of intestacy'. Melms v. Pfister, 59 W. supra. We have no doubt of the correctness of such holding". —Gundry v. Est. of Henry, 65 W. 559, 564. 25. "It is well settled in this country that the sale of chattels acquired from one who had stolen them passes no title even to "an honest pur- chaser, and the true owner may maintain an action for the property without any previous demand. (Cases). 26. The same is true of chattels sold by one who is not the owner and has no authority to sell. (Many cases) ". 27. "Undoubtedly, the civil law annexed" "an implied warranty of title" "on the part of the vendor to every sale of a chattel. 28. The earlier English cases indicated a contrary doctrine. (Case) 29. The later English cases indicate that such warranty may be in- ferred from the mere fact of sale under certain circumstances". 30. "The general rule in this country undoubtedly is that where there is a sale of chattels in the vendor's possession at the time, at a fair price, there is always an implied warranty of title, unless the facts and circumstances are such as to warrant a different conclusion", i —Edgerton v. Michels, 66 W. 124, 131, 1100 PROBATE AND GENERAL LAW, CODIFIED 31. Mere possession is a sufficient "title as against a wrong-doer. (Cases). —Field v. Apple Ewer L. D. Co., 67 W. 569, 571. 32. The absolute title to a note and mortgage received by an adminis- trator for estate money, which the distributees refused to take, falls to the administrator, after he paid to the distributees the money therefor in lieu thereof. — Blakely v. Carter, 70 W. 540. 33. "The rule that one taking a benefit under a will cannot contest the title of some other person to property which has been devised or bequeathed to such other person by the same will, 34. Does not apply to the person who claims property derivatively for some person not taking title thereto under such will". See also Widow. —Beem v. Kimberly, 72 W. 343, 370. 35. Where by the death of the mortgagor, "the legal title to the mort- gaged premises descended to" the mortgagee and the "other heirs at law, who thereupon conveyed their respective titles to ' ' the mortgagee, "by such acquisition of the title her mortgage became merged and extinguished. 36. Assuming that the note survived such acquisition of title as a claim against her father's (the mortgagor's) estate, yet, as she (mort- gagee and wife of plaintiff) died intestate, the plaintiff could not there- after acquire title to the same, except through administration of her estate. Marshall v. Pinkham, 52 W., 590." See also Husband and Wipe. -.Clark v. Cloth, 76 W., 306, 308. 37. Where a will devised realty to the widow as residuary devisee, and also 1 empowered the widow and daughter, as executrices, to convey the realty, it is held that a deed by the widow, personally, conveyed the testator's interest therein, the court saying: 38. "Under this statute (see. 2278) and the decisions of this court it is very obvious that the widow, as such residuary devisee, took at once, on the -death of the testator, all his right, title, and interest in the land in question, subject of course to the payment of his debts and the specific legacies provided for in the will. (Many cases) ". —Hiles v. Atlee, 90 W. 72, 78. 39. When a widow as sole devisee, elects, the fee of the realty descends to the heirs "as though no will had ever been executed". See Widow. —Melms v. Pabst Brewing Co., 93 W., 140, 146. 40. "A tax title has nothing to do with the previous title". "It extinguishes the old title and all liens and equities depending upon it. Lessee of Neiswanger v. Gwynne, 13 Ohio 74 ; Ross v. Doe, 1 Pet. 664. 41. As a general rule, a title which is open to judicial doubt is not marketable", and what is such doubt depends "much upon the dis- cretion of the court. TITLE 1101 42. But in no case will a purchaser be compelled to accept and pay for a title which he can only acquire in possession by litigation and judicial decision, nor where it is evident that his possession must be defended in like manner. He is not bound to buy a law-suit. Waterman Spec. Perf. §§441 et seq.". 43. "We have concluded that a tax deed, under our statute, fair upon its face, is prima facie a, marketable title, which the vendee is - bound to accept as such, unless" specifically objected to and "found not free from reasonable doubt". -^Gates v. ParmVy, 93 W. 294, 313. 44. In an ejectment action, plaintiff's "actual possession," "is suffi- cient evidence of title to sustain his action, until the defendant has shown a better title," and recovery was sustained as against a void tax title. Elofrson v. Lindsay, 90 W., 206. —Elofrson v. Lindsay, 97 W., 22, 25. 45. While the "title to real estate passes by the will," the county court has power to make a final order 1 of assignment. See Judgments. — Will of Hess, 97 W., 244, 249. 46. Twenty years of possession and payment of taxes, the "title de- pending upon the statutes of limitation", is held to be "a good market- able title" which a purchaser under a land contract entitled to a clear and indefeasible title, is bound to accept. —Nelson v. Jacobs, 99 W. 547, 461. 47. The judgment of a court of equity, "acts on the whole title", both present and future interests, vested or contingent, in being and not in being. See Trust Variation. —Buggies v. Tyson, 104 W. 500, 506. 48. The legal title does not pass by an absolute deed given as security, and a satisfaction clears such title. See Mortgages. —Gumps v. Kiyo, 104 W. 656, 659. 49. "The word 'void' in sec. 2320, means voidable", and "title to lands conveyed in fraud of, creditors actually passes to the vendee, subject, however, to be divested at the election of any such creditor". — French Lumbering Co. v. Theriault, 107 W.» 627, 644. 50. Where a "good record title" is required, title by adverse posses- sion is held not a compliance, and, "courts uniformly refuse to compel grantees to accept title where resort to parol evidence is necessary to establish it, or where there is a reasonable doubt concerning its validity". (Many cases). — Zuriker v. Euehn, 113 W., 421, 423. 51. An administrator's deed, under county court proceedings, sec. 3911, pursuant to land contract given by the deeedent, who "supposed' 1102 PROBATE AND GENERAL LAW, CODIFIED herself to be the owner of the property in fee", and had an "adjudica- tion of that fact by a court of record", though in fact having only a life estate which expired with her decease, is held, "sufficient to sustain the finding of color of title", and to support a recovery for improvements by an unsuccessful contestant in ejectment proceedings, under sec. 3096. Edgerton v. Bird, 6 W. supra. —Dor&r v. Hood, 113 "W., 607. 52. A widow is held not to have obtained title to a claim of her hus- band, by alleging ownership as his sole heir, so as to entitle her to sue therefor ; 53. "The only way plaintiff could have become possessed of the cause of action was by a transfer thereof to her in the regular course of administration of her husband's estate". —Buttles v. DeBaun, 116 W., 323, 327. 54. Where a general guardian of a minor, filed a claim against the father's estate, such claim being one owing to the deceased mother, there having been no administration on the mother's estate, and though such minor was the sole heir of the mother, it was held, that the claim should have been dismissed, following Buttles v. De Baun, 116 W. supra, and,. 55. "That one claiming a cause of action by title derived from the estate of a deceased person must show that such title came from the personal representative of such person in the due course of the adminis- tration of such person's estate". 56. As the common law rules prevail here, "lapse of time can no more dispense with proof of the proper transfer in ' ' such case than in that of an individual transfer. —McKenney v. Mimahan, 119 W. 651, 658. 57. When title to personalty in the administrator's hands may be passed directly by the circuit court. See Surviving Partner. —Bowell v. Bowell, 122 W. 1, 9. 58. Where lands, owned by a life tenant and remainderman, were subject to a mortgage, and on foreclosure sale were purchased by the life tenant for the amount of the mortgage and expenses, — the life tenant remaining in possession during her lifetime, but conveying the premises by warranty deed to K., who went into possession and made improve- ments, it is held, — 59. "Under these circumstances, the law regards this purchase by the life tenant as made for the joint benefit of herself and the tenant in remainder, 60. And precludes her from holding it for her exclusive benefit, if the tenant in remainder will contribute her proper share of the sum paid for the interest thus acquired, which inures to the benefit of both. 61. Whatever amount the life tenant paid above her proportionate TITLE 1103 share is secured to her as a creditor, and she becomes subrogated to a lien on the real estate so purchased. (Cases) ". 62. In an accounting between the remainderman and the grantee, the latter "should be charged with the income of the estate from the termina- tion of Hhe life estate", less amounts paid for taxes and improvements- and preservation of the property, he having "acted innocently" through "mistake as to the true condition of the title", though all the convey- ances were of record. 63. And the remainderman given the title, is entitled to such account- ing, and he is chargeable "for the sum paid by the life tenant to pur- chase the outstanding title, less the interest paid thereon". —Keller v. Fenske, 123 "W. 435, 440. , 64. "A tax deed fair upon its face is, under our statute, a marketable title, and after the three-year statute of limitations has run in its favor there is no reason to question its validity. Gates v. Parmly, 93 W. supra". . —ilaxcmv. Gates, 136 W: 270, 298. 65. As to a fraudulent administrator 's deed giving color of title under the ten-year statute. See Sale of Realty. —Sternberg v. Salzman, 139 W. 118, 122. 66. The legal title in the case of a deed of homestead given to secure indebtedness, "has at all times remained in the" grantor. See also Mortgages. —White v. Dcmiell, 141 W. 273, 275. 67. Title under a will vests at the decease of the testator, subject to rights of creditors. 68. The county court in its final decree "could only determine the" rights in such title as the deceased had. See also Judgments. —Triba v. Lass, 146 W. 202. 69. The heirs of a widow, who had a life estate in possession for forty years cannot claim title in the fee on her decease intestate, as against the remaindermen heirs of the husband, 70. Under either the ten-year 'or twenty-year adverse possession statutes, under an erroneous judgment of the county court assigning her the fee, which judgment was vacated shortly after its entry. See also Homestead. —Van Metre v. Swank, 147 W. 93; 98. 71. As to "a verbal sale void at its inception" making good title by "lapse of time" and "part performance" with possession,— against deed of one having notice of possession, etc. See Sale of Realty. —Keilly v. Severson, 149 W. 251, 259. 72. "In determining what is a cloud it is sufficient" "that the defect in the title be at least an apparent cloud, rendering resort to evidence 1104 PROBATE AND GENERAL LAW, CODIFIED aliunde the record necessary in order to show its invalidity. Pier v. Fond du Lac, 38 W., 470; Suring v. Rollman, 145 W., 490". —Stack v. Hickey, 151 W., 347, 350. 73. "It is" "well established that, in the absence of fraud or mis- take, the execution and delivery of a deed of real estate with the inten- tion of carrying the title vests the title at once in the grantee named in the deed. Rogers v. Rogers, 53 W. 36 (See Delivery)". —Friedrich v. Huth, 155 W., 196, 198. 74. It is doubted whether "the certificate (of descent) authorized by" sec. 2276a, "granted ex parte, and by the judge at chambers" "is a 'judgment of a competent court' within the meaning of sec. 4211", as to adverse holding under ten-year claim of title. 75. "A quitclaim deed in this state is equivalent, at least for the purpose of conveying title, to a deed of bargain and sale. Home Ins. Co. v. Emerson, 153 W. 1". 76. "The deed, construed with the certificate of heirship, purported to convey the whole title, and must be held to be a written instrument such as is named in sec. 4211 as sufficient on which to base adverse possession ' '. 77. And title on sueh ten-year adverse possession is upheld, where both the deed and certificate omitted heirs, whose "existence", however, was unknown to the parties thereto, and whose "interest in the premises" was "never acknowledged". — Bourne v. Wiele, 159 W. 340, 343. 78. Mere delivery of possession and manual delivery by the owner N. to A. of a former deed from N. to N.'s daughter, now deceased, "can- not logically be held" to give title by adverse possession under 'a written instrument', as 'color of title' under sec. 3096, nor enable A. to recover for- permanent improvements on being dispossessed. See also Subroga- tion. —Tellett v. Albregtson, 160 W. 487, 492. 79. As to title vesting in a donee with custody to be in another as bailee until the decease of the donor. See Gift. —Pine v. LeSaulnier, 161 W. 503, 510. See Monument. TOMBSTONE. TORTS. Executors, administrators, 2. Infants: liability, 1. Father for infants, 6. Compensatory ' damages, 3. Distinguishing features, 7. Negligence; tender years, 5. Homestead, judgment, 4. TRANSACTIONS "WITH DECEASED PERSONS 1105 1. Infants are liable in tort for conversion, though, there may have been a contract which was voidable. 2. Executors, administrators and trustees '-'might not be liable in an action of trover for a conversion, for the reason that the legal title to the property was in them", p. 236. —Cotton v. Sharpstein, 14 W. 226, 230. 3. An infant under seven is liable for compensatory damages. See Infants. —Huchting v. Engel, 17 W. 230, 232. 4. Homestead is not liable to execution for a judgment in tort. See Homestead. — Smith v. Omans, 17 W. 395, 396. 5. In an infant of tender years, "negligence cannot be imputed". See Infants. —Schmidt v. M. & St. P. By., 23 W. 186, 190. 6. A father is held liable for torts of his young sons, committed with his implied consent. See Parent and Child. — Hoverson v. Noker, 60 "W. 511, 513. 7. As to non liability, and distinguishing features, of a father for torts of his minor son. See Parent and Child. —Kumba v. Gilham, 103 W., 312, 315. TRANSACTIONS WITH DECEASED PERSONS. See also Parties. Actual presence of each other, 1. Admissions of deceased, 5. Against party's title, 5. Negativing gift intent, 76. Not self-saving declarations, 50. Though door opened, 50. Admissions of living party, 12. Against his interest, 12. Payment by deceased, 12. Adverse party, also present, 70. Testimony admissible, 70. Agent deceased: Deposition of, introduced, 7. Not enable testimony, 7. Settlement made with, 6. Agent may testify, 9, 19. As at common law, 20. Board and lodging: Quality, time, proper, 17. Condition when a witness, 73. Competent by resigning,- 72. Prior thereto, immaterial, 73. Zimmerman — 70 Cross-examjned, as adverse, 51, 55, 61. Details not covered, 62. Door opened, 51, 55. Deceased might refute, 69. Deeds : Ambiguity in language, 11. Deceased grantor, 11. Grantee as to delivery, 3. Testify to possession, 3. "Saw deed in possession," 74. Shown for examination, 74. Delivery: to deceased, 46. Denial of return, 46. Prom deceased; possession, 74. Inference of same, 46. Deposition before decease, 75. Still inadmissible, 75. Gift from deceased, 23. Executor, as to declarations, -76. Not endorse donor's name, 33. Possession before decease, 33. 1106 PKOBATE AND GENERAL LAW, CODIFIED Inferences of transactions, 46, 58. Immaterial if competent, 59. Incompetent as transactions, 60. Insurance : Not through insured, 41. Beneficiary testify, 41. Letters: Identify the signature, 28. Notified the deceased, 24. Not transaction personally, 29. Received from deceased, 2, 27. Testify to contents, 28. Being lost, 28. Means face to face, 1. Nominal party; admissible, 54. ' Executor, deelarations> 76. Note: Agency to wife, to collect, 8.' Testify as agent, 9. Alteration striking out, 4. Contents of note, 44. Deceased payee, 44. Delivery to deceased, 46. Endorsement at delivery, 25. Eurnished, deceased's credit, 26. Inferences of delivery, 58. Payment to deceased, 47, 68. Notified deceased party, 24. Not by letter, 24. Objections : Adverse party .only object, 36. Competency of witness, 15, 31. Specifically to witness, 16, 31. Testimony objection, insufficient, 15, 30. Officers of corporations, 35, 71. Competent by resigning, 72. Condition when a witness, 73. One not an actual party, 10. Derives interest or title, 21, 31. Eeal party in interest, 10, 39. Opening door, opposite party, 32, 79. All matters relating to, 79. By witnesses not parties, 63, 77. Disqualification removed, 64; 66. Not as to specific duties, 77. Opening door, etc.^-continued Rebuttal and surrebuttal, 65. Called as adverse party, 41, 55, 62. Not self-serving declarations, 30. Order of proof, yield to statute, 67. With deceased agent, 34. Order of proof, yields to statute, 67. Payment to deceased, 46, 47, 68. Receipt of deceased, 68. Explaining contents, 68, 69. Self-serving declarations, 50. Services : Contract; cross-examination, 18. Performance and value, 57. Personal, performed, 78. Time and labor spent, 13. Payment implication, 14. Signature of deceased, 28. Third person with deceased, 40, 45, 48. Party participates, act or word, 49. Party testify to, when, 40. Did not participate, 40. Presence not affect, 40. Settlement with party's note, 45. Presence affected settlement, 45. Strictly personal between them, 48. Third person also parties, 52. Evidence improper, 52. Third person, with witness, 42. Deceased negotiated sale, 42. Claim against estate, 42. Inferences as to deceased, 43. Title not from deceased, 21, 39. Waiver of opposite party, 36. Calling his opponent, 38. Refraining from objecting, 37. Wife, party, deceased husband, 56. Will: Executor, proponent only, 53. Nominal party only, 53. Testimony admissible, 54. Heir, witness, party, 36. Called by adverse party, 36. Proponent, beneficiary, 22. 1. "The personal transaction or communication of the statute (Sec. 4069), no doubt, means a transaction or communication face to face, or by the parties in the actual presence and hearing of each other". 2. As to testimony by a party as to genuineness, and that he has received by mail a letter purporting to have been written by the deceased in his lifetime to the party, "we must hold that it was admissible." See also Parties. —Daniels v. Foster, 26 W. 686, 692. TRANSACTIONS WITH DECEASED PERSONS 1107 > 3. The grantees as parties and heirs were not competent witnesses "to testify that the dece'ased (grantor) delivered the deed to them", the delivery of which was in issue in a suit by other heirs for can- cellation, yet ihey might testify as to other acts affecting the delivery, ' as for example, "that the deed was continually in their possession or under their control from the day of its date until they placed it on ■ record". —Stewart v, Stewart, 41 W. 624, 628: 4. On the question of the alteration of a note in which the deceased was a party it was held that, "the questions when and with what ink the witness signed the note, whether 1 he struck out the Words 'after due' from the note, and perhaps other questions," "were competent, not naturally calling for any answers in violation of the statute, and were therefore improperly excluded". —Page v. Danaher, 43 W. 221, 226. 5. Admissions of deceased persons, derogatory , to the title of a party with whom there is privity of blood or of estate, are admissible in evi- dence. See Admissions. — Littlefield v. Little field; 51 W. 23, 28. 6. The testimony of defendant as to a settlement made with the de- ceased agent of the plaintiff is inadmissible under section 4070. 7. And the introduction by defendant of such agent's deposition taken on behalf of, plaintiff, does not enable defendant to testify as to the matters in the deposition, under said section, such deposition hot being "testimony of the deceased agent" "first read or given in evidence by the opposite party." > —Mclndoe v. Clarke, 57 W. 165, 168. 8. The husband may testify "that he authorized. his wife E. to collect the note for him during the lifetime of" the deceased, against whose estate he is proceeding, "and gave her the note for that purpose". 9. And ,the wife could testify as such agent "that she. collected from the deceased while living, and that he paid her $10 upon the note for her husband", such payment taking the case out of the operation of the statute of limitations. —Efl.grria'w v. Est. of Immel,;59 W. 249, 253. 10. One who "was in possession of the property affected by the action, under an unrecorded deed thereof, executed, to him by the defendant", his brother, and "was bound by the judgment in the action, the same as though he had been a party to it", is held to be "a real party in interest" and "incompetent to testify to any transaction or communica- tion had'bv him personally with" the deceased, under sees. 4069 and 4070 ' '■ _ Wright v. Jackson, 59 "W. 569, 577. 11 Where 1 both parties claim title under the same deceased* grantor, his grantee "was not a competent witness to remove the latent am- bfenitv in the language of the deed". oiguity g —Mack v. Bensley, 63 W. 80, 87. 1108 PROBATE AND GENERAL LAW, CODIFIED 12. The testimony of a party as to a transaction, so far as it is "an admission against his interest" as to payment made by the deceased, is admissible. — Crowe v. Colbeth, Admr., 63 W. 643, 645. 13. "There can be no question of the competency of" the evidence of a claimant against a deceased person, as to. how long and how much labor he spent on the books of the deceased, in keeping them "from July 1st, 1879, to October 1st, 1881, and in going over and correcting his books for about ten years", and as to the value of the services. 14. "It is no proper objection to this testimony that the law might raise from it the implication, of a promise by the deceased in his lifetime to pay what such labor was reasonably worth". —BeUen v. Scott, Extx., 65 W. 425, 426. 15. After testimony given, objection was made "to the testimony as incompetent and irrelevant. It was certainly relevant, and in fact competent. If there was any incompetency, it was in the witness to give the testimony and not to the testimony given," and such objection is held not sufficient to consider the point. —Uwim Nat. Bk. v. Hicks, Admr., 67 W. 189, 194. 16. An objection to a question "as incompetent, irrelevant and im- material", was held "not sufficiently specific to raise the question of the competency of the witness under section 4069 ' ', the testimony being "in fact Competent", and the incompetency "was in the witness giving testimony of that nature, and not in the testimony given. Union Nation. Bk. v. Hicks, Admr. Supra". (Followed in Wells v. Chase, 126 W. 202; see Objections). —McCormick V. Herndon, 67 W. 648, 652. 17. Evidence by a son, on a claim for board and lodging of his father, against the estate, as to the quality of board, the number of weeks boarded, and the absences, is held proper, and not "transactions with the deceased under the 'ban' of the statute, sec. 4069. These are inde- pendent facts, and in no sense transactions with the deceased. ' ' Beldon v. Scott, 65 W. supra. —Prichard v. Prichard, 69 W. 373, 375. 18. Evidence by claimant, on cross-examination, of an express oral contract with the deceased, was held proper to prove such contract. See Services. —Ellis v. Cory, Admr., 74 W. 176, 183. 19. Sec. 4069 "does not exclude the testimony of the agent of the party or person whose testimony is thus excluded. 20. At the common law the testimony of a party to the action was absolutely excluded, but the agent of such party was a competent wit- ness to prove the whole cause of action or the defense, although the opposite party derived his interest in the subject matter of the con- TRANSACTIONS WITH DECEASED PERSONS 1109 troversy through a deceased person. Sec. 4069 does not exclude testi- mony which was admissible at the common law." (Approvingly cited in Johnson v. Fraternal R. Assn., 136 W., 528, 531.) —Hanf v. N. W. Masonic Assn., 76 W. 450, 453. 21. In an action of ejectment by the heirs of a deceased wife's former husband, the defendant succeeding husband testified to prove an executed oral ante-nuptial support contract with his deceased wife, as consideration for conveyance by her to him of the land in question, and it was held that sec. 4069, did "not exclude such testimony, because in this action the plaintiffs as the ' opposite party, did not derive their title from such deceased person' ". —Larsen v. Johnson, 78 W. 300, 305. 22. A proponent and principal beneficiary under a will was held incompetent to testify as to the making and execution. See Execution op Wills. — Ooerke v. Goerke, 80 W. 516. 23. Where a widow, executrix, claimed property of the deceased as given to her, it is said: "Her own testimony to that effect would not have been admissible ; much less, hearsay evidence of her unsworn state-, ments", alleged to have been made prior to her decease. —Murray v. Kluck, 87 W. 566, 571. -24. A party could not testify whether "he ever notified" the other party to a contract, who is now deceased, that the lumber delivered "was not in accordance with the contract", because it called for a per- sonal transaction with a deceased person, it not appearing affirmatively that the notification was by, letter. —Hazer v. S'treich, 92 W. 505, 510. 25. A party, a payee, was properly allowed to testify "to the effect that K's (now deceased) endorsement was on the note at the time when it was delivered to" such party, the evidence not disclosing that either was present at the endorsement. 26. He was also "permitted to testify that he furnished the money on the credit of" K. ; 27. And his co-party, "that he had received a letter, purporting to be from K., and which 'appeared to be signed' by him"; that the letter was read to him by C, the other payee and party; 28. And the party "C. was permitted to identify the signature of K. to the letter, and to testify to its contents" as to raising the money and endorsement,— the letter being lost ; _ 29 "The letter was not a transaction had personally with K., within the intention of sec. 4069", and such testimony was held proper. Daniels v Poster 26 W. supra. —Sawyer v. Choate, 92 W. 533, 535. 1110 PROBATE AND GENERAL LAW, CODIFIED, 30i As to the parties being "incompetent to testify" as to transac- tions with, a deceased agent, under sec. 4070, it is said : "This court has held that an objection to the relevancy or materiality or even to the competency of such testimony is insufficient, 31. And that, to be effectual, the objection should be to the competency of the witness to testify as to such transaction or communication. Union Natl. Bank, 67 W. Supra; McCormick v. Herndon, 67 "W. supra." —Sucke v. Hutchinson, 97 W. 373, 375. 32. Where the testimony of a transaction with a deceased party was testified to in part by the opposite party, the whole was admitted. See Evidence. — McNalty v. McAndrew, 98 W. 62, 65. 33. On the question of a gift and ownership, the donee "was allowed to testify against objection that she did not herself endorse the name of Q. (the deceased donor) upon the backs of the certificates of deposit in controversy, and that she had had the certificates in her possession since" about two months before the decease. Held proper. Stewart v. Stewart, 41 W. supra. — Murphy v. Qumn, 99 W. 466, 468. 34. As to opening the door with adverse party examination as to transactions with a deceased agent. See Depositions. —Maldaner v. Smith, 102 W. 30, 39. 35. Sec. 4069 is held not to exclude officers of corporations from tes- tifying thereunder. (Changed by subsequent amendment including officers, etc., ch. 197, L. 1907). — Will of Bruendl, 102 W. 45, 49. 36. An heir, being a subscribing witness to a will which did not pro- vide for him, though "he was a party", "was not incompetent under sec. 4069 ' ', he being ' ' called by the proponents of the will — the adverse parties,— the only ones who had any right to object to his competency. 37. It is always in the discretion of the adverse party to waive the protection afforded by sec. 4069, either by refraining from objection, or by offering testimony of another witness; 38. And he may equally waive it by calling his opponent and examin- ing him as a witness to personal transactions. Becker v. Poster, 64 111. App. 192; Taylor v. Ainsworth, 49 Nebr. 696". — Will of Hoppe, 102 W. 54, 55. 39. "Unless the witness is a party to the action, or is in fact the real party in interest (Wright v. Jackson, 59 W., supra), or unless he is a person through or under whom the party offering his testimony derives his interest or title, his testimony is not barred by the statute," under sees. 4069, 4070. —Laach v. Runge, 104 W., 59, 60. 40. Sec. 4069, "does not forbid testimony of transactions or com- munications between the deceased and third persons, though in the TRANSACTIONS WITH DECEASED PERSONS 1111 witness's (defendant's)' presence, if he did not participate therein and they were not affected by his presence. (N. Y. cases)." Likewise "inti- mated" in cases, supra. So held. — Wollman v. Ruehle, 104 W. 603, 607. 41. An insurance company does not "in any sense, sustain its lia- bility from, through, or under' " the insured, and the plaintiff bene- ficiary is not precluded, under sec. 4069, from testifying "to the conversation between her husband and the agent of the defendant" company as to the contract. — Chamberlain v. Prudential Ins. Co., 109 W., 4, 8. 42. Testimony "merely as to the witness's transactions with third persons", — as that she received no payment from makers of notes, on the sale of her property, negotiated by the deceased, and for which she makes claim against the deceased's estate, — was held admissible. 43. "The fact that counsel may argue" therefrom, "to any imaginary inference that certain acts were done by the deceased (as that he received the money), is not enough to preclude her from testifying as to such transactions". 44. And as to " a note drawn up by a third person in the presence of both plaintiff and her husband (the deceased), the question was asked.- 'To whom was the note payable? A. To my husband'. This was merely evidence as to the contents of a written paper, and seems not to be improper, within the rule of Page v. Danaher, 43 W. supra". 45. While "the rule of the New Tork decisions was adopted by us in Wollman v. Ruehle, 104 W. supra", yet, at a transaction and settle- ment of a note belonging to her, between the deceased and a third party, where the witness' presence "doubtless served to authorize and justify her husband and the debtor in making the adjustment", she "should not have been permitted to testify thereto", though "she says she 'saw with- out in any way participating' ", therein. 46. Testimony that "tended to justify an inference of" delivery of money and a note by plaintiff to the deceased, ' ' and a denial that he ever returned it to her", is held objectionable, under the statute, sec. 4069. —Brader v. Brader, 110 W. 423, 428. 47. In an action by the administrator on a note to the deceased, the defendant maker, in answer to a question, testified that "It was paid", and subsequently testified that she claimed to have paid it to the de- ceased, personally; held error under see. 4069. (Cases supra.) —Miluxmkee Trust Go. v. Wwrren, 112 W.,'505, 506. 48. While a party present "may testify to a transaction between the deceased and a third person (cases)", "such evidence is permitted only upon the ground that the transaction is strictly personal between the deceased and the third person"; 49. But "the rule does not apply -where thei party testifying partici- 1112 PROBATE AND GENERAL LAW, CODIFIED pated in the transaction by words or acts or by presently influencing the communication or transactions. Brader v. Brader, 110 "W., supra". —Morgan v. Henry, 115 W., 27, 30. 50. "Self-serving declarations" of the deceased are inadmissible though the adverse party opens the door. See Admissions. —Pym v. Pym, 118 W. 662, 670. 51. Where the plaintiffs called the defendants at the trial and cross- examined them as adverse parties under sec. 4068, as to the considera- tion of a mortgage and deed received by the latter' from the intestate, they ' ' opened the door for the admission of the testimony of the defend- ants-offered" in making their defense as to such consideration and the agreement with reference! to such transactions, under sec. 4069. —Drinkmne v. Qruelle, 120 W., 628, 632. 52. Under the rule of Wollman v. Ruehle, 104 W. supra, quoted, it is held, that where the "third persons" are also parties, then "the record does not justify the assumption that the witnesses, who were adverse parties to the proceedings, did not participate in the transac- tions or communications sought to be established by them, or that they were not affected by their presence", and this evidence was held prop- erly rejected. 53. "The person named as executor in a proposed will, who appears as proponent in a contested proceeding, with no other interest in the estate of the deceased, has no beneficial interest in, nor sustains any liability under, the subject of the controversy, though he is a nominal party to the proceeding". 54. Under the amendment of ch. 181, L. 1901, inserting the qualifica- tion "in his own behalf or interest", in sec. 4069, it is held that such executor named "was a competent witness in the proceeding for the probate of the will" "to testify to personal transactions or communica- tions with the deceased". — Anderson v. Laugen, 122 W. 57, 62. 55. Where an adverse party is "first called and examined" at the trial under sec. 4068, as to transactions with a deceased person, this "opened the door, under sec. 4069," to such adverse party to testify in his own behalf as to such transactions. —Currie v. Michie, 123 W. 120, 127. 56. As to testimony of wife as a party, concerning transactions of her deceased husband. See Husband and Wipe. — Schultz v. Cidbertson, 125 W. 169, 172. 57. Performance of services and their value, "did not involve a transaction personally with the deceased," and claimant could there- fore testify thereto. See also Services. >. — In re Happel-Bossi, 133 W., 119, 123. TRANSACTIONS WITH DECEASED PERSONS 1113 58. In a suit by a trustee on a note of $200, for which a second note had been given while the first was supposed to be lost, "evidence of the defendant that he went into V.'s (deceased) store with $400 in money and came out with the second note and but $200 in money was doubtless inadmissible. 59. If the evidence did not tend to prove that defendant paid V. the amount due on the note and that V. surrendered the note upon such payment it was immaterial; 60. If it did tend to prove these facts then it was evidence of a trans- action had by the 'defendant personally with a deceased person through whom the plaintiff derived his title to the cause of action, and such evidence is excluded by sec. 4069", as, "settled by the case of Brader v. Brader, 110 W. supra". —Jachman v. Inmcm, 134 W: 297, 299. 61. Where plaintiff calls defendants as adverse witnesses, and the "examination covered in general terms all the property ('of deceased) that came into the defendants' possession, and referred to transac- tions between them and the decedent's involving the receipt and payment of moneys", 62. The defendants in their own behalf, should have been allowed to "give the details of such communications and transactions covering the negotiations", though they "were not specifically covered by the plain- tiff's evidence". See also Discovery. — Eisentraut v. Cornelius, 134 W. 532, 541. 63. "In any action, before the plaintiff has given, or has been per- mitted to give, his testimony with reference to a transaction or com- munication by him had with such deceased person as is described in sec. 4069, if the defendant examine witnesses concerning the same trans- action (whether the defendant's witnesses so examined are competent or not), 64. The plaintiff has by force of this, statute his disqualification or his incompetency as to that particular transaction removed and he may tes- tify concerning it. 65. It would be quite unjust and contrary to the provisions of see. 4069, to permit the plaintiff in rebuttal of the defendant's defense to produce witnesses to such transaction or communication, and then deny the defendant's right to testify concerning the same transaction on sur- rebuttal. 66. The defendant was first made competent by the act of the plain- tiff in introducing witnesses upon this subject in rebuttal, 67. And the rule of the order of proof, being a mere rule of conven- ience, must yield to the rule of the statute". —Anderson, v. Anderson, 136 W. 328, 331. - 68. Where the defendant testified that a statement written on the second note referred to the lost note, and that deceased's 'receipt pro- duced "referred to interest on the note sued on", (see same case, 134 1114 PROBATE AND GENERAL LAW, CODIFIED W. supra), it was held to be "within the prohibition of sec. 4069" and "erroneously admitted", "the obvious purpose and effect of it" being to show payment of the note sued on. (Cases, supra). 69. "The decedent during his lifetime would have been a competent witness to refute defendant's statements he thus makes". — Jackman v. Iwnum, 137 W. 30, 31. 70. Where plaintiff's son executed an instrument for him at his "parol direction", and the son dying, — "the plaintiff's evidence was properly admissible"., as to the transaction, "in view of his testimony, that defendant was in his room and presence when the agreement was finally concluded and the instrument was signed". —Mariner v. Wiens, 137 W. 637, 639. 71. Where the scrivener and executor — named was also a trustee of a corporate beneficiary, and "was competent respecting the transaction he testified to till after the commencement of the litigation", and was "rendered incompetent before the trial by a statute (ch. 197, L. 1907, amending see. 4069 as to corporate officers) passed inthe meantime", it is held, — ■ 72. "He could thereafter restore his competency by surrendering that which interfered therewith, as he did", by resigning as corporate trustee. 73. "The statute deals with the condition when a witness is offered". "So he was a competent witness respecting what occurred between him- self and the testatrix", as to the making of the will and conversations leading up thereto. —Will of McNcmghton, J.38 W. 179, 188. 74. On the question of delivery as to a deed from the father, Julius, now] deceased, to a daughter, Jennie, the testimony of a son Frank, an adverse party, "to the effect that he saw the deed in the possession of his father", is held "incompetent under sec. 4069", he having " obtained the information concerning which he gave evidence in a transaction with Julius, in which the deed in question was shown to Frank by Julius for the purpose of examination". —Chase v. Woodruff, 138 W. 641, 646. 75. Where the party's testimony as to transactions "was in the form of a deposition taken before" the adverse party's death, "the statute (sec. 4069) is still applicable and the testimony inadmissible. (Many citations) ". —Boyd v. Gore, 143 W. 531, 534. 76. The question as "to the competency of the executor" "to testify to declarations of" his testate, negativing his intent to make a gift of a note claimed by claimant, — is not determined, as "the judgment below must be reversed on other grounds", and "the members of this court are not in accord! upon this question". See also Gifts. — Will of Klekr, 147 W. 653, 656. TRIAL 1115 77. Where the adverse party examined witnesses as to other communi- cations, but not. as to those on certain specific material dates, it was held "no error in excluding the testimony of" the other party as 1 to such dates. See also Gifts. —Hilton v. Bahr, 161 W. 619, 624. 78. "Testimony of" claimant "in relation to the (personal) services performed by her for the deceased" was held "admissible under sec. 4069", there being no "proper objection". "But even if proper objec- tion were made, we think the evidence was admissible. Est; of Kessler, 87 W. 660 (See Services)". —Gardner v. Young's' Est., 163 W. 241, 246. 79. "When the door is once opened for one to testify to a communi- cation or transaction had by him personally with a deceased person, the witness may testify, not only to the facts of such communication or transaction, first brought out, but to all 'matters to which' the testimony in the opening 'relates'. Such is the plain meaning of the statute". —Johnson v. Bank of Wis., 163 W. 369, 374. TRANSFER TAX. See Inheritance Tax. TRIAL. See also Rules op Practice. Ee:opening; further proof, 7. Discretion of court, 8. Appeal from county court, 9. Evidence presented, 9. Heir consenting at probate, 11. Not estopped, 12. Omitted in county court, 15. • Trial de novo, 9, 12, 15. Conduct of trial, 8. Court or referee: Evidence objected to, 3. Cases clear of doubt, 4. Clearly incompetent, 13. Confusion in trial, 14. Court or referee — continued Evidence, etc. — continued Offers to receive, 5. ' Eefusal to give; waiver, 5. Subject to objection, 6. Where reasonable doubt, 6. Jury trial; devise contract, 16. Will cases, contest, 16. Motion for new trial, 1. Newly discovered evidence,, 2. Before the decision, 2. Inadmissible evidence, 10. 1. "Motions for a new trial are mainly addressed to the sound dis- cretion of the trial court and will not be interfered with except where "there has been a gross abuse" of this discretion. —Cook v. Helms, 5 W. 107, 108. 1116 PROBATE AND GENERAL LAW, CODIFIED 2. "After the cause was submitted to the court", and before deci- sion, on a motion with affidavits as to newly discovered evidence, it is said: "A court of equity should exercise its discretion liberally to enable the parties to place before it all the evidence within their reach material to the issue. Especially should the court do so where, as in this case, the evidence is conflicting and mostly circumstantial ' '. —Stewart v. Stewart, 41 W. 624, 629. 3. It is "the better practice, in cases tried by a referee or by the court without a jury, to take the evidence offered by either party, although objected to by the adverse party, and although the referee or judge might be of the opinion that the evidence offered was inadmissible ; 4. And that such judge or referee should not refuse to take the evi- dence offered, except in cases clear of doubt." 5. "When the referee or trial judge offers to receive evidence which in his opinion, is inadmissible, the party refusing to give the evidence waives any right to insist upon the erroneous opinion of the referee or judge as a ground for reversal of a judgment against him. ' ' 6. The judge, in court trials, "should, in every case where there is any reasonable doubt upon the question of the admissibility of the evi- dence, receives the same subject to the objections of the opposite party, although the referee or judge may entertain the opinion that the evi- dence is not admissible. — Holendyke v. Newton, 50 W. 635, 637. 7. "After the case was closed", "the matter of re-opening the case for further proof rested in the sound discretion of the circuit court. It was not a matter of striet right". — Riha v. Pelnar, 86 W. 408, 415. 8. "The conduct of the trial is in the sound discretion of the trial court", and in the absence of "abuse of discretion", the ruling was sustained as to "allowing the case to be opened after it was formally closed, and allowing the introduction of further evidence". —Winn v. Itzel, 125 W. 19, 29. 9. ' ' The trial in circuit court is a trial de novo' ' on appeal from county court, and evidence must be presented to items of an executor's account, specifically objected to. See Accounts of Extrs. & Admrs. — Fitch v. Huntington, 125 W. 204, 209. 10. "A motion for new trial on the ground of newly-discovered evi- dence", "predicated on, an affidavit of one of contestant's witnesses that, after giving her testimony, she was offered a thousand dollars if she would reverse it", there being "nothing but suspicion" to connect pro- ponent therewith, was denied, as "such testimony would be wholly inad- missible if a new trial were granted". —MwUer v. Pew, 127 W. 288, 292. TRUST CONTRAVENTION OR ASSIGNMENT 1117 * 11. "Where an heir at law is present in the county court at the time the will is admitted to probate and makes no objection to the same, and subsequently appeals therefrom to the circuit court, 12. He is'' not "estopped from contesting such probate in the circuit court by reason of his consent given in the county court" and "was entitled to a trial de novo in the circuit court". See also Appeal. —Bovee v. Johnson, 130 W. 447, 450. 13. "The admission of" "evidence subject to objection cannot be endorsed as good practice", where "it was perfectly plain when the evidence was offered that it was objectionable", "and there was no suggestion that it could become competent through circumstances not then disclosed. 14. The reception of clearly incompetent evidence is a practice which leads to confusion in the trial, casts the burden of meeting such incom- petent evidence upon the opposite party, and is liable to entail useless expense of money and waste of time in fruitless inquiry". , —Eagan v. McDermott, 134 W. 490, 496. 15. "The case comes to the circuit court for a trial de novo of all questions relating to the dealings of the executors with the trust funds, and none of those dealings can be barred out because omitted in the county court". —Estate of Wells, 156 W. 294, 312. 16. As to trial by jury being proper in an action for breach of -a devise contract on lost writings, and jury trial in will cases. See Leg- acies. Jury. —Dilger v. Est. of McQuade, 158 W. 328, 331. TRIAL BY REFEREE. See Reference. TRUST COMPANIES. See Principal and Agent. Trust Funds. TRUST CONTRAVENTION OR ASSIGNMENT. See Trust Variation. 1118 PROBATE AND GENERAL LAW, CODIFIED TRUSTEES. See also Accounts of Guardians. Executors and Administrators. Liability. Trust Funds. Trusts. Administrator : Beneficiaries; creditors, heirs, 95. Not trustee as to realty, 3. Unless bought with estate funds, 4. See also Executor as trustee. Bond: Must give before acting, 81, 116. Both trustee and cestui que trust, 87. Compensation : Allowed per administrator statute, 113. Conveyance: by beneficiaries, 93. Trustee as to legal estate, 94. When rights vested, 93. Court appointees: Approval of parties, 83. Disapproval of parties, 83. Ascertainable, intention, 85. Certain court discretion, 86. Competent, of integrity, 84. Friendly, harmonious, 84. In effect of testator, 96. Neither party dictate, 86. Property to be on interest, 96. Succeeds to title, 82. Corporation as trustee, 47. Exempt from bond, 47. Definition: broad sense, 90. Detailed inclusions, 91. Extrs., admrs., guardians, 92. Delegating duties to another, 18. Only when authorized, 18, 19. Denied the trust: Attorneys fees; expenses, 48. Laches bar, when, 107, 108. Not charge for services, 49. Devisee with legacy charge, 114. Not trustee of express trust, 114. Disadvantageous contract, 66. Mistake of law, immaterial, 69. Presumptively fraudulent, 67. Eepresentative or personally, 68. See also "Widow's right. With cestui que trust, 66. Executor as trustee, 5, 26. Admr. continues so to act, 110. Charges and received five per cent, 111. Not compound interest, 111. Diligent in performance, 110. Entitled fees as trusteo, 112. Charge to rents handled, 112. Not to the estate proper, 112. Fees as administrator's statute, 113. Executor as trustee — continued 1 Carry out trust, 5. Erroneously continued as trustee, 76. Administrator de bonis non, 76. Estate vested in, 75. Pending suspension, 75. Given trust duties, 38. Assumed to be so named, 38. Hold estate; paid, as executor, 46. Though, trust duties, 46. Named both, in the will, 115. Assignment as to trustees, 119. Not change title, 119. Not qualifying, 119. Directed to act, judgment, 115. Held estate as exeeutors, 118. Sureties liable for default, 115. Qualify only as exeeutors, 115. Named testamentary trustee, 77. Acts as executor many years, 77. Functions till aec. allowed, 78. Jurisdiction to settle, 79. Till qualified as trustee, 80. Perform trustee duties, 26. Widow's personalty-; election, 31. Fraudulent sale. See Purchase trust property. Investments : Convert into real estate, 27. Not unless authorized, 27. Discretion, without directions, 28. Joint trustee, more stringent, 29. English rule adopted, 33. Not personal securities, 33. Real. estate; governmental, 34. Manufacturing Co., securities, 32. Apparently safe at time, 32. Withhold directions; loss, 32. Rule for investments, 34. Realty or statutory, 35. Not personal security, 36. Otherwise not protected, 35. Unless court order, 35^ Joint trustees. See Power. Limitation statute: Acts with consent of all, 1. Five year sale statute, 103. Not bar to profit recovery, 104. Laches not bar to accounting, 107. Unless trust denial, 108. Six-year; from fraud knowledge, 70. Reasonable diligence, 70. Widow's election; estoppel, 64. TRUSTEES ' 1119 Loss of trust funds: Deposits fund in bank, 21. Appropriation of fund, 23. Identity put an end to, 22. In his own name, 21. Good faith and prudence, 20. Parties : Suit against a trustee, 37. Beneficiaries parties, 37. Possession: actual receipts, 24. Fraud or gross negligence, 24. Merely ignoring trust, 25. Power: Implied; to conduct business, 50. Employ attorneys, 50. Joined to a trust, 39. Joint trustees; joint power, 51. Act of onq less than all, 53. Not universal, 54. Appeal by one of two, 59. Held justifiable, 59. Conveyance; joint action, 55. Negative acts; or omission, 56. One authorize the other, 109. To waive lease stipulation, 109. One collective person, 52. One may invoke court, 56. Excuse non-joinder, 58. Good faith; expenses, 58. Protection or recovery, 57. One not take active part, 109. Pay as "seem to him proper", 39. Purchase trust property: Actual and intended fraud, 43. Improvements voluntarily made, 43, 98. Allowance, trustee himself, 3, 44. Taxes, commissions, abstracts, 45. Trustee or fraud purchaser, 45. Admr., third person, good faith, value, 97. Admr., made no profit, 99. Sustained for such reason, 99. Approval, knowledge of court, 97. Pinal accounting, 16 years later, 99. First objection then made, 99. Good faith immaterial, 101. Heir barred, give year statute, 103. Elect between two courses, 105, . , : 106. Not prevent profit recovery, 104. Possession ten years; improvements, 98. Voidable, common law, statute, 100, 102. Purchase, etc. — continued Attorney held as trustee, 7, 40. Account fully as such, 7. Fairly made or not, 7. Persons uniting with him, 40. Option of interested parties, 7. Laches, is no recovery bar, 107. Unless trust denial, 108. Not as general rule, 26. Remedies ; choice of, 42, 105, 106. _ Afiirm or disaffirm, 42, 105, 106. Respond, property, value, profits, 89, ' 104. Rule: by Chancellor Walworth, 8. Agents, quasi trustees; rule, 16. Conditions making trustee, 17. May abandon agency, 41. Directors and superintendent, 15. Executory contract, colorable, 14. Fully stated as settled, 9. Not permitted to purchase, 9. . Sale to stranger, colorable, 12. Suddenly becomes interested, .13. Voidable, by "cestui que trust, 15. What was once trust estate, 10. Onee validly sold, 11. Scrutinized with care, 2. Voidable, though valid intent, 89, 100, 102. Qualification necessary, 116. Give bond as required, 116. Title not vest until bond, 117. ' Realty sale: County court's power, 74. . , Ljmited by sec. 3040, 74. Rescission action, 71. Willing to do equity, 71. Title: Appointed successor, 82. Vests before qualifying, 81, 117. Vests, trustee after qualifying, 117. Widow's rights: Accounting by trustee, 88. Bargains away her rights, 60. Recovery because of fraud, 61. Election, limitation statute, 64. Trustees induce loss; duties, 65. Fees from rent funds, etc., 112. Ignorance, failure to elect, 60. Restitution made to widow, 72. Trustees expenses, charges, 73. Trustees of her legal rights, 62. As well as will purposes, 62. Not affirmatively, 63. 1120 PROBATE AND GENERAL LAW, CODIFIED 1. The statute of limitation does not apply to a trustee where he con- tinues to act "with the consent, and at the request of the cestui que trusts and all persons interested". —Sheldon v. Sheldon, 3 W. 699, 707. 2. As a general rule trustees "cannot purchase the trust property", and when they are so permitted, "such a transaction is always scrutinized in a court of equity with a watchful and jealous eye, and will not be sustained to the disadvantage of the cestui que trust, except upon the most complete and satisfactory evidence of good faith and fair dealing on the part of the trustee. 1 Story Eq. Jur. 321 ' '. —Puzey v. Senier, 9 W. 370, 376. 3. An administrator is not a "trustee of the heir" as to real estate not necessary for debts. 4. An administrator may be held as trustee for heirs of real estate purchased with estate funds, where the money is not accounted for; otherwise, if the fund is accounted for and report approved. —Barker v. Barker, 14 W. 131, 146. 5. An executor as trustee will be required by ' ' order from the county court", to carry out the trust for the support of "the mother of the deceased" and the circuit court will not interfere. —Batchelder v. Batchelder, 20 W. 452, 454. 6. Trustees cannot buy or benefit in the sale of trust property. See Trusts. • — In re Taylor Orphan Asylum, 36 W. 534, 552. 7. Where an attorney is counselor and has fiduciary relations with the testator and executors, and purchases trust property, it is held, "the law seems to be well settled, that in such cases the attorney will become the trustee of the property so improperly purchased, at the option of the parties interested, and may be charged as fully with the adminis- tration of the trust, and be held as responsible for his dealings with the property, by the cestui que trust and be called upon to account, as the original trustee, even where the sale to the attorney 'was fairly made, and for what at the time was considered by all the parties a fair price'. James, ex parte, 8 Vesey, 337." See also Attorney and Client. —O'Dell v. Rogers, 44 W. 136, 179. 8. "We take the rule to be now very generally settled in this country, as it is well stated by Walworth, Ch, in Torrey v. Bank of Orleans, 9 Paige, 649 (cited in Taylor Orphan Asylum, 36 W. 534, under Trusts), 9. Or, as it was stated by Paine J., in this court: 'The rule is well settled that trustees are not permitted to purchase the trust property; not because they might not, in many instances, make fair and goriest TRUSTEES 1121 disposition of it to themselves, but because the probability is so great that they would frequently do otherwise, without danger of detection, that the law considers it better policy to prohibit such purchases entirely, than to assume them to be valid except where they can be proved to be fraudulent'. Gillett V. Gillett, 9 W. 194". 10. ''A trustee is not barred from ever becoming a purchaser of what has once been part of the trust estate. 11. "When the title of the' trust estate has passed by valid sale, in which the trustee has no interest, and all the interest of the cestui que trust in it has ceased, the trustee becomes a stranger to the property, and may purchase it like any other stranger ' '. 12. "But where the trustee's sale to a stranger is colorable only, and made in whole or in part for the use of the trustee, or upon any under- . standing, express or implied, between the trustee and the purchaser, for any future interest of the trustee in the purchase or in the trust property, purchased, a court of equity will deal with the trustee as a direct pur- chaser from himself, and will avoid his purchase at the suit of his cestui que trust." 13. "And where the trustee, having ostensibly conveyed to a stranger, suddenly becomes interested with his own grantee,, a court of equity will regard the transaction with great jealousy and avoid it in favor of the cestui que trust, upon slight evidence of collusion in the trustee's sale, between the trustee and the purchaser ; ' ' 14. "A multo fortiori, when the trustee becomes interested in the purchase while the sale remains in fieri"; as in this case where the "conveyance of the corporate property by the corporation was to the two directors and the superintendent", under "an agreement to sell to the superintendent alone, made before the directors had entered into any engagement to join him in the purchase", the contract being executory. 15. "Conceding the validity of the superintendent's purchase, their (the two directors') duty to the corporation precluded them from par- ticipating in it. And the conveyance to them is voidable at the suits of their cestui que trusts." 16. "Agents may be quasi trustees to bring them within the broad rule applicable to trustees generally, that they cannot become pur- chasers from their principals. 17. But an agent generally comes within this rule, only when his agency is so connected with the sale 'as to make it his duty to obtain,' the best terms for his principal; when he cannot be agent to sell and principal to buy". —Cook v. Berlin W. M. Co., 43 W. 433, 439. 18. "The law, is very clear, that 'the office and duties of a trustee, being matters of- confidence, cannot be delegated by him to another, unless an express authority for that purpose be conferred on him by the instrument creating the trust'/ Hill on Trustees, 175; Perry on Trusts, 287, 294. ! Zimmerman — 71 . ,1122 PROBATE AND GENERAL LAW, CODIFIED 19. This principle is elementary, and has only one exception, and that is when the trustee delegates the trust to another with the "con- sent of the cestui-que-trust and all other parties interested in the trust". — Seely v. Hills, 49 W. 473, 485. 20. "Undoubtedly the general rule is that trustees are liable only for good faith and common prudence, and that if a loss happens to a trust fund, in relation to which they have exhibited this care and pru- dence, they may be allowed for the loss in their accounts". • 21. But where an administrator deposits a trust fund in a bank, in his own name, not as trustee, and takes such a certificate of deposit, and the bank afterwards fails, the loss is that of the administrator indi- vidually, though he told the bank it was a trust fund, and though he had no other deposit in the bank at the time. 22. "The deposit, ,put an end to the identity of the funds deposited, and the certificate was simply an agreement, taken in exchange for the money, to repay a like amount in currency upon the conditions named. Beyond question the certificate was negotiable. Klauber v. Biggerstaff, 47 W. 551." 23. "The making of the deposit and taking the certificate to himself individually was therefore not only an extinguishment of the identity of the money, but an appropriation of it, in law, to his own personal use". — Williams v. Williams, 55 W. 300, 304. 24. "The doctrine was settled in Wilcox v. Bates, 45 W. 138, that 'trustees in possession are in general chargeable with actual receipts only, except upon proof of gross negligence or of fraud in lessening or concealing receipts ; 25. And ,a mere attempt by them to, ignore the trust and deal with the property as their own, is not such a fraud as will charge them beyond actual receipts; nor does it tend to prove, but rather repel, negligence in the administration of the estate". —Hoile v. Bailey, 58 W. 434, 457. , 26. Executors with duties as trustees, without being named as such, or estate given to them as such, are held to perform the duties as such. See also Vesting of Estates. 27. Converting money into real estate, "could not properly be done even by a trustee, much less by a mere executor, without special author- ity. (Cases)". 28. "Where no directions are given as to the manner in which the fund shall be invested, prior to final appropriation in satisfaction of the trust, it is left to the discretion of the trustee. (Citation). 29. A joint trustee of such discretional trust is held to a more stringent liability for the acts of his co-trustee than in the case of a directory trust in which the directions have ;been followed ". —Scott v. West, 63 W. 529, 557. TRUSTEES 1123 30. "Manifestly, it is the duty of the executors to administer the estate according to the provisions of the will, notwithstanding the duties thus imposed include such as are usually performed by trustees. Scott v. West, 53 W. supra". See also Charitable Trusts. —Webster v. Morris, 66 W. 366, 399. 31. Executor becomes a trustee for widow's personalty, after election. See Administration. — Beem v. Kimberly, 72 W. 343, 368. 32. A trustee without direction "made a loan to a manufacturing company upon its note and the personal security of two endorsers",, the company and endorsers being 1 financially responsible at the time, but a loss on the trust funds at about one-half thereafter occurred. "While there is no evidence that the trustee did not act in good faith in making the loan, doubtless deeming it entirely safe and amply secured, yet he cannot be protected against the loss. 33. We are disposed, on this subject, to follow the English rule which has been adopted in some of our sister states, and hold that the trustee cannot invest trust funds in personal securities, and that it is not an exercise of sound discretion to so invest them. 34. Says Parker, V. C, in Aekerman v. Emott, 4 Barb., 626, 636: 'It is a well-settled rule of the English court of chancery that the trustee can only protect himself against risk by investing the trust fund in real estate or governmental securities' ". (Followed in Pabst v. Goodrich, 133 W. 43 (see Trust Funds), and made statutory and extended by sec. 2100b in 1903, and subsequently amended.) 35. "We are disposed to hold that the trustee should not be pro- tected against loss in investing trust funds unless he loans on real estate security (extended by sec. 2100b) or invests in some other security approved by the court to which he is accountable for the manner he executes his trust". 36. "We do not enter upon a discussion of the doctrine which makes an investment on private or personal security at the risk of the trustee, because the law is elementary". —Simmons v. Oliver, 74 W. 633, 635-7. 37. In a suit against a trustee "the beneficiaries are indispensable parties". See Parties. —Biron v. Scott, Trustee, 80 W. 206, 213. 38. An executor named as such only but given also trust duties, is assumed to be named also as trustee as a distinct office. See Construct tion op Wilds. — Sawtelle v. Ripley, 85 W. 72, 75. 39. As to execution and construction of a "power joined to the trust", to pay out "as it shall seem to him proper". See Power. —Osborne v. Gordon, 86 W. 92, 95. 1124 PEOBATB AND GENERAL LAW, CODIFIED 40. In O'Dell v. Rogers, 44 "W, supra, it is held, "that the active attorney of the executor of an estate cannot buy from the executor, property of the estate, and that persons who united with the attorney in the purchase, with full knowledge of the facts affecting his disability, are also chargeable with him. as trustee of the property bought". 41. But as to a former agent of the trustee in the sale as a purchaser of trust property, it is said: "There is no principle which prevents an agent from abandoning his agency with the knowledge and consent of his principal, and then purchasing of the former principal at arm's length and upon an equal footing". ,So held. 42. "The law is that a party injured by the fraudulent sale of prop- erty made by his trustee has a choice of remedies. He may affirm the sale and recover the price, or he may disaffirm the sale and recover back the property. But he cannot do both, — they are inconsistent remedies". 43. A fraudulent, purchaser of trust property, where the sale is "set aside as fraudulent and void", not "charged merely with constructive fraud, but found and amply proven to have been an active participant in the actual and intended fraud ", " cannot, under well-established prin- ciples, be credited with improvements voluntarily made on the trust property. The decisions of this cour.f are, to' this effect. Waterman v. Dutton, 6 W. 265 ; Thompson v. Thompson, 16 W. 91 ; Witt v. Trustees, 55 W. 376; (other cases) ". So held as to many thousands of dollars in building, grading, filling, water pipes, sewers, etc. 44. " It < seems questionable whether a trustee to sell lands could himself be allowed for these improvements. 2 Perry Trusts, sec. 526, and cases cited." 45'. Taxes paid, commissions to real estate agents, and abstracts on lots sold for which proceeds were recovered, were heM properly credited to such fraudulent purchaser, as the trustee himself "would have been entitled to credit for such expenses" had he made the sales. —Hawley v. Tesch, 88 W. 213, 238. 46. An executor as such may hold the estate and be compensated, as such, though performing the duties of trustee until qualifying as such. See Administration. ... ,. —Schmz v. Schinz, 90 W. 236, 216. 47. "That a corporation may be authorized to act as trustee is very^ well settled (citations)", and the law may properly exempt it from giving bond, as it " gives security by depositing securities with the state treasurer". — Roane Iron Go. v, Wis. Trust Co., 99 W. 273, 275. 48. While the trustee denied the trust, but incurred attorneys' fees and litigation expenses, "acting from a regard to the interests of the trust estate," and of which the cestui que trusts received the benefit, such expenses are credited to such trustee out of trust funds. 49. But, "certainly the defendant, while denying the trust, and TRUSTEES "" 1125 •.^claiming all the property as her own, was in no position to charge" , fftr her services or those, pf her agents and, attorneys. —Fuller v. Able, ,105 W. 235, 238. 50. "All trustees possess implied power to use the usual and ordinary , ijieans for the conduct of , the business intrusted to their charge," includ- ing "ample power to employ attorneys". — Vilas v. Bundy, 106 W. 168, 182. 51. As to "the power of one of several joint trustees or executors, the underlying and general principle is that the trust is imposed on all, jointly ; , 52. That all together constitute- but one collective person for the pur- pose of executing it; ..., 53. And, as a corollary, that the act of any of them, less, than all, is not the completed act of that collective person and is ineffectual, , ,1 , Perry, Trusts, 411. , , ,,54. The application of this principle to. its full extent is not i uni- versal. (Citations); Weir v.,Mosher,19 W., 311, 316 (See ExTRS. r & Admrs.) * 55. In the main, however, any substantial affirmative act — such, for illustration, as the conveyance of property — requires the joint action of all in order to have any validity. ' ' 56. Put as to negative acts, or of omission, courts have "recognized . the necessity that one trustee, may invoke the aid of courts for protec- tion of the trust estate, although his co- trustee refused to join with him." ,: 57. "It seems, certain, therefore, both, on reason and authority, that ,one joint trustee, is, not without, power to, invoke the aid of, courts for protection or recovery of the estate, when, in his judgment, neglect to do so would be a breach of, duty." 58. Ije must "excuse the non-joinder of his co-trustee", and make „him a defendant; he may be denied "his expenses if he litigates not in good faith. " ,,.„;> 59. An appeal by one only of. two trustees, — the other and all, in- terested; parties in being, being satisfied with the circuit court judg- ment, — was held justifiable and proper, there being possible interests of persons not in' being, involved. See also Trust Variations. —Inre.Luscombe's Will, 109 W., 186, 195. -,- 60. Where, executors and trustees were given the estate, real and per- sonal, of about $1,250,000, of the late Governor Ludington, by will, for . priyate beneficiaries as set , forth, the widow receiving a comparatively small interest : therein, which provision was, shortly after the decease, at the instance of and by contract with such executors and the heirs and the widow, somewhat enlarged but still less than one-half of her legal rights, and she, having released; and conveyed to; such, . trustees 1126 PROBATE AND GENERAL LAW, CODIFIED all of her other interest in the estate, without having been advised of her legal rights by such trustees or otherwise, and without having elected or formed an intent to elect within the year to take under the law, and final settlement having been duly had and the estate trans- ferred to the trustees, — 61. And about six years thereafter, but only about two' years after suspecting that she had not received her legal rights, the widow com- menced suit in equity against the trustees and heirs to rescind such contract for fraud and "to recover compensation for the loss which she suffered by not insisting, at the proper time, upon her legal rights", — she is, on. the facts, found entitled to recover, and it is held; 62. "That the executors and trustees were the trustees of the prop- erty for" the widow as to her legal rights as well as "for the particular uses and purposes expressed in the will", and by reason of "the rela- tion of trust and confidence" existing, they were also trustees inde- pendently of the will. 63. "That there is no duty resting upon the exeeutor" "to inform such widow of her legal rights", affirmatively, "but that she is pre- sumed to know the law", and it is for her to discover and assert her rights; 64. That the election statute, sec. 2172, "should be given the same force and effect as any other statute of limitations", and as set forth in Eingartner v. Illinois S. Co., 100 W. 373 (See Limitations of Actions), regardless of hardship "unless circumstances exist preclud- ing its being insisted upon under the doctrine of equitable estoppel"; 65. But when the executors and trustees for themselves and the heirs "undertook to induce" the widow "to bargain away to them her prop- erty, of which they were the trustees", for their and the heirs' benefit, they "were bound to make to her the fullest and amplest disclosure" to her advantage, 66. On the "principle that a trustee cannot bind his cestui que trust irrevocably by a contract made with him to his disadvantage, especially where there is 1 any reasonable ground to say that the contracting parties were not on an equality in the transaction"; 67. Such "transactions of a contract nature, between a trustee and his cestui que trust", are "presumptively fraudulent and void at the election of the latter"; 68. And as to the trustee there is "no difference between disability to deal" for the benefit of himself as the representative of others, and "for the benefit of himself absolutely"; 69. "The fact that such false impression was a mistake of law does not militate against appellant's (the widow's) right to relief in equity;" 70. While the six-year statute of limitation applied, it only "com- menced to run against appellant from the time she obtained knowledge of the fraud or might have obtained such knowledge by the exercise of reasonable diligence " ; 71. In equity "it is sufficient in an action for rescission to show by TRUSTEES 1127 the complaint a willingness to do equity, to submit to a complete rescis- sion, so far as practicable, and to make the defendant good for what was received from him in such manner as the court may direct. Thack- rahv. Haas, 119 U. S. 499"; 72. The "heirs must make restitution of all moneys distributed to them" so far as necessary, and the widow restore and account for all she has received, in an accounting giving her her legal rights as if she had duly elected. 73. "In such accounting the trustees should be allowed their reason- able expenses and charges for caring for the property upon substantially the same basis as if they had administered the same for appellant as trustees of an express trust". —Ludmgton v. Pattern, 111 "W. 208, 229., 261. 74. The county court's power to sell realty in the hands of trustees, "is strictly limited by sec. "4030".. See Sale of Realty. —Bloor v. Smith, 112 W., 340, 346. 75. Executors named, are held to have estate vested in them as trustees, pending suspension of alienation and of vesting in devisees for twenty- one years. See Construction of "Wills. —Will of Kopmeier, 113 "W. 233, 238. 76. "Where an executor was erroneously continued as such as trustee, held jurisdictional for the appointment of admr. de bonis non. See Admb. de Bonis Non. — Barney v. Babcock's Est., 115 W. 409, 414. 77. "Where an executor, also named as testamentary trustee, continues as executor a dozen years, without accounting during such time, or having filed a final account, then on petition of beneficiaries for a final accounting and for the appointment of another as trustee, though there was a further delay of several years thereafter, and several orders were entered and a final accounting finally had separately, it was held that a trustee was subsequently properly appointed based upon such petition. 78. "His duties and functions as executor did not, in law, cease until his final account as such had been filed and allowed. See Barney v. Babcock's Est., 115 W. supra. 79. The county court had ample jurisdiction to settle and allow his account, and such settlement and allowance are binding upon the sure- ties on his bond. 80. His duties as executor continue until he qualified as testamentary trustee, and, as it does not appear that he had so qualified, he held the , money in his hands as executor until his final account was settled. Schinz v. Schinz, 90 "W. supra". See also Sureties. — WaUbev, Judge, v. WHmcmns, 116 "W. 246, 249. 1128 PROBATE AND GENERAL LAW, CODIFIED 81. As to title vesting in trustees, though they must qualify by giving bond' before acting. See Trusts. —McWilliams v. Gough, 11-6 W. 576, 580. 82. A trustee appointed, on resignation of the one named in the will, by force of the statute succeeds to the title. See Trusts. —Holmes v. Walter, 118 W., 409, . 429. '83. Where, under the will, in ease of vacancy, trustees are to be appointed by the county court or judge "subject to the approval of the parties interested", and such parties fail to consult or agree, and the court appointed a trustee suggested by each of two parties, one being objectionable to one of the parties, though his character for integrity and business capacity was above reproach", such appointment being also on appeal approved by the circuit court, such judgment was re- versed, and it is held: 84. The "purpose is not only to secure competent men of integrity, but also those who will co-operate in a friendly and harmonious manner" ; , 85. "Upon questions of this description there is no substantial dis- tinction between the 'demonstrated intention' of the testator, and an 'express declaration' of such intention", and the "ascertainable inten- tion , must be enforced". (Citations) 86. Neither party "can dictate such appointment, nor contumaciously refuse to agree". "The county court has a certain discretion to be exercised" "but not arbitrarily and contrary to the expressed, wish of. the testator". —Cole v. Watertoum, 119 W. 133, 13'8.' 87. As to the elements and characteristics of a trust, and that "no person can be both trustee and cestui que trust at the same time". Sfee Trusts. . —Danforth v. Oskhosh, 119 W. 262, 276. .88. Various matters and manner of accounting by the trustees to the widow, under the mandate of Ludington v. Patton, 111 W. supra, re- viewed and determined. See also Advancements. Insurance. —Ludington v. Patton, 121 W. 649, 655. 89. A sale by a "fiduciary" to himself* of trust property, is voidable, though without wrongful intent, and the trustee must respond with the property, or its value, and with profits realized. See Surviving Partner. —Koivell v. Howell, 122 W. 1, 13. 90. "In the broad sense of the word a trustee is one 'in whom some estate, interest, or power in or affecting property is vested for the benefit of another'. Hill, Trustees, 41. 91. In this sense the term includes executors, administrators, guard- ians, receivers, trustees in bankruptcy, factors, bailees, and agents, and all persons vested with the title or control of property and charged with TRUSTEES 1129 fiduciary duties in relation thereto for the benefit of another. lb. Lewin, Trusts, 490". 92. "Executors, administrators, and guardians are frequently called trustees, and held to the responsibilities and duties of trustees by the courts. (Many cases). 93. It is well settled that beneficiaries, of; trust property,, who are sui juris and whose rights are vested, may deal with and convey their equitable interests in the trust property, 94. And the trustee will be required to convey the legal estate in accordance therewith if such action be not contrary to the terms of the >trust. (Citation) ... 95. In the case of an administrator the beneficiaries of the trust are the creditors of the estate and the heirs at law of the intestate," See also Settlement. — McKeigue v. C. & N. W. R.Co., 130 W. 543, 546, 96. Where the will "expressly provides that the property •' shall be put on interest by someone appointed by the county judge', etc", such "appointee" is to "act as trustee in the complete execution of the will", and "in legal effect, is the appointee of the testator. Wolbert v. Beard, 128 W. 391 (See Vesting of Estates)." See also Equitable Conver- sion. — Benner v. Mower, 133 W. 325, 331. 97. An administrator with will annexed, under license granted .to pay debts, and with knowledge and approval of the, county court, sold realty at private sale after failure of public sale, to R. for $600, he conveying it immediately to the administrator, who in thus "making this sale to himself acted in entire good' faith and paid full value". 98. On confirmation he took possession, ' ' greatly improved the same ' '. and ten years later in 1901 sold, it for $1600. Appellant heir knew of the possession, of the improvements, of the last sale, "and at no time made any objection or claimed any rights" therein, 99. Until on a final accounting of the administrator in 1909, he claimed rents and profits, and the $1,000 excess of the last sale over the first. Heir held not entitled to recover, but merely because found that the adminstrator "made no profit on the transaction" 100. ' ' The administrator was the trustee of an express trust. Neither under the common law nor under the statute could he make a valid and binding sale of the trust property to himself. In re Taylor Orphan Asylum, 36 W. supra ; sec. 3914. 101. Neither good faith nor the payment of an ample consideration will avail to support the sale in such a case where the trustee acts both for himself and his cestui que trust.. Shaw v. Crandon S. Bank, 145 W. 639. 102. The sale is, however, not absolutely void, but voidable at the election of the cestui que trust. Melms v. Pabst B. Co., 93 W. 153 (See Sale op Realty). 1130 PROBATE AND GENERAL LAW, CODIFIED 103. "Appellant is barred from attacking the sale by" sec. 3918, because action not "commenced within five years next after the sale. 104. That fact, however, does not prevent a recovery of any profits which the trustee may have made from his dealing with the trust property. 105. The cestui que trust may elect between two courses: he may dis- affirm the sale and recover the property sold ; 106. Or he may affirm the sale, hold the trustee to his purchase, and require the trustee to account for his profits made in the transaction. In re Taylor Orphan Asylum, supra; 28 Cyc. 1027, subd. b." 107. As to laches, "to cut off the right to such an accounting",— "there can be no such bar as between the trustee of an express trust and a cestui que trust, 108. Unless there has been an unequivocal denial or repudiation of the 'trust. Fawcett v. Fawcett, 85 W. 332 (See Implied Trusts) ; Boyd v. Mut. F. Asso., 116 W. 155". —McClear v. Root, 147 W. 60, 63. 109. "The evidence of B." that his co-trustee C. "authorized him to" manage the trust property, and the fact that C. did not take "any active part in the management ' ', is held to prove B. 's authority to waive stipulations in a lease as to not subletting, and also to bind M. a suc- cessor to trustee. — Katz v. Miller, 148 W. 63, 69. 110. Where an administrator with will annexed continued to act as trustee without appointment and without final judgment on the administration having been entered, "was diligent in the performance of his trust", paid the rents to which the widow was entitled, "and in such amounts as she required", 111. And he "received five per cent on the balances remaining in his hands" and charged himself therewith, "it is clear that compound interest should not have been allowed" against him; (Cases). 112. And it is held that such administrator, after the "filing of his final account as administrator", and for the performance of duties "acting in the capacity of trustee or agent for" the widow, "that com- pensation should be paid him out of the funds (rents) which he was handling for her", and not out of the estate of the testator; 113. And that he should receive "for his services $1.50 per day and commissions upon the amount of the personal estate collected and ac- counted for by him as provided by sec. 2939". See also Rents- ani) Profits. . —Est. of Hemphill, 157 W. 331, 338. 114. A devisee of land subject to a legacy lien is "not a trustee of an express trust". See also Legacies. —Nolan v. First Natl. Bank, 161 W. 22, 25. 115. Where the will nominated P. and P. as executors and also as trustees, and they qualified only as executors, and their account as such TRUST FUNDS 1131 having been duly approved by decree which also "directed the executors to administer the trust fund as prescribed in the will", and they having so done for many years and then defaulted and died, their estates and their sureties as executors are held liable for such default. 116. "A testamentary trustee, under the provisions of sec. 4025, in order to qualify as such trustee is required to give bond to the county judge having jurisdiction of the probate of the will, 117. And the title to the trust estate cannot vest in the testamentary trustee until the proper bond required by the statute had been given and filed. (Cases, supra) ". 118. "So in the instant case, in default of the executors qualifying as testamentary trustees they could not assume to perform any duties as trustees and they held the estate as executors, 119. And, as stated, if the court by decree formally attempted to assign it to them as testamentary trustees", "such action of the court did not operate to change the title to the property from them as executors to that of testamentary trustees, because they had not qualified as trustees". But "the county court did not" "undertake" so to do. ,—Karel v. Pereles, 161 W. 598, 602. TRUST FUNDS. See also Accounts of Extrs. & Admrs. Accounts op Guardians. Marshalling Assets. Trustees. Trusts. Corpus or ineome: Corpus or income — continued Assessment on bank stock, 53. Deceased life tenant — continued Capital loss to remainderman, 53. Eeceipts from sale of rights, corpus, , Income thereon to life tenant, 53. 84. Not reimbursed from earnings, 54. Surplus held; not income, 79. Before dividends to tenant, 54. Surplus, undivided profits, corpus, Capital, capital stock, 67. 80. Capital definition, 68. Unearned increment, corpus, 82. Capital stock, definition, 69. Dividends from increased value, 55. Executors division of, 70. Fifty per cent dividend, corpus, 58. Good faith; allowed, 70. Realty dealings, exception, 56. .Corpus rules given: , Represents corpus, 55. (1) Identical property, 85. If not earnings accumulation, 55. (2) Money into corpus, 86. Specific realty corporation, , 57. (3) Proceeds of corpus sale, 87. Mining' stock of wasting nature, 63, Dividends not declared, 89. 64. Not apportionable, 89. Life tenant, current interest, 65. Ordinary loans at death, 90. Remainderman, part of principal, Interest accrued at death, 90. 66. Deceased life tenant; remainderman, Stock dividend to life tenant, 59. , yg_ Earned since decease, 59. Agreed profit division, 81., Surplus account of earnings, 76. Extra dividend was income, 83. Courts not compel declaration, 77. Insurance received, corpus, 82. Dividends not yet declared, 76. Ordinary loans; interest, 90. Undivided profits dividend, 60. 1132 PROBATE AND GENERAL LAW, CODIFIED Corpus or income — continued Undivided p-ofits — continued Before trust; as evidence shows, 62. Not conclusive, corpus income, 60. Out of earnings to life tenant, 61. Creditors of beneficiary: Court's action thereon, 24. Liability 1 of trustee, .24. Deposit as trustee, 12. Credit to him as trustee, 13. , ' ' Guar. ' ' following name, 15. Insufficient to protect, 15. Inform bank, insufficient, 14. Protected from loss, 12. Deposit in own name, 1, 12. Cestui que trust, follow it, 4. Recent English rule, 4. Informing bank; not enough, 14. Loss, if any, personal, 1. Mixes with own funds, 5, 43. Checks out sums, 5, ~43. Held own money, 5, 44. Trust money remaining, 45. Own. wife's and employers, 16. Checks applied to, 16. Dividend stock proceeds, 46. Form of preferred stock, 47. Held to be income, 46, 59. Matter of evidence, when, 62. Failure to show actual ' gains, 48. Burden on trustee, of no gains, 51. Charged, usual gains, 49. With annual rests, 49. No other breach of trust, 50. Refusal; compound interest, 52. Fees apportioned: Administration charged to corpus, 71. Care of trust property to income, 72. Court not bound by testimony, 73. Executors also trustees, 71. Insolvent trustee: Dissipated, not traceable, 7, 11. Property traced and followed, 6, 10. Invested in own name, 17. Proceeds of ward's estate, 17. Trustee having life estate, 17. Transferred to S. with knowledge, 17. Will by S. to others, 17. Ward ignorant till S's. decease, 17. Impressed with trust to ward, 18. Realty purchased likewise, 19. Invested, etc' — continued Ward not barred by statute, 20. < ! . Devisees of S. take subject to, 22. County court cannot adjust, 22. Circuit court jurisdiction, 22. , , . Investments : Beyond jurisdiction, not, 39; Delegates to attorneys, 33. Trustee held responsible,: 33. English rule followed, 2, 25., Statutory changes, 2. Foreign land, not, 40, 41. Securities specified in statute, 25. No other protected, 26. ,, -i Trust companies, statute rule, '27.. i Will grants "full power", 28. , •' Prudent, provident securities, 29, 37. Statute not restrict, 28, 36, 42. Without court approval, 2: ■ Will gives full discretion, 34. Following existing laws, 28, 36, 42. , Not hazardous position, 38. Prudent discretion, 37, 29. Beasonable, not arbitrary, 35. Bemaiuderman 's interest also, 38. Will not followed, 91. Trustees held for breach, 94. Construed to carry out, 93. ' Loaned by trustee to himself, 23. Not protected investment, 23. Neglect to invest: Chargeable, simple interest, 8. Except for six months, 8. Fraud or wilful breach, 9. . Charged compound interest, 9. Premiums, in purchase,: Amount paid made good, 30. Life tenant, remainderman, 30. Testator had; trustee purchased, 75. Test of true income, 31, 74. .Computation -indicated, 32,. 74. Though securities appreciate, 74. "Real estate securities", 91. ,, > Not bonds with others, 92. Sole mortgage intended, 91. Title: . Traced and followed, 6, 10. Trustee not as own, 6! Property not traceable, 7, 11. Trust companies, sec. 2100b, 27. 1. An administrator's deposit of estate funds in his own name, not as trustee, is his personal loss, if any. Rules fully stated. See Tbustbes. ---Williams v. Williams, 55 W. 300, 308. TKUST FUNDS 1133 2. "Without approval of the court, a trustee is protected only by "investing the trust fund in real estate or governmental securities," regardless of "good faith ' ', following the English rule. ( Since extended by sec. 2100b) . See Trustees. — Simmons v. Oliver, 74 W. 633, 637. 3. A deposit of trust money by a guardian, "without any ear marks or indicia to. distinguish it as the money" of the trust fund, its loss, if any, is his personal loss. "It is not a question of good faith". See Guardian and Ward. —Booth v. Wilkinson Gdn., 78 W. 652, 655. 4. The instant case overrules three previous decisions, and follows "the more recent rule in England" set forth In re Hallett's Estate 13 Ch. Div. 696, as to trust funds in a bank, "that 'if money held by a person in a fiduciary character, though not as trustee, has been paid by him to his account at his banker's, the person for whom he held the money can follow it';" 5. "That 'if a person who .holds money as a trustee or in a fiduciary character pays it to his account at his banker's, and mixes it with his own money, and afterwards draws out sums by checks in the ordinary manner * * '* the drawer must be taken to have drawn out his own money in preference to the trust money". 6. " 'The guiding principle is that a trustee cannot assert a title of his own to trust property. If he destroys a trust fund by dissipating it altogether, there remains nothing to be the subject of the trust. But so long as the trust property can be traced and followed into other property into which it has been converted, that remains subject to the trust'. Id. 719". 7. But "the owner of the property or money intrusted is" not "en T titled to a preference over other creditors of an insolvent estate out of the property or assets to which no part of the trust fund or the pro- ceeds- thereof is traceable. (Cases)". So held here. (Approvingly discussed, and quoted in part in Boyle v. N. W. Natl. Bk., 125 W. 498, 507). —Nonotuck Silk Go. v. Flanders, 87 W. 237, 241. 8. On neglect of a guardian to invest his ward's funds, he was held chargeable with simple interest, except for "six months after their receipt". 9. In case of such failure "from fraud or wilful breach of duty, the guardian will be charged with compound interest". See Accounts op Guardians. —Taylor v. Hill, 87 W. 669, 671. 10. "Since the decision of this court in the case of Nonotuck Silk Co. v. Flanders, 87 W. supra, and In re Plankington Bank, 87 W. 385, it must be regarded as settled, in this state at least, that, in order that the beneficiary or owner of a tr^ist fund may be able to regain it out of the estate of a defaulting and insolvent trustee, he must be able to trace. 1134 PROBATE AND GENERAL LAW, CODIFIED it into, and satisfactorily identify it in, the hands of the assignee or receiver of his estate, or its substitute or substantial equivalent; 11. That when the trust fund has been dissipated", so "that it cannot be traced or identified", it is not given "a preference over the other creditors of the insolvent estate". Also "reaffirmed and applied" in Thuemmler v. Barth, 89 W. .381. —Burnham v. Barth, 89 W. 362, 366. 12. "It is well settled that a trustee who deposits the trust funds in a bank, if he would protect, himself from loss by failure of the bank, must make the deposit as of trust funds, and not as his own". 13. "It must be expressed in terms unequivocal, and not to be mis- understood, 'that they are ,the funds of the specific trust to which they belong'. The credit must be to him as trustee." "Williams v. Wil- liams, 55 W. supra. ,14. "It is not enough to inform the; bank that the money is trust funds, even though he acts as entire good faith. Booth v. Wilkinson, . 78 W. supra". 15. "The letters 'Guar.', which follow the defendant's name in the certificate (of deposit), are not recognized abbreviations, and cannot be the legal equivalent , of the word, guardian. And, even with that aid, it would come short of showing that the deposit was made in his office as guardian of the plaintiff". Guardian held personally. — O'Connor : v. Decker, 95 W. 202, 204. 16. Where B. deposited his own, his wife's, and his employer's funds, to his own credit, and checked put for the various parties, "as the law presumes innocence instead of wrong", ''all checks drawn for the bene- fit of the defendants (employers) would naturally be supposed to have been drawn on funds belonging to the defendants, and all checks drawn for the benefit of the plaintiff (the widow) would naturally be sup- posed to have been drawn on funds belonging to the plaintiff. ' ' Nono- tuck S. Co. v. Flanders, 87 W., supra, approvingly cited. — Bromley v. C. C. C. & St. L. B. Co., 103 W., 562, 569. 17. Where the widow and another, guardians of an infant, sold his realty in New Hampshire under license in 1866, and invested and rein- vested the proceeds of such realty, and also the infant's personalty (all obtained from his father's estate and all subject to the widow's life estate), in the widow's name; and where the widow just prior to her decease in 1890, transferred such proceeds and realty to her daughter S.. "she then having knowledge of the plaintiff's (such former infant) rights therein" ; and where S. on her decease in 1897, by will gave most of such property to others, and plaintiff "had no knowledge nor in- formation as to" his interests in the premises "until after the death of his sister" S. ; it is held, — 18. That the real estate so taken in the widow's name, purchased, TRUST FUNDS 1135 with proceeds of the ward's realty and personalty, "thereby became impressed with a trust in favor of" such ward. Gunn v. Blair, 9 W. 352 ; 19. And such realty "so purchased with such remainder of the (ward's) personal estate became impressed with a trust in favor of the plaintiff;" • . 20. That on the facts, it cannot be held "that the plaintiff's right of action is barred by the statutes of limitation" ; 21. That the legatees and devisees "would necessarily take under the will of S. subject to such trust"; 22. And that "the controversy relates to real estate or the proceeds" thereof, sought by plaintiff to be "charged with a trust in his favor, and to have the title to the same adjudged to be vested in him", which ' ' could not be done in county court, and hence , ;the plaintiff had no complete remedy in that court", — and "the circuit court may properly take jurisdiction. Hawley v. Tesch, 72 W. 299 (See Concurrent Juris- diction) ; (other cases) ". — Hill v. True, 104 W. 294, 298. 23. As to investments and security, in a loan by the guardian to her- self personally, not being a protected investment. See Accounts of Guardians. -^-Hutson v. Jenson, 110 W., 26, 40. 24. As to liability of executors and trustees to debtor of cestui que trust, and to court's action as to trust funds and income. See Creditors' Actions. — Williams v. Smith, 117 W., 142, 144. 25. Simmons v. Oliver, 74 W. supra, as to investment of trust funds, approvingly discussed and quoted, and it is held that under the subse- quent statute, ch. 317, L. 1903 (Sec. 2100b), as then existing, trustees "may also invest in the securities specified in the act, if the court will approve and so direct. 26. This clearly implies that no other investment of trust funds comes within the protection Of the law". (Subsequent amendments to sec. 2100b, especially by ch. 536, L. 1915,. allow many additional investments, and it seems, now, without the court's approval, — that protective feature being eliminated) . 27. Sec. 1791h (now apparently sec. 2024-77k, subds. 10, 11, 13)' it is held does not, in their trustee investments, except trust companies from the provisions of sec. 2100b. '28. "Where "the will grants to the trustee 'full power and authority in their discretion to invest'," it is held "that they should not be restricted to the conditions and limitations' imposed by law for the investment of trust funds", (but see also Pabst v. Goodrich, 133 W. post), 29. And that "such securities as a prudent and provident person would purchase as good and safe investments, " were satisfactory. ■ 30. Where securities are purchased at a premium, as "between! the 1136 PROBATE AND GENERAL LAW, CODIFIED life tenant and the remaindermen", "the amount advanced out of the capital of the fund for the payment of premiums should be made good, to prevent a loss when the securities mature". 31. "As stated," "in New England T. Co. v. Eaton, 140 Mass. 532: ' There can ordinarily be no better test of the true income which a sum of money will produce, having regard to the rights of both the tenant for life and the remainderman, 32. Than the interest which can be received from the bond which sells above par, and is payable at the termination of a fixed time ; deduct- ing from such interest, as it becomes due, such sums as will at maturity pay the premium'." (Approvingly quoted in Est. of Wells, 156 W. post). —In re Allis's Est., .123 W. 223, 229. 33. A trustee who delegates the investment of his trust funds to his attorney or other person, "will be held personally responsible for any loss that may result". Lewin, Trusts, Vol. 1, p. 252. See also Accounts of Guardians. —Abrcms v. V. S. Fidelity & G. Co., 127 W. 579, 584. 34. Where "the executors and trustees under the will are given power and authority to manage and control the property 'according, to their judgment and discretion,' " and 'full authority to invest the trust properties in such manner as they shall deem best, with no responsi- bility for- losses, provided they act honestly and in good faith', — it is held: 35. "The authority given to invest the property in manner 'as they shall deem best ' must be held to vest in them a reasonable and not an arbi- trary discretion, 36. And to imply a duty to execute the trust in accordance with existing laws governing trustees in the execution of their trust. (Many cases) ". 37. " The trustees are bound to act in good faith and exercise a sound judgment and prudent discretion in making an investment. 38. They are bound to look to the interests of the remainderman as well as those of the life tenant, and place the trust estate in no hazardous position. (Citations.)". 39. "The general rule" is "to the effect that executors have no power to invest trust funds beyond the jurisdiction of the court in the absence of express authority to do so". (Cases). 40. "The general rule is against the right of .the trustee to make foreign investments under power to invest quite similar to the power in the will under consideration." 41. And it is held, as to investment in a corporation in Germany, owned by the cestui que trust's family, which the trustees were willing to make, "that the trustees had no power to make the proposed invest- ment", "in a foreign land." 42. In re Allis's Est., 123 W., supra, is distinguished, in "that in TRUST FUNDS 1137 that case the investment was of the kind contemplated in the will, and therefore was not restricted to the conditions and limitations: imposed by law for the investment of trust funds." See also Construction of Wills. —Pabst v. Goodrich, 133 W., 43, 72. 43., "Whan moneys belonging to other persons are received and mingled in a general fund with moneys belonging to the depositary and then such depositary or trustee pays out generally from such fund for' his own purposes, 44. There is a presumption of law . that such payments are made from the moneys in said fund belonging to him and do not constitute wrongful misappropriation of the moneys of the cestui que trust, which he has no right to pay out in that way, but that they remain on deposit. , 45. Of course this presumption is possible of complete effect: only so long as the fund is large enough to contain all the moneys of the cestui que trust and some of the moneys of the trustee". Bromley v. C. C. etc., 103 W. supra; Boyle v. N. W. Nat. Bank, 125 W. 498. —EWfigh v. Earling, 134 W. 565, 573. , 46. "Where, stock in the Pabst B. Co. was held in trust under a trust deed and will, of which E. is entitled to the income, the judgment ,pf the circuit, court that "dividend stock and proceeds thereof" "wholly based on net income of the corporate business accumulated subsequently to the death of" the grantor, be paid to E. as income, was . sustained. (Timlin, Siebecker and Kerwin, J J. dissent.) McLouth v. Hunt, 154 N. T., 179. Contra: Gibbons v. Mahon, 136 U. S., 549. 47. "The fact that the dividend stock in this case was in the form of preferred stock cannot make any difference so long as the transac- tion was in good faith with no intent to take advantage of the owner in remainder." — Soehnlem v. Soehnlein, 146 W. 330, ,335, 351. 48. ' ' The rule is well settled that where a trustee, or a person charged with the duty of investing a fund for the purpose of aecumlations ", 49. "F ; ails to show, when properly called upon to account, what the actual gains have been, the usual gains with annual rests will be charged him. (Citations)", ■ , 50. "The rule applicable to such a situation", — there being "no question of any other breach of trust than the mere refusal to, account for accumulations", — "is thus stated in 1 Perry on Trusts; 51. 'The burden is on the trustee to show that he made no profits, or received no benefit from the money; 52. j And if he refuses to account, or to show the amounts of profits he received, the court will give compound interest'. Sec. 471". —Eazelton v. N. Y. L. Ins. Co., 148 W. 19, 20. 53.: iWJiere an assessment on the capital stock of a national bank was made to cover a defalcation of its president, it is held, that "it was the Zimmerman — 72 1138 PROBATE AND GENERAL LAW, CODIFIED capital of the bank— the corpus of the estate— that sustained the loss'', and that the trustee properly so charged it. "The remainderman sus- tained a loss of" "capital and the life tenant" "of income" on such capital loss. 54. Such loss therefore is not to be reimbursed "out of the earnings before dividends declared on the stock held by the trustee could be' paid to the life tenant", p. 375. 55. "Any dividend derived from a mere enhancement of the value of assets representing capital from sources other than the accumula- tion of earnings belongs to the remainderman and not to the life tenant. It represents corpus, not income. ('Many cases). 56: To this rule there is a well known exception in the case of a corporation engaged in buying and selling real estate at a profit". 57. A corporation, organized by directors of a bank, which merely took over from the bank realty for the ' ' specific purpose of holding and disposing of the same at the earliest opportunity and to the best ad- vantage", it is held "was not such a trading corporation in real estate as ' ' comes within such exception, p. 378. 58. A fifty per cent dividend, proceeds of a portion of such realty, it is held "belong to the corpus and not to the income" in the hands of the trustee. 59. A large stock dividend declared by the National Surety Co. out of its surplus, is held to go to the life tenant "as the undisputed proof shows it has been earned since" "the death of the testator". 60. A large dividend by the bank "paid out of a fund denominated undivided profits, is not conclusive between the life tenant and remain- derman". 61. Such dividend, with consent "used to purchase a trust company which became an ancillary institution" to the bank, and "in fact paid out of earnings accruing since the commencement of the trust estate", it is held "belongs to the life tenant". 62. If earned before the > trust estate begun it belongs "to the re- mainderman; and if partly earned since- and partly before the trust estate vested, then in part to each. Soehnlein v. Soeknlein, 146 W. 'supra". See also Compensation of Admr., etc. Vesting op Estates. —Miller v. Payne, 150 W. 354, 375. 63. On the settlement of a final account as executors, covering also "their transactions as trustees", during a number of years, under the will construed in Stephenson v. Norris, 128 W ; . 242 (See Construction op Wills) , it is held : 64. "Where a testator establishes a trust in property for the benefit of a life tenant with remainder over to another, and the property is of a wasting nature, such as mining stock or land stock, the dividends on which represent in part a practical diminution of corporate assets, 65. In the absence of a clear expression of the testator's intention to TRUST FUNDS 1139 the contrary the life tenant will be entitled to receive only the current rate of interest on the value of the trust property, 66.. And the remainder of the dividends will become a part of the principal of the trust fund, to be invested anew by the trustee. (Cita- tions) ">■ , , 67. In Wells v. Green B. &.M., C. Co., 90 W. 442, "it was said: 'There is a distinction between the capital and the capital stock of a cor- poration. , 68. The capital of a corporation- is the property or means which the corporation owns, and it may vary in amount, 69. While the capital stock is fixed, and represents the interest of the stock-holders and is their property' ". 70. Where executors are given full ' ' control, over the property ' ', and a division of such dividends may result "that the corpus has been actually increased", and there being good faith, their division is never- theless allowed to stand. 71. The trial court's division of executors' and trustees' fees and ex- penses, ; that ten per cent thereof as executors' share for duties relating "purely to the administration of the estate" "should be charged to the corpus", 72. And that ninety per cent "related to management and care of the trust property and should be charged against the income", — is sustained. 73. "As to the value of the services and, the proportionate amount thereof chargeable against the. two funds the court was entitled to exer- cise its own judgment .and, was not bound by the testimony of wit- nesses." , .-,..:,.. , , 74. Where trustees- invest "funds, in securities at a premium", the ruleof In re Allis' Est., 123, W, supra, is approved and followed; And "even though the securities may appreciate in value, so that they would sell for a larger sum than would be necessary to restore to the corpus of the estate that which was taken from the estate to pur- chase them, still the rule is not changed". 75. It is not decided "whether there is any logical difference in the rules of law which should apply to securities held by the deceased at a premium and to securities, purchased by the executors at a premium". Under the will here, ; the rule is applied "to both classes of securities". 76. Though the executors as such, and individually,, together owned a majority of the corporate stock, it was held error for the trial; court to compel the executors "to account to the. life beneficiaries as if divi- dends had .actually been declared", where the earnings were not "an- nually "j distributed "but added" "to the surplus account". 77. "Courts will not interfere, with the discretion of corporate direc- tors .and compel the declaration of a dividend in the absence of fraud, bad faith, or wilful abuse of discretion. Mprey v. Fish Bros. W. Co., 108 W. 520, 529 ' '. See also Compensation of Apmr. etq. —Estate of Wells, 156 W. 294, 304. 1140 PROBATE AND 'GENERAL LAW, CODIFIED 78. Where trustees held property of which the "income and in- crease" belonged to a life beneficiary who died, — in an accounting between his executor and the remainderman it is held : 79. "The surplus of a corporation not declared as a dividend cannot' be treated as income until it is declared as a dividend, for the obvious reason that what is surplus one year may be swept away by losses the next year. It is a fluctuating quantity. 80. Surplus and undivided profits of a corporation, existing at the time of the death of the testator who is a stockholder, go into the corpus of the trust estate". 81. The division "of profits before, and those made after, testator's death", may "be agreed upon and settled between the interested par- ties" who "were competent to contract on this subject". Miller v. Payne, 150 W. supra. 82. ' ' The unearned increment so called, or the increase in value of the property constituting the corpus of the trust estate, and the insur- ance received as indemnity against loss of part of that corpus, all belong to the latter", though the insurance received exceed the amount expended! for restoring the property. 83. "An extra dividend of twenty per cent, on the stock" "was clearly a cash dividend and belonged to the income notwithstanding the trustees" "applied it to the purchase of additional shares of stock in the same bank". (Cases). 84. Items "received for sale of rights" "to subscribe to a propor- tion of shares in an increase of capitalization", "belong to the corpus" "in the absence of evidence", though "ordinarily" it "should be divided between corpus and income". 85. "Where the trustees have a power of sale and re-investment the corpus of the trust estate at any given time consists of (1) the identical property which was put into the corpus by the creator of the trust and still remains on hand, 86. Plus (2), to balance any money which originally went into the corpus, a like amount of money or property of value equal to such original amount of money, 87. Plus (3), if any of the property which originally went to make the corpus has been sold, money in amount, or property in value, equal to that part of the original corpus sold plus the net amount of natural or unearned increment up to that time actually realized upon the prop- erty sold which was originally part of the corpus". 88. "Profits realized on purchases by the trustees and resales of the same property by them should, at the next succeeding income payment day, be divided by placing to corpus whatever is necessary to keep it up to the foregoing figure, thus making good losses of corpus. All profits upon such resales not necessary for this purpose should be paid' out as income". 89. While dividends not, declared until after the death of the life TRUSTS 1141 : beneficiary are "not apportionable " and belong to the next taker entitled to the income, , 90. Yet in the case of "ordinary loans on securities, the circuit court properly allowed" "the interest accrued up to the time of the death of the beneficiary". —Will of Barron, 163 W. 275, 278. 91. Where a will directed the investment of the estate property 'into first class interest-bearing real-estate mortgage securities', it is held that the creator of the trust "intended to require mortgages running to the trustees, or held by them for the sole benefit of the trust fund"; 92. And where the trustees invested "trust funds in bonds secured, with a large issue of such evidences of indebtedness, by a trust deed", and "in a mere evidence of right by one to participate with others in an indebtedness secured by a real estate mortgage", — such investments "were wholly unwarranted", whether "amply secured" or not. t ' 93. "A trust must be executed according to the plan of its -creator, and" "the language of the trust, if not perfectly plain, must be so construed, if practicable, as to carry out the creator's intend as evi- denced by all the circumstances characterizing the trust." > 94. An ' ' interlocutory ' ' judgment against the trustees for the. amount of such investment for "the damage for breach of trust", ; with the right to hold such securities until such liability is paid, was upheld. — Will of Mendel, 164 W. 136, 142. TRUSTS. See also Charitable Trusts. Construction of "Wills. Implied Trusts, Perpetuities. Power. Precatory Trusts. Trustees. Trust Funds. Trust Variation. Vesting op Estates, etc. Active and express trust, 47. Active trusts, etc. — continued Active trusts in force, 2, 6. , i Essentials, , etc. — continued. , , . Clearly expressed on face, 8. Sec. 2075, never concerns active,. 65. ^ Essentials as at common, law, .67. Appointed trustee succeeding, 72. Objects, persons, definiteness, 67. Legal title vests in him, 72. All else discretion, 67. Bond of trustee:, ■> <■ Failure of attempt to create, 66. Essential to qaulify, 60. For want of certainty, 66. Executor as trustee, 59. i Property becomes residuum, 66. Until qualified, , 60. Or intestate, 66. Mandatory requirement, 58. > ■■ ; ■ Lawful before statute, 6. Construction: Limitation of time immaterial,- 68. None, unless uncertainty, 63. . Except as to perpetuities, 68, 71. Conveyed, to issue, if any, 43, 46. New York, distinguished, 7. Active and express trust* 47. - Parties, sui juris, may terminate, 70. Not vested in life tenant, 43. Will not prohibiting, 70. Trustee , act for unborn issue, . 48. Perpetual, as to converted fund, 69, Created by grantor, 101, 102. 71 # Divided, (at, decease,, 101. ' Not offend against Jaw, 69. Not testamentary, 101.:., 1142 PROBATE AND GENERAL LAW, CODIFIED Deed absolute in form, 1. Not show trust by parol, 1, 22. Deposit, trustee's own name, 30. Personally held for loss, 30. Though good faith exists, 30. Devise, subject to charge, 10, 61. Limitation statute, 61. Trust by devisee, 11. Questioned; distinguished, 12, 61. Devise with power; support, 29. Unaccomplished by trust, 29. Elements of a trust: Benefit of a person other than trustee, 76. Donee control for self, no trust, 74. If use is purely corporate, 78. Corporation holds equitable, 78. Merges in legal, if also held, 78. Legal, one person; equitable, another, 75. No person both at same time, 77. If so, equitable merges in legal, 77. See also Intention to create: Severance, legal from beneficial, 73. Evidence: - "Eliza" to mean "Louise", 32. Extrinsic; identify parties, 13, 32. Surrounding circumstances, 14. Executors as trustees: Estate title as trustees, 28. Trust duties imposed, 28. ' ' Trustees ' ', as extrs. & trustees, 59. Not qualifying as trustees, 58, 60. Vesting in devisee, extr. with power, 79. Implied trust: Fraudulent conveyance, 17. Obtained, Ostensible purpose, 17. Income : Assignable by beneficiary, 35. Of realty, several life estates, 85. Contravening statute, 86, 89, 90. Trust unnamed; no trust, 86, 87. Want of trustee", 87. Trust in rents and profits, 88. Clearly expressed and defined, 88. Intention to create: Certainty, element necessary, 96, 97. Intent must be clear, 94, 96. Omission to devise in trust, 87. Considered as to sec. 2081, 87. Eequisite certainty includes, 95. (1) Subject matter, 95. (2) Beneficiaries, 95. (3) Interests; nature, quantity, 95. (4) Manner of performance^ 95. Uncertainty of these is fatal, 96. Intention to create — continued Requisites, etc. — continued See also Elements of a trust. Technical language unnecessary, 25, 92. Vague, general, equivocal, 96. Want of a trustee, 87. Without the "trust", "trustee", 92. Not necessarily show intent, 93. Words "in trust", construed, 44. ' ' In trust ' ' construed, 44. i Include widow; popular sense, 44. Lands to trustee: Assigned in form to trustee, 51. Bond failure; no order for, 51." Mandatory requirement, 58. Qualify before acting, 60. Directions to sell the lands, 51. Deeds from beneficiaries, no title, 51, 55. Merely equitable right, 56. Equitable conversion ; personalty, 52. Might elect to take in specie, 57. Deceased child's heirs not, 57. Not by operation of law, 55. Vested in executors as trustees, 59. Executed except sale, 51. Failure to qualify as trustee, 59. . Lease for ninety-nine years, 98. Legal title in devises, 79. Power in trust, extr. as trustee, 79. Limitation statute: Devise with legacy charge, 61. Effect on various trusts, 50. Express and resulting out of, 34. Living person's estate by will, 33. Taking under the will, 33. His estate bound, 33. Private and public trust, 91. Distinction as to certainty, 91. Parol promise to bequeath, 15. County or circuit court, 15. Enforcible as a trust, 15. Method to follow, 16. Parol trust: Court not compel or restrain, 24. In lands, voidable only, 31. Election of trustee, 31. Inducement fraud, essential, 45. Life estate, etc., annexed to deed, 80. No active duties on trustee, 84. Legal title vested in benef ., 84. Trustee might execute, 82. Might execute writing of, 82. Verified answer, available, 83. Unenforcible at inception, 80. , TRUSTS 1143 Parol trust — continued Life estate, etc. — continued Voidable only, by grantor 's heir, 81. May be executed, 23, 24. Not absolute nullity, 24. Passive trusts abolished, 2. Example of passive trust, 5. Hold and convey to others, 37. As if no trustee named, 39. Contingent estates also, 41. Life estates therein valid, 40. Like will provisions, 42. Passive or dry trust, 39. Title in beneficiaries, 39. Valid as in direct, 39. Various, contingencies, 37. Not a passive trust, 65. Not resulting by implication, 3. Those credited in writing, 3. Title in cestui que trust, 4, 5, 9, 39, 84. Trustee acquires no title, 4, 5. Trustee no active duties, 5, 84. Perpetuity statute: Contravening statute, 85, 89. Limited to realty, 21. Trust term exceed period, 90. Personal trust construed, 26. Personalty trust unlimited, 53. May be by parol, 99. Personalty trust, etc. — continued Not affected by statute, 36, 99. Statutory or otherwise, 53. Purchase by trustee: All classes of trustees, 19. Bid off by trustee 's attorney, ,20. Trust benefit of rq-sale, 20. Not of trust property, 18. Realty and personalty: sale, 27. One trust agreement, 27. Trustee, with powers, 101. Deed in escrow, 101. Not testamentary, 101. Terminated; condition occurs, 100. Trustee act for unborn issue, 48. Trust to sell lands, 49. General trust failed, 49. Uses and trusts statute: Limited to realty, 21. Not applicable to personalty, 36, 99. Want of trustee, immaterial, 87. But trust omission considered, 87. Widow for self and children, 62. All claimed trust invalid, 62. Others, widow and children, 62. - Widow claimed whole title, 62. Brewery and operation, 62. Decree, of trust for all, valid, 62, 72. Fullest discretionary powers, 64. 1. In case of a deed made absolute, without any mistake or fraud, "mere refusal to perform the trust, is not such a fraud as will justify the admission of parol evidence, and the enforcement of the trust", alleged and considered by the court to have undoubtedly been intended. See also Parol. —Rasdall v.< Rasdall, 9 W. 379, 393. 2. "By the statute 'Of Uses and Trusts' passive trusts are abolished, but active trusts are not". 3. "By passive trusts, as here used, we mean those which are ex- pressed or created by the words of some deed or other instrument in writing, and not those trusts arising or resulting by implication of law, which, in most instances, still continue to exist, and, which may, in the broadest sense, be denominated passive ' '. 4. ' ' Every express passive trust is abolished, and the deed or instru- ment by which it is created, or attempted to be, takes effect as a con- veyance directly to the cestui que trust, in whom the legal title vests, and the trustee acquires no estate or'interest whatsoever". 5. "A conveyance of land from A to B, to the use of or in trust for C, the trustee having no active duties to perform, constitutes a passive trust, and the trustee takes no title, but the same vests immediately and absolutely in the cestui que trust to the extent of the estate granted". 6. "Active trusts, of Whatever kind, provided they be such as were 1144 PEOBATE AND GENERAL LAW, CODIFIED lawful before the passage of the statute, are not abolished by it, nor intended to be." 7. "Subdivision five" of section 2081 as to active trusts, "is not found in the statute of New York". "The addition of that subdivision to the four which precede it, and which are found in the statute of New York, establishes, as it was undoubtedly intended to do, a policy in this state upon the subject of active trusts entirely different from that which prevails in the state of New York. It shows very clearly that no active trusts were intended to be affected or abolished by any pro- vision of the statute". 8. "Upon full consideration, we are satisfied that such is the true construction of the statute ' ', that any active trust ' ' may still be created when, in the language of subdivision five, 'it is fully expressed and clearly denned upon the face of the instrument creating it'." Dixon, C. J. —Goodrich v. MilvxiiiUe, 24 W. 422, 429. 9. The title vests immediately in the cestui que trust, where a con- veyance is made to the trustee of a passive trust. See Homestead. — Biehl v. Bingenhehncr, 28 W. 84, 88. 10. A devise of land, followed by the clause "And it is also understood that the said E. P. (devisee) is to pay or cause to be paid unto my said son 0. P., within one year after my decease, the sum of $200.", "creates a charge upon the lands devised". 11. Such.lancls are held in trust by the devisee to the extent of the portion unpaid, "and interest thereon from the time the same because payable by the terms of the will". The circuit court has jurisdiction to "enforce the execution of such trust". 12. (Distinguished in Merton v. O'Brien, 117 W. post, the court say- ing that the question whether this "was an express trust" under sec. 2081, "was not presented or decided in the case; nor was" "the statute of limitations involved". But, defendant was "a trustee toward plain- tiff, by reason of the fact that he was executor of the will".) —Powers v. Poivers, 28 W. 659, 661. 13. In a conveyance containing a passive trust to II "in trust for the use and benefit of , heirs at law of C, deceased, for whom the said H is legal guardian, party of the second part", the identity of the parties was properly shown by extrinsic evidence. 14. "It is well settled that any description of parties in an instru- ment of this kind is sufficient, from which the court and jury, aided by a knowledge of surrounding facts and circumstances, are able to say with reasonable certainty that some and what particular persons were intended". — Sydnor v. Palmer, 29 W. 226, 241. 15.^ An oral promise by a residuary legatee to pay certain sums as bequests', the testator, therefore, not making a valid change in his will, TRUSTS 1145 is enforcible as a trust either by the county court or a court of equity. See Jurisdiction. Prater for Relief. 16. The court does not determine the method, but indicates that it might "be in the form of an independent order or decree of the county court", or it might ''take the form of a judgment modifying tp: that extent the previous order admitting the written will to probate", say- ing "it is probable that a judgment in either form will be sufficient, though the latter may be thought,- in some respects, preferable','. —Brook v. Chappell, 34 W. 405, 411. 17. Where an administrator's deed to A. was invalid, and B. fraudu- lently obtained a conveyance from the heir, ostensibly for "ratifying and confirming, the title of" A.'s grantee, held "that conveyances thus obtained are not declared void, but are held to pass the legal lestate to the grantee, but subject, in equity, to a trust in favor of him for whom the grantor professed to act, co-extensive with his profession or representation in that behalf". - '■• / —Lombard v. Cowham, 34 W. 486, 491. 18. The rule as to sales by trustees to themselves is "now very gen- erally settled in this country, as it, is well stated by Walworth, Ch., in Torrey v. Bank of Orleans, 9 Paige, 649: /'It is a settled principle of equity, that no person who is placed in a situation of trust or confidence to the , subject of the sale, can be a purchaser of the property on his own account'. / 19. The principle is not confined to a particular class of persons, such as guardians, trustees or solicitors, but is a rule of universal applica- tion to all persons coming within its principles, which is, that no party can be permitted to purchase an interest, where he has a duty to perform that is inconsistent with the character of purchaser'." 20. Where a trust property was offered for sale by an executor and directors ..of a eharitable trust, and their attorney- was directed to and did bid off the property for $20,000.00, and within ten months he resold for $40,000.00, such executor and directors sharing in the profits, it was held that the trust must receive the benefits of the advance and resale. — In re Taylor Orphan Asylum., 36 W. 534, 552. 21. The statutes of perpetuity and uses and trusts, "are expressly limited to realty". See Charitable Trusts. —Dodge v. Williams, 46 W. 70, 95. 22. Under our statutes and the decisions, including the rule in Rasdall Admr. v. Rasdall, 9 W. supra, ' ' as- applied to alleged parol trusts ", a deed absolute on its face cannot be shown by parol to be a trust. ' —Pavey v. Am. Ins. Co., 56 W.221,,224. 1146 PROBATE AND GENERAL LAW, CODIFIED 23. Though the statute (sec. 2302) provides that an express* trust in lands must be in writing, "this does not prevent the execution by the trustee of a parol trust". 24. "Such a trust is not an absolute nullity. It is simply void at the election of the trustee. He may execute it or not, as he chooses, and the courts will not interfere to compel him to execute it or to restrain him from so doing". (Followed in Schumacher v. Draeger, 137 W. post). —Kwrr v. Washburn, 56 W. 303, 307. 25. "It is not necessary that technical language should be used to create a trust". See also Precatory Trusts. — Knox, Extr. v. Knox, 59 W. 172, 178. 26. Personal trust construed, as to insane widow. See Widow. — Van Steenwyck v. Washburn, 59 W. 483. 27. A conveyance of realty and a bill of sale of personalty, construed as one trust agreement for support and for heirs, and as void as to creditors. See Bond for Maintenance. — Severin v. Rueckerick, 62 W. 1, 5. 28. The title to estate, is held to be in executors, as trustees, where such duties are imposed on them, without being named as such, pending the life of the trust, such title being not otherwise given in the will. See Vesting op Estates. —Scott v. West, 63 W. 529, 558. 29. As to a devise for life with power of sale for necessary support, and remainder over of balance to others. It is indicated and in effect determined that under the statutes (sees. 2107, 2108, 2112) "that such a power is unaccompanied by any trust", and that the "power is abso- lute". See Life Estate. — Larsen v. Johnson, 78 W. 300, 309. 30. Certificate of deposit of ward's funds in name of guardian per- sonally, on failure of the bank, is the loss of a guardian personally, though good faith exists. The rule stated. See Guardian and Ward. —Booth v. Wilkinson, 78 W., 652, 654. 31. A parol trust in lands is not "absolutely void, but, at most, void- able at the election of the" trustee. See Parol. —Begole v. Hazzard, 81 W., 274, 277. 32. Where a "declaration of trust has not left the identity of the beneficiaries in doubt" and the testimony indicates a deliberate error as to the name of beneficiary, a construction of "Eliza, (daughter)" to mean "Louise", a granddaughter, "may certainly be indulged to prevent disinheritance. Baker v. Est. of McLeod, 79 W., 543, 544 (Cited under Vesting of Estates)." —Hannig v. Mueller, 82 W., 235, 242. TRUSTS 1147 33. Under a testatrix's will disposing also of her husband's estate, his elecl£ng to take under the will, binds also his estate to be placed in trust for the purposes of the will. See Construction op Wills. — Allen v. Boomer, 82 W., 364, 372. 34. As to express and resulting trusts being out of 'the statutes of limitation. See Implied Trusts. —Fawcett v. Fawcett, 85 W. 332, 337. 35. Trust income from personalty is held assignable by the cestui que trust, and, 36. The statutes of uses and trusts, are not applicable to personalty. See Trust Variation. —Lamberton v. Pereles, 87 "W. 449, 459. 37. A deed "purported to convey to" trustees "the legaltitle of the property in question in trust to hold such title and thereafter make conveyance thereof upon various contingencies as directed in the body of the instrument. 38. The supposed trust was a passive or dry trust only, — a mere holding of the naked legal title. It was not an express trust, as defined" by sec. 2081, and hence was one abolished by sec. 2071. 39. ' ' So far, however, as the grants in the deed would have been valid if they had been made direct to the beneficiaries, so far the law executes the attempted trusts, and passes legal estates to the beneficiaries ' of the same quality and duration, and subject to the same conditions' as their beneficial interests. Sees. 2073, 2075. The deed is therefore to be treated as if no trustees were named, and as if the grants were in direct terms to the beneficiaries". 40. "The trust deed reserved a life estate in C. (the grantor) ; then granted a life estate to V., his daughter, who was then, and 1 is now,' in being; and then attempted to grant a contingent remainder to the heirs of the body of V..yet to be born or such of them as she should appoint by will". 41. "The contingent remainder in V.'s children", (and of course the life estates), is held valid as not suspending "the absolute power of alienation", "for a longer period than during the continuance of two lives in being at the creation of the estate, sec. 2039. ' ' 42. The grantor having provided in his will, for like provision if the deed be for any reason ineffective, the result is assumed apparently (without reference thereto) to be of like effect. See also Perpetuities. —Tyson v. Tyson, 96 W. 59, 66-8. 43. A devise to trustees, to be conveyed 'to the issue, if any, of the ■cestui que trust, on his decease, is held not to have vested in the latter, and to be a valid trust. See Construction op Wills. — Webler v. Webber, 108 W.,' 626, 629. 1148 PROBATE AND GENERAL LAW, CODIFIED 44. The technical words "in trust'?, in a will construed,' in part, in : the popular ' sense, to include the widow, technically excluded. See Construction qf Wills. —Bavies v. Doxies, 109 W., 129, 132. 45. "The statutory prohibition against creation or proof of an express trust in land by parol is not to be evaded except in a clear case of the inducement of a conveyance omitting to declare such a trust by such conduct and promises and under such circumstances of trust and confi- dence that fraud in so doing is apparent. ( Cases supra) ' '. —Dunccm v. Dunccm, 111 W., 75, 77. 46. A trust deed to a trustee "to have and retain the possession of the lands during the whole continuance of the trust", for the benefit of the grantor's wife and son, to be conveyed to the issue of the latter, if any, and if none, then as the grantor might direct by will or other- wise as set forth in detail, 47. And where the "trustee was expressly given the 'power of actual disposition', and also the power of actual 'management' and control", created "in a double sense an active trust" under sec. 2074, and "an 'express trust', within the meaning of the statute (subd. 1-3, 5, sec. 2081)." (Cases) 48. In an action construing such trust, and a judgment directing the trustee to quit-claim the lands to such son, prior to the birth of issue, the , trustee ' ' represented, and had the legal right to represent, such issue of F. (son) as might subsequently be born, including the plain- tiffs", and they "are bound by the judgment". (Many cases). —Perkins v. Burlington L. & I. Co., 112 W., 509, 519. 49. A trust to sell lands, where the general trust failed under sec. 2081, upheld. See Power. —McLenegan v. Yeiser, 115 W. 304, 309. 5Q. As to the running of and effect of the statute. of limitations against various kinds of trusts. See Limitations of Actions. —Buttles v. DeBaun, 116 Wis. 323, 326. 51. Where a will devised lands to ' ' executors and trustees', with direc- tions to" apply the income to the support of M. "during his life, and upon his death to sell the same" "and to pay the proceeds thereof" to five children equally, or to the heirs of any child that might die, and, the land was "in form assigned to the trustees", no order being "made requiring a bond", and they executed the trust except as to the sale, and plaintiff obtained quit claim deeds of the land from such children, part before and part after the decease of M., it is held:/ 52. "That, by the doctrine of, equitable conversion", the will "in effect bequeathed personal property only", and "the trust is plainly not within the statute of uses and trusts": TRUSTS 1149 53. "There is no law, statutory or otherwise, limiting the power of -a person to create a trust in personal property", 54. And "since the will must be considered as bequeathing personal .property, if for no other reason, there can be no question but that the title to such property and the whole thereof vested in fact as well as in form inithe executors and trustees. 55. There was no way by which it could' pass from- them to the bene- ficiaries under the will or their assigns by mere , operation of law,; and no way by which' they could .convey the title or, any part thereof", and ' ' their deeds did not vest title in appellant. : , 56. : At best such deeds only give appellant an equitable, right to stand for his grantors in the distribution of the trust fund under the terms of the will. 2 Jarman, Wills, 163". 57. While all the beneficiaries "were entitled by election to take the property in specie, to take land instead of money", yet such election was ineffective as to a part, the heirs of a deceased child being entitled to such share attempted to be conveyed. ' 58. While under sec. 4025, there is a " mandatory requirement . of a bond", the amount thereof as to the sureties : only being discre- tionary, and no bond having been gjven or ordered, 59. Yet, "the title, to , the property in question vested in, the" trustees "as executors and trustees^ it having been directly willed ito them, regardless of their failure to qualify as trustees",' though, 60. "Obviously, (therefore) before a testamentary trustee has any ■active . duties to perform, he must accept the trust in ^he manner -con- templated by the statute, namely, by giving a bond as required by section 4025". —McWilliamis v. Gaugh, 116 W. 576, 580. 61. "A mere devisee of land, subject, to the payment of a, legacy charged thereon, is" not "a trustee for the legatee, of such a nature .that the statute of limitations will not run in his favor," as in the .case "of an express trust." See Limitation op Actions. . . • . . —Mertm v. O'Brien, 117 W-, 437, 444. 62. A: will gave to, the widow "in trust for herself and my children, all of my estates, both real and personal, with full power to continue my business if for the best interest of )my estate," There- was no further provision. "Such property consisted mainly of a brewery in operation". All the parties claimed "that the will did not, create a valid trust", but the widow plaintiff claimed "she took the whole title", and the children that the full title vested "in the mother and children in equal proportions", field, that "a decree establishing .'the, legal title" in the "trustee for the appellant (widow) and the children of the testator for the purpose mentioned in his will," is valid;; ,;,63. That no "judical -construction is permissible", as "the true rule is that construction never begins until uncertainty of sense is pretty clearly apparent. In this case there is no such uncertainty '?. ;■ , 1150 PROBATE AND GENERAL LAW, CODIFIED 64. There is but "the one theory* that the testator intended to vest the legal title to the property in the trustee with the fullest discre- tionary authority over the same, as regards how best to devote it to the 'purpose of the trust", the wife and children to "share equally in the benefits of the trust". 65. It is not a passive trust "to operate and vest the title to the property involved in the intended beneficiary discharged of the trust", under sec. 2075, and this statute ' ' never concerns active trusts, whether they are valid or invalid. 66. If an attempt is made by will to create such a trust (active), which fails for want of certainty, the property, instead of vesting in the beneficiary as if the trust were passive in character, will fall into the residuum of the estate and go under the residuary clause of the will, if there be one, otherwise it will go as intestate property. (Cita- tions)." , 67. "The statute, subd. 5, sec. 2081, is substantially an enactment of the comon law as regards when equity will enforce a trust", which "is when the object or purpose and the person are pointed out with fullness and definiteness. All else may properly be left to administra- tive discretion. (Cases)". 68. "The mere fact that no limitation to the existence of the trust is stated is not an element of indefiniteness under the statute since the power of alienation is not unduly suspended. The trustee is enpowered to sell the property at any time". 69. "If the trust were necessarily perpetual as to the converted fund, that would not offend against any law. Becker v. Chester, 115 W. 90 (See Perpetuities). 70. Again, since the will contains no prohibition, expressed or im- plied, against terminating the trust, and all parties that can be inter- ested are in esse, when all are sui juris they can by uniting cause its termination, subject to the restraints contained in sec. 2089 and 2091. (Citations). 71. The mere fact that the trust is in terms perpetual does not affect- it. That feature is not objectionable so long as it does not offend against the prohibition against suspending the absolute power of aliena- tion. Perry Trusts, 23". ■ '72. Held, an active valid trust. The widow having resigned as trustee, and W. having been duly appointed and qualified, "that operated, by the force of the statute, to vest in him the legal title to the trust property." —Holmes v. Walter, 118 W. 409, 413. 73. "The most important" "elements of a trust" "is a severance of the legal title with power of control over the property from the beneficial interest therein. 74. If the donee of the legal title is to control and manage the property entirely for his own benefit, there is no trust. 1 Perry Trusts (4th Ed.) 13. ! TRUSTS H51 ,75. 'A trust exists where the legal interest is in one person and the equitable interest in another'. Wallace v. Wainwright, 87 Pa. St. 263. 76. The trusts authorized by our statute must be 'for the beneficial interest of any person or persons' — of course, other than the trustee. Subd. 5, sec, 2081. Mr. Perry says, ubi supra; 77. 'But no person can be both trustee and cestui que trust at the same time, for no person can sue a subpoena against himself. Therefore, if an equitable estate and a legal estate meet in the same person, the trust or confidence is extinguished, for the equitable estate merges in the legal estate'." 78. "If the use limited is distinctly and purely a corporate one, the corporation itself holds the beneficial or equitable right, which therefore merges in the legal title, if that also be held by it". (Cases). See also Charitable Trusts. —Dwiforth v. Oshkosh, 119 W. 262, 276. 79. As to "vesting of the legal title" in devisees, "with a power in trust in the executor as trustee", the trustee appointed on request in will. See Vesting of Estates, etc. Precatory Trusts. — Wolbert v. Beard, 128 W. 3'91, 396. 80. "A parol trust" providing fpr a life estate in M. and remainder in 0., "attempted to be annexed" "to the absolute deed of conveyance" of realty, "was probably void and unenforcible in its inception", under sees. 2302, and 2304. 81. "But that did not render the deed absolutely void, nor voidable at the suit of an heir at law of the grantor, who had no other interest in the land and was not a beneficiary under the invalid trust, 82. Because, notwithstanding the trust was not evidenced in writing < as required by law, the trustee D., might observe its terms and execute the trust itself or execute a declaration of, trust in writing thereafter. Karr v. Washburn, 56 W. supra. 83. When D. verified and filed her, answer", acknowledging and offering to carry out the, trust, "she executed in writing a declaration of trust binding upon her and available to the beneficiaries of that trust. (Many cases) ". , , 84. There being "no active duties" "imposed upon the trustee", under "sec. 2073 as interpreted in Sullivan v. Bruhling, 66 W. 472", its "effect" ''was to vest an absolute legal estate in M. for life, with remainder to O. " See also Escrow. ^ — Schumacher v. Draeger, 137 W. 618, 624. 85. A devise of 'the income to be derived from the rentals of realty, for life to the father, and upon nis decease to sisters and brother, and the survivor of them, for life, and after the death of the last survivor the realty i to be sold and monies derived therefrom divided' among their children and others, — there being "no devise in trust of the" realty or 1152 PROBATE AND GENERAL LAW, CODIFIED income, "except as might be inferred from" the "appointment of an executrix" with the ordinary compounding power, — is held: 86. Not to create a trust, and "void as contravening the law against perpetuities ' ', — by each of the three courts. Sees. 2038, 2039. 87. "While it is true that equity will not suffer a trust to lapse for want of a trustee, still the omission of any devise in trust is to be con- sidered with reference to sec. 2081. Uses and trusts, except as authorized and modified in ch. 96, stats., are abolished." 88. While "a trust may be created to receive rents and profits of land and apply them to the use of any person" during life or other manner, as "prescribed in ch. 95, Stats.", when "fully expressed and clearly defined", yet there is "nothing in the will" bringing any trust within these provisions, and the devise "is rather governed by sec. 2060", as 'to future estates in land'. 89. "Even by considering that" the devise "creates a trust", it "could not foe saved", because of "the rule of sees. 2089 and 2091", as to alienation. 90. While "ordinarily a trust does not offend against the" perpetuity statutes where there is "a power of sale", yet where there is none, as here, and ' ' the trust term exceeds the period permitted by statute ' ', it is "unlawful". —Will of Adelmcm, 138 W. 120', 123. 91. Asjto distinction between a private and a public trust, as to cer- tainty,, etc. See Charitable Trusts. — Will of Kavanaugh, 143 W. 90, 98. 92. " No particular form of words is necessary to create a trust. A trust may be created without the use of the words 'trust' or 'trustee', 93. And, on the other hand, the use of the words 'trust' or 'trustee' do not necessarily show an intention to create or declare a trust. 94. The intention to create a trust must be clear, and the writing em- ployed must be reasonably certain in its material terms ; 95. 'And this requisite of certainty includes the subject matter or property embraced within the trust, the beneficiaries or persons in whdsi? behalf it is created, the nature and quantity of interests which they are to have, and the manner in which the trust is to be performed. 96. If the language is so vague, general, or equivocal that any of these necessary elements of the trust is left in real uncertainty, then the trust must fail.' 3. Pomeroy, Eq. Jur. (3d Ed.) sec. 1009. 97. The general rule has often been stated by this and other courts as shown by the numerous cases cited. Holmes v. Walter, 118 W. supra ; (many cases) ". See also Life Estates. —Otjen v. FroKbach, 148 W. 301, 308. 98. As to trustees having implied power to lease for ninety-nine years, with court's advice. See Trust Variation. — Upham v. Planhinton, 152 W., 275, 291. TRUST VARIATION 1153 99. "Trusts in personalty may be created by parol .and are not affected by the statute of uses and trusts. (Citations)'". See also Husband and Wife. —Friedrich v. Huth, 155 W. 196, 200. 100. Where a trust was , created, the income to be paid to a daughter- in-law, and 'upon the death, or in the event of' her 'remarriage', 'to pay, assign, transfer and set over unto' 'grand children the entire fund and estate ',— such trust was terminated upon such remarriage, though the grandchildren were still minors. — Will of Rose, 156 W. 570, 572. 101. An instrument of transfer in trust of the grantor's personalty and realty, with deed in escrow to be delivered at her decease, the income to be paid to the grantor, during life, and at her decease the corpus to be distributed as provided, and the acceptance by joint execution, of the trustees, is held a valid active trust, not testamentary, and entitling the trustees to the property and bank deposits of the grantor before and after her decease. Sec. 2081, : subd. 5. 102. "It is well established that a trust may be created by an instru- ment in writing subscribed by the creators of the trust, if the intention is clear to create a trust for the purposes authorized in the law", —Pietsch v. M. & I. Bank, 164 W. 368, 372. TRUST TERMINATION. See Trust Variation. TRUST VARIATION. See also Descent and Distribution. Power. Probate of Wills. Trusts. Future Contingent Estates. Assignment of income, 5. Not rents and profits in lands, 29. Valid as to personalty, 5. New York statute, contra, 6. No statutory restriction, 5. Will not prohibiting, 5. Beneficiary convey interest, 32. Trustee must recognize, 32. Not contrary to will, 32. Change scheme of will, 8. No power in the court, 8. No power in remainderman, 8. Zimmerman — 73 Change scheme, etc. — continued, : No power in trustee, 8. Not vary in any manner, 8. Conduct of executors: Controlled by court appointing, 24. Equity on debtor personally, 25. Construction rules: Beneficiaries not to change, 44. Unless express or implied, intent, 44. Not control intent, 43. Only aid to get intent, 43. Valid trust created, 44. Must be carried out, 44. 1154 PROBATE AND GENERAL LAW, CODIFIED Court direct application, 1 . 56-.. Against debtor personally, 25, 57. Of beneficial interest, 25, 56. Devisees can sell remainder, 29. Duty to enforce rent rights, 30. Imposed upon trustees, 30. : Not dispose of rents and profits, 29. Not hold trust futile, 29. . Future contingent interests, 47. Ninety -nine year lease, 48. Equity authority sustained, 48. Statutory proceeding dismissed, 48. Statute, for absence of scheme, ,47. Not violation of trust, 47. Intent to be carried out, 44. Beneficiaries not to change, 44. When so expressed or implied, 44. May authorize equivalent, 45. Distribution same course, 45. To effect intention, 45. Trust not allowed lost, 46. Equity bar remainderman, 46, i . Change title to entirety, 46. Not extinguish equivalent rights, 46. ..'.■:■ i •! i Mortgage; land not owned; 52. Corpus treated as personalty, 54. Court may compel payment, 55. From beneficial interest, 55. May assign income, 54. Land trust for mortgagor,- 52. \ Income and possible corpus, 52. Not lien on the land, 53. Ninety-nine year leases, 48. Authorized; no express right, 49. Implied power to lease, 49. No express sale restriction, 49. Implied sale restriction, 49. Lease power not restricted, trust time, 51. Unless, express or implication, 51. Not made in trust violation, 50. Reasonable trust execution, 50. Principal applied to repairs, 7. Remainderman agrees, 7. Will provides otherwise; invalid, 7. Property control: Beneficiaries not to change, 44. Unless express or implied, 44. Duty of courts to uphold, 1, 27. Before or after death, 1. Entitled, careful protection, 27. Without scrutiny of reason, 27. Intention must be carried out, 44. Make will and have enforced,, 41. Cannot violate intent, 42. Courts should enforce, 42. Property control — continued Preserving specific realty, 28. Not enquire why, 29. Sale of trust realty: Grantors wishes, to go in specie, 13. Best interests of infants, 16. Not warrant disturbance, 16. To educate, maintain, J6. Carried as far as possible, 13. Interests as creator provided, 15. Not as appears' to court, 15. Prevent entire failure, 14. Intervene only to preserve, 14. Remainders, may be sold, 13. Judgment acts on whole title, 10, 12. Bind all, present or future, 12." In being and not in being, 10. Parties in being, represent all, 11. For jurisdiction purposes, 11. Prevent threatened destruction, 9. Sold only to preserve title, 17. Only equity power, 17. Pay taxes, liens, etc., 18. Present benefit, reversed, 18. Subsequent further sale, 23. Stipulation -as to will: Disallow; disregarded, 38. Distribute differently, 40. Held inoperative, 40. Stipulation to admit will, 20. After extended contest, 20. Conveyance of interest, 20. Gift of parties, 22. Not to thwart will, 22. Trust termination per will, 21. Judgment condition, 19. Bona fide carrying ou.t, 20. Substitute parties view, 39. Extended rules stated, 39. Terminate trust: Beneficiaries consenting, 31. Court refuse to interfere, 31. Single duty remaining, 30. Legatees and trustees willing, 33. Intent trustee should execute, 34, 35. Duration many years, 35. No power to frustrate, 34. Though legacy vested, 34. No authority or discretion, 33 . May terminate, proper case, 36; All duties performed, 37. All parties before court, 36. Before expiration limited, 36. No express of implied prohibition, 36. Parties agree ; trustee resists, 2. Whether county court can? 2, 4. • TRUST VARIATION 1155 Terminate .trust — continued Terminate trust— continued Parties agree— continued Proceedings, if court has pq^er, 4. Whether, trustee resisting? 3. (1) Cestui que trust, a party, i. ' Will limit not reached, 2. (2) Court must investigate, 4. Perpetual trust; parties agree, 26, 36. (3) Must require security, 4. Will not prohibiting; 26, 36. Cestui que trust's protection, 4..' 1. "It is as much the duty of courts to. uphold and enforce" a tes- tator's "will after death, as to uphold and enforce his contracts made during life." See also Wills. — Bodge v. Williams, 46 W.< 70, 90. 2. "Where the county and circuit courts terminated a testamentary trust, for the support during life of a beneficiary,! before her decease, and on her release under seal of all claim thereon, presented with the * petition of the remaindermen, the trustee appointed by the testatrix only resisting, the supreme court declines to determine whether "the county court, in the exercise of, fits- equitable powers, may lawfully terminate", such trust; or, , 3. Whether "it may do so without the consent and against the protest of the trustee". >, , 4. If the county court can ' ' terminate the trust on proper proceed- ings," (1) the cestui que trust must be "a party tq the proceeding"; (2) the eourt must "investigate the circumstances under which the release was executed", and her "capacity" and the "judicious" quality of the cestui que trust in her act; and (3) ".require security for the pro- tection of" such beneficiary "should she hereafter : .become indigent". (This ease appears to be not cited, until in Will of Rice,, 150., post, where the tendency not to terminate, and limitations; are, approvingly discussed, on p. 452). ' — Sumner v. Newton, Trustee, 64 W. 210, 215. 5. Where a cestui; que trust made a written assignment to his wife of his income of personal property held in trust, it was held, in his suit subsequently brought to compel, the trustees to pay such income to; him, "that the income arising from the personal property so held, in trust was assignable", and that such assignment was valid, "the founder of the trust" having imposed no condition, or restriction and. there ; being "no restraints upon such alienation, statutory or otherwise". 6. In New York, from which our statute of Uses and Trusts is taken, the decisions are to the contrary, but there "the statutes respecting real estate'' are "also applicable to personal property", while "in this state we have no statute making the chapter on uses and trusts, or. any part of it, applicable to personal property". (Approvingly cited in Mangan v. Shea, 158 W. post.) ' —Lamiberton v. Pereles, 87 W. 449, 459. 7. An agreement,, of a city as remainderman in. a trust estate, to apply principal for repairs and improvements "was ultra vires and totally so", and invalid, the will, providing that 1 repairs should come from the income. 8. "There is no power in the trustees to change the plain scheme of 1156 PROBATE AND GENERAL LAW, CODIFIED the will, no power in the court to authorize any such change, and no power in the city of W. to vary it in any manner ' '. See also Power. — Mulberger v. Beurhaus, 102 W. 1, 9. 9. In an action in equity for the sale in part of trust realty, created by a trust deed, including vested and contingent interests, "upon the ground of a necessity so to do in order to prevent a threatened destruc- tion of such estates by tax and other liens thereon", infants in being properly represented by guardian ad litem, and such sale being in con- travention of the trust, it is said ; 10. "As to whether the judgment acts on the whole title, it is con- sidered that the owners in being of the real estate, for all purposes of litigation affecting the jurisdiction of the court to deal with the whole title, stand not only for themselves, but for all that may come after them. 11. The rule is universal, and, generally speaking, persons in being having only contingent interests are deemed to be represented by the owners of the precedent estate of inheritance, for the purposes of litiga- tion. 12. The owner of the life estate here, and the owners of the estate in remainder, all being parties, the judgment of the court and its execution will act upon the whole title to the property, binding all persons having Vested or contingent interests therein, present or future". (Many cita- tions) . ■ 13. While the wishes of the grantor, to have the remainder to those in being, or possibly to be bornj go "to them in specie", "must be carried out so far as possible", yet, "it is not doubted but that the powers of a court of equity are ample to prevent the destruction of the estate in remainder under the circumstances of this case. 14. Rather than that the scheme of the creator of such estate shall entirely fail by reason of some circumstance not foreseen by him and provided for, the court may intervene but only for the purpose of pre- serving, and so far as necessary to preserve, the property. If it cannot he preserved in the form intended, it may be preserved in its equivalent. 15. It is not the interests of those in remainder, as such interests may appear to the court, that are to be considered and conserved, but their interests as the creator of the estate in remainder provided for them. 16. So the fact, if it be a fact, that it would be for the best interests of the infant owners of the estate in remainder to allow them an imme- diate benefit therefrom to maintain and educate them, does not warrant a disturbance of the scheme intended to postpone such benefit to a later time. 17. It is the necessity that something shall be done to guard against the danger that the title in the remainder may be prevented from reaching the defendants in possession at all, which calls into activity the equity powers of the court". 18. So held, and part of the trust property authorized to be sold, to pay necessary. taxes, liens, and mortgages, for conservation of the estate, TRUST VARIATION 1157 but the provision of the circuit court enabling infant remaindermen to obtaiD a present benefit therefrom, is reversed.'' (Approvingly cited in Upham v. Plankinton, 152 W. post.). See also Power. —Ruggles v. Tyson, 104 "W. 500, 506. 19. A will giving a son R. the income only of estate given to trustees, and in case of a judgment against R., "obtained for the purpose" of reaching such income, the payment thereof shall cease, and the trust to terminate and in default of issue the principal thereof to go to the widow and daughter of S. and M. — 20. "Was admitted to probate by stipulation of all parties except the executors, after an extended contest, a part of which stipulation con- sisted in a conveyance to R. by" S. and M. of whatever residuum might come to them of such principal; 21. Before final settlement, a small judgment was so obtained by default against R., (found to be bona fide, with no exception to such finding) , and final judgment was entered, finding such trust termina- tion without issue, and a valid assignment of such trust residuum to R., and the principal thereof directed to be paid to him of such share thus devised to S. and M. 22. On appeal by one of two trustees, such judgment was sustained ; the gift of S. and M. to R. " can no more be said to thwart the will than if the widow had chosen to give him, by assignment, a part of her" own property, or they had "presented R. with their checks for the amount". '••<■" ' In re Luscombe's Will, 109 W., 186, 198. • 23. A decree having been entered for the sale of trust property in contravention of the trust, to- preserve the estate, pursuant to Ruggles v. Tyson, 104 "W., supra, the proceeds being insufficient, — the trustee on subsequent application "to meet the changed situation," and based on authorization of such application contained in the original decree "at the foot of the decree", was empowered to sell additional realty for the purposes deemed necessary. Held proper. — Buggies v. Tyson, 114 W., 301, 303. 24. "While "the conduct of executors" Upon a creditors' bill 'pro- ceeding cannot "be. controlled by a court other than that from which they derive their authority", 25. "A court of equity, acting upon the debtor personally", can compel him to effectually transfer his beneficial interest in trust property.. See Creditors' Actions. —Williams v. Smith, 117 W. 142, 144. 26. The will containing no prohibition, the beneficiaries of a perpetual trust can terminate it, subject to sees. 2089-91. See Trusts. —Holmes v. Walter, 118 W., 409, 413. ■ , 27. "The rights of an owner of property to control its use and man- agement during his life and after his death, within certain limitations 1158 PROBATE AND GENERAL LAW, CODIFIED imposed by law, are among the most saered, and entitled to the most careful protection at the hands of courts, without scrutiny as to the quality of his reasons in making such choice. 28. Among these rights is that of preserving specific real estate as such within a limited time after his death". (Approvingly quoted in Upham v. Plankinton, 152 W. post). -v 29. "Why he did so we need not inquire. It was his right, and it is the duty of courts to enforce that choice, unless, indeed, it is so completely thwarted by other rules of law as to accomplish no possible purpose". While the children, being vested of the realty in remainder (Patton v. Ludington, 103 W. 629; See Vesting of Estates), "doubt- less" "can sell and transfer their vested rights to the remainder", yet, as under sec. 2089, they cannot dispose of their "rents and profits" in the lands, the court cannot hold "the continuance of the trust futile", 30. As "there remains (but) the single act of enforcing performance by the lessees (for a long term) of their duties to pay rent and taxes", as to "mark it as an active trust", "imposed upon the trustees". Sees. 2074, 2081, subd. 3. 31. And, though all the "beneficiaries consenting to and requesting such termination, and the trustee" agreeing to its advantages, "but leaving it to the court to say whether he could lawfully consent to such termination", the court refused "to interfere". —Patton v. Patrick, 123 W. 218, 221. 32. A beneficiary, sui juris, with rights vested, "may deal with and convey" his interest, and the trustees "be required to" recognize it, if "not contrary to the terms of the trust". See also Trustees. —MoEeiffue v. C. & -N. W. R. Co., 130 W. 543, 546. 33. In an action brought to terminate trusts, though "the legatees and trustees seem willing that the trust be terminated and provision made by the court for the disposition of the property held in trust", — it is held that there is "no authority or discretion" so to do, because it "would be a clear disregard of the intention of the testator". 34. Whether or not the "residuary legacy" vested at the testator's death, "if it appears from the will that the intention of the testator was that the trustee, should execute the trust founded, courts have no power to frustrate that intention and devise a different method of execu- tion". (Many cases). 35. "Aside from the fact that the duration of the trust by the terms of the will extends many years into the future, the execution of it, under the terms and contingencies named, is especially imposed upon the trustee". 36. "It is true that in a proper case a trust may be terminated before the expiration of the time limited in the instrument creating it when all parties are before the court, and there is no prohibition, express or implied, against such termination (Holmes v. Walter, 118 W. supra), TRUST VARIATION , 1159 37. Or -when the trustees have performed all their duties and dis- tributed the fund as directed (2 Perry, Trusts, 5th Ed. 920). But we have no such ease here". —Bussell v: Wright, 133, W. 445, 450. 38. The stipulation of parties to disallow a will, held inoperative and properly disregarded. See Probate of Wills. — Will of Dwrdis, 135 W., 457, 461. 39. As to lack of power and jurisdiction to substitute the agreement of the parties for the will of decedent. Cases, supra, approvingly dis- cussed. See Probate of Wills. — Will of Bice, 150 W. 401. 40. Stipulation for distribution of residue after widow's election, dif- ferent than the will provided, held inoperative. See Descent and Dis- tribution. —Will of Reynolds, 151 W., 375, 384. 41. "Every person 6f mature years and sound mind has a right to make his own will, comformable to statutory regulations designed to safeguard that right and not violating any written or any unwritten law, and to have that will carried out according to his intent. Will of Rice, 150 W. supra". 42. Courts may and should discover and enforce the valid intent of the testator. "Neither courts nor beneficiaries nor legislatures are com- petent to violate such intent and substitute their discretion for that of the testator. Will of Rice, supra; Bussell v. Wright, 133 W. supra". 43. "Established unwritten and written rules for construction" "can only legitimately aid when aid is necessary to understand the purpose intended to be embodied." "They cannot control or vary the intent or properly prevent its execution. (Cases). 44. If a person creates a valid trust in property by a will or otherwise, and, expressly, or by necessary implication, provides that his creation shall not be changed by beneficiaries, trustees, or otherwise, it must be • carried out according to the purpose of the creator. Holmes v. Walter, 118 W. supra; (other eases, supra)". 45. To effectuate intention of a trust, where "the necessities thereof clearly require it", "equity power may" "authorize trust property" "to be administered as an equivalent and take the same course as to distribution and enjoyment. Ruggles v. Tyson, 104 W. supra; Bloor v. Smith, 112 W. 340 (See Sale of Realty) ; In re Kingston's Est., 130 W: 560 (See Future Contingent Estates)." 46. And in such case, and that the trust "shall not be allowed to be lost," — "equity may bar remaindermen in esse and possibility" and "change. the title, absolutely, to the entirety", where clearly necessary, "but cannot extinguish the rights of person in the equivalent", (Cases, supra). 47. But, "it is considered that" ch, 300, L. 1899, sees. 3519c et seq., "was designed to deal with real-estate interests in the absence, not in 1160 PROBATE AND GENERAL LAW, CODIFIED violation, of an existing scheme under a valid trust", and "it cannot be regarded as affording authority for disturbing the trust created" here. 48. In proceedings under such statutes, and a parallel equity action, each authorizing the trustees to execute ninety-nine year leases, the order under such proceeding was reversed and the proceeding dismissed, while the judgment in equity, including future contingent interests, was sustained. 49. Where, in case of future contingent interests, "broad power of 'control', was 'committed' to the trustees", and "there was no restric- tion upon leasing", and "there was no express restriction upon power to sell, though there was such by implication", and no express but "implied power, to lease", — it is held, "the trustees, by permission of the court, may make" ninety-nine year leases of realty. 50. "They cannot be made in violation of the trust but can be made in the reasonable execution of it". 51. ' ' The power to lease is not restricted to the creation of leaseholds, terminable with the trust power, unless so restricted, expressly or by necessary implication, from the language of the trust. (Many citations) ". —Upham v. Plankimton, 152 W. 275, 283. 52. On a complaint in equity, on demurrer, where M. on a loan ob- tained on a mortgage from S. on his interest in realty of a deceased sister K., which the parties supposed S. owned, and where later it ap- peared K. left a will giving the property to trustees for investment, the income and in case of 'great need' part of the corpus, to be paid to S., — it is held: 53. That M. "secured no rights under the mortgage by way of a lien on the real estate owned by S.", and "obviously the mortgage cannot be made the basis of any relief". 54.' That "the corpus of the trust will be treated as one of personalty", and "that a cestui que trust, entitled to the absolute payment of the income of personal property held in trust for him, may sell and transfer his right to such income unless prevented from doing so by the conditions of the trust. (Cases, supra) ". 55. That if the needs of S. at the time of the loan, in equity justified its makingj "then the court can compel a transfer of so much of the income as will be required to pay the debt". 56. "The rights of courts to direct the application of the beneficial interest of a cestui que trust in proper cases is recognized in sec. 2091". 57. That this action in equity "to award parties adequate and com- plete relief", and being primarily "against the debtor personally", is in harmony with Williams v. Smith, 117 W. supra. Lamberton v. Pereles, 87 W. supra; (other cases). —Mcmgcm v. Shea, 158 W. 619, 623. UNCONSTITUTIONAL. See .Constitution. UNDUE INFLUENCE UNDERTAKING. See Appeal. Bonds. Sureties. 1161 UNDUE INFLUENCE. Burden of Proof: All wrong that burden shifts, 114. Cannot be presumed, 18. Circumstances merely suggest fraud, 21, 61, 62, 68, 85. Burden on party profiting, 22. Protect weak, unsuspicious, 23. Fiduciary trust relation, 21, 25. Presumption of injustice, 24, 52. Eule, later, disapproved, 25, 84, 85. Contestant has burden, 1, 17. Fiduciary relation exists, 21, 36. Burden of proof shifting, 23, 25, 34, 37, 39, 41, 84. All wrong that it shifts, 114. Belation not exist, 52. Strictly no shifting of burden, 84. Kule authoritatively stated, 84. Deed to third wife, 38. Nephew; niece; care; not exist, 33, 34. Finally fully restated, 83, 84. Inference, raising fraud, 85. Proof necessary, 85. , Non-related, partner, fiduciary, 94. Not required to show, voluntary, 94, 95. On party charging, first to last, 105, 115. blear and satisfactory, 105. Not mere preponderance, 106. On party who alleges, 18, 40, 96, 105. After will. once proven, 18. From first to last, 105. Presumption of undue influence, 24, 25, 52, 60, 85, 98. Aged, aged susceptible, 97. Trust confidence; suspicion, 97. Opportunity, disposition, 97. Unless negatived, direct proof, 98. Also opportunity; disposition, 62, 85. Cared for testatrix fifteen years, 64. Conveyance not inequitable, 65. Distinguishable from others, 64. Confidential relations, 69. Not defeat proper gift, 69. Not because child favored, 60. "Secrecy" and "opportunity", 68. Burden of proof — continued Presumption, etc. — continued Subject susceptible, 60. ' Old age; mental weakness, 61. Proponent not affirmatively, 16. True rule; party alleging, 40, 83, 105. .Circumstances showjing fraud, 41, 83. Then burden; other party, 41, 42, 84. Definition of, 3, 4, 8. Antithesis of right influence, 108. Destroy free agency, 3, 75, 77, 78, 102, 108. Exerted mala fide, 4, 108. Moral coercion; ulterior purpose, 108. Beasonable influence, 4. Eastated; solicitation; coercion, 72, . 73, 74, 78, 102. Subtle speeies of fraud, 29, 30. Evidence: See also Burden of Proof. Absence of proof, 6, 19, 86. Beneficiary, clerks, ; present, 86. No claims; no direct influence,, 86. Circumstances suggest fraud, 21. Circumstantial almost wholly, 29. Clear and satisfactory, 105^ 110. Not mere preponderance, 105. Confidence abused, 14. Confidential partner, legacy, 94. Need not show voluntary, 95. Confidential relation occupied, 27. Conduct of favored one, 30. Previous relation; circumstances, 31. Testator's susceptibilities, 30. Conjecture or suspicion, 2. Contestant furnisn evidence, 17. After will once proved, 18. Apparently free agent, 18. Declarations of testator, 58, 91. Not evidence of the facts, 91, 111. Admitted on mentality, 91. On success in subverting, 59. Before or after will, 58. Condition of mind, 59. Wanted beneficiary, have estate, 112. Worked. and helped, him, 112. Assumed admissible, 113. BJarmony with will, 113, 1162 PROBATE AND GENERAL LAW, CODIFIED Evidence — continued Declarations, etc. — continued "Was importuned", improper, 111. "Disposition" of favored child, 90. As to exerting influence, 90. Facts must be shown, 19. Husband aided; gave directions, 20. Must be affirmatively shown, 20. Four elements to be shown, 117, 119. (1) Testator subject to, 117. (2) Opportunity to exercise, 117. (3) Disposition to exercise, 117. (4) Eesult appears affected, 117. Clear and satisfactory evidence, 118. Clear establishment of three, 120. Especially with natural will, 121. Meager on disposition, 124. And slight evidence of fourth, 124. Ill feeling and opportunity, 76. Not mere anticipation, 76. Ninety years; less proof, 13. Not to prove undue influence, 58, 59, 111. Clearly mere hearsay, 58. Paying large fees; gifts, 63. Not evidence of, 63. Proof to raise fraud inference, 85. Actual; not opportunity, 85. Satisfactory proof of facts, 2. Scrivener falsifying certificate, 81. Evidence of little weight, 82. "Secrecy" and "opportunity", 68. Applied to active efforts, 68. Strong evidence, will unnatural, 122. Less proof where natural, 121, 123. Transaction; absence of party, 92. Kebuts coercion, duress, 92. Two facts to be proven, 57. Exertion of undue influence, 57. Success in subverting, 57. Undue influence not presumed, 18. Weakened mentality, 35. Change of habit, 35. Found not to exist: Believer in spiritualism, 11. Beneficiary, clerks, servants, present, 86. No claims thereon; no direct influ- ence, 86. Cared for testatrix fifteen years, 64. Conveyance of whole estate, 64. No presumption; distinguishable, 64. Children not helpful, 77. Gives to providing niece, 77. Confidential partner, legacy, 94. Need not show voluntary, 95. Found not to exist — continued Consideration for support, 114. Burden does not shift, 114. Declarations in harmony, 113. Reasons for making, 112. / Directions in absence of party, 92. Eebut coercion, duress, 92. Eighty-six, vigorous, manager, 99. Changed after daughter's protest, 100. New will, all to daughter, 100. Without compulsion, 101. Exceptionally self-willed, 53. Secret; beneficiary's home, 53. Feeble old woman to companion, 80. Parties who charge must prove, 83. Still have the burden, 83, 84. Great influence with testator, 7. Husband procured drawing, 20. Gave directions; present, 20. Ill feeling and opportunity, 76. Son-in-law for support, 75. Living with- favored child, 89. Unequal; not presumption, 89. Nephew and niece; cared for her, 33. Not beneficiary; burden, 34. Old, weak, with son alone, 116. Peculiar, eccentric, suspicious, 46. Second wife's supervision; estranged, 103. Reversing both lower courts, 103. Sick wife; natural affection, 56. Weakened mentally, physically, 70. Contents, by witnesses only, 71. Found to exist: Brother, liquor, controlling, 26, 32. Confidential relation ; suspicion, 27. Deed, aged, susceptible person, 97. Trust confidence; suspicion, 97. Opportunity and disposition, 97. Presumption of fraud, 98. Unless negatived; direct proof, 98. Deed to trusted adopted son, 21. . Circumstances suggest it, 21. Not affirmatively proved, 21. Feeble, helpless, liquor ; to son, 45. Intoxicated son's acts, 15. Meager proof on disposition, 124. Trial court, not clearly erroneous, 124. Old, weak, dictated by wife, 43, 44. Unrepresented weak sister, 5. Making of will : Different than statute, 47. Fraud burden on contestant, 51. Not most just, reasonable, 87. But his own judgment, 88. Not obliged to give reason, 49. UNDUE INFLUENCE 1163 Making of will— continued Product of own volition, 67. No equity to thwart, 67. Unequally; no presumption, 89. Living with favored child, 89. Proper influence: Beneficiary; scrivener, 6. Had great influence, 7. Convinced by persuasion, 93. If it be by his own will, 93. Mere importunity; husband, 10. Absence of duress, fraud, etc., 10. Motives of affection, gratitude, 73, 109. Not moral coercion, 8. Protest as not as promised, 100. Different will so made, 101. Freely and voluntarily, 101. Second wife, of year, impaired, 103, 109. Sick wife; natural affection, 56. Left will, years unchanged, 56. Solicitation or argument, 8, 73. Weak person's best interest, 12. Wife or child; fair, 4. Yield to attachment, 8. Rules fully stated, 8, 9. Antithesis of right influence, 108. Burden of proof finally restated, 83, 84. "All wrong" that burden shift's, 114. Confidential relation exists, 28. Presumptions, 22, 25, 44, 69. Defense after will proved, 17, 18. Dispose of property as he chooses, 65, 104. Rules, etc. — continued Pour elements must be shown, 117, 119. (1) Testator subject to, 117. (2) Opportunity to exercise, 117. (3) Disposition to exercise, 117. (4) Result appears affected by, 117. Clear and satisfactory evidence, 118. Clear establishment of three, 120. , And slight evidence of fourth, 120. Especially with natural will, 121. Impair free agency, 75, 78, 79, 102. Not suspicion or assumption, 76. Not most just reasonable, 87. But different if left alone, 88. Proper and improper, 8, 9. Restated; solicitation; coercion, 72, 78, 74. "Seerecy" and "opportunity", 68. Applied to active efforts, 68. Strong evidence, will unnatural, 122. Less proof where natural, 121,. 123. Subtle species of fraud, 29, 106. Unequally; no presumption, 89. Living with favored child, 89. Wrong which sounds in fraud, 106. Establish; clear and satisfactory, 106. Secrecy: badge of fraud, 54. No application; circumstances, 54. Only with susceptible party, 55. And disposition to exercise, 55. "Secrecy" and "opportunity", 68. Applied to active efforts, 68. Transfer of realty, 5. Consideration of support, 114. Burden does not shift, 114. Mere importunity, 10. Un/epresented weak sister, 5. 1. "The burden of showing that undue influence, within the meaning of the law, was exercised over the testator when he executed the will, is upon the contestant. 2. It cannot be presumed from conjecture or suspicion, without rea- sonable and satisfactory proof of facts which establish the contrivance and undue influence". 3. The authorities ' ' generally agree in saying that the influence must be such as in some degree to destroy the free agency of the testator, and constrain him to do what is really against his will, so as to virtually render the testamentary act the will of another rather than his own. 4. But the influence of a wife or child, if exerted in a. fair and reason- able manner, is not unlawful; .and in order to be 'undue,', it must be exerted mala fide, to produce a result which the party, as a reasonable ■ person, was bound to know was unreasonable and unjust". — In re Jackman Will, 26 W..104, 111. 1164 PROBATE AND GENERAL LAW, CODIFIED 5. Ex parte negotiations and transfer, without consideration, in an attorney's office, where the weaker (grantor) sister was unrepre- sented by attorney, and acted without her husband's knowledge, in transferring parental estate to a sister, after a decision in court against such grantee, was held ' ' equivalent to undue influence — adequate ground for avoiding a conveyance so executed. ' ' See also Attorney and Client. —Watkins v. Brant, 46 W. 419, 429. 6. "There was not a particle of proof that either" the beneficiary or the scrivener, his special friend, "ever dictated, counseled, advised or directly influenced the testator to make such a disposition of his prop- erty ; but even if they had done so^ unless such influence in some degree destroyed the free agency of the testator, it would not be undue in- fluence". 7. "The testator was old and feeble, but his testamentary capacity was abundantly proved". The principal beneficiary, a son, "had for a long time lived with the testator, and had much to do with the management of his property, and had great influence with him". 8. A citation from the Jaekman will case, 26 W. supra, is quoted with approval: "It is, not enough that the testator is dissuaded by solicita- tions or argument from disposing of his property as he had previously intended; he may yield to persuasions of affection or attachment, and allow their sway to be exerted over his mind; and in neither of these cases would the law regard the influence as undue. 9. To amount to this, it must be equivalent to moral coercion ; it must constrain the subject to do what is against his will, but which, from fear, jthe desire of peace, or some other feeling, he is unable to resist; and when , this is so. the act which is the result of that influence is vitiated.", Gilbert v.' Gilbert, 22 Ala., 529. — Will of Patrick Carroll, 50 W. 437, 442. 10. "Mere importunity of the husband", to save him from possible but not yet threatened prosecution, is held, not "sufficient to avoid the conveyance of the wife procured by such importunity, in the absence of duress, (not idle), coercion, oppression or fraud". ' ^Lefebvre v. Dutruit, 51 W. 326, 333. 11. Undue influence was found by the circuit court and a jury on the facts, in the case of an eccentric believer in spiritualism, and re- versed by the appellate court. See Testamentary Capacity. —Will of J. B. Smith, 52 W. 543, 551. 12. "It is not unlawful to influence a weakminded person to do that which is just and for the best good of such person. Such influence is not undue, — in other words, is not fraudulent, — and does not neces- sarily vitiate the act produced by it". —Daileij, by Gdn. v. Kastell, 56 W. 444, 453. UNDUE INFLUENCE 1165 13. A less degree of proof is required as to a person ninety years old. See Testamentary Capacity. i 14. "It is a familiar doctrine that a court of equity scans with great jealousy a transaction where there are any grounds for holding that influence has been acquired and abused, or where confidence has been reposed and betrayed. Smith v. Kay, 7 H. L. Cas. 750, 759". —Smith v. Smith, 60 W. 329, 330. 15. A will was set aside because of undue influence exercised by a son by acts of brutality for a series of years on a weak woman, and the son being intoxicated at such times of violence, "is no palliation what- ever." — Will of Farnsworth, 62 W. 474, 478. 16. "The proponent of a will is not called upon to show affirmatively that there was no undue influence used to procure the making of the will.. 17. Undue influence is a defense, and the evidence of it must regularly come from the contestant. Tyler v. Gardiner, 35 N. Y, 559 ' ', and other cases including Boyse v. Rossborough, 6 H. L. .Cas. 2, in which "Thei Lord Chancellor says : ' 18. ' One point, however, is beyond dispute, and that is that when once it has been proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent; the burden of proving that it was executed under undue influence is on the party who alleges it. Undue influence cannot be presumed. ' " (Ap- provingly quoted in MoMaster v. Scriven, 85 W. post). n' 19. It "was clearly an erroneous conclusion" to 1 hold "that undue influence was established, without any proof of the fact", because "there were some circumstances attending the execution of the will of Mrs; A. which are consistent with the hypothesis of undue influence ". 20. Where the husband procured the drawing of the instrument, gave' the directions to the scrivener who wrote the will at his office, and afterward went with the will and the husband to the house and room where the wife was ill, and the will being short and giving the bulk of the property to the husband, with a slight provision to an absent minor grandson, her only heir, and the scrivener having read the will to her so that she understood and assented to it, ' ' and having executed it, after hearing it so read, it ought to stand as her will, unless it can be shown affirmatively that undue influence was used_ by the 'husband to bring about its execution". — Armstrong v. Armstrong, 63 W. 162, 169: 21. "Where an aged woman, a few days before her death, resulting from a painful accident, conveyed the bulk of her property to one who stood in the relation to her of an adopted son whom she trusted, thus disinheriting her daughter and grandchildren^ with whom she was friendly, and where the circumstances suggest an effort to keep those most interested in ignorance of the proposed conveyance, and the court 1166 PROBATE AND GENERAL LAW, CODIFIED says, "we do not say that fraud and undue influence were proved affirmatively, but only that the circumstances suggest them,'' — 22. It is held that the burden of proof "to show such fraud or undue influence" is not upon the plaintiff heirs, but that "the law casts upon the grantee the burden of showing that the conveyances are untainted with undue influence or other fraud, but were the intelligent and delib- erate act of the grantor. 23. This rule is to protect the weak and unsuspicious from the cunning and fraud of those who stand in confidential relations to them, and has its foundation in good morals and sound public policy. 24. The grantee has failed to satisfy the requirements of the rule, and the presumption of injustice, fraud, and wrong stands against the conveyances, which he must remove before the court is authorized to say that they are valid. This he has not done, and for that reason, also, his deeds must be cancelled and held for naught. 25. The rule of law above stated is quite elementary, and has often been applied in similar cases both here and in England." Cases cited by counsel, and Worrall v. Bailey, 3 Est. Rep. 263; Greenfield's Est., 14 Pa. St., 489; Miskey's Appeal, 3 Pennypacker, 409; Turner v. Collins, L. R. 7 Ch. App., 329 ; Gaudy v. Macauley, L. R. 31 Ch. Div. 1. (But see also, Winn v. Itzel, 125 W. post, where the rule here given is explained and in effect disapproved); : — Davis v. Dean, 66 W. 100, 110. 26. "It is well settled that where the party to be benefited by the will has a controlling influence or agency, or is particularly active in pro- curing the execution of the will, it is universally regarded as a very suspicious circumstance, requiring the fullest explanation. (Citations). 27. Especially is this so where such active agent occupies a confi- dential relation to such testator; as in the ease of attorney and client, physician and patient, priest and parishioner, or other relationship cal- culated to inspire confidence and trust in such testator". 28. "This, court has held that 'undue influence, in such case, is such an influence that the instrument is not properly an expression of the will of the testator in regard to this disposition of his property, but rather an expression of the will of another person.' In re Jackman, 26 W. supra. 29. Manifestly, it is a subtle species of fraud, whereby mastery is obtained over the mind of the victim by insidious approaches, seductive artifices, or other species of circumvention. From, the very nature of such influence, the evidence, generally, is wholly or almost wholly circumstantial. 30. The questions to be considered are not confined to the conduct of the favored legatee and his friends, constituting the alleged undue in- fluence, but extend to the susceptibility of the testator to the peculiar influences brought to bear upon him, and his capacity to discover and resist such approaches and importunities. 31. The previous relations, friendships, and intercourse between the UNDUE INFLUENCE 1167 ,testator and the several parties concerned, and the physical and mental conditions of the testator, therefore, as well as the circumstances under which the will was executed, are important to be considered". 32. In this case the testator was about seventy, had been an habitual drunkard for many years,, was under guardianship, lived with his brother, the beneficiary, a saloonkeeper, who kept him supplied with liquor freely, had been drinking the day the will was signed, and the verdict of the jury finding undue influence was sustained. See also Testamentary Capacity. — Will of Slinger, 72 W. 22, 26. 33. The quotations of In re Jackman Will, , 26 W., and Armstrong v. Armstrong, 63 W., supra., are approvingly set forth; Though the residuary beneficiaries, a nephew and niece get one-half, and "would have taken no part of the estate", and lived with and took care of the testatrix during her last illness, she having died, a week after the making of the will, — there is, nothing whatever to show that they have exercised any influence or originated or knew the pro- visions of the will. until after its execution, but the nephew employed the scrivener for the testatrix ; held, — 34. That they did, not stand "in any fiduciary relation >to the testatrix, within the meaning of the rule invoked by the appellants, which would impose upon them the burden of showing an absence; of fraud or undue influence." See also Testamentary Capacity. ; —McMaster v. Striven, 85 W. 162, 170. 35. As to weakened, mentality, shown in change of habits of , living, and deceased's declarations, affecting undue influence. See Testa- mentary Capacity. — Bryant v. Pierce, 95 W. 331, 339. 36. "Where a voluntary conveyance is made by an aged person of his entire property, without consideration, to one who stands in a position of trust and confidence to him, under circumstances of secrecy, 37. ;The burden of proof is upon the grantee to show that the con- veyance was untainted with undue influence or fraud ". Davis v. Dean, 66 W. supra; Cole v. Getzinger, 96 W. 559. , ; —Doyle . v, Welch, 100 W. 24, , 27. .t; 38, A deed by the father of , all his realty to his third wife, through her son-in-law as trustee, is, on the suit of the heirs at law, set aside on the ground that "while their standing in court may not be as meritorious as creditors' would have been, yet they are entitled to protection against the undue influence and secret fraud proved..", , ni , 39. Following cases supra, and others cited including Sears v. Shafer, 6 N. , Y. 268, and Woodbury v. Woodbury,. 141 Mass. .329, it is held in effect, that the gelations, between the deceased and such third wife, who was not the mother of the children, heirs at law, on the evidence, were those of trust and confidence, and "such as to raise the suspicion or 1168 PROBATE. AND GENERAL LAW, CODIFIED presumption that the deeds were procured by undue influence ' ', and in effect placing upon the widow the burden of removing such presump- tion. —Disdh v. Timm, 101 W. 179, 189. 40. "The true rule is", in fraud and undue influence, that "the burden of proof is on the party alleging fraud to establish it by a preponderance of evidence to the satisfaction of the jury ; 41. But proof of circumstances which, in law, satisfactorily suggest fraud does the work, and then the burden of proof is upon the party against whom fraud is alleged to meet the prima facie case thus made by affirmatively and satisfactorily explaining such circumstances and establishing his innocence. 42. The facts from which fraud and undue influence are prima facie inferable are mentioned in numerous eases in this court, the following being among the most significant; Smith v. Smith, 60 W. supra; Davis v. Dean, 66 W. supra; Cole v. Getzinger, 96 "W. supra; Disch v. Timm, 101 W. supra; Doyle v. Welch, 100 W. supra". —Small v. Champeny, 102 W. 61, 68. , 43. Where the testator, a week before his decease, gave a large estate to his second wife, cutting off his children and grand children who were in other states, and he being old and weak mentally and easily influenced, the will being procured by 'his wife, it was held "either procured by undue influence", or by "bold fraud". Disch v. Timm, 101 W. supra. 44. (In Pox v. Martin, 104 W. post, it is said of this case that "the testator was seventy-three years of age, so weak mentally as to be easily influenced by his wife, who practically dictated the will".) • —Baker v. Baker, 102 W. 226, 232. 45. On the evidence, the mother having simply a power to devise her husband 's estate, and she being old, feeble and helpless from two strokes of paralysis, "at times became intoxicated", and at times was "sensible and at others incoherent", — cut off most of her children who had no knowledge of the will, made a son with whom she lived, a principal beneficiary, who "evidently had the disposition and the opportunity" "to unduly influence her, and there being relations of trust and confi- dence, — her will was disallowed. Disch v. Timm, 101 W. supra. In re Derse's Will, 103 W. 108, 112. 46. A will of a testator, seventy-six years old, who was peculiar, eccentric, illiterate, ignorant, suspicious, but temperate, of vigorous mind, whose heirs were full and half brothers and sisters, and nephews and nieces and who gave all of a large estate to a half brother, was held to have testamentary capacity and not to have been unduly influenced either by the beneficiary, or by a friend who aided in the matter of the will. UNDUE INFLUENCE 1169 47. ' ' The only object in making a will is to make a different disposition of property than that provided' by statute. ! ' i > 48. The right to dispose of property by will includes the right- to disinherit brothers and sisters and nephews and nieces. 49. The testator was not obliged to give any reason or explanation why he favored one relative over the dthers. 50. If the will is the result of his free and voluntary act, then no relative has any ground for complaint. 51. If it was procured by fraud or undue influence^ then the burden of proving it was on the contestants. " 52. No relatives being in the city or state at the time, this is not. a case where "the circumstances are such as to raise a presumption of fraud or undue influence. Disch v. Timm, 101 W. supra. ' ' —Cutler v. Cutter, 103 W. 258, 264. 53. A will allowed by the county court, and disallowed by a jury in the circuit court, on the facts, the testator being middle aged, ''a man who did not have confidential relations with anyone", who "was excep- tionally a self-willed man'', disposed of his property to brothers: and sisters as well as to his children, but "exactly in accordance with the bent of the testator 's mind, ' ' though made at the home of the brother-in- law, a principal beneficiary, and in secret, — is held not to have been procured by undue influence. 54. "The adjudications referring to the making of a will in secret as a badge of fraud have no application to situations where the circum-r stances are not such as. to suggest need of protection for the testator in order that he may express his will instead of the will of some other person. ' ' 55. It is only in cases where there is a subject "susceptible to undue influence", and "a disposition on the part of the favored person to exercise" it, that "the secrecy of the transaction was said to be a significant circumstance, evidentiary of fraud". Davis v. Dean, 66 W. supra; Disch v. Timm, 101 W. supra. — Fox v. Martin, 104 "W. 581, 592. 56. Where the objection is that "the testator's wife, who was in her last sickness when the will was drawn, and whoi died three days after- wards, had a controlling influence in making the will; : and in fact dictated the terms of the will,";'unequally distributing the property among the children of both, the will is nevertheless upheld, as "pre- sumptively, she was controlled by motives of natural affection and pro- priety, as well as himself," and he having had three years thereafter in which to change it, if he desired. Cutler v. Cutler,' 103 W. supra. •r f — Deck v. Deck, -106 W. 470, 472. 57. "Upon such an issue there are two facts to be proven by the con- testant: first, that the undue influence was in faet exerted; second, that it was successful in subverting' and controlling the will of (the testator. Zimmerman — 74 1170 PROBATE AND GENERAL LAW, CODIFIED 58. Upon the latter question evidence of the statements of the testator, made either before the will was made or after, and which tend to throw light on the condition of his mind, is admissible, upon very familiar principles ; but as to the first question, the evidence of such statements is plainly merely hearsay. 59. Upon this "question it is said in 2 Jones, Ev. § 493: Such declara- tions 'are admissible only for the purpose of proving the condition of the testator. They afford no substantive proof of fraud, duress or undue influence, and are admissible for no such purpose'." (Quoted and followed in Duncan v. Metcalf, 154 W. post.) 60. "It is not the law that, whenever a deed or a will is made by a party in favor of one child to 1 the prejudice of others, a presumption of fraud arises from that fact alone, even if the parent be living with such favored child". 61. "In order to raise the presumption of undue influence, which throws the burden of proof on the beneficiary, there must be shown a subject unquestionably susceptible to undue influence, either as the result of old 'age, mental weakness, or; both; 62. Also some clear evidence of opportunity, and a disposition on the part of the beneficiary, to exercise such influence". (Cases supra.) (Approvingly quoted in Boardman v. Lorentzen, 155 W. post). —Loennecher's Will, 112 "W., 461, 465. 63. Paying large fees to attorney, physician, and large sums to heirs and relatives, by the donee is held no evidence of undue influence exer- cised in the making of a large gift. See Gift. -^Citizen's L. & T. Co. v. Holmes, 116 W., 220, 234. 64. "Where the widow, a few days before her death, conveyed all her estate to a daughter, who had cared for her about fifteen years, "at the request of the other children", the case is held distinguished "from both the facts and the reasons which controlled those (supra) in which a ' presumption of undue influence has been indulged as to take it fully out of their doctrine", "and, in the absence of any direct proof of such conduct on her part", the conveyance is upheld. 65. On the facts, the conveyance was held not "inequitable", and "as to the law", "the highest equity which courts can consider is the right of an individual to dispose of his property as he chooses. 66. The hope of inheritance which any child may indulge during a parent's life bears no comparison in the eye of the law with the right of disposal by the parent. 67. If" the mother, "of her free will, gave this property to the de- fendant, there is no duty of equity or conscience to thwart that will. The only question for the court, therefore, was whether the deed was the product of her own volition." 68. "While "the word 'opportunity' ''and "the word 'secrecy' ", have been given prominence in upholding the rule of presumption of undue UNDUE INFLUENCE 1171 influence, yet they have "usually been applied to active efforts 'by the beneficiary" to further such conditions. ' , 69. "The rule of presumption of undue influence and resulting in- validity of conveyances to those in confidential relations, which, within proper limitations, is salutary, will become a reproach to the law if it serve to defeat free and intentional gifts under such circumstances as ordinarily accompany them". • — Vance v. Davis, 118 W., 548, 1 550. 70. On the facts, in the case of an old man, in a "weakened mental and physical condition ' ' it is held that he had testamentary capacity, and that "so long as the will truly expresses the wishes of the testator, there is no ground for claiming that it was procured by undue in- fluence". 71. "The mere fact that knowledge of the contents of the will was confined to the subscribing witnesses is no evidence that it was procured by undue influence. Vance v. Davis, 118 W. supra". 72. "This court has defined 'undue influence in such a case' as 'such an influence that the instrument is not properly an expression of the will of the testator in regard to the disposition of his property, but rather an expression of the will of another person' (In re Jackman's Will, 26 W. supra) ; 73. And that 'motives of natural affection and gratitude on the parti of the testator', even when accompanied by 'solicitations or arguments which appeal to such motives, do not constitute undue influence' (Id.; Deck v. Deck, 106 W. supra) . 74. 'To establish undue influence sufficient to invalidate a will, it must be shown that the will of the testator w&s coerced into doing that which he did not desire to do'. Wingrove v. Wingrove, L. R: 11, Prob. DiV. 81". See also Lost Will. —Gatvitt v. Moulton, 119 W. 35, ,46. 75. Following cases, supra, quoting from In re Jackman's Will,' 26, W- supra, and saying that "influence or importunity, to be undue,; must, destroy, or at least impair or prevent, free agency", the circuit court judgment setting aside a mortgage and deed to a son-in-law,'; for sup-, port, etc., on the ground of undue influence, is, 76. Reversed, on the facets, where the "findings seem to rest.largely upon the. existence of ill feeling and opportunity to stimulate ill ; feel-, ing". "Judgments in such cases, are not to rest upon mere suspicion and assumption". — Drmkwme v. Gruelle, 120 W. '62.8, 633. 77. On the facts, where the testator's children were not parentally helpful, were cut off in the will, which gave the property to • ' a niece and her husband who had provided care and support, a finding of no undue influence was sustained. 78. "To sustain this contention it must appear that there was such 1 influence exercised as to amount to moral coercion, 79. Which resulted in destroying the testator's free will and inde- 1172 PROBATE AND GENERAL LAW, CODIFIED pendent action, and constrained him. to act against his will and inde- pendent wishes in disposing of hisi property." (Approvingly quoted in Duncan v. Metcalf, 154 W. post.) — Anderson v. Laugen, 122 W. 57, 63. 80. The. plaintiff, an attorney, a trustee under a trust deed, "brought this action in his own proper person for. the purpose of obtaining direc- tion from the court as to his duties as trustee", especially as to a subse- quent deed "purporting to have been executed by an old and feeble woman (the grantor of the trust deed) upon her death bed, in favor of her companion", — found to be "obtained by fraud and undue in- fluence", by the trial court,' and reversed on the facts; 81. The scrivener, being attorney and notary, "was allowed to falsify his own official certificate" that the grantor A. "acknowledged that she signed, sealed, and delivered the instrument as her free and, volun- tary act", — and while "such testimony is thoroughly impeached by the witness himself," and the act is "a 'gross impropriety', as was said by the court in Loughney v. Loughney, 87 W. 92 (See Testamentary Capacity) ", 82. Yet "we are inclined to hold the testimony admissible", but it "should receive little weight" "in the absence of a satisfactory explana- tion by. the officer showing that the official certificate, though mistaken, was honestly made at the time". Wilson v. South, P. C. 70 111. 46. 83. Discussing Davis v. Dean, 66 W., and other cases, supra, it is held that "parties who charge fraud (and undue influence) must prove fraud", and that "they still have the burden of proof"; that it is "incumbent on the plaintiff (charging. fraud) to make his case in the first instance, and to present all the proof which he had and wished to present tending to prove fraud, whether circumstantial or direct ' '. 84. (So approvingly explained in Ball v. Boston, 153 W. post, — which is said in Murphy v. Est. of Skinner, 160 W. 554, see Promissory .Notes, ETC.^to express "the view of the entire court", and that "the words 'burden of proof as used in the prior cases are not of course to be under- stood in their exact technical sense". "Strictly there is no shifting of this burden but when the plaintiff has made his proofs (complete) and the defendant takes up the' case, he takes . the laboring oar and has for the time being the 'burden' of the controversy, and in this sense the words are used".). 85. As to what proof "will raise the inference of fraud", Loen- necker's Will, 112 W. supra b is approvingly quoted, "it being understood that 'opportunity' here does not mean mere physical propinquity or possibility of personal contact, but the fact that interviews, or personal transactions between the parties were had, followed by the accomplish- ment of the desired end, as suggested in Vance v. Davis, 118 W. supra". , —Winn v. ltzel, 125 W. 19, 25-33. UNDUE INFLUENCE , 1173; 86. Where a will "was made when no one was present beside the principal beneficiary and his clerks and servants, who had no claim upon his. bounty", no direct influence being shown, it was, on the facts, , upheld. 87. "The question is not what would have been theoretically the most just or reasonable way for him to have bequeathed his property, ' 88. But was 'he * impelled' * by undue influence to make a dif- ferent will from what he would have made if he had been left, entirely alone and free to aet according to. his own judgment and discretion'? Underbill Wills, 180." See also Testamentary Capacity. — Field v. Pickard, 126 W. 229; 236. 89. Where, on .the evidence, the decedent in his lifetime, "freely and voluntarily" disposed of his property, it was held: "The fact, that the property of decedent was not equally divided by ihim among all his children raises no presumption of undue influence, even though the parent was living with the favored child. Loennecker's Will, 112 supra". , .,, i ,■ , 90. Evidence as to "the general disposition of" a child "with regard to being active, exerting influence ' ', was held immaterial. —Meyer v. Arends, 126 W. 603, 609. 91. "Of course, the declarations made by deceased tending to show the exertion of undue influence over him 1 by his wife (the proponent) were inadmissible and, even being admitted (upon mental condition), were not evidence of the facts so narrated by him. Loennecker's Will; 112 W. supra". ,•: ■ ■.,.,: .; , ,,., , 92. "The transactions attending the giving of directions to the scrivener and the execution of the will, all in the absence of: the pro- ponent, strongly refute that coercion and duress destroying the testator's freedom of will and action which is necessary to support the charge of iundue influence. 93. It is not sufficient that testator's reason is convinced by per- suasion or argument, if it be by his own will and intention that he carries that decision into effect. In re Jackman, 26 W. ; Deck v. Deck, 106 W. supra. ' ' —Mueller v. Pew, 127 W.; 288, 291. 94. Where a nonrelated beneficiary T., was a partner of •the decedent, "and asisuch a confidential relation existed between them'', and "he had in his possession the several certificates of deposit and the bank- book of the deceased", and visited him "frequently during his sickness, and did so four times on the day of his death" when the will was drawn, and was there at the time, at the decedent's request, and there is no showing as to why he was given a legacy, or "that the act of making: a will was considered or spoken of by them, or that T. had an opportunity before his last visit", it is held, — 95. That T. "was not called upon, to explain and show that this 1174 PROBATE AND GENERAL LAW, CODIFIED bequest was a free and voluntary one by the deceased", to relieve him from a finding of undue influence. Small v. Champ'eny, 102 W. supra. See also Testamentary Capacity. —Will of Muellenschlader,' 128 W. 364, 373. 96. As to burden of proof not being on defendant to rebut undue influence, "Winn v. Itzel, 125 W. supra', referring to Davis v. Dean, 66 W. supra", is; quoted and followed. - —Boyle v. Robinson, 129 W. 567, 577. 97. Undue influence as to a conveyance from father to son is sus- tained, following Vance_ v. Davis, 118 W. and Winn v. Itzel, 125 W. supra, and the established "rule of law that in ease of a conveyance by an aged person, susceptible to undue influence, of entire property, with- out consideration, to one in a position of trust and confidence, under suspicious circumstances which satisfactorily suggest the wrong, accom- panied by proof of opportunity and disposition on the part of the beneficiary to exert influence, 98. There arises a presumption that the conveyance was so induced, unless the grantee can negative that fact by direct proof". — Quinn v. Quinn, 130 W. 548, 551. 99. Where "the testatrix throughout the fourteen years of her life after the death of her husband actively managed her property and dis- played unusual mental vigor up to the time^ of her death" at "eighty- six years of age", and '.'had a clear comprehensive understanding of" her property and the relations of her beneficiaries, it is held, on the evidence, — 100. That, upon deciding to make a will which was drawn but not signed, when a daughter A. and her husband, living with testatrix, protested against its provisions as "not in accord with the promise and arrangements made by her" as to care and attention, — the testatrix concluded not to sign the will, but to make a will giving all the realty to such daughter; ' 101. And that as to a will so made three days later the "testatrix acted freely and voluntarily in making this last will", "and without com- pulsion and according to her own judgment and discretion". Will sus- tained in county, circuit and supreme court. —McNaughton v. McGregor, 133 W. 494, 499. 102. Undue influence as quoted in Anderson v. Laugen, 122 W. supra, set forth and applied. — Evenson v. Rust, 152 W. 113, 115. 103. Where a testator, who was past seventy, physically impaired, a considerable drinker, estranged from his children by a former wife,, made his will in favor of his wife, during his last sickness, about a month before his death, while under his wife's supervision, she having UNDUE INFLUENCE 1175 been his housekeeper and then married to him about a year only, — on the facts, the will was refused probate by the county and circuit courts, and was allowed probate by the supreme court. 104. The quotation from and principles of Vance v. Davis, 118 W. supra, and other cases, as to testator's right 'to dispose of his property as he chooses', are stated, re-stated, and approved. 105. The "burden of proof" is # "upon the one charging undue in- fluence, from first to last, to establish it by clear and satisfactory evi- dence", as set forth in "Winn v. Itzel, 125 W. supra. : 106. Undue influence is a wrong which "sounds in fraud" (cases. supra), and "he who alleges fraud must establish it, — not by a mere preponderance of, but by clear and satisfactory evidence". 107. "The general characteristics of undue influence are strikingly presented in Will of Slinger, 72 W. supra". 108. "Undue influence is the very antithesis ' of right influence. It exists only where there is practical destruction of voluntary volition, — at least, is moral coercion for an ulterior purpose. Anderson v. Laugen, 122 W. supra. 109. This species of wrongful influence should never be confused with influence through affection or disposition to .favor a member of one's own family produced by legitimate feelings of esteem or gratitude ' '. (Cases). * —Ball v. Boston, 153 W. 27, 32. 110. Following Ball v. Boston, 153 W., and other cases, supra, the county court is sustained, the circuit court reversed, and the will sus- tained, — undue influence which ' ' sounds in fraud and requires that it be shown by clear and satisfactory evidence, ' ' not being so proved. 111. "Declarations of the testator" that he "was importuned" are "not competent to prove that undue influence was in fact exerted". Loennecker's "Will, 112 W., supra. 112. Evidence of "his declaration" "that he wanted Mrs. A. (bene- ficiary and alleged influencer) to have the privilege of living on this property because she had worked for and helped him accumulate it," 113. Is assumed as properly admissible, and "tends to show that his state of mind was in harmony with the declared wishes in the will". — Duncan v. Metcalfe 154 W., 39, 44. 114. "Where an old man conveyed property in consideration of his support, and thereafter adhered thereto, the circuit court's finding of undue influence is reversed, and it is stated that it "is all wrong" "that upon a prima faeie showing being made" of undue influence, "there is a shifting of the burden of proof", 115. And the rulings as to undue influence are approvingly cited, quoted, and upheld, from the following cases, supra: Small v. Champeny, 102 W.' ; Vance v. Davis, 118 W. ; "Winn v. Itzel, 125 W. ; Ball v. Boston, 153 W.'; Loennecker's Will, 112 W. . — Boardmam v. s Lorewtzm, 155 W. 566, 571. 1176 PROBATE AND GENERAL LAW, CODIFIED 116. Where the will was allowed by the (Dane) county court, and testamentary incapacity and undue influence found by a jury, and "the circuit court adopted" such findings, and one half of a small estate was given to the widow, and the rest except $100 to a daughter, given to the son 0., two other daughters receiving nothing, and the testator being old and weak, and the son being "alone with him about the time the will was made" "a week before" the decease, — it is held that only a "subject" and an "opportunity" as to undue influence were shown, and that the will be allowed. 117. "A ease of undue influence is made out where it is shown (1) that the testator was subject to such influence; (2) that the opportunity to exercise it existed; (3) that there was a disposition to exercise it; and (4) that the result appears to be the effect of such influence. 118. As the law now is, these facts must be shown by clear and satis- factory evidence. Ball v. Boston, 15,3 W. ; Duncan v. Metcalf, 154 W. ; Boardman v. Lorentzen, 155 W. ; supra". — Skrinsrud v. Schwenn, 158 W. 142, 145. 1 119. 'While it is true that" the four elements of undue influence as stated in Skrinsrud v.. Schwenn, 158 W.- supra, "must be established by clear and satisfactory evidence before the court is justified in setting aside a will, 120. Yet the clear establishment of three of these essential elements may with slight additional evidence as to the fourth compel the infer- ence of its existence. 121. This is especially true where the will is not what may be termed a natural one, such as relationship usually dictates. 122. In Gunderson v. Rogers, 160 W. 468 (See Probate op Wills), it was said that strong evidence of lack of testamentary capacity or of undue influence was required to nullify a will made according to the dictates of natural justice. 123. Where it is not so made less proof may suffice, for legitimate inferences of infirmity may be drawn from its departure from natural justice". "In this respect" "the case differs from the Ball Case," 153 W. supra. 124. Where the county court found only testamentary incapacity, and the circuit only undue influence, the latter 's finding is "affirmed because we cannot say it is clearly erroneous", though "the proof is quite meagre" on "disposition to exercise undue influence", the property going to strangers as against an aged father as the heir. —Elliott v. Fish, 162 W. 249, 253. See also Sunday. UNLAWFUL CONTRACTS UNLAWFUL CONTRACTS. 1177 Agreement not to prosecute, 11. Duress; execution and payment, 17. Equal footing when made, 12. No duress; no recovery, 16. Not recover money back, 12. Between immediate parties, 14. Corporate stock under par, 34. Illegal, both parties, 35. No rescission or restoration, 36. Duress, species of fraud, 28. Contracts, void, not voidable^ 28. Seasonably adequate cause, 29. Act not voluntary, 30. Executory : Eescission and recovery, 2. Conditions fully stated,' 10. Moral turpitude, 10. Law favors rescission, 15. , Wholly unexecuted,, 3. Embezzled funds by agent, 25. Receive security therefor, 25: False representation as to, 13. Recovery for the 'fraud, 13. General rules of law, 4. Exceptions, as to recovery, 8. Advantage of fiduciary relations, 9. 'Protect weak, necessitous, 8. General rules, etc. — continued ' Kinds pf contrac.ts^oid, ,4. . . Malum se or prohibitum, 6, Prohibited by statute, 4, 7. ' ' Recovery denied, 5. Grain delivery in future, 19. Actual view to delivery, 21. Bona ijde intention, 19. Doctrine rigidly enforced, 26. Notwithstanding statute^ 31. Made to cover gambling, 20. Pretended; not. purge, 24. Transactions gaining, import, 21. Whole security void, 22J 23. Illegal, without fraud, 27. Law not aid* enforcing, 1; 35. . Betweenimmediateparties, 14. , Malum se or prohibitum, 6.; . Nor recover money, 15. Except executory contract, 2, 15. Weak and necessitous, 8. Fiduciary relation, 9. Prevent competitive bidding, 32. Third person injured, 32. Usury defense personal, 18. Violates public morals or 'policy, 33. 1. ' ' The law will not aid in enforcing an unlawful contract, nor give damages' for a breach of it. Neither will it assist a party in recovering back money which he has < expended in the unlawful execution of such; contract". , ■. 2. "It is only where the contract is executory that a rescission and a recovery are allowed. " - ' 3. "It is only when the contract is wholly unexecuted, and by way of anticipating and preventing the wrong, that thei party can rescind". — Miller v. Larson, 19 W; 463, : 466. 4., "The general rule of law is, that alL contracts which are repugnant to justice, or founded upon an immoral consideration, or which' are against the general policy of the common law, or contrary to the pror; visions of any statute, are void;" .-,; ■ : : - 5. "And that, if a party claiming a right to recover a debt is obliged to place his title or right to the debt through any such illegal contract, he cannot recover, because he cannot be allowed to prove the illegal con- tract as. the foundation for his right to recovery". 6. "It is quite immaterial whether such illegal contract be- malum in se or 'only malum prohibitum. Jn either case the maxim, ex turpi causa non oritur actio, is applicable". ■ ■< ' 1178 PROBATE AND GENERAL LAW, CODIFIED 7. "And a contract in violation of a statute is void although the statute fails to provide expressly that contracts made in violation of its .provisions shall not be valid. It is sufficient that it is prohibitive, and its invalidity follows as a legal consequence. (Many cases)". 8. There are, however, exceptions to the rule "of non recovery on illegal contracts, to protect weak or necessitous men from being over- reached, defrauded or oppressed". Recovery in such cases is allowed on the principle that "he is the oppressed party and not equally guilty with the other". 9. "Actions have been sustained by wards against guardians, and by clients against attorneys, to set aside executed illegal contracts, where the guardians or attorneys had taken advantage of the fiduciary rela- tion to impose upon and mislead their wards or clients". See also Consideration. — Melckoir v. McCarty, 31 W. 252, 254. 10. "We think the rule may fairly be deduced from" the cases, "that when money has been paid upon an executory agreement, which is free from moral turpitude, and is not prohibited by positive law, but which is invalid by reason of the legal incapacity of a party thereto, otherwise capable of contracting, to enter into that particular agreement, or for want of compliance with some formal requirement of the law (as that the contract shall be in writing, and the like), the money so paid may, while the agreement remains executory, be recovered back by the party paying it, in an action for money had and received. ' ' —N. W. V. Packet Go. v. Shaw, 37 W. 655, 661. 11. An agreement not to prosecute for a crime is "unquestionably illegal and void, in that it interferes directly with the course of public justice, and was therefore against sound public policy." 12. Yet, "if the parties to the illegal agreement stood on an equal footing when they made it — if there was no duress or other circumstance which placed the plaintiff in the attitude of a sufferer rather than a wrongdoer,— the law will not assist the plaintiff (father) to recover back the money which he has voluntarily paid in execution of it. Miller v. Larson, 19 W. supra." — Schultz v. Culbertson, 46 W. 313, 314. 13. Where B. obtained $3,000.00 from A. to pay for the latter to C. on an illegal contract, and paid to C. only $1,000.00 according to the real agreement, it was held that A. could recover from B. the balance of $2,000.00 as "the gravaman of this action is the fraud practiced by the defendant in obtaining the $2,000.00 from the plaintiff by" false representation. 14. "The maxim, In pari delicto melior est conditio possidentis, has application only as between the immediate parties to an illegal contract, and does not govern where the action is brought by one of such parties to recover money received by a third party in respect to his illegal contract. ( Citations. ) ' ' UNLAWFUL CONTRACTS 1179 15. ' ' The law will not lend its aid to enforce an illegal contract while it remains executory, or disturb it after it is fully executed (citation) ; but it will in all cases favor its rescission and abandonment before its execution." See also Fraud. — Kiew&rt v. Bindskopf, 46 W. 481, 484. 16. At the former appeal (46 W. supra) "as there was no proof whatever in the case that the plaintiff or his son was subjected to any menace or threat after the note was given, or which tended to show that the note was paid under duress", more than a year after the note was given, the judgment for recovery by plaintiff was reversed. 17. On this trial the circuit court properly "charged that there could be no recovery unless the evidence satisfied the jury, not only that the plaintiff was induced by ttireats to make the note', but that, when he paid it, the duress still existed, and he was laboring then under the apprehension that the defendant would arrest and imprison his son if he did not pay it;" and "the jury must have found that both the execution of the note and its payment were procured by compulsion and threats", and the judgment for plaintiff is upheld. —Schultz v. Culbertson, 49 W. 122, 123. 18. The defense of usury is to an extent "personal to the borrower and those in privity with him". See Sureties. —Hamilton v. Prouty, 50 W. 592, 597. 19. "Contracts in writing for the sale and delivery of grain at a future day, for a price certain, made with a bona fide intention' to deliver the grain and pay the price, are valid in law; 20. But when such contracts are made as a cover for gambling, without intention to deliver and receive the grain, but merely to pay and receive the difference between the price agreed upon and the market price at such future day, they come within the statute of gaming, and are void, in law. 21. To uphold such a contract it must affirmatively and satisfactorily appear that it was made with an actual view to the delivery and receipt of the grain, and not as an evasion of the statutes of gaining/ or as a cover for a gambling transaction. 22. In the present case it sufficiently appears that at least some of the transactions between the parties which enter into the consideration of the note and mortgage in suit, were mere gaming transactions of this character, were void in themselves, and taint the whole security which is, therefore, absolutely void". —Barnard v. Backhcms, 52 W. 593. 597. 23. "It may be proper to say here, once for all, that we are satisfied as to the correctness of the decision in Barnard v. Backhaus, 52 W. supra, as applicable to the facts of that case^and do not believe that it requires any vindication, support, or revision". 24. It is. held "that a compromise of any pretended differences, in 1180 PROBATE AMD GENERAL LAW, CODIFIED respect to clearly illegal contracts and transactions, cannot purge them and produce a valid claim ' '. ■ Melchoir v. McCarty, 31 W. supra. —Everingharh v. Meighan, 55 W. 354, 362. 25. "We know of no law which prevents a party, whose funds have been embezzled by his agent, from demanding and receiving from such agent payment of the funds so embezzled, ot from taking security for the payment of such money". —Johnston; H. Col v. McLean, 57 W. 258, 262. 26. "The doctrine of" the decisions in Barnard v. Backhaus, 52 W. and Everingham v. Meighan, 55 W., supra, "will be rigidly enforced in all cases fairly coming within its scope and meaning". . —Lbwry v. Dillman, 59 W. 197, 198. . 27. Illegal contracts, without fraud, will riot be disturbed. See Sun- day. —Cdkny. Heimbmch, 86 W. 176, 180. 28. "Duress which consists of threats of imprisonment of a husband or a child is a species of fraud, which renders the contract made under its influence voidable only, and not void. City Nat. Bank v; Kusworm, 91 W,, 166." ,, ,..., 29. "It was", in Wolff v. Bluhm, 95 W., 257, "said that in order to constitute duress 'the. threat must be of such a nature, aud made under such circumstances, as to constitute the defendant, should have , con- trolled as to the manner and place of delivery". 18. "Where the custom is general, it will be presumed to have entered into the contract, and one may be bound thereby although ignorant, ^Unless the other party is shown to have knowledge of his ignorance. (Cases) ". — Gehl v. Milwaukee Produce Co., 105 W. 573,' 580. 19. "Where there' is an express agreement," "custom cannot be proved to vary the terms of the agreement if they are definite and unambiguous, but only to explain and make definite that which the contract leaves ambiguous and unexpressed." —Mowatt v. Wilkinson, 110 W., 176,. 179. 20. "It is not the law that ignorance of the general trade icustom relieves a party from the effect of it." 21. "The rules, of law applicable to a general custom should not be confounded with those applicable to a local custom. John O'Brien L. Co. v. Wilkinson, 123 W. 272." —Boss v. Northrop, K. & Co., 156 W. 327, 337. USES AND TRUSTS. See Trusts. VACATING FRAUDULENT ORDERS. See Fraudulent Orders. 1184 PROBATE AND GENERAL LAW, CODIFIED VACATING JUDGMENTS. See also Fraudulent Orders. Judgments. Mistake, Affirmed judgment, not, 44. After term and after year: ■ Amend: not to wipe out, 68. Correct mistake in entry, 65. No power to set whole aside, 68. Correcting clerical error, 68. Not entry of new judgment, 67. Only correcting old entry, 67. Not modify or amend, 66. '.,, Even as intended, 66, After the term : Actions at law or. equity, 6. Clerical errors corrected, 4. Clerk 's entry same day, 61. Common law rules govern, 1, 52. When not mistake, statute, 1. Delay in entry, immaterial, 64. Errors and irregularities, 5. Court never acted, 5. Errors of law or fact, 62. Leading case; correctly stated, 15, 16. Affirmance of rules, 22. Mistake ratified, 4. No power except by sec. 2832, 28, 68. However meritorious, 28. Nor finding as basis, 52. , ;, , Merely because of error, 52. Not a premature judgment, 24. Not at a subsequent term, 2. < Not mere error of court, 18. Record presumes acted) 2. Where mind of court acted, 2. Not error by' itself, 27. Only surprise statute, 27. Not, if court 's mind acted, 38. Not, if jurisdiction had, 37. Not prevent irregular errors, 3. Instances stated, 3. Only byappeal or writ, 40. Or mistake, etc., statute, 40. Order oral; same rules, 54. Entered nunc pro tunc, 54. Precluded .again acting, 39. Rule has its exceptions, 29. Motion at same term, 30. Continued to subsequent, 30. Supreme court, included, 22. Void judgments corrected, 4. Whether by parties consent?, 53. At same term : Control over its own orders, 35. Inadvertently entered, 9. Power on court's motion, 9, 33. County court: Practice and procedure, 69. Court 's own motion, 9. At the same term, 33, 49. , Judgment affirming another, ,50. To vacate or modify, 32. Without notice to parties, 51. Enforce fraudulent judgment, 60. Infant's rights detailed, 57. Irregularity submission, 11. Waiver, jurisdictional defect, 11. Parties only have right, 19. Except when nominal only, 20. Eeal, but not nominal, 21. Premature judgment, 23, 24. If unjust or inequitable, 36. Irregular not void, 23, 24. Prevent inequitable use of, 60. Probate court : ; Administrator's sale, 10. . , ; Not. after five years, 10. Third parties interested, 10. Founded upon fraud, 42. With negligent ignorance, 43. Powers; fraud, mistake, etc., 14. , Bevoking oral widow allowance, 31. Abuse of discretion, 31. Probate of will; fraud, 12. Can the county court? 12. Equity not set aside, 12, 13. Powerless as to court's error, 2, 18, 23. Rule of ipraetice, 41. , Default judgment, 41. Technical irregularity, 7. Prompt, after knowledge, 7. Waiver, by other, step, 8. Unavoidable absence of attorney, 34. Error to refuse vacation, 34. Within a year, sec. 2832 : Abuse of discretion; refusal, 45. More than year after entry, 45. Neglect of guardian ad litem, 45. Within a year of knowledge, 45. Actual notice sufficient, 25. After notice of same, 59. Attorney ceases to be such, 55. Four years; in such case, 56. Notice as to party then, 55. Year to so run, 55. Cannot act arbitrarily, 46. Indicate some injustice, 48. Mistake, surprise, inadvertence, 17. Not surprise at rulings, 28, 63. Order within a year, 25, 26, 59. Not only application, 26. Some legitimate ground, 47. VACATING JUDGMENTS 1185 1. The order vacating, not being within the statute for relief within a year after notice on account of mistake, inadvertence, etc., the court holds that it "must test the correctness of this order by the principles of the common law, ' ' there being a short notice. 2. "It is well established by the rules of the common law, that a court has no power to review or reverse its own judgment of the previous term; that is, as to all matters on which the mind of the court did act, or is presumed from the record to have acted, in the rendition of the judgment, it is precluded from again acting at a subsequent term, and changing its opinions or altering its decisions". Bank of U. S. v. Moss, 6 How. 31. 3. "But this rule does not prevent a court from setting aside, at a subsequent term, its own judgment for those errors for which at common law, the same court, on a writ of error coram nobis, would reverse it; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant died before the verdict or interlocutory judg- ment, or where there is error in the process or through default of the clerks; for such errors are not the errors of the judges, and reversing it is not reversing their own judgment." 4. "Nor does it prevent the court from setting aside a void judg- ment at a subsequent term"; "nor from correcting mistakes in matters of form, and setting right clerical errors ; nor from reinstating a cause dismissed by mistake". 5. When so set aside "for errors and irregularities" under "the rules of the common law", it is on the principle "that the errors ^are not errors in. the judgment itself. The court, in rendering the judgment, never acted on them." 6. "The same rules should be applied to the vacation of all judgments, whether rendered in, * actions at law or in equity. ' ' —Aetna Life Ins. Co. v. McCormick, 20 W. 265, 268. 7. "To warrant the setting aside of a judgment for a mere technical irregularity (in this case failure to give notice of motion for), the party should be prompt in moving so soon as he has actual knowledge of the judgment". 8. He must move to vacate "before he takes any subsequent step in the cause". "Instead of the appeal, therefore, constituting an excuse for the delay, it constituted a waiver of the irregularity". —Jenkins v. Esterly, 24 W. 340, 341. 9. "There can be no doubt of the power of the court to set aside a judgment inadvertently ordered, at the same time at which the judgment was entered; and I have no doubt that the court may exercise that power on its .own motion, though perhaps the occasion where it would do so are rare". Lyon, J. —Hansen v. Fish, 27 W. 535, 540. Zimmerman — 75 1186 PROBATE AND GENERAL LAW, CODIFIED 10. The power "to revise and correct errors in the probate court", cannot be exercised to set aside an administrator's sale, "where the statute of limitation (5 years) has run so as to give good title to the land under the deed of the administrator, and where administration of the. estate was closed, and third persons had become interested in the property sold". — Beits v. Shotton, 27 W. 667, 670. 11. "Vacating the judgment for irregularity implies that the court has the power to correct the error, or by that means to open the way so that it may be corrected. And the asking of such relief, whether granted or not, is also a submission and waiver of jurisdictional defect, and for the same reason". See Appearance. — AUerson v. White, 32 W. 308, 312. 12. A court of equity cannot set aside the probate of a will on account of fraud practiced on the testator. Query, Can the county court do so 1 13. Equity cannot set aside the probate of a will, where the probate was fraudulently obtained by concealing. the original fraud on the testator. Whether a court of equity could do so in any or some cases is not determined. 14. The power of probate courts to set aside decrees in ' ' cases of fraud, mistake, irregularity, want of jurisdiction and the like", as set forth in Campbell v. Thatcher, 54 Barb. 386, by Dixon, C. J. in a con- curring* opinion, giving a great variety of adjudged instances. See also Equity. —Archer v. Meadows, 33 W. 166, 172. 15. "The ease in 20 Wis., 265, (supra) is a leading one upon this subject; and the rule and its exceptions, are correctly stated" in that case and here restated. — Scheer v. Keown, 34 W. 349, 353. 16. "The circuit court has no authority to review, on the merits, orders or judgments made or rendered at a former term, for the purpose of correcting its own errors. This is well settled. (20 W. 265, supra.) " — Pmger v. Vancli-ck, 36 W. 141, 143. 17. The statute, however, "vests a discretion in courts to grant relief against their own judgments and orders on grounds of mistake, inad- vertence, surprise, or excusable neglect within a year after notice of the judgments or orders". 20 W. 265, and 34 W. 349, supra, are approvingly cited as fully stating "the rule and its exceptions". —Eaton v. Youngs, 36 W. 171, 175. 18. It "is well settled in this state and elsewhere, that the court has not power to vacate a judgment,' at a subsequent term, for mere error of the court": — Loomis v. Rice, 37 W. 262, 264. 19. "As a general rule, none but the parties to a judgment can have' it set aside. Every litigant, if an adult, is presumed to understand his VACATING JUDGMENTS 1187 own interests, and to be fully competent to protect them in the courts." Freeman on Judgts., 91. < ;,, • ,-■ ■,..;• 20. "This is the general rule, undoubtedly. But this rule has its exception, as the same author shows by the illustrations given in the next; section. See Lowber v., Mayor, N.Y., 26 Barb., 262. Where the party to the action is only the nominal, :and not the real, one, the person actually interested in the contorversy is treated as, haying a standing in court, and may have control of the .cause "., ' . , 21. A judgment in Wis., based on a N. Y. judgment afterward re- versed by the U. S.Sup. Ct., was vacated on motion of the real, though not the nominal party in interest. Not determined wither such vaca- tion, was necessary to enable a recovery of money paid pursuant to such judgment. — Aetna Ins: Cp. v. Aldriah/38 W. 107, 111. 22. The rule of Aetna Ins. Co. v. McCormick, 20 W. supra, is affirmed and it is said that the supreme court "forms no exception to the rule." i. ,.: . — Pringlev. Dunn,, 39 W, 435, 439. 23. A judgment on a note by default, rendered on the last day for answering, was held "premature", but "merely an irregularity of prac- tice", and that "the motion at a subsequent term to vacate, it came too late, and was properly denied", the, judgment not being void, and the error "was the error of the, court", which the court was "powerless to correct" at, a subsequent term. — Salter v. Hilgen, 40 W. 363, 365. 24. A premature judgment on personal service on an order of pub- lication, is held to "be irregular only, not vpidj'and ,the irregularity, an error of the court below, which it could hpt correct at a subsequent term ' ' —Pier ' v. Armory, 40' W. ' 571, 574. r ,25. "To relieve a party from a judgment on the ground of mistake or surprise", not only the motion must be made but the hearing had within a year ; and actual notice is sufficient, written not being required. —Knox v. Clifford, 41 W. 458, 459. 2,6. For relief from a judgment within a year, not only the applica- tion for, but the order, must be made within the year. Knox v. Clifford^ 41 W. supra, being, approved and followed. —McKnight v. Livingston, 46 W 356, 360. 27. After the term, "the circuit court had then lost jurisdiction to grant the motion" to vacate an order, "for any error committed by itself at any former term. It could noly grant the motion by virtue of sec. 2832", within a year as to surprise, etc. ' 28. "We do not think the statute (sec. 2832) was intended to relieve against surprise", where "the only surprise suggested is predicated of the rulings of the court on the motions ". " Independently of the statute 1188 PROBATE AND GENERAL LAW, CODIFIED the court had' no power to disturb the judgment, however meritorious the grounds, of the action might appear." —Breed v. Ketchum, 51 W. 164, 166. 29. "The general rule" as to not vacating judgments at a subsequent term "is not absolutely inflexible, and has its exceptions. The facts of this case take it out of the general rule". 30. "If a motion to amend or vacate is made at the same term, and that motion is, by consent of counsel, continued to a subsequent term, the court" can "then consider and decide it with like effect as if it had decided it at the first term". (But, see Comstock v. Boyle, 134 W. post). 31. An order of allowance for the widow, orally made, but held valid and in force, being revoked by the probate court, there being no fraud or irregularity, was held to be " an abuse of discretion. ' ' See Widow. —Baker v. Baiter, 51 W. 538, 543. 32. "This court has several times recognized the power of the judge, on his own motion, to modify or vacate his judgments or orders. (Cases)". It is so held in this case directly. It does not appear whether "notice was or was not given". 33. "In Hansen v. Pish, 27 W. supra, it is said in the opinion that the court may, upon its own motion, set aside a judgment inadvertently ordered, at any time during the term at which it was entered", by the present writer, "and all the other members of the court concur therein". —Brown v. Brown, 53 W. 29-30. 34. It was held error, for the court to refuse to vacate a judgment, obtained in the unavoidable absence of the defendant's attorney engaged in the trial of a cause in another circuit, unexpectedly protracted beyond the date set, — the case being debatable, and sharply contested, and such attorney being conversant with the facts and case, and in charge, and though he had able partners. —McArthitr v. Slmson, Extx., 60 W. 293, 294. 35. "This court has often asserted the general rule that the court has entire control over its own orders and judgments, and may modify or vacate them at any time during the term at which they were made or rendered." — Turner v. Nachtsheim, 71 W. 16, 17. 36. When prematurely entered, may be vacated, for irregularity, if unjust or inequitable. See Jurisdiction. —Marshall & I, Bank v. Milwaukee W. M., 84 W.. 23, 26. 37. "The summons in the action was properly served, and the court, when it rendered the judgment, had jurisdiction of the subject matter and of the parties. Nothing is better settled than that the motion (at a VACATING JUDGMENTS 1189 subsequent term) to set aside this judgment upon the errors and irregu- larities here complained of came too late. (Many cases, supra) . . ■ : 38. All the errors relied on, worthy of any consideration, relate to matters upon which the mind of the court did act, or must be presumed to have acted, in rendering the judgment, and appear upon the face of the record, 39. And the court is precluded from again acting on the same matters at a subsequent term, and changing its opinion or altering its judgment. This rule is subject to few exceptions, stated in Aetna L. Ins. Co. v. McCormick, 20 W., supra. 40. After the close of the term the party complaining can obtain relief only by writ of error or appeal, or under the statute which authorizes the court to relieve a party, at any time within one year after notice thereof, from a judgment, order, or other, proceeding against him through his mistake, inadvertence, surprise, or excusable neglect. Sec. 2832". ,: 41. "The rule of practice is that an application to set aside a judg- ment and for leave to answer, is largely addressed' to the discretion of the court to which it is made, and unless the default of the party is excused and a verified answer tendered, showing a defense on the merits, the court ought not to interfere. Seymour v. Chippewa Co., 40 W., 62, 65; Union L, Co. v. Chippewa Co., 47 W., 246, 248". ■ — Milwaukee M. L. & B. Soc. v. Jagodzmski,M W. 35, 39. 42. The county court may. set aside a judgment "obtained through the fraud of parties obtaining the same". See Fraudulent Orders. — Est. of Leavens, 65 W. 440, 446. 43. Refusal to vacate the final judgment of the county court founded upon fraud, because of "intentional or negligent ignorance" of fact by those seeking such revocation. See Fraudulent Orders. —Thomas v. Thomas, 88 W. 88, 93. 44. A judgment affirmed by the supreme court cannot be disturbed or vacated. See Judicial Decisions. — Eon v. C. M. & St. P. B. Co., 101 "W. 166, 168. 45. It was held an abuse of discretion, not to vacate a foreclosure judgment, on application under sec. 2832, on account of "mistake, inad- vertence, surprise, or excusable neglect", by a defendant minor, where a guardian ad litem appointed "neglected to bring to the court's atten-' tion a perfectly good defense of which, he had full knowledge", and the applicant having made no defense and her conduct "would have been neglect in an ordinary suitor", the application being made "more than a year after the entry" but within "a year of knowledge of the judg- ment". —Bloor v. Smith, 112 "W., 340, 349. 1190 PROBATE AND GENERAL LAW, CODIFIED 46. "While a trial court has broad powers as to judgments by default, enabling it to relieve a party therefrom for fraud of the one obtaining the judgment, or surprise, mistake or excusable neglect of such party, upon application therefor being seasonably made, it cannot properly act arbitrarily in such a matter. 47. Its action should always be based upon some legitimate ground, the end in view being to promote justice along the lines of those reme- dies for wrongs which the law affords to litigants." 48. The application must "indicate some injustice", "actual or prob- able, and some reasonable excuse for" failure to be at the trial, and for not promptly moving to set aside. —Field v. Hecktnan, 118 W., 461, 465. 49. The rule "that a court possesses inherent authority to set aside any judgment or order entered by it through mistake, inadvertence, or want of proper deliberation at any time during the term, and need not wait to have such power put in motion by the request of any interested party before acting," 50. Extends "to a judgment or order deliberately entered affirming a prior decision made during the term." 51. Affirmed where "without notice to the parties or their attorneys, the judgment and the previous drders were vacated and a new trial granted", which theretofore had "after due deliberation" been denied and such judgment entered. (Cases, supra). —Smith v. Milwaukee E. B. & L. Co., 119 W., 336, 339. 52. The "principle of the common law has frequently been affirmed by this court", that the court cannot "against objection set aside either the judgment or the findings on which it was based at a subsequent term merely because error had been committed". Aetna L. Ins. Co. v. McCormick, 20 W. supra; (many cases). 53. "Whether it could set the judgment aside by consent of the parties is a question concerning which there may be considerable doubt. Some decisions of this court" so indicating were cases where there was no "question raised, and we express no opinion upon it here as it is not presented. Baker v. Baker, 51 W. supra ; (other cases) . ' ' 54. An oral judgment is effective, though the clerk fails to enter it and is held governed by like vacation rules, though entered by order subsequent to the term, nunc' pro tunc. See also Judgments. —Comstack v. Boyle, 134 W. 613, 616. 55. "The rule in reason and by authority is that when the attorney ceases to be such for a party before receiving notice of an adverse pro- ceeding, the year period mentioned in the statute (Sec. 2832) does not commence to run till the party, himself, has notice. Robbins v. Kountz, 44 W. 558". 56. "So the decision must be that the motion in the case was timely", 1 VACATING JUDGMENTS T 1191 being a motion to vacate a judgment entered four years before "on notice" only to the opposite parties 1 attorney whose authority had ended. See also Discontinuance. —WawrzynwikowsU v. Hoffman & B. Mfg. Co., 137 W. 629, 633. 57. As to the various phases when irregular judgment against minors may be vacated. See Infants. ,, ~ '■'■•' — Grawman M. & C. Co. v. Krienitz, 142 W. 556, 560. 58. ' ' It is the settled law of this state that a valid judgment cannot be set aside after the term at which it is entered, except under provi- sions of sec. 2832. 59. And where relief is asked under this section, not only the motion but the order itself must be made within one year after the moving party has notice of the judgment. (Many cases). 60. In this latter case (Challoner v. Howard, 41 W. 355) it is said that the rule does not militate against the power, of a court to prevent the inequitable use of a judgment or to restrain the enforcement of a judgment obtained by fraud. 61. A judgment of the clerk entered in pursuance of an order of court made the same day must be regarded as a judgment of the court in session, and a motion to set it aside for irregularity must be made at the same term. Pormann v. Prede, 72 W. 226. 62. The circuit court has no jurisdiction to review a judgment ren- dered at a former term, for the purpose of correcting errors in law or fact committed by the court in rendering it or in the proceedings prior thereto. (Many cases)." 63. The surprise of sec. 2832 is not that "at the decision of the court on the facts before it". 64. "We know of no rule of law that would authorize a court toiset aside a final judgment more than three years after it was entered (ordered?) simply because there was a long delay in entering it". , 65. After the term and after the year, "the circuit court may correct a mistake in the entry of a judgment so as to make it conform to the judgment actually pronounced by the court. 66. It cannot modify or amend the judgment to make it conform to what the court ought to have adjudged or even intended to adjudge. (Many cases) ". i , 67. "The rule does not permit the setting aside of the judgment first entered r and the entry of a new one, 'but only the, correction of it. 68. No power exists to set aside the whole judgment for the, purpose of correcting a clerical error. The power to amend does not include the power to wipe out". —Fisckoeck v. Mielenz, 162 W. 12, 15. 69. (As to points of practice and procedure in the' amendment of records in county court, with the statutory provisions) and forms applicable,— see Zimmerman's Probate Practice, §§ 408-418.): r 1192 PROBATE AND GENERAL LAW, CODIFIED VALUE. See Evidence. Expert Testimony. Services. VARIANCE. See Pleadings. VENDOR'S LIEN. See Lien. VENUE. All parties on same side, 8. Appeal, etc. — continued Not one of several, 8. Probate of will, proceedings, 1. Appeal from county court, 1, 4. Unauthorized venue change, 2. Affidavit of prejudice, 4, 7. Waiver by appearance, 2. Not determine immediately, 5. Order; for jurisdiction, 3. Mandamus not lie, 6. Order denying; not appealable, 7. Time to last day of term, 4. In which to make order, 4. 1. A change of place of trial may be had in circuit court on appeal from the county court, under the general statute, though "the word 'action' is generally used" in the statute. "We do not suppose any restricted or technical meaning is to be given to that term (action) as here used. It is broad enough in its significance to include this pro- ceeding for the probate of a will, and the whole reason and object of the statute will be most fully satisfied by holding that it applies to it." —Ja&kman Will case, 27 W. 409, 412. 2. On an unauthorized second change of venue, the executor appeared "without objection; took various steps in the cause which implied that that court had jurisdiction; and went to the hearing of the appeal on the merits. This amounted to a general appearance in that court, and waived all objection to the jurisdiction of the circuit court. (Cases)". 3. (In Swan v. Porter, 96 W. 34, it is indicated that such waiver does not confer jurisdiction, without the consent of the court "to surrender such jurisdiction by making an order" to change the venue.) — Est. of Carl Schaeffner, 45 W. 614, 618. 4. On the filing of an affidavit of prejudice in circuit court, as to a guardianship on incompetency, appealed from the county court, and for a change of venue, it is held, that "the court clearly, under the VERIFICATION 1193 statute, had at least until the last day of the term at which the applica- tion was made to make the orders changing the venue in said actions. 5. The court was not obliged under the circumstances to suspend all proceedings and immediately determine whether he would change the place of trial or call in another judge". 6. "Under such circumstances mandamus will not lie. (Cases) ". — State ex rel Deleglise v. Goodland, 128 W. 57, 59. 7. On appeal from a county court order allowing a will,, followed by filing in the circuit court "an affidavit of prejudice" and "an applica- tion made for a change" of venue, an order denying such application; for lack of jurisdiction, is, under sec. 3069, held to be " simply an order denying a change of venue, which is not appealable". —Will of Fraser, 135 W. 401, 402. 8: "A change of venue is not grantable except upon the application of all upon the same side". "Application for a change of venue by one of several of the same side, or similarly interested, is not within the statute". (Cases). — Will of Rice, 150 W. 401, 454. VERBAL AGREEMENTS. See Parol. See Jtjey. VERDICT. VERIFICATION. Affidavit; caption wrong, 2. Affidavit of appeal, 9. Justice, allowed to sign, 11. Otherwise, invalid, 11. Defective; valid as oath, 2. Not with jurat unsigned, 9. Official certificate proof, 12. Signatures proved, 12. Testimony might rebut, 13. Must be "convincing, 13. Proof of actual making, 10. Parol, inadmissible, 10. Eequires proper caption,,, 3. Complaint: defective, 1. ; Allegations positive, 15. Verification by attorney, 15. No ground of belief, 15. By guardian ad litem, 14. As the party, 14. Treated as unverified, 1. Guardian ad litem, 14. Jurat : Absence ; no oath, 5, 9. Evidence of the oath, 4. Placed there afterward, 6. Inadvertent omission, 6. Not cure defect, 6. Orders not reciting, 6. Verified by signature, 5. Petition for guardian: Duly signed and verified, 7. Certificate; by officer only, 7. Order recites, verified,. 7. Petition; dated, signed,- 7,, Not verified by affidavit,' 8. As in pleadings, 8. Verified: proved by oath, 8. Not necessarily, affidavit, §, 1194 PKOBATE AND GENERAL LAW, CODIFIED 1. The verification of a complaint being defective, the defendant "had a right to treat the complaint as unverified, and to put in an answer without oath". —Crane v. Wiley, 14 W. 658, 663. 2. Where the venue in the caption is Fond du Lac county, and "the affidavits (of no answer) were sworn to before the clerk" of court of Pierce county "on the day the judgments were signed, it is manifest that they were sworn to in the latter county"; "the statute does not require an affidavit, and under the decisions of this court the defective affidavits are valid as oaths, and competent proof of the facts stated in them. Burns v. Doyle, 28 W. 460 ; Ball v. Bowe, 49 W. 495". 3. "The jurat must be read with the body of the affidavit", and with- out it the paper is not an affidavit. See Service. — Reed v. Catlin, 49 W. 686, 690. 4. "The jurat, signed by the officer administering the oath, is the usual evidence of 'the fact that the oath was administered: 5. The rule is general and universal that the person who administers the oath in such case shall verify the fact by his signature to the jurat. It follows, therefore, that in the absence of such signature the presump- tion is that no oath was administered". 6. In the absence of such jurat, placitag it there after judgment, by the county judge, with a memorandum that it had been omitted inad- vertently, does not cure the defect in a verified petition, where the orders on the petition do not recite that the petition was verified. $ee also Incompetents. — Appeal of Royston, 53 W. 612, 619. 7. A petition to appoint a guardian under sec. 3976, is held to be duly signed and verified, where the petition is dated and signed by the peti- tioner, and the certificate is not dated or signed by the petitioner, but is officially signed by the officer, "and the order of the county court made on that day recites that it was made upon reading and filing the verified petition". 8. The statute, "does not say verified by affidavit, nor in any particular mode or form, as in the case of pleadings. It simply requires the peti- tion to be verified. By this we understand the petition must be proved or confirmed by 1 the oath of the petitioner". — State ex rel Hoffmann v. Day, Gdn., 57 W. 655, 660. 9. "The jurat not being signed, the legal presumption is that the paper in the form of an affidavit of appeal was not sworn to; in other words, it is not an affidavit. Royston 's App., 53 W. supra". 10. ' ' It is not sufficient that the appellant is able to prove by parol that he actually made the required affidavit" signed by him. "No such evidence is admissible. (Cases)". 11. "Had the justice been living, the court might properly have allowed him to sign the jurat, if he co^ild truthfully do so". "But the VESTING OP ESTATES, ETC, 1195 justice having died, it is impossible to supply the omission, and the appeal cannot be saved". —Kidder v. Fay, 60 W. 218, 219. 12. "The official certificate, with proof of authenticity of the signa- tures of the affiant and the officer, was sufficient prima facie proof of the proper execution of the affidavit. (Cases)." :'.. 13. "This presumption of fact arising from the certificate* may, of course, be rebutted by evidence that the oath was never actually admin- istered, buj; such rebutting testimony must necessarily be 1 strong and convincing to authorize the court to take the ease from' the jury". —Komp v. State, 129 W. 20, 23. 14. In an action for damages brought by an infant, by guardian ad litem, as to verification of the complaint "by the guardian ad litem positively and of his own knowledge", — it is. held sufficient, and "that the guardian ad litem verifies as a party. Therefore the rules respect- ing verification by a party (not as agent) apply. (Cases)". —Phillips hy Gdn. v. Portage Transit Co., 137 W. 189; 194. 15. "Where the allegations of a complaint are positive, and the verifica- tion by attorney under sec. 2666, is as to "its being 'true to his own knowledge, except as to those matters therein stated upon information and belief, etc.', with no statement as to "the ground of, his belief ", : — the verification is held defective. —Hecht v. Chase/ 158 W. 342, 344. VESTING OP ESTATES, ETC. See also Afterborn Child. Construction of Wills. Trusts. "After the death" of daughters, 28. Enjoyment postponed, 28. ' Equitable interest only, 31. Subject to being divested, 30. Subject to ripening, 31. Present title in executors,; 29. Took effect immediately, 30. Upon death of testator, 28. Avoidance of absurdity, 39. Ordinary sense modified, 39. ''Without issue", added, 42, 43. Words excluded, or abridged, 39. Conditional fee to children, 144. Terminating at their death, 144. Condition precedent: Failed, : because impossible, 60. Fitness to take at thirty, 56, 57. Arrives before testator's death, 56. Condition precedent — continued Fitness, etc. — continued Executors to determine, 56. Condition impossible, 58. Time limited had •expired, 58. Eule as to "impossible", 59. ,-, Eegardless of cause, 59. Condition subsequent: ifavoredj 38, Addition of "without issue", 42, 43. Especially heir against stranger, 38. If heard from in ten, years, 52. After ten years, title vesting, 75. Condition occurred ; divested, 76. Interest in divorce case, 53. Condition valid, failed, 54. Wife, possession entitled, 54. Present estate vested, 52. Valid condition annexed, 77. 1196 PROBATE AND GENERAL LAW, CODIFIED Condition subsequent — continued Not divested, prior to, 51. Descended to children, 51. Not necessarily postpone vesting, 45. Executors to hold, pendency, 46. Once vested, not divested, 49, 50. Counterpart of one precedent, 50. If impossible later, 49, 50. Vested subject to, 42, 48. Vested subject to reforming, 48. "When vested, when contingent, 88. Conditions void; first taken, 55. "Death of either", then to heirs, 139. Death after testator 's death, 140. Prom whole purview of will, 141. " Remaining living heirs", 142. Surviving children; grandchildren, ~ 142. "Without issue", supplied, 143. Harmonize other provisions, 143. ' ' Death " " without issue ", 95. May mean, without issue born, 100. Statute, at death of ancestor, 100. Ordinarily, at testator's death, 97, 166. Here, death after testator 's,,.99, 167. Yields to will intent, 98. To W. with legacy condition, 94. Vest, subject to legacy charge, 96. Subject to divesting, 96. Widow and remainderman survive, 95. "Deceased child", issue of, 61. Died before trust ended, 61. After the testator, 61. Leaving widow, no issue, 61. Equitable vested immediately, 63. N. Y. construction, 63. Meant death before testator, 62. Will not to contrary, 62. No other disposition of, 64. Pay income to, evidence of, 65. "Deceased child" without issue, 17ff. Language interpolated, 175. Mean dies in testator's life, 175. "Revert to other children", 175. "Revert", meaning to "go to", 176. "Divided", "after her death", 168, 171. Not present devise, 169, 172. Lapsed on child's death, 169. Went to the others, 169. Postpones veBting any, 173. Statute not change effect, 173. Those alive at division, 170. "Divided" at widow's death, 69, 78. Among children surviving, 83. Children and sister, same class, 85. Members uncertain till wife's death, 86. Intent of testator, 85, 86. Referred to wife's death, 83. Divided, etc. — continued ' ' Between my lawful heirs ' ', 87. After life tenant's decease, 87. Division after wife's death, 81. Not vest until then, 81. General rule, contingent, 73. Primary, intent governs, 73. Intent, vest at testator 's death, 70, 82. No survivorship provision, 72. Question of will intent, 71. Treated as bequeathing personalty ; 79. Implication of sale only, 79. Not as future land estate, 80, 82. Executors : Legal title to personalty, 5, 9. Act as trustees thereof, 6, 7. Realty bought with personalty, 9. Authority to take title, 11. Then becomes realty, 10. Realty; possession during lives, 14* Legal estate as trustees, 15. Common law; statute, 18. Declared purpose only, 17. Extent required o;nly, 16. Trustees by implication, 12. Duty to administer as such, 13. When acting as trustees, 8. Future, without intervening, 153. "Heirs" of living person, 159. Heirs at his decease, 159. Homestead vests : Widow and then living heirs, 174. "In case of his death", 111. Death after testator's, 113. Not frustrate whole scheme, 113. Disposition unaseertainable, 114. Possible intestate estate, 115t Wife dying, is not widow, 116. Son survives, no issue, wife dies, 112. Without issue surviving, 111. Otherwise to his issue, 112. Then to his widow, 111. Income: During daughters' lives, 4, 32. Accumulate as to realty income, 33. Severable, though same clause, 34. Statute, not personalty income, 34. Disposition of remainder, 32. Implication to accumulate, 32. Silence regarding it, 32. "From and after", certain age, 35. Accumulate during majority, 35. Refers to enjoyment not vesting, 35. Not provided according to law, 107. Right to fund carries, 110. Being nothing to contrary, 110. Silence; directed to accumulate, 152. Added to residuum, 149. Not permitted as to realty, 152. VESTING OP ESTATES, ETC. 1197 Income — continued Vested right only carries, 110. Income ' ' divided ' ' for ten years, 133. After life estate to wife, 133. Children's interest, testator's death, 135. Deceased child's heirs and widow take, 138,. Legal against all but trustees, 137. Present grant, future division, 136. Subject to life estate and trust, 136. Executors in trust ten years, 133. Principal then remaining, 133. Bequeathed to children, 133. Inheritance words unnecessary, 40. "Heirs of his body", 40. Statute dispenses with, 41. "Interest" to "be paid" to sons, 101. During their lives, 101. Interest, sons, then survivor, 102. Principal after their death, 101. Interest according to law, 107. Living grandchildren at 21, 101, 106. Not vest immediately, 103. On decease of representatives, 105. Vest at sons' deaths, 104. Leanings; doubtful cases: Absolute, not defeasible, 47. First taker, not second, 47. General inheritance rules, 47. Primary intent, not secondary, 47. Vested, not contingent, 47. "Pay as necessary to needs", 128. Absolute and vested, 129. "Direction" onlyj not controlling, 130. Intention controls, 13T. No person to determine "needs", 132. She herself then determines, 132. Sum of $800 ; dies shortly after, 128. Time to payment only, 129. Pending majority arriving, 36. ' i Death under majority, 36, 42. Leaving issue, 37, 42. Equitable in beneficiary, 37. Legal, except as to trustees, 37. Income or estate, applied, 36. Trustee, subject to trust, 37. Legal title only, 37. Trustee with power of sale, 36. Vested, condition subject, 42. Pending life benefits: Executors, trusts by implication, 4. Hold title of personalty, 8. And realty purchased with, 9. Realty after purchase, 10. Income and corpus, 4. No express title provision, 8. Pending life benefits — continued Executors, etc. — continued Not appointing them trustees, 4. Realty title also as trustees, 14, 15. Extent required only, 16, 17, 18. Realty and personalty tied up, 4. Subject to condition subsequent, 44. Vesting subject to a life, 55. Personalty : , Legal title in, executor, 5, 9. Office, nature of trust, 6. .Subject to trust duties, 7, 8. By law or the will, 7. • Upon the probate, 5. ■, Where executors are trustees, 8. Realty after investing, 10. Executors take title, 11. Remainders : Legacies, condition precedent, 26. Contingent, may not happen, 26. Legacies payable in future, 25. Vested, not condition precedent, 25. Not vested, contingent, 22. Rule; realty, personalty, 27. Remainder subject to life of E., 117. C. one-third; P. oile-third, 117. H. dies before E. dies, 117. "Pay over to", intended conversion, 124. Necessary to intention, 124. Realty as personalty, 125, R. and C. legal, vested, 118. Trustees of H. legal vested, .119, , H. against all but trustees, 120. • Equitable remainder, 123. Vested in his children, 123. Trust one-third to son H., 117. Residue to children, 162. "But", "die without" issue, 162. "Revert" to the others, 162. Death rule ndt to be extended, 166. Circuit court's decision, 167. Direct devise, take absolute estate, 163. Intent reasonably certain, 163. Not search to defeat, 163. No language overriding, 163. Residuary estate : definition, 145. Future estate, presumptive, 153. May be several; intent, 146. Rents and profits; no provision, 148. Added to residuum, 149. Future income distributed, 151. Until residuary determined, 151. Realty income distributed, 150. Silence: directed to accumulate, 152. Not permitted as to realty, 152. Vested within four years, 147. "When to take effect, 147. 1198 PROBATE AND GENERAL LAW, CODIFIED Residuary estate — continued Beneficiaries 1 then living, 147. After widow 's death, 147. Eules as to vesting: Death of testator ordinarily, 97, 163, 166. Direction to divide, 109. Displaces general rule, 109. ' Those at division time, 109: ' Effect at testator's death, 108. Yields to intent; death subsequent, ' 98, 99, 167. Death of child ; bequest in terms to, ' •" 178. Decease in testator's life; 178. "Divided" at specified ' time, 170.- General rule; realty, personalty, 27. ' So held as to both, 27. Income, vested right only carries, 110. Intent, reasonably certain, 164. ' -Not search to defeat, 164. Law favors early vesting, 179'. In ease of uncertainty, 179. Legacies future time certain, 25. Vested, not subject t!o condition, 25. Legacies, condition precedent, 26. Gontingent; may never happen, 26. Nearly equivalent to "possessed", 22. None of rules inflexible, 126. Will and circumstances, 127. Yield to intention, 126. Personalty vesting; civil law, 23. Precedents of little value, J65. Intent reasonably clear, 165. No,t invoked to override, 165. Remainder not vested, contingent, 22. Eight to fund itself, 110. Nothing to contrary, 110. "Vests right to use of, 110. Statute, differs from common law, 84. , Statute, common law, classified, 83, Term , ' ' vesting ' ' ; limitations, 84.' Superior to all others; intent, 177. Read but of language, 177. , "Vested?', in, English law, 24. , As to, future, interests, 24. Not condition precedent, 24. ; .' Vesting, 'immediately, 121. Legal and equitable, 121. Unless will clearly contrary, 121. "Vesting", originally realty only, 22. Vests; controls doubtful case, 157. Rules as to, etc. — continued Not looked to defeat intent, 158: Will first consulted ; statute after, 134. Operation not to be reversed, 134. Specific devise to trustees, 154. Income to widow; remainder, 154. No language to postpone, 155. Nothing uncertain in will, 156. Vested, testator's death, 154: Suspending conveyance, 68. Vested at time expiration, 68. Ten-year trust to trustees, 1 160. Directs pay; give andTbequeatb, 160. Present grant; vesting, 161. Postpone distribution, 161. Time postponed only: Annexed to payment or gift, 21. Vesting not deferred, 20, 122. Title : Beneficiaries cannot confer, 74. Where it vests ' in trustees, 74. Class devise; at testator's death, 19. ''Nothing indicating contrary, 19. 1 Divested, condition occurred, 76. Executors as trustees, 8. Personalty; purchased realty, 9. Legal in heirs; trustee control, 90, 91. Tied up during' lives, 4, 8, 9. Realty title as trustees, 15. Extent required only, 16, 17, 18. Trust, convey to issue, 67. Not vest in cestui 'que trust, 67. Trustees: Executors as, by implication, 12. Duty to so administer, 13. Hold personalty, as trustees, 8.. Realty purchased with,, 9. Realty title as trustees, 15,„ Extent required only, 16, 17, 18. ' ' Trustee to assume , control ' ', 89. Legal title in beneficiaries, 90. Income to heirs, 93. With trust power in trustee, 91. Power of sale, also, 96. Life estate; remainder, 89. Will rights':' Become vested at testator's death, 1, 66. , Executors acting as trustees, 8. Passing title, requires probate, 2. Relates back to the death, 3, 66. "Without issue," supplied, 42, 43, 143. 1. "Of course, the rights of the parties under the will became vested immediately upon the death of the testator. (Many cases). VESTING OP ESTATES, ETC. 1199 2. To be effectual, however, in passing title, the statute required that it should be admitted to probate.' (Sec. 2294) ; 3. But, when so admitted, it related back to the death of the testator, and is to be treated as speaking from that moment", p. 552. 4. The testator "tied up during the : lives of his daughters, respec- tively, for his grandchildren, to be distributed to them as indicated, on the death of his daughters", "almost the entire corpus of the estate", real and personal and much "of the net income", and imposing trusts upon the executors by implication, without appointing them trustees, and questions arise as to the vesting of the title, of certain corpus, also certain income, during the lives of the daughters, p. 554. 5. "Of course, the legal title to personal property becomes vested in the executor on the probate of the will. Melms v. Pfister, 59 W. 192 (Cited under Jurisdiction), and cases there cited. 6. The office of an executor is in its nature a trust, in the discharge of which he acts as trustee. (Cases). 7. The executor takes such title, therefore, subject to the trust and duties imposed by law, even where none have been ' specifically desig- nated or declared in the will. Sec. 3785", and other statutes, p.' 5,55. 8.' Where "the will contains no express provision as to who shall have the title to any of the property, real or personal, during the lives of the daughters", but imposes certain "trusts and duties" upon them as executors, such executors are "trustees to hold the property, espe- cially the personal estate, in trust for the benefit of" the remainderman, and "as to such personal property they took and are 1 holding the legal title'", p. 566. " ,' 9. "The executors hold the legal title in trust, not only to the per- sonal estate, but also to such real estate as has been or may hereafter be purchased with the. proceeds of the personal property, 10. It would seem that the real estate so purchased must be treated as real estate after it is so purchased. (Cases)." . , 11. "The authority to convert personal property into real estate, by necessary implication includes the authority to, take title to. the lands thus purchased in their own names as executors in, trust, for the sur- vivors",— grandchildren,, they being uncertain, "until the, death of the daughters".,', .'...,'.-,.,.: ., , . ! ,:; ;•,:» 12. " Since the will expressly, or by necessary implication, imposes upon, the executors" the. duties of trustees, without; naming , them as such, or giving "the property to them or any one in trust, 13. "We must hold it to be the duty of the executors, and the survivor of them, asjsuch, to administer the estate' acpording to the provisions of the will' notwithstanding the duties thus imposed include' such as are usually 'performed by a trustee,,- This is the rule indicated by the authorities. (Many cases)", p. 558. 14; "Under the will, the executors and the survivor of them as such trustees must have the possession of the real estate during life, with 1200 PROBATE AND GENERAL LAW, CODIFIED the right to do everything necessary or convenient to carry into execu- tion the duties and trusts imposed by the will. 15. Such possession and rights constitute a legal estate which must continue during the lives of the daughters ' '. p. 562. 16. "But the estate in fee will only be implied to the extent required to carry into execution the trusts imposed. (Cases). 17. A general devise to executors in trust vests no estate in them except for such of the declared purposes as require that the title be vested in them. Manice v. Manice, 43 N. Y. 303. 18. The rule at common law, as well as by the statute, (sec. 2073) is that the trustee takes that quality of interest only which the purposes of the trust require and the instrument creating it permits. Nicoll v. Walworth, 4 Denio, 388." p. 560. 19. "Where there is nothing to indicate the contrary, a bequest or devise to a class of persons takes effect in favor of those continuing -the class at the time of the testator's death. (Many eases) ". p. 564. 20. "Where the time of payment or distribution is merely postponed for the convenience of the fund or property, or to let in others, the vesting will not be deferred until that period. (Citations). 21. In such cases the question is whether the time named is annexed to the payment or to the gift itself", p. 565. 22. It is said, according to Hawkins on Wills, as to the confused "use of the word 'vested' when applied to personal property" "that originally the word had reference only to real estate. It signified the acquisition of a portion of the actual ownership", and "thus 'vested' is nearly equivalent to 'possessed'. 'AH remainders, not vested, are in fact contingent'." 23. "The rules and expressions relative to the vesting of personal estate have been derived in great measure from the civil law". 24. "The only definition that can be given of the word 'vested' in English law, as applied to future interests, other than remainders, is that it means, 'not subject to a condition precedent.' " 25. "Prom these definitions it may be said with propriety that lega- cies payable at a future time certain to arrive, and not subject to a condition precedent, are vested. (Citations)." 26. ' ' On the other hand, legacies only payable on an event which may never happen, and hence subject to a condition precedent, are con- tingent". 27. There is thus "deduced from the authorities, as applicable to both real and personal property, this rule: 'A devise or bequest of a corpus or aggregate fund to children as a class, where the gift is not immediate, vests in all the children in existence at the death of the testator, but so as to open and let in children subsequently coming into existence before the period of distribution'. Hawk, Wills, 71, 72; and see, also, 2 Jarm. Wills. This is certainly the rule in this country as to real property. (Many cases) . " So held in this case, as to both realty and personalty, p. 565. VESTING OF ESTATES, ETC. 1201 28. A devise and bequest of "the residue and remainder" to grand- children, "after the death of my said daughters", is held to vest, both such real and personal estate, "upon the death of the testator", and the decease of the daughters refers "to the time when the grandchildren will come into complete possession and enjoyment." p. 570. 29. "By the word 'vested' we do not mean that the grandchildren have the present title to the personal estate" which "is vested in the execu- tors" during their lives. 30. "We simply mean that such legacies and bequests took effect, in point of right, in the grandchildren living, immediately upon the death of the testator, subject, of course, to their respective interests being divested by dying without issue or diminished in quantity by future births". 31. That is, each became "the owner of an equitable interest" in a share, to "ultimately ripen into and become an absolute legal title". McArthur v. Scott, 113 U. S. 340. p. 573. 32. The failure to dispose of a large portion of the income, and "the silence ' ' regarding it, ' ' and the disposition of ' all the residue and remainder' of the estate on the death of the daughters, is, as we think, by necessary implication, a direction to accumulate such undisposed of portion of such 'net income". Phelps' Extr. v. Pond, 23 N. Y. 80. (Followed in Will of Stark, 149 W. post), p. 578.' 33. And it is held under the statute, sec. 2061, that such income be accumulated as to the realty income, until each grandchild becomes of age, after and at which tima it must be paid to each respectively, from and after time each minority ends. 34. But "our statutes do not extend to accumulations from personal property" and though "given by the same clause of the will upon the same trusts, yet they are severable, and the validity of the one does not depend upon that of the other. Knox v. Jones, 47 N. Y. 389 ' '. p. 583. 35. As to the grandchild H. it is held "the words 'from and after the time when he shall attain the age of twenty-five years', refer to the time when it was designed that he should come into the complete possession and enjoyment of such fractional share of such net income, and not to the time when it became vested in him in point of right (cases)", the accumulation, however, to be continued only during minority. —Scott, Extrx. v. West, 63 W. 529, 552. 36. A testator gave all his estate, real and personal, to a trustee, "with power of sale and reinvestment", who "at all times, until A., who is my only child, shall obtain the full age of twenty-one years, shall remain in possession of all the residue, and remainder", and to apply the income, "or such part of the whole estate" as necessary for such child, and the remainder "shall be paid and transferred to my said child, the said A., as and when she_ shall obtain the age of twenty- one years. But, if the said A. shall die under the age of twenty-one years, then all my aforesaid estate" not applied, "shall," immediately after 'her death be" applied for other purposes named. Zimmerman — 76 1202 PROBATE AND GENERAL LAW, CODIFIED 37. Such child A. having deceased under the age of twenty-one. leav- ing a child G. surviving, it is held, under sees. 2086, 2087, 2088, that the vesting of the estate "in the trustee, subject only to the execution of the trust", "refers wholly to the legal estate or title", and that "these sections are consistent with a vested equitable interest in the cestui que trust, and in fact 'a legal estate in the lands, as against all persons, except the trustees and those lawfully claiming under them'; and especially that would be so as to personal property ' '. Scott , v. West, 63 W, supra, and McArthur v. Scott, 113 U. S. 340, therein cited. (Cited and followed in Will of Prasser, 140 W. post). 38. "It .may be stated as a general proposition, that in construing wills courts are inclined to favor conditions subsequent rather than con- ditions precedent, especially when such a construction favors the right- ful heir of the testator as against a stranger". 39. "To avoid an obvious absurdity, repugnance, or inconsistency with the declared intentions of the testator as gathered from the whole instrument, however, the ordinary and grammatical sense of the words employed may to that extent be modified, extended, or abridged, but no further. ( Cases) ' '. 40. As to "and to his heirs or the heirs of his body", "under our satutes such words are unnecessary in order to convoy or devise an absolute or indefeasible estate in lands, much less in personal estate". Sec, 2206. 41. Sec. 2778, "has been rightfully held to dispense with the neces- sity of words of inheritance in a will, in ^order to convey an absolute title in fee. Little v. Giles, 25 Neb. 313". 42. Considering the statute, sec. 2289, as to issue surviving a deceased legatee, and "independent of that statute", it is held "that, upon the death of the testator, the estate vested in A., subject only to the condi- tion subsequent, if she died under the age of twenty-one years, without issue, then the gift over to R. and the society would become effectual, but that, as she left a child who survived her, such child inherited the estate from his mother". 43. (Approvingly set forth in In re Donges's Estate, 103 W. 497, (See After-born Child), saying "the court held that the plain intent of the testator justified the addition of the words 'without issue'.") —Baker v. Est. of McLeod, 79 W. 534, 540. 44. A will dated, 1874, gives a large estate to the wife for life, except $10,000 to each of the children, and the remainder equally to the chil- dren, and to the issue of any child who may 'decease before the wife. A son D. was placed under guardianship as an inebriate in 1880, and a codicil, dated 1883, provides that the "son D. shall not have nor receive any" estate, "unless within five years after my decease he shall have reformed, and become a sober and respectable citizen", the executors to be sole judge thereof ; and then, on such reformation, ' ' I give, devise and bequeath to him, and order paid over to him, one-half of the VESTING OP ESTATES, ETC. 1203 property and estate bequeathed to him in my will aforesaid''; and at the end of another such five years, the. other half to be so disposed of. Such share was to be held in trust for such disposition and for the care and support of D. and his family, and on failure of such reformation as stated then eventually such "part of my estate bequeathed and devised" to D. shall be paid to his children. The testator died in 1889, and the son D. died a year later, leaving children. Held, — 45. "In so far as the codicil in form gave, devised, and bequeathed such share of the estate to D., it was merely confirmatory of the grant and bequest in the original will, and did not necessarily postpone the vesting 1 of the equitable right to the gifts until the expiration of the time therein specified. 46. Unless he so reformed he was not to have or receive any part ' ' of the estate, but the executors were to hold his share " 'in trust to be disposed of and paid over as' provided in the codicil", "and finally dis- tributed as and at the times therein prescribed". 47. "It is undoubtedly true that 'in the construction of wills the law, m doubtful eases, leans in favor of an absolute, rather than a defeasible^ estate ; of a vested, rather than a contingent, one ; of the primary, rather than the secondary, intent; of the first, rather (than) the second, taker, as the principal object of the testator's bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible'. ' Smith's Appeal, 23 Pa. St. 9. (Approvingly quoted in Patton V. Liid- ington, 103 W. post). 48. Upon the principles stated and the authorities cited in Baker v. McLeod's Estate, 79 W. supra, we must hold that D.'s right in equity to his share of the estate vested in him immediately upon the death of his father, subject only to be divested by his failure to perform the con- ditions subsequent named in the codicil''. 49. "The rule of law is well settled, and in fact elementary, that, 'if a condition subsequent be possible at the time of making it, and becomes afterwards impossible to be complied with, either by the act of God, or of the law, or of the grantor; or if it' be impossible at the time of making it, or against law,— the estate of the grantee, being once vested, is not thereby divested, but becomes absolute. (Many cases)'. 50. (Approvingly qWted in Stark v. Conde, 100 W. post, with the addition that, — "The counterpart of the proposition seems tq.be equally true when applied to a condition precedent"). ,. 51. The case at bar is clearly within the, rule stated. The result is that, "the right to the estate in question haying become vested in T>., the same was, not. divested by reason of his death prior to the expiration of the time in which he was required to reform, but upon his death descended to his children and widow, as prescribed by the statutes in ease of intestate estates". (Followed in Williams v. Williams, 135 W. post). ~Buirrikam v. Burtiham, 79 W. 557,: 565. 1204 PROBATE AND GENERAL LAW, CODIFIED 52. Where a testator let the residue of his estate to an only son T., whose whereabouts were unknown, and if he "will not be heard from within ten years, ' ' devised such residue to nephews and nieces, the will is held ' ' as vesting a present estate in fee in T. " 53. "The condition, if valid, is a condition upon which the estate of the nephews and nieces depends for its inception, and not the estate of T. T. thus having a present estate in the land, it was competent for the court in the divorce action" brought by T.'s wife, "to divest him of that estate, and vest" in the wife "all the estate which T. had". 54. She is entitled to the possession of the realty, as against the executor, though the estate is not finally settled, there being sufficient personalty on hand to pay the debts and legacies. (T. not having been heard from the condition was subsequently held valid, and the nephews and nieces given possession, in Connor v. Sheridan, 116 W.^ post). —McMcmany v. Sheridcm, 81 W., 538, 541. 55. As to vesting estate absolutely in the first taker where there are void conditions ; and also vesting when subject to a life estate. See Con- struction of Wills. — Saxton v. Webber, 83 W., 617, 630. 56. The will gave to a trustee, a legacy, "in trust for the use and benefit of" C, "upon the limitations and conditions", that when C. "attains the age of 30 years", "if at that time said trustee deems" C. "competent to care for and make prudent and proper use" of the sum, it shall be paid over to him, otherwise to be paid to certain nephews and nieces. C. became thirty years of age about eleven months before the. testator's decease about seven years after the date of the will, and the executor did not then or subsequently deem C. competent to care for the fund. The county court adjudged the legacy to the nephews and nieces, and the circuit court that it vested in C. ; held,— 57. "By the terms of the will C. was only to receive such bequest on the condition of his fitness so first ascertained. Such fitness so ascer- tained was a condition precedent to his receiving the bequest." 58. There being no executor with power to determine the question of fitness when C. arrived at thirty, "the court are of the opinion that the circuit court was right in holding, in effect, that the executor had no right or power to determine whether C.'s business habits or personal conduct answered the requirements of the will, for the reason that the time limited by the will for making such determination had expired prior to the death of the testator ; and hence the condition was impos- sible of performance as required by the will. 59. This ruling brings the case within the well-established rules 'that where a condition precedent annexed to a devise of real estate or of a charge on realty becomes impossible to be performed, even though there be no fault or laches on the part of the devisee himself, the devise fails'. 2 Jarman Wills, 849". Scott v. West, 63 W. supra; Burnham v. Burn- ham, 79 W. supra. VESTING OP ESTATES, ETC. 1205 60. "The result is that the bequest in the ease at bar fails, by reason of the nonperformance of the condition, and hence passes to the resid- uary legatee, under the residuary clause in the will." —Stark, Extr., v. Cmde, 100 W. 633, 640-43. 61. Where a will, in general, gave the estate to the executors in trust during the life of the widow, with directions, after paying an annuity to the widow, to distribute the balance of the rents and profits "among all my children equally", "the issue of any deceased child taking by representation", and upon the death of the wife, "to divide my estate equally among all my children", "the issue of, any deceased child of mine to take by representation", and a son died after the testator' and before the widow, without issue, leaving his widow the sole beneficiary under his will, — it is stated : 62. "There is nothing in the will to indicate that by the use of the words 'deceased child' the testator meant a child who should survive him and then die prior to the death of his widow", and "the testator referred to such of his children asi should die beore he did"; 63. Referring to our statutes of uses and trusts, taken from New York, and as construed there, and noting that the persons are "in being who would have an immediate right to the possession! of the estate upon the ceasing of the intermediate or preceding estate (sec. 2037; Saxton v. Webber, 83 W. supra)," "we must hold that immediately upon the death of the testator the reversionary and equitable interests, in the estate became vested in his six children then living, equally"; 64. And as the will does not "anywhere undertake to make any dis- position of the share of any such child dying without issue", and upon the death of such son, "his share thereof passed to, his widow, as devisee and legatee", and "she thereupon became entitled" to the same share of the income and residue of the estate "as her husband wquld have been entitled to if he were still living." (Many N. Y. and other cases) ; Baker v. McLeod's Est., 79 W. supra ;, Burnham v. Burnham, 79 W. supra. 65. "The direction for the trustees to pay over or distribute the- net income of the estate", to his children at stated periods, "is evidence of an intent on the part of the testator to vest the equitable estate in them immediately upon the, death of the testator. In re Brown, 154 N. Y. 314". —Patton v. Ludington, 103 W.,629, 640-650. 66. "The rights of the legatees became vested when the will was pro- bated, and related back to the time of the death of the, testator:' Scott v. West, 63 W. supra". — Jachem v. Duteher, 104 W- 611, 614. ... 67. A devise in trust, to be, conveyed to .issue,, if any, of the cestui que trust at his decease, held never to have vested in him. See Construc- tion of Wills —Webber v. Webber, 108, W., 626, 629. 1206 PROBATE AND GENERAL LAW, CODIFIED 68. A remainder over, suspending conveyance for twenty-one years, is held to vest in fee at the expiration of such time. See Construction of Wills. —Will of Kopmeier, 113 W., 233, 238. 69. Following Patton v. Ludington, 103 W., supra, in case of a will giving the widow a life estate, " 'if she remains my widow, and at the time of her death to he equally divided between these four children' ", naming them, and the widow having remained unmarried, and three of the children having died before the widow, it is held, referring to sec. 2037 (But see, In re Albiston's Est., 117 W. post),— 70. "That the testator intended that the interests of the four children should vest at once upon his death"; 71. ' ' This question is simply a question of intent, to be gathered from the language of the whole will", and such intent "is manifest". 72. There were other children and "there is no provision for sur- vivorship", nor "for the disposition of the share of " a child "dying before the termination of the mother's estate". 73. "While the general rule is that a gift will be deemed contingent when it is found only in a direction to divide at a future time, this is subordinate to the .primary rule that the intent, to be collected from the whole will, must prevail". —Smith v. Smith, 116 W., 570, 574. 74. Where title vests in trustees under a will, the beneficiaries cannot confer the title by deed. See Trusts. — McWilliams v. Gough, 116 W., 576, 584. 75. Under the facts and law therein, as set forth in McManany v. Sheridan, 81 W., supra, it is held, after the ten years that the title vested in the nephews and nieces ; 76. The condition subsequent having occurred, the title of fee became divested, and vested in the nephews and nieces, it not being "a condi- tion, annexed to the devise which has become impossible by the act of God or the' law or the devisor". (Cases). 77. ' ' There is nothing in the condition annexed to the devise contrary to law or public policy, or good morals, or in terrorem ' '. —Connor v. Sheridan, 116 W., 666, 671. 78. A will gives a life estate to the wife, and at her death provides, — "I will and direct that all my property", realty and personalty, "be divided into two equal parts; one part" given "to the brothers and sisters" of the wife "share and share alike; if any of her said brothers or sisters have died or shall die before my said wife, the share which would have gone to him or her shall be equally divided between his or her children". A brother A,, died before the wife, without descend- ants, testate, leaving a widow ; held : 79. "It is plain from the terms of the will before us that it must be treated as bequeathing personal property. While there are no words VESTING OF ESTATES, ETC. 1207 directly authorizing the executors to sell real estate, the directions of the will cannot be earried out except upon the basis of the conversion of the entire estate into money or its equivalent after the death of his wife. In no other way would it be feasible or possible to divide the estate into 'two equal parts' and give" it as directed. Becker v. Chester, 115 W. 90 (See Equitable Conversation). 80. "It results from this that sec. 2037, concerning future estates in land, cannot be considered as having any bearing upon the con- struction". 81. In view of the division to be "after the death of" the wife, and the use of "the phrase 'the share which would have gone to him or her'," "no estate was to vest absolutely in the beneficiaries until the close of the life estate ' ', and therefore, no estate passed to the deceased brother A. 82. "There was an error in" Smith v. Smith, 116 W. supra, "in referring to sec. 2037, as in any way having a bearing thereon", there being also an equitable conversion there, and "the decision was based principally upon the language and apparent intent of the will". —In re Albiston's Est., 117 W. 272, 274. 83. A will gives"land and appurtenances" to the wife "during the term of' her natural life and after her death to be divided equally among my children who may survive", and "an equal ishare" to a sister J., , "if she survives the death of my wife". The county court decided that "the words of survivorship referred to the death of the" wife, and the circuit court that they referred "to the death of the testator"; the county court's 1 decision is affirmed. (The yesting of estates, common- law and statutory, is considered at length, and classified by Marshall, J., in the syllabus). 84. "The term 'vested' is used in sec. 2037 in a much broader and far different sense than that of the common law", and the statute "deals mainly with limitations upon the right to absolutely suspend the power of alienation." 85. "It seems unmistakable", "that the purpose of the testator was to put his children and his sister J. into one class for distribution of his estate in remainder equally after the death of his wife"; 86. "That the members of the class among whom the testator intended his estate in remainder to be divided must remain uncertain until the death of the life tenant", the "vesting in a < common-law sense" being postponed until such time. —In re Moran's Will, 118 "W., 177, 184. 87. As to vesting of remainder, after decease of life tenant, to "be equally divided ' between my lawful heirs." See Construction of ■Wills. —In re Cowley's Will, 120 W., 263, 265. 88. As to "legacies payable at a future time" on condition, when vested and when contingent. See Construction of Wills. •; —In re Paulson's Will, 127 W. 612, 617, 1208 PROBATE AND GENERAL. LAW, CODIFIED 89. A will providing, as to the residue, — 'both real and personal' M give and bequeath to' a daughter and grandson in equal shares, and in case the daughter predecease her husband then 'her share of my estate be paid to her ' four children, and certain debts of the grandson ' charged to him and deducted from his share ', and ' at the settlement of my exec- utor's account' 'I desire the said probate judge to appoint my said executor', 'trustee, to assume control of all my estate, both real and personal,' — the wife having a life estate in the realty, and an annuity, with the right of the heirs, after 'claims are liquidated', 'to continue receiving the proceeds ', on securing the , wife 's annuity, — it is held : 90. "The will plainly contemplates vesting of the legal title" in the grandson and daughter, 91. "With a power in trust in the executor as trustee giving ,him full control, 92. Including power to sell the property during the lifetime of the widow subject to her right and subject to the right of the heirs, 93. Themselves, to have the income of the property as it was left, upon condition of their giving security for payment of the annuity". See also Precatory Trusts. —Wolbert v. Beard, 128 W. 391, 396. 94. A will gives the wife a life estate, and provides, — 'after the death of my said wife I dispose of my property as follows : ' To a son W. a farm 'upon the express condition, however, that he shall pay to my daughter P. the sum of $5,000 >within one year after the death of my said wife'; 95. 'And it is further provided that in. case of the death of my said son W. without issue, then and in that event', he gives said realty to grandchildren 'who may be living at the time of the death of W. The widow and "children survived the testator, but at the time of the trial in circuit court the widow died;" held: 96. That W. received, as found by the circuit court, ' ' an estate in fee, defeasible, however, at his death at any time without having issue surviving him", "and subject to the charge of the legacy of $5,000", "and that, upon the death of said W. without issue then surviving, his estate will then cease and the lands will then vest in fee in" grandchil- dren "then living, and will so vest charged with said legacy" "so far as the same may then remain unpaid". 97. "The rule, long recognized, that such a phrase as a gift to one with limitation to others in case of his death, or death without issue, ordinarily is to be construed as applying only to the condition of things prior and up to the death of the testator", (Patton v. Ludington, 103 W. supra),' ( 98. "Like all others with reference to construction of wills, is but a rule of probability and yields readily. to anything in words or context to indicate a different intention of the testator". (Cases). 99. The "indicia" "convince us that wherever, the expression 'death of W. without issue' was used: by the testator in this third paragraph he contemplated a death subsequent to his own as much as one before". VESTING OF ESTATES, ETC, 1209 100. "Courts, have held that ' death without issue' may mean death without issue born, but that construction has been excluded, except where clearly intended, by our statute (Sec. 2046), which > provides that" it means 'issue living at the death of. the person named as ances- tor:' (As to this case, as to the legacy payment, see also Steele v. Korn, 137 W. 51; See Legacies. And see also Hohnbach v. Hohnbachj 151 W. post) . _ Korn v. Friz, 128 W. 428, 431, 101. Where the. will provided that 'the interest of my property shall be paid' to two sons 'during their lives' and 'after the death of my sons the principal shall go to their living children, at the age of twenty- one', it is held: 102. "That the entire interest shall be" "paid to both sons while living, and thereafter tothe survivor until" his decease; 103. "That the title, absolute" did not "vest, in any grandchild prior to the termination of both life estates;" 104. "That upon the death of both sons the principal will imme- diately vest in the then living grandchildren, share and share alike, as tenants in common ; i , 105. That in case of the death of anyone of them thereafter before the arrival at the age; of twenty-one years his share will go to his per- sonal, representative ; 106. That the share of each will be payable to him upon his arrival at the age of twenty-one, if he so survives, 107. And that in the meantime the interest, so long as he lives, will be for his use according to law". 108. "The rule that, nothing appearing convincingly to the con- trary, the presumption is that a bequest takes effect and vests absolutely in point of right at the death of the testator, ,( Scott v. West, 63 W. supra), 109. Is displaced by the rule that a bequest in the form of a direction to divide between and distribute to specified persons vests in those in esse answering to the description at the appointed time for division and distribution. Smith v. Smith, 116 W.; In re Moran's Will, 118 W; supra". 110. "Nothing appearing convincingly to the contrary", "the right to the fund itself" vests in the "person at the time of the vesting of the right to the use", where the principal, goes to him on the happening of some event. (Cases). "Only a vested right to principal would rea- sonably carry interest". —Benner-v. Matter, 133 W. 325, 332. ill. A devise to a son of the residue 'for him and his use during his natural life, and in case pf his death without issue "and, leaving a widow him surviving, then and in that event' to the widow and others ; 112. 'Provided, however, if my said son' 'shall die le.aying issue of his body him surviving, then in that event' 'all said residue' 'to said issue'. The plaintiff, son, and the wife Eva, survived the testator, but 1210 PROBATE AND GENERAL LAW, CODIFIED the wife subsequently died, and the son "remained unmarried and has never had any children". 113. "Held that the testator, by the word 'death' in the clause" 'and in case of his death', "contemplated the death of the plaintiff after the death of the testator when the will went into effect. Webber v. Webber, 108 W.; Korn v. Friz, 128 W.; supra". "To hold" other- wise, "would be to frustrate the whole scheme of the will". 114. The son "still living and unmarried", the disposition of such residue "is dependent upon two alternative conditions, the happening of neither of which is at present 1 ascertainable", — his death "leaving issue", and 'his death without issue and leaving a widow'. 115. If he leaves neither issue nor widow, "in that event the will makes no disposition" and the residue would be "intestate estate". 116. "A wife dying and leaving a husband her surviving can in no sense be regarded as a widow ". > ' —Chesterfield v. Hoskin, 133 W. 368, 374. 117. A will gave the widow a life estate, to "C, one-third of all remaining at death of widow"; to P. a like one-third; to trustee 'the other one-third' part" 'remaining at the death of my said wife E., in trust, nevertheless, for my son H, and authorize and direct them to' manage the same and pay H. the income, ' and in their discretion to pay to him from time to time such parts of said one-third as in their judg- ment is proper for his comfort and support until said one-third part is all paid to him'. The testator died in 1900, the son H. in 1902, intestate, leaving issue, and the widow died in 1904. Held : 118. P. and C. received "a full legal vested estate in remainder", "vested estates, because there were persons in being at the time of the creation of the estate who would have an immediate right to the pos- session upon the ceasing of the precedent estate of E. Sec. 2037. 119. And for the same reason the trustees took the present vested legal estate in trust for H. Ford v. Ford, 70 W. 19. They took this subject to the execution of the trust. Sec. 2086. 120. And the cestui que trust had an estate in lands and personal property as against all persons except the trustees. Sec. 2087; Scott v. West, 63 W.; Baker v. Est. of McLeod, 79 W.; Burnham v. Burn- ham, 79 W. ; supra. 121. Estates legal and equitable given by will should always be regarded as vesting immediately, unless the testator had by very clear words manifested an intention that they should be contingent upon a future event; 122. And where the time of payment or distribution is merely post- poned for the convenience of the fund or property, or to let in others, the vesting will not be deferred until that period. Baker v. Est. of McLeod, supra." 123. There is nothing in the will "restricting the vesting in H. of this equitable interest in remainder. The devise is absolutely in trust VESTING OF ESTATES, ETC'. 1211 for him". ''This vested equitable estate upon his death descended to his children and widow" as intestate estate. Burnham v. Burnham, supra. 124. As "the trustees should pay over to H." "it seems to us from the provisions of the will that the testator intended a conversion of this one-third of the real property", which "is necessary" "to carry out such intention. Becker v. Chester, 115 W. 90 (See Equitable Con- version) . '125. For the purposes of descent and distribution the property will be considered as all personal property". —WilUams v. Williams^ 135 W. 60> 65. 126. "None of" the rules "laid down by the courts" "are inflexible, however, and all yield to the cardinal rule that the words of a will are to be construed so as to give effect to the intention of the testator, . :j 127. Which intention is to be ascertained from the language of the will itself, in the light of the circumstances surrounding the, testator at the time of its execution. In re Donges's Est. 103 W. 497 (See Con- struction of Wills) . " 128! A devise of practically all the estate to a son "with the provision that 'said W. is to pay' " the widow '$800, to be paid to her as it becomes necessary for her needs', and she having "died about six weeks after the testator,- having previously made a will bequeathing the $800 to her daughters", and "four days before her death", having made a written demand for the entire sum "stating that she was in need of money for her support", — is held, 129. To be "an absolute gift to his wife of $800", "vested" in her, and "that the intention was to annex the element of time to the pay- ment only. Patton v. Ludington; 103 W. supra". 130. "The fact that there are no words of bequest, but only a direc- tion to the son to pay, is a circumstance which makes in favor of the idea that the gift is contingent only ; but this is not at all controlling. 131. The gift will be held to vest, if such appears to have been the testator's intention, even though it be expressed in a mere direction to pay. (Citation)". 132. There being no person "appointed" for that purpose, "it would seem that she herself was to determine the character of the needs and the time when payments were necessary to meet them. Will of Bduck, 133 W 161 (See Construction of Wills)." Claim therefore i sus- tained. —Ohse v. Miller, 137 W: 474, 476. 133. A will gives a life estate to the wife, then to executors "the entire estate in trust for fen years" the net income to be divided equally 'between my -'children'. "Then follows 'this provision: "After the expiration of ten years after the death of my said wife,! all my estate and property then remaining in the hands of my said trustees I hereby give, devise and bequeath unto all my children in equal parts, share 1212 PROBATE AND GENERAL LAW, CODIFIED and share alike". After the decease of the wife, and during the trust ten years, a son T. died "leaving a widow, H., and one minor child 1 C.;" and a daughter A. died "leaving her husband as her sole heir". 134. "In determining the nature of an estate created by will, the will itself is to be first consulted and afterwards the statute. The operations should not be reversed ". 135. Quoting Smith v. Smith, 116 W. and Ohse v. Miller, 137 W., supra, and "applying" the "well settled" "principles" thereof, not "doubted, but rather recognized, in" In re Moran's Will,. 118 W. supra, "we have no difficulty in concluding that the testator intended the interests of his children to vest at the time, of his death, 136. Subject only to the life estate of the widow and the ten-year trust. The words of the devise are words of a present grant, not of mere direction for division at a future date". 137. Applying sees. 2086 and 2087, and citing Baker v. Est. of McLeod, 79 W. supra, it is held that the interest of T. the deceased's son, "was vested, subject only to the execution of the trust, and was a 'legal estate' as against all persons except the trustees; whose term was for years only ; ' ' 138. And that "his widow" "should. have been awarded dower in her husband's vested interest in the real property of the estate", being "of course, only a one-third interest in the net" income during the trust period. See also Dower. < — Will of Prasser, 140 W. 92, 94. 139. A will "provides that in case of the death of either one of the four children the property, real and personal, willed to either of them be equally divided to the remaining living heirs of the testator, subject to the same rule of descent and be governed by the same rule of property willed directly to the testator's children. 140. This relates to the death of either one of testator's children after the death of the testator. Korn v. Friz. 128 W. ; Chesterfield v. Hoskin, 133 W. ; supra. 141. This for the reason that the estate devised to testator's children is a life estate, and because from the whole purview of the will", "the testator intended" that various subsequent legacies should not "take effect" "so long as there was a child or grandchild of the testator living". 142. " 'The remaining living heirs' of testator would be his surviving children and the children of any such child deceased", 143. But "to harmonize with other provisions of the will", "must be taken to mean the death of either one of the testator's children without issue, and these two words may be supplied". See also Per- petuities. — Will of Harrington, 142 W. 447. 460. 144. As to devises to children being ' ' a cpnditional fee terminating at their death" "at any time". See Life Estates. —Egglestm v. Swartz, 145 W. 106, 109. VESTING OF ESTATES^ ETC. 1213 145. "The term 'residuum' or 'residuary estate* " "means what is left" and "the surplus 'when all the debts and particular legacies are discharged'. 2 Bl. Comm. 514". (Other definitions and citations). 146. "However, if the testator intended that there should be a num- ber of residuums to be distributed from time to time as they occurred, his intention should, of course, be carried out". 147. Contrary to the circuit court's findings, it is held that there was 'here "a definite time when the residuary : clause was to take effect", and that "the words 'then living' ", as to residuary beneficiaries referred to such time after the widow 's death and the fixing of a hospital bequest within four years thereafter, "at which time the residuary estate becomes vested in the then living beneficiaries". 148. There being no provision as to "accumulated rents and profits resulting from the residuary estate during" the widow's life and four years thereafter, except that it is charged with the upkeep of the home- stead, it is held; 149. ' ' That the surplus, if any, , of the residuary personal estate, past and future, over and above the sums required to pay the taxes and repairs on the homestead, be added to the general residuary estate ; 150. That the net income already derived from the residuary real estate be distributed to the present presumptive residuary legatees at once, 151. And that the future income (except as required on the home- stead) be annually distributed to the presumptive residuary legatees until the time when the amount of the residuary estate is determined and. the status of the beneficiaries fixed". 152. The testator "must be deemed" "by his silence to have directed that it (the income) accumulate", but the statutes; sees. 2060-63, not permitting it as to the realty, this income, under sec. 2064, in an ' expect- ant estate', 'shall belong to the person presumptively entitled to the next eventual estate', this being "an estate in : expectancy under sec. 2033". 153. The estate of the presumptive beneficiaries is a "future estate" "because it commences at a future day without the intervention, of a precedent estate. Such a grant is valid. (Case.)." Sec. 2064. See also Equitable Conversion. — Will of Stark, 149 W. 631, 646. 154. "Where ' ' there is a direct specific devise of the estate to the trus- tees for the purpose of" paying the income to the widow, and the corpus "to the sister upon the death of the widow, should the sister survive, and, if not, to her son", it "vested when the will took effect". 155 ; "Such devise, in the absence of any language in the will evi- dencing any intention to postpone or delay the time it is to take effect, must be regarded as vesting the estate in the eestuis que trustent at the time of the death of the testator. Patton v. Ludington, 103 W. supra ; Matter of Brown, 154 N. Y. 313". 156. "There is nothing in the will to make the persons. to whom, or 1214 PROBATE AND GENERAL LAW, CODIFIED the events upon which, the estates are to take effect, uncertain. Their estates therefore vested at the time of the death of the testator". Benner v. Mauer, 133 W. supra; Ohse v. Miller, 137 W. supra. —Miller v. Payne, 150 W. 354, 374. 157. "The rule of law which favors vested estates rather than con- tingent ones at the present time is practically a rule of construction that may have controlling weight in a close or doubtful case, 158. But cannot be evoked to defeat the intent of the testator where that intent is reasonably clear". 159. As to the word "heirs" of a living person referring to vesting in such persons as are heirs at the time of such persons decease. See Heirs. — Flint v. Wis. Trust Co., 151 W. 231, 238. 160. Where the testator creates a ten-year trust on his residuary estate, directs the conversion of the property before the trust expiration by the trustee, then provides,— 'and I direct that they shall pay there- from, and I give and bequeath the said residue ', as stated, — it is held : 161. That the "residuary legatees" take "free from conditions or contingencies which might defeat the gift", and "that the testator intended by the words used to make a present grant and to postpone the distribution thereof to the time when the trust expired. Williams v. Williams, 135 W.; Will of Prasser, 140 W.;" Ohse v. Miller, 137 W.; supra. See also Descent and Distribution. — Will of Reynolds, 151 W. 375, 384. 162. A wilLafter giving a life estate to the widow who died four days after the testator, gives all the residue to the children and to the chil- dren of any deceased child by representation, and then states, — 'but' 'in case any of my said children shall die without leaving lawful issue them surviving' their shares 'shall revert to my other surviving children, or' their surviving children. Held: 163. There being a direct devise to the children, and "nothing in the language used" subsequently "which in express terms overrides" this provision, — the will "carries conviction that the testator intended that the children should take an absolute estate after the termination of the life estate given to the widow. 164. The intent being ascertainable with a reasonable degree of cer- tainty, the function of the court is to carry it into effect and not to search for technical rules to defeat it". 165. "Where the intent is reasonably clear, precedents are of little value. They cannot be successfully invoked to override intent". 166. While Korn v. Friz, 128 W. supra "recognizes the rule that a 'gift to one with limitation to others in case of death, or death without issue, ordinarily is to be construed as applying only to the condition of things pripr and up to the death of the testator'," and "is supported VESTING OF ESTATES, ETC. 1215 by an abundance of authority", "the decision" "went far enough and should not be extended. 167. A reading of the will in that case leaves the mind in doubt as to what the testator intended, with the probabilities favoring an intention to give a life estate only to the son",— the case being "at best a close one" with "the decision of the circuit judge!" as entitled to "some weight"! —Hohnbach v. Hohnbach, 151 W. 487, 490. 168. Where a will gives the wife a' life estate, and 'after her death the said property to be divided equally between my children', and a daugh- ter leaving her husband as her heir died subsequent to the testator and before the widow, it is held : i 169. "It is not a present devise to the children", did not vest until the widow's decease, and that "the devise" to such daughter' "lapsed upon her death prior to that of her mother; and her share went to the other children" "and not to her husband". \- >, 170. "When property under a will is to be divided at a specified: time in the future among a class, only those thereof who are alive at the time of division can take under the will in the absence of provisions to the contrary. Moran's Will, 118 W., supra'; Matter of Baer, 147 Ni-'Y. 348". > •>■ ' —C ashman v. Ross, 155 W. 558, 560. 171. The testator first gives a life estate to his daughter, and then, — 'unto the children of my said daughter the remainder of said property after the determination of her said life estate, to be equally divided among her said children, share and share alike, and to their heirs for- ever. It is my intention that said property shall be divided at the death of my said daughter among' children living at her decease, and to the issue of deceased children. Held: 172. "That no interest vested in them (the children) upon the death of the testator, but only upon the death of his daughter", when, only "could the legatees in whom an estate was to vest be definitely ascer- tained". 173. "We have, therefore, a will that by clear and explicit language postpones the vesting of any interest in the remaindermen until the death of the life tenant. That being so, the statute as to the vesting of estates cannot change its effect. Moran's Will, 118 W ; ;< Cashman v. Ross, 155 W.; supra". See also Partition. ^ ■—■Greene)) v. Oreeney, 155 W. 621, 623. 174. The whole homestead vests in the widow and the "then living heirs", at the death of an intestate. See also Homestead. —Miller v. Hart, 161 W. 611, 614. 175. Where a testatrix gave her estate 'unto my six children', naming them, 'the share of any deceased child leaving no issue to revert to my other children',— and a daughter died without issue after testatrix' 1216 PROBATE AND GENERAL LAW, CODIFIED decease, — it is held, "that the language under consideration must be read thus, 'the share of any' child deceasing in my lifetime to go to 'my other children'. 176. The word 'revert' when given the meaning of 'go to' pretty clearly indicates a going direct from the testator to the contingent beneficiaries, not from the deceased child, so that the death spoken of is one occurring before that of the testator". 177. "Superior to all other rules for construing wills is the one that the intention of the testator should prevail so far as that can be read out of the language used to express it. Will of Ehlers, 155 W. 46, 48 (See Construction of Wilds.)" 178. "In the absence of words showing a contrary intention, the death of a child, in a will where the bequest or devise is, in terms, to such child direct, with a provision, in case of the decease of such child, for the bounty to go to some other person or persons, refers to a death occurring during the- lifetime of the testator. Patton v. Ludington, 103 W. supra". , 179. "The law favors the early vesting of estates and, in case of uncertainty respecting the purpose intended to be expressed by a tes- tator, a construction which will accomplish that result is to be preferred to one which will not. (Case) ". —Will of Owens, 164 W. 260, 263 VOLUNTARY PAYMENTS. See Payments. See Services. WAGES. WAIVER. See also Appearance. Ratification. Absence of intent to, 21. Appeal; irregular judgment, 3. Accepting judgment condition, 10. Irregularity; guardian ad litem, 17. With court 's consent, 17. Change of position: Essential to estoppel, 18. Not essential to waiver, 19. Constitutional trial rights, , 2. Defense of, pleaded, 13. Deposition defect: Appears and cross-examines, 1. Objects to questions, 1. Disqualification of judge, 16. Minors not waive, 16. Fact question, when, 24. Failure to give notice, 8, 9. Failure to urge objections, 11. Guardian ad litem: Appeal irregularity, 17. With court's consent, 17. County court practice, 25. Heirship claim, 14. Not by claim filed, 14. Implied from circumstances, 20. Claim of absence of intent, 21. Established otherwise, 20. Infants : Not judge's disqualification, 16. Eescission of contract tender, 15. WAIVER 1217 Jurisdictional defect: Eule as to waiver, 22. Appearing and contestir.j, 5'. Definition of, 22. Service of process, 5. Service of process defect-: General, appearance, 6. Appearing and contesting, 5. Notice of appeal, 6. General appearances, 6, 7. Vacating irregular judgrrient, 4. Argued a demurrer, 8. Asking suck relief, 4. Or want of service, 7. Law question, when, 23. Time, all cases generally, 12. Fact; different inferences, 24. 1. Waiver to objection to deposition '/on account of any defect or want of notice", is cqmplete if the party "appears and cross examines, or objects to questions, etc. ' ' See Deposition. —Miller, v. McDonald, 13 W. 673, 674. 2. Parties may waive constitutional rights as to trial of civil matters. See Reference. —Home Ins. Co. v. Secxirity Ins. Go., 23 W., 171,- 174. 3. An appeal from a judgment irregularly entered, "constituted a waiver of the irregularity". — Jenkins v. Esterly, 24 W. 340, 341. 4. ' ' Vacating the judgment for irregularity ", or " the asking of such relief, whether granted or not, is also a submission and waiver of juris- dictional defect". —Alderson v. White, 32 W. 308, 312. 1 5. Appearing and contesting on the merits "was a waiver of any defect in the service of process ' '. See Jurisdiction. —Atkins v. Fraker, 32 W. 510, 517. 6. A general appearance is "a waiver of any 1 defects in the service of the notice of appeal ' '. See Appeal. —Kasson v. Est. of Brocker, 47 W. 79, 85. 7. ' ' The rule is elementary, that a general appearance t6 the 'action by the defendant waives a defectiye service, Or want of service, of the orig- inal process. 8. The principle of this rule is applicable here", where the defend- ant appeared and argued a demurrer, "without objection to the valid- ity or regularity of the proceedings to revive the action", which was "a waiver of the want of notice of such proceeding", to which he was entitled. 9. This failure to give notice "was an irregularity merely, which, like any other irregularity not going to the jurisdiction of the court, may be waived by the opposite party". — Brooks v. Northey, 48 W. 455, 456. 10. By accepting a condition imposed in a judgment, an appeal from such portion of the judgment is waived. See Appeal. —Fiedler v. Howard, 99 W. 388, 396. Zimmerman — 77 1218 PROBATE AND GENERAL LAW, CODIFIED 11. Failure to urge "objection on the former appeal?, is hejd a waiver on the, same facts, of the ' ' right to do so on a subsequent appeal ' ', "upon the error, if error it is". —Bidder v. Est. of Leiby, 107 W., 404, 409. 12. "There are few cases where the time within which an act is required to be done may not be waived by the parties where the rights of others are not affected".- See also Lease. — Sheppard v. Bosenkrans, 109 W., 58, 63. 13. "Waiver, when put forward as a ground, of action or as a defense, is affirmative matter to be established by the party alleging it". — New Borne S. M. Co., v. Simon, 113 W., 267, 272. 14. Where one claiming to be the heir, files a claim for services, pend- ing the adjudication of {he question of heirship, this does not "consti- tute a waiver of his legal rights as the established heir". —In re Mar chant's Est., 121 W. 526, 533! 15. As to waiver of tender on rescission of contract by an infant. See Infants. —Jones v. Valentines' Sch. of T,, 122 W: 318, 320. 16. It is held there could be no consent to waive the disqualification of a county judge "as to the interests of minors". See also County Judge. — Mcintosh v. Bowers, 143 W. 74, 76. 17. A guardian ad litem with consent of. court, may "waive any irregularity" "either expressly or by conduct", in appeal proceedings. See also Parties. —Est. of Koch, 148 W. 548, 571. 18. "A change of position by one, in reliance upon the conduct of' another, so that a reversal of such conduct would work prejudice to the former, is essential to estoppel in pais ; 19. But, not to waiver, and one is just as effective as a defense as the other". 20. "The underlying facts, upon which to predicate a waiver, as in this case, and the waiver, itself, may be implied from circumstances as well as be established otherwise. 21. Where implied, necessarily, from the circumstances, the mere claim of absence of intent to waive does not overcome such situation". (Many cases). — Somers v. Germania Natl. Bank, 152 W. 210, 219. 22. "It is" "difficult to lay down any hard-and-fast rule as to what constitutes waiver". "Each case must be decided on the facts peculiar to it. Waiver is the intentional relinquishment of a lmown right, benefit, or advantage. (Many cases) ". 23. "It is said in Swedish Am. Natl. Bank v. Koebernick, 136 W, 473, WARRANTY 1219 480, that 'where the facts and circumstances relating to the subject are admitted or clearly established, waiver becomes a question of law'. 24. But if different inferences may be drawn from the evidence, a question of fact is presented 'to be determined by court or jury, accord-, ing as parties see fit to submit the controversy for decision'. Frazer v. Aetna L. Ins. Co., 114 W. 510, 524". — Zwietusoh v. Luehrmg, 156 "W. 96, 113. 25. (As to the policy and practice concerning waiver of notice by guardian ad litem in county court,- §§472,473.) -see Zimmerman's Probate Practice. WARDS' SALE OF REALTY. See Incompetents' Sale of Realty. Infants' Sale of Realty. WARRANTY. Agent 's authority to, 5. Express authority, 5. Or usual course, 5. Representation, 6. Definition of, 3. Implied warranty of title, 8. /Possession condition, 8. Not under statute, 9. Quality of goods, 1. No implied warranty, 2. Not particular fitness, 1. Representation; not the same, 4. Principal may be' liable, 6. Warranty always is, 4. Reverse, not necessarily, 4. Three ways to warrant, 7. 1. "Where there is an express warranty of quality of goods sold, no warranty of fitness for a particular use is implied". , 2. "In this case, therefore, there was no implied warranty of fitness of the paper sold for the special use intended, although that purpose was known to the vendor". Dwight Bros. P. Co. v. Western P. Co., 114 W., 414, 419. 3. "A warranty is a collateral undertaking by which the warrantor contracts that certain facts in relation to the property are or shall be as he represents them. 28 Am. & Eng. Ency. of Law, 728. , 4. The same authority, on page 739, says: 'The terms 'warranty' and 'representation' are not synonymous. A warranty is always .a ' representation, but the reverse is not necessarily true, the first being a more comprehensive term' ". 5. "An agent's authority to warrant, as said in Westurn v. Page, 94 W., 251, must arise from express authority, or proof that the trans- action is usually attended with warranty. 1220 PROBATE AND GENERAL LAW, CODIFIED 6. Cases may and frequently do arise where the agent may have no authority to warrant, and yet, from the character of his agency, his prin- cipal may be held liable in court for false representations made by him". —Matteson v. Bice, 116 "WV, 328, 331. 7. As to a sale of chattels it is said "that a warranty may have been given" ! 'in one or more of three ways; First, by an .express oral warranty ; second, by an affirmation of title to be found in the language of the undertaking given, by the" sellers "under sec. 1684t-12; third, an implied warranty under the provisions of sec. 1684t-13". 8. ' ' The general rule is well established that there is an implied war- ranty of title in a sale of chattels in possession of the seller for a fair price where a contrary intention is not shown from the surrounding circumstances. (Cases). 9. By sec. 1684t-13 no such condition of possession by the vendor at the time of sale is required, so that that does not affect the application of the rule of the statute and the decisions to this case ' '. — Kirkpatrich v. Kepler, 164 W. 558, 564. WIDOW. See also Dower. Homestead. Husband and Wipe. Agreement during coverture, 28. Releasing interest in estate, 28. Void after husband's death, £8. Allowance : Amount an court's discretion, 46. Ante-nuptial contract ; not allowed, 68. Dower rights, profits, not , impaired, 3. Fraud with husband; transfer, 74. Not given allowance out of, 74. Minor may have, 45. Possession of life devise, 2. Not entitled to, 2. , Except death to probate, 2. Practice and procedure, 75. Eeasonable amount, before order, 1. At executor's risk, 1. Realty income, allowed, 71. Extent on hand only, 71. Means net income, 71. Release of interests to creditors, 31. Entitled to allowance, 31. Revocation; discretion abuse, 5, 12, 44. Causes afterward arising, 46. Orders not retroactive, 44. Situation being unchanged, 5. Testate as well as intestate, 13. Election : Affects all personalty of estate, 25. All realty within state, 25. Realty without the state, 25. Ante-nuptial contract void, 69. Escrow deed; may elect, 69. Assignable in her lifetime, 42, 43. May bequeath by will, 42. Attorney filing, presumed authorized, 34. Until evidence otherwise, 35. Bar herself within the year, 36. Accepting funds, not bar, 38. Acts inconsistent with right, 37. Becomes her absolute estate, 43. Common law rule, 8.' Will not exclude dower, 8. Unless expressed or implied, 8. Decease or incompetent, 48. Made by representative, 50. Excluded from intestate estate, 11, 67. Will, with no election, 11. Executor trustee of her share, 42. Husband cannot divest, 39. Merely offer by will, 40. She may then choose, 41. "WIDOW 1221 Election — continued Income provision, reverted, 53. Insane widow; no exception, 21. Equity elects; common law, 22. With or without statute, 23. .Executor now, by statute, 23. Most advantageous choice, 24. Net personal estate, 52. After administration expense, 52. Construction; partition, 52. Provision;, expend as necessary, 15. Equity compel execution, 19. Not legally uncertain, 20. Intent to make, 16. Personal trust for widow, 17, 18. Provision was per cent of residue, 70. Becomes residue, not intestate, 70. Realty found to be intestate, 62. Provision, not as intended, 63. Barred, not electing, 64. Small amount to widow, 62. Rejected provision; not residue, 65. Otherwise when part of residue, 70. Release of election interests, . 19, 61. Equity set aside, six years later, 61. Allowed as if elected, 61. For gross undervalue, 29, 61. Guardian ad litem contest, 30. To trustees knowing Value, 29. Widow, ignorant of value, 29, 61. Voidable as to her, 29. Right cannot be taken away, 27. Either personalty or dower, 27. By release during 1 coverture, 27. Election — continued Sole beneficiary elects', 14, 54. Grantees same interest, 56. Incumbrance purchase, 57. Might subrogate, 58. Not if consideration, 59. Though fee purchase, 56. Homestead as intestate, 55. ' Insolvency of estate, 14, 54. Realty title in heirs, 14, 54. Statute changes former rule, 9. Realty and personalty included, 10. Will is in lieu of dower, 9. Unless plainly expressed, 9. Statute strictly followed, 66. Where no provision made, 47, 60. May now have share, 49. Will" contest not excuse delay, 3 J, Fraud with husband; transfer, 74. Debts paid; allowance, 74. ■ Homestead : Insurance expense of, 64. Right only of $5,000, 73. Insurance expense; homestead, 64. Litigation expense incurred, 91. Selection of $200: Absolute selection right, 4. Order unnecessary, 4. May select note as part, 4, 7. Must show to' get title, 7. Not selected in lif e-(time, 72. Error to allow, 72. Settle for killing husband, 32. Without administrator, 32., • v. 1. An allowance to the widow in a reasonable amount paid before "any order authorizing it" ? is proper to be allowed in an executor's account, and the executors may make such advances though "they would of course do it at their own risk", — King y. Whiton, 15 "W. 684, 689. 2. Where the widow after the probate. of the will, "entered into the possession and enjoyment of the real and (specific) personal estate bequeathed to her for life", she is not ^entitled to an allowance for support, except "from the time of the testator's death until the will was admitted to probate. " —Golder v. Little John, 30 W. 344, 354.. 3. Receiving an allowance pending administration, "does not destroy or impair rights" as to dower or the mesne profits arising therefrom. See Dower. —Farnswdrth v. Cole, Admr. 42 W. 403, 405. 4. The selection by the widow of a note "as part, of her legal allow- ance of $200, in value, of the personal- property belonging to the estate", "was strictly her right uitder the statute, the allowance of which by the 1222 PROBATE AND GENERAL LAW, CODIFIED . administrator was imperative, and no order of the county court was necessary. Subd. 1, sec. 3935; King v. Whiton, Extra., 15 W. 684". — Tomlinson v. Nelson, 49 W. 679, 682. 5. Where an order of allowance of $600 for one year was made, and subsequently on application for $1,000 annually, a second order (announced orally and inadvertently not entered) was made fixing the allowance of the widow at ' ' $50 per month until the estate was settled ' ', and some months later a third order was made "revoking all previous orders of allowance, and providing" an allowance of only ''$800 during the settlement of the estate, in lieu of all other allowances"; and it not "being shown that the condition of the estate had changed, or that the situation and circumstances of the family had changed", it was held "an abuse of discretion to make the" last order, "revoking all previous orders on the subject of allowance". 6. Had there been a change in the condition of the estate, or situation of the family, "the probate court, as to the future, might diminish the allowance in its discretion", but apparently not otherwise in the absence of fraud or irregularity in procuring the order. See 'also Orders. —Baker v. Baker, 51 W. 538, 547. 7. To entitle a widow to a note as part of her $200 selection under sec. 3935, "she -must show that it has been selected by her. In the absence of any proof on that' subject, we cannot say that the plaintiff (widow) acquired any title to it under said section". — Wilcox v. Matteson, 53 W. 23, 29. 8. The common law "put the widow to an election between the pro- visions made for her by the will of her husband and her right of dower". "Dower was a legal right which was much favored by the courts", and "the presumption was that a provision for the widow in the will was a matter of bounty, and was not intended to exclude dower unless it was" so expressed or implied from the will. 9. This rule was changed by statute, and since 1839, "a provision for the widow in the will carried with it the presumption that it was in lieu of dower, and that it had to appear plainly by the will itself that it was in addition to dower, in order that the widow might take both". 10. The statute as it now exists (sees. 2170-2), and at least since the amendment of ch. 106 L. 1877, is "applicable both to real and personal estate, and excludes the widow from any share or portion of such estate undisposed of by the will, where she does not renounce the provision made for her by the testator. ' ' 11. And it is here held that the widow having made no election, "presumably she chose the provision made for her in the will, and is not entitled to any share or portion of either the real or personal estate left undisposed of by the testator, but is limited to that estate or interest specifically given her in the will". (Approved and followed in Chap- man v. Chapman, 128 W. post) . —Hardy v. Scales, 54 W. 452, 454, WIDOW 1223 12. The decision in Baker v. Baker, Bxtr., 51 W. supra, is held res adjudicata, and also approved on its merits. 13. The statute (sec. 3935) is held to authorize a widow's allowance in testate as well as intestate estates, though the will disposed of all the property. —Baker v. Baker, Extr,, 57 W. 382, 392. 14. Where the widow was sole legatee and devisee, and because of insolvency elected to take under the law, the title to the realty vested in the heirs. See Jurisdiction. — Melms v. Pfister 59 "W. 186, 191] 15. The court construes the clause of Gov. Washburn's will, his widow being incurably insane, following: 'I direct my executors to bear con- stantly in mind the wants of my wife, and to set aside, use, and expend whatever moneys may be necessary, consistently with her condition, to provide for her comfort and physical health; and I place no limit upon the sums which they may spend for the purposes indicated'. , 16. The court holds, under sees. 2171-2, taking the intent either ""as collected from the whole will", or "regarding this clause alone", "that the testator therein and thereby intended to make, and did make, 'pro- vision for his wife which was to be in 'lieu of dower and one-third of the personal estate". 17. "The direction" to the executors as to the wife, "created a per- sonal ( trust which was to continue while she lived. This is apparent from the will". 18. "It seems hardly necessary to add that" this "clause creates a personal trust within the strict sense of the term. (Many cases) ". 19. "There can be no doubt, if the executors neglect or refuse to expend whatever money may be necessary to execute the trust, that a court of equity will compel them to do so. 20. There is surely no such uncertainty as to the requisite amount as to be incapable of legal ascertainment: ' ' 21. "We must hold that the general words in the statute (of elec- tion) have a general application, and since there is no exception as to an insane widow, the court can create none. (Cases)". 22. "At common law, where the person entitled to elect was insane and incapable of exercising the right, a court of equity would elect for him". 23. "Independently of the statute", or with the statute, "where the application was in time", it is held that a court of equity has power "to elect for an insane widow", or other incompetent. (By am't. Ch. 264, L. 1903 and Ch- 427 L, 1907, Sec. 2172a, the extr., ,admr., r or gdn- can now make such election) . : . . , 24. In this case, "in view of the liberal" provision, "and in consider- ation of all the facts," the court "does elect for her that provision as beine on the whole the best and most advantageous for her interest and welfare," i. e. the provision under the will. 25. As "personal property will be governed by the law of the domi- 1224 PROBATE AND GENERAL LAW, CODIFIED cile," the election "made will dispose of all questions relating to the personal estate and the real 'estate situated in this state. ' ' 26. The court does not determine the effect of such election on real estate in other states. — Van Steenwych, Extr., v. Washburn, 59 W. 483, 497. 27. A .widow's right to elect either as to dower or personalty, cannot be taken from her either by will, or by her release thereof during cover- ture. See Dower. — Wither v. Wither, 52 W. 298, 302. 28. A mutual agreement, under seal, between husband and wife, ' ' a few days after their marriage, purporting to release all her interest in his estate, was null and void in law, and not at all binding upon her after his death. Wilber v. Wilber, 52 W. supra; Munger v. Perkins, 62 W. 504 (See Dower) ". ' 29. Where the widow elected to take under the law, (Sec. 2171,) and immediately released her interests in the estate for two-sevenths of its value in cash from the executors "and where the trustees were, at the time, fully advised of such value, and all the circumstances indicated that the cestui que trust was not so advised, but ignorant of such value", it is held that such release and deed were voidable as to her, on proceed- ings instituted by her guardian ad litem, she having become insane. 30. "There can be no question of the right of the defendant, by her guardian ad litem, to contest the validity of the transaction. Salter v. Krueger, 65 W. 217." —Leach v. Leach, 65 W. 284, 291. 31. Where the widow, given a life estate under the will, surrendered the estate for the benefit of creditors, including her "exemptions, and reserved nothing for her support or for her infant children, her appli- cation does not come within the restriction named in Golder v. Little- john, 30 W. supra," and she is entitled to an allowance for support. — Est. of Henry, 65 W. 551, 552. 32. A widow, it seems, may settle for the killing of her husband, without the intervention of the personal representative. See Damages. Schmidt v. Deegan, 69 W. 300, 303. 33. "Neither the contest of the will, nor the stay of proceedings pend- ing the appeal to the circuit court, prevented, or in any way interfered with, the making of such election" of the widow "not to take under the will, but under the statute", and the election made after the expiration of the statutory limit was held of no effect notwithstanding such contest and stay. — Albright v. Albright, 70 W. 528, 532. 34. Where an election "was delivered for filing by a reputable attor- ney", "in the absence of all proofs to the contrary it must be presumed that he was authorized to file the same on behalf Of the widow ' '. WIDOW 1225 35. "The authority of the attorney filing the same should be presumed until the want of such authority is made to appear by proper evidence. Shroudenbeck v. Phoenix F. Ins. Co., 15 W- 632.''' 36. If the widow as to election "can bar herself of that right before the expiration of the year, it must be done with a full knowledge on her part that she has given up such right. '37. Her acts must at least be entirely inconsistent with her right to subsequently make such election." 38. The fact that she accepted funds from the executor is held not t to estop her from afterward making an election. , 39. The widow's right to a "share of the personal property of her deceased husband, belonging to him at the time of his death,, cannot be divested by any act of the husband, by his will or otherwise. 40. All he can do is to offer her by his will something in place of the estate secured for her by the law, and if she accepts it she cannot claim ', the right given her by the law ; 41. If she refuses to accept" she takes her share "of the personal, estate of her husband by virtue of the law, and not in any way, under the will of her husband, and she is entitled to have her share distributed : t to her by the proper court. " , 42. After an "election, "this interest of the widow is assignable in her life-time, and she may bequeath it by will. (Many cases)". So held in this case where the widow died before or without her share being' assigned to her. As to executor being trustee of such share, see Admin- istration. 43. Where the widow elected to take under the law, "the property went to her as her. absolute estate", "which she could sell, assign, or bequeath as freely as any other owner." —Bernn v. Kimberly, 72 W. 343, 363. 44. As to an order of the county court of Feb. 5th, ,1890, cutting off all family allowances after July 18, 1889, it is said: "Under the decision of this court in Baker v. Baker, 51 W., supra, it was error for the county court to give to its order a retroactive effect. The most it could properly do was to stop allowances after August 10, 1889, when the petition in that behalf was presented to it". 45. "There can be no legal objection to an allowance" for the main- tenance of a minor, where "the estate is solvent and is yet in progress of settlement. " ! . . 46. "The amount of the allowance is a matter within the sound' dis- ,; cretion of the court, and the order therefor may be vacated or changed by the county court at any time hereafter for causes arising since it was made". —Ford, Extr. v. Ford, 80 W., 565, .568. . 47. Whether an election under sees. 2171, et al, can be made where no provision is made for the widow in the husband's will, is referred to but left undecided. 1226 PEOBATE AND GENERAL LAW, CODIFIED 48. It is held that the election by the widow was personal, and could not be made after her decease by her executors. 49. (By subsequent amendment to sec. 2172, now, where no provision is made for the widow, "she shall, without doing any act on her part, be entitled to the share of his estate as provided in this section. ' '- 50. And by sec. 2172a, now, provision is made for election by her representative in case of incompetency or decease before the expiration of the year). —Church v. McLaren, 85 "W., 122. 51.. "The expenses incurred by the widow" in "litigation, much of which she herself commenced", were held "properly disallowed", as administration expenses. 52. " The net personal estate ' ', from which the widow takes her share when she elects under sec. 2172, clearly "was so much personal estate as was left after payment of debts, allowances, and charges, and all the expenses of administration, as well as those expenses which were made necessary by the will as those which would have been incident to the administering of the estate had he died intestate", and include construction and partition action expenses, "before setting apart her" share. 53. As to the net annual income of a one-quarter during life by the will to the widow, it is said that "by the election of the widow to take under the statute, her one-quarter reverted to the estate". —Ford v. Ford, 88 W. 122, 132. 54. The widow being sole legatee and devisee, in an insolvent estate, and having elected to take under the law, sees. 2171-72, following the same principles applied to the other realty, "from the time of the election the homestead also 'must be regarded as though no will had ever been executed' ". Melms v. Pfister, 59 W. supra, and see Juris- diction. 55. "As the result of the election, the homestead descended to the plaintiffs, the children of the testator, subject to the life estate of the widow therein", and she could not, as contended, claim title as devisee of the homestead, and under the law as to the other realty. 56. The widow's grantees, though they purchased from her a fee, only "acquired her estate, and became tenants for life in possession. Barrett v. Stradl, 73 "W. 385. 57. If such a tenant purchased an encumbrance upon the estate, he cannot set up title under it as against his remainder-man, but is con- sidered as holding it in trust for the joint benefit of himself and of the remainder-man". Phelan v. Boylan, 25 W. 679. 58. If the widow's grantees, after purchasing the life estate, "paid the mortgage to protect their estate, they might invoke the rule laid down in Phelan Vi Boylan," be subrogated, and, "compel the remainder-men to contribute their portion of the encumbrance paid ' ' ; 59. "But when, they paid the mortgage simply as a part of the con- WIDOW . 1227 sideration for the life estate which they purchased, it is wiped out as to all parties", and they are not entitled to be subrogated: —Melms v. Pabst B. Co., 93 W. 140, 146 1 . 60. Where a testator died prior to the amendment to sec. 2172, by ch. 123, L. 1895, and no provision was made in the will for the widow, being suggested but left undecided in Church v. McLaren, 85 W. supra, it is held, that the widow was entitled to no "part of her deceased husband's personal estate over and above the allowances provided for in subds. 1, 2, sec. 3935". —Jochem v. Butcher, 104 W. 611, 613. 61. Where the widow failed to elect under the statute, and made a contract with trustees and the heirs under inducement and trust, in ignorance and mistake of her legal rights, of much less than her legal right, — the contract was set aside and the trustee and heirs compelled to account -as if she had duly elected, — by an action in equity six years later. See Trustees. ' —Ludington v. Patton, 111 W., 208, 229-261. 62. A widow "was given a quantity of personal property, which, it appears realized $681. (See this will construed, Willey v. Clark, 105 W., 22, Construction of Wills) . This, she took, and refrained from filing any notice of her election", under sec, 2171, to take by law. Held, to be "a provision for the widow." In re Donges's Est., 103 W., 497 (See Apterborn Child.) (Other cases). 63. The statute "bars her dower and homestead rights, if any pro- vision is made for her by the will, without regard to whether the' will gives her all that the testator in fact intended to". So held as to realty, all construed to be intestate property. See also Constructiqn op Wills. — Willey v. Lewis, 113 W., 618, 620. 64. As to widow's proportion of insurance expense on homestead and other realty. See Insurance. — Ludington v. Patton, 121 W. 649, 655. 65. As to distribution to widow, on election, not being part of the' 'residue'. See Descent and Distribution. —In re Bradley's Will, 123 W. 186, 193. 66. "Under the doctrine established in that case (Hardy v. Scales, 54' W. supra) and the statutes of this state as they have since existed, the election statute, sees. 2171, 2172, must be strictly, if not literally followed respecting the provisions made for the widow, 67. And where she fails to renounce the provision made by the will she is barred from taking any other portion of her husband's estate, although such estate may not be fully disposed of by will". So held — that the widow cannot share in intestate residue. — Chapman v. Chapman, 128 W. 413, 418. 1228 PROBATE AND GENERAL LAW, CODIFIED 68. Under an antenuptial contract, the widow was held not entitled to allowances of personalty and for support, under subd. 1 and 2, sec. 3935. See Marriage Contracts. — Deller v., Better, 141 W., 255, 260. 69. A widow held entitled to election, there being a void antenuptial contract, and a deed deposited in escrow pursuant thereto. See Mar- riage Contracts. — Bowell v. Barber, 142 W., 304, 317. 70. Where a widow was given a specific per cent of the residuum "as a separate quantum of his estate", on her election her per cent became part of the residuum and not intestate estate. See Descent and Distribution. —Will of Reynolds, 151 W. 375, 382. 71. Under subd. 2, sec. 3935, — there being insufficient personalty and income of realty to pay the full amount of allowance as ordered, — the ; " 'income of the real estate', means net income, or what is left after . fixed charges of upkeep of the estate are paid", such as repairs, insur- ance, and taxes, and "the administrator could' only pay to the extent of the net income in his hands ' '. — Niland v. Niland, 154 W. 514, 518. 72. Where, under sec. 3935, the $200 allowance xas not "selected or claimed by" the widow "during her lifetime", it was held "error to allow it in the accounting" after her decease. (Cases). — Est. of Hemphill, 157 W. 331, 339. » 73. The widow "has a homestead right in only " $5,000. " See also Homestead. — Lands of Sydow, 161 W. 325, 327. , 74. Where the widow participated in a fraudulent transfer by her husband to herself, which was set aside, she was held not entitled to reimbursement f or ; debts paid by her, or to a widow 's allowance out of the .proceeds. See also Creditors' Actions. —Baldwin v. Frisbie, 163 W. 26, 29. 75. (As to detailed commentaries concerning the practice and pro- cedure as to the various statutory allowances, — see Zimmerman 's Probate Practice, §§ 239-251.) WIFE. See Husband and Wipe. WILLS 1229 WILLS. See also Codicils. Constriction of "Wills. Descent and Distribu- tion. Execution op Wills. Foreign Wills. Lost Will. Nuncu- pative Will. •' Power. Probate op Wills. , Revocation. Testa- mentary Capacity. Trusts. Trust Variation. Undue Influence. Vesting op Estates, etc. Agreement not substituted, 62. Agreement to will : x v Realty and personalty, 46. Indivisible; both void, 46. Oral, void as to realty, 46. Alteration : Since execution; voids it, 3. Not being explained, 3. Codicil and will, one, 32. Construction : Extrinsic evidence; not vary, 26. ' Not enlarge or control meaning, 28. Place court, testator's position, 27. To interpret language, 27. Plain and unambiguous, 28. Not latent ambiguity, 28. Not issue at .probate, 23. Future consideration, 24, 25. Paragraph revocation considered, 57. Separately from the probate, 56. Definition of will, 32, 36. "Devisee-", takes realty, 14. Effective after probate, 30. Immediately 'On death; title, 31. Relates back to death, 30. Speaks from that moment, 30. Fraud : Attorney, reversing names, 38. Whether set aside tfor, 7, 11. Instruments : Certifying notes held, valid, 41. Possible agreement not excluded, 44. Present will of the maker, 42. Revoked, by later disposition, 43. Witnessed; not contractual, 41. ' ' Codicil 1 and will, is will, 32. Deed : conveying in trust,. 50. Not testamentary, 50. Principles; testamentary deeds, 51. ' ' (1) Clearly deducible, 52. (2) Ambiguous instrument, 53. (3) No testamentary indication, ,54. Definition of will, 36. Note and mortgage, testamentary, 47. If contractual, enforcible, 48. Not contractual; will if at all, 49. Several together may be will, 2. Each partially disposing; 2. Instruments — -continued Testamentary character, 35. Incorporated in later will, 35. Two, last referring to first, 40. First not properly, executed, 40. Unambiguous lease, 36. Intention : Governs: extrinsic circumstances, 4. Language not understood, 29. Law; when it takes effect, 22. Existing at the decease, 39. "Legatee", takes personalty, 14. Living person 's estate given, 34, Election to take, binds, 34. , Lucid interval : Stress on will provisions, 5. Oral promise by legatee, 13. Created trust to carry out, 13. Modifying probate order, 13. Probate : Adjudication conclusive; fraud, 12. Construction; not in issue, 23. Considered after probate, 25. Matters for the future, 24. Nor any other questions, 23. Paragraph impliedly revoked, 57. Separately from probate, 56. ■ i Legal effect not involved, 55. Oral legatee promise, modifying, 13. Creating trust to carry out, 13. Whether set aside for fraud? 7, 11. Concealing fact of fraud, 9. Conclusive as to no fraud, 12. Equity; no jurisdiction, 10. Gross laches ineffective, 8. Not in county court; laches, 16. Realty disposition: May be made in three ways, 6. Reformed; cannot be, 17,. , Revocation : Later will, a former, 1. Without revocation clause, 1. Paragraph void; after probate, 57. Rights as to: Agreement not substituted, 62. i Breaking guarded against, 19. Court's duty to uphold, 21. Every sane man to make, 18. Guaranteed by constitution-, 61. 1230 PROBATE AND GENERAL LAW, CODIFIED Eights as to — continued ' Speaks from the death, 22, 30. Hope of inheritance, 45. Taking under a will, 33. Kin wishes, immaterial, 29. Confirms the whole, 33. More sacred than contract, 58. Title: Court and parties abide by it, 59. From decease after,j)robate, 15, 30. No power to correct, 59. Effect, legally at decease, 31. Not set aside or reformed, 58. Two independent wills, 2. - ieed not give reasons, 37. Cannot have such, 2. • ■ Part of the common law, 60. Later revokes first, 1. Policy, not seek to avoid, 21. Without revocation clause, 1. , Eight to discriminate, 37. Same right as to contract, 20. 1. As to two testamentary instruments offered for probate together, dated respectively in 1844 and 1850, the court says: "Both these papers, it will be observed, appear to be perfect and complete wills, properly executed and duly attested. They both likewise relate ex- clusively to personal estate, and by specific legacies and residuary clauses, each is entirely adequate to the disposition of all the personal property belonging to the decedent. It is very true that there are no words in the latter will expressly revoking the former, yet I think from the nature of the instrument itself, that it must necessarily operate as a revocation of it"; /and the last will alone is admitted to probate. 2. "A man cannot have two independent wills of personal estate at tfee same time, each acting upon the same subject matter, and each pro- fessing to make a distinct and full disposition of such subject matter; although he may have several papers, partially disposing of his prop- erty, neither: of Which in itself, is, or purports to be, a complete will". — In re Edward Fisher, 4 W. 254', 264. 3. "The will has been altered in a material part since its execution, and this alteration not being explained, must avoid the instrument". "If there has been a material alteration by a person claiming under it,, the will is thereby invalidated". , — In re Wilson, 8 W. 171, 179. 4. The intent governs and extrinsic circumstances are considered. See Construction of Wills. —Hopkins v. Holt, 9 W. 228, 230. 5. "In respect to the capacity of a lunatic to make a will, great stress is laid on the nature of its provisions, in determining whether or not it was made in a lucid interval." r- Ripley v. Babcock, 13 W. 425, 429. 6. "The owner of land desiring to make disposition of it at bis death, has three courses open to him", one of which is by, a will. See Escrow. — Prutsman v. Baker, 30 W. 644, 652. 7. Whether a court of equity has power to set aside the probate of a will procured through fraud, query. See Fraud. WILLS 1231 8. Where there has been gross laches, equity will not give relief, or set aside the probate of a will, though the ; testator did not have testa-, mentary capacity. See Equity. —Holden y. Meadows, 31 W, 284, 289. 9. A court of equity will not set aside the probate of a will for fraud, where such fraud consists merely in concealing the fact that the will was fraudulently obtained. 10. Equity has no jurisdiction to set aside the probate of a will- fraudulently obtained from the testator. See Equity. 11. It is not decided whether the probate court could so set the will aside. 12. "The allowance of the will by the county court is an adjudica- tion" of the due execution thereof s "and such adjudication is conclusive of the fact" that the will was not "procured by fraud upon and undue influence over the mind of the testator". — Archer v. Meadows, 33 W. 166, 169. 13. An oral promise by a residuary legatee to the testator, to pay certain sums, is held to create a trust and "modifying to that extent the previous order admitting the written will to probate". See Jurisdic- tion. Trayer for Relief. Trusts. —Brook v. Chappell, 34. W. 405, 411, 419. 14. "A legatee is one who takes personal property, and a devisee one who takes real property, under a will"., — Chandler's Appeal: Est. of McCoy, 34 W.505, 509. 15. Title under a will passes from the decease, after the probate. See Title. —Bridge v. Ward, 35 W. 687, 692. 16. Probate of will, not set aside in county, court; however the ques- tion is not determined, laches being shown. See Equity. — In re Est. of Holden; Meadows' Appeal, 37 W. 98. 17. A will cannot be reformed. See Reformation. —Sherwood v. Sherwood, 45 W. 357, 360. 18. " 'Every sane man must be allowed to make his own contract as well as his own will', says Gibson, C. J. That great jurist plainly suggests that courts have no more authority to make wills for the dead, than contracts for the living, according to judicial notions of fitness and propriety. Bash v. Bash, 9 Pa. St. 260. 19. Breaking a will is very much like making one ; imposing upon the testator the statutes of descent and distribution against his' solemn wish in dying. Perhaps courts have been quite too willing to do so. 20. There is a vicious notion prevalent that any will not acceptable to the testator's next of kin may be broken in the courts upon very 1232 PROBATE AND GENERAL LAW, CODIFIED frivolous grounds. But every one should have the same power to dis- pose, by will, after his death, in accordance with his own wishes, of whatever he may leave behind him in his own sole right, as he had in life to dispose of it by contract or by gift. 21. And it is as much the duty of courts to uphold and enforce his will 'after death, as to uphold and enforce his contracts made during life ". " It is the policy of the law not to seek grounds to avoid either ; but so to deal with both, if it can be done upon sound legal construc- tion, as to uphold and enforce them". Ryan, C. J. See also Charitable Trusts. 22. "As a general rule, a will speaks as from the time of the testator's death, and is governed by the law in force at the time it takes effect"; and it is so held here. p. 106. —Dodge v. Williams, 46 W. 70, 90. 23. On the issue as to whether a will "should be admitted to probate", ' ' all other questions, such as the construction -of that will ; whether there was any claim or trust upon the estate to be enforced contrary to its provisions- and as the proper disposition of the property of the testa- trix, — did not enter into that issue, and should not be considered in determining the probate of the will". 24. "The construction of the will, and what should be done with the estate, are matters for future consideration". 25. "After the will is probated the court can determine, in a pro- ceeding instituted for that purpose, whether or not the testatrix had put it out of her power to make the disposition of her property she did by the will". — Farmer v. Sprague, 57 W. 324, 327. 26. "As a general rule, extrinsic evidente cannot be received either to explain or vary" a will. (Cases). Morgan v. Burrows, 45 W. 211. 27. "Of course, such evidence is often resorted to in case of wills (as well as deeds) for the purpose of placing the court in the position of the testator, so as to more intelligently interpret the language used. Reditu on Wills, 183; Morgan v. Burrows, supra; MesseV v. Oestreich, 52 W. 689". 28. "But where the language of the will is plain and unambiguous, and the object and subject of the testator's bounty is definitely pointed out, and there is no latent ambiguity nor chance for implication, ex- trinsic evidence is not admissible to enlarge, diminish, or control the meaning of the words employed". —Brurm v. Schuett, 59 W. 260, 262. 29. A will may be probated though written in a language not under- stood by the testator. See Probate op Wills. — Will of Walter, 64 W. 487, 493. 30. The devise of land "only became effectual upon the admission of the will to probate ; but, when so admitted, it related back to the death WILLS 1233 of the testator, and must be treated as speaking from that moment. Sec. 2294; Scott v. West, 63 W. 552. 31. In legal contemplation, the devise took effect, and the plaintiff acquired legal title to the land subject to such widow's right (conditional life estate), immediately upon the death of the testator. Sec. 2278; In re Pierce, 56 W. 560; Newman v. Waterman, 63 W. 616." —Prickett v. Muck, 74 W. 199, 205. 32. Original will and codicil considered "as one instrument in law." See Construction op Wills. —Burnham v. Burnham^ 79 W., 557, 564. 33. One taking under a will is estopped from questioning any other part of the same, but confirms the whole. See Estoppel. —Towle v. Ttiwle, 79 W., 596, 601. * 34. Disposition of a testatrix's estate, and also her husband's (living) estate, with an election by the husband to take under her will, binds also his estate. See Construction op Wills.' —Allen v. Boomer; 82 W., 364, 372. 35. An instrument of testamentary character, not properly executed as a will, but held incorporated and a part of a later instrument, exe- cuted and admitted as a will. See Execution op Wills. —Skinner v. Amer. Bible Soc., 92 W. 209, 212-3. 36. An unambiguous lease not probated. "A will is an instrument by which a person makes a disposition of his property to take effect after his decease." See also Probate op Wills. — Est. of Ogle, 97 W. 56, 58. 37. The right of the testator to dispose of his property, and to dis- criminate without giving reasons. See Undue Influence. —Cutler v. Cutler, 103 W. 258, 264. 38. Fraud alleged as to attorney reversing the names of beneficiaries in drawing a will, disallowed. See Fraud. —Roberts v. Roberts, 107 W., 213, 215. 39. A will takes effect, and is governed by the law existing at the decease of the testator. See Construction op Wills. — Will of Kopmeier, 113 W., 233, 239. 40. Twff instruments, one signed in 1890 with one witness, the other immediately following dated 1899, and referring to the other as his will,' signed with two witnesses and such paper "purports to dispose of property of the testator after his death", though ambiguous and uncertain, — are determined a paper "in the form of a will, and was Zimmerman — 78 1234 PROBATE AND GENERAL LAW, CODIFIED properly admitted to probate as such," "the question of its construc- tion" not being determined. — Flood v. Eerwin, 113 W., 673, 680. 41. A paper, dated, signed, and with two subscribing witnesses, given by father to son, reading, — "this is to certify that the notes held by me against B. (the son) shall be null and void after my death and non- collectible" — , is held to be not dealing "contractually", and proclaims but "a certain intention", but, 42. "The writing upon its face presents all the elements of a testa- mentary instrument; one which declares the present will of the maker as to disposal of property after his death, without attempting to declare or create any rights therein prior to such event. (Many citations) ". 43. So held, but that it was "legally revoked by the will of" later date "disposing of all the testator's personal property", without mention of such notes, ' ' and therefore ineffectual as a will ; 44. Still it' does not exclude the possibility that" "the parties in fact made a binding agreement, upon sufficient consideration, to the effect that the indebtedness evidenced by these notes should become cancelled upon the death of 'the owner". Such evidence held insufficient. See also Writings. — Templeton v. Butler, 117 W., 455, 456. 45. As to the "right of disposal", existing with "no duty of equity or conscience to thwart" the will when free, even as against "the hope of inheritance". See Undue Influence. —Vance v. Davis, 118 W., 548, 550. 46. An agreement to "make a will of the real and personal property", is held "void under the rule laid down in Ellis v. Cary, 74 W. 176, (other cases, see Services), because it was an oral contract to devise real property as well as personal property, and, being indivisible, was con- trary to the statute of frauds". — Diown v. Sheridan, 125 W. 60, 64. 47. As to an ordinary note and mortgage for $500, no money con- sideration being passed, and a signed memorandum of the same date, providing that the $500 was, by the payee, "to be distributed after my death, as follows" (detailing), the memorandum not having been de- livered to or signed by the payee, and therefore perhaps not "a part of the transaction", and to be used only "to refresh" "recollection as to the consideration", — held, to be not contractual, but of testamentary character. 48. If the transaction "was contractual — that is, if there was a promise on the part of C. (the payee) to expend certain sums for certain defi- nite purposes after her mother's death, and in consideration thereof a promise by the intestate to repay to her the sums so expended, the per- formance of which latter promise was secured by the mortgage in ques- tion— no reason is perceived why the contract should not be enforced". 49. "If, on the other hand, the transaction was testamentary — that is, WILLS 1235 if the written documents, viewed in the light of the attending circum- stances, must be construed not as a present contract, but as a direction that C. should receive $500 out of her mother's estate after her death and expend the money so received for the purposes named — then the papers cannot be enforced as a contract, but must operate as a will if they operate at all.' Temple'ton v. Butler, 117 W. supra". —McCourt v. Peppard, J26 W. 326, 330. . 50. An instrument in the form of a deed conveying property "in trust for certain purposes named therein with power to sell, lease or "mortgage" and for distribution of the proceeds to various parties, the deed not having been delivered, is held not testamentary in character. 51. As to holding deeds testamentary, "in Clay v. Layton, 134 Mich. 317, the court lays down the principles governing such eases", — and "we think the doctrine laid down" "is sound in p'rinciple and in har- mony with the great weight of authority", — "namely: 52. ' (1) Those in which the testamentary intent is clearly dedueible from the writing'," in which- it was held "there was no difficulty in holding the instrument Liability, 70. Living together, 66. Market price, 60. Market value, 59, 60. Merger, 6. Money, 13. • More or less, 69. Mother, 65. Next friend, 23, 24. "Or", as and or alias, 63. Pay, 72. Pay over ,and deliver, 7. Paid in full,' 47. Plow land, 68. Preponderance, 31. Promissory note, 11. Provision, 40, 43. Purchaser, 58. 1242 PROBATE AND GExNERAL LAW, CODIFIED Receipt in full, 17. Surviving, 29, 30. Besidenoe, 25. ~ Survivor or survivors, 30, 52. Residue, 51. Testifying, 26, 27. Eevert, 71. Testimony, 26. Rules as to, 3. Unless, as except, 4. Seizin, 62. Value, 67. Subscribed, 20. , Value received, 2. Succession, 46. Void, voidable, 39. Suitable, 37. (See also Appropriate General Titles for Constructions, Definitions, Etc.) 1. "Cases at law", under the constitution do not include a proceed- ing to appoint guardian, so as to require a jury trial in county court. See also Guardian and Ward. — Gaston v. Balcock, 6 W. 503. 2. In a contract for the sale of lands the phrase "for value received" is a sufficient expression of the consideration to take the case out of the statute of frauds. —Cheney v. Cook, 7 W. 413, 423. 3. "Words susceptible of different applications are to be limited or extended so as to subserve the object which the legislature had in view". —Lawrence v. Vilas, 20 W. 381, 386. 4. "Unless is equivalent to except, and is here used (Sec. 2272) to introduce an exception to the right of the halfblood. ' ' — Est. of Kirkendall; Cramer's Appeal, 43 W. 167, 178. 5. "Claim or demand", in the city charter, is held not to include action for personal torts. The words ' ' certainly would include interest as well as principal upon a liquidated demand against the city. ' ' —Eelley v. City of Madison, 43 W. 638, 644. 6. "The general rule as stated by the authorities is, that a merger takes place whenever a legal and equitable estate in the same land come to one person, in the same right, without an intervening interest out- standing in a third person. Then, it is said, the equitable merges in the legal estate, the latter alone subsisting." —Scott v. 'Webster, 44 W. 185, 193. 7. ""Pay over and deliver", construed to mean in personalty; and realty so devised with power of sale is held to be "personalty". See Construction op Wills. 8. "The words, institution and organized, appear to imply an incor- poration". See Charitable Trusts. —Dodge v. Williams, 46 W. 70, 97, 100. 9. "Grant as used in" sec. 2340, includes "a deed of bargain and sale to a married woman, executed by a stranger". V WORDS AND PHRASES 1243 10. "Dr. Webster defines 'earnings' to.be that which is earned.; that which is gained or merited by labor, services or performances ; wages or reward". —Dayton v. Walsh, 47 W. 113, 115. 11. "Promissory note" is denned as a written engagement to pay -money. See Promissory Notes, etc. 12. A certificate of deposit is "in law a promissory note". 13. Money includes coin and paper, etc. See Money. 14. "Currency means money — coined money and paper money equally. ' ' 15. Current funds has the attributes of currency when "used. in the legal sense of money". —Klauber v. Biggerstaff, 47 W. 551, 555. 16. While the word "as", before "administrators, etc," has a sig- nificance showing representative capacity, in contracts, the rule does not apply "to a bond required Jby statute to be given to them in their representative capacity in a judicial proceeding." See Extrs. and. Admrs. —Easson v.' Est. of Brocker, 47 W. 79; 86. 17. "Receipts in full" are held explainable and not conclusive. See Settlement. —Catlm v. Wheeler, 49 W. 507, 523. 18. "We hold that a subsisting mechanic's lien, for which a petition was filed, is an incumbrance within the ordinary meaning of the word ' '. —Redmon v. Phoenix F. Ins. Co., 51 W. 292, 303. 19. "To inquire in a summary manner", is "certainly not a mode of trial known to the common . law, but rather an inquiry, to which the common law was a stranger. 'It is an examination in which the ancient established course of legal proceedings is disregarded. It dispenses with oral examination", "allows affidavits, inspection and other methods of proof". ,—Schdfer by Gdn. v. Luke, 51 W. 669, 675. 20. 'Subscribed' does not mean 'written signature', as to a summons. See Handwriting. — Mezehen v. More, 54 W. 214, 215. 21. 'In good faith' includes lack of knowledge of an unreported con- veyance. 22. 'Conveyance' is construed to include 'mortgage', under sec. 2441. See Deeds. —Rowell v. Williams, 54 W. 636, 639. 23. "The term 'next friend' ", is held to be "broad enough to include the mother of the minor. 24. It is, or rather was, by the common law the legal designation of the person by whom an infant brought and prosecuted an action either at law or in equity. When these proceedings were had such person was, and now is, designated a guardian ad litem. ' ' —McEinney v, Jones, 55 W, 39, 46, 1244 PROBATE AND GENERAL LAW, CODIFIED 25. 'Proper residence', is an abode "with, the present intention of remaining". See Domicil. , —State ex rel. Wood Go. v. Bodge Co., 56 W. 79, 86. 26. " ' Testimony is the declaration of a witness under oath or affirma- tion'. 'Testifying is the giving of evidence'. 2 Burrill's Law Diet. 525. 27. 'To testify is to make a solemn' declaration on oath or affirmation for the purpose of establishing or making proof of some fact'. Webster". —Nash v. Eoxie, 59 W. 384, 388. 28. "Circumstantial evidence" defined. See Evidence. —Bowk v. Enos, 61 W. 660, 663. i 29. "The word 'surviving'," is held here to include, not only grand- child, but "the legal issue of any deceased grandchild". 30. "The word 'surviving', or survivor or survivors, is often used in this broad, comprehensive sense as including 'others', as well as a par- ticular class. Wilmot v. Wilmot, 8'Ves. Jr. 10". (Many other cases). 1 —Scott, -Extrx. v. West, 63 W. 529, 593. 31. For the rule of preponderance of evidence. See Mistake. —Parker v. Hull, 71 W. 368, 371. 32. Taking of a deposition by a notary is held not to be "a judicial act in a legal sense. ' ' See Holidays. —Green v. Walker, 73 W. 548, 550. 33. The term "gqod moral character," especially as to attorney de- fined. See Attorney and Client. — In re , 73 W. 602, 618. 34. "In a legal parlance, a 'duplicate application 1 is not simply a , copy of the application". "In Burrill's Law Die. J duplicate ' is defined as 'an original instrument repeated' ". — State ex rel. Fenelon v. Graff ami, 74 W. 643, 647. 35. "Acceptance is the receipt of the thing with an intention to retain it indicated by some act or words sufficient for that purpose. ' ' 1 —Schmidt v. Thomas, 75 W., 529, 532. 36. "Words 'debt' and 'indebtedness' ", "do not always import a legal obligation." See Construction op Wills. — Scott v. Neeves, 77 W., 304, 310. 37. "Suitable" as to welfare of child's custody in guardianship statute, construed. See Parent and Child. — Sheers v. Stein, 75 W. 44, 51. 38. The legal meaning of an accord set forth. See Accord and Satis- faction. Sieber v. Amunson, 78 W. 679, 682. WORDS AND PHRASES 1245 39. As to "void" in the statute, sometimes meaning "voidable." See Sale of Realty. —Melms v. Pabst Brewing Co., 93 W., 153, 164. 40. "A contingent remainder" is held to be either 'a provision', or the giving it indicates an intention not to make a provision. See After- born Child. — Verrinder v. Winter, 98 W. 287, 291. 41. The word "children", defined and held in the instant ease to include remote descendants. See Construction of Wills. — Will of Scholl, 100 W, 650, 655. 42. "Bequeath" is used as personalty, and "devise" as to realty.; income of realty is "real estate." See also Nuncupative Will. — In re Davis's Will, 103 W. 455, 457. . 43. A "remainder in the real estate" constitutes a "provision," See Afterborn Child. —In re Donges's Est., 103 W., 497, 512. 44. "In order to constitute a family, the persons composing it must ■' be under one management or head. Poor v. Hudson Ins. Co., 2 Fed. Rep., 432." "Families may be separate, though living under the same roof". — Heinemann v. Pier, 110 W., 185, 188. 45. " 'In law', the word 'inheritance' is defined to be 'the estate cast upon the heir by law immediately on the death of the ancestor; in a more general sense, any property passing by death to those entitled to succeed '. Cent. Diet. ' ' 46. ' ' The word succession is defined to be : ' The act or right of legal or official investment with a predecessor 's office, dignity, possessions, or functions ; also the legal or actual order of so succeeding, or that which is or is to be vested or taken'. Standard and Century Diets." —Glascott v. Bragg, 111 W., 605, 608. 47. As to meaning of "balance", distinction between "account" and contract, and as to "paid in full today''. See Account Books. —Prairie G. C. M. Co. v. Luder, 115 W., 20,, 24, 48. "Face value", as used in sec. 664, concerning tax certificates, follows "the common meaning", and "is the amount named in the paper, not including interest or anything determinable by computation or evidence aliunde, especially where the right to interest does not appear upon the face of the paper". 49. "We see no reason for holding that 'face' means any less than 'face value' ". —Olson V: Tanner, 117 W., 544, 547. / 50. ''Lawful heirs" held to mean survivors at "the period fixed for distribution", of those who were heirs at the decease of the testator. See Construction of Wills. — In re Cowley's Will, 120 W. 263, 265. 1246 PROBATE AND GENERAL LAW, CODIFIED 51. "Residue", where widow elects, is balance after she is paid her share. See Descent and Distribution. —Bradley's Will, 123 W. 186. 52. The word "survivors" as to the benefit certificate, "does not. include one who 'was neither a relative of the deceased, nor a member of his household, nor connected with him by marriage ' " ; held here, not to include one who "had nursed and cared for the insured for several weeks prior to his death ' '. —Grand L. H. 8. v. Lemke, 124 W. 483, 486. 53. As to meaning and effect of 'death without issue'. See Vesting op Estates, etc. — Korn v. Friz, 128 W. 428, 437. 54. "The word 'consent' is sometimes treated as synonymous with 'assent', 'acquiesce,' and 'concurrence' ". Other definitions. See also Homestead. —Bartle v. Bartle, 132 W., 392, 398. 55. In a contract for large proceeds for sales of land, with a very small consideration, "the term 'expenses' as used in the agreement", is held to include "all outlays," "whether of "money or labor", and the value of the party's services in making such sales. —Bust v. Fitzhugh, 132 W.,' 549, 559. 56. "Ditto marks" "are to be read as a representation of what appears written above them and as meaning 'the same as above'." 57. "Abbreviations commonly in use in the English language may be used in general writing and legal documents and records as part of the English language. (Cases) ". —Chase v. Maxey, 134 W. 435, 436. 58. "The word 'purchaser' ", in sec. 2108, converting a life estate into a fee to purchaser, on execution of a power, "is not used in its technical sense". See also Life Estates. —Perkmson v. Clarke, 135 W. 584, 592. 59. "The market value of land at any time is the price that would in all probability result from fair negotiation, where the seller is willing to sell and the buyer desires to buy. (Cases). 60. The expressions 'actual value', 'market value', or 'market price', when applied to an article, mean the same thing. Sanford v. Peck,' 63 Conn. 486". —Maxon v. Gates, 136 W. 270, 289. 61. "A clear preponderance" of evidence, defined. See Judicial De- cisions. —Ott v. Boring, 139 W., 403, 407. 62. "By 'seisin' is meant a fixed vested right of enjoyment of the estate," etc, See also Dower. —Will of Prasser. 140 W., 92, 96. WORDS AND PHRASES 1247 63. " 'Or' is usually disjunctive ; occasionally, to avoid absurdity, it is construed as a conjunctive and equivalent to 'and', but it is also used in the sense of 'alias'." —Menominee R. B. Co. v. Augustus Spies L. & C. Co., 147 W. 559, 569. 64. "Intention is usually a question of fact, and it is always a question of fact where, from other uncontroverted facts relative to intention, con- tradictory inferences may be drawn". — Hoff v. Hackett, 148 "W. 32, 34. 65. The word 'mother' in a benefit certificate held to include step- mother. See also Insurance. —Jones v. Mangcm, 151 W. 215, 223. 66. As to meaning of words 'living together' as to married parties. See Husband and Wife. —Northwestern I. Co. v. Ind. Com., 154 W., 97, 102. 67. "Usually the term 'value' means market value, and in the absence , df circumstances showing that another meaning shall be given it, such customary meaning will control". —Burroughs v. Joint 8. D., 155 W., 426, 429. 68. "Plow land in such connection", — the sale of farming lands, — "means tillable land, not arid land which might be plowed without any beneficial results". — Govier v. Brechler, 159 W. 157, 163. 69. "The words 'more or less' are intended td cover a reasonable excess or deficit". ^Sueh phrase is held to cover "three acres less than the amount named in the contract", being seventy -five acres "at the rate of $135 an acre", and not to diminish such price, there being no fraud; In Richards v. Millard, 146 W. 552, it was held to cover "land sold as about 160 acres more or less and there was in fact 152.81 acres". —Frey v.Etzel, 160 W. 311, 314. 70. "Liability is 'the state of one who is bound in law and justice to do something which may be enforced by action'. (Citations)." , State ex rel Quinn v. Thompson's M. F. Co., 160 W. 671, 675. 71. It being "necessary to effect a testator's intention", "the word 'revert' was" held "used in the sense of 'to go' ". See also Vesting of Estates. —Will of Owens, 164 W. 260, 265. 72. The "ordinary meaning" of the word "pay", "is to discharge an ' indebtedness by the use of money". (Cases). See also Bond foe Main- tenance. — Krcthn v. Goodrich, 164 W. 600. 1248 PROBATE AND GENERAL LAW, CODIFIED WRITINGS. See also Contracts. Handwriting. Parol. Cross-examination : Placed in witness ' hands, 19. Disposition of property, 35. (1) Conveyances, 36. Bequires consideration, 39. (2) Executory contracts, 37. (3) Testamentary; future, 38. Requires death to enforce, 39. Explained by parol: Letters after the contract, 7. Medical report by examiner, 13. Not when vesting a right, 3. Otherwise not excluded, 15. I Defective, as memoranda, 18. Payment, though receipt, 17. Written and verbal, 16. Receipt and other writiings, 6. Receipts in full, 12. Rule, when not allowable, 14. (1) Written instrument required, 14. (2) Contract put in writing, 14. (3) Where one asserts writing, 14. Other disputes it, 14. When evidence of a fact, 4. Will, deed, or covenant, 5. Letters : Acceptance by mailing, 10. Though never received, 10. After contract; explained, 7. Between husband and wife, 33. Contract made by, 10. Dunning letter for balance due, 20, 21. Failure to reply, 20. Reiterating contract, 20. Silence admission of claim, 21. Admitted to show, 20. Evidence of the contents, 51. Original burned or destroyed, 51. Letter-press copies, admitted, 48. Improper, nothing as to originals, 48. Orders, binding if accepted, 43. Countermanding letter, 2 P. M., 45. Acceptance, sub-station, 4 P. M., 45. Withdrawn until accepted, 44. Original and letter press copies, 50. Proof of mailing in time, 32. Not remember; not weaken, 32. Prima facie evidence of, 32. Realty sale contract, 53. Enforce specific performance, 54. Promise, sufficient consideration, 55. Signed by stamp; copy, 56. Competent as evidence, 56. Lost writings: To establish written contract, 59. Clear and satisfactory evidence, 59. Maps and diagrams, 60. Establish independent fact, 61. Strict evidence rules, 61. Slight proof of accuracy, 60. Memoranda : Defective contract used, 18. Made at the time, 8. Copy of the same, 8. Original and copy defaced, 8. Third copy used, proper, 8. Testified to as correct, 8. Made in party's own interest, 57. Self-serving memorandum, 57. Not unless witness needed it, 34. Admission, held error, 34. Not used to refresh memory, 58. Made by another, 58. Unless he knows it correct, 58. Open to some suspicion, 9. Affecting credibility, 9. Used to assist memory, 2. Within present recollection, 40. Not producing at testimony, 41. Affects credibility, 42. Not competency, 42. Unless unreasonable refusal, 42. Written in ledger of vendee, 23. Admissible as an admission, 30. Substantive evidence; identified, 29. Not by wife's evidence, 26, 27. Not .admissible as account, 24. Memorandum so made, not, 25. Presence of both parties, 23. Testify to what took place, 28. If he could identify, 28. Though not his name, 28. Vendee's wife at his dictation, 23. Witness heard, made and saw, 23. Minutes of former trial, 31. Production of: Asked to produce on cross-examination, 46. Not sufficient to act, 46. Formal notice to produce, 47. Or demand for production, 47. Letter press copies, 48. Originals to be accounted for, 48. Custodian be subpoenaed, 49. Not in party 's control, 49. WRITINGS 1249 Production of — continued Production of — continued Not duplicates of originals, 50. Private books and papers, 52. Notice at trial, insufficient, 1. Of a third party, 52. Writing not in court, 1. Receipts in ,full, 12. Order to deposit with clerk, 11. Telegram: Proper discretion, 11. Varying offer in writing, 22. 1. "Notice to produce the original" writing, given at the trial only is insufficient, the writing not being in court in 'the possession of the party notified. See also Evidence. — Barker v. Barker, 14 W. 131, 150. 2. Memoranda are "not admissible as evidence" but may be used to assist the memory. See Account Books, -^Schettler v. Jones, 20 W. 412. 3. ' ' We think the rule is correctly stated " by " Cowen, J., in M 'Crea v. Purmort, 16 Wend. 460: 'Whenever a right is vested or created, or extinguished, by contract or otherwise, and writing is employed for that purpose, parol testimony is inadmissible to alter or contradict the legal and common sense construction of the, instrument; 4. But any writing which, neither by contract, the operation of law nor otherwise, vests or passes or extinguishes any right, but is only used as evidence of a fact, and not as evidence of a contract or right, may be susceptible of explanation by extrinsic circumstances or facts. 5. Thus, a will, a deed or a covenant ( in writing, so far as they transfer or are intended to be the evidences of rights, cannot be contradicted or opposed in their legal construction by facts aliunde. 6. But receipts and other writings which only acknowledge the ex- istence of a simple fact, such as the payment of money, for example, may be susceptible of explanation and liable to contradiction by witnesses ' ' 7. In this case letters written some weeks after the making of the contract were put in evidence and were allowed to be explained by parol. — Clifford v., Baessman, 41 W. 597, 600. 8. Where a witness made a memorandum "at the time of the facts or occurrences it refers to", and then a copy of the same, and then dic- tated another copy from the last copy, the original and N first copy being defaced, and testified that the last copy was "a true copy from the original" which "was correct when" he made it, and that "he resorted to the paper to refresh his memory, and in resorting to it his memory was refreshed", held, that a specific "objection to the witness testifying from the paper", was properly overruled. 9. "It is true, this kind of evidence is open to more or less suspicion because of the unconscious effect which the memorandum may have upon the mind of the witness, and which may lead him to suppose he recalls facts when he really does "not. But this affects the credibility rather than the competency of the testimony". -^Folsom v. Apple River L. Co. 41 W. 602, 606. Zimmerman — 79 1250 PROBATE AND GENERAL LAW, CODIFIED 10. " It is well settled in England and this country, that where a pro- posal for a contract is hiade by letter, sent by mail, the deposit of a let- ter of acceptance in the post office by the person to whom the proposal is made, addressed to the person making it, at the proper place, com- pletes the contract, even though the latter never received the letter ac- cepting his offer. Vassar y. Camp, 11 N. Y. 441, and cases cited". —Washburn v. Fletcher, 42 "W. 152, 166. 11. Under the statute requiring the production for inspection by the opposite party of writings, and an order directing deposit thereof for two days with the clerk, it is said : ' ' The power exercised by the court under this section is quite analagous to that formerly exercised by the eourt of chancery in compelling a discovery of books and papers"; and it was held a proper exercise for the discretion of the court. —Phelps v. Atlantic & F. Tel. Co., 46 W. 266, 268. 12. "Receipts in full" are hot conclusive and may be explained. See Settlement. — Catlin v. Wheeler, 49 W. 507, 523. 13. A "medical examination signed by the examiner alone" is not such a writing as will exclude oral evidence as independent evidence by the examiner, in an action where the patient is plaintiff. 14.. It is not "within either of the three classes" given by Greenleaf, "to which the rule is applicable that oral cannot be substituted for writ- ten evidence : first, where the law requires a written instrument ; second, where the parties to a contract have put it in writing ; and third, where one party asserts the existence of a writing material to the issue, and it is disputed by the other party. Vol. 1, 85 to 88 inc. 15; In section 90 the learned author says: 'But where the writing does not fall within either of the three classes already described, there is no ground for its excluding oral evidence ; 16. As, for example, if a written communication be accompanied by a verbal one to the same effect, the latter may be received as independent evidence, though not to prove the contents of the writing, nor as a sub- stitute for it. 17. Thus, also, the. payment of money may be proved by oral testi- mony, though a receipt be taken. * * *. 18. And any writing inadmissible for the want of a stamp or other irregularity may still be used by the witness who wrote it, or was pres- ent at the time, as a memorandum to .refresh his own memory, from which alone he is' supposed to testify, independently of the written paper.' " 19. "A witness cannot be asked on cross-examination" as to a writ- ing, without placing it in his hands. See Cross-Examination. — Teegarden v. Caledonia, 50 W. 292, 295. \ 20. As to letters written by plaintiff asking payment of a balance due, "and reiterating the contract" upon which based, and failure of defend- , WRITINGS 1251 ant to "reply to any of them, or deny .the truth of what they contained", it is held, as to the. statements therein, that such failure "is a tacit admis-, sion of them, and to that end the letters of the plaintiff were admissible. 21. They were dunning letters", "and presented to the defendant the plaintiff's account for services according to the contract. By his silence the defendant admitted the claim of the plaintiff. Hinton v. Wells, 45 W., 268". - —Murphey v. Gates, 81 W., 370, 372. 22. As to varying effects of an offer in writing and by telegram, in detail. See Contracts. -^Sherley v. Peehl, 84 W., 46, 52. 23. Where a memorandum of a contract of sale of personalty was written in the ledger of the vendee S:, "by his book-keeper, being his wife, at his dictation and "direction, in presence of both parties"; and testi- fied to by witness M., and "that he heard the contract made"; "that she read it after she wrote it down; and that he stood where he could see it, though not close enough to read it" ; — it is held :■■ , 24. "It is very clear that it was not admissible as a book of account , under the statute, because it is neither a charge nor a credit nor an entry that properly belongs to an account. 25. A memorandum otherwise incompetent cannot be made admissible ' by being written in a book of account". 26. It was not admissible on the evidence of the. book-keeper, merely^ as to her authority and acts relating thereto; • • ,_■..,.., 27. Nor could she "tell what the contract was", being incompetent as the wife of the party^ as "she had not made it, nor taken any part in making it", as "agent of her husband"; 28. But the witness M. "was entirely competent to testify as to any- thing that took place"; though "it was not his memorandum and he did not read it", "he could certainly use the memorandum to. refresh his recollection, though not made by himself^ if he could identify it#upon inspection and testify that he recollected it, as the one* made a,t the time of the transactions. Hill v. State, 17 W. 675. 29. We think, also, in the present case, that, if he could so identify it, the memorandum would itself 'become substantive evidence". , 30. It having been so read over "in the presence of both parties, at the time, and without dissent", "it. became, if properly identified, not the mere memorandum of the witness, but an admission of the parties, and entitled to be introduced as such"; Bby v. Eby's Assignee, 5 Pa. St. 435. —Hazer v., Streieh, 92 W. 505, 508. 31. Minutes of former trial may be Used by the scrivener to refresh his recollection, in testifying as to evidence givenby deceased party. See Evidence. -^MoGeoch v. Carlson, 96 W. 138, 140. 32. "Proof of the mailing of a letter in time to reach the person to whom it was addressed, in the regular course of the mails, prima facie 1252 PROBATE AND GENERAL LAW, CODIFIED establishes the fact that it was reeeived. Jones Ev. See. 46, and cases cited." Testifying i that "he did not remember having reeeived it", "did not weaken" this prima facie effect. — McDermott v. Jackson, 97 W. 64, 75. 33. Letters between husband and wife are held privileged. See Privileged Communications. — Lmctot v. State, 98 W. 136, 137. 34. As to a memorandum to refresh memory, "unless the witness needed it to aid his memory, it has no place in the case," there being ~no proper foundation laid, and its admission is held error. — Cox Bros. & Co. v. Milbrath, 110 W., 499, 505. 35. "Writings by which the owner's rights to his property are affected or rights in or to such property are conferred on others fall into one or another of three broad classes ; 36. .First, conveyances — those which evidence a presently completed and executed devolution of the property, or some right thereto ; 37. Second, executory contracts — those which evidence a promise or agreement that some rights shall arise in another at some future time ; 38. And, third, those which merely declare a present will or intent as to a future disposition. ' 39. Of these the second" requires a consideration, and the third is enforceable only when "testamentary" and "completed by his death without formal" revocation. See also Wills. —Templeton v. Butler, 117 W., 455, 457. 40. "One may refer to a memorandum made by himself for the pur- pose of preparing to give testimony in regard to the fact involved, even if 'he has no present recollection independent thereof, so long as he knows that^henhemade it, it was jn accordance with the truth. (Cases). 41. The mere fact that the memorandum is not produced in court at the time the witness' testimony is given may go to the credibility of such testimony. 42. But does not' go to the competency thereof or justify the court in rejecting it unless the witness unreasonably refuses to comply with the order of the court to" produce the memorandum ' '. See also Bibth. —Loose v. State, 120 W. 115, 122. 43. Orders for the sale of merchandise, taken at W. by "the plain- tiff's (seller's) agent were by their terms only to become binding if approved and accepted by the plaintiff company" of M. 44. "Up to the time of such approval and acceptance they could be withdrawn or cancelled by the defendant". 45. Where a "countermanding letter was received as early as 2 o'clock p. m.", by the plaintiff, "while the postal card of acknowledg- ment (acceptance of the orders) bears the stamp of (Milwaukee) Station WRITINGS 1253 A. at 4 p. m. ", it is held that no contract was made. "Washburn 1 v. Fletcher, 42 W., supra. —Mueller F. Co., v. Meiklejohn, 121 W. 605, 607. 46. Where an attorney, being a party, as a witness on cross-examina tion, disclosed the possession of letters at his office, and on being asked to produce them, "objected on the ground that they were" privileged, and there being no ruling, — it is said that while they might ' ' have been receive'd", "counsel did not go far enough" "to present the question. 47. He should have given formal notice to produce, or at least should have demanded their production, basing such demand on a statement of what he expected to prove, and then he would have obtained a ruling of the court and an exception". —Wvnnv. Itzel, 125' W. 19, 29. 48. ' ' Letterpress copies of letters ' ' are held improperly admitted, where "there was nothing to show that the originals were not in exist- ence and that they could' not have been produced if proper steps for their production had been taken", 49. -Though the party "shows that they were not in his possession or under his immediate control", — when the custodian might have been subpoenaed. . (Cases). t 50. "The original letters and letter-press copies are not regarded as' being duplicates. (Citations)". —Menashti, W. W. Co. v. Harmon, 128 W. 177, 181. 51. Evidence of a witness to "the contents of a letter which he claims to have received from the defendants", Was held proper, there being "evidence to the effect that the letter could not be produced— that it had been burned or destroyed". —Bazelon v. Lyon, 128 W. 337, 339. 52. As to compelling production of private books or papers of a third party. See Inheritance Taxes. . — State ex rel Pabst B. Co. v. Carpenter, 129 W. 180, 189. 53. "It is the settled law of this state that a v valid and binding oonr tract for the sale of real estate may ber made through the medium of letters " ; ;>..,..„ 54: And that, in case of breach by the other party, "the vendee may enforce specific performance", and "the vendor may maintain an action to recover the purchase price. 55. The promise to pay pn the part of the vendee is a sufficient con- sideration for the agreement to sell by the vendor. (Many cases) ". —Curtis L. & L. Co. v. Interior L. Co., 137 W. 341, 345. &6. A letter "was on one of the regular letterheads used by the" addressors "and the addressee testified that it was received directly from them. Under these circumstances it se'ems the' paper; though 1254 PROBATE AND GENERAL LAW, CODIFIED marked 'Copy' and though signed with a stamp instead of in writing, was competent as" evidence. / —Stwmm v. Western U. Tel. Co., 140 W. 528, 534. i 57. A memorandum in plaintiff's presence as to an agreement "made by the defendant in his own interest and not brought to the knowledge of the plaintiff at the time", "was mere self-serving memorandum", and does "not constitute substantive evidence of the facts as against the other party to the transaction*'. —Haueter v. Marty, 150 W. 490, 494. 58. "A witness should not be allowed to use a writing to refresh his memory which was made by another person unless he knows it to be" correct. (Citation) ". —Toepfer v. Sterr, 156 W. 226, 229. 59. As to actions depending on lost writings to establish a written contract requiring clear and satisfactory, evidence. See Legacies. —Dilger v. Est. of McQuade, 158 W. 328, 332. 60. "Maps and diagrams are frequently received in evidence with very slight proof of accuracy or authenticity when they constitute merely a picture or a summing up of evidence otherwise legitimately in the case. . 61. But where they are used to establish an independent relevant fact", — as here, "a railroad right of way" as being near lands, — "they are subject to the same rules as other documentary evidence ' '. — Oovier v. Breehler, 159 W. 157, 163. WRIT OP CERTIORARI. Appealable orders or judgments, 9. Common-law writ not apply, 11. Court not review, 9. Appear wrong has been done, 4. Nature to be corrected, 4. Common law rule prevails, 6. Issued to inferior courts, 1. Acting judicially, 1. Judicial nature only, 3. Officer or municipality, 3. Not ministerial or unlawful acts, 2. Jurisdictional errors only, 12, 14. Has no other use, 13. •- v Except to bring record up, 13. Not postponement denial, 14. Jurisdictional,, etc. — continued Not weight or credibility of evidence, 15. Test validity of proceeding, 12. Notwithstanding supersedeas, 8. Judgment pleaded in estoppel, 8. Other proceedings taken, 8. Beaches record, not body, 13. Eecord must show, 5. Parol testimony not allowed, 5. Superintending control, 10. Not lightly exercised, 10. When ordinary remedies suffice, 10. Suspends the execution, 7. Does not vacate, 7. 1. "It is well settled that the writ of certiorari at common law can only be issued to the inferior courts or bodies acting in a judicial or quasi judicial character, WRIT OF CERTIORARI 1255 2. And not for the purpose of reversing ministerial or unlawful acts not done in the discharge of some judicial or quasi- judicial duty. (Cita- tions). 3. 'It is only acts of a judicial nature that can be reviewed on cer- tiorari; and this, too, whether the act is that of a judicial officer or a municipal corporation, or otherwise'. People ex rel Van Voast v. Van Slyck, 4 Cow. 297 ; (many cases) . 4. 'It is also a rule of law that, before allowing or acting upon the writ of certiorari, it must be made satisfactorily to appear to the court that a wrong has been done, and that the error is of a nature that can be corrected by the issuing of the writ'. People ex rel Moore v. Mayor, 5 Barb. 43; (other cases) ". 5. "Upon a writ of certiorari nothing can be inquired into except what appears of record in the inferior court or body, and upon the_ return no parol testimony is allowed to establish any issues made by the return to the allegations contained in the petition for the writ., State ex rel Manitowoc v. County Clerk, 59 "W. 15, 23". 6. It is assumed, without being stated, that the rule of the common law as to this writ prevails, and the proceedings as to a schoolhouse sale are quashed. — State ex rel Wiesmarm, v.. Kemen, 61 W. 494, 496. 7. "A writ of certiorari suspends the execution of the judgment or order challenged thereby. It does not vacate such judgment or order. ' ' 8. "Notwithstanding the supersedeas or stay, the judgment or order may be pleaded or given in evidence in bar or as an estoppel." "or any other proceedings be taken not inconsistent with the dormant status of the judgment so far as its enforcement is concerned. Neuman v. State, 76 W., 112 ; Richter v. Leiby, 99 W., 512 ; State v. Madison, 63 M.e., 546. " State ex rel C. & N. W. B. Co., v. Burnell, 102 W., 232, 234. 9. "This court has repeatedly declared its policy to refuse to review; by certiorari appealable orders or judgments. State ex rel C. & N. tV. R. Co., v. 0. A. & B. W: R. Co., 100 W. 538; Harris, Certiorari, 44, 87"., '10. This is because "its powers of superintending control over other courts, like the powers of original jurisdiction, are 'not to be exercised updn light occasion, or when other and ordinary remedies are sufficient', as expressed by Mr. Justice Winslow in State ex rel Fourth Nat., Bank v. Johnson, 103 W. 591." —State ex rel Meggett v. O'Neill, 104 "W. 227, 229. 11. "A common-law writ of certiorari will not issue where there is an adequate remedy by appeal or otherwise. (Case) ". —In re Hammer, 113 W., 96, 97. 12. "A writ of certiorari reaches only jurisdictional errors, when sued out to test the validity of some judicial or quasi- judicial proceed- ing. 1256 PROBATE AND GENERAL LAW, CODIFIED 13. It has no other use, except to bring before' the court a record material to be considered in exercising jurisdiction in deciding a matter presented by some other writ. (Citation)". It "reaches the record but not the body". See also Habeas Corpus. , ^State ex rel Gaster v. Whitcher, 117 W., 668, 671. 14. ' ' On certiorari the circuit court could only consider jurisdictional matters, and the denial of a postponement does not reach the question of jurisdiction. (Cases)". 15. Nor can "the weight or credibility of" the evidence, "be reviewed on certiorari". —State ex rel Spritka v. Parsons, 153 W. 20, 23. WRIT OF ERROR. According to common law, 11. Criminal as in civil cases, 5. After judgment, law action, 10. Not issue of insanity, 9. Some supposed mistake,. 10. , Not decree in equity case, 3. Civil actions; final judgments, 6. Not to review order, 2. Triable by jury only, '6, 7. Statute not enlarged it, 4. As a matter of right, 7. Not restrictive effect, 11. Except divorce actions, 6. Upon final judgments only, 1, 7, 12. Constitution preserved common law, 4. Not bring up subsequent orders, 12. Cannot be taken away, 8. Where existing before,, 8. 1. "At common law, such writ could only be brought upon a final judgment, or an award in the nature of a final judgment. (Many cases.) • 2. A writ of error does not lie to review an order (cases.) 3. It does not extend to a decree or judgment in an equity case. (Cases). 4. Such was the writ which was preserved by the constitution. Sec. 21,, Art. 1. The statute has not enlarged the functions of the writ. (Cases)." 5. Under the statute, such writs in criminal cases are issued as "pro- vided by law in civil cases. Sec. 4724. 6. And in civil cases it provides that writs of error may issue to re- view final judgments in actions triable by jury, except actions for di- vorce. Sec. 3043." 7. "The statutory provision that the writ 'may issue to review final judgments in actions triable by jury, ' clearly means actions so triable as a matter of right. Sees. 5, 7, Art. 1. Const. 8. Since the constitutional right must 'remain inviolate', it cannot be taken away in any class of cases where it existed when the constitution was adopted. (Cases) ". 9. The right to trial by jury under the constitution, does not extend WRIT OF NE EXEAT 1257 to the trial of the issue of insanity in criminal eases, under section 4700. See also Jury. —Crocker v. State, 60 W. 553, 555. 10. "A writ of error lies after judgment' in any action at law in a court of record, to correct some supposed mistake in the proceedings or judgment of the court. ( Citations ) . " 11. In Crocker v. State, 60 W., supra, it was not intended to give a "restrictive effect to the statute", sec. 3043, which "does not attempt to restrict the functions of the writ", "but only to assert the rule that the writ can be brought only on a judgment given in a court of record pro- ceeding according to the course of common law. ' ' —Buttrick v. Boy, 72 W.' 164, 165-6. 12. "Writ of error runs only to final judgment, and not to an order. Sec. 3043; (cases). Writ of error to judgment does not bring up subse- quent orders. O 'Toole v. State, 105 W., 18". —J. L. Gates Land Go. v. Olds, 112 W., 268, 269. WRIT OP NE EXEAT. Ancillary to an action, 9. Provisional remedy, 8. Application of complainant only, 7. Issued at summons, or after, 8. . Not against plaintiff, 7. Recital of ancient writ, 5. Functions as common law, 3. Statute not change, 6. , Obtain equitable bail, 3. Special order of court, 9. Issued by court of equity, 4. Statute, not create or define, 1. Against a debtor party, 4. Common law recognized, 2. Not against third person, 4. Scope not enlarged, 2. Nature of equitable bail, 9. "Sufficient grounds", means, 6. Party about to leave, 9." As at common law, 6. To make decree ineffectual, 9. l.-"The writ of ne exeat is not created, nor are its functions defined, by statute. _ 2. Sees. 2784-6, recognize the common-law writ and make certain provisions regulating the practice, but do not pretend to enlarge its scope. 3. As to the general functions of the writ, and the grounds upon which it may issue we must turn to the principles of the common law. Bonesteel v. Bonesteel, 28 W. 245. At common law it was simply a writ to obtain equitable bail. 4 It was issued by a court of equity" "only against a debtor who was a party to the suit, not against a third person not a debtor whether he be a party to the suit or not. 5 The ancient writ always recited that it appears that the defend- ant is indebted to the complainant and designs quickly to go to parts beyond the seas. Beames, Ne Exeat 18. 1258 PROBATE AND GENERAL LAW, CODIFIED 6» Nor is this latter rule in any wise, changed by the terms of sec. 2784." "Sufficient ground means" "grounds sufficient" under the common law, and it must appear "that the party is a debtor". 7. Ij; ; issues only "on application of the complainant and against the defendant", and not "against the plaintiff". —Davidor v. Rosenberg., 130 W. 22, 24, .8. "A writ of ne exeat is a provisional remedy" "to be issued" "at the time of issuing the summons or at any time afterward before judgr ment". v 9. It "is in the nature of equitable bail, issued only by the special order of the court when the party is about to leave its jurisdiction and make its decree ineffectual. Dean v. Smith, 23 "W. 483. ' It is ancillary to the action in which it is issued". ' — State ex rel Cazier v. Turner, 145 W. 484, 485. TABLE OF CASES CODIFIED 436 437 294 77 Abbot v. Dwinnell, 74 W. 514 v. Heath, 84 W. 314 Abel, Grdshp. of, 147 W. 467 Abrams v. Jones, 4 W. 806 ' , v. U. S. Fidelity ,& G. Co., 127 W^ 579 21, 1042, 1136 Adams v. Bucyrirs Co., 155 W. 70 362 v. Rodman, 102 W. 456 418 v. State. 164 W. 223 ' 802 Adelman, Will of, 138 W. 120 841 958 1152 Adftins v.Loucks, 107 W. 587 306, 4^2, 855 Aetna Ins. Co. v. Aldrich, 38 W. 107 452, 1187 jEtna Life Ins. Co. v. McCormick, 20 W. 265 193, 385, 626, 749, 1040, 1185 Ahearn v. Borngesser, 151 W. 194 190 Albiston's Est., In re, 117 W. 272 383, 866, 1207 Albrecht \. Milwaukee & S. R. Co., 87 W. 105 66 Albright v. Albright, 70 W. 528 394, 548, 1224 Alderson v. White, 32 W. 308 93, 644, 1186, 1217 Allard v. Lamirande, 29 W. 502 101, 142, 193 Allen v. Allen, 58 W. 202 .351 v. Boomer,. 82 W. 364 250, 701, 447, 1233 v. t GrirE'n, 69 W. 529 415, 899, 1087 v. McRae, 91 W. 226, . 304 v. Seyfried, 43 W. 414 341, 964 v. Voje, 114 W. 1 440, 793 Alexander & E. L. Co. v. McGeehan, 124 W. 325 888 Allis's Est., In re, 123 W. 223 1136 Allis, Will of, 163' W. 452 203, 265, 350 Atlantic T. C. Co. v. Goetzler, 150 W. 19 225 Am. G. Co. v. Kringel, 156 W. 94 600 Ames v. Martin, 6 W. 361 430 Amory v. Amory, 26" W. 152 78, 627, 868,, 943 Amson v. Dreher, 35 W. 615 * 472, ,825 Anderson v. Anderson, 136 W. 328 937, 1113 v. Arpin H. L. Co., 131 W. 34 279, 406 v. Case, 28 W. 505 .23 v. Laugen, 122 W. 57 820, 1112.. 1172 Andrew v. Hinderman, 71 W. 148 173, 303 Andrews v. Thayer, 30 Wi 228 . 93, 142 v. Youmans, 82 W. 81 437, 1238 Andrzejewski v. N. W. Fuel po., 158 W. 170 , 689, 966 Arapahoe S..B. v. Houser, 162 W. 80 999 Archer v. Meadows, 33 W. 166 387, 466, 898, 1186, 1231 Armin v. Loomis, . 82 W. 86 _ , ', 106 Armstibng v. Armstrong, 63 W. 162 1165 v. , Blanchard, 150 W. 31 v. Pratt, 2 W. 299 v. Prentice, 86 W. 210 Arnd "v. Sjoblom, 131 W. 642 Arneson, Will of, 128 W. 112 293 ,.., Arnold v. Natl. Bank of W., 126 W. 362 ,189, 786 Arthur v. Arthur, 143 W. 126 12 57 Astor Co. v. Dengel, 161 W. 1 ' 949 Atkins v.|Fraker, 32. W. 510 94 645, 1217 Atkinson v. Richardson, 14 W. 157 110 606 1019 1239 917 419, 901 Attorney General v. Foote, 11 W, 14 920; 1039 v. Lum, 2 W. 507 974 Atwater v. Schenck, 9 W. 160 638, 932 Auer v. Brown, 121 W. 115 , 702, 866 August Brandt & Co. -v. Verhagen,- 161 , W. 3 • , 672 Aultman & .Co. v. Jett, 42 W. 488 ,. 909 Austin y. Austin, 45 W. 523 59, 68, 885, 910 ' 121 v. Moe, 68 W. 458 v. Saveland's; Est., 77 W. ' B 108 174, 270 , Babcock v. Perry, 4 W. 31 Bach v. Parmely, 35. W. 238 Bailey v. Fink, 129" W. 373 v. Scott, 13 W. 618 v. Wells, 8 W. 141 v. Wills, 8 W. 141 Baker v. Baker, 51 W. 538 13, 244, 793, 1025,. 1188, 1222 v. Baker, Extr., 57 W. 382 ;, 236, 629, 961, 1223 100, 329 543, 768 743 42, 955 ' 668 932 534 . •' v. Baker, 102 W. 226 v. Bohnert, 158 W. 337 v. Est. of McLeod, 79 W. Baldwin v. Frisbie, 163 W. 26 Ball y. Boston," 153 W. 27 v. McGeoch, 81 W. 160 Ballantine, Extr., v. Proudfoot, 62 W. 216 657, 1086 Bamber v. Savage 52 W. 110 110 Bank of Monticello v. Dooly, 113 W. 1168 . 948 248, 1202 308, 1228 ■ 1175 3, 276 590 915 304 288,". 571 . 954 Bannister v. Phelps,. 81 W. 256 Barbo v. Rider, Gdn., 67 W. 598 Barchent v. Snyder, 128 W. 423 Barker v. Barker, 14 W. 131 142, 403, 423, 626, 1120, 1249 v. Dayton, 28 W. ' 367 364, 1052 Baringer v. Evenson, 127 W. 36 449 Barlass v. Barlass, 143 W. 497 37, 653 Barnard v. Baokhaus, 52 W. 593 1179 Barney, J. Babcock's Est., 115 W. 409 44, 651, 1127 Barrett v. State, 1 W. 175 ' 1079 Barron, Will of, 163 W. 275 1141 Barry v. Minahan, 127 W.' 570 24, 179 v. Schmidt, 57 W. 172 * 188, Bartelt v. Smith, 145 W. 31 1070 Barth v. Grajf, 101 W. 27 1059 Barthell v. Peter, 88 W. 316 188 Bartle v. Bartle, 132 W. 392 532, 697, 1246 Bartlett v. Collins, 109 W. 477 1180 Barton v. Babcock, 28 W. 192 226, 240 v. Bruley, 119 W. 326 565, 727 v. Kane, 17 W. 37 674 Bassett v. Hughes, 43 W. 319' 275 Bassler v. Rewodlinski, '130 W. 26 .624 Bast v... Byrne, 51 W. 531 378, 463, 747, 1005 Batchelder v. Batchelder, 20 W. 452 141, 164, 425, 643, 1120 Bates v. Winters, 138 W. 673 334 Battis, Will of, 143 W: 234 653, 972, 1235 Saum V. Baum, 109 W. 47 • . 553 Baumbach Co. v. Gessler, 82 W. 231 1238 Baumgarten v. Cohn, 141 W. 315 670 Baxter v. State, 9 W. 38 6, 1024 1259 1260 CASES CODIFIED Bayfield Co. v. Pishon, 162 W. 466 1075 Bayliss v. Est. of Pricture, 24 W. 651 925, 1002 Bazelon v. Lyon, 128 W. 337 1253 Bean, Est. of, 159 W. 67 295, 574, 600, 1093 Beals v. State, 139 W. 544 591 Beard v. Dedolph, 29 W. 136 736 Beardsley v. Schmidt, 120 W. 405 445 Becker v. Beaver Mfg. Co., 158 W. 471 638 v. Becker, 153 W. 226 •' 728 v. Chester, 115 W. 90 211, 292, 383, 636, 841 v. Knudson, 86 W. 14 328 v. Trickel, 80 W. 484 941 Beckman v. Beckman, 86 W. 655 810 Beebe v. Wis. M. L. Co., 117 W. 328 763 Beem v. Kimberly, 72 W. 343 33, 46, 105, 427, 509, 944, 1100, 1123, 1225 Beers v. Kuehn, 84 W. 33 854, 927 Beggs, S. & Co. v. Est of Behrend, 156 W. 34 180, 976 , Begole v. Hazzard, 81 W. 274 810, 1146 B'ehling v. N. W, Nat. L. Ins. Co., 117 ■ W. 24 \ 463 Beilfuss v. State, 142 W. 665 801 Belden, J. v. Hurlbut, 94 W. 562 135, 332, 1058 v. Scott, Extx., 65 W. 425 Bell v. Gund, 110 W. 271 1108 379 v. Siemans & H. E. Co., 101 W. 320 189 Benham v. Purdy, 48 W. 99 341 Benner v. Mauer, 133 W. 325 262, 383, 1129, 1209 540, 621 220, 371 1095 838, 1035 7, 886 531 '406 ; 5-30,' 697 95 62, 983, 1186 78 153, 840, 863 430 Bennett v. Child, 19 W. 362 . v. Harms, 51 W. 251 v. Keehn, 67 W. 154 Benson v. Cutler, 53 W. 107 Bentley v. Doggett, 51 W. 224 Beranek v. Beranek, 113 W. 272 Berge v. Kittleson, 133 W. 664 Berger v. Bergerj 104 W. 282 Bertschy v. McLeod, 32 W. 205 195, 353, 1019 Besley, Est. of, 18 W. 451 45, 425 Best v. Gunther, 125 W. 518 329, 972 J Bestor v. Inter-County Fair, 135 W. 339 Betts v. Schotton, 27 W. 667 v. Sholton, 24 W. 306 Beurhaus v. Cole, 94, W. 617 Bevitt v. Crandall, 19' W. 581 Bibelhausen v. Bibelhausen, 159 W. 365 733 Bieri v. Fonger, 139 W. 150 338 Bierke, Will of, 132 W. 165 293 Bigelow v. Siekles,- 75 W. 427 548 Binzel v. Grogan, 67 W. 147 527 Bird v. Morrison, 12 W. 138 932,' 1063 Birdsall v. Dunn, 16 W. 235 46. 404, 539, 882, 1237 Birkett v. Hird, 55 W. 650 1026 Birkhauser v. Schmitt, 45 W. 316 751 Biron v. Scott, Trustee, 80 W. 206 270 818' 1123 Bishop B.-B. Co. v. Keeley, 160 W.' 546' 776 Bishop v. Aldrich, 48 W. 619~ 118 'v. Price, 24 W. 480 825, 925 Black v. C. & N. W. Ry., 18 W. 208 771 v. Hurlbut, 73 W. 126 691 v. .State, 113 W. 205 589 Blake v. Blake, 56 W. 392 119 Blakely, Will of, 48 W. 294 597, 1083 Blakely v. Carter. 70 W. 540 1100 . v. Smock, 96 W. 611 . 174, 30H, 1068 Blakesley' v. Johnson, 13 W. 530 626 Blanchard v. McDougal, 6 W. 167 274, 470, 804, 931 Bleiler v. Moore, 88 W. 438 468 Bliss v. State, 117 W. 596 297 Blodgett v. Hitt, 29 W. 169 193,385,644,838,857,874,984 Block v.' Milwaukee St. R. Co.* 89 W. 371 438 Bloodgood v. Meissner, 84 W. 452 551 Bloor v. Smith, 112 W. 340 497, 651, 763, 773, 865, 988 1127, 1189 Boardman v. Lorentzen, 155 W. 566 1175 Board of Sup. v. Decker, 34 W. 378 850 v. Mineral Point Ry., 24 W. 93 141, 816 Board of Trustees v. Saunders, 84 W. 570 217 Boeck, Will of, 160 W. 577 265 'Boehmer v. Kalk, 155 W. 156 607 Boden v. Maher, 105 W. 539 70, 811 Bogie v. Bogie, 41 W. 209 117, 325, 331, 387 Bogue v. Laughlin, 149 W. 271 633, 1074 Bonn Mfg. Co. v. Reif, 116 W. 471 776 Boles v. Welch, 94 W.> 189 665, 1010 Bonnell v. Jacobs, 36 W. 59 58 Boon v. Root, 137 W. 451 703 Boorman v. N. W. M. R. Ass'n, 90 W. 144 * 438, 599 Boos v. Gomber, 23 W. 284 735 Booth v. Wilkinson, 78 W. 652 502, 1133, 1146 Borchert v. Borchert. 132 W. 593 29, 942 v. Borchert, 141 W. 142 26, 125, 620, 942 Bprgnis v. Falk Co., 147 W. 327 584, 859 'Borngesser v. Harrison, 12 W. 544 5 Bostwick Admr. v. Est. of Dickson, 65 W. 593 173, 444, 711, 1007 Bpstwick v. VanVleck, 106 W. 387 Bbuck v: Enos, 61 W. 660 Bbuck, Will of, 133 W. 161 Bourne v. Wiele, 159 W. 340 350, 511, 1104 Boutin v." Andreas, 161 W. 152 355 V. Etsell, 110 W. 276 1061 Bovee v. Johnson, 130 W. 447 89 Boweri v. Burnett, 1 Pin. 658 422, 749 Bowker v. Shields, 140 W. 330 349 Bowles v. Page, 20 W. 309 77, 129 Box's Will, In re, 127 W. 264 89, 111, 462 Boyce v. Foote, 19 W. 199 23, 168 Boyd v. Gore, 143 W. 531 . 671, 99'6, 1114 Boyle v. Northwestern M. R. A., 95 W. 312 892 754 404, 886, 1244 262 350, 511, Robinson, 129 W. 567 419, 1092, 1174 Brader v. Brader, 110 W. 423 278, 328, 554, 714, 811, 875, 914, 1111 Bragg v. Gayner, 85 W. 468 322, 649, 845 Bradley's Will, 123 W. 186 348, 1227, 1246 Brandeisv. Neustadtl, 13 W. 142 471, 824, 932 Brandon, Will of, 164 W. 387 614, 685, 719, 904 Brayton v. Chase, 3 W. 456 891 Breed v. Breed, 125 W. 100 742 v. Ketchum, 51 W.164 81, 1188 v.- Weed, 130 W. 264 138 Brehm v. U. S. F. & Guaranty Co., 124 W. 339 20, 137, 505 Bresee v. Stiles, 22 W. 120 59, 370, 519, 579, 627 Bresnahan v. Bresnahan, 46 W. 385 118 Brickley v. Walker, 68 W. 563 548 Bridge v. Ward, 35 W. 687 345, 521,- 984, 1098, 1231 Briese v. Maechtle, 146 W. 89 584 Briggs v.'Hiles, 87 W. 438 948 Bright v. Superior, 163 W. 1 930 Brobst v. Marty, 162 W. 296 449 Brock v. Dole, 66 W. 142 669 Bromley v. C. C. C. & St. L. R. Co., 103 W. 562 ., H34 Brook v. Chappell, 34 W. 405 94, 182, 207, 387, 397, 645, 676, 779, 806, 850, 868, 896, 928, 1145, 1231 Brooks v. Northey, 48 W. 455 1217 Brossard, Admr. v. Williams, 114 W. 89 335, 428 Brown v. Brown, 53 W. 29 1188 '.: v. C. & N. W. R. Co., 102 W. 137 635, 975 •v. City of Baraboo, 90 W. 151 348, 622, 660 v. Cohn, 88 W. 627 'i042 v. Everhard, 52 W. 205 65, 808 v. Gates, 120 W. 349 278 v. Johnson, 101 W. 661 553, 892 v. McGee's Est, 117 W. 389 39, 176 692 v. Parker, 28 W. 21 452 v. Worden, 39 W. 432 769, 874 Bruendl, Will of, 102 W. 45 893, 1110 Bruger v. Princeton Co., 129 W. 281 Bruley v. Garvin, 105 W. 625 St. M. M. F. Ins. 49 893 CASES CODIFIED 1261 / Brunson v. Burnett, 2 Pin. 185 32, 192, 296, 422, 642, 659, 749, 778, 895, 968, 1043 Brunn, Extr. v. Schuett, 59 W. 260 245, 677, 1026, 1232 Bryant v. Pierce, 95 W. 331 1089, 1167 Buckstaff v. Hanville, 14 W. 77 181 Bucher v. Wis. Cent. R. Co., 139 W. 597 442 Buchner v. C. M. & N. W. Ry. Co., 60 W. 264 975 Bull v. Conroe, 13 W. 233 430, 518 Bullen, Est. of, 143 W. 512 593 Bunker v. Locke, 15 W. 635 518 Bunn v. Valley Lbr. Co., 63 W. 630 944 Burbach v. Milwaukee E. R. & L. Co., 119 W. 384 . x 292 Burnham v. Barth, 89 W. 362 1134 v. Burnham, 79 W. 557 248, 1203, 1233 v. Burnham, 119 W. 509 572, 929 Burdick v.Briggs, 11 W. 126 363, 370 Burgess v. Commercial Natl. Bank, 144 W. 59 836 v. Dane Co., 148 W. 427 / 786 Burnham, Admr. v. Mitchell, 34 W. 117 434, 596 v. Norton, 100 W. 8 210 Burns v. State, 145 W. 373 1240 Burroughs v. Joint S. D., 155 W. 426 1247 Burton v. Douglass, 141 W. 110 225, 812 Bushnell v. Bushnell, 77 W. 435 711, 1057 Bussell v. Wright, 133 W. 445 1159 Butler's Will, In re, 110 W. 70 87, 440, 1090 Butler v. Kirby, 53 W. 188 610, 709, 1005, 1065 v. Templeton, 115 W. 382 , 1040 Butterfield v. Sawyer, 52 L. R. A. 75, 77 ; _ 187 111. 598 54 Buttles v. De Baun, 116 W. 323 714, 1102, 1148 Button v. Cole, 109 W. 247 454 Buttrick v. Gilman, 22 W. 356 . 434, 780 v. Roy, 72 W. 164 ■ 1257 Butts v. Newton, 29 W. 632 321, 542, 882; 977 v. Richards, 152 W. 318 " 334 Buzzell v. Gallagher, 28 W. 678 • 806, 822 Byrnes v. Clark, 57 W. 13 781, 926, 1006 Cady v..Shepard, 12 W. 639 804, 908 Callis v. Day, 38 W. 643, 580 Cameron v. Cameron, 15 W. 1, 128, 340, 538, 616 Campbell, In re Hugh, 12 W. 369 422 Campbell v. Moore, 3 W. 767 403, 804, 936 v. Thomas, 42 W. 437 393 Campion v. Schinnick, 93 W. Ill 174 Canale & Co. v. Pauly & P. C. Co., 155 W 541 * sl C. & J. Michel B. Co. v. Est. of Wight- man, 97 W. 657 „ 84, 135 271 Canterbury v. N. M. L. Ins. Co., 124 W. 7 169 < - 60S Carey v. Boyle, 53 W. 574 , • 695, 1044 v. Dyer, 97 W.-554 .- ??5 Carhart v. Harshaw, 45 W. 340 431 Carney v. Gleissner, 58 W. 674 547, 1238 Carpenter, J., v. U. S. F. & Guaranty Co., 123 W 209 40, 137, 652, 697 Carpenter v. Fopper, 94 W. 146 5 ' 65 ' 1 "S v. Fulmer, 118 W. 454. 1022 v. Meachem, 111 W. 60 763, 954 - v. Murphey, 57 W. 541 172 v. State, 41 W. 36 - 709 Carr v. Com. Bank, 18 W. 255 767 Carrington v. Bayley, 43 W. 507 131 v. Eastman, I Pin. 650 994 Carter v. Sommermeyer, 27 W. 665 366 Carroll's Will, In re, 53 W. 228^ ^ nM Case v. Fish, 58 W. 56 610 833 L 1026 Case Plow Works v. Niles & S. Co., 107 W 9 614 Case'T. M. Co. v. Miracle, 54 W. 295 690 Cashman v. Ross.,U5 W 558 824, 1215 Casselman v. Packard, 16 W.; 114 519 Castleman v. Griffin, 13 W. 535 464 Catlin v. Wheeler, 49 W. 507 165, 204, 207, 677, 817, 832, 1025, 1243, 1250 Cerney v. Pawlot, 66 W. 262 332 ' Cawker v. Trimmel, 155 W. 108 672 Chafin WilLCase, 32 W. 557 596, 6S5, 1083 Challoner v. Bouck, 56 W. 652 886 Chamberlain v. Prudential Ins. Co. 109 W. 4 . „ 1111 Chandler v. Munkwitz, R. & I. Co., 148 W. 5 ,, 876, 946 Chandler's Appeal, Est. of McCoy, 34 W. 505 241, 350, 677, 984, 1231 Chandos v. Edwards, 86 W. 493 753 Chapman v. Chapman, 128 W. 413 1227 v. Plummer. 36 W. 262 97, 163 v. Sutton, 68 W. 657 82, 833 Chappell v. Cady, 10 W. Ill 881 Charboneau v. Henni, 24 W. 250 882 v. Orton,'43 W. 96 . , 102 Charles v. Denis, 42 W. 56 807, 909 Charmley v. .Charmley, 125 W. 297 88, 17,7y 556, 716, 855. 1045 Charter Oak L. Ins. Co. vr Smith, 43 W. 325 . 184 Chase v. Hinkley, 126 W. 75 , 473, 1013 v. Maxey, 134 W. 435;.. , 1246 v. Ross, 36 W. 267 42, 45, 325, '425, 646, 874, 985, v. Whiting, 30 W. 544' -324, 425, 787, 874, 896 v. Woodruff, 133 W. 555 49, 333, 349, 637, 875, 1114 / Cheney v. Cook, 7 W. 413 1242 v. Plumb, 79 W. 602; , 249 Chesterfield v. Hoskin, 133 W. 368' 1210 Chopin v. Runte, 75 W. 361 527 - Chouteau v. Hoqe, 1 Pin. 66,3 329, 422, 527, 625 Christiansen v. Kfiesel, 133 W. 508 * 111, 455, 45? Christman v. Christman, 163 W. 433 .' 607 Chunot v. Larson, 43 W. 536 195,. 544 Church v. McLaren, 85 W. 122 . • 1226 City Bank v. Plank, 141 W. 653 329 City of Ripon v. Bittel, 30 W. 614 781 Citizens' L. & T. Co. v. Holmes, 116 W. 220 487, 1170 v. Witte, 116 W. 60 554, 622 Citizens Trust Co. v. Scheftels, 141 W., 307 180 Clancey v. Alme, 98 W. 229 529 Clancy v. Fife & P. Com., 150 W. 630 91, 955 Clark v. Clark, 76 W. 306 549, 1100 v. Davidson, 53 W. 317 378, 838, 926 Clarke v. Burke, 65 W. 359 364 Clark, Gdn. v. Wilkinson, 59 W. 543 611, 1057 v. Johnson, 164'W. 461 692 v. Randall, 9 W.- 135 101 v. Tenneson, 146 W. 65 769 v. Wilkinson,- 59 W. 543 133 | Cleaver v. Cleaver, 39 W. 96 659 Cleveland v. Burnham, 64 W. 347 751 v. Burnham, 64 W. 347 818 v. Harrison, 15 W. 670 423, 707, 831, 843 v. Hopkins, 55 W. 387 104 Clifford v. Baessman, 41 W. 597 807, 1249 Coad v. Coad, 41 W. 23 . ,94 Coburn v. Harvey, 18 W. 147 > 193 Cockburn v. Ashland L. Co., 54 W. 619 318 Code, The, 119 W., p. XXXIV 182 Cody v. Cody, 98 W. 445 183, 631 Coel v. Green B. T. Co., 147 W. 229 407 Coffeen v. Preble, 142 W. 183 829. Cohen v. Lachenmaier, 147 W. 649 219 v. Stein, 61 W. 508 926, 1006 Cohn v. Heimbauch, 86 W. 176 1050, 1180 Cohodes v. Menomonee & M. L. & T. Co., 149 W. 308 894 Colburn v. C. St. P. M. & O. Ry., 109 W. 377 782 Coleman v. Ward, 85 W. 325 620 Cole v. Watertown, 119 W. 133 1128 Cole, Will of s 52 W. 591 138, 597, 751, 1084 Collins v. Hoehle, 99 W. 639 564 v. Schmidt, 126 W. 227 ' 666 v. Singer Mfg; Co., 53 W. 305 852 1262 CASES CODIFIED Collins v. Smith, 57 W. 284 922 Com'l Nat. Bank v. C. M. & St. P. Ry. Co., 45 W. 172 335 Comstock v. Bechtel, 63 W. 656 432, 467 v. Boyle, 134 W. 613 ' 632, 653, 778, 1190 v. Buckley, 141 W. 228 836, 917 v. Scales, 7 W. 159 160 Conant v. Est. of Kimball, 95 W. 550 , 810, 1027, 1101 Concrete S. Co. v. 111. Surety Co., 163 W. 41 282, 1062 Conklin v. Parsons, 2 Pin. 264 446 Conlin v. Sowards, 129 W. 320' 872 Connaughton v. Sands, 32 W. 387 431 Connecticut M. L. Ins. Co, v. Cross, 18 W. 109 ' 220 Connell v. Kaukauna, 164 W. 471 .214, 837, 919 Connolly v. Straw, 53 W. 645 104, 562, 1238 Connor v. Sheridan, 116 W. 666 1206 Conrad v. Schwamb, 53 W. 372 216, 525, 951, 1035 Continental Nat. Bank v. McGeoch, 92 W. 286 4, 205, 1026 Converse v. Ketchum, 18 W. 202 - 423 Conway v. Smith, 13 W. 125 193, 538, 735 Cook v. Bellack, 109 W. 391 740 v. Berlin W. M. Co., 43 W. 433 784, 884, 1121 v. Durham, 61 W. }5 775 v. Helms. 5 W. 107 1115 Cooper v. Cleghorn, 50 W. 113 276, 807 I v. Granger, 129 W. 50 945, 1080 v. Jackson, 4 W. 537 323 , v. Tappan; 4 W. 362 273, 804 Corbett v. Joannes, 125 W. 370 746 v. Physician's C. Asso., 135 W. 505 95 Cornell v. State, 104 W. 527 439 Cbthren V. Connaughton, 24 W. 134 129, 638 Cotton v. Sharpstein, 14 W. 226 101, 1105 Cqttrell v. New' London F. Co., 94 W. 176 491 Cottrill v. Cramer', 40 W. ,555 . 85J Courtney v. McGavock, 23 W. 619 101, 694 Covault v. Nevitt, 157 W. 113 584 Cowan v. Beans, 155 W. 417 64, 904 v.' Lindsay, 30 W. '586 324, 370/877 '■' v.- Main,. 24 W. 569 430 Cowie v.. Nat. Exch. Bank, 147 W. 124 99 .Cowley's Will, In re, 120 W. 263 258 1207 1245 Cox Bros..& Co, v. Miibrath, 110 W- 499 1252 Cox v. North Wis. L. Co., 82 W. 141 649, 923 Cram v. Long, 154 W. 13 993 Cramer v. Hanaford, 53 W. 85 738 Crandall, In re,. 34. W.,,177 , 506 Crane v. Wiley, 14 W. 658 1194 Craven v. Craven, 27 W..418 366 Crawford v;. Christian, 102 W. 51 311,, 439 Creamer v. Ingalls, 89 W. 112, 338, 478 Cream City Glass Co. v. Friedlander, 84 W. 53 887. 941 Crocker' v. State, 60 W. 553 220, 598, 656, 1257 v. Currier, 65 W. 662 947 Crook v. First Nat. Bank, 83 W. 31 , 485, 912 v. Henry, 25 W.< 569 363, 542, 1238 Cross v. Barnett, 61 W. 650 342 v. Bowker, 102 W. 497 123 v. Button, 4 W. 468 ; 192, 668, 9S7 Crouch v. Crouch, 30 W. 667 '921 Crow v. Day, Admr:, 69 W. 637 934 Crowe v. Colbeth, Admr., 63 W. 643 696, 833, 1108 Crowley v. Hicks, 72 W. 539 427, 861, 986 ■ •< v. Hicks, 98 W. 566 1 25, 864 Crowns v. Forest Land Co., 100 W. 554 634, 650 v. Forest Land Co., 102 W. 97 182 Cuddy v. Foreman, 107 W. 519 217, 811, 966 Cudworth v. Gaynor, 76 W. 296 112 Cummings v. Friedman, 65 W. 183 739, 1099 Cumps v. Kiyo, 104 W. 656 530, 762, 1101 Cunningham v. Gallagher, 61 W. 170 59, 975 Curran v. Witter, 68 W. 16 711, 911 Currie v. Michie, 123 W. 120 406, 555, 1112 \ Curtis L. & L. Co. v. Interior L. Co., 137 ! W. 341 991, 1253 Cutler v. Cutler, 103 W. 258 1169, 1233 ' v. Howard, 9 W. 309 747, 955 C. W. Beggs S. & Co. v. Est. of Behrend, 156 W; 34 180, 976 Dahlman v. Foster, 55 W. 382 399 v. Hammel, 45 W. 466 58, 216, 491 Dailey v. Kastell, 56 W. 444 119, 1164 Daly v. City of Milwaukee, 103 W. 588 439 Damp v. Town of Dane, 33 W. 430 353, 850 Danforth v. Oshkosh, 119 W. 262 156, 637, 841, 1128. 1151 Daniels v. Bailey, 43 W. '566 977, 985 v. Foster, 26 W. 686 434, 508, 816, 1106 v. Smith. 95 W. 639 174, 405 Dardis, Will of, 135 W. 457 902, 1042, 1159 Dart v. Sherwood, 7 W. 523 907, 1053 Davelaaf v. Blue Mound I. Co., 110 W. 470 777, 995 Davenport v. First Cong. Soc, 33 W. 387 64, 321, 825 Davey v. City of Janesville, 111 W. 628 782 Davidor v. Rosenberg, 130 W. 22 1258 Davies v. Davies, 109 W. 129 256, 1148 v. Stowell, 78 W. 334 143 Davies v. Turton, 13 W. 185 193, 274, 579 Davis v. Davis, 132 W. 54 293 v. Davis, 137 W. 640 75, 179, 272, 513, 876 v. Dean, 66 W. 100 1087, 1166 v. Hubbard, 41 W. 408 925 Davis's Will, In re, 103 W. 455 779, 935, 958, 1245 Davy v. Kelley, 66 W. 452 468, 911, 978 Dawson's Appeal, 23 W. 69 779 Day v. Elmore. 4 W. 190 491 Dayton v. Walsh, 47 W. 113 545, 737, 1243 D, Canale & Co. v. Pauly & P. C. Co., 155 W. 544 281 Dean, Extr., v. Dean, 54 W. 23 244, 1065 Dean v. Dean, 162 W. 303 459 Deck v. Deck, 106 W. 470 971, 1169 Deery v. McClintock, 31 W. 195 181, 386, 822 Deering H. Co. v. Johnson, 108 W. 275 86, S10, 914 DeForth v. Wis. & M. R. Co., 52 W. 320 1049 Defrance v. Hazen; 2 Pin. 228 402 Delaney, Admr. v. Brunette, 62 W. 615 833 Delaney v. Schuette, 49 W. 366 784 Delaplaine v. Turnley, 44 W. 31 187 Deleglise, In re, 134 W. 41 ' 442, 574 Deleglise v. Morrissey, 142 W. 234 294, 1092 Delle v. Boss, 164 W. 392 410 Deller v. Deller, 141 W. 255 731, 1228 Delohg v. Delong, 56 W. 514 119 Denton vl White, 26 W. 679 46 Derrickson, Will of, 150 W. 26 682 D.erse v. Derse, 103 W. 113 701, 864 Derse's Will, In re, 103 W. 108 1168 Dew, Extr. v. Kuehn, 64 W. 293 246 De Wolf, Extr. v. Lawsbn, 61 W. 469 150, 245, 381, 839 De Wolf v. Wis. L. I. & C. Co., 141 W. 239 . 189 Dexter v. Witte, 138 W. 74 1235 Dicke v. Wagner, 95 W. 260 182, 252, 900 Dickinson v. Buskie, 59 W. 136 781, 978, 1238 v. Norwegian Plow Co., 101 W. 157 378 Dickson v. Bills, 144 W. 171 488 v. Field, 77 W. 439 121, 248 Diefenback v. Stark' 56 W. 462 378 Dieringer v. Meyer, 42 W. 311 746 Dietrich v. Koph, 35 W."618 336, 1020 Dilger v. Est. : of McQuade, 158 W. 328 282, 352, 658, 683, 814, 1117, 1254 Dillman v. Carlin, 105 W. 14 162 Dikeman v.' Struck, 76 W. 332 82, 95 Dinehart v. Town of LaFayette, 19 W. 677 594 Dingman v. Hilberry, 159 W. 170 1037 Disch v. Timm,' 101 W. 179 305, 512, 1168 Dixon v. Russell; 156 W. 161 407, 937 v. Sheridan, 125 W. 60 846, 1032, 1234 CASES CODIFIED i 1263 Dobie v. Fidelity. & C. Co., 95 W. 540 1058 Dbckery v. McLellan, 93 W. 381 143 Doctor v. Ftirch, 91 W. 464 1036 v. Hellberg, 65 W. 415 1035 Dodge v. State, 100 W. 294 < 114 v. Williams, 46 W. 70 149, 243, 381, 767, 839, 858, 898, 934, 1145, 1155, 1232, 1242 Dbhman v. Est. of Blum, 137 W. 560 11 Dolloff v. Curran. 59 W. 332 104, 739 'Donaldson v. Buhlman, 134 W. 117 96 Doney V. Hastings, 23 W. 475 779 Donnelly 1 v. Eastes, 94 W. 390 230, 389 Donges's Est., In re, 103 W. 497 38, 61, 198, 254, 290, 790, 1245 \ Donovan v. Hyde, 141 W. 41 419 Doolittle v. Laycock, 103 W. 334 854 Doran v. Ryan, 81 W. 63 111 Dorer v. Hood, 113 W. 607 1102 Douglas Co. v. Bardon, 79 W. 641 134 Dow v. Deissner, 105 W. 385 338 Dowagiac Mfg. Co. v. Schroeder, 108 W. ' 109 469, 942 Downer, Adm. v. Howard, 47 W. 476 80, 165 Downie's Will, In .re, 42 W. 66 413 Downing's Will, In re, 118 W. 581 419, 894, 900, 1090 Doyle v. Welch, 100 W. 24 1167 Draheim v. Evison, 112 W. 27 379, 927 Draper v. Wilson, 143 W. 510 , 474 Drew, Admr. v. Baldwin, 48 W. 529 227 Drew v. Ferson, 22 W. 651 1064 Dreyfus v. Milwaukee, E. R. & L. Co., 161 W. 524 895 Drinkwihe v. Gruelle, 120 W. 628 1112, 1171 Drott v. Stevens, 163 W. 571 329 Drovers" D. Natl. Bank v. Tichenor, 156 W. 251 ■ ' 492 Druse v. Horter, 57 W. 644 8 Dudley v. Beck, 3 W. 274 100 v. Dudley, 76 W. 567 374, 729 v. Rice, 119 W. 97 137, 715 v. Stiles, 32 W. 371 708, 849 Duffy v. Hickey, 68 W. 380 936 Dufresne v. Weise, 46 W. 290 144 Dugan v. Knapp, 105 W. 320 835 Duncan v. Duncan, 111 W. 75 636, 811, 1148( • ' v. Metcalf, 154 W. 39 .1175 Dunck v. Milwaukee Co., 103 W. 371 405 Dunn v. Buckley, 56 W. 190 525 v. Est. of Fleming, 73, 545 9 DuPont v. Davis, 35 W. 631 1020 Durkee, Will of, 164 W. 41 45, 92, 451, 654 Duthey v. State, 131 W. 178 441 Dwight Bros. P. Co. v. Western P. Co., 114'W. 414 1219 Dyer v. Gibson, 16 W. 557 471 JEagte M. & R. M. Co. v. Shattuck, 53 W. ■ 455 4 91 Ean v. C. M. & St. P. R. Co., 101 W. 635, 1189 403, 963 707, 831 827 1002 410, 1186 299 28 931, 1097 166 Eastman v. Bennett, 6 W. 232 faton v. Gillet, 17 W. 435 aton T. of, v. Williams, 51 W- 99 v. Woolly, 28 W. 628 v. Youngs, 41 W. 507 Eccles v. Free H. S. D., 162 W. 162 Eckler v. Wolcott, 115 W. 19 Edgertbn v. Bird, 6 W. 527 v Michels, 66 W. 124 ' 188, 444, 886, 978, 1099 v. Schneider, 26 W. 385 760 > Edson v. Hayden, 20 W. 682 540 Edwards v.Evans,. 16 W.181 96 _ 423;5n957 gggleston v. Swartz, 145 W. 106 ' ' 703, 1212 Eftfe, Will of Abram, 73 W. 445 247, 1072 Ehlers, Will of, il55 W. 46 265 Ehrlich v. Brucker, 121 W. 495 614 Ehrlinger v. Douglas, 81 W. 59 965 Eingartner v. Illinois Steel Co., 103 W. 373 • 7I2 Eisentraut v. Cornelitis,! 134 W. ,532 , 211, 360,'lll3 Ekegren v. Marcotte, 159 W. 539 , 376 Eldfed, In re, 46 W. 530 , , 507 Eldred v. Leahy, 31 W. 546 194, 301, 668 v. Sherman, 81 W. 182 669 Elderkin v. Fellows, 60 W. 339 1077 v. Wiswell, 61 W. 498 659 Elgar v. Equitable L. A. Soc, 113 W. 90 603 Eliot v. Eliot, 81 W. 295 399, 581 Ellinger v. Eouitable L. A. Soc, 125 W. , 643 359 Elliott v. Bently, 17 W. 591 193, 539 v. Fisk, 162 W. 249 904, 1176 Ellis v. Esson, 50 W. 138 619 v. Cary, 74 W. 176 472, 926,, 1008, 1108 Ellis, Tudge, v. Johnson, 83 W. 394 134 v. Northern Pacific R. Co., 80 W- 459 962 v. Southwestern L. Co., 108 W. 313 1060 Ellison v. Straw,' 116 W. 207 604 v. Straw, 119 W. 502 , 605, 855 E. L. Welch Co., v. Gillctt, 146 W. 61 280 Elofrson v. Lindsay; 97 W. 22 11Q1 Eisner v. Dorn, 136 W. 73 53'2 Elwell, Judge v. Prescott, 38 W. 274 24, 130, 1054 Emerick v. Krause, 52 W. 358 287 Emerson v. McDonnell, 129, W. 67 144 v. Schwindt, 108 W. '167, , 665 Emery, Admr. y'. Fugina, 68 W. 505 669 Emery v. Vroman, 19 W. 689 129, 499,' 982 Emigh v. Earling, 134 W. 565 r 1137 Encking v. Simmons, 28 W. 272 234, 465, 596 Endress v. Shove, ,110 W. 141 n 406 Endter v. Lennon, 46 W. 299 388 Engmann v. Est. of Immel, 59 W. 249 '562, 833, 1107 Enos v.. Sanger, 96 W.150 301 Equitable L. A. Soc. v. Host, 124 W. 657 748 Erdall v. Atwood, 79 W. 1 304 Ernst- v. Nan, 63 W. 134 25, 173, 269, J057 Ettrick v. T. of I Bangor, 84 W. 256 571, 828 Evans v^Enloe, 70 W. 344 696 v. Foster, 80 W. 509 612..678 v. Kemp, 104 W. 87 702 . v. Rector, 107 W. 286 692, 945, Evenson v. Rust, 152 W. 113 ' 1092, 1174 . Everingham v. Meighan, 55 W. 354 . 1180 Evison v. Hallock, 108, W. 249,577, 1045, 1060 Exhaust Ventilator Co. v. C. M. & St. P. Ry. Co., 69 W. 454' i ' 978 Eycleshimer v. Van Antwerp, 13 W. 546 215 F '_\ Fadness v. Braiinborg, 73 W. 257 152 Fallon V. Vandesand, 136 W. 246 487 Fargo v. Ladd, 6 W. 106 464, 881, 928 Farley v. Spring Garden Ins. Co;, 148 W. 622 1241- Farmers' L. & T. Co. v. Com. Bank,. 15 W. 424 221, 274 Farmer v. Sprague,, 57 W. 324 968, 1232 Farnsworth v. Brunquest, 36 W. 202 221 v. Cole. 42'W. 403. ■ 371, 1221 Farnsworth, Will of, 62 W. 474 1086, 1165 Farrv. Serhple, 81 W. -230, 612 v. Trustees A. O. U. W.,.83 W. 446 - 602, 622,- 679 Farrell v. Ledwell; 21 W. 182 193, 540 ■Farrington v. Wilson, 29 W. 383 500, 644, 984 Fawcettv. Fawcett, 85 W. 332 552, 567, 662, 712, 1147 Fay v. Lovejoy, 20 W.;403 462 Feller v. Alden, 23 W. 301 541, 73S Felt v. Amidon, 43 W. 467 964 Fenelon v. Hogob,oom/.31 W. 172' . 542 Fergen v. Lyons, 162 W. 131 ' 672 Ferguson v. Mason, 60 W. 377 326, 526 v. Woods, 124 W. 544, 41, 292 Femekes v. Suprs., 43 W. 303 784 Field i v., Apple River L. D. Co., 67 W. 569 875, 975, 1095, 1099 v. Heckman, 118 W. 461 1190 v. Milwaukee, 161 W. 393 955 1264 CASES CODIFIED Field v. Pickard, 126 W. 229 1091, 1173 Fiedler v. Howard, 99 W. 388 84, 622, 834, 1217 Fields v. Estate of Mundy, 106 W 383 176, 713 Filbey, Admr. v. Carrier, 45 W. 469 426, 512, 934, 1024, 1957 Fillingham v. Nichols, 108 W. 49 328 Finch v. Houghton, 19 W. 149 424 Findlay v. Knickerbocker Ice Co., 104 W. 375 x . 854, 777, 944 Finlay v. Prescott, 104 W. 614 510 Finney v. Boyd, 26 W. 366 627 v. Guy, 106 W. 256 457, 458 First Natl. Bank v. Kromer, 126 W. 436 998 v. Miller, 139 W. 126 917 v. Wunderlich, 145 W. 193 280 Fischbeck v. Mielenz, 162 W. 12 633, 755, 1191 Fischer v. State, 101 W. 23 819 Fisher v. Fisher, 5 W. 472 274, 795, 1001 Fisher, In re, 15 W. 511 77, 128, 749, 792, 896, 968, 1031, 1040 Fisher, In re Edward, 4 W. 254 1230 Fislier v. Lutz,'146 W. 664 474, 929 v. Shelver, 53 W.,498 217, 738 Fisk v. Jenewein, 75 W. 254 173, 303, 512, 696, 711, 934 v. Tank, 12 W. 276 339 Fitch v. Huntington, 1 125 W. 204 15, 454, 457, 923, 976, 1022, 1116 Fitzgerald v. Anderson, 81 W. 341 669 v. Dunn, 112 W. 37 741 Fitzgerald, In re, 57 W. 508 13, 55 Fitzgerald v. Weston, 52 W. 354 47 Fitzpatrick v. Cottingham, 14 W. 219 317 v. Est. of Phelan, 58 W. 250 8, 710 Flanders v. Cottrell, 36 W. 564 851 v. Keefe, 108 W. 441 107 Flemming v. Griem, 161 W. 608 265, 684 Flint v. Wis. Trust Co., 151 W. 231 264, 514, 1214 Flood, Admr. v. Pilgrim, 32 W. 376 425, 645, 933, 1024, 1097 Flood v. Kerwin, 113 W. 673 71, 166, 418, 651, 773, 923, 1234 Foley v. Marsch, 162 W. 25 475, 814 Folschow v. Werner, 51 W. 85 431 Folsom v. Apple River L. Co. 41 W. 602 1249 Fond du Lac v. Est. of Otto, 113 W. 39 136, 785, 1073 Fond du Lac H. Co. v. Haskins, 51 W. 135 619 Foote v. Foote.159 W. 179 384, 533 Ford, Extr. v. Ford, 80 W. 565 1225 Ford v. C. & N-W. Ry. Co., 14 W. 609 1, 1097 v. Ford, 70 W. 19 247, 367, 382, 456, 527, 840 ». Ford, 88 W. 122 38, 198, 437, 495, 712, 845, 916, 956, 975, 1226 v. Hill. 92 W. 188 995 v. Smith, 60 W. 222 172, 845 Forest Co. v. United Surety Co., 149 W. 323 298 Fosha v. O'Donnell, 120 W. 336 108 Foster v. Gile, 50 W. 603 / 602 v. Hammond, 37 W. 185 79, 580 v. Lowe, 131- W. 54 666 Fouke v. Ray, 1 W. 104 110, 402 Fox v. Martin, 108 W. 99 291, 428, 1042, 1169 v. Postal Tel. Co., 138 W. 648 279 v. Wilkinson, 133 W. 337 954 v. Williams, 92 W. 320 1078 Fraedrich v. Flieth, 64 W. 184 853 Frame v. Attermeier, 147 W. 485 814 v. Plumb, 135 W. 24 90, 201, 293 v. Thormann, 102 W. 653 364,, 368, 454, 456, 651, 687 Frankland v. Moulton, 5 W. 1 160, 446, 668, 759 Franklin v. Killilea, 126 W. 88 66, 178, 329, 764 Fraser, Will of, 135 W. 401 1193 Frawley v. Cosgrove, 83 W. 441 174, 358 Frederick v. Pacquette, 19 W. 541 • 638, 643, 943 Free v. Western U. T. Co., 158 W. 36 456, 654 Freeman v. Bolzell, 63 W. 378 1026 v. Dells P. & P. Co., 150 W. 93 888, 1241 v. Morris, 131 W. 216 279, 681 French Lumbering Co. v. Theriault, 107 W. 627 599, U01 Frey v. Etzel, 160 W. 311 993, 1247 v. Vanderhoof, 15 W. 397 403, 805 Friedrich v. Huth, 155 W. 196 558, 624, 1104, 1153 Friend v. Yahr, 126 W. 291 790 Frisk v. Reigelman, 75 W. 499 922 Fuller v. Abbe, 105 W. 235 ^ 1125 Fuller & F. Co. v.' McHenry, 83 W. 573 551, 739, 1067 Fuller, Extr. v. Green, 64 W. 159 68 - Fuller, Will of, 75 W. 431 152, 316 Fulton, T. of, v. Pomeroy, 111 W. 663 636, 963 Fuss v. Fuss, 24 W. 256 " 729 Gager v. Paul, 111 W. 638 176, 210, 820 Gale v. Best, 20 W. 44 164, 168, 643, 1077 v. Freeman, 153 W. 337 421, 972 Gall v. Gall, 126 W. 390 124 Gallagher v. Gallagher, 101 W. 202 364 v. McKeague, 125 W. 116 259 v. Mjelde, 98 W. 509 740 v. Ruffing, 118 W. 284 916 Gammon v. Abrams, Admr., 53 W. 323 610 Garbes v. Roberts, 98 W. 173 834 Gardner v. Avery Mfg. Co., 117 W. 487 835 v. Est. of Callaghan, 61 W. 91 172, 388, 751 v. Young's Est, 163 W. 241 181, 506, 783, 1115 v. Van Norstrand, 13 W. 543 1053 Garland v. Hickey, 75 W. 178 752, 1066 Garlick v. Morley, 147 W. 397 930 Garney v. Katz; 89 W. 230 563, 818, 1239 Garton T. Co. v. Buswell, L. & Mfg. Co., 150 W. 341 474 Garvin v. Crowley, 116 W. 496 108 Gaster v. Whitcher, 117 W. 668 507 Gaston v. Babcock, 6 W. 503 77, 219, 499, 655, 1039, 1242 Gates Land Co. v. Olds, 112 W. 268 1257 Gates v. Parmly, 93 W. 294 1101 Gavitt v. Moulton, 119 W. 35 721, 972, 1171 Gay v. D. M. Osborn & Co.; 102 W. 641 942, 953 Gaynor v. Blewett, 86 W. 399 740 Geary v. Geary, 67 W. 248 1007 Gehl v. Milwaukee Produce Co., 105 W. 573 1083 Gerhardt v. Swaty, 57 W. 24 797, 874 German Bank v. Leyser, 50 W. 258 165, 303, 985 Germania Natl. Bank v. Mariner, 129 W. 544 917 Gertsen's Will, In re, 127 W. 602 293, 462 Gerster v. Hilbert, 38 W. 609 597, 997 Gettelmann v. Gitz, 78 W. 439 549, 739 Geuder. P. & F. Co. v. Milwaukee, 147 W. 491 407 Giane.Ua v. Bigelow, 96 W. 185 25, 165, 174, 210, 692 Gibbs v. Shaw, 17 W. 197 643, 895, 932, 982 Gibson v. Gibson, 102 W. 501 988 v. Gibson, 108 W. 102 714, 988 Gilbank v. Stephenson, 30 W. 155 101, 129 Gilbert v. Jess, 31 W. 110 194, 324, 760 Giles v. Hodge, 74 W. 360 48, 296, 1088 Gill, In re. 20 W. 686 296 Gillett v. Gillett, 9 W. 194 167, 422, 831 v. Treganza, 13 W. 472 626 t 868 Gillmor's Will, In re, 117 W. 302 418 Gimbel Bros. v. McConnell, 159 W. 325 282 Gist v. Johnson-Cary Co., 158 W. 188 1051 CASES CODIFIED 1265 , Given v. Wis. Odd. F. Ins. Co., 71 W. 547 602, 970 Glascott v. Bragg, 111 W. 605 52, 236, 971 Glasscott v. Warner, 20 W. 654 164, 500, 643 Glasspoole v. McGuine, 143 W. 294 22 Glendale I. Ass'n, v. Harvey L. Co., 114 W. 408 ■ 757 Glocke v. Glocke, 113 W. 303 123, 952 Godfrey v. Germain, 24 W. 410 274, 805, 977 v. Thornton, 46 W. 677 366, 371, 397, 524, 545 Goebel v. Thieme, 85 W. 286 327, 862, 986 Goerke v. Goerke, 80 W. 516 416, 1109 ' Goff v., Stqughton State Bank, 78 W. 106 965 Golden v., Meier, 129 W. 14 279, 333; 811 Golder v. Littlejohn, 23 W. 251 42, 129 v. Littlejohn, 30 W. 344 , 13. 129, 163, 241, 425, 676,, 690,' 700, '843, 1221 Goldsmith v. Bryant, 26 W. 34 ' 977 Goll v. Fehr, 131 W. 141 743, 917 Comber v. Hackett, 6 W. 323 462, 668 Goodell v. Blumer,, 41 W. 436 387, 522, 851, 985, 1098 Goodenough, In re, 19 W. 274 -796 Good Land Co. v. Cole, 131 W. 467 557 Goodman v. Baerlocher, 88 W. 287 944 Goodrich, Estate of, 38 W. 492 241 Goodrich v. Milwaukee, 24 W. 422 953, 959, 1144 Goodwin v. State, 114 W. 318 554, 564 Gordon v. Robertson, 48 W. 493 68 v. Sullivan, 116 W. 543 554 Goss v'. Lester, 1 W. 43 744 Gotfredson Bros. Co. v. Dusing, 145 W. 659 533, 952 Gould v. Taylor Orphan Asylum, 46 WV 106 149 Gove v. White. 20 W. 425 226, 323, 3^96, 462 Govier v. Brechler, 159 W. 157 952,. 1247,. 1254 Grace v. Newbre, 31 W. 19 7, 287 v. N. W. Mut. Relief Ass'n, ' 87 W. 562 ,.■ 69, 602 Grant v. Law, 29 W. 99. " 465 Grand" L. H. S. v. Lemke, 124 W. 483 1246 Grange v. Reigh, 93 W. 552 162 Grannis v. Hooker, 31 W. 474 465, 780 Grant, Will of, 149 W. 330 ,421 Grauman, M. & C. Co. v. Krie'nitz, -142 W. 556 584, 1191 Graves; v. Mitchell, 90 W. 306 252 Gray V. Tyler, 40 W. 579 . i 1098 'Green v. Appleton W. M., 162 W. 145 498 v. Ashland Water Co., 101 W. 258 ■ 439 v. Gilbert, 21 W.' 395 31, 924, 1031 v. Gunsten, 154 W. 69 574, 918 v. Sfimers, 163 W. 96 - 747 v. Walker, 73 W. 548 516, 548, 1244 Green Bay & M. C. Co. v. Hewett, 55 W. 96 » 229 v. Hewitt, 66 W. 461 230 Greene v. American M. Co., 153 W. 216 191 Greeney v. Greeney, 155 W. 621 824, 1215 Greening v. Patten,' 51 W. 146 911, 1056 Gregory v. Hart, 7 W. 532 804, 907 Greiling v. Watermolen, 128 W. 440 63, 942, 990 Greve v. Schweitzer, 36 W. 554 ' 909 Grindo v. McGee, 111 W. 531 666 ..'•• , Grinnell v. Denison, 12 W. 402 816, 1237' a '.' 'Griswold v. Barden, 146 W. 35 991 I Groner v. Hield, 22 W. 200 78, 165 '," Gross T^ Arians, 153 W. 435 219, 231 Grotjan v. Rice, 124 W. 253 801 Guenther, Appeal of Ernestine, 40 W. 115 364 Guhl v. Whitcomb, 109 W. 69 406 Guichard v. Brande; 57 W. 534 399,. 774, 833 Gunderson v. Rogers, 160 W. 468; 904, 1093 _ v. Swarthout, 104 W. 186 448 Gunn v. Green, 14 W.,316 77 Gundry v. Est. of Henry, 65 W. 559 1099 Gunsten v. Gordon, 160 W. 481 , 889 Gunther v. Ullrich, 82 W. 222 . 941 Garnett v. J. H. Flick Const. Co., 163 W. 574 12 Zimmerman — 80 Guse v. Power & M. M. Co., 1-51 W. 400 312, 361 Gustafson v. Whitney Bros. Co., 154 W. 8 • 91 H Haberman v. Gasser, 104 W. 98 Habhegger v. King, 149 W. 1 Haentze v. Howe, 28 W. 293 Hagan v. McDermott, 134 W. 490 Hageriah v. Qeffert, 73 W. 636 Hagerty v. White, 69 W. 317 222 Hahn v. Cooper, 84 W. 629 Hait v. Houle, 19 Wl 472 Halaska v. Cotzhausen, 52 W. 624 Hall v. Finch, Admr., 29 W. 278 v. Gilbert,' 31 W. 691 v. Graham, 49 W. 553 v. Hall, 98 W. 193 v. Storrs, 7 W. 253 v. Wilson, 6 W. 433 Hallock v. Yankey, 102 W. 41 Halsey v. Waukesha S. S., 128 W. 438 89 Halvorsen v. Halvorsen, 120 W. 52 218, 697 Hamilton v. Buckman, 118 W. 169 681, 697, 846 v. Prouty, 50' W. 592 1056, 1179 Hammer, In re, 113 W. 96 1255 Hanf v. N. W, Masonic Aid Ass'n, 76 W. 450 195, 886,- 1109 Hankwitz v. Barrett,' 143 W. 639 813 Hanley v.. Kraftezyk, 119 W. 352 71, 87. 258, 419, 754, 900, 1091 Hanlin, In re Est. of, H3 W. 140 271, 764 Hannan v. Engelmann, 49 W. 278 7, 709, 832 v. Oxley, 23 W. 519 216, 541,, 805 Hannig v. Mueller, 82 W. 235 1146 553 802 . 234 1117 337 , 404, 936 571 , 540, 759 103 1003 386, 720 997 630, 753 881, 1181 842 1060 Hannon v. Kelly, 156 W. 509 Hansen v. Fish, 27 W. 535 Hanson v. Edgar, 34 W. 653 v. McCarthy, 152 W. 131 Happel-Bossi; In re Est. of, 814 1185 521, 744 732 133 W. 119 927, 948, 1015, 1112 Hardell v. Carroll. 90 W. 350 1058 Hardy v. .Mills, 35 W. 141 '823, 961 v. Scales, 54 W. 452 244, 347, 1222 Harley v. Harley, 140 W. 282 : 375 Harrigan v, Gilchrist, 121 W. 127 406, 746, 835, 989 Harriman v. Oueen Ins. Go., 49 W. 71 524 Harrington, Will of, 142 W: 447 841, 1212 Harrington v. Pier, 105 W. 485 1S5, 317;. 352, 382, 840 v. Smith, 28 W. 43 234 Harris' v. Cameron, 81 W. 239 639 ~ v. Newell, 42 W. 687 1055 v. Welch, 148 W. 441 429 Hart v. Jos. Schlitz B. Co., 120 W. 5:53 945 . v. Stickney, 41 W. 630 113, 664, 909 Harter vv Holman, 152 W. 463 557, 568 Harvey v. C.& N. W. R. Co., 148 W. 391 790 Haskins v. Wilson, 5 W. 106 655 Hatch v. Lusignan, 117 W. 428 554 Hathaway v., Lynn, 75 W. 186 318 Haueter v. Marty, 150 W. 490 1254 Hawkes v. Slight, 110 W. 125 486, 680 Hawkinson, Will of, 143 W. 136 420, 637 Hawks v. Pritzlaff, 51 W. 160 1038 Hawley v. Harran, 79 W. 379 ' 9 v. Tesch,,72 W. 299 208, 649, 838, J124 Hayden v. Roe, 66 W. 288 1073 Hayes v. Frey, 54 W. 503 450, 761, 861 v. Lienlokken, 48 W. 509 460 Haynes v. Harriman, 117 W. 132 124 Hazelton v. Douglas, 97 W. 214 135 v.'N. Y. L. Ins. Co., 148 W. 19 1137 Hazer v. Streich, 92 W. 505 , 9, 48, 405, 552, 1109, 1251 Hazleton v. Union Bank, 32 W. 34 , ' ' 46, 194, 340, 508, 849, 883, 964 Healy, Wi», °f* 108 W. , 632 291 Heath v. 'Cuppei; 163 W. 62 , 54 v. Heath, 31 W. 223 ' ■ 471, 708, 781 v. Paul, 81 W. 532 404 1266 CASES CODIFIED Heber v. Est. x>i Heber, 139 W. 472 836. 846, 856, 1016, 1023 Hecht v. Chase, 158 W. 342 1195 v. Shenners, 126 W. 27 69 Hegna's Will, In re, 133 W. 513 157 Hei, Admr. v. Heller, 53 W. 415 119, 288, 629, 809 Heidtke v. Krause, 1 97 W. 118 122 , Heineman v. Old Nat. Bank, 157 W. 289 281 Heinemann v. Pier, 110 W. 18.5 • 1245 Heiss, Arch. v. Vosburg.,59 W. 532 149 Heiss v. Murphey, 40 W. 276 147, 287, 316 Helms v. Chadbourne, 45 W. 60 493, 580, 647, 997 Hemenway v. Beecher, 139 W. 399 776 Heminway v. Reynolds, 98 W. 501 650, 773 Hemmy v. Hawkins, 102 W. 56 184, 428 Hemphill, Est. of, 157 W. 331 15, 203, 95S, 1130, 1228 Henderson v. McGregor, 30 W. 78 1082 Hendricks v. Goodrich, 15 W. 679 274, 464, 938 Henry, Est. of, 65 W. 551 1224 Henschel, Admr., v. Maurer, 69 W. 576 484 Hepp by Gdn. ad litem, v. Huefner, Admr., 61 W. 148 494 Herrick v. Graves, 16 W. 157 519 Herman v. Schlesinger, 114 W. 382 4, 107, 217, 344, 894 v. Mason, 37 W. 273 U3 Hermann v. State, 73 W. 248 ' , 113 1 v. Zachow, 126 W. 441 . ' 1091 Herron v. Knapp, S. & Co., 72 W. 553 367, 527, 928 Hess, Will of, 97 W. 244 630, 650, 1101 Hettinger v. Wells, 161 W. 640 432 Hewitt v. Allen, 54 W. 583 525 v. J. W. Lumber Co., 77 W. 548 1021, 1182 Heyl v. Gbelz, 97 W. 327 577, 987 Hihbard v. Odell, 16 W. 633 659 Hibbin v. Soyer, 33 W.,319 521 Hicks v. Hicks, 79 W. 465 495 Hildebrand v. American F. A. Co., 109 , W. 1/U 379 Hiles v. Atlee, 90 W. 72 352, 1100 Hill v. Durand, 58 W. 160 611, 947 v. Hoover, 5 W. 386 749, 920, 931, 943, 981 v. True, 104 W. 294 1135 Hiller v. Johnson, 162 W. 19 1241 HUliard v. Wis. L. Ins. Co., 137 W. 208 606, 856, 876 Hilton v. Bahr, 161 W. 619 50, 362, 490, 638, 1115 Hinckley v. Beckwith, 23 W. 328 340, 639 Hinman v. Hinman, 126 W. 191 823, 935 Hinn v. Gersten, .122 W. 222 63, 87, 348 Hinton v. Coleman, 76 W. 221 82, 187, 335, 1004, 1182 Hitev. Keene, 137 W. 625 360, 443, 459, 718 Hittner v. Outagamie Co., 126 W. 430 829 Hobby v. Wis. Bank of Madison, 17 W. 167 • 539, 1237 Hodges v. Nalty, 104 W. 464 1047 Hodge v. Nalty, 113 W. 567 820, 1050 Hoff °v. Hackett, 148 W. 32 1247 Hoffen, Est. of, 70 W. 522 151 Hoffman v. Joachim, 86 W. 188 552 v. Lincoln Co., 137 W. 353 298, 1095 v. Wheelock, 62 W. 434 327, 1099 Hosan v. C. of La Crosse, 104 W. 106 85, 635 Hohnbach v. Hohnbach, 151 W. 487 1215 Hoile v. Bailey 58 W. 434 1122 Holden In re Estate of, : Meadows' Ap- peal, 37 W. 98 337, 387, 466, 1231 Holden v. Meadows, 31 W. 284 386, 465, 1082, 1231 v. Curry, 85 W. 504 134, 504, 1058 Hole v. Robbins, 53 W. 514 51, 347 Holendyke v. Newton, 50 W. 635 1116 Holland, Town of, v. T. of Belgium, 66 W. 55> 828 Hollman v. City of Platteville, 101 W. 94 319 Hollister v. Bell, 107 W. 198 740 Holmes v. Cook, 50 W. 172 911 Hplmes v. Walter, 118 W. 409 841, 1128, 1150, 1157 Holton v. Milwaukee, 31 W. 27 212 Holway v. Sanborn, 145 W. 151 836 Home Ins. Co. v. Security Ins. Co., 23 W. 171 219, 947 1217 Homestead Land Co. v. Becker, 96 W. 206 448 Hood v. Dorer, 107 W. 149 155, 382 Hooker v. Greene, 50 W. 271 ' 852 v. V. of Brandon. 75 W. 8 106 Hopkins v. Holt, 9 W. 228 55, 70, 240, 1230 v. Joyce, 78 W. 443 549 Hoppe v. Goldberg, 82 W. 660 528 Hoppe, Will of, 102 W. 54 820, 1110, 1239 Horfick's M. M. Co. v. A. Spiegel Co., 155 W. 201 362 Horn v. Horn, 152 W. 482 489, 616 v. Ludington, 32 W. 73 806, 825 Hornby v. Sikes, 56 W. 382 525 Horton v. Arnold, 18 W. 212 346 v. Dewey, 53 W. 410 738 Houghton v. Milburn, 54 W. 554 301 House, In re Heirs of, 132 W. 212 513 Hovely v. Herrick, 152 W. 11 400, 705 Hoverson v. Noker, 60 W. 511 547, 797, 1105 Howard v. Osceola, 22 W. 453, 101, 693 Howe-v. Ballard, 113 W. 375 458, 1050 v. McGivern, 25 W. 525 370, 520, 983 Howlands v. Jenks, 7 W. 57 409, 1237 Hoxie v. Price, 31 W. 82 ' 542 Hoyt v. McLaughlin, 52 W. 280 8 Hrouska v. Janke, 66 W. 252 327 Hubbard v. Burreli; 41 W. 365 817 v. C. & N. W. R. Co., 104 W. 160 28, 496, 773, 777 v. Marshall, 50 W. 322 65, 216, 276, 664, 808 Huber v. Seeger, 161 W. 135 744 Huchting v. Engel, 17 W. 230 579, 1105 Huebl v. Scollard, 142 W. 589 294 Huebner v. Huebner, 163 W. 166 219, 475, 959 v. Koebke, 42 W. 319 " 160 Huebschmann v. Cotzhausen, 107 W. 64 631 v. McHenry, 29 W. 655 447 Hughe? v. C. St. P. M. & O. R. Co., 122 W. 258 359 v. Hughes, 91 W. 138 680 v. Thomas, 131 W. 315 716, 1046 Hull v. Brown, 35 W. 652 806 Humes v. Cox, 1 Pin. 551' 42, 296, 422, 955 Humphrey v. Taylou, 45 W. 251 431 Hunt, In re Will of, 122 W. 460 63, 419, 894, 901, 976, 1091 854 224 79, 161, 618 48, 563 1077 Hunt v. Miller, 101 W. 583 v. Stinson, 101 W. 556 Hunter v. Bosworth, 43 W. 583 v. Gibbs, 79 W. 70 v. Warner, 1 W. 141 Huntzicker v. Crocker, 135 W. 38 375, 963 Hupfer v. Nat. D. Co., 127 W. 306 - 406 Hurst v. Webster Mfg. Co., 128 W. 342 657, 976 Husbrook v. Wilder, 1 Pin. 643 907 Hutchinson, Admr. v. Paige, 67 W. 206 8, 354, 1020 Hutchinson v. C. & N. W. Ry., 37 W. 582 275 Hutson v. Jenson, 110 W. 26 20, 505, 603, 1135 H. W. Wright L. Co. v. McCord, 145 W. 93 , 375, 400, 728 Hyde, Will of, 157 W. 462 15, 92, 429 Hyman v. Landry, 135 W. 598 991 v. Susemihl, 137 W. 296 923 111. S. Co. v. Jeka, 123 W. 419 311, 565 v. Konkel, 146 W. 556 462, 867 Illinois Steel Co. v. Muza, 164 W. 247 408 CASES CODIFIED 1267 Illinois S. Co. v. Warras, 141 W. 119 Illinois T. & S. Bank v. Alex. Stewart L. Co., 119 W. 54 .' 161 Ingersoll v. Seatoft, 102 W. 476 1060 International H. Co. v. McAdam, 142 W. 114 280, 743 International T. Co. v. Mabbott, 159 W 423 . 492, 584 v. McKone, 133 W. 200 491, 583 Ins. Co. v. Swineford, 28 W. 257 93 Irvine v. Adams, 48 W. 468 807, 911, 1056 Israel v. Silsbee, 57 W. 222 17, 171, 501,546 Jackman v. Inman, 134 W. 297 1113 , •'■ v. Inman, 137 W. 30 1114 Jackman Will, In re, 26 W. 143 ' 286 Jackman, Will of, 26 W. 104 644, 655, 1163 Tackman Will Case, 27 W. 409 - 23, 1192 Jackson v. Astor 1 Pin. 137 625 Jacobs v. Frederick, 81 W. 254 711 v. Wis. Natl. L. Ins. Co., 162 W. 318 282 Jacobsen v. Whitely, 138 W. 434/ 954 Jacokson v. Bentzler, 127 W. 566* 163, 1051 Jaffray v. Crane, SO W. 349 3, 760, 832, 1056 Jakopac v. Newport M. Co., 153 W. 176 344 James v. Carson, 94 W. 632 223 • v. Cutler, 54 W. 172 951 Jameson v. Barber, 56 W. 630 171, 610, 619, 628 Jamison v. Snyder, 79 W. 286 83, 165 Janitor of Supreme Court, 35 W. 410 646, 896 Jarstadt v. Smith, 51 W. 96 228 Jarvais v. Moe, 38 W. 440' 522 Jefferson Co. Bank v. Robbins, Admx., 67 W. 68 1032 Jenkins v. Esterly, 24 W. 340 1185, 1217 v. McCurdy, 48 W. 628 447 Jenkins, Will of Susan, 43 W. 610, 611 413 Jennings v. Lyons, 39 W. 553 • 31, 377, 925, 1031 v. Paine, 4 W. 358 100 Jenks v. Allen, 151 W. 625 45, 339, 498, 516, 856, 957 Jensen v. Miller; 162 W. 546 25, 890 v. Weinlander, 25 W. ; 477 750 Jerdee v. Furbush, 115 W. 277 531 J. I. Case Plow Works v. Niles, & S. Co., 107 W. 9 : ' ■■ 614 J. I. Case T. M. Co. v. Miracle, 54 W. 295 690 Jilek v. Zahl, 162 W. 157 . 390, 856 Jilson v. Gilbert, 26 W. 637 471, 708, 806:' 1002 Jilsun, Admr. v. Stebbins. 41 W. 235 46, 628 y. L. Gates Land Co. ». Olds, 112 W. 268 1257 Jochem v. Dutcher, 104 W. 611 1205, 1227 'Johannes v. Youngs, 45 W. 445 ' 131 ' v. Youngs, 48 W. 101 132 Johnson v. Bank of Wis., 163 W. 369 408, 1115 v. Door Co., 158 W. 10 v. Hill, 90 W. 19 v. Parker, 34 W. 596 v. Pugh, 110 W. 167 v. Vickers, 139 W. 145 v. Weed and G. Mfg. Co. v. Wilson, 1' Pin. 65 v. Youngs, 82 W. 107 Johnston. IL Co. v. McLean, 57 W. 258 . 68, 789, 1180 Johnston v. Johnston, 89' W. 416 799 Jones, Admr., v. Orton, Admr., 65 W. 9 Jones' v. Billstein, 28 W. 221 193, 345, 708, 933, 983 v. Caird, 153 W. 384 231, 802 577, 600 923 750, 938 71, 224, 811 98 103 W. 291 790 450 887, 970 Jones v. DeMuth, 137 W. 120 11 v. Est. of Keep, 23 W. 45 164, 169, 707 v. Jones, 64 W. 301 373 Jones, Extr., v. Jones, 66 W. 310 246, 700, 973 Jones v. Tones, 71 W. 513 373 v. Lake, 2 W. 210 402 v. Mangan, 151 W. 215 606, 1247 v. Parker, 51 W. 218 ' 761 v. Fiening, 85 W. 264 1022 v. Rice, 99 W. 429 1090 v. Roberts, 84 W. 465 43, 139, 630, 773 v. Roberts, 96 W. 427 289, 417, 438, 496, 657, 1089 v. Valentines' Sch. of T„ 122 -W. 318 S82, 769, 1218 v. Ward, 71 W. 152 1057 v. Williams, 39 W. 300 831 Jordan v. C. & N. W. R. Co., 125 W. 581 36, 652, 773, 920 v. Est. of Warner, 107 W. 539 198, 763, 948 Jorgenson v. City of Superior, 111 W. 561 236 Jost v. Wolf. 130 W. 37 218, 279, 812 . Joyce v. Russell, 140 W. 583 432 Judge v. Barrows, 59 W. 115 769, 797 Juneau Bank v. McSpedon, 15 W. 629 340, 674, 874 Jungdorf v. Little Rice, 156 W. 466 401 K .Kaehler'v. Dobberpuhl, s(s W. 497 267 v. Halpin, 5'9 W. 40 81 Kaime v. Trustees of Omro, 49 W. 371 561 • Kaley v. Von Ostrand, 134 W. 443 279 Kalckhoff, Admx., v. Zoehrlaut, 40 W. 427 426 Kamps & S. D. Co. v. United D. Co., 164 W. 412 942 Karel v. Conlart, 155 W. 221 362 v. Pereles, 161 W. 598 , 429,1131 Karow v. Continental Ins. Co., 57 W. 56 598 Karr v. Washburn, 56 W. 303 : 587, 1146 Kasson v. Est. of Brocker, 47 W. 79 80, 94, 132, 426, 960, 1217, 1243 v. Noltner, 43 W. 646 781, 885, 909 Katz V. Miller, 148 W. 63 1130 Kaufer v. Stumpf, 129 W. 476 • 473 Kavanagh v. OTSTeill, 53 W. 101 24, 738 Kavanaugh. v. Jahesville; 24 W. 618 '542 Kavanatign, Will qf, 143 W. 90 158, 383, 842, 1152 Kaye v. Crawford, 2 W. 320 796, 1002 Kercheval v. Doty, 31 W. 476 204 Keeler v. Keeler, 24 W: 522 93 v. Woodward, 3 Pin. 306 296 Keillyv. Severson, 149 W. 251 390, 993, 1103 Keith Bros. Co. v. Stiles, 92 W. 15 111, 620, 1067 Kellam v. Toms, 38 W. 592 816 Keller v. Fenske, 123 W. 435 702, 110,3 v. Schmidt, 104 W. 596 468, 914 Kelley v. City of Madison, 43 W. 638 1242 v. Crawford, 112 W. 368 9, 486 v. Kelley, 80 W. 486 249, 389 v. Whitney, 45 W. 110 609, 745, 760 Kellogg v. Adams, 51 W. 138 483> 797, 965 v. Nelson, 5 W. 125 309, 403, 1237 v. Supers. Winnebago Co., 42 W. 97 , 366 Kelly v. Bliss, 54 W. 187 217, 276, 853, 940 v. C. & N. W. Ry. Co., 60 W. 480- 357 . v. Houghton, 59 W. 400 1006, 1182 v. Kelly, 86; W-. 170 143 v. Rummerfield, 117 W., 620 958 v. Whitney, 45 W. 110 , , , 910 Kendall v. Beaiidry, 107 W. 180 ,553 Kent v. Agard, 22 W. 150 520 v. Lasley,' 48 W. 257 .'524, 961 Kenyon v. City of Mondovi, 98 W. 50 892 Kercheval v. Doty, 31 W. -476' 858 1268 CASES CODIFIED Kerman v. Howard, 23 W. 108 « 541, 601 Kessler, Estate of, 87 W. 660 612, 926, 1009 Ketchum v. 'Walswortlv 5 W 95 192, 538, 620 Keystone Lumber Co. v., Kolman, 103 . W. 1 300 962 Kidder v. Fay, 60 W. 218 1195 Kiefert v. Maple V. M. H. F. Ins. Co., 158 W. 340 856, 1078 Kiepert v. Nugent, 153 W. 127 557 Kiewert v. Rindskopf, 46 W. 481 467, 1179 Kilkelly v. Martin, 34 W. 525 67 Kilpinski v. Bishop, 143 W. 390 190 Kimball v. Adams, 52 W. 554 448 Kindling, In re, 39 W. 35 220 King, Gdn., v. Cutts, 24 W. 625 500 King v. Graef, 136 W. 548 1051 v. Whiton, 15 W. 684 197, 323, 1063, 1097, 1221 Kingman v. Graham, 51 W. 232 , 398 Kingston's Est., In re, 139 W. 560 481 Kinney v. Dexter, 81 W. 80 550 Kinsey v. Ring, Admr., 83 W. 536 1021 Kingsley v. Smith, .14 W. 360 313 Kipp v. Laun, 146 W. 591 380, 474, 814, 825, 1037 Kirkendall, Est. of: Cramer's Appeal, 43 W. 167 347, 511, 659, 844, 1098, 1242 Kirkpatrick v. Kepler, 164 W..558 1220 Kirschbon v. Bonzel, 67 W. 178 886 Kirschner v. State, 9 W. 140 111, 309, 403, 409, 994, 1237 Kittoe v. Willey, 121 W. 548 395 Klabunde v. Casper, 139 W. 491 395 Klauber v. Biggerstaff, 47 W. 551 757, 911, 974, 1077, J243 . Klauber v. Wright, 53 W. 303 8 Klee v. Stephenson, 130 W. 505 491 Klehr, Will of, 147 W. 653 488, 1114, 1241 Klein, In re Gdnsp. of, 95 W. 246 209, 314, 504, 582 j Klieforth v. State, 88 W. 163 1095 Kluender v. Fenske,. 53 W. 118 326 Knaggs v. Green, 48 W. 601 u 581 Knapp v. Schneider, 24 W. 70 309,' 780 Knips v. Stefan, 50 W. 286 , 852, 947 ; Knoll v. State, 55 W. 249 ., 435 i Knowles v. Frawley, 84 W. 119 288 Knowlton v. Culver, 2 Pin. 243 1094 , v. Ray, 4 W. 288 403, 996 Knox v. Bigelow, 15 W. 415 423 v. Clifford, 41 W. 458 1187 Knox, Extrx., , v. Knox, 59 W. 172 245,-700, 870, 1146 , Knutson v. Bostrak, 99 W. 469 122 Koch v. Williams, 82 W. 186 473, 926, 1008 Koch, Est. of, 148 W. 548 90,. 284, 497, 637, 822, 1218 Koeber v. Somers, 108 W. 497 301, 670, 893 Koerber v. Patek, 123^ W. 453 320 Kpllock v. Scribher, 98 W. 104 181, 301, 670 Komorowski v. 1 Krumdick, 56 W. 23 886 , MV.Jacko.waki, 164 W. 254 308 , Komp v. State, 129 W. 20 409, 1195 . Koplftz v. Powell, 56, W. 671 378,1747 > Kopmeier, Will of, 113 W. 233 257, 840, 1127, 1206, 1233 Korn v. Friz, 128 W. 428 ' 261, 681, 697, 1209, 1246 Kowalke v. Milwaukee E. R. & L Co., 103 W. 472 „j r 753 Krahn v.. Goodrich, 164 W. 600 T' 127, 283, 97-6, 1247 Krakow v. Wille, 125 W. 284 . 667 Krall v. Libby, 53 W. 292 . 1056 Kriz v. Peege, 119 W. 105 555, 670, 742 Kronshage v. Varrell. 120 W. 161 157 v. Varrell, 127 W, 597 292 Kropidlowski v. Pfister & V. L. Co., ' 149 W. 421 620 Krouskop v. Shontz,'51 W. 204 68, 546, 738 ' Kruczinski v. Neuendorf, 99 W 264 ' 631 Krueger v. Buel, 153 W. 583 349 ■ v. Pierce, 37 W. 269 521 Kuelkamp v. Hidding, 31 W. 503 386, 466 Kuener v. Prohl, 119 W. 487 531, 681 Kuenster v. Woodhouse, 101 W. 216 9, 564, 834 Kugler v. Prien, 62 W. 248 17, 501 Kuhn v. Sol. Heavenrich Co., 115 W. 447 670 Kumba v. Gilham, 103 W. 312, 800, 1105 Kuntz v. Kinney, 33 W. 510 431 Kusterer v. Beaver Dam, 56 W. 471 142, 696 Kyle v. Fehley, 81 W. 67 752 Laack v. Runge, 104 W. 59 1110 Ladd, Admr., v. Anderson, 58 W. 591 288, 427, 629 Ladd, Will of, 60 W. 187 69, 720,, 969 Laird v. Giffin, 84 W. 286 84 Lamb v. Klaus, 30 W. 94 194, 609, 1182 Lamberton 1 v. Pereles, 87 W. 449 97, 165, 208, 1147, 1155 Lambrecht v. Holsaple, 164 W. 465 115, 408 Lamont v. Stimson, 5 W. 443 771, 931 Lampe v. Manning, 38 W. 673 515 Lanctot v. State, 98 W. 136 552, 727, 892, 1252 Lane v. Duchac, 73 W.', 646 739, 818 ^v. Magdeburg, 81. W. 344 775 Lanharn v. Lanham, 136 W. 360 , 727 Lanning v. Lonsdale, 48 W. 348 ' 356 Lannon v. Hackett, 49 W. 261 165, 170, 220, 647, 852, 896 Lansing's- Appeal, 10 W. 120 96 Lanyon v. Woodward, 55 W. 652 161, 958 Lardrier v. Williams, 98 W. 514 701, 86"4 Large, v. Large, 29 W. 60 169, 708 Larsen v. Johnson, 78 W.. 300 248, 701,-730, 861, 1109, 1146 Lathrop v. Knapp, 37 W. 307 961 Latton v. McCarty, 142 W. 190 698, 765 Lauer v. Bandow, 48 W. 638 618 Laun v. Kipp, 155 W. 347 479 Lavin v. Mutual Aid Soc, 74 W. 349 114 Lavassar v. Washburne, 50 W. 200 467, 546, 939, 951 Law *. Grant, 37 W. 548, 467, 883 , v. Merrill. 1 Pin. 340 66 Lawe v. Hyde, 39 W. 345 227, 337 Lawrence v. Barber, 116 W. 294 258, 866, 971 v. Vilas; 20 W. 381 233, 424, 882, 1064, 1242 Laycook v. Parker, 103 W. 161 614 Leach, Extr., v. Leach, 65 W. 284 729 1224 Leavens, Est. of, 65 W. 440 337, 476, 495, 1189 Ledebuhr v. Wis. Trust Co., 112 W. T 657 603, 865 Lefebvre v. Dutruit, 51 W. 326 22, 1164 Lefebvre, Est.' of, 100 W. 192 971 Leffirigwell v. Freyer, 21 W. 392 540, 1054 Leggett & Co. v. West Salem C. Co., 155 W. 462 281 Lehigh C. & I. Co. v. West Superior I. & S. Co., 91 W. 221 394 Lehman v. Amsterdam C. Co., 151 W. 207 1062 v. Sherger, 68 W. 145 48 Lemenkugel v. Kehl, 73 W. 238 327 Leitgabel v. Belt, 108 W. 107 10-11 Lemma v. Blandine, 139 W. 156 11 Lemmin v. Lorfeld, 107 W. 264 ' 801 Lenz v. Brown, Admr., 41 W. 172 169, 884, 968 Leonard v. Barnum, 34 W. 105 466, 500 Leopold v. VanKirk, 29 W. 548 434 Lepley v. Andersen, 142 W. 668 469, 812 LeSaulnier v. Loew, 53, W. 207 332, 546, 551 Levy v. Martin; 48 W. 198 1044 Lewis v. Larson, 45 W. 353 1077 Lewis's Will. In re, 51 W. 101 415, 1085 Lichter v. Thiers, 139 W. 481 53, 263 Liginger v. Field, 78 W. 367 56, 404, 629 Lill's C. B. Co. v. Russell, 22 W. 178 r 296, 425 CASES CODIFIED 1269 Lincoln v. Cross, 11 W. 91 626, 792 Lindemann v. Rusk, 125 W. 210 26, 963 Linden Land Co. v*. Milwaukee E. R. & L. Co., 107 W. 493 86, 3S4, 820 Littlefield v. Littlefield, 51 W. 23 47, 808, 1034, 1076, 1107 Liftlewood's Will, 96 W. 608 . 253, 701 Livesley v. Lasalette, 28 W. 38 542, 882 Loennecker's Will, 112 W. 461 1170 Logan v. Dixon, 73 W. 533 269, 1066 Loizeaux v. Fremder, 123 W. 193 555 ' Lombard v. Cowham, 34 W. 486 325, 466 851, 933, 1145 Lonstorf v. Lonstorf, 118 W. 159 636, 741 Longwell v. Mierow, 130 W. 208 73, 855, 1014 Loomis v. Rice,, ,37 W. 262 1186 Loose v. State, 120 W. 115 " 115, 1252 Loper v. Est. of Sheldon, 120 W. 26 , - 72, 715, 1013 •Loughney v. Loughney, 87 W. 92 563, 657, 1089 Lovass v. Olson, 92 W. 616 252 ^oveland v. Longhenry, 145 , W. t50 , 671 Lowber v. Connit, 36 W. 176 23, 392, 472, 664, 868 Lowe v. Stringham, 14 W, 222 . 92 v. Ring, ,106 W, .647 , 39, 107, 713, 1011 Lowrey V. ' Finkleston, 149 W. 222 .125 'Lowry v. Dillman, 59 W. 197 1180 v. Milwaukee Nat. Bak., 114 W. 311 915 Loyd v. Phillips, 123 W. 627 279, 328. Luck v. Ripon, 52 W. 196 310 Ludihgton v. Patton, 111 W., 208 374, 400, 714, 942, 11,27, 1227 Luddington v. Patton, 121 W. 6.49 56, 605, 1128, 1227 Lueft v. Lueft, 129 W. 534 480, 764, 867, 990 Lilning v. State, 2 Pin. 215 ■ 433 . Luscombe's Will, In re, 109 W. }86 86, 428, 632, 1042, 1125, 1157 Lusted v. C. N. W. Ry. .Co., 71 W. 391 752 Lutheran E. Ch. v. Gristgau, 34 W. 328 336 Lyle, Amdr., v. Williams, 65' W. 231 55 Lynch v. Austin, 51 W. 287 , ', ',.,.W v. Divan, Extr., 66 W..49.0 321, 427, 6,16 Lynch, Will of, 163 W. 466, 295 Lyndon Lumber Co. v. Sawyer, 135 W. ,. 525 '°" Lyon v. Green Bay & M. R. Co., 42 _ W 548 - 544 > 736 Lyon, In re Will of, 96 W. 339 417, 971) Lyttle v. Goldberg, 131, 613 743 m ; , Maas v. Chicago & N. W. R. Co., 1S6' W 44 - 443 Mace v.. Reed, 89 W, 440 , , , 1239 ,Mack v. Bensley, 63 W. 80 1107 v Pran2 104 W. 1 913 « 1180 Malicin v g Hobbs, 116 W. 528 714, 989 - v. Hobbs. 126 W. 216 15, 41, 200 Madden, Will of, 104 W. 61 ^ ^ ^ ^ 'Madigan v. Walsh, 22 W. 501 370, 471 Magill v. Stoddard, 70 W. 75 188, 809 Mahar v. Montello G Co., 146 W. 46 407 Main v. McLaughlin 78 W 449 752 Maitland v. Gilbert P. Co., 97 W. 476 438 Maldaner v. Beurhaus, 108 W. 25^ ^ ]Q2g v. Smith, 102 W. 30 , 69, 343', 468* 1110 Malone v. Roby, 62 W. 459 337, 947 M'allory v. Wheeler, .151 W. 136 64 361 Mandelert v. Superior C. L. Co., Iu4 ^ g Mangat^v. Shea, 158 W. 619 25 1160 Manistee Iron Works Co. y. Shores Lum- ber Co., 92: W. 21 ^ Mankel v.' Belscamper 84 W 218 1078 Mann v. Aetna Ins. Co., MW.UJ^ glfi M T'R J ofe:i2 E /w ts 'ir 2 w: m 133 'J% Manseau v. Mueller, 45 W. 430, 522, 1004 Mfrs. Bank ,.v. Rugee, 59 W. 221 809 Manz v. Klippel, 158 W. 557 318, 600 Mappes v. Board of Suprs., 47 W. 31 827 March v. Case, 30' W. 531 6 Marchant's Est., In re, 121. W- 526 512, 945, 1218 Marine Bank v. Inter. Bank, 9 W. 57 759, 830, 907 Mariner v. Wiens, 137 W. 637 510, 717, 1114 Markwell v. Pereles, 95 W. 406 800 v. Thorn, 28 W. 548 321, 459, 933, 1097 Marlatt v. Chipman, 160 W. 193 515, 755 Marsh v. Board of Suprs., 38 W. 250 337, 345, 816 v. Briesen, Admr., 84 W. 618 84, 165, 875 v. Fraser, 37 W. 149 7, 195, 609, 925 v. Pugh, 43 W. 597 545, 885 Marshall v. American Ex. Co., 7 W. 1 58 v. Holmes, 68 W., 555 , 711, 833 Marshall I. Bank v. Milwaukee W. M., 84 W. 23 -629, 649, 1188 Marston v. Dresen. 85, W. 530 ' 40S, 552 Martin v. Beckwith, 4 W. 219 403, 1024 v. C.Aultman & Co.. 80 W. 150 528 v. Davis, 80 W. 376 503 v. Est. of Martin, 108 W. '284 277, 714, 1012 Martineau v. McCollum, 3 Pin. 455 759 , v. Morris, 62 W. 418 327, 1065 v. Remington. 100 W. 540 , 553, 567 -, v. Ryan/ 2 Pin. 24 . 724 Marx v. Marx, 132 W. 113 Z93, 1015 v. Rowlands, 59 W. 110 82, 494, 501 Mash v. Bloom. 133 W. 662 293, 531 Magon v. Beach, 55 W. 607 , 762 v. H. W. Co., 35 W. 164 472 v. Noonan, 7 W. 609 873, 907 v. Pierron, 63 W. 239 1045, 1057 Mason, Admr., v. Pierron, 69 W 585 1057 Matteson v, Ellsworth, 33 W. 488 66, 850, 908 v. Rice, 116 W., 328 887, 1220 Maxcy v. Oshkosh, 144 W. 238 159 v. Ellison, 132 W.' 389 , 90 Maxon v. Gates, 136 W. 270' 1103, 1246 Mayers v. Kaiser, 85 W. 382 552 McArthur v. Green Bay & M. C. Co., ,;34 W. 139 1048 v. Slauson, 53 W. 41 187 McCabe v. -Jones, 141 W. 540 ' 189 McCaffrey v. T. of Shields, 54 W. 645 827 McCartney v. Boyd, 161 W. 146 663 McChesney, In re Gdnsp. of, 106 W. 315 505, 801 McClear v. Root, ,147 W. 60 , 429, 992, 1130 McCormick, In re Est. of, 108 W. 234 ' ■ ■ ■ ' 52, 875 McCorm'ick v. Herndoh, 67 W. 648 . 1108 v. Ketchum, 48 W. 643 925, 1005 McCourt v. Peppard, 126 W. 326 , ' ' 1235 McCoy v. Quick, 30 W. 521 627, 816 McCrubb v. Bray, 36 W. 333 325, 426, 500, 921, 957, 985 McCune v. Badger, 126 W. 186 49, 888 McDermott v. Jackson,, 97 W. 64 675, 781, 1252 v. Kernan, 72 W. 268 527 McDonald v. Allen, 37 W. '108 . 615 v. Provident S. L. A. Soc, 108 W. 213. 277, 405, 835, 914 McDowell v. Laev, 35 W. lit 275 McEvoy v. Loyd, 31 W. 142 226, 933 McGeoch v. Carlson, 96 W. 138 405, 1251 McGonigal, J. v. .Colter, 32 W. 614 23, 129, 169, 336, 512 McGoon v. Irvin, 1 Pin. 526 795 McGowan v. C. ;& N. W. R. Co., 91 W. 147 ' 937 McGregor v. Pearson, 51 W. 122 62, tl McHugh v. C. & N. W. Ry. Co., 41 W. 79 '" ; 28f7, 123.8 v. McCole, 97 W. 166 154, 382, 863 Mclndoe v. Clarke, 57 W., 165 47, 1107 1270 CASES CODIFIED Mcintosh v. Bowers, 143 W. 74 298, 653, 1218 v. Marathan L. Co., 110 W. 296 461 McKeigue v. C. & N. W. R. Cd„ 130 W. J43 429, 846, 1039, 1158 McKenney v. Minahan, 119 W. 651 62, 177, 846, 1102 McKesson v. Sherman, 51 W. 303 562 v. Stanton, 50 W. 297, 737 McKinney v. Jones. 55 W. 39 493, 581, 587, 853, 1035, 1243 McKnight v. Livingston, 46 W. 356 1187 McLaughlin, In re Gdnsp. of, 101 W. 672 85 McLaughlin, Admr. v. Winner, 63 W. 120 27, 38, 172, 691, 1020 McLean v. Dow, 42 W. 610 397 McLenegan v. Yeiser, 115 W. 304 865, 989, 1148 McLeod v. Bertschy, 33 W. 176 353, 1019 v. Bertschy, 34 W. 244 354 McMahon v. Eau Claire W. W. Co., 95 W 640 311 v. Snyder, 117 W. 463 108, 292 McManany v. Sheridan, 81 W. 538 935, 1204 McMaster v. Scriven, 85 W. 162 416, 891', 1088, 1167, 1239 McMichael v. Carlyle, 53 W. 504 326 v. Petermari, 140 W. 589 263 McMillan v. Page, 71 W. 655 1007 v. Spider, L. S. M. & V. Co., 115 W. 332 , 28 v. Wehle, 55 W. 685 229 McNally v. McAndrew, 98 W. 62 ' 343, 405, 485,' 854, 1110 McNaughton v. McGregor, 133 W. 494 1174 McNaughton, Will of, 138 W. 179 202, 637, 1114 McNight v. Estate of McNight, 20 W, 446 '• • 23, 46, 78, 168, 500, 768, 1097 McPherson v. Featherstone, 37 W. 632 331 v. Rockwell, 37 W. 159 674 McVey v. Green Bay & M. Ry. Co., 42 W. 532 736 McWhinne v. Martin, 77 W. 182 399, 887, 1036 McWilliams ». Gough, 116' W. 576 136, 1128, 1149, 1206 Mead v. Norris, 21 W. 310 _ 267 Meating v. Tigerton, L. Co., 113 W. 379 785, 835, 855 Meier v. Bell, 119 W. 482 555 v. Paulus, 70 W. 165 357 Meinshausen v. A. Gettelman, B. Co., 133 W. 95 74, 717 Melchoir v. McCarty, 31 W. 252 7, 216, 1048, 1178 Meldrum v. Southwick-Sellers L. Co., 157 W. 367 , 191 Melia v. Simmons, 45 W. 334 647, 878, 1098 Melms v. Pabst Brewing Co., 93 W. 153 106, 374, , 529, 663, 701, 987, 1045, 1100, 1227, 1245 v. Pfister, 59 W. 186 494, 648, 772, 922, 986, 1099, 1223 Menasha, T. of v. Wis. Cen. Ry. Co., 65 W. 502 1036 Menasha W. W. Co. v. Harmon, 128 W. 177 1253 Mendel, Will of; 164 W. 136 1141 Menk v. Steiwfort, 39 W. 370 , 543, 781, 883 Menomonie B. S. L. Co. v. Ind. Com., 162 W. 344 585 Menominee R. IB. Co, v. Augustus Spies L. & C. Co., 147 W. 559 1247 Menz v. Beebe, 95 W. 383 24 Merrell v. Purdy, 129 W. 331 743 Merrill v. Comstock, 154 W. 434 31, 180, 211, 480 v. Merrill, 134 W. 395 63 v. Wis. Female Col., 74 W. 415 247 Merton v. O'Brien, 117 W. 437 680, 697, 715, 1149 Messer v. Oestreich, 52 W. 684 228, 326 Metropolitan C. I. Co. v. Clark, 145 W. 181 196 Meurer's Will, 44 W. 392 414, 655 Meyer v. Arends, 126 W. 603 1173 v. Barth, 97 W. 352 1059 v. Doherty, 133 W. 398 30, 163, 757 v. Foster, 16 W. 294 .615 v. Garthwaite, 92 W. 571 43, 209, 338, 358, 389, 650, 680, 845 v. Hanchett, 39 W.,419 186, 883 v. Hanchett, 43 W. 246 186 Meyers v. Rahte, 46 W. 655 737 Mezchen v. More 54 W. 214 509, 1243 Michel B. Co. v. Est. of Wightman, 97 W. 657 84, 135, 271 Miles v. Mutual M. R. F. L. Assn., 108 W. 421 107, 144 Mills v. Evansville Seminary, 52 W. 669 463, 951 v. U. S.. 1 Pin. 73 402, 537, 724 Miller B. Co. v. Manasse,- 99 W. 99 762 Miller v. Drane, 100 W. 1 253, 390 v. Drane, 122 W. 315 307 , v. Hart, 161 W. 611 350, 534, 1215 v. Larson, 19 W. 463 274, 1177 v. McDonald, 13' W. 673 340, 1217 v. Payne, 150 W. 354 202, 1138, 1214 v. Slater, 154 W. 35 489, 918 v. Sovereign Camp W. O. W., 140 W. 505 368, 879 v. Tracy, 86 W. 330 38, 106, 174, 288, 691, 845, 926 Milwaukee E. Co. v. Feuchtwanger, 141 W. 266 , 95 Milwaukee Ind. Sch. v. Suprs., 40 W. 328 826, 858 Milwaukee M. L. & B. Soc. v. Jagodzin- ski, 84 W. 35 . 1189- Milwaukee Protestant Home v. Beecher, , 87 W. 409 ,-' 351, 382, 679 Milwaukee Trust Co. v. Clark R. Co., 446 W. 230 180, 533, 778, 992 v. Warren, 112 W. 505 1111 Minard v. Burtis, 83 W. 267 998 Miner v. MedburV, 6 W. 295 464, 981 Mink v. State, 60 W. 583 686 Minton v. Underwood Lumber Co., 79 W. 646 944 Minnesota S. Co. v. McCrossen, 110 W. 316 328, 368, 400, 530, 635, 865 Mitchell v. Mitchell, 126 W. 47, 259 Mitchell, Will of, 157 W. 327 53 M'oerchen v. Stoll, 48 W. 307 80, 169 Mohawk Co. v. "Bankers Surety Co., 162 W. 272 673, 955, 1062 Mohr v. Porter, 51 W. 487 576, 586, 597, 648, 772, 986 v. Tulip, 40 W. 66 575, 597, 985 Molaske v. Ohio Coal Co., 86 W. 220 582 1239 Monk v. Hurlburt. 151 W. 41 ' 802 Montanye v. Northern Elec. Mfg. Co., 127 W. 22 312 Montague v. State, 163 W. 58 594 Moore v. Ellis, 89 W. 108 437, 1009 v. C. M. & St. P. Ry. Co., 78 W. 120 436 v. Moore, 138 W. 602 183, 872 Mootz v. Petraschefski, 137 W. 315 124 Moran's Will, In re, 118 W. 177 1207 Morawetz v. McGovern, 68 W. 312 611 Morgan v. Burrows, 45 W. 211 46, 70, 242 Morgan, Est. of, 152 W. 138 180, 836 v. Hammett, 23 W. 30 164, 982 v. Henry,' 115 W. 27 1112 v. Loomis, 78 W. 594 122 Morgenroth v. Spencer, 124 W. 564 555, 769 Morgenthaler v. Sotners, 164 W. 159 4 Morris v. Carmichael, 68 W„ 133 922 Morrison v. Austin, 14 W. 601 749 v. Wis. Odd Fellows Ins. Co., 59 W. 162 342 Morse v. Buffalo F. & M. Ins. Co., 30 W. 534 221 v.' Ryan, 26 W. 356 882 CASES CODIFIED 1271 Mountain v. Fisher, 22 W. 93 540, 579, 924, 1002 Mosness, Esq., In re Ole, 39 W. 509 102, 784 Mowatt v. Wilkinson, 110 W. 176 1084 Mowry v. Crocker, 6 W. 326 366, 842 Moyer v. Cook, 12 W. 335 996 Muellenschlader, Will of, 128 W. 364 294, 505, 1092, 1174 Mueller F. Co. v. Meiklejohn, 121 W. 605 1253 Mueller v. Nortmann, 116 W. 468 278, 792 v. Pew, 127 W. 288 657, 1116, 1173 v. Wiese, 95 W. 381 740 Muench v. Heinemann, 119 W. 441 49 Mulberger v. Beurhaus, 102 W. 1 62, 85, 289, 838, 864, 1156 ' Mullen v. Mullen, 62 W. 45 > 616 Mullins, Appeal of, 40 W. 154 79, 131, 750 Mundt v. Sheboygan & F. By., 31 W. •' 451 235 Munger v. Perkins, 62 W. 499 373 Munteith v. Rahn, 14 W. 210 843, 977 Murphey v. Gates, 81 W. 370 1251 Murphy v. Baldwin. 159 W. 567 1046 v. Crouch, 24 W. 365 520 v. Est. of Skinner, 160 W. 554 408, 919 v. Hanrahan, 50 W. 485 ■ 171, 774, 845, 1099 v. Quinn, 99 W. 466 1110 Murray v.Kluck, 87 W. 566 400, 701, 1058, 1109 v. Norwood, 77 W. 405 436, 451 Murtha v. Donohoo, 149 W. 481 682, 927, 1017 Musback v. Schaefer, 115 W. 357 .785 Mutcha v. Pierce,, 49 W. 231 965 Myers v. Ford, 22 W. 139 520 N Nash v. Hoxie, 59 W. 384 48, 318, 1244 , Nauman v. Zoerhlaut, 21 W. 466 6, 396 Nat. Bk. v. Cotton, Admr., 53 W. 31 619,709 Nat. Cash R. Co. v. Bonneville, 119 W. 222 10 Nat. Knitting Co. v. Bouton & G. Co., 141 W. 63 380 Natl. L. Ins. Co. v. Brauti'gam, 163 W. 270 607 Neeves v. Gregory, 86 W. 319 343, 358 I Neff v. Rubin, 161 W. 511 232, ,993 Neilson v. C. M. & N. R. Co., 58 W. 516 213 Nelson v. Davison, 152 W. 567 836 v. Goddard & Co., 162 W. 66 672, 814 v. Jacobs, 99 W. 547 1101 v. Kress, 145 W. 38 ,813 v. McDonald,- 80 W. 605 510, 549, 790 V. Goddard & Co., 162 W. 66 814 Newell v! Clapp, 97 W. 104 692 v. Smith, 38 W. 39 . , 1" New-Home S. M. Co. v. Simon, 113 W. 267 ■■ .' 1218 Newland, In re, 12 W. 490 77 Newman v. Waterman, 63 W. 612^ ^ ^ Newton v. Howe, 29 W. 5,31 194,'822,'j076 Nicholaus v. Thielges, 50 W. 491 1064 Nichols v. Halliday, 27 W. 406 233 v. Palmer, 48 W. 110 1055 Nicoud v. Wagner, 106 W. 67 439 Nielson v. Schuckman, 53 W. 638 509 Niland v. Niland, 154 W. 514 1228 Nilson v. Morse, 52 W. 240 222, 317 Nolan v. First Natl. Bank, 161 W. 22 352, 683, 698, 719, 955, 1130 Nonotuck Silk Co. v.' Flanders, 87 W. *" 237 1 "i Li. oo Noon's Will, In re, 115 W. 299 4 18, ,971 Norris v. Cargill, 57 W. 251 48, 310; 817 , Northrup v. Trask, 39 W. 515 844 Norton v. Clark, 149 W..4. '- "3 v. Rooker, 1- Pin. 195, , lA 219 Northwestern I. Co. v. Ind. Com., 154 yf 97 558, 1^4/ N. W. U. Packet Co. v. - Shaw, 37 W. 655 1178 Nunnemacher v. State, 129 W. 190 590, 915 Cl- in re, 73 W. 602, 106, 1244 Oakes v. Est. of Buckley, 49 W. 592, 43, 64, 170, 426, 874,' 944, 1025 Oakley v. Davidson, 103 W. ,98 85 Dates v. Erskine's Est., 116 W. 586 1012 Oatman v. Batavian Bank, 77 W. 501 1021 O'Brien v. C. & N. W. R. Co., 92 W. 340 564, 770, 1239 O'Brien, In re, 24 W. 547 542 O'Connor v. Decker, 95 W. 202 20, 630, 650, 1134 Oconto Co. v, MacAllister-, 155 W. 286 995 , O'Day v. Meyers, 147 W. 549 312, 361, 407, 992, 1051 O'Donnell v. Brand, 85 W. 97 400 O'Dell v. Rogers, 44 W. 136 ,94, 102, 397, 427, 493, 580, ,628, 647, 723, 771, 921, 985, 1120 Oesau v. Est. of Oesau, 157 W. 255 72 225 733 Ogden v. Bradshaw, 161 W. 49 ' 614! 766 Ogle, Estate of, 97 W. 56 900, 1233 OTHagan, Will of, 73 W. 78 416 O'Hara's Will, In re, 127 W. 258 88 O'Hearn v. O'Hearn, 1,14 W. , 428 257, 823 Ohse v. Miller, 137 W. 474 262, 1211 Olsen v. Thompson, 7? W. 666 19, 502, 611 Olson v. Olson, 149 W. 248 1017 v. Tanner, 117 ^W. 544 1245 O'Malley v. Miller, 148 W. 393 205, 376, 667, 1037 v. O'Malley, 102 W. 639 , 305 v. Ruddy, 79 W. 147 528, 952 Oneida Co. v. Tibbits, 125 W. 9 835 O'Neill, Est. of, 90 W. 480 478 O'Neil v. Kerr Co., 124 W. 234 98 Opitz v. Karel, 118 W. 527 98, 487, 604 Oppenheimer v. Collins, 115 W. 283 306, 554 Ordway v. Conroe, 4 W. 45, 110 v. Gardner, 107 W. 74 255 Ornstein v. Yahr & L. D. Co., 119 W. 429 380 Orton v. Noonan, 29 W. 541 23, 194, 234, 1019 v. Scofield, 61 W. 382 188 Osborn v. Blackburn, 78 W. 209 458 Osborne v. Gordon, 86 W. 92 251, 1123 Otien v. Frohbach, 148 W. 301 506, 704, 867, 1152 Ott v.' Boring, 131 W. 472 717 v. Boring, 139 W. 403 637, 948, 1071, 1246 v. Hood, 152 W. 97 ' 109, 718 Otto v. Klauber, 24 W. 471 2, 831 Owens, Will of, 164 W. 260 266, 1216, 1247 Pabst v. Goodrich; 133 W. 43 211, 261, 1137 Packard v. Kinzie Av. H. Co., 105 W. 323 754 Packard M. Co. v. Laev, 100 W. 644 819 v. Smith, 9 W. 184 1043 Page v. Danaher, 43 W. 221 67, 1107 v. Modern W. of A., 162 W. 259 879 Pagal v. Nickel, 107 W. 47;1 914 Paige v. Fagan, 61 W. 667 ., . 372, 725 Paine v. Comstock, 57 W. 159 710, 853 v. Fulton, 34 W. 83 , 472 v. Tones, 93 W. 70 236, 504, 634 v. Voorhees, 26 W. 522 831, 908 . v. Wilcox, 16 W. 202 805, 825 Palmer v. O'Rourke, 130 W. 507 716, 846 Parcher v. Marathon Co., 52 W. 388 832 Parrington v. Wilson, 29 W. 383 456 Parish, Admr. v. T. of Eden, 62 W. 272 427,- 960 1272 CASES CODIFIED Parker v. Amazon Ins. Co., 34 W. 363 508 ' v. Hull, 71 W. 368 751, 1244 v. Kelly, 61 W. 552 710 Parr v. Northern Elec. Mfg. Co., 117 W. 278 888 Parroski v. Goldberg, 80 W. 339 510 Parry v. Wright, 20 W. 483 168, 831, 1019 Parsons v. Balson, 129 W. 311 73, 89, 478, 652, 722, 847 v. Parsons, 101 W. 76 52, 650, 773 Patterson v. Cappon, 125 W. 198 328 Patton v. Ludington, 103 W. 629 254, 290, 1205 v. Patrick, 123 W. 21,8 1158 Paulson's Will, In re, 127 W. 612 I 63, 260, 1207 Pavey v. Am. Ins. Co., 56 W. 22; 1145 Payne v. Payne, 129 W. 450 284, 743, 888, 1013 Pearson v. Kelly, 122 W. 660 927, 1050 v. Switzer, 98 W. 397 854, 927 Peck v. Cheney, 4 W.249 707 Pellage v. Pellaee, 32 W. 136 796, 1003 Peninsular Lead & . C. W. v. Union O. & P. Co., 100 W. 488 634 Peppercorn v. City of Black River Falls, 89 W. 38 799 Pereles v. Leiser, 119 W. 347 177, 763 v. Leiser, 138 W. 401 179, 632, 764 v. Milwaukee Co., 164 W. 208 994 Perkins v. Burlington L. & I. Co., 112 W. 509 820, 1148 v. Owen, 123 W. 238 35, 652, 301, 972 , 1028 v. Shadboldt, 44 W. 574 80 Perkinson v. Clarke, 135 W. 584 / 218, 329, 606, 703, 867, 876, 1246 Perry v. Scaife, 126 W. 405 88, 512, 661, 847 v. Simonds-, 28 W. 90 345 Person v. Merrick, 5 W. 231 499, 931, 981 Petersen v. Elholm, 130 W. 1 1028 Peterson v. Johnson, 22 W. 21 215, 805 v. Oleson, 47 W. 122 118 ' v. Sioughton State Bank, 78 W. 113 911 Petesch v. Hambach, 48 W. 443 195, 524, 737, 951 Pfeil v. Kemper, 3 W. 315 402, 1001 Pfeiffer-v. C. & M. E. R. Co., 163 W-. 317 408, 565 Pfingston v. Pfingston, 164 W. 308 559 Phelan v. Boylan, 25 W. 679 313, 699 "Phelps v. Atlantic & P. Tel. Co., 46 W. 266 1250 v. Ayers, 142 W. 442 449 v. Mineral S. H. Co., 123 W. 253 942 v. Rooney, 9 W. 70 518, 759 Philips v. Sleusher, 3 Pin. 457 422 Philler v. Waukesha Co., 139 W. 211 , ' 442, 1240 Phillips v. Hyland, 102 W. 253 987 Phillips by Gdn. v. Portage Transit Co., 137 W. 189 1195 Pier v. Amory, 40 W. 571 921, 1187 Pierce, Est. of, 56 W. 560 245, 426, 710, 1026 Pierce v. Hoffman, 4 W. 277 192, 1019 v. Northey, 14 W. 9 508 v. Pierce, 64 W. 73 173, 798, 823 v. Seymour, '52 W. 272 709 v. Shaw, 51 W. 316 664, 761 v. Stitt, 126 W. ,62' 329 v. Stolhand; 141 W; 286 218, 876 Pietsch v. M. & I.-Bahk, 164 W. 368 1153 Pike Est. of: Kimball's Appeal, 45 W. 391 956 Pike v. Miles, 23 W. 164 520, 541 Pillsfeury v. Mitchell, 5 W. 17 163, 301 Pipkorn Co. v. Tratnik, 161 W. 91 376 Pinger v. Vanclick, 36 W. 141 1186 Pirie v. H. Stern, jr., & Br. Co., 97 W. 150 912 v. LeSaulnier, 161 W. 503 490, 1104 Place v. Langworthy, 13 W. 629 160 Plato v. Roe, 14 W. 453 804 Piatt v. Iron Exchange Bank, 83 W. 358 444, 1066 v. Schmitt, 117 W. 989 929 Pluto P. Co. v. Cuba City S. B., 153 W. 324 889 Pogel v. Meilke, 60 W. 248 619 Polacheck v. Moore, 114 W. 261 1061 Polebitzke v. John Week L. Co., 163 W. 322 - 225 Pollard v. Wegener, 13 W 569 643 Polzen v. Polzen, 164 W. 18 534 Pomeroy v. Pomeroy, 93 W. 262 56 Ponti v. Eckels, 129 W. 26 998 Popp v. Swanke, 68 W. 364 1036 Porte v. C. & N. W. R. Co., 162 W. 446 99 Portz ». Schantz, 70 W. 497 649, 772, 875, 1032 Potter v. C. & N. W. Ry., 21 W. 372 317, 579 v. Frohbach, 133 W. 1 300, 507, 652 v. Taggart, 54 W. 395 940, 1077 Power v. Kane, 5 W. 265 403, 1181 Powers v. Powers, 145 W. 671 64, 164, 676, 1144 Prairie Grove C. M. Co. v. Luder, 115 W. 20 10, 1245 Prasser, Will of, 140 W. 92 375, 1212, 1246 Pratt v. Ayer, 3 Pin. 236 443 Prentis v. Ledyard, 28 W. 131 1002 Prentiss v. Strand, 116 W. 647 915 Price v. Dietrich, 12 W. 1626 168, 626, 642 v. Mace, Admr., 47 W. 23 75, 453 v. Osborn, 34 W. 34 521, 543 Prickett v. Muck, 74 W. 199 726, 1233 Prince v. Hake, 75 W. 638 528 Pringle v. Dunn, 37 W. 449 883, 1187 Pritchard v. Howell, 1 W. 131 707~ v. Lewis, 125 W. 604 230 v. Pritchard, 69 W. 373 48, 276, 1108 Pritchard's Will, In re, 37 W. 68 655, 779 Pritzlaff Hardware Co. v. Carlson, 76 W. 33 338 Progress B. R. F. v. Chicago H. S. Co. 153 W. 249 110, 445 Provident L. & B. Assn. v. Carter, 107 W. 383 745 Prutsman v. Baker, 30 W. 644, 324, 392, 933, 1230 Punch v. Williams, 34 W. 268 908. Putnam v.. Bicknell, 18 W. "333 539 Puzey v. Senier, 9 W 370 857, 1120 Pym v. Pym, 118 W. 662 49, 139, 176, 531, 715, 1112 Quinn v. Higgins, 63 W. 664 435 v. Quinn, 130 W. 548 1174 R Radtke v. Rothschild, W. P. Co., 158 W. 271 ' 231 Raesser v. Nat. Exch. Bank, 112 W. 591 i 97, 163 Ralph v. C. & N. W. Ry., 32 W. 177 404 Ramsay v. Ramsay, 20 W. 507 796 Ramsey v. Hommel, 68 W. 12 922 Rape v. Heaton. 9 W. 328 452, 456, 458, 626, 642, 873 Rasdall ». Rasdall, 9 W. 379 323, 470, 804, 1143 Rayborn v. Galena I. W. Co., 159 W. 164 66, 205 Ready v. So'mmer, 37 W. 265 750 Reddington v. Franey, 131 W. 518 1046, 1070 Redmon y. Phoenix F. Ins. Co., 51 W. 292 1243 Reed v. Catlin, 49 W. 686 784, 997, 1194 v. City of Madison, 83 W. 171 581 v. Tones, 8 W. 392 274, 464, 804, 932 v. Wilson, 73 W. 497 14, 358 Reeves & Co. v. Saxton, 145 W. 10 532 1 CASES CODIFIED 1273 Reid v. Hibbard, 6 W. 175 Reinig v. Hecht, 58 W. 212 Relyea v. Tomahawk P. 629, 87.5. & P. Co., 102 712 299 W. 301 Remington, In re, 7 W. 643 Remington v. Detroit D. M. Go., 101 W. 307 217, 810, 912 v. Eastern R. Co., 109 W. 154 440 , Renner v. Bohemian, S. B.> Soc 89 W 401 660 Resell v. Senn, 28 W. 286 483 843 Reynolds, Will of, 151 W. 375 "' 349, 1043, 1159, 1214, 1228 Reynolds v. Schmidt, 20. W. 374 643, 921, 982 Rhine' v. Sheboygan, 82 W. 352 828 Rice, Will of, 150 W. 401 41, 91, 202, 498, 584, 633, 653, 692, 904, 1043, 1159, 1193, 1236 Rice v. Cribb, 12 W. 179 759, 907 v. Garnhart, 35 W. 282 101, 694 Richardson v. Emerson,. 3 W. 319 873 v. Johnsen, 41 W. /100 • ' • 806 v. Stuesser, 125 W, 66 195, 556, 829 v. Tyson, 110 W. 572 . 199, 497 Richmond v. Smith, 117 W. 290 469, 554 v. Taylor, 154 W. 633 689 Richter v. Estate of Leiby, 101 W. 434 651, 975, 1059 v. Est. Leiby, 107 W. 404 297, 497, 1060, 1218 Richter, J. v. Leiby, 99 W. 512 305, 1040 Riehl v. Bingenheimer, 28 W. 84 521, 542, 1144 Rienig v. Hartman, Extr., 69 W. 28 173 Riggs v. Weise, 24 W. 545 6 Riha v. Pelnar, 86 W. 408 1116 Riley v. Gregg, 16 W. 666 805, 1054 ' Rindskopf v. Myers, 77 W. 649 , 436 Ripley v. Babcock, 13 W. 425 403, 595, 1230 Ripon H. Co. v.' Haas, 141 W. 65 511, 558, 743 876 Pitter v. Bruss, 116 W. 55 741 Rix v. Sprague, C. M. Co., 157 W. 572 999 Roane Iron Co. v. Wis. Trust Co., 99 W. 273 1124 Roberts v. Erickson, 117 W. '324 / 786 v. Lamberton, 117 W. 635 218, 292 v. Northwestern N. Ins. Co., 90 W. 210 552, 887 v. Roberts, 107 W. 213 469, 1233 v. Weadock, 98 W. 400 13S.-17S, 183, 631, 650, 692 Robertson v. C. St. P. M. & O. R. Co., ' 122 W. 66 28, 451 Robinson, Est. of,, v. Hodgkin, 99 W. 327 14, 289, 322, 428, 616, 819 Robinson v. McGinnis, 145 W. 476 557,, 821, 960, 1240 - v. State, 143 W. 205 442 Rockwell- v. Daniels, 4 W. 432 163 v. Est. of Robinson, 158 W. 319. ,559 v. Luck, 32 W. 70 668, 1076 Rodman v. Rodman, 112 W. 378 352, 811, 1036 Roebke v. Andrews, 26 W. 311 673 Roemer v. Schmidt, 134 W. 1 90 Rogers v. Draves, 154 W. 23 , 5J5 v. HQllister, 156 W. 517 365 v. Rogers, 53 W. 36 332 v. Van Nortwick, 87 W. 414 662 v. Weil, 12 W. 664 - 538, 735 Rohleder v. Wright, 162 W. 580 363 Roller v. Spilmore, 13 W. 26 579, 882 Rolette v. Rolette, l.Pin. 370 537 Rollins v. Humphrey, 98 W. 66 995 Rolston v. B^ockway, 23 W. 407 750 Root, Will of,. 81.W. 263 249, 347, 351, 528,, 679, 986 Rose, Will of, 156. W. 570 1153 Rose v.. Ruggles, 137 W. 439 57 Rosenberg V. Sheahan, 148 W. 92 783 Rosenthal v. Rosenthal, 146 W. 41 125 766 Ros« v. Northrup, K. & Co.* 156 W. 327 281, 1183 Rounsavell v. Pease, 45 W. 506 ' , " „ , 47, 404, 467, 770, 788, 807 Rothe v. Rothe, 31 W. 570 336 479 Rowell v. Barber, 142 W. 304 474, 7.32,. 1228 v. Rowell, 122 W. 1, • , , ■■ „ 211, 979, 1070, 1102, 1128 v. Williams, 54 W. 636 326, 772, 1243 Rowlands v. C. & N. W. R. Co., 149 W. 51 639 Rowley v. Rowley, 143 W. 325 263, 632, 587 Roys v. Vilas, 18 W. 169 ,, " ,. . 163, 676, 843, 1064 Royston, Appeal of, 53 W. 612 81, 571, 648, 847, 777, 1194 Rozek v. Redzinski, 87 W. 525 , 468, 1239 Rudolf v. Malone, 104 W. 47b 1060' Ruggles v. Tyson,, 104 W.- 500 390, 820,, 865, 1101, 1157 v. Tyson, 114 W. 301 1157 Russell v. Clark, 60' W. 284 96, 922 Rust v. Evenson, 161 W. 627 160 v. Fitzhugh, 132 W. 549 29, 66, 179, 218, 1023, 1246 Ruth v. Oberbrunner, 40 W. '238 147, 628, 646, 771 Ryan, Est. of, 157 W. 576 ' 272, 285, 1029 Ryan v. Dockery, 134, W. 431 179, 557, 730, 1015 Ryan Drug Co. v. Hvambsahl, 92 W. 62 9, 612 v. Oshkosh G. L. Co.,, 138 W. 466 409 Sabine v. Fisher, 37 W. 376 580 Saddington's Est. v. Hewitt, 70 W. 240 ,357 Sadowski v. Thomas F. Co., 161 W. 86 565 St. Sure v. Lindsfelt, 82 W. 346 453, ,458 Salb v. Campbell, 65 W. 405 , 926, 1007 Salter v. Hilgen, 40 W. 363 ,' 1187 Sambs, Admr., v. Stein, 53 W. 569 81, 709 Samson, v. Ward, 147 W. 48 675 Samuel v. Est. of Thomas, 51 W. 549 . 1 38, 480, 500, 757, 858 Sanborn v. Carpenter, 140 W. 572 63, 574, 661 . v. Perry, 86 W. 361 , 174, 453 Sandberg v. State, 113 W. 578 115, 879 Sander, Est. of, 126, W. 660 88, 661, 688 Sanderson y. Dox< 6 W. 164, 626 v. O. C. Ry.' & Coal Co., 61 , W. 609 , ,94 v.Olmsted, 2, Pin. 224 192,365,707,873 Sandon v. Sandon, 123 W. 603 49, S3, 61 Sanford v. McCreedy, 28 W. 103 425 Sargeant v. Downey, 49 W. 524 757, 885 Sargent, Est. of, 62 W. 130 33, 427, 450, 656, 659 Savage v. Davis, 18 W. 608; 539, 768, ,882 Saveland v. Green, 40 W. 431 884, 929, 1075, Saukville, T. of,'' v. T. of Grafton, 68 W. 192 828 Sawtelle v. Ripley, 85 W. 72 251, 818, 1123 v. Witham, 94 W. 412 152, 863 Sawyer v. Choate, 92 W. 533 1109 v. Metters, 133 W. 350 30 , Saxe v. Saxe, 119 W. 557 429 Saxton v. Webber, 83 W. 617 251, 622, 840, 1204 Saxville v. Bartlett, 126 W. 655 829, 954 Sayles v. Stewart, 5 W. 8 ' 339 Schaeffner, Appeal of, 41 W. 260 241, 296, 646, 771 Schaeffner, Est. of, 45 W. 614 243, 1192 Schafet by Gdn. v. Luke, 51 W. 669 195, 1243 Schauble v. Tietgeri, 31 W. 695 296 Scheer v. Keown, .3,4 W. 349 1186 v. Ulrich, 133 W: 311 49, 479,- 663 Scheiner v. Arnold, 142 W. 564 557 Schettler v. Jones, 20 W. 412 6, 404, 749, 1237, 1249 Scheunert v. Albers, 140 W. 578 600 . Schintz v. McManamy, 33 W. 299 325, 788 1274 CASES CODIFIED Schinz .. Schinz, 90 W. 236 14, 34, 198, 790, 975, 1124 Schissler v. State, 122 W. 365 440 Schlei vi Struck. 109 W. 598 945 Schlesinger v. Ellinger, 134 W. 397 359 Schlitz v. Meyer, 61 W. 418 104 v. Roenitz, 86 W. 31 51, 799 Schmeling v. Kriesel; 45 W. 325 1034 Schmidt v. Deegan, 69 W. 300 318, 393, 1224 v. Grenzow, 162 W. 301 272, 766 v. Menaska W. Co., 99 W. 300 27 v. Raymond, 148 W. 271 314, 376 v. Schmidt's Est., 123 W. 295 57, 916 v. Thomas, 75 W. 529 276, 1244 Schmidt, infant, v. M. & St. P. Ry. Co. 23 W. 186 579, 1105 Schmidt's Est., In re, 93 W. 120 1010 Schmitt v. Franke, 160 W. 347 1180 Schneider v. Est. of Breier, 129 W. 446 480, 743 v. Schneider, 124 W. Ill • 702 Schnorenberg v. Schnorenberg, 150 W. . 537 138, 1041 Schoblasky v. Rayworth, 139 W. 115 812 Schoffen V; Landauer, 60 W. 334 526 Schoenleber v. Burkhardt, 94 W. 575 1058 Schoenwetter v. Schoenwetter, 164 W. 131 401, 846, 904, 919, 1003 Schpll, Will of, 100 W. 650 254, 687, 1245 School Dist. v. Dreutzer, 51 W. 153 610, 1056 School District v. Haynd, 46 W. 511 925, 939 Schratnek v. Shepeck, 120 W. 643 177, 505 Schultz v. Becker, 131 W. 235 487 v. Culbertson, 46 W. 313 1178 v. Culbertson, 49 W. 122 1179 v. Culbertson, 125 W. 169 49, 556, 855, 894, 1091, 1112 v. Coon, 51 W. 416 808, 978 v. Frankfort M .A. & P. G. Ins. \ Co., 151 W, 537 407, 410, 675 v. Schultz, 133 W. 125 ■ 532 Schumacher v. Draeger, 137 W. 618 ■ i 218, 395, 513, 1151 'V. Seeger, 65 W. 394 1020 Schuman v. Hurd, 79 W. 654 687 v. : Schuman, 83 W. 250 687 v. Steinel, 129 W. 422 557 Schwantes v. State, 127 W. 160 . 312, 441, 556, 565 Schweikert v. John R. Davis L. Co., 147 W. 242 1029 Schwenn v. Schwenn, 143 W. 399 732 Schwickerath, ' Admx., v. Lohen, 48 W. 599 388 Scofield r. Hopkins, 61 W. 370 526 Scott v. Clayton, 51 W. 185 827 v. Neeves, 77 W. 305 70, 248, 1244 v. Webster, 44 W. 185 745, 1242 Scott, Extr. v. West, 63 W. 529 246, 381, . 427, 711, 1026, 1099, 1201, 1122, 1146, 1244 Seaman v. Aschermanri, 51 W. 678 808, 825, 1035 Seamans v. Carter, 15 W. 548 ' 967 Second Nat. Bank v. Merrill, 81 W. 142 484, 550, 711, 798 v. Larson, 80 W. 469 83 Secord v. John Schroeder L. Co,, 160 W. 1 205 Security Nat. Bank v. St. Croix P. Co., 117 W. 211 636 Security T. & L. Ins. Co. v. Ellsworth, 129 W. 349 224 Sedgwick v. Blanchard, 164 W. 421 283 Seefeld v. C. M. & St. P. Ry. Co., 67 W. 96 48, 213, 327 Seeger v. Manitowoc S. B. W., 120 W. 11 1028 Seeley v. Howard, 13 W. 336 323 Seely v. Hills, 49 W. 473 1122 Segelke & IC. M. Co. v. Vincent, 135 W. 237 10 Segnitz v. A. Grossenbach Co., 158 W. 511 1017 Seibold v. Wahl, 164 W. 82 369 Seidemann v. Karstaedt, 130 W; 117 179 Seifert v. Brooks, 34 W. 443 . 212, 858 Selden v. State, 74 W. 271 891 Seliger v. Bastian, 66 W. 521 435 Sellers v. U. Lumbering Co., 39 W. 525 514, 627 Semmens v. Walters, 55 W. 675 342 Senger v. Melloy, 153 W. 245 ' 889 Sentinel Co. v. A. D. Meiselbach M. W. Co., 144 W. 224 639, 1051 Sevenn v. Rueckerick, 62 W. 1 121, 303, 1146 Sexton v. Rhames, 13 W. 99 , 784 Seymour S. Bank v. RettlerJ 164^W. 619 109, 35S Shaddock v. Clifton, 22 W. 114 541 Shafer v. Luke, 51 W. 669 586 Shaw v. Kirby, 93 W. 379 529 Shearer v. Browne, 102 W. 585 696, 1069 Sheers v. Stein, 75 W. 44 581, 798, 1244 Shekey v. Eldredge, 71 W. 538 1238 Sheldon v. Sheldon, <3 W. 699 707, 881, 1120 Shepard v. Pebbles, 38 W. 373 130, 287, 1054 Sheppard v. Rosenkrans, 109 W. 58 670, 1218 SHepardson v. Rowland, 28 W. 108 1076 Sherburne, Admr. v. Rodman, 51 W. 474 111 Sherley v. Peehl, 84 W. 46 277, 1251 Sherman v. iKreul, Admr., 42 W. 33 617, 1064 Sherry v. Madler, 123 W. 621 1050 v. Smith, 72 W. 339 389, 853 Sherwood v. Sherwood, 45 W. 357 243; 467, 751, 788, 950, 1231 Shields v. Fuller, 4 W. 102 1063 v. Klopf, 70 W. 69 1049 i Shinners v. Brill, 38 W. 648 85-1 Shipman v. State, 44 W; 458 609 Shoemaker v. Hinze, 53 W. 116 112, 690 Shoop F. M. Co., v. Schowalter, 120 W. •- 663 1028 Shores Lumber Co. v. Stitt, 102 W. 450 1083 Shufeldt v. Spaulding, 37 W. 662/ 227 Shuman v. Hurd, 79 W. 654 83 v. SKumari, 80 W. 479 347 N Sieber v. Amunson, 78 W. 679 3, 563, 1244 Siegbert v. Stiles, 39 W. 533 515, 1048 Sigerson v. Cushing, 14 W. 527 221, 274, 403 Silbar v. Ryder. 63 W. 106 952 Silverman v. Fidelity & C. Co., 124 W. 459 88 Silverthorn, Will of, 68 W. 372 1087 Simmons v. Oliver, 74 W. 633 1123, 1133 Simonson, Est. of, 164 W. 590 181, 559, 927, 1018 Sioux L. Co. v. Ewing, 148 W. 600 793 Sitzman v. Pacquette, 13 Wis! 291 42, 643, 895, 943, 966, 1039 Skinner v. American B. Socy., 92 W. 209 182, 417, 899, 1233- Skrinsrud v. Schwenn, 158 W. 142 1176 Slater v. Est. of Cook. 93 W. 104 680, 868, 1010 Slaughter v. Bernards, 88 W. Ill 328 Slinger, Will of, 72 W. 22 367, 502, 1087. 1167 Slinger v. Henneman, 38 W. 504 195 Slban v. Duffy, 117 W. 480 14, 72, 87, 200 Sloane v. Anderson, 57 W. 123 81, 195, 832, 1026 Slocum v. N. W. Nat. L. Ins. Co., 135 W. 288 605 Small v. Champeny, 102 W. 61 468, 572, 599, ll68 Smith v. Allis, 52 W. 337 546 v. Armstrong, 24 W. 446 805, 882, 929, 983 v. Carter, 25 W. 283 216, 805 v. C. M. & St. P. Ry. Co., 83 W. 271 1049 v. Commonwealth Ins. Co., 49 W. 322 770 v. Diamond, 86 W. 359 1067 v. Dragert, 61 W. 222 853 v. Ehanert, 43 W. 181 561, 781 v. Ehnert, 47 W. 479 509 v. Grady, Extr., >68 W. 215 173, 453 v. Hughes, 50 W. 620 940 v. Janesville, 52 W. 680 639, 852 CASES CODIFIED .1275 Smith v. Mariner, 5 W. 551 464 v. Milwaukee E. R. & L. Co., 119 W. 336 1190 v. Omans, 17 W. 395 320, 519, 690, 1105 v. Peckharh, 39 W. 414 74, 366, 450 v. Pfluger, 126 W. 253 764 776 ,v. Putnam, 107 W. 155 473 v. Schreiner, 86 W. 19 84, 962 v. Scott, 31 W. 437 274 694 v. Smith, 23 W. 176 541 v. Smith, 34 W. 320 117 V. Smith, 60 W. 329 1086, 1165 v. Smith, 116 W. 570 333, 1206 v. Smith, 140 W. 599 513, 688 v. State, 161 W. 588 593, 638 v. Waggoner, Admx., 50 W. 155 447 v. Wait, 39 W. 512 522 v. Willing, 123 W. 377 790, 917 Smith Auto Co. v. Kaestner, 164 W. 205 698 Smith, Will of J. B., 52 W. 543 415, 1085, 1164 Snell v. Bray, 56 W. 156 546, 1238 Snyder v. Van Doren, 46 W. 602 68, 508, 789, 885, 910 Sohey v. Thomas, 37 W. 568 96 Soehnlein v. Soehnlein, 146 W. 330 1137 Solberg v. Robbins L. Co., 147 W. 259 214, 657 Somers v. Germania Natl. Bank, 152 W. 210 889, 1218 Soraervail v. Gillies; 31 W. 152 . . 874 Somervaill, Will of, 104 W. 72 85, 428 Sommervaill v. McDermott, 116 W. 504 , 28 Sorenson v. Dundas, 42 W. 642 964 South Milwaukee Co. v. Murphy, 112 W. 614 271, 1047 Spaulding v. C. & N. W. R. Co., 30 W. 110 . 194, 792 v. Stubbings, 86 W. 255 1067 Spehnv, Heubschen, 83 W: 313 83 Speisei* .v. Merchants' E. Bank, 110 W. 506 199 224, 995 608 609 432 784 881 344, 771 1104 741 Spencer v. Holman, 113 W. 340 v. Maxfield, 16 W. 178 r, v. Maxfield, 16 W. 541 Spikes v. BurgeSs, 65 W. 428 Sprague v. Birchard, 1 W. 457 - v. Hibbard, 6 W. 175 Spuhr v. Kolb, 111 W. 119 Stack v. Hickey, 151 W: 347 v. Padden, 111 W. 42 v. Roth Bros. Co., 162 W. 281 ,110, 475, 620, 979 Stacks v. Buten, 141 W. 235 98 ■Stacy v. Bennett, 59 W. 234 853 Stahl v. Gotzenberger, 45- W; 121 „ 3S8, 656 Stark v. Brown, 12 W. 572 .843, 932, 1097 Stark Extr. v. Conde, 100 W. 633 253, 680, 1205 Starke v. Crilley, 59 W. 203 • 1006 Stark, Will of, 149 W. 631, . - 91, 263, 384, 958,, 1213 Stanley v. Risse, Extrx., 49 W. 219 80, 656 Stanton v. Kirsch, 6 W. 338 534, 538, 735 26 582 Stapleton v. Brannan, 102 W, State v. Bayne, 100 W. 35 v. Guehther, 87 W. 673 v. Jones, 130 W. 572 v. Juneau, ' 88 W. 180 ,V. Knight, 118.W. 473 v. Law, 150 W. 313 v. Miller, 47 W.. 530 V. Pabst, 139 W. 561 v. Reesa, 57 W. 422 v. Stillman, 81 W. 124 v. Thompson, 154 W. 320 v. West, 118 W. 469 v. Wilner, 40 W. 304 State ex rel. Atkinson v W. 8 State ex rel. Barber v. McBain, 102 W. 431 „ „ 1079 State er rel. Boddenhagen v. C. M. & St. P. R/Co., 164 W. 304 237 305 719 612 298 1239 564 443 509 592 874, 944 236 593 555 S97 McDonald, 108 454; 631 1238 296 297 1255 639 State ex rel. Brenk v. Widule, 161 W. 396 1074 State ex rel. Cazier v. Turner, 145 W. 484 1258 State ex rel. Chappell v. Giles, 10 W. 101 267 State er rel. C. & N. W. R. Co. v. Bur- . nell, 102 W. 232 1255 State ex rel. City of Milwaukee v. Lud- wig, 106 W. 226 ] ' ' 354,' 651, 945 State ex rel. Deleglise v. Goodland, 128 W. 57 1193 State ex rel. Deleglise v. Parsons, 131 W. 606 1031, 1033 State ex rel. Dosch v. Ryan, 127 W. 599 213 State ex rel. Finch v. Washburn, 17 W. 658 295, ?66 State ex rel. Fenelon v. Graff am, 74 W. ' 643 1244 State ex rel. Gaster v. Whitcher, 117 W. 668 1256 State ex rel. Gurney L. \Co. v. Risjord, 161 W. 118 83,7 State ex rel. Hoffmann v. Day* Gdn., 57 W. 655 847, 1194 State ex rel. Jones v. Froehlich, 115 W. 32 ' •.- 220 Stateex rel. Kempsmith v. Widule, 161 W 389 593, 1074 State ex rel. Kleist v. Donald, 164 W. 545 , 220, 674, 877 State ex rel. Lanning v. Lonsdale, 48 W. 348 267, 341, 1 State ex rel. Lutfring v. Goetze, 22 W. 363 , 233, State ex rel. Martin .v. Kalb, 50 W. 178 State ex rel. Meggett v.. O'Neill, 104 W. 227 State ex rel. Mengel v. Steber, 158 W. 309 State ex rel. McManman v. Thomas, 150 W. 190 ' 237 State ex rel. Ornstine v. Cai-y, 126 W. 135 614 State ex rel. Orton v. McArthur, 23' W. 427 723, 947, 1041 State ex rel. Pabst B. Co. v. Carpenter, 129 W. 180 359, 589, 1253 State ex rel. Quinn v. Thompson's M. F. Co., 160 W7 671 . 692, 1247 State ex rel. Rich v. Steiner, 160 W. 175 719 State ex rel. Richter v. Chadbourne, 162 W. 410 237j 897 State ex rel. Sanderson v. Mann, 76 W. 469 34, 288, 589, 649, 1026 State ex rel. S. B., etc. v. Cbm'rs, 34 W. 162 ' 235 State ex rel. Schumacher v. Markham, 162 W. 55 3fi 2, 856 State ex rel. Spritka v. Parsons, 153 W. 20 316, 1256 State ex rel. Tallmadge v. Flint, 19 W. 621 77, 128, 164, 295, 499, State ex rel. Velie v. Morgan, 130 W. 293 89, State ex rel. Vo's v. Hoelz, 69 W. 84 State ex rel. Webdr v. Cordes, 87 W.,373 State ex rel. Wiesniann v. Kemen, 61 W. 494 . ' °' ,1255 State ex rel. Wis. Trust Co. v. Widule, 164 W. 56 . . ,,. 1075 State ex rel. Wood Co. v. Dodge Co., 56 W. 79 367, 1244 State Bank v. Corwith, 6 W. 551 - 23, 64 v. Hastings, 15 W. 75 97 State Bank of L.' Y, Michel, 152 W. 88 237, 918 State Bank of W. v. Pease, 153 W. 9 718 Stearns v. Felker, 2? W. 594 142 Steele v. Kom, 137 W. 51 682, 697 Steffen v. Supreme A. of D„ 130 W. 485 1029 Stehn y. Hayssem/124 W. 583 211, 259, 715, 1070 Steinberg v. Saltzman, 130 W. 419 36, 663, 856, 990 v. Salzman, 139 W. 118 ' 717, 991, 1103 723 298 514. 777 1276 CASES CODIFIED Stemer's Estate, In re, 91 W. 399 84, 134 Steinke's Will, In re, 95 W. 121 721 Stephens v. Shafer, 48 W. 54 1055 Stephenson v. Norris, 128 W. 242 200, 211, 261, 293 Sterling v. Ryan, 72 W. 36 775 Sterling E. &- C. Co. v. Miller, 164 W. 192 191 Stetz v. F. Mayer B. & S. Co., 163 W. 1S1 585 Steuerwald v. Richter, 158 W. 597 24, 1070 Stevens v. Wheeler, 43 W. 91 . 997 Stevenson v. Milwaukee Co., 140 W. 14 786, 896 Stevenson Co. v. Peterson, 163 W. 258 776 Stewart v. Mather, 32 W. 344 . 186 v. Stewart, 41 W. 624 331, 544, 1107, 1116 v. Stewart, 50 W. 445 332, 562, 817 Stinson v. Leary, 69 W. 269 82, 501 Stittgen, In re, 110 W. 625 166, 316, 801 Storks v. City of Sheboygan. 42 W. 315 335 Stokes v. Brown. 3 Pin. 311 578, 928 Stoll v. Mutual B. L. I. Co., 115 W. 558 98, 400, 604, 820 Stone v. Merrill, 43 W. 72 947 Stones v. Talbot, 4 W. 442 273, 830 Stoughton S. B. v. StoughtOn, 159 W. 330 214 Stout. v. Weaver, 72 W. 148 810 Stowell v. Eldred, 26 W. 504 385, 476, 806, 883, 851, 995, 1020 Straka, by Gdn. ad litem v. Lander, 60 W. 115 i 494 Strasser v. Conklin, 54 W. 102 929 Streiff, In re, 119 W. 566 573 Stronach v. Stronach, 20 W. 129 424, 816, 977 Strong Admr. v. City of Stevens Point, 62 W. 255 547, 819 Strong v. Hooe, 41 W. 659 337 v. Winslow, 3 Pin. 27 77 Stuart's Will, In re, 115 W. 294 680, 702 Stubbings v. O'Connor, 102 W. 352 613, 1068 Studebaker Bros. Mfg. Co. v. Langson. 89 W. 200 217, 834, 912 Stumm v. Western U. Tel. Co., 140 W. 528 1254 Sturtevant v. Starin, 19 W. 268 540 Stutz v. C. & N. W. Ry. Co., 73 W. 147 310 Sucke v. Hutchinson. 97 W. 373 782. 1110 Sueterlee v. Sir, 25 W. 357 777, 996 Suit v. Bonnell, 33, W. 180 309 Sullivan v. Ashland, L. P. & St. R. Co., 152 W. -574 362 v. Bruhling, 70 W. 388 105 v. Collins, 107 W. 291 311, 713 Sumner v. Newton, Trustee, 64 W. 210 1155 Superior C. L. Co. v. Bickford. 93 W. 220 1047 Superior Consolidated Land Co. v. Nich- ols, 81 W. 656 664 Sutherland v. Drolet, 154 W. 619 671 Sutton v. Wauwatosa, 29 W. 21 1048 v. Wegner,' 74 W. 347 ..•' 948 Swan v. Norvell, 107 W. 625 1032 Swanby v. Northern S. B., 150 W. 572 918 Swarthout v. Swarthout, 111 W. 102 61, 87,139,1793, 871 Swearingen v. Robertson. 39 W. 462 708 Sydnor v., Palmer, 29 W. .226 141, 1144 Sydow. Lands of, 161 W. 325 534, 1228 Tabor v. Tabor, 85 W. 313 251, 701, 871 Tallman v. Barnes, 54 W. 181 1076 v. McCarty, 11 W. 401 183, 560, 642 Tank, Gnsp. of, 129 W. '629 801 Tanner v. Billings, 18 W. 163 534 Tasse v. Kindt, 145 W. 115 190 Taylor Orphan Asylum, In re, 36 W. 534 146, 387, 1120, 1145 Taylor v.- Collins,' 51 W. 123 447, 808 v. Donaboe, 125 W. 513 958 v. Hill, 86 W. 99 19, 223, 602, 662, 712 v. Hill, 87 W. 669 20, 612, 962, 1133 v. Pratt, 3 W. 674 470 Taylor v. Thieman, 132 W. 38 74, 717, 1014 v. Williams, 6 W. 363 274, 924 v. Young, 61 W. 314 ' , 1049 Teegarden v. T. of Caledonia, 50 W. 292 „, ,, , 310, 674, 808, 1250 Telford v. Frost, 76 W. 172 934 Tellett v. Albregtson, 160 W. 487 1046, 1104 Templeton v. Butler, 117 W. 455 1234, 1252 Terrell v. Ledwell, 21 W. 182 1237 Terry v. Bartlett. 153 W. 208 191 Tewksbury v. Schulenberg, 41 W. 584 868 Thayer v. Gallup, 13 W. 539 340 Thomas v. Covert, 126 W. 593 512 v. Hatch, 53 W. 296 1049 v. Steele, 22 W. 207 92, 101 v. Thomas, 88 W. 88 477, 662, 1189 Thompson v. Nims, 83 W. 261 727 v. Thompson, 16 W. 91 838 Thorne v. Aetna Ins. Co., 102 W. 593 811 Thrall v. Thrall, 60 W. 503 120 Thomson v. Universal Mfg. Co., 164 W. „,, 44 859, 1181 Thurston, In re, 57 W. 104 17, 610 Tobey v. McAllister, 9 W. 463 464, 693, 932 Tobin v. Nichols, 156 W. 235 1029 v. Tobin 139 W. 494 488, 765 Toepfer v. Sterr, 156 W. 226 1254 Todd v. Lee, 15 W. 365 538, 735 v. Lee, 16 W. 480 539 Tamlinson-v. Nelson, 49 W. 679 1020, 1064, 1222 1 Tompkins v. Page, 70 W. 249 82 ToOolewski v. Plankinton P. Co., 143 W. -n 5 l 673 Tredway v. Allen, 20 W. 475 • 168 Torrey Cedar Co. v. Eul, 95 W. 615 304 Torrey v. Riverside Sanitarium, 163 W. 71 600 Towslee v. Durkee, 12 W. 480 608 Towle v. Ewing, 23 W. 336 227, 861 v. Towle, 79 W< 596 399, 1233 Town v. Gensch, 101 W. 445 529 Triba v. Lass, 146 W. 202 - 633, 1103 Tro'ewart, Admr. v. Decker, 51 W 46 1049 Trowbridge v. Sickler, 54 W.^06 310, 341, 845 Tryon v. Farnsworth, 30 W. 577 79, 169i 207, 644, 961 Tucker v. Grover, 60 W. 240 611- Turner v. Nachtsheim, 71 W. 16 1188 v. Scheiber, 89 W. 1 529 Twohy M. Co. v. Est. of McDonald, 108 W. 21 1027 Tyler v. Burrington, 39 W. "376 50, 580, 1004 v. Stitt, 127 W. 379 178, 487, 568, 917 Tyson jj. Richardson, 103 W. 397 198, 298. 696 v. Tyson, 94 W. 225 84, 496 v. Tyson, 96 W. 59 840, 1147 U Uecker v. Thiedt, 137 W. 634 364 479 Ullrich v. Ullrich, 123 W. 176 823 Uniacke v. C. M. & St. P. Ry. Co., 67 W. 108 213 Union & P. Bank v. Jefferson, 101 W. tt 4 - 52 „• ., 217, 753, 913 Union Nat. Bk. v. Hicks, Admr., 67 W. 189 „ , , r . 322, 1020, 1108 v. Roberts. 45 W. 373 68, 184 Upham v. Plankinton, 152 W. 275 481, 671, 867, 1152, 1160 Upman v. S. W. Bank, 15 W. 449 518 Uren v. Walsh. 57 W. 98 793 Valentine's Will, In re, 93 W. ' 45 „ „ 48, 552, 720, 819, 900 Van Brunt v. Ferguson, 163 W. 540 952 Vance v. Davis, 118 W. .548 1171, 1234 VanDiisen v. Hinz, 108 W. 178 567 Van Etta v. Evenson, 28 W. 33 787 Van Matre v. Swank, 147 W. 93 533, 1103 Van Osdell v. Champion, §9 W. 661 313. 352 CASES CODIFIED 1277 Van Steenwyck, Extr. v. Washburn, 59 W. 483 75, 195, 245, 367, 494, 1146, 1224 Vaughn v. Walsh, 122 W. 486 40, 651 Vernon Co. Bar Asso. v. McICibbin, 153' W. 350 109 Verrinder v. Winter, 98 W. 287 60, 253, 1245 Vilas v. Bundy, 106 W. 168 71, 107, 960, 1125 Vliet v. Sherwood, 37 W. 165 594 Vincent v. Starks, 45 W. 458 131, 335, 450, 451, 1055 Vinz v: Beatty, 61 W. 645 1049 Vipond v. Townsend, 88 W. 285 912- Voell v. Kelly, 64 W. 504 105 Voelz v. Voelz, 88 W. 461 529, 823 Vogelv. Melms, 31 W, 306 471, 806, r054 Vogt v.iHecker, 118 W. 306 379 Vohland v. Gelhaar, 136 W. 75 474 -Volk v. Stowell, 98 W. 385 224, 935. Voss v. Voss, 134 W. 52 1015 W Wagner v. Buttles, 151 W. 668 959 Wakeley v. Nichols, 16 W. 588 921 Waldo v. Manitowoc Co., 54 W. 71 297 Walker v. G. R. Flouring Mill Co., 70 W. 92 448 v. Rogan, 1 W. 597 642, 816 Wall v. M. St. P. S. S. R. Co., 86 W. 48 277, 792 Wallace v. St. John, 119 W. 585 623, 742 ' Wallis v. First Nat. Bank, 155 W. 533 793 ,- y. White, 58 W. 26 562 -Wallber v. Wilmanns, 116 W. 246 429, 1061, 1127 Walrod v. Manson, 23 W. 393 708, 995 Walsch V. Call, 32 W. 159 431 Walsh v. Dart, 12 W. 635 458, 673 Walter, Will of, 64 W. 487 899, 1232 Wambold v. Gdn. v. Vick', 50 W. 456 483; 581, 796, 1098 Wanner v. Wanner, 115 W. 196 123 v. Wanner, 134 W. 71 124 Warburton v. Williams, 116 W. 557 176 Ward v. Borkenhagen, 50 W. 459 885 v. Clark, 6 W. 509 . 1043 v. Russell, 121 W. 77 394 v. Walters, 63 W. 39 . '. ■' 22, 1095 Ward, Will of, 70 W. 251 739( 970 Warder v. Baldwin, 51 W. 450 ; 398 v. Fisher, 48 W. 338 561 Warner v. Heiden, 28 W. 517 542, 768 v. Trow, 36 W. 195 . 984 v. Walters, 63 W. 39 1095 Washburn v. Fletcher. 42 W. 152. 275, 1250 Washington Co. v. Schrupp, 139 W. 219 Washburn L. Co. v. Swanby, 131 W.' 1 ' 22 Waterbury, Will of, 163 W. 510 266 Waterman v. Dutton, 6 W. 265 274, 949, 1033 Waterhouse v. Freeman, 13 W. 339 101 Watkins v., Brant, 46 W. 419 103, 1164 • v. Zwiet'usch, 47 W. 513 , 934 Watters v. McGuigan, 72 W. 155 223 Watts v. Owens, 62 W. 512 687 Wausau Boom Co. v. Dunbar, 75 W. 133 Wawrzyniakowski v. Hoffman &.B. Mfg. Co., 137 W. 629 108, 354, 1191 Weadock v. Ray, 111 W. 489 478 Weatherby v.' Meiklejohn, 61 W. 67 ' 853 Wendel v. Durbin, 26 W. 390 233 Wenclt v. Ziegenhagen, 148 W. 382 722 Weidner v. Standard L. & A. Ins. Co., 130 W 10 ' 4 Weigell v. Gregg, 161 W- 413 837, 894, 1078 Weiner v. Whipple, 53 W. 298 809, Weir v. Mosher, 19 W. 311 321, .424 v. Simmons, 55 W. 637 244 Weisbrod v. C. & N-W. Co., 18 W. 35 v. Daenicke, 36 W. 73 ,,,}\WX Webber v. Webber, 1Q8 W. 626 255, 1147, 1205 Webster-Glover L. & M. Co. v. ISt. Croix Co., 71 W. 317 • 82. 834 Webster v. Coon, 31 W. 72 324 v. Est", of Lawson, 73 W. 561 270, 1057 v. Morris, 66 W- 366 70, 151, 247, 316, 381, 859, 870, 1123 v. Tibbits, 19 W. 438 805, 1094 Weed & M. Co. v. Oberreich, 38 W. 325 1054 Wehr v. Gimbel Bros., 161 W. 485 633, 638, 946 Weismann v. Daniels, 114 W. 240 39, 44 Weisner v. Zaun, 39 W. 188 580 Weissman v. Weissman, 156 W. '26 ■ 1023 Welch, In re Gdnsp. of, 108 W. 387 86, 291, 439, 572 Welch, Admr. v. Abbot. 72 W. 512 562 Weld v. Johnson Mfg. Co., 84 W. 537 503, 576, 587, 978, 986, 1067 Wells, Estate of, 156 W. 294 203, 1117, 1139 Wells, Fargo & Co. v. Walsh, 87 -W. 67 460 v. Walsh, 88 W. 534 208, 461 Wells v. Am. Ex. Co., 49 W. 224 24, 852 v. 'Chase, 126 W. 202 406, 484, 782, 901 v. Perkins, 43 W. 160 1004, 1012 v. Wells, 132 W. 73 395 Welsh v. Manwaring, 120 W. 377 35, 660, 919 ! Welsher'v. Libby M. & L., 107 W. 47 631, 1022 Westcott v. Miller, 42 W. 454 236, 313 Wescott v. Upham, 127 W. 590 505, 716, 1040, 1062 West v. Walker, 77 W. 557 730 v. Ward, 26 W. 579 520 Westberg v. Chicago L. & C. Co., 117 W. 589 916 Western U. Ry. Co, v. Dickson, , 30 W. 389 -in .. 78 Weston v. McMillan, 42 W. 567 .807, 884 v. Weston, 46 W. 130 - 371, 523. Wetutzke v. Wetutzke, 158 W. 305 126, 282 Wheeler, Admr. v. Single, 62 W- 380 303, 332 Wheeler & W. Mfg. Co. v. Monahan, 63 W. 198 547 Wheeler, v. Catlin, 44 W. . 464 79, 1024 v. Hall, 41 W. 447 1004 v.. Hartshorn, 40 W. 83 79, 221, 241, 615, 677 Whereatt v. Ellis, 65 W. 639 299 v. Ellis, 103 W. 348 ' 136, 614, 1060 v.- Worth, 108 W..291 714, 1038 Whitcomb v. Keator, 59 W. 609 710'. White v. Daniell, 141 W. 273 765, 1103 v. Polleys, 20 W. 503 519, 744 Whiting v. Gould, 2 W. 552 444, 470, 566 Whitley, Admr. v. Equitable L. A. Soc, 72 W. 170 878 Whitmore v. Hay, 85 W. 240 389, 529, 1036 Whitman v. Lake, 32 W. 189 472, 596, 849 Whitney v. Robinson, 53 W. 309 228, 761 v. Traynor, 74 W. 289 599 v. Traynor, 76. W. 628 . 83 Whittlesey v. Hoppenyan, 72 W. 140 1095 W. H. Pipkorn Co. v. Tr,atnik, 161 W. 91 376 Wicker v. Comstock, 52 W. 315 431 Wiener v. Whipple, 53 W. 298 886 Wier v. Mosher,'19 W. 311 759 v. Simmons, 55 W. 637 229, 817 Wiesmann v. Daniels, 114 W. 240 34 v. Donald, 125 W. 600 24, 573 v. T. of Brighton, 83 W. 550 288 Wiesner v. Zaun, 39 W. 188 346, 736 Wilber,, In re Mary E., 52 W. 295 372 Wilber v. Wilber, 52 W. 298 372, 1224 Wilcox v. Bates, 26 W. 465 . 806, 944, 1042 v. Matteson, 53 W. 23 483, 1222 Wilkinson v. Filby, 24W. 441 397, 982 Willey v. Clark, 105 W. 22 70, 255, 352 v. Hodge, 104 E. 81 952 v. Lewis, 113 W. 618 257, 1227 Williams v. Daubner, 103 W. 521 333, 394 v. Davis, 18 W. 115 23, 128, 423, 511, 690 v. Ely,, 13 W. 1 423, 626, 777, 843, 895, 977, 1039 v. Hayes, 68 W. 248 751 v. Hoehle, 95 W. 510 485 v. J. L. Gates & Co., 146 W. 55 717 v. Ketchum, 19 W. 231 215, 471 1278 CASES CODIFIED Williams v. Lane, 87 W. 152 , 1050 v. Lane, 87 W. 152 • 1050 v. McDonal, 3 Pin. 331 232 v. Smith, 117 W. 142 307, 429, 692, 1135, 1157 v. Starr, 5 ,W. 534, 518, 759, 907, 994 719, 843 371, 725 1034 1122, 1132 726, 878 657, 679, 711 1012 211, 383, 1211 834, 913 1045 66, 1230 330, 482 1098 994 560, 1237 561 54, 283, 514 Troop, 17 W. 463 v. Williams, 46 W. 464 v. Williams, 50 W. 311 v. Williams, 55 W. 300 v. Williams, 63 W. 58 v. Williams, 82 W. 393 v. Williams, 114 W. 79 v. Williams, 135 W. 60 Williamson v. Neeves, 94 W. 656 665 Williamson, T. of, v. Darge, 71 W. 643 268 Willis v. Fox, 25 W. 646 16, 207, 500 Willow R. L. Co. v. Luger F. Co., 102 W. 636 Wilton v. Mayberry, 75 W. 191 Wilson, In re, 8 W. 171 Wilson v. Carpenter, 17 W. 512 v. Henry, 35 W. 241 v. Hunter, 14 W. 683 v. State, 3 W. 798 v. Young, 31 W. 574 Winke v. Olson, 164 W. 42? Winn v. Itzel, 125 W. 19 312, 406, 469, 565, 786, 1116, 1172, 1253 Winne v. Elderkin, 2 Pin'. 248 96, 192 v. Nickerson, 1 W. 1 5, 402, 560 Winnebago Co. v. Dodge Co., 125 W. 42 948 Winner v. Bauman, 28 W. 563 6 Winter v. Greilingj 114 W. 378 1012 - v. Winter, 101 W. 494 75, 175, 305 Wis. Farm Co. v. Watson, 160 W. 638 ' 889 Wis. Ind. Sch. for Girls v. Clark Co., 103 W. 651 297, 315 Wis. M. & F. Bank v. Durner, 114 W. 369 594 Wis. Nat. L. & B. Asso. v. Pride, 136 W. 102 330 Wis. S. F. Co. v. D. K. Jeffris & Co., 132 W. 1 812 Wis. Trust Co. v. Chapman, 121 W. 479 400, 692, 764, 979, 990 v. Wis. M. & F. Ins. Co. Bank, 105 W. 464 34, 651, 879 Wisdom v. Wisdom, 155'W. 434 568, 655 Wiswell v. Baxter, 20 W. 680 759 Wittmann, Extrx. v. Watry, 37 W. 238 58, 404, 426, 851, 960 Wochoska v. Wochoska, 45 W. 423 331, 522- Wolbert v. Beard, 128 W. 391 872, 1151, 1208 Wolf, Extr. v. Schaeffner, 51 W. 53 244, 757, 84 Wolf Co. v. Kutch, 147 W. 209 85 Wollman v. RuebTe, 104 W. 603 111 Woodbury v. Shackleford, 19 W. 55 232, 70 Woodford! v. Marshall, 72' W. 129 3, 94 Woodward v. Hill, 6 W. 143 560, 62 v. Smith, 104 W. 365 91 Woolcott, In re, 163 W. 34 78 Wright L. Co. v. McCord, 145 W. 93 375, 400 Wright v. Hardy, 22 W. 348 v. Hood, 49 W. 235 v. Jackson, 59 W. 569 v. Pratt, 31 W. 99 Wyman v. Buckstaff, 24 W. 477 v. Goodrich, 26 W. 21 Wunnicke v. Dederich, 160 W. 462 Wunderlich v. Palatine F. Ins. W. 382 72 43 545, 69 598, 110 822, 107 75' 47 93' Co., 104 344, 35! 430 Yale v. Flanders, 4 W. 96 99' Yearnshaw's Appeal, 25 W. 21 241 Yorke v. Orton, Admr., 65 W. 6 82, 17; Young_v. Brown, 53 W; 333 49 V.French, 35 W, 111 47: v. Groner, 22 W., 205 7] v. Krueger, 92 W. 361 1091 v. Murphy, 120 W. 49 101 V. Young, 157 W. 424 12( i Zahl v. Billings, 118 W. 459 301 I Zahorka v. Geith, 129 W. 498 ! 138, 778, 945, 99! ; Zarnik v. C. Reiss Coal Co., 133 W. 290 44i Ziegler v. Bark, 121 W. 533 62, 57; ' Zielica v. Worzalla, 162 W. 603 857, 105] i Zilley v. Dunwiddie, 98 W. 428 36' ! Zillmer v. Landguth, 94 W. 607 252, 35! • Zimmer v. Becker, 66 W. 527 20' v. Pauley, 51 W. 282 52' Zimmerman v. Bannon, 101 W. 407 305, 405, 468, 564, 123S v. Gerdes, 106 W. 608 99! ' Zoerb v. Paetz, 137 W. 59 334, 39! Zunker v. Kuehn, 1,13 W. 421 1101 Zwietusch v. Becker, 153 W. 213 281 v. East Mil., 161 W. 519 21< v. Luehring, ,156 W. 96 401, 121* Zwickey v. Haney, 63 W. 464 611, 81! FOREIGN CITATIONS Abbott v. Abbott, SI Me. 575 228 v. Middleton, 7 H. L. Cas. 115 247 Ackerman v. Emott, 4 Barb. 626, 636 1123 Adams v. Adams, 14 Allen 65 678 Adriance v. Brooks, 13 Texas 279, 281 613 Alberti v. N. Y. L. E. & W. R. Co., 118 N. Y. 85 ' 416, 419 Aldridge v. Muirhead, 101 U. S. 397 , 553 Allison v. Abendroth, 108 N. Y. 472 4 Alston v. Munford, ( 1 Brock. 279 744 Atkins v. Hill, Cowd. 284 678 Atwood, Trustee v. Holcomb, 39 Conn. 270 796 Am: Ins. Co. v. Oakley, 9 Paige 498 104 Ammon's Appeal, 31 Pa. St. 311 174 Armory v. Delamirie, 1 Smith's Lead. Cases 584 , 1098 Attorney General v. Bouweris, 4 Mees. & W. 191 649 Buena Vista Co., 95 U. S. 157, Babcock v. Hawkins, 23 Vt. 561 3 Bacon v. Frisbie, 80 N. Y. 394 893 Baer, Matter of, 147 N. Y. 348 1215 Bailey v. Briggs, 56 N. Y. 407 251 v. Briggs, 56 N. Y. 413 390 Baker's Appeal, 107 Pa. St. 381 417 Baker v. Baker, 4 Me. 67 370 Banks v. Goodfellow, L. R. 5 Q. B.i 549 1086 Barnard v. Barnard, 119 111. 92 52 , Barnes', Admr. v. Lloyd, 1 How. (Miss.) 585 3 Barnes v. Moore's Est., 86 Mich. 585 551 , Barnett v. Harsbarger, 105 Ind. 410 550 Barnsley v. Powel, 2 Vesey, Sen. 284 387 Bash v. Bash, 9 Pa. St. 260 1231 Basket v. Hassell, 107 U. S. 609, 610 485 Bayard v. McLane, 3 Har. (Del.) 208 143 Beamish v. Beamish, 9 H. L. Cas. 274 728 Becker v. Foster, 64 111. App. 192 1110 Bedell v. Hoffman, 2 Paige 200 615 Beeler v. Dunnl 49 Am. Dec. 761, 3 Head. 87 18 Benson v. Corbin, 145 N. Y. 351 ,252 Bessemer L. & I. Co. v. Jenkins, 111 Ala. 135 319 Besondy, In re,, 32 Minn. 385 18 Billings' Appeal, 106 Pa. St. 558 223 Blake v. Blake, 7 la. 46 218 v. Hawkins, 98 U. S. 315 256 Blumenthal's Petition, 125 Pa. St. 412 719 Bonett v. Stowell, 37 Vt. 258 819 Boston & M. R. Co. v. Bartlett, 3 Cush. 227 276 Boyd v. Wyley, 18 Fed. Rep. 355 944 Boyse v. Rossborough, 6 H. L. Cas. 2 ,'1165 Bradley v. Angel; 3 ? N. Y. 475 ' 1021 Bradstreet v. Bailey, 4 Abb. Pr. 233 359 Brant v. Virginia Coal ■&:■ Iron Co., 93 , U. S. 326 397 Brettun v.' Fox, 100, Mass. 234 524 Brewster v. Sackett, 1 Cow. 571 112 ■" v. Wakeford, 22 -How. U. S. 127 608 Bright v. Boyd, 1 Story 478 ' 385 Bronson v. Fitzhugh, 1 Hill 186 774 Brown, In re, 154 N. Y. 314 1205, 1213 1279 Brown 160 662 v. Clark, 77 N. Y. 369 ,417V -v. Knapp, 79 N. Y. 143 1009 Browning v. Harris, 99 111. 456 374 Buchan v. Sumner, 2 Barb. Ch. 135 1065 Bulkley v. Inhabitants of Williamstown, 3 Gray 493-495 ft 366 Bullen v. Wisconsin, 240 U. S. 625, 631; s. c. 60 Law Ed. 830, 835 593 Bullock V. Campbell, 9 Gill 182 1057 Burling v. Paterson, 9 Car. & P. 570 415 Burnham v. Treasurer, 212, Mass. 165 594 Cable v. Cahle, 146 Pa. St. 451 529. Cadell v. Palmer,- 1 CI. & F. 372 841 Cahill v. Patterson, 30 Vt. 592 463 Campbell v. Thatcher, 54 Barb. 386 1186 Cannady v. Lynch, 27 Minn. 435 1240 Carpenter v. King, 9 Met. 511 1055 Cartwright v. Vawdry, 5 Ves. -530 253 Case of Broderick's Will, 21 Wall. 503 478 Central T. Co. v. Chicago A. Assn.; 24 U. S. 581 942 Chandler i v. People's S. Bank, 61 Cal.,401 612 Chapman v. Brown; 6 Ves. 404 153 Chase v. Bates, 81 Me. 182 85 v. Chase, 2 Allen 101 , 723, Chipman v. Montgomery, 63 N. Y. 221 .251 Cilley v. Cilley, 34 Me. 162 :■ .. 414 Claflin v. Holmes, 202 Mass. 157, 159 685 Clark v. Baird;; 9 N. Y. 183 437 v. Bever, 139 U. S. 96 358 v. Billings, 59 Ind. 509 774 v. Blackington, 110 Mass. 373 649 v. Fisher, 1 Paige 171 1082 v. Pinney, 6 Cow. 297 i 835 Clay v. Layton, 134 Mich. 317 . 1235 Coffin v. Anderson, 4 Blackf. 395 , , 1098 Coleman. Will of, 111 N. Y. 220 416, 1092 Colt v. Larkin, 9 Cow. 320 424 Colton v. Ross, 2 Paige 396 898 Commw. v. Stevenson, 142 Mass. 466 114 Comm. v. Sturtivant, 117 Mass. 122 ,437 Comstock v. Crawford, 3 Wall. 396 625 Conant v. Little, 1 Pick. 189 370 Connecticut v. Jackson, 1 Johns. Ch. 17 610 Conn. Mut. L. Ins. Co. v. Lathrop, 111 U. S. 612 Converse v. Burrows, 2 Minn. 239 v. Converse, 21 Vt. 168 Cook v. Brown, 34 N. H. 460 v. TuHis, 18 Wall. 338 Coon v. Denmis, 111 Mich. 450 Cooper v. Reynolds, 77 U. S. 308 Craig v. Leslie, 3 Wheat. 56'3 Crane v. Crane, 31 la: 296 Cromwell v. County of Sac, 96 U. S.-51 Cunio v. Bessoni, 63 Ind. 524 Curtiss v. McDougal, 26 O. St. 66 D Dair v. U. S., 16 Wall. 1 Dana v. Murray, 122 N. Y. 614 Davidson v. Cornell, 13"2 N. Y. 228 441' 712 1082 392 929 29 653 1 381 688 910 571 580 135 250 438 1280 CITATIONS Davie v. Briggs, 97 U. S. 628 878 Davis v. Gaines, 104 U. S. 386 899 Davison v. Rake, 45 N. J. Eq. 767 678 Dawson v. McFaddin, 22 Neb. 131 486 Dawson T: & G. Co. v. Woodhull, 67 Fed. Rep. 451 • , 343 Dayton v. Est. of Dakin, 103 Mich. 65 74 Deave's Est., 140 Pa. St. 242 721 Delafield v. Parish, 25 N. Y. 9, 29 1082, 1083, 1088 De Mora v. Concha, L. R. 29, Ch. Div. 268 454 Denning v. Butcher (la.), 59 N. W. Rep. 69 438 De Peyster v. Clendining, 8 Paige 295 257 Dew v. Clark, 1 Add. 279 1083 v. Clark, 3 Addams 79 597, 1083 DeWitt v. Barly, 17 N. Y. 340 437 Dice v. Irwin, 110 Ind. 561 550 Dickerson v. Colgrove, 100 U. S. 578 -327 Dodge v. Pond, 23 N. Y. 69 ' 381 Doe v. Nepean, 5 Barn. & Adol. 86 878 Doolittle v. Lewis, 7 Johns. Ch. 46-9 761, 865 Dossett, In re, 2 ; Okl. 369 I 1079 Dunbar v. McGill', 64 Mich. 676 404 Dubois v. Del. & HudsoA Canal Co., 4 Wemd. 285 939 Dunklee v. Railroad Co., 24 N. H. 489 228 Dunn v. German Amer. Bk., 109 Mo. 90 920 v. Hewitt, 2 Denio, 637 978 Durkee v. Vfe C Ry.' Co., 29 Vt. 127 1075 Dyett v.- Pendleton, 8 Cow. 325 81 Eby v. Eby's Assignee, 5 i>a, St. 435 1251 Edwards v. Fry, 9 Kans. 425 526 Ela v. Edwards, 16 Gray 91 415 Elwood v. W. U. Tel. Co., 45 N. Y. 549 1009 F ', Fairchild v. Holly, 10 Conn. 175 832 Fellers v. Fellers, 54 Neb. 694 731 Fera v. Widkham, 135 N. Y. 223 1022 Finch v. Finch, 14 Ga. 362 903 Findon v. Parker, 11 Me'es. & W. 675 143 Fire Ins. Asso. v. Wickham, 141 U. S. ' 564 1027 Fisher v. Hall, 41 N; Y. 416 334 Fitch v. Archibald, 29 N. J., Law R. 160 805 Floyd v. Priester, 8 Rich. Eq. 248 7 Foley v. Bushway, 71 111. 386 38 Forse's Case, 2 Coke 439 970 Foster v. Mansfield, 3 Met. 412 393 Fox v. Hardin, 7 Cush. 516 222 Franklin S. Bank v. Taylor, 131 111. 376 1045 Frazier v. Gains, 58 Tenn. 92, 96 . 789 Freeman v. Atl. M. Ins. Co., 13 Abb. Pr. 124 ' - 8 v. Foss, 145 Mass. 361 1009 Frederick v. Perkinson (Com. PI. N. Y.), 17 N. Y. Supp. 501' 887 Fuller v. Linzee, 135 Mass. 468 1072 Gaines v.' Chew, 2. How. 619 386 Galway v. Metropolitan El. R. Co., 128 N. Y. 132" 662 Gamber v. Gamber, 18 Pa. St. 363 735 Gaudy v. Macauley, L. R. 31 Ch. Div. 1 1166 Gibbons v. Mahon, 136 U: S. 549 1137 Gibbs & S. M. Co. v. Brucker, 111 U. S. 597 1051 Gilbert v. Gilbert, 22 Ala. 529 1164 Gill v. Bickwell, 2 Cush. 355 110 Gilman v, Andriis, 28 Vt. 241 769 Given v. Hilton, 95 U. S. 591, 594 254, 382 Going v. Emery, 16 Pick. 107 ' . 381 Gore, v. Gilison, 13 Mees. & W. 623 564 Goss v. Lord Nugent, 5 Barn. & Ad. 58 65 ^Green v. Morse, (Neb.) 77 N. W. Rep. 925 1079 Greenfield's Est., 14 Pa. St. 489 1166 1 Greg \ Gridl Gregory v. Lee, 64 Conn. 407 582 Gridley v. Gridley, 24 N. Y. 130 678 Grignon's Lessee v. Astor, 2 How. 319 625, 647 Griffin v. Bonham, 9 Rich. Eq. 77 503 Grumley v. Webb, 44 Mo. 444, 100 Am. Dec. 304 1027 Grymes v. Hone, 49 N. Y. 17 483 Hadley v. Baxendale, 9 Exch. 341 317 v. Baxendale, 26 Eng. Law & Eq. 398 317 Hafer v. Hafer, 33 Kas., 449 374 Hamill v. Henry, 69 Iowa 752 , 551 Hallett's Estate, 13 Ch. Div. 696 1133 Hampton v. McConnel, 3 Wheat. 235 453 Hargrave v. Hargrave, 9 Beav. 552 687 Harkness v. Hyde, 98 'tJ. S. 476 - 95 Harris v. Currier, 44 Vt. 468 > 1007 Harrisons v. Harrison's Admx., 44 Am. Dec. 365, 369 86S Harwood v. Lowell, 4 Cush. 312 235 Hastings v. Palmer, 20 Wend. 225 936 Hatch v. Dana, 101 U. S. 205 1047 Hawkes v. Saunders, Cowp. 289 678 Hawkins v. Ball's Admr., 18 B. Mon. 816, 68 Am. Dec. 755 223 Hawley v. Cramer, 4 Cow. 717 58C Haynes v. Harris, 33 Iowa 516 844 Heard v. Lodge, 20 Pick. 58 105S feath v. West, 28 N. H. 101 58C ennessey v. Woolworth, 128 U. S. 438 103£ Henry v. Henry, 11 Ind. 236, 71 Am. Dec. 354 1027 Hepburn v. Dunlop, 1 Wheat. 179 1035 Henthorn v. Fraser, (1892) 2 Ch. 31 277 Herbert v. Wren, 7 Cranch. 370 374 Hess' Estate, 57 Minn. 282 40! Hesterberg v. Clark, 166 111. 241 87 Higbe v. Leonard, 1 Denio. 186 66C Higgins v. Senior, 8 M. & W. 834 884 Hill on Trustees, 175 1121 Hilts v. State in 57 L. R. A. at p. 155; s. c. 61 Neb. 589 72! Hobbs v. McLean, 117 U. S. 576 222 Hobson v. Hale, 95 N. Y. 605 - 38! Hoes v. N. Y., N. PI. & H. R. Co., 73 App. Div. 363 • 92C Hoffman S. C. Co. v. Cumberland C. & I. Co., 16 Md. 45'6 102 Hoitt v. Skinner, 99 la. 360 79( Hblcomb v. Holcomb, 2 Barb. 23 761 Hoge v. Hofee, 1 Watts. (Pa.) 163 56i Holland v. Hopkins, 2 Bos. & P. 243 Hi Holliday v. Ward, 19 Pa. St. 485 461 Hollowell v. Cole, 25 Mich. 345 84' Holmes, v. Greene, 7 Gray 299 36! Horton v. McCarty, 53 Me. 394 IK Hosack v. Rogers, 8 Paige 238 77' Howland v. Blake, 97 U. S. (7-Otto), 624 93! Howry v. Eppinger, 34 Mich. 29-33 91( Hudson Canal Co. v. Penn. Coal Co., 8 Wall. 288 22; Hudson v. Robinson, 4 M. & Sel. 475-478 2' Hume v. Bowie, 148 U. S. 245 107S Hunt v. Rousmanier, 8 Wheat. 215 ' 75! Hunter v. Frost, 47 Minn. 1 67] Huntsman v. Fish, 36 Minn. 148 50' Hurst v. Watkis, 1 Camp. 68 Hi Hyat v. Hare, 1 Comb. 383 106! Hyde v. Frey, 28 Fed. Rep. 819 55; v. Skinner, 2 P. Wms. 196 22' IdleV v. Bowen, 11 Wend. 227 Ingold v. Symonds, 125 la. 82 Ives's Est., 182 Mich. 699 Jackson v. Phillips, 14 Allen 539 v. Roberts, 14 Gray 546 v. Robins, 15 Johns. 169 81 191 26( 15) 62: 70! CITATIONS 1281 . Jackson v. Schoonmaker, 2 Johns. 234 Jaffray v. Davis, 124 N. Y, 164 Tames, Ex Parte, 8 Vesey 337 Jenkins v. Stetson, 9 All. 128 Johnson v. Harmfin, 94 TJ. S. 371 v. Smallwood, 88 111. 73 Willis, 7 Gray 164 326 4 1120 121 572 797 1049 ,', Johnston v. Standard Mining Co., 148 U. '-*;": S. 370 662 '.',, Jordan v. Nat. S. & L. Bank, 74 N. Y. ' '" 467 1021 Juilliard v. ChafFee, 92 N. Y. 529 81S I? King v. Inhabitants, ' etc. 5 Adol. & EL. 180 686 Kingsbury v. Buckner, 134 U. S. 650 292 Kearney v. New York, 92 N. Y. 617 1009 Kellogg v. Johnson, 38. Conn. 269 628 v. Krauser, 14 Serg. & R. 142 '• 437 Kent v. Dunham, 106 Mass. 586 678 v. judkins, 53 Me. 160 228 v. Morrison, 153 Mass. 137, 10 L. R. A. 756 863 Kerr v. Day, 14 Pa. St., 112, 53 Am. Dec. 526 277 ■ Kerrigan v. Rautigan, 43 Conn. 17 797 Kettle'well v. Watson. 21 Ch. Div. 707 106 Knapp v. Windsor, 6 Cush. 156 347 Knouff v. Thompson, 16 Pa. St. 357 398 Knox v. Jones, 47 N. Y. 389 • 840, 1201 • Kock v. Emmerling, 22 How. (U. S.) 69 185 - Kuhn v. McKay. (Wyo.) 51 Pac. Rep. 205 613 Kulcnkamp v. Groff, (Mich.) 1 L. R. A. 594 912 Trackman v. Wood, 25 Cal. 147 Lacy v. Kynaston, 2 Salkeld 575 ,,iXaing v. Rigney, 160 U. S. 531 tiLandon v. Comet, 62 Mich. 80 T'Lawrence v. Wright, 23 Pick 128 " ; Leamon v. McCiibbin, 82 111. 263 Leavitt v. Bangor, 41 Me. 458 Lee v. Clark, 53 Minn. 315 Leonard's Est., 95 Mich. 295 Leonard v. Leonard, 2 Allen 543 'Lessee of Neiswanger v^ Gwynne, 13 Ohio 74 Ligare v. Semple, 32 Mich. 438 Lindsay v. Tackson, 2 Paige 581 f Little v. Giies, 25 Neb. 313 1 Lockart v. Forsythe, 49 Mo'. App. 654 ' >Lockwood v. Kelsea, 41. N. H. 185 " :. v.' Thome, 11 N. Y. 170 Loomis v. Newhall, 15, Pick. 159 Lord v. Parker, 3 Allen 127 Loring, Admr. ,v. Steineman, 1 Mete. 204 Lowering v.' Minot, 63 Mass. 157 ' Lowber v. Mayor, N. Y., 26 Barb. 262 Lund v. Tyngsborough, 9 Cush. 36 796 618 455 175 844 844 819 790 573 228 1100 376 1022 1202 224 24 6 1017 551 628 684 1187 964 M Machem v. Machem, 28 Ala. .374 1235 Mactier's Admrs. v. Frith, 6 Wend. 103, _ 115 277 Magpun v. III. T. & S. Bank, 170 U. S. , 283 Manice v. Manice, 43 N. Y. 303 Mann v. Hyde, 71 Mich. ,278 v. Pearson, 2 Johns. 37 589 1200 254 245 - .Mansfield v. N. Y. C. & H. Ry. Co., 114 , i- N Y 331 °09, ° 13 Marine 'Ins. Co. v. Hodgson, 7 Cranch 332 477 Markham v. O'Conor, 52 Ga. 183 398 Marshall v. ,Co!ernan,,,187 111. 556 12 Martin v. Martin, 44 Kan 295 122 v. Smith, 5 Bin. 16, 6 Amer. Dec. 395 621 Marvin v. Schilling, 12 Mich. 356 , 933 , ;,Mason v. Fearson, 9 How. U,i ,S. 249. 233 Zimmerman — 81 Masterton v. Mayor of Brooklyn, 7 Hill 61 222 Mather v. Kinike, 51 Pa. St. 425 756 Matthews v. Baxter, L. R. 8 Exch. 132 564 Mattison v, Marks, 31 Mich. 423 914 Maxwell v. Stewart, 22 Wall. 27 455 May v. Le Qlaire, 11 Wall. 217 327 McAlpine v. Foley, 34, Minn., 252 224 McArthur v. Scott, 113 U. S. 340, 1201, 1202 McBride's Appeal, 72 Pa. St. 480 358 McCabe v. Matthews, 155 U. S. 550, 1036 McCall's Admr. v. Capehart, 20 Ala. 526 143 McCarthy v. Kearnam, 86 111. 292 483 McClanahan v. Williams, 136 Ind. 30 349 McClaskey, In're, 2:Okl. 568 1079 M'Crea v. Purmort, 16 Wend. 460 1249 McFadden v. Allen, 134 Ni Y. 489 448 McGuire v. Maloney, 1 B. Mon. 224 553 McGoon v. Scales, 9 Wall. 23 935 Mcintosh v. Aubrey, 185 U. S. 122 432 McLeod, v., Dell, 9, Florida 451 779 McLouth v. Hunt, 154 N. Y. 179 1137 McMilleh v! Lee, 78.111. 443 797 Meakings v. Cromwell,' 5 N. Y. 136 866 Meigs' Appeal, 62 Pa. St. 28 446 Melvin v. Wood, 3 Keyes, 533, 4 Abb. Pr. (N. ,S.) 438 112 Menendez v. Holt, 128 U. S. 523 : 662 Merrill v. Nat., Bank, 173. U. S. 13.1 < 745 Mills v. Hoag, 7 Paige 18 ' 81 1 Miskey's Appeal, 3 Pennypacker, 409 1166 Mitchell v. Vermont C. M. Co., 67 N. Y. 280 1078 Mohr v. Manierre, 101 U. S. 417 576 Monroe's Appeal, 181 Pa. St. 233 719 Moon v. Towers, 8 C. B. (N. S.) 611 800 Moses v. Bierling, 31 N. Y. 462 185 Moulin v. Columbet, 22 Cal. 508 1012 Murphy v. Collins, 121 Mass; 6 458 , v. Omaha (Neb.), 95 N. W. 680' 178 Mut. L. Ins. Co. v. Shipman, 119 N. Y. 324 864 Mygatt v. Coe, 152 N. Y. 457 740 N Neale v. Neales 9 Wall. 1 ,486 Neill v. Neill, 31 Miss. 36 503 Newconib 1 v. Williams, 9 Met. 525, 534 . 34 Newell v. Nichols, 75 N. Y. 78 1072 New England T. Co. v. Eaton, 140 Mass. 532 ' ,' 1136 Newman, Est. of, 75 Cal. 213 998 N. Y. & H. R. R. Co: v, Story, 6 Barb. 419 "' 222 N. Y. L. Ins. & T; Co. v. Hoyt, 161 N. Y. 1, 9 660 Nicdll v. Walworth, 4 Denio 388 1200 Norton v. Nichols, 35 Mich. 148 397 v. Shelby Co., 118 TJ. S. 425, 442 674 Nugent v. Powell, 4 Wyo. 173 52 Ogden v. Saunders, 12 Wheat. 213' 634 Oliver v. Piatt, 3 How.' 333 (410) 327 Opinions' of the Justices, 5 Met. 587, 589 368 !Osborn v. Jefferson Nat. Bank, 116 111. 130 60 O'Shea v. Wilkinson, 95 Cal. 454 .363 Owen v. Miller, 10 Ohio St. 136 ; 649 Patch v. White, 117 U. S- 210 71 Paine v. Barnes, 100 Mass. 470 701 Parker v. Chancellor, 78 Tex. 526 - 343 Parmenter v. B. H. T. & W. R. Co., 37 Hun 354 343 Parsons v. Lyman, 20, N. Y. 103 ,75 Parton v. Williams,, 3 iBarn. & Aid. 341 975 Pell v. Ball, 1 Cheves Eq. 99 1072 People v. Remington, 121 N. Y. 328 '745 v. Sullivan, 115 N. Y. 185 1079 1282 CITATIONS People ex rel. Ellert v. Cogswell, 113 Cal. 129 155 People ex .rel. Moore 'v. Mayor, 5 Barb.. 43 1255 , ■ People ex rel. Van Voast v. Van Slyck, 4 Cow. 297 h 1255 Phelps' Extr. v. Pond, 23 N. Y. 80 1201 ! Philadelphia W. Co. v. Detroit W. L. W. " 58 Mich. 29 941 Phipps v. Acton, 12 Bush. 375 524 Pickering v. Pickering, 6 N. H, 120 539 L Piers 'v.' Piers, 2 H. L. Cas. 331 725 'Pierson v. Hcisey, 19 la. 114 797 Pinney v. McGregory, 102 Mass. 186 649 Pittsburg v. Neal, 22 How. 96 790 Pollard v. Bailey, 20 Wan. 520 457 Poor v. Hudson Ins. Co., 2 Fed. Rep. 432 1245 Potter v. Jacobs, 111 Mass". 32 ' 1035 v. Webb, 2 Greenl. 257 646 ■Tray v. Hegeman, 98 N. Y. 351 635 ' Probate Judge "v. Stevenson, 55 Mich. 320 505 P., W. & l Bi E. R. Co. v. Howard, 13 "'■ How. (U. S.) 307,' 344 222 \ ., ' o ,•: "^ • Queen v. Millis, 10 CI. & F. 534,' A. D. .. 1844, '-" ' 728 Quigly v. 1 Harold, 22 111. App. 269 1008 Quimby v. Shearer, 56 Minn. 538 224 , ■, ' i, oo> , ;,; ., i >.■: - ! : R Randall v. Constans, 33 Minn. 334 810 ' Rawson v. Bargue, Style's R. 81 234 Read v.! Williams, 125 N. Y. 571 863 - Reid v. Burns, 13 O. St. 49 117, 'Remsen v. Brinckerhoff, 26 Wend. 325 415 'Reske v. Reske, 51 Mich. 541 526 Reynolds' Extrs., 16 N. Y. 257 ' " 680 Reynolds v. Robinson, 110 N. Y. 654 810 Rex v. Wright, Russ. & R. 456 435 ■! Robertson v. Pickrell, 109 U. S. 608 454, 460 Root v. Taylor, 20 Johns. 137 1020 Rothwell v. Dewees, 2 Black. 613 618 Rhodes v. Childs, 64 Pa. St. 23, 24 483 v. Weldy, 46 Qhip St. 234 60 , Rickman v. Carstairs,5 B. & Ad. 651 229 Richardson v. Boynton, 12 Allen 138 1061 Robinson v. Hutchinson, 26 Vt. 47 1088 Riddle v. Whitehill, 135 U. S. 621 . . 713 , Ridgeway v. Hungerford Market Co., 3 Ad. & Ellis 171 747 Rose, v. Post, 56- N, Y. 603 594 v. Himely, 4 Cranch 241 454 Ross v., Doe,, 1 Pet., .664 1100 ,,,Royce v. Allen, 28 Vt. 234 888 , Rutherford, Matter of, 196 N. Y. 311, 315 685 Ryan v. Andrews, 21 Mich. 229 346 Ryegate v. Wardsboro, 30 Vt. 746 233 ' ^Ryerss V. Wheeler, 22, Wend. 148 228 Saltonstall v. Sanders, 11 Allen, 446 148 Sanford v. Peck, 63 Conn. 486 1246 Sargent's. Admr. v. Kimball's Admr., 37 Vt. 320" 270 'Shelley's Case, Rule in, 1 Coke 219 973 . Schetler v. Stewart, 133' la. 320 334 ' Schettler v. Smith, 41 N. Y. 328 840 Schofield v. Horse Springs C. Co., 65 Fed. Rep. 433 1079 Scholfield v. Templer, Johns. 156 , ,467 Schroeder v. Young, 161 U. S. 334 987 'Schwab v. Pierro,,43 Minn. 520 1009 ' Scully v. Scully's, 28 la; 548 ' 1012 Sears V. Dewing, 14 Allen 413 756 v. Shafer, 6 N. Y. 268 1167 : Seymour v. 1 Watson, 4 Blackf. (Ind.) 555 448 Sharon v. Terry, 36 Fed. 337 ' ' 29 Sharpless v. Mayor, etc., 21 Pa. St. 161 ' 224 246 v. Welsh, 4 Dall. 279 ' 775 Sheridan v. New York, 68 N. Y- 30 Sherman v. Wright, 49 N. Y. 228 , Siboni v. Kirkman,, 1 Mess. & W. 418 Sillyman v. King, 36 la. 2,07 Simcoke v.' Grand Lodge, 84 la. 383 Sleeper v. Paige, 15 Gray 349 Smiles v. Hastings, 22 N. Y. 217 v. Hastings, 24 Barb. 44 ' Smith v. Arnold, 5 Mason 414-9 v. Ayer, 101 U. S. 320, 326 ' v. Bell,,, 6 Peters 68, , , v. Denny, 37 Mo. 20 v. Jefferson, 10 Colo. 17 v. Kay, 7 H. L. Cas. 750, 759 v. Richards, 13 Peters 26 v. Smith, 5 O. St. 32 Smith's Appeal, 23 Pa. St. 9 : Southwortfl v» Adams, 11 Biss. 256 Spaulding v. Backus, 122 Mass. 553 Spalding v. Mason, 161 U. S. 375, 396 Spear v. Robinson, ,29 Me. 531 Speidel v. Henrici, 120 U. S. 377, 386 Sprague v. Beamer, 45 111. App. 17 Stanilahd v. Willott, 2 Mach. & "G. 664 'Stanley v.. Green, 12 Cal., 148 -State 'v:' Madison, 63 Me. 546 v. Peok, 53 Me. 284, State ex rel. Griffith v. Osawkee, 14 Kan. 428 504 224 738 660 368 228 228 110 184 240, 246 844 1095 1165 464 725 1203 721, 969 1021 613 660 566 496 484 228 1255 135 421 Stead v.Dawber, 10 Ad. & El., 57 ,Stebbins v. Lathrop, 4 Pick. 33, 42 'Steel v. Houghton, 1 H. Bl. 53 Stevensoni v. Bruce, 10 Ind; 397 v. McLean, 5 Q. B. Div. 351 . v. O'Neal, 71 111. 314 Stickney v. Stickney, 131 U. S. 227 Stires v. Van Renssalaer, 2 Bradf. Sur. 172 Stovall v. Banks, 10 Wall. 583 Streeter v. Paton, 7 'Mich. 341 Stunz v. Stunz, 131 111. 210 Swan v. Hammond, 138 Mass. 45 Swett v. Boardman, 1 Mass.' 258 Swift v. Wells, 2 How. Pr. 79 v. Wiley, 1 B. Mon. (Ky.), 114 828 65, 940 900 975 581 277 91C 557 622 130, 105S 933 49E 97C 414 i 415 Talcott v. Field, 34 Neb. 611 . 604 Tallman v. Franklin, 14 N. Y. 589 10, 22i Tarbell v. Jewett, 129 Mass. 457 42S Tarrant v. Ware, 25 N. Y. 425 412 ,Tate v. Leithead, Kay> 658 48; Taylor v. Ainsworth, 49 Neb. 696 11H Terrifl, In re, 52 Kas. 39 107! Terry v. Wheeler, 25 N. Y. 523 805, 97i ..,. v. Buffington, 11 Ga. 342 1P8! Thackrah v. Haas, 119 U. S. 499 112i Thayer v. , Homer, 11 Met. .104 95( Thellusson v. Rendlesham, 7 H. L. Cas. 494 , i 24( Thomas v. Bennett, 56 Barb. 197 58: v. Safe D. & T. Co., 73 Md. 451 491 Thompson v. Dekum, 32 Ore. 506 1061 v. Whitman, 18 Wall. 457 45; Thorman v. Frame, 176 TJ. S. 350, 356 102! v. Frame, 176 U. S. 350; 44 L. ed. 500 : ' ,45' •Thorn v. Garner, 113 N. Y„ 198 ' , 67! Toland' v. Sprague, 12 Peters 300 i v. Wills, 59 Ind. 529 71: Tompkins v. Tompkins, UN. J. Eq. 512 79 Torrey v. Bank * of Orleans, 9 Paigq 649 ■"•'*' H20, 114 Townsend v.'Burnham,' 33 N. H. 270 79 Tripp v. Childs, 14 Barb. 85 55 Trustees of Sch. Dist. ' v. Stocker, 42 N. J. L. 115 •' 63 Turner v. Collins, L. R. 7 Ch. App., 329 116 Tupper v. Cadwell, 12 Met. 559 ' 58 v. Gibb (N. J. Ch.) 22 Atl. Rep. 580 - 67 Tyler v. Gardiner, 35 N. Y. 559 116 CITATIONS 1283 u Uhlman v. New York L. I. Co., 109 N. Y. 421 604 Underwood v. Simonds, 12 Met. 275 807 U. Pac. R. Co.. v. Hand, 7 Kas. 380 1079 U. S. v. Alexandria, 19 Fed. Rep. 609 662 v. Arnold, 1 Gall. 348 133, 136 U. S. Bank v. Covert, 13 Ohio 240 760 U. S. v. Giles, 9 Cranch. 215 132 Union Bank v. Mott, 27 N. Y. 633 617 U. S. Bank v. Smith, 11 Wheat. 171 335 Univ. of L. v. Hammock, 127 Ky. 564 600 Van Deusen v. Blum, 18 Pick. 229, 230 691 Van Rensselaer v. Jewett, 2 N. Y. 135 .613 Vanderpool v. Van Valkenburgh, 6 N. Y.' 190 899 Vassar v. Camp, 11 N. Y. 441 1250 Villard v. Robert, 49 Am. Dec. 654 18 Vogel v. Lehritter, 139 N. Y. 223 417 Voorhis v. Child's Extr., 17 N. Y. 354 1064 W t Wales v. Holden, 209 Mo. 552 53 Walker v. Syms (Mich.), 76 JST. W. Rep. 320 1082 Wallace v. Longfield, 105 Ind. 522 1009 v. Wainwright, 87 Pa. St. 263 1151 Warner v. Bates, 98 Mass. 274 870 Washbon v. Cope, 144 N. Y. 287 252 Waters v. Stickney, 12 Allen 1 ' 899 Watson v. McLaren, 19 Wend. 557 491 Welles v. Yates, 44 N. Y. 525 951 Whaftn v. Gordon, 95 Fed. 305 717 Wharton v. Anderson, 28 Minn. 301 10 White v. Casten, 1 Jones Law 197 969 Whitehouse v. Bolster, 95 Me. 458 568 Whitney v. Thacher, 117 Mass. 523 436 Wilkinson v. Deming, 80 111. 342 800 Williams v. Baldwin, 7 Vt. 503 553 Wills v. Murray, 4 Exch. 865 224 Wilmot v. Wilmot, 8 Ves. Jr. 10 1244 Wilson v. Powers, 131 Mass. 539, 540 279 v. South, P. C. 70 111. 46 1172 Wingrove v. Wingrove, L. R. 11, Prob. Div. 81 1171 Winship v. Bass, 12 Mass. 201, 203 503, 956 Wirth v. Wirth, 149 Mich. 687 972 Wiswell v. Wiswell, 35 Minn. 371 504 Wolfe v. Howes, 20 N. Y. 197 1030 Wolford v. Powers, 85 Ind. 294 218 Woodbury v. Woodbury, 141 Mass. 329 1167 Woodgate v. Fleet, 44 N. Y. 1-13 961 Wood's Will, In re, 11 N. Y. Supp. 157 421 Workman v. Guthrie, 5 Casey 512 1034 Worrall v. Bailey, 3 Est. Rep.*263 1166 Wright v. Simpson, 6 Ve'sey, Jr. 714 1054 v. Wright, 99 Mich. 170 1011 Wright's Heirs v. Minshall, 72 III. 584 971 Wyckoff v. Wyckoff, 48 N. J. Eq. 113 681 Yale v. Dederer, 18 N. Y. 276 1054 Yerkes v. Yerkes, 200 Pa. St. 419 384 STATUTES CITED (Wis. Stats, of 1898, and since) Sec. Page 573f .316 600 599, 828 604e 556, 828 604q 556, 599, 828 664 " , . 1245 694 786 899 214 903 214 978 297, 298 1033 1073 1040 , 1073 1044 1073, 1074 1044b 1074 1059 , 1074 1087-1 et al 589, 590, 592 1087-1, subd. 3 591, 592, 1074 1087-1, subd. 4 594. 1087-2 : 590 1087-3 590 1087-15 et^l 1074 1087im-2 1075 1087m-2, siihd. 3 1074 llD87m-4, subd. i 1074 1087m-10 1075 1130 1094 1166 587 1276, 1277 754 1279 et al 515 1436 440 1437 319 1499 829 1500, subd. 4 and 7 827 1502 826 1502 et al 829 1502, 1504 827 1512 827 1513 828 1547 315 1548, subd. 3 , 719 1675, 1676-21 918 1675, 1684-7 69 1675-2 .. 917 1675-20 917 1675-50 914 1676-27 917, 918 1679 836 1679-1, subd. 4a 918 1680 - • 915 1684-5 162 16841-4 ,.,,...,. 979 1684t-12 : 1220 1684M3 1220 1688, .1689 r SJ5 1689 6 1 4 > 766 1691 , 61* 1702d -, •• ?23 1728a , -.-.■ 585 1728b ,,.■■ 585 1753 1181 1771 , •••■ 557 1786 ..." ••■V?i5 179Th H35 1807-1, subd. 7..., ,.„..:.... 592 2000 et al , J'? 2024-77k, subds. 10, 11, 13 1135 Sec. Page 2029 251 2033 1213 2033, 2037 351 2034 250, 372 2035 ' 251 2037 25.0, 1205, 1206,1 1207, 1210 2038 '. i 840 2038, 2039 ; 153,840,1152 2039 150, 153, 156, 158, 255, 839, 840, 842, 1147 2041 ,,.,.. 251 2046 1209 2050 246 2052 973 2060 1152 2060, 2063 1213 2060,2065 ...'..... 779 2061 , . v ; ;•...' 1201 2064 1213 2067, 2069 622, 623 2068 250, 621, 623 2069 ' ,.622, 623 2071 14.7, 1147 2072 779 2073 779, 1147, 1151, 1200' 2074 1148, 1158 2075 1150 2077 332, 555,, 567, 765 2077, 2079 558 2078 304 2079 ..; 558, 568, 876 2081 157, 159, 255, 715, 779, 865, 989, 1.1.48,. 1152 2081, subds. 1, 3, 5.. iv. .;■.:.. ■•;:■.. ...1148 2081, subd. 3 1158 2081, subd. 5 147, 1144, 1151, 1153 2081, subd. 7 160 2082 865 2083 307 2084 '. .. 865 2086 1202, 1210, 1212 2087 1202, 1210, 1212 2088 1202 2089 ..: ; 307, 779, 1158 2089, 2091 .......,., 1152, 1157 2091 1160 2094 '. 862 2100b : 1123, 1133, 1135 2102 .....f. 861 2107, 2108 .- :...;.•,. 700 2107, 2108, 2112 1146 2108 .: 702, 864, 866, 1246 2112 700 2122 864 2123 862 2126i , , 260 2127 ,.......:. 864 2128 866 2137 , -. 861, 867 2149 863 2156 861 2159 ,...,... 374, 375. 2160 220, 371, 376 2163 ...ni •.-. 761- 2167, 2171 733 1285 1286 CITATIONS Sec. Page 2167, 2172 731 2170, 2172 648, 1222 2171 1227 2171 et al 1225 2171, 2172 1223, 1226, 1227 2172 845, 1226, 1227 2172a 1223, 1226 2175 372 2180 , 313, 314 2183 671 2187 , .,..* 671 2197a ......',.....: J672 2203 522, 523,' 525, 526, 528, 529, 530, 531, 532,. 533, 762, 765 2204 301 2206 872, 1202 2208 327 2216, 2219 , 22 2236 765 2241 : 326 2246 329 2252 125 2270 50, 139, 321, 534 2270, subd. 1 665 2270, subd. 2 347, 1072 2270,. subd.i 4 v. ' 346 2270, subd. 5 345,347,349 2270, subds. 5 and 6 346 2271 374, 526, 531, 533, 534, 679, 695, 696, 992 2271, subd. 2 533 2272 345, 346, 1242 2272a 50 2274 254, 686, 688 2276a • 350, 514, 1104' 2277 139, 321, 679 2277, 2281 970 2278 246, 872, 899, 971, 1100, 1233 2279 899 2280 533, "679, 899 2281 ,,'.;..; ,..139, 321 2282 87,-412, 413, 415, 417, 969 2286 . . .' 60, 61, 871 2289 ,.,659, 1202 2290 .,'...: ....-I : 968, 969, 970, 971 2292 ' 779 2294 .'.'.'.'.'.'.'.'.'.'.'.'.'.899,' 90O,' '1098,' 1199', ' 1233 2295 ....... ;:....' 87, 208, 460, 461, 462 2296 899 2302 27'7','328','474,' 670', 671," 810,' '934, '1146,' 1151 2303 472 2304 ....... .".'.' . . .v. .*'.' 277, 473, 670, 993, 1008, 1011, 1013, 1036, 1151 2305 993 2306 .,'..'.: .",■ 120,303, 305 2307 .' ,, 474, 475, 491 2307, subd. 1 473, 670, 671 2307, subd. 2 '. 491 2307, subd. 3 731 2308 ■ . .'J ..... : 474, 979 2319a 1180 2319c 98 2320 304, 305, 468, 991, 1101 2323 ' 304, 558 2328 724 2330 . 727 2340 '.'.'. .' .' ! .' '. '. .' .' .' .' .' .' .' .' 545,' 554, '622,' '623', ' 1 242 2341 545 2342 .314, 549, 554, 558, 559, 622, 738, 740, 743 2343 .548, 559, 736 2345 548, 740, 741 2347 602, 604,. 606, 1 607 2367 532 2369 364 2374 365, 1241 2394-1 to 2394-31 585 2394-7, subd. 2 584 2394-8 .'. 584 2434 299 2440 to 2464 896 2443 J.! 36, 387, 651 2454 '■".' 298 2S72 j. .1079, 1080 Sec. Page 2579 298 2582 297 2585 108 2586 105 2590 129 2600 181 2604 1047 2605 445 2607 444, 818, 1066 2613 24, 494, 495, 498 2613, 2614 , 581 2629, 2630 509 2640 922 2642, subd. 2 997 2653 338 2655 ' 852 2656 1016 2660 - j 1016 2664 ....'. 945 2666 ' 1195 2668 849 2669 854 2669a 856 2673 455 2778 1202 2781 267 2784 1258 2784, 2786 1257 2811 81 2821, 2822 997 2830 713 2831 87 2832 104, 635, 752, 1187, 1189 2836, subd. 1 997 2836b 308, 855, 856 2863 793 2864 947, 948 2878 .1080 2882 627 2883 627 2890 122, 133 2891 998 2902 410 2918 290 2918, ; subd. 7 287, 291 2930 948 2931 292 2932 295 2939 1130 2932 ..41, 288, 289, 290, 291, 292, 629, 1191 2943 ' 288 2948 288 2949 290 2978 410 2982, subd. 8 432 2983 520, 525, 527, 528, 530, 531, 532, 695, 697 2984a 534 2993 921 3021 to 3024 1044 3029 307 3035 307 3039 81 3042 , 793 3043 1256, 1257 3049 85 3069 338, 948, 1193 3069, subd. 2 - 90 3070 85 3072m 180 3086 81 3096 1102, 1104 3101 823, 824 3129 657 3163 521, 695, 744 3186 374 3205 639, 852 3258 14 3259 30 3267 450, 451, 461 3269 et al 934 3274 711 3274 et al..269, 303, 305, 512, 696, 934, 1067 3277 .171 CITATIONS 1287 vSec. . Page 3314 545 3343 ...' 698 '3503 et al 298, 577, 586 : ■■ 3519c et seq 480, 481, 867, 1159 3545 922 3554 ....; ; 96 ■ 3572; subd. 1 10 3572; subd. 4 10 3617 659 V : 3785 , . , '. 1 199 3787 45, 771, 923 '3788 417, 900, 1087 (-■3789 et al 461 3790 460,462 3791 721 3791a i i .241, 260 3792 i. 429 3793 ; '. 460 :3794 ..428, 678 1 3794 to 3796 1044 < -3795 87, 138, 139, 678, 715 3800 14 3803 33, 956 ■S3804 44, 45 .. 3806 36 ,3807 34, 35, 659, 919 . > 3807, subd. 2 34, 35 .' : 3808 34, 43, 45 3811 j.. ....... 1032 3813 1032 3813a 125 3819 35, 919 3821 134 3823 .. 934, 935 3824 30 . '3825 209,. 357, 358, 360, 362 3826 '. 357 • 3832 28, 29, 121, 302, 303, 305, 372 3833 665 3835 ..;... 236, 302, 304, 308, 532, 1040 3836 308 3888 ...41, 172, 176, 179 3840 175, 178 3841 27, 176, 1012, 1017 3842 ..: 268 3843 , 270 3844 ....... ...i.'...... 29, 75, 170, . ■' . 171,. 172, 175, 177, 178, 179, 210, 715, 1070 '3845 170, 176, 210 '3846 173 38.4.7 27,. 29, 172. 1022, 1023 3850 ..678, 684, 710, 711, 712, 714, 715, 1026 3852 .......Al, 480 3853 ...(.•... ..'... -J..'.'!....- 1 175 ■ 3856 ■ 175 3858 25, 268, 269, 270, 272 : 3859 '. . . .268, 269, 270 3860 25, 269, 270, 271, 272, 285 3861 .....269, 270 3862 ....39, 139, 531 3868 25 . 3869 ?72 3871m .: ••■•206 3872 375 -'3873a ., 303, 512, 696, 711, 934 .. '3874 992 -1174a'::::::::::::::: ?« ;'"3881 1|0 .3884 392 3889 • 9|9 -1QQQ .„ . . OOU 3906 '::.'..::. 644, 983 984 3911 1101 13914 ■"■- 985, 986, 992; 1129 3918 • 991, 993 3919 .... 503, 587,985 3924 ...'.:..:..' ' . • 1Q 28 ■ ig?7 39 '■ 3929 '.'."..'.'..' 13, IS, 197,200 <"' 3930 ..180 'ion. :'. 14, 39 ' 3935 ,'.'.'.'.'.' 322, 660, 731, 1223, 1228 itli;sublV&2::.\\"::::.\':73i;'mV,'m8 Sec. Page 3935, subd. 2 593, 1228 3935, subd, 6 33, 347, 512 3940 630, 632, 773, 845, 1028 3942 : .1028 3945 629 3947 ; 1028 3952 1028 3959 56, 57 3961 56 3964 795, 798, 799 3966 133, 503 3967 ..' 137 3968 ...v. ,..!.'; 136, 505, 716,. 1061 3972 18, 137 3976 572, 574 3978 63 3979 .1093 3982 .585 3995c .1033 4004 ...: 1..; 505, 587 4013 ...' '.-. 137 4014 130, 132, 134, 175,. 1058, 1061 4015 . . .: : 133 4016 130, 1058 4017 .133 4021 !52 4022 ; 51, 52, 1013 4024 53, 61, 971 4025 34, 1131, 1149 4030 1127 4031 62„63, 64, 85, 361, 451 4032 82, 84, 88, 135, 137} 138, 428 4033 79, 86, 87, 821 4034 14, 15 4035 .'62, 83, 85, 86, 88, 89, 90, 91, 661, 847 4036 1040 4037 -V....U 87, 896 4038 .89 4039 .; 292, 293 4041 201, 290 4041a 200, 289, 294 4041b 203, 291, 292, 294, 295 4041b, subd. 1 ; : . . . .292; 293, 294 4041b, subd. 2 U-. . .200, 201 4044 l-i 241 4052a 43, 494 4052b 315 4057 .•. 1240 4058 1240 4063, 4064, 4067 1240 4068 312, 361, 546, 565, 1112 4069 »■■; . -i . :< ) ■: 416, 490, 556, 599, 820, 1105, 1107, 1108, ' 1109, 1110, 1111, 1112, 1113, 1114, 1115 4070 .343, 1107, 1110 4072 89 1 4073 564 4074 ;.....' 891 4075 443, 891, 892; 894, 895 4076 .419, 891, 893 4077 , ,. 362 4078d ■:..: 443 4089 <357 4090 : 344 4091 341 4096 .: 174, 299, : 356, 357' 358, 359, 360, 361, 362, 363, 388 4110, 4113, 4114 ..'., 360 4112 342 4136, 4138 458 4140 -461 4141 : 406 4141a .408 4145 : . 461 4148 ;..:.' 785 4149 Ill 4154 ....327 4160 113, 114, 879 4172 : .114 4183 » 359 4186 6, 9, 11 4187 11 4189 9, 11 4189b 11 1288 CITATIONS Sci- Page 4192 174, 5.08,- 509, 510,. 912, 918 4193 510, 918 4195 995 4204 i 1059 4206 710 4211 991, 1098, 1104 421S 991 4218 708, 991, 988 .4220 177, 717 4220, subd. 2 126 4221 988 4221, subd. 4 1057, 1070 4222 ..,.", 1 711, 716, 917, 1010 4222, subd. 3 995:, 1057 4222, subd. 7 991 ,4226 8 "4230 .'. 917 .4231 306,i 717 4233 988 4234 81,. 168, 172, 711, 716 4242 358 4243 .....' i 1017 4247 833 4248, 619 4251 716, 1070 4253 25, 28, 696 4255, 4256 27, 28, 43, 451 4256 28, 318, 1032 4258 1021 4260 27, 172 4264 1020 4265, 4266 ........ ' 1078 4273 1095 4281 451 4281b i .« ......137, 1059, 1060 4587b 315 4595 315,. 1050, 1051 4700 .598, 656, 1256 4719 .635 472(4' 1256 4926 319 4971 .... :... 1050 4971, subs. 2 and 3 986 i49.71, subd.. 3 .515, 827, 861 4971, subd. 7 599 4971,. subd. 9 665 '. 4971, . subd. 15 236 4971, . subd. 19. 509, 510 1- 4971, subd. 24 1095 4971, subd. .25 923 ' SESSION LAWS. i 1850, ch. 44m. V. 545, 737 . 1856, ch. 120 181 '1861, ch. 127 984 ..'1864, ch. 270 533 ■ 1868, ch. 5 757 .'18,68, ch.. 121 ; ... .■.! 297 "1872; ch.' 155, sec. 2 736 .1875, .ch. 265, sec. 2 451 1877, ch. 106 , 1222 1883, ch. 202 448 1883, ch. 219 346 1885, ch. 349 545 1887, ch. 551 839 1891, ch. 376 541, 602, 604, 606 1893, ch, 23 , 346, 347 1895, ch. 18 52 1895, ch. 86 549, 550, 554, 558, 738,743 -1895, ch. 120 412, 415 1895, ch. 123 1227 1897, ch. 335 1060 • 1899, ch.. 5 '. • 210 1899, ch. 300 480, 481, 867, 1159 1899, ch. 355 589 1899, ch. 356 162, 836, 914, 915, 917 1901, ch.' 23 357 1901, ch. 181 1112 1901, ch. 397 292, 293, 294 1903, ch. 44 589, 590 1903, ch. 264. 1223 1903, ch. 317 1135 1905, ch., 17 ,741 Sec. 1905, 1905, 1905, 1905,. 1905, 1907. 1907,. 1907, 1907, 1907, 1907, 1909, 1909, 1911, 1911, 1911, 1911, 1913, 1913, 1913, 1913, 1913, 1915, 1915, 1915, 1915, 1915, 1917, 1917, 1917, ch. 45 . 523, ch. 163 ch. 278 ch. 376 ch..511 ch, 197 ch. 267 ch. 325 ch. 427 ch. 624 ch. 660 ch. 231 ch. 28.3 ch.,50 , ch. .222 ch. 353 ch. 663, ch. 186 ch. 349 ch. 407 ch. 480 ch. 643 ch. 89 ch. 219 ch. 253 ch. 278 ch. 536 ch. 170 ch. 227 ch. 229 Paf 525,' '526, 528,' 529, 531,' '532, 9! 2( 61 556, 82 153, 156, 158, 840, 8' 1110, 111 200, 2C .291, 2! 12; 522, 523, 525,. 528, 533, 737 sec. 447 289, .28, 892, 82 ...13, 1 .292, 25 82 5! , 9! 8! 25 31 85 91 95 55 71 8! 55 75 113 It 92 3< .591 .855 MISCELLANEOUS STATUTES. Territorial, 1839, p. 184, sec. 38 34 Chapter 86, R. S. 1849 89 Chapter 95,. Stats: 11! Chapter 104, . Stats 6J Chapter* 134, R. S. 1858 53 Chapter 151, Stats. 1898 45 Revisions of 1839, 1849 and 1858 7C FEDERAL STATUTES. Sec. 90.5, ch. 17, title 13, R. S. of U. S. (U. S. Compiled Stats. 1901, p. 677) . . . Ill, 455, 4( ENGLISH STATUTES. 29 Car. II, sec. 6 96 29 Car. II 45 29 Car. II, ch. 3, sec. 5 41 43 Eliz 1! 43 Elizabeth, ch. 4 31 9 George II, ch. 36 766,76 9 and 10 Victoria, ch. 93, Lord Campbell's Act 5! 28 Victoria 5C 3 and 4 Wm. IV, ch. 106 3! CONSTITUTION OF WISCONSIN. Art. I, sec. 1 589, 123 Art. I, sees. 5, 7 125 Art. I, sec. 15 3! Art. I, sec. 17 52 Art. IV, sec. 26 296, 25 Art. VII, sees. 2 atad 14 7f Art. VII, sees. 8 and 14 22 Art. VII, sec. 14 85 Art. VIII, sec. 1 589, 55 Art. XL sec. 2 21 Art. XIV, sec. 13 196, 12; CONSTITUTION OF UNITED STATES Art. Ill, sec. 2 i Art. IV, sec. 1 453, 454, 455, 4( Amdt. XIV 51 COUNTY COURT RULES. Rule- III ' Rule VIII, sec. 3 I Rule X, sec. 10 .' : Rule XIII, sec. 6 V Rule XV, sec. 4 Rule XVII, sec. 5 3' Rule XVII, sec. 6 : GENERAL INDEX [REFERENCES Abbreviations. See Parties. "Words and Phrases. Abutters, 1. Own to center of street, 1. Street not in exemption, 1. Accord and Satisfaction, 2. Accepting another contract 2. Absolute payment, 2. Conditional payment, 2. Accord defined, 3. Accord without satisfaction, 2, 3, 4. Attorney bind client, 108. Compromise draft payment, 2. Consideration slight, 4. Definition and effect of, 3, 4. Fraud acquiesced in, 3. New incident discovered, 3. Gratuitous; void at law, 321. Joint obligations, 617. Keeping part payment, 2. Mere promise, part payment, 2, 4. Mortgage, notes, by notes, 3. New promise in satisfaction, 3. Novation, in detail, ,773. Receipt in full, 4. Satisfaction, no reservation, 3. Settlement for part payment, 321. Compromise, exception, 1025. Other creditors' rights, 321. Receipt for whole, 1025* ' • * "Waiver of bankruptcy law, 4. See also Compromise. Payments. Settlement. Account Books. Accounts, 4. Account between parties, .9. Account stated; conclusive, 9, 12. Admission of correctness, 10. Delay for limited period, 12. Effect of stated account, 10. Impeached for mistake, 10. Statement sent and kept, 9. "While work going on, 12. ARE TO PAGES. ] Account Books — continued. Agent, charged to, 7. Balance due, 10. Burden of proof, 9. Caption not conclusive, 7. Cash payments, 6. " • v -"' 1 '" Contents of proved accounts, 6. Contract in account book, 9. Decedent; setoff after, 5. ' Entries by, 12. Definition : : of account, 8. Long account, 8. Mutual aeeouiit, 8. Entries: for a day, 9. Contemporaneously, 12. Of decedents,' 12. Subsequent- entries, 12. When to be made, 11. Equitable accounting decree, 8. Eraud or mistake, "8,' 9, 10. Illegal contract account, 7. / Impeachment: inadmissible, 5, 6. Eor fraud or mistake, 8, : 9, 10. Interest, in detail, 607. * Interest: unliquidated demand, 7. Judgment- on jsart of account, 5. Limitation, six- years, when, 7, 8. Loose sheets, 9. Memoranda to assist memory, 5, 6. Contract in ledger, 1251. Entries against a decedent, 11. Mistake in name of party, 5. Money items as loans, 11. Written order for money, 11. " Mutual account current, 7, 8. Definition of, 8. Other goods purchased, 6. ' Paid in full, effect of, 10. Payments, how applied, 7, 10. ; Presentation of bill, 6. : ' Conduct relating to, 10. ' Tailure to object, 11. Not conclusive, 11. Silence and retention, 11, Price not specified; 8, 1289 1290 GENERAL INDEX [ REFERENCES Account Books — continued. Promise to pay balance, 9. Proof of accounts, 6, 9, 10. Setoff after decease, 5. Settlement: denned, 6. Conclusive, if fair, 1024, 1025. Items not mentioned, 1026. When set aside, 8, 10. Subsequent entries, 12. Surcharging stated account, 6, 7, 8. Verification of account, 5, 6. See also Accounts of Executors and Administrators. Accounts or Guardians. Accounts of Executors and Administra- tors, 12. Account on court 's motion, 422. Advances to minors^ 13. . ,. No objection thereto, 13. Personal against heirs, 13. Protection therefor, 13. Amendment on appeal, 14. Charged by himself, .13. Co-executor may appeal, 15. ., Commissions allowed, 13, 15. Executor also as trustee, 14. Division of expenses, 15. Executor's, own debt, 14. > Executrix of deceased extr., 14. Extraordinary services, 14. Function of guardian, 13. •Interlocutory account, 14. Conclusive on notice, 14. Extraordinary services, 14. Items properly credited, 13. Judicial discretion,, 15. ; Maladministration, 15. Not allowed as of course, 15. Evidence i introduced, 15. Specific objection made, 15. Objections to account,, 15. Personal chattels delivered, 13. Kent advanced ,tp decedent, 15. Support, etc., of heirs, 13. See also Administration Expenses. Compensation op Admr., etc. Executors and Administrators. Judgments. Rents, and Profits. Settlement,. Trustees. Trust Funds. Accounts of Guardians, 16. Action before settlement, 17. After ward 's decease, . 17. Heir and guardian, 22. Without administration, 21. ARE TO PAGES. ] Accounts of Guardians — continued. Annual accounts: appeal, 17, 18. Allowance not final, 16. Court rule authoritative, 18. Not an estoppel, 18. Prima facie correct, 16. Annual restB, 17, 21. Attorney: employed, 21. Funds turned over by, 21. Guardian is not, 21; Negligence of attorney, 21. Effect of court's order, 18. Court rule effective, 18. Funds: invested at interest, 19. Turned over by attorney, 21. Heirs: at ward's decease, 21, 22. Interest : compound when, 16, 17, 19. Annual rests, 17, 21. From filing of petition, 19. Generally ; in detail, 607. Simple interest, when, 16, 19, 20. When to commence, 16, 17, 19, 20, 21. Investment: what is, 20. Attorney as agent, 21. Duty to invest, 21. Funds of ward, 498.. Negligence of attorney, 21. On guardian's security, 20. Judgment: conclusive, 20. After ward's decease, 21, 22. Laches not applied, 19. Limitation statute, 19. Neglect by guardian, 21. Support: as charged, 18. Aunt in loco parentis, 21. Before appointment, 18. Beyond, annual interest, 18. Living in, guardian's family, 18. No clajm made therefor, 19, 20, 21. Out of body of estate, 18. Widowed mother, to, 20. Without court order, 18. Sureties: right to credit, 20. Liable for negligence, 21. Settlement: by county court, 17. After ward's decease, 17, 21. By court of equity, 17. Conclusive on parties, 20. Direction effect of judgment, ,20. Trust funds, in detail, 1131., See also Guardian and Ward. Trus- tees. Trust Funds. GENERAL INDEX 1291 [REFERENCES ARE TO PAGES.] Accounts of Trustees. ■' See Accounts op Extrs. & Adms. Accounts of Guardians. Trus- tees. • Trust Funds. Trusts. Acknowledgment, 22. Agent or deputy, 22. Denial and withdrawal, 22. Formula, no prescribed', 22. Object of acknowledgment, 22. Valid acknowledgment, 22. Without the state, 22. Clerk's additional certificate, 22. Actions, ,23. Accrual, as to decease, 24. Actionable form, when, 23. , Against debtor and trustee, 25. Against guardian, 17. Agreement, not to begin, 23. Amendment, law to equity, 24. , Bonds in county court, 127. Character, determined, 23. Concurrent jurisdiction, 206. Creditors against heirs, etc., 23, 171, 173. Claim notice allegation, 170. Ex delicto, ex contractu, 23. Filing claim, 23. ,- Foreign guardian, 451. Heirs: for their shares, 23. Creditors against heirs, 23. , Cumulative bond remedy, 23. i , , / Guardian, ward's name, 500. Heirs; actions by, 511. Incompetent: bring in person, 24. , Adjudged .insane person, ,24; Proper course to pursue, 24. Infants: actions concerning, 577. Joint obligations, 617. Married woman, 733. Money had and received, 24. Equitable . in nature, 24. Implied repayment, 25. Payor bring on judgment, 24. Proceeding, when action, 23. > Surety on bond, notice, 24. Title, estate of deceased, 23. See also Actions Against Extr. or Admr. Actions bt Extr. ok Admr. Creditors' Actions. Actions Against Executor or Adminis- trator, 25. , i Against deceased stockholders, 25. Executors and ".personally, 25. Actions Against Extr., etc. — continued. Good will conversion, 25. Claim filing expired; 25. Joint wrongdoers, deceased; 26. Remedies of claimants, 25J Surety "for Contribution, 25: See also Actions. Concurrent Juris- diction. " • Actions by Executor or Administra- tor, 26. Accounting in specie,' 29: Remedy at law, 29. Admr. de bonis non, on bond, 42. Circuit court relief, 31. '' Barred in county court, 31. Rights previously fixed,"31. Subrogation of claims^ 31. Conversion after death, 30. Disbursed in good faith,> 30. No damage been done, 30. No damage defense^ 31." Preferred claims paid, 30. Rights previously fixed, 31. Subrogation: of claims, '31. Conversion before death,, 30. Demand not required, 30. Money conversion, 30. , , Payment by check, 30. Death damages: personal, 27. Brought by administrator, 27. Brought by widow, etc., also, 28. Foreign executor or administrator, 449. Proceeds to widow, etc., 27, 28. Evidence of competency, 30. Of check payments, 30. Fraudulent transfers, 28. Accounting in equity, 29. Burden upon administrator, 30. Cestui que trust, 29. Constructive trust, 29. Deficiency Of assets, 28. Estoppel not found, 30. Future creditors, 29. ' ' Payment of wife 's debts 29. Property in specie, avails, 29. Rescission of contract, 29. Sec. 3832 covers all, 29. Implied contract, 28. Limitation statute, 29. ' Maintenance contract, 1 125. Nonresident administrator, 28. Nonresident- relatives, 28. Pleading : counterclaim/ 29.' Limitation statute;' 29. Preferred claims paid, 30. Barred*- in county court, 30. 1292 GENBEAL INDEX t REFERENCES Actions by Extr., etc.* — continued. Preferred claims paid — continued. No damage done, 30. Eesulting trust, 28. Setoff : against deceased, 26, 27. Confirmed by sec. 4260, 27. Mutual claims, 27. On executor 's contract, 26. To recover assets, 26. Under sec. 3847, 27. Where claims not barred, 27. Trust enforcement, 28. Unadministered assets, 43. Constructive trust, 29. Widow applies estate funds, 30. See also Actions. Concurrent Juris- diction. Creditors ' Actions. Damages. Act of God, 31. Excuse entire contract, 31, 377, 378. Violent storm, not, 379. Sickness so regarded, 31, 377. Additional Bond. See Bonds. Ademption. See Legacies. Administration, 31., Administration: purpose, 34. Creditor's right, 35. Effect of strangers, 32, 36. Necessary facts, 36. Next of kin, limited, 34, 35. Eight is statutory, 34. Right under sec. 3807, 34, 35. Appeal: new evidence, 33. Jury, improper, 33. , New petition filed, 33. Application: of strangers, 32, 34. All heard, , one petition, 33., Irregular, not void, 32y 36*' Nonresident applicants, 33. Petition defective, 36. Revocation, proper, 32. Without notice, 32. Circuit court, 33. Creditor's right to, 35, Discretion of court, 33. Executor as trustee, 34. Until qualified trustee, 34. Executor, trustee of widow, 33. Federal jurisdiction, 33. Guardian, administrator, 32. ARE TO PAGES. ] Administration — continued. Infants; no guardian ad litem, 49 498. Intestacy is presumed, 348. Intestate estate and will, 33. Irregular, not void, 32, 36, 37. Jurisdiction, 35. Absence of estate, 37. Appointment conclusive, 36. Decease and residence, 35, 36. Existence of estate, 36. Hearing on petition, 36. Petition defective, 36. Prima facie showing, 36. Proceeding in rem, 36. Property, death out of state, 36. Property in other states, 35. Status at death, 37. Stranger to proceedings, 36. Kiin; rights of, 658. Limitation of administration, 34. Next of kin: meaning, 33. Absolute within thirty days, 35. Right to, limited, 32, 34. Nonresident: applicant, 33, 35. Administrator, 33. Parties, estate proceedings, 814. Presumption of death, 877. Proceeding in rem, 33, 36. Realty, administration rights, 930. Revocation, 32. Stranger applying, 32, 34. Vested at the death, 34. Will afterward found, 35. Administration revoked, 35. Effective until revoked, 35. Settlement effective, 35. See also Descent and Distributio: Kin. Probate or Wills. Administration Expenses, 37. Administrator insolvent, 38. Application to court, 38. Attorney: not creditor, 39. Action on bond, 40. Beneficiary; attorney, 41. Collateral action, 40. Duty of executor's attorney, 41. % Equitable claim on funds, 40. Insolvent administrator, 39. * Judgment conclusive, 40. Jurisdiction of person, 40. Lien on estate funds, 40. Personal to administrator, 39, 40. Submission to court, 40. Sue administrator personally, 40. GENERAL INDEX 1293 [REFERENCES Administration Expenses — continued. Bank official, administrator, 39. Before administration, 37. Items proper, 37. Monument expense, 38. Voluntary payment, 37. Costs and counsel fees, 38, 40. Priority over debts, 38, 41. Funeral expenses, 479. General guardian, 41. Generally devised estate, 39. Guardian ad litem, 41. Homestead proceeds applied, 38, 39. Implied contract, for, 39. Maladministration, 41. Preference given them, 38. Counsel fees, 38. Necessary incident, 38. Sale of homestead, 38. Revocation of administration, 39. Stipulation for expenses, 41. Widow's expenses, 38. Will afterward found, 39. Administration expenses, 39. Expenses not claim, 39. See also Compensation or Admr., Extr., Grdn., & Trustee. Costs and Pees. Administrator. See Administration. Administrator de Bonis Non. Administrator with Will Annexed. Extrs. and Admrs. Public Admr. Spe- cial Admr. Administrator de Bonis Non, 41. Action for assets, 43. Attorney 's service claim, 44. Duty of court to appoint, 45. Erroneous order, 44. Executor and trustee, 44. Pinal order: incomplete, 42. Erroneously made, 44. Proof of payments, filed, 42. Guardian ad litem, 43. Former guardian, 43. Nunc pro tunc, 43. Without guardian, 44, 45. Interest in estate, 44. Jurisdiction to make, 44. Bondsmen liable, 44. Nonresident administrator, 42. Notice of appointment, 43. , Without notice, 44, 45. Presumption of regularity, 43. Letters, prima facie,. 43., ARE TO PAGES. ] Admr. de Bonis Non — continued, Reason for, not disclosed, 43. Removal of executor, ,.42, 45. Resignation statutory, 42. Sole residuary bond, 43. Stranger cannot move, 44. Suit on executor's bond, 42. Void appointment, 42, 43. Administrator with Will Annexed, 45. Confidential powers, 45. Not usually devolved, 45. Intestate and testate estate, 46. Will never allowed, 45. See also Executors and Administra- tors. Admissions, 46. Agent of husband, 46. Authority of agent, 49. Part of res gestae, 46, 47. Scope of, authority, 47. Agents, in detail, 880. Casual conversations, <49. Decedent : payment, 46. Against mortgage title, 47, 48. Against realty title, 47, 49. , Delivery of a gift, 48. Husband to aid wife, 48. Land contract vendor, 665. Not part of res , gestae, 47. Deliberately made, 49. Estoppel by, defined, 398, 399. Explanation allowed, 48. Gift: delivery of, 48. Declarations after, 488. Donor to third persons, 489. In derogation of, 50. Impeachment of, 48. Incompetent, 48. , , Lost will, existence, etc., 720. Memorandum as, 48. Not conclusive, 49. Partner's admission, 49. Party, payment by ( deceased, 1108. Pleading: conclusive,, 46. , Admissible in evidence, 47. After amendment, 49. Both pleadings; not conclusive, 857. Received with caution, 48. Res gestae, in d«tail, 963. Self serving declarations, 49, 50„ 488. Services for decedent, 999. , Spendthrift receiyed, 46. Strong evidence, 48, 49. Tender and deposit is, 1078. 1294 GENERAL INDEX [REi"ERENCES AdmisSioris-^-contihued. Testator: latent ambiguity, 46. Against sole legatee, 48. Against testator's interest, 49. Exeeutoi"s testimony ;.s to,' 1114. Intention concerning will, 61, 246. Lost will contents, etc., 48. Making of a will, 49. Person, or thing intended, 242. '"Undue influence, in detail; 1161. Condition of mind, 1170', 1173, '1088. "■ Not evidence of facts, 1173, 1175. Weak testimony, 48, 49. ' Widow, administratrix, 47. As party in interest, 47. Wife as agent, 46. See also Pleadings. ' Adoption, 50. Abandonment, 51. Judicially determined, 51." Jurisdiction obtained, 51, 52. No evidence thereof, 51. Notice, effect' of, 52. After-born child, 53. • Child: Eights its, 53. Effect of statute, 53. Favored, 521 Intent of 'testator, 53. Issue of blood, 53. No direct language, 53. Consent not shown, 51. Valid as to; child, 51. Void as to parent, 51. ' Contract of adoption, 53. Conduct of parties, 54. Intended to adopt, 53. Lost writing, 53. Mother to contract, 54. Specific performance, 53. Contract for inheritance rights, 54. Clearly shown; no fair doubt, 54. Estoppel, 52. Inheritance by blood, 50. Adopted parent, 50. Statutory change, ' 50. . Jurisdiction, 51, 52. " Abandonment, 51. Notice to parents', 51. As to abandonment, 52. Two constructions, 52. Order of adoption, 51, 52. Petition imperfect, 52. Presumption of record, 52. Eevocation of will, 52. are TO PAGES.] Adoption — continued. Services in family; 1 5 0-.' ' Unofficially adopted, 1011: Statutory proceeding, 51. Civil law; not common, 54. Advancements, 54. Acknowledgment in writing, 56. Advances by administrator, 55. Agreement as to, 55. At his own risk, 843. Heir deceased, 55. Note and mortgage, 843. Pleaded "as payments, 55. Promissory notes, 55i Bequest to trustees, as, 57. Computation, 57. Not advancement, 57. Bond and mortgage, 55. Certificate of decedent, 57. Character, at delivery, 56. Charge; upon books, 56. Contemporaneous, 57. Computation for, 57. Contemporaneous charge, 56, 57. Declaration in writing, 56. 1 Evidence of, 55. Conclusive, 56. Pinal judgment as, 55. Judgment conclusive, 56. ' ' ' Judgment creditor of heir, 55. Special notice to, 55, 56. Land conveyed, 56. Oral evidence, 56. Not to contradict, 57. Not to prove, 56, 57. Statute' "construed, 56, 57. Partnership advances, 1065, 1066. Promissory' note, 56. Statute mandatory, 56. Advances by Executor and Adminis- trator. See Advancements. Adverse Party Examination. See Discovert. , Adverse Possession. See Title. Affidavits. See Verification. » . i Affirmative, 58. Burden of proof; not shift, 919. Chancery hearing, 59. No presumed advantage, 59. GENERAL INPEX 1295 [REFERENCES Affirmative — continued.. Confession and avoidance, 5?. Counterclaim interposed, 58. Denial on belief, 58. Open and close, 58 fi , Pleadings furnish ; test, ; 58, Eule of practice, merely, 59. After- born Child, 59. ',. Adopte'd child, 61. Born after decease, ,59. ' ' Heir' ! cppsj;rued, , 50. Contingent remainder, 59, ,61. Declaration of testatpr,, 61. Ellipsis or omission, 60. Extrinsic evidence,, .60,, 61. , . If any be bornj 60, , Intention of testator, 60. , Not expressed, 60. , ,, Not outside of will, 59. Provision made, 60., , . No other intended, ,60. (J , Bemainder is,. 60. : , ■• Age- ■..':-.' ,.foi See BrBTH: , , ,,, Agency. v /,, ,, See Principal and Agent. Aggrieved Person, -61. Administrator, 62 f ,, ^ ,,,,... . Affront or* desire, ,63., u . Cited for examination., 64, Executor in- construction, 6,3.. . Executor named, 64. , , Guardianship, 62. ,,.,,,,,, Child of party, 63.; ,,, ... ,--::/ Nonresident sister, 63. Not under liability, 63, .-,,.,..-,, Substantial interest, 63. , , , Legatee under other will, 62. Liberally interpreted, 62. Lost will, 64. Not party to record, 62'. , Not interested, 62. [ , Purchaser at sale, 63. Bights adversely affected, 63. Special' admr. proponent, 90. Supreme test, 62. Taxpayer;' when, 62. See also Appeal. Agreements, 64.,, Avoidance of agreement, 65, Did not read it, 65. Excusable* mistake, 65. ARE TO PAGES.],. , Agreements — continued. , , ; i , , Avoidance of — continued,,,) , Gross negligence, .66,,, , Inability to read, 65, ... Contracts, generally, 272.,.,., Fraudulent release, 66. ,, ,,,,,, Happening after event, ,66. , ,.' , Misunderstanding nature, 66. Mutual consent,, 64. j, ..,.1, , , ,, Mutual relinquishment, 64. Not to commence suit, 64. , , - . Oral change in, when, 65. , Before breach in, 65. Not contemporaneously, 65. Same consideration, 65, ;,,,,■ Presumption in signing, ,@5, ,6,6,,,,,. , , Unilateral, 65. , , ,,. ,,,fi,, : See also Contract.s. , , ,,, .,.,i,i..; Allowance. See Widow. Alteration, 1 66. ,, "After due'' strieken out, 67. Assent after alteration, 67. Burden of explaining,, 66, 69. Consent of one party, ,6,7.,, Instrument ., not und^r seal, 67, ;._,,; Different,, ink striking .out, 67. ,,,, Foreclosure on note, ,6,9.,, ,, Immaterial alteration, 68. . ■...,; Adding name, of witness, 68. . Changing figures, held not, '68 ; ■ , Legal effect not .changed, 68.,,,, : Insurance beneficiary^ 69. Interlineation, 69, ,, Interlined,, no blank, for, 916., Landlord , and tenant,, . 667. . , , Legal effect not changed, 68. .,, Made by party .or privy, 68. Must be material, . 68. Note. Without maker's consent, 66. Original consideration, recovery, 6.7; 68. Payable to order, to bearer, 67,, (907- Presumptiojn „ of time, 65. , Absence of indication, 69., Innocence presumed, 69. Question when raised, 68. Signed in blank, 68. Spoliation by stranger, 68,,;,, , True rule adopted, ,67. Burden on party offering, 67. Explained in .instrument,, 67. ; Suspicion on -fac9,,,67. Vitiates notej unless explained, 907. Void: extent of, 69. Foreclosure on ijote, 69. 1296 GENERAL INDEX [REFERENCES Alteration — continued. Void — continued. Holder in due course, 69. Legal effect changed, 69. Will after execution, 66. Attempted erasure, 69. Insurance beneficiary, 69. Without fraud, 67, 68. See also Landlord and Tenant. Ambiguity, 70. Contracts: parties' construction, 222, 224. Conversations; circumstances, 224. Expression; of meaning, 70. Extraneous evidence, 70. Intention of parties, 70. Limited to circumstances, 71. Names of beneficiaries, 141, 150. Not to conversations, 71. Sense of parties, 71. When in will, 70, 71. Identify legacy or devise, 71. Church society, 259. Names, cemeteries, 70. Improper fraction used, 264. Latent: two lines, 70. Extrinsic evidence, names, 70. Individual indebtedness, 70. Meaning: by conduct, 72. Either of two ways, 72. , Necessary for construction, 264. Patent: void devise, 73. Statute; two meanings, 235. Subject matter thereof, 74. Surrounding circumstances, 71. Three parts to four, 261, 262. Unambiguous, 70, 71, 72, 229. Clause in two ways, 72. Meaning is clear, 72. Will: Person or object, 70, 71. Sec. 21 as sec. 22, 71. Misdescription, 71. Without adding, 71. See also Construction op Contracts' Construction or Deeds. Con- struction op Wills. Parol. Amendment, 72. After verdict, 74. Appeal: Of account, 72. Agreement added, 73. Claim, complaint, 73. Claim for services, 73. Failure to state facts, 73. Indefiniteness, 73. Jurisdiction not involved, 73. ARE TO PAGES.] Amendment — continued. Appeal-^-continued. New items, wrong, 73. Petition to vacate will, 72. Within court's discretion, 73. Bill of particulars, 112. Contract, to money had, 74? Allowed now by statute, 855, 856. Contract, to quantum meruit, 74. Commenced at filing, 74. Barring of action, 74. Separate cause of action, 74. Discretion, broad, 73. Accrue pending suit, 73. Furtherance of justice, 73. Nor contract to tort, 73. Not equity to law, 73. Increasing the amount, 74. Not presented below, 73. Pleadings in detail; 848. Quantum meruit, to contract, 74. Service return, 996. See also Mistake. Pleadings. Ancillary Proceedings, 74. Action against heir, 75. Domicil at death, 74. Entirely independent, 75. Non-claim statute, 75. Conclusiveness, 75. Creditor barred, 75. Primary administration, 75. Probate elsewhere, 74. Beal estate, lex loci, 75. Subordinate to principal, 75. Surplus to ancillary, 75. Sent to principal, 75. Writ of ne exeat, 1258. Ante-Nuptial Contract. See Marriage Contracts. Appeal, 75. Adverse party, 77. Co-defendants, 79. Guardian ad litem, 90. Incompetent's appeal, 86. Special administrator, 79, 90. Aggrieved person, test, 87. Administrator; heirs' interest, 62. Executor, in construction, 63. Interested, not party, 62. Proponent, special admr., 90. Amendment of claim, 87. New items, not proper, 73, 74. ; Of petition after appeal, 89. GENERAL INDEX 1297 [REFERENCES Appeal — continued. Appearance : effect of, ' 80. Motion to dismiss, 80. Refusal to reverse, 82. Appellant must show, 77. Appoint commissioners, 78. Attorney's authority, 106. Consult client, 106. Bar to another action, 84. Bond: endorsement, 77. \ Admr. of another estate, 84. After sixty days, 79, 84, 89. Filed at trial, 90. Piling notice essential, 88. Guardian ad litem, 84. Guardian relieved from, 82. Believed in same est. only, 84. Substantial compliance, 84, 88. Undertaking later, 88. Circuit court application, 78. Abuse of discretion, 83, 90, 91. ~ Allowed at court trial, 90. Ample power given, 83. Attorney's neglect, 85, 89. Bad faith and laches, 80. ■■ • Bond filed at trial, 90. Burden upon appellant, 86. Claim not objected to, 78. Counter affidavits, notice, 78, 85, 86, 90. ". Discretion of court 88, 91. Documents presented, 86. Doubtful questions intimated, 83. Evidence: kind taken, 88. Facts themselves, supplied, 86. Ignorance in infant case, 83. Justice requires revision, 85, 86, 90. Laches found, 88. Near relatives and heirs, 88. Petition presents case, 83. Presumption of facts, 84. Require definite statement, 88. Time failure of bond, 89. What is declining, 78. / Whether order appealable, 78.: Circuit Court's judgment, 77. Co-defendants ' rights, 79. Co-executor or co-trustee, 86. Prom final account, 91. Nonconsent of co-executor, 92. Objections as legatee, 91. Consent : to judgment by heir, 89. To account by executor, 91. Contempt; none as a rule, 266. ' County judge: magistrate, 89. Decease after judgment 81. Time not extended; < 81, Zimmerman — 82 ARE TO PAGES.] Appeal — continued. De novo trial, 15; 82, 1117. Dismissal of appeal, 87. After long delay, 89. Finding not effective,. 87. Not prejudicial, 92. Entitled, estate of, 78. Executor for legatee, 91. Executor named: no bond, 85. Executor: will set aside, 86. Filing after sixty days, 87. Court's discretion,, 87. Final determination, 87. Foreign administrator, 92. Dismissal of appeal, 92. Not prejudicial, 92. General guardian, by, 79. Adversely interested, 82. Believed from undertaking, 82. Guardian ad litem, 82; 90. Bond filed at trial, 90. Immaterial error, 1032: Infants: < ,by guardian, 85., i . Or guardian ad litem, 85. Interested, but not party; 87. Interest: objection as to, 78. Shown by record only, 89. •Uncle of minors, 85. Intermediate orders, 81, 85. Appeal from another order, 86: Joint right to appeal, 81. Judgment: against, several, 79: On remittitur, 82. Set aside as necessary only, 629. Jurisdiction, failure, 81. Jury verdict in equity, 80. Notice of appeal, 82. ,• Authorized representative, 88. Defective notice, 86. Filing shows service, 85. Form not prescribed, 88. Signed by attorney, 89. Order as final judgment, 87. Order or judgment, 83, 87. Pinal determination, 87. Form; not conclusive, 87. Orders aftef judgment, 83. Order, entry for appeal; 793. Party not appealing, 82. ■." Part of judgment only, 80. Party with no interest, 81. Payment of judgment, 81, 82. Acceptance of costs,. 84. Distinction stated, 84. Entitled to money absolutely, 84. Part payment; 82, 83. Pending appeal, 77. 1298 GENERAL INDEX [REFERENCES Appeal — continued. Prosecute with diligence, 78. Irregular dismissal, 78. Realty purchaser, 77. Remittitur, judgment on, 82. Judgment conclusive, 89. Regularity of order, 77. Res adjudicata effect, 960. Service as per order, 79. Incompetent 's appeal, 86. On attorney for petitioners, 86. Parties not named, 80. Special administrator, 79, 90. Statutory rights, 78, 91. Stay of proceedings, 80, 1039. Successive appeals, 79. Supreme Court, judgment, 82. Orders after judgment, 83. Taxpayer may appeal, 85. Time runs: result announced, 91. Conclusive, from minutes, 91. Due notice of hearing, 91. Judgment date excluded, 1095. Two appeals, same, 78. ■•• Voluntary relinquishment, 85. Waiver ; irregular judgment, 1217. Waiver of appeal right, 81. ( Clearly established, 81. Witness fund payment, 90; Writ of. error, 77; See also Aggrieved Persons. Bonds. Stat of Proceedings. Appeal Bond. See Bonds. Appearance, 92. After an execution saley 93. Amend return motion, 95. Asking such relief, 95. Appeal: saving objection for, 95. Trial on merits, 95. Appellate jurisdiction; 654. Attorneys: authority presumed, 92. Prima facie evidence, 93. Contesting on the merits, 94. Equivalent to ah answer, 94. County court practice, 96i Deposition; takes part, 340. Dismiss the appeal, 94. Equivalent to proof of service, 93. Executor; attorneys' fees, 651. General, on process defect, 92. Heir appears; estoppel, 400. Infant, after at age, 94. Jurisdiction of person, 95. Inconsistent step, 95. Specifically to object, 95. ARE TO PAGES. ] Appearance — continued. Party without state, 93. Purpose incompatible with defect, 93. Set aside judgment, 93. For said motion only, 94. Jurisdiction; irregularity, 94. Minor after at age, 94. True rule laid down, 94. Sole purpose of appeal, 94. Merits may be considered, 95. Special: on process defect, 92. Stay and open default, 93. Vacate and dismiss with costs, 95. Waiver of defects and process, 93. Waiver of appeal defects, 80. Examines witness, 340. Waiver of jurisdiction, 651, 654. Without process issued, 93. Appraisal. See Inventory and Appraisal. Arbitration, 96.: Court may suggest, not impose, 96. Errors of judgment, 96. Impeachment for fraud, 96. Clear mistake; 96. Pailure to apprehend fact, 96. Parol submission, 96. Publication of award, 96. Submission to judge, 96. Argument. See Affirmative. Assessment. See Condemnation. Taxation of Es- tates. Assignment, 97. Actual delivery, 98. To third person, 98. After acquired property, 98. Beneficiary under trust, 1129. Recognized in equity, 1160. Certificates of stock, etc., 98. Order, writing or act, 98. Check, funds pro tanto, 97. Choses in action, 98. Confidence personal contract, 98. Consideration unnecessary^ 97. Deposit books, funds, 98. Notice to bank, 98. Future earnings, 97, 99. Irrevocable transfer, 97. Judgment: assignee's title, 99. At common law, 99. Statute not ^conclusive, 91. Statutory provision, 91. GENERAL INDEX 1299 [REFERENCES Assignment — continue d . Land contract; notes, 665, 666. Life insurance, 601.' ■ Maintenance contract; breach, 126. Mortgage without note) 764. ! Note carries mortgage, 759. Possibility or expectancy, 98. Potential interest, 98. ' Promissory notes, in detail, 905. Bent, no formality, 97. By tenant in common, 97. Crediting on books; 97. Bents and profits, not, 1158. Salary to become due, 97. Trust personalty income, 97. Wages, non-existing employ, 99. Must be a contract, 99. : ■ Widow 's election share, 1225. Assignment of Estates. See Descent and Distribution. Judg- ments. Attestation. See Execution of Wills. : Attorney and Client, 99. Accord and satisfaction, 108. Administration serviee's, '39: Administrator personally, 39. Payment out of estate, 40. Admission: not qualified, 109. Striking from roll, 109. Agent, as collector, 101.' Aid questionable transfer; 102. Appeal, authority for, 106. Consult client, 106. -•'' Authority for non-residents', 101. Authority: presumed, 101, 104. Adverse party's rights, 104. Burden on party denying, 104. Denied by client, 104. Employ other attorneys, 106. Statutory relief, 104. Compensation, elements,' 103. Judge's qualification, 103. Question of value, 103. Witnesses differing, 103. Contingent fee, 142, 143. Corporate officer, attorney, 107. County court practice, 109. Dictation of counsel/ 104. Disbarment, 105. Criminal in nature, 105. Deceive the court, 107. 1 ; ■Desert for better pay, 305. Good moral character, 105. ARE TO PAGES.] Attorney and Client — continued. Disbarment — continued. ' Not of criminal nature, 105. Not strictly professional, 105. To entitle practice, 105. Disclosure as employee, 100: ' Discontinuance, 104. Attorney terminating, 108. Party the principal; 104. Special authority;' merits, 109. Division of proceeds, 142; ' Employ bther attorneys, 106. At own risk, 106. Pees in'* administration, '137. Collectible from surety, 137. Pees, when not employed, 106. ' ' Pile election by widow, 105.:'' Guardian's duties delegated, 21. Negligence of attorney; 21. Heirs bound by actions, 102: '' Lien:,' on collection order, 101.' ' i,! Cause of action, 101. •<■'•.' Judgment, 101. "■ ■ ; l: On settlement, 108. Taxable costs contract, 108. Limitatibr.- statute, wheri, 107. 11 Collection for client, 109. < 'Negligenee of solicitor, 100, '106.' ' Non-resident attorneys,' 101. ' Not 'admitted to bar, 102: Notice, imputed to client,' 106. Breach of confidence,, 10,6,. ,,, ., Employed, by another, 10,6., , Previous ^rans.ae.tiqn, 106. Offieer^of the court, 102, 104, 107, 109. ,,, Quasi^ of, /the state, ,102, 109.., Party is principal, 104,'^p6,.,107, ., Percentage agreement,, 101. Powers, as attorney, 1Q6. , , i Control of procedure, 108. , . Not, attorney of record, 109, Seasonable expenses, 107. Seasonably necessary things, 106. Sanction for expenses, 107. r Surrender of rights,' 108-. Waiver of procedure; 108. Privileged communications, in detail, ' SfEtO. Professional ethics, 102. Advise engaging attorney, 103. Purchase of client's property, 108. Deed set aside/ 108. ' Viewed with suspicion,: 108; ■' Purchase of pending claim, 144. Beceipt in 'full 1 demand, 102. ' ' •'- Becognition of other attorneys, 101. Betam collection charges, 102. ;J 1300 GENERAL INDEX [REFERENCES Attorney, and Client— ^continued. Services for wife; divorce, 364. Services, not claim, 44. Personal matter, 44. Settlement: by client, 101, 105. Against attorney's wish, 105. Attorney acquiring lien, 108. Attorney on one side, 104, 108. Other attorney available, 105. Taxable costs contract, 108. Substitution of attorneys, 108. ' Act without substitution, 109. County court practice, 109. Sureties for client, 101, 129. Traffic in litigation, 107. Trustee of purchased estate, 102. Attorney's partner and others, 102. Trustee's attorney, 107. Not the beneficiaries, 107. Personal as to pay, 107. Bepresents the trustee, 107; Undue influence by attorney, 102, 103. Witnesses for clients, 103. Pailure of justice, 103. Not accept retainer, 103. Surrender management, 103. Words spoken in' proceedings;: 100. See also Administration Expenses. Champerty , and Maintenance. Lien. Privileged Communica- tions. Auction Sales, 109. Auctioneer may sue, 110. Auctioneer's memorandum, 110. Agent for both parties, 110. Contemporaneous with sale, 110. Bidding for another, 109. Bidding jointly, 110. Purchaser, a quasi party, 109. Vendor's agent memoranda, 110. See also Sale or Personalty. Sale or Realty. Authentication, 110. Authentication, what is, 110, 111. Certificate to show, 111. Certified copies admissible, 110. Federal or state statute, 110. Originals in court, 110. * i Compared with original, 111. Certificate as to, 111. Exemplified copy, 111. Foreign judgment proof, 111. Judge ex officio clerk, 111. Numerous documents, 111. Court records, 111. Seal with clerk's certificate, 111. ARE TO-PAGES. ] Bailment, 112. Bailment is special deposit, 112. General deposit liability, 112. Bill of Particulars, 112. Amended like pleadings, v 112. Confined to items in bill, 112. Object is to inform, 112. Variance immaterial, 112. See also Pleadings. Bills and Notes. See Promissory Notes, etc. Birth, Age, Death, and Proof of Hei ship, 113. Baptismal certificate, 113, 114, 115. Church registry entry, 113, 114. Copies stipulated, 114. t Family record, 115. Father may prove, 113, 115. Memorandum by him, 115. With family record, 115. Identity of the persons, 114. Antiquity of documents, 115. Independent proof of, 114. Kin ; relation; 658. , Law when offered, 114. Legitimacy, 685. Material fact in certificate, 114. Marital status of mother, 114. Minority; burden of proof, 115. Minor may testify, 113. Mother may testify, 113. Party himself may testify, 113, 114. As to o.wn age, 115. Knowledge from parents, 115. Personal presence proof, 113. Register of deeds certificate, 113. See also Heirs. Blanks. See Omissions. Board Claims. See Services. Bond for Maintenance, 116. Absence of agreement, 121. Action by administrator, 124. * Administration not settle, 120. Assignment of covenants, 118, 122. Contract not delegable, 123. Breach wholly by grantee, 122, 124. Claim filed for support, 120. Cloud on title removed, 123, 125. Contracts out of ordinary, 117. GENERAL INDEX 1301 [REFERENCES Bond for Maintenance — continued. Compliance made impossible, 124. Gould not demand rescission, 124. Conditional sale of property^ 120. : Condition subsequent, 117, 122, 123, 125. Conveyance so rescinded;' 119. Liberally so construed, 119. Unless contrary intent, 119. Voluntary conveyance rule, 119. Conduct afterward condoned, 117. Damages for support, 122. Breach wholly by granteee, 122. For partial breach, 122. Decease of grantee, unexpectedly, 123. Not ground for rescission, 123. ■ Dissatisfaction only, 120. Election, two obligated, 121. Election to rescind, 124. Entire nonperformance, 117. Settled law of state, 118. Sufficient to rescind, 118. Equity grant proper relief, 117, 122, 126. Quiet title, 123. 'Rescission, cancellation; 117, 123, 126. Wife alone may act; rl26. Estoppel by administration, 120. i Executory performance, 122. Failure: to demand support, 121. Substantial failure, 126. Without justification, 123. Foreclosure: complaint, 118. Judgment for breach, 122. Prayer for sale disregarded, 118. Strict foreclosure nature, 118. Forfeiture not relief, 118,-123, 125. Grantee complies with, 119i Grantors first breached, 124. Could not demand rescission, 124. Full money equivalent,. 124. >' Grantee's compliance, 124. New contract, full payment, 124. Husband's duty to support, 121. Joint tort feasors, 125. Decease of one, 125. Separate findings, 125. . Lease given with notice, 120. Mutual rescinding, 126. Eights of third parties, 126. Over-payment relief, 118. ,, Parol: addition to contract, ,119. Parol contract performed, 119. Penalty: sum named, 117. Not for payment of farm, 122. ARE TO PAGES. ] Bond, for Maintenance^continued. ,, ,, Permanent improvements, 119, ,,121. Consent of both parties, 124. Personal, by grantee, 126. , > , Assignment, a breach,,. |126. . Condition supplied, 126. Grantee; not others,, 126,, , Personal care required, , 122, 125. Property : to remain intact, 121. Not expended for , support, ,12] . Not to pay condition, 126.,, By new mortgage; 126. Security* for breach, 12,1,. ; Provision elsewhere, 117. Quiet title, 123, ,125.. Rescission, cancellation, 117, 122, 123, 124., Remedy to remove cloud, 125. By, special administration, 125. No administratipn,, 125. . : Eights of heirs settled, 125. Eescind on future failure, 119. Self interest,, absent, 117. ,,.,,, Separate instruments as. onq, 120. ,," Survival of action, 125., Testimony of, grantor, 123. . ,, Third person 's benefit, . 127 fl , Contingent, condition precedent,, 127. Lien on the land, 127. Third persons : parties, 126. Contract mutually rescinded, 126. Estoppel as i to, payment claim, 126. Vested irigjits of, 126. ,, Trust for,, support, etc., 120. Deficiency of assets suit, 121. In trust for own use, 120., Not expressed , in, form, 120. Sums to other children, 12Q. „ ,,,,. Void as to creditors, 120. Uncomfortable in family, 117. Undue, influence contract, 125. , Voluntary , conveyance, rule, ,119. Waiver; ■ of , str;L<$ , performance, 120. Competent ,tp waive, ,121, Waiver for time .only, .121. Wife alone may bring action, 126. Especially if nomesteaded,' 126. See aiso Eescission op Contract. Bonds, 127/ Accept after twenty days, 138. After ; stay granted, 138. Account':' not settled, 137. Guardian 's' notes, mortg., 137. Accrual, 'time of, 129i Additional bond, 132. Default before such bond, 133. 1302 GENERAL INDEX [REFERENCES Bonds — continued. l Additional bond — continued. Effect of court's order, 133. Guardian insolvent, 133. Liability under, 132, 137. Eeleaae of surety, 132. Subsequent waste, 133. Adlrirl de bonis non, action, 129. Appeal bond: incompetent, 128. Admr. of another estate, 134. After sixty days, 79, 84, 89. At trial, filed, 90. Costs in supreme court, 138. Guardian adverse party, 128. Guardian relieved from, 82. ' Judged refusal to fix, 128. Limited to circuit court, 138. Not running to judge, 137. Special administration, 130. Substantial compliance, 88, 135. Sureties; held to language, 1062. Not impeach judgment, 1056. Undertaking approved, 137. •Words "-"o effect" omitted, 135. Appointment, -includes qualified, 1058. Approval : ' is directory, 128. Filing, as approval, ' 129. Sale of minor's realty, 128. "As" before' ''administrator/' 132. Attorney as surety, 129. ! >' ' Absence of proof, 129. Civil or criminal, 129. Includes every action, 129J Attorney's fee's a lien/ 137. Authority to sue, 132. Informal order, 132. Revoke authority, 132. Breaeh: ' clearly shown, 131. Absconded or died, 1059, 1061. Fixed by judgment, 1059, 1060. Insolvent, insolvent bank, 1059; Judgment concludes sureties, 1060. Principal to indemnify; 1059: Sue; permission; notice, 1061. Sureties' estate' settled, 1061. Clerical mistake in, 131. Complaint: as to breaeh, 131. Assailed first at trial, 131. Contribution of co-surety, 130. t Corporation,, signing, . 136. Court not dispense with, 128. Damages exceed penalty, 133. If principal so liable, 133. Interest from breach, 133. Demand not required) 130. Attorney's demand, 130. ■ ARE TO PAGES. ] Bonds — continued. Evidence of breaeh, 129. Certified copy of order, 129. Executed before order made, 131. Sureties estopped, 131. Exception only for default, 129. Failure of co-sureties to sign, 134. Authority to deliver, 134. Between man and man, 134. Public policy in estates, 135. Failure: of principal to execute, 133. Of some obligors named, 134. Failure: to account, 129, 131. To administer, 134. Failure to return inventory, 131, 134. Guardian's penalty, 133. Interest: from breach, 133, 136. Controlled as to principal, 136. Damages exceed penalty, 136. Demand when required, 136. Other money contracts, 136. Judgment for penalty, 129, 132. Guardian's bond, penalty, 133. Limitation: twenty years, 129. Contract limitation, 137. Four years before action, 136. Notice: leave to sue, 130. Sureties not entitled, 130. Permission, ex parte, 130. Partnership appeal bond, 131. Bind all partners, 131. • Heirs of all bound, 131. Signed, partnership name, 131. Principal's discharge by law, 135. Refusal to fix penalty, 128. Remedy, cumulative, 128. Retroactive effect, 134, 137. Sale of realty bond, 133. Liability therein, 133. Special administrator 'b, 128. Not as regular, 128. Stay of proceedings, 135. Substantial compliance, 132. Substituted bond, 137. Guardian's individual mortg., 137. Guardian's individual notes, 137. Liability at time, 137. Notice not given, 137. When cumulative, 137. Sureties: concluded by order, 130, 135. Bound like principal, 130. Collusive judgment, 130. Notice unnecessary, 130. Though not parties, 130. Trust company, exempt, 1124. Trustees^ mandatory, 136. Bond before title vests, 1131. GENERAL; INDEX 1303 [REFERENCES Bonds — continued. Trust; bond to account, 444. Undertaking approved, 137. Filed later, 88. Void: guardian appointment, 135, 136. Binding at common law, 136. Lack of jurisdiction, 136. Settlement with the ward, 135* Sureties liable on bond, 135. Voluntary obligation, 136. Voluntary bond, 136. "Ward or guardian as party, 131. Ward's public sale, 587. Summary sale, 586. See also Sureties. Bond to Fay Debts and Legacies, 138. Final judgment, effect, 139. Property subject to debts,- 139. Bemedy of creditors, 138. Not limited to bond, 139. Action in circuit court, 139. Title: of whole estate, 138. Passes by the will, 138. Further proceedings, 138. To admr. de bonis non, 209. : Action for funds, 209. Books of Account. See Account Books. Books of Science, 139. Admissibility of, 139. Expert testifying, 435. Beading, discretion, 139. Arguments to jury, 140. Testifying to contents, 139, 140. Brokerage. See Commissions op Brokers, etc. Burden of Proof. See Affirmative. Evidence. Fraud. Undue Influence. Burial Expenses. See Funeral Expenses. Calling in Other Judge. See County Judge. Cemetery Lot. See Dead Bodies. Certificate of Deposit. See Monet. Promissory Notes,, etc. AHE TO PAGES. ] Certificate of Descent. , See Descent and Distribution. Certified Copies. See Authentication. Certiorari, Writ of. See Writ of Certiorari. Cestui Que Trust, 141. Deceased cestui que trust, 141. , ■ Extrinsic evidence, 1141. Parties to equity suits, 141. See also Trustees. Trusts. Champerty and Maintenance, 141. Appearance is' authority, 142. Champerty denned, 142. Contingent fee, 143. Contributors to test ease, 143. Common, interest, 143. Common law in' force, 141, 142. Compensation of attorney, , 1421 Dismissal of action, 142, 143, 144. Division of proceeds, 142, 143., Expenses to be paid, 143. Interest in suit, 1431 Knowledge of court, 143. Maintenance defined, 142, 143. Percentage of proceeds, 142, 143. Pleaded, need not be, 144. Proved without an issue, 142. Purchase, of client 's claim, 144. , t Stirring up litigation, "143. ' ' Strictness relaxed, 14ll Transfer to attorney, 144. Chancery Court. See Equity. Change of Venue. See Venue.'- Character, 144. Acquaintance with party, 144. ' Knowledge of character, 144. . See also Impeachment of Witnesses. Charitable Bequests. See Charitable Trusts. Charitable Trusts, 145. Abolished, except by statute, 147, 148. Account compelled, 146. Attorney general, or party, 146. Alternative^ one valid, 151." Ambiguity, latent, removed, 150. Confusion of names, 150. ■> 1304 GENERAL INDEX [REFERENCES Charitable Trusts — continued. Associations of individuals, 146, 155. Beneficiaries uncertainty, 146, 147, 152, 154, 155, 156, 158. Conflicting earlier cases, 148. Donee or devisee uncertain, 151, 152. Doubtful trust favored, 157. Essential element of charity, 148, 152. Power of selection, 148, 152, 156. Trustee select beneficiaries, 155. Beneficiaries of the trust: Blood relatives, heirs, 151. Castastrophes, elements, 156. Church charitable work, 159. • City, "a public library", 152, 155. Business men's ciub room, 152. Home for aged poor, 153. Lands for driving park, 153. Manual training school, 158. To trustees, then to city, 155, 158. Erect an orphan asylum, 149. Expended for temp, work, 154. Heirs who are in need, 151. Locality not restricted, 148, 156. Benefit suffering humanity, 156. Poor at Ness, 157. Masses for repose of souls, 153, 157. Most needy and deserving orphans, 152. Orphans of a diocese, 147. Poor of city of G. B., 151. Belief of residence poor, 150. Subjects worthy of assistance, 156. Superannuated preachers, 155. Support a Baptist colporteur, 152. Unincorporated societies, 146, 159. Worthy indigent females, 147. Young, in useful arts, 151. City: for public library, 152. Bonds to be issued, 159. Business men's club room, 152. Compelling cause to raise money, 159. Condition, name and tuition, 158, 159. Conditioned on raising fund, 158. Home for aged poor, 153. Legal and beneficial title, 156, 158. Manual training, 159. Manual training school, 158, 159. May accept for legal purposes, 153, 158. Perpetually administered, 159. Eeverter not implied, 158. Same duties and regulations, 159. ARE TO PAGES. ] Charitable -Trusts — continued. City — continued. To trustee and then city, 155, 156. Unimportant accessory, 153. Construction of wills, in detail, 237. Cy pres doctrine, 147, 150. Judicial power, 150, 155. Devise to trustee, then city, 156. No trust: limitation invalid, 156. Educational institutions, 158. Equitable conversion, 148, 149. Applied to realty for masses, 157. By necessary implication, 153. Equivalent to direction, 155. Overrides perpetuity statute, 158. Bules in detail, 380. Extrinsic evidence as to name, 150. Failure of a trustee, 149, 154, 155, 158. Chancellor's judicial power, 150. Court power to appoint, 155. Equity supply trustee, 149. Will not to contrary, 152. Favorable leaning for, 147. Forfeiture declared by trustee, 160. Formality not required, 158, 159. Heirs, who might be, 151. Incorporated subsequently, 147, 148, 149. Creation of new corp., 149, 151. Establishing corporate existence, 151. Beligious societies, unincorporated, 151, 152. Indefinite public charities: Abuse of selection power, 148. Blood relatives, as heirs, 151. Chancellor's judicial powers, 150. City, for various purposes, 152, 153. Limited by amount, 148. Locality not restricted, 154, 156. Narrower than field, 156, 157. No provision for selection, 151. Power of selection, 148, 152, 156. Purpose at large, 150, 156, 160. Bules, public trusts, 154, 157. Scheme sufficiently indicated, 150, 159. Uncertainty of douee or devisee, 151, 152. Leading cases, 149. Previous cases harmonized, 154. Legal and beneficial interest, 156. Limitations void, 156. No trust created, 156. Locality not restricted, 154, 156. Masses: for self and others, 153, 157. Benefit of all mankind, 157. Particular persons; general, 157. GENERAL' INDEX 1305 , [BEFERENCES Charitable Trusts — continued. Masses — continued. Eealty and personalty for, 157. Valid, when clear and direct, 154. Mixed trust and fee, 156. Mixed trust and power, 152. Mortmain statute, 148, 766. Narrower than field gen'ly, 150, 156. Indefinite number of person's, 157. Limits of purpose ascertained, 160. Particular persons and gen'l, 157. Perpetuity: statute, realty, 148. Both legal and beneficial interest, 156. Condition subsequent imposed, 156. English doctrine, 148.' ■ • ,, \ Equitable conversion, supersedes, 158. Gifts for charitable uses, 155/ 156. Implied power of sale, 153. Limited to realty, 148, 158. Perpetual race track, and aged home, 153. Personalty, not prohibited, 156. Prohibition ineffectual^ no trust, 156. Eealty not to be sold, 153. Eealty under power of sale, 148, 156. Eeligious corporations, 150. , Eules, instances, in detail, 838. Statute now includes realty, 153, 158. Suspension three years, 156. Power of sale, implied, 153. Negation of sale, limited, 153. Private from public trusts, . 148, 157. Charitable church work, 159. Definiteness different, 152. Masses held to be both, 153. Private trusts different, 160. , Eeversion, failure in conditions, 158. Rule,s governing public trusts, 154. Agency, invoke judicial power, 155. Correct essential points, . 154. Good trust stated, 154, 159., Indefinite beneficiaries, 154, 155, 156, 158, 160. ' : Indefinite details, 154, 155, 156, 159, 160.' Indefinite methods, 154, 156. Perpetuity statutes, 155. Precedents slightly useful, 157. ' ■" Trustee determine details, 155. Trustee selects beneficiaries, 155, 156. "Want of trustee, 154, 153. Title: in archbishop, 149. City donee, 152; Donee uncertainty, 151. Held by persons executing, 158- ARE TO PAGES. ] Charitable Trusts — continued. ' Title — continued. Legal and beneficial, 156. Necessary , implication, 158. Temporary in trustees, 151. Trustees in. detail, 1118. Trustees three years, then city, 156. Trusts, in general, 1141. Unincorporated institutions, 146, 151, 159. Uses and. trusts : statute, 147. . Limited to realty, 148. No application to personalty, 159. Nor charitable, trusts, 158. Vague and indefinite number, 158, 159. Vesting of estates, in detail, 1195. Void, in part, valid in part, 151, 152. Certain lands, alienation suspended, "'..153. . /. . ..,..,' Unimportant accessory, 153. Void unappealed Judgment, 155. See also Cy Pbes. Equitable Con- version. Trustees. Trusts. Chattel Mortgage, 160. After acquired goods, 160. Subsequent mortgage, 161. Continuation of business, 160. Expenses of family, 160. Crop before existence, 160. Crop sharing agreement, 161. Discretion in mortgage,, 160. Effect as to fixture, 448. ' Fixture, to vendor of, 160. Mortgagor may sell, 161. ' Title: legal in mortgagee, 161. Equitable in mortgagor, 161. Interest is special, 161. Purchaser, how obtain, 161. Vendee may protect interest, 161. Checks, 161. Acceptance by bank, 162, 163. Action on check, 162. Administrator's rights, 162; • Assignment, pro tanto, 162. Conversion of checks, proceeds, ,163i Decease of maker, 162. - ! Contract payment, 162. Depositary, safely pay, 162. Notice of revocation, 162. Depositary 's rights, 162. "When liable to holder, .162.. Effect ;of, cheek,, 162. , n Impliedly "asserts funds, 162. Paid, in full, stated,,' 10. Present, reasonable • time, 161. Closing hour, next day, 161. 1306 GENERAL INDEX [REFERENCES Checks— continued. •-■ Revocable as such, 162. Contract effect, 162. Notice of revocation, 162. Splitting up debt, 162. Transfer pro tanto, in equity, 162. Tender: not in court, 1077. Stop interest; no objection, 1078. Chose in Action, 163. Covenant against incumbrances, 163. Executor receiving,- in payment, 163. Informal transfer, 163. Not specific legacies, 163. Subscription paper, 163. Circuit Court, 164. Administration on appeal, 33. Appeal after sixty days, 165. Abuse of discretion, 165. Bad faith and laches, 165. Counter affidavits, refusal, 165. Requirements of justice, 165. Appeal bond, county court, 164. Appellant jurisdiction, 164. Claim.: pending action, 164. Claims, against decedents, 165. Creditors ' action for assets, 165. Custody and guardianship, 166. Findings in equity cases, 166., Jurisdiction with county court, 164, 16'5, 208! Decedent estate claims, l6"5. Dissipation of trust funds, 165. Enforce trust in lands, 164. Equitable claim, not filed, 165. Guardianships, 164, 166. Legacy and trust matters, 165. , i ( Without statutory authority, 164. Land contract, county court, 164. Pending in county court, 481.' ' ! Will, probate appeal, 166; See also Appeal. Concurrent Juris- diction. Equity. Citation. See Discovert. Claim for Services. See Services. Claims, 166. Accrual: at time of loan, 178. Arising after death, 178. ! •• Before death of either party, 178. Conditions of accrual, 178. No person in existerice, 178. ARE TO PAGES. ] Claims— ^continued. Action: against heirs, 169, 171. Against executor, 170. Arising after death, 178. Claim filed, not paid, 173; Deceased bank stockholder, 176. No notice for claims, 170. Nonresident foreign judgment, 175. Of 'surviving partner, 174. Presumption of claim filed, 170, 179. Residuary legatee bond, 176. Setoff: action by extr., 179. Specific realty and pers., 170. Suit on extr's. bond, 175. Will probated only, 169. Administrator: personally liable, 168, After payment \ordered, 175. Duty to defend ; expenses, 174. Premature disposal of assets, 180. Adverse examination, 174. Against ward's estate, 181. Ancillary administration, 175, 179. Appeal: in circuit court, 169. ' ' New items,- not allowable, 73, 74. 1 Part not appealed from, 169. Payment directed, 169. Trial de novo, 173. Barred: by disallowance, 168. Extinguishes the claim, 175. Erroneous filing, 178. Failure to file, 170, 171, 172, 175, 177, 178. Failure to plead bar, 175. Fraud held not excuse, 178. Infants and married women, 178. Nonresident creditors, 175. Eight and remedy also, 171, 175. Claims: what are, 172. After decedent's death, 172. Irregular filing as claim, 180. Revoked admn. expenses, 175. Under city charter, 1242. Commencement of action, 168, 174. Limitation statute, 168, 169. Conditional allowance, 168. Contribution, joint claim, 171. Against deceased co-surety,, 173. County claims for insane, 180. Coverture defense, not apply, 179. Deceased stockholder's liability, 176. Against residuary legatee, 176. Dividends fraudulently pd., 176. Fraudulent stock sub., 176. Defective proceedings, 172. Erroneous filing, 179. Order and notice together, 174. GENERAL INDEX 1307. [REFERENCES Claims — continued. Deficiency; judgment, 173, 177. Of- assets, how ascertained, 173. Premature legacy payment, 180. Disallowance, bar, 168. Method, in part, 168. Reason, immaterial, 168. Equitable claim: not filed, 172, 174.- Agreement to apply profits, 172. County Court jurisdiction, 170. "Estate," creditor and person, 179. Evidence: of no claims, 171. Inherently improbable, 174. Exceptions, as to filing, 170. Execution of instrument, 174. Common law proof, 174. Executor's claim, a debt, 180. Payment without filing, 180. Express trust claim, 173. Extending time: specific claim, 168. Abuse of discretion, 173. On facts alleged, only, 179. Verified petition; answer, 179. Porelosure deficiency, 629.' Foreign : disallowance, 174. Allowance; not filed, 175. Foreign judgment, valid, 455. ' Fraudulent release of mort., 178. Funeral expenses, 479. ■■ Funeral and last sickness, 180. Husband for wife 's support, 179. ' Services for wife, 181.; Inconsistent, defeats, 181: Infants and married women, 178. Insolvent estate; security, 744. Interest, in detail, 607. Interest: ten per cent, 171. Judgment, legal rate, 171. Irregular filing as claim, 180. Allowance affirmed, 180. Joint and several claim, 169. Contribution to estate, 171. Discharge of all, 171. Filing, a new remedy, 169. Payment by executor,' 171. Revivor of suit brought, 169. Joint obligations, 617. . Judgment: on claim, 169; 171. Against Extr: after time exp., 179. Claim merged therein, 171. Ten per cent int. merged, 171. .Jurisdiction: in probate, 172. Other courts, limited, 172. Land contract claim, 168. ~ Tender of deed, 168. Limitation statute, 168. After decease, before filing, 168. ARE TO PAGES.:] Claims — continued. i Limitation statute — continued. Failure to plead statute,. 175. .. . Filed,! but not .acted on, 169. ,, . Filing .stops running, 169. Non-claim applied rigorously; 175, 178. ,■■.,, Sec: 3841 in circuit court, 176. Statute once running, 177. Suit pending at decease, 169.. "Within year of letters issue, 168. Note, payable after decease, 178. Note secured by mortgage, 760. Not barred: mortgage [agreement, 172. Deceased- stockholder in bank, 176. • Defective proceedings, 172. , Judgment against executor, 179. Nonresident creditors; 175, 179. Partition in; county court, 173.. Subordinate to claims,, . 173. Partnership accounting, 1070. Not barred by sec. 3844,. 1070. Partnership transaction,. 170. After, estate settled, 174. .,;. Payment: extinguishes, 167. Before time, without filing, 180.ij:i ' Effect of order for, 175,. 180,. Notice of application, ,175. Not pleaded in county court, 1016. Order for leave to sue, 175. . Premature fund disposal, 180..'/.' Presumption': claim filed, .170. • ■ t , Facts otherwise; pleaded, 180. u, / In action against heir, 179. ■'• Presumption of.no debts,, 321. , ( Proceed in -county court, 170, 171. . . Policy to so confine, 172. ' » IW'! Property of deceased persons, 170. - Chargeable for debts, 321. i. , it Testate or intestate, 321. Remedy; exclusive, 168, 175. . s-v. ,a .,,, Revival of [barred debt/ 708, 709. ..-. Sale of realty for claims, 173. Before claims allowed, 180. ' i j Limited to three years, 173. .,'!., Set off in an action,. 172, 179. ! >,. , i Personalty converted, applied, 1015!) Realty, valuei of applied, 1016. . ,i. Right of filing exist, 172. <-, . Specific realty or personalty,.. 170. Subrogation claim, 177. Mortgage lien right, 177: ' Support, absolute right, 176. Title: claim contest, < 168. . Without administration, 177. Volunteer personal attentions, 177, I Waiver of heir V rights, 1218," ■ '■ ■ " 1308 GENERAL INDEX Claims — continued. Wife's subrogation claim, 177. Mortgage lien right, 177. See also Actions Against Extr. or Admr. Amendment. Concurrent Jurisdiction. Contingent Claim. Debts. Limitation or Actions. Pleadings. Services. Setoff. Clerical Errors. See Mistake. Code, The, 181. Abatement and in bar s 852. Abolish all distinctions, 181. Broad as old practice, 181. Change of form only, 181. Complete substitution, 181. Cross bills abolished, 181. Discontinuance not affected, 353. Enacted in 1856, 181. - Father of our code, 182. Old bill of review, 182. Pleadings ; strictness abrogated, 849. Codicils; 182. Cut down positive gift, 182. Positive terms required, 183. Evinces a desire, 182. Not effective on will, 182. "Words precatory, 182. Not based on valid will, 182. Nuncupative codicil, 182; Eevoked bequest, intestate, 258. Two wills, as will and codicil, 182.' , Will and codicil; one, 248. Will effective, except as modified, 248. See also Construction of Wills. Wills. Co-Executor. See Executors and Administrators. Collaterally, 183. Administrator's appointment, 652;. ! Conclusive, when> 188. Executor's attorney's fees, 651: Judgment not impeached, 183. Jurisdiction, 183, 640. Probate not avoided, 183. Collateral Security, 183* Estate assets pleged, 184. Executor's personal use, 184. Liability of estate, 184. Executor's powers,^ 184. Pledgor and pledgee, 184; [REFERENCES ARE TO PAGES.] Collateral Security — continued. Eeasonable diligence, 184. Recover entire amount, 184. Surplus for principal, 184. Trustee less* power, 184. Neglect and delay, 184. Without defense notice, 184.- See- alsoi Marshalling Assets. Commission for Deposition. See Depositions. Commissions of Brokers, etc., 185. Abandonment, 191. Procuring cause, 191. Strategic purposes, 191. Acceptance, construed as, 189. Agent for both parties, 186, 190. Assent of both principals, 186, 18.7, 190. Ignorance of other party, 188. Pay from each, 186. Procure' interview, 186. Broker as purchaser, 186. Jointly interested, 191. No recovery, 191. Broker: defined, 188. Custody or possession, 188. Payment for property, 188. Name of principal, 188. Conveyance to another party 189. Custom relied on, 187. Evidence of purchaser, 190. Exchange of properties^ 187. Exclusive agency, 189, 190, 191. Sale by principal, 191. Failure to disclose principal, 191. False representations, 191. As to other brokers, 191. Favorable to broker, 188. Fixed price by seller, 190. Pay from both parties, 190. Many agents, for sale, 190. Middleman, 191. Other offers, 190. Payment to one, 190. Middleman merely, 188, 189, 190. Assurance of broker, 190. Failure to disclose principal, 191. ' Fixed Lis own price, 1 190. Take pay from both, 190. Money to be raised, 189. Pecuniarily able, 189, 191. Principal makes sale, 191. Principal reduces price, 185, 187. Procurement: of broker, 185, 186, 187, 188, 191. Of interview only, 186. GENERAL INDEX 130.9 [REFERENCES Commissions of Brokers— continued. Produces party ready, 185, 187, 188, 189. Purchase at lower price, 190. Another agent sella, 190. Eefusal of principal, 185, 187, 189. Requirements stated, 188. Satisfactory deal, 189. Several brokers recover, 191. Signs for purchaser, 187. Special contract, 187. Title: failure of, 188, 189. ' Bank held liable, 189. Performance made impossible, 189. Commitment. See Custody and Commitment. Common Law, 192. Abatement and in bar, 852. Abrogating common law, 194. Not by implication, 194, 195. Action in actionable form, 194. , Adoption ; civil law, only, ,54. Agent's testimony,, 195. , Arbitration, 192. Beginning period, 193, 194. Begulation period, 19,4. Champerty and maintenance, 193. Constitutional provision, 196. Construction of pleadings, 194. Covenant for enjoyment, 194. .... Covenant implied; changed, 301. Curtesy,, requisites, 313. ■• Deed without witnesses, 194. Devise, same as intestate, 351. Discontinuance right, 195. Domestic animals, 195. Herbiverous, 196. Election for insane, 195. Election of widow, 1222. Entirety estates, 192. Exists in the states, 193. Constitutional provision, ld6. Fundamental idea, 194. Revolution, dividing line^ 193, 194. Wisconsin, when, 193. Fundamental idea, 194. Husband and wife testifying, 193. Husband and wife generally, 535. ' Infants' rights personal, 192. Interest recovery, 195. Unliquidated demands, 195. jurisdiction presumption, 193. Married woman; rights, 192. Act void, hot voidable, 195J Earnings of, 193. ARE TO PAGES.] Common Law — continued. Married woman — continued. Bights, in detail, 535. Negotiable instruments, 836. Payments; ' several liable, 836. Next friend, significance, 1243.' Parent and child, 798. Party's testimony, 195. Perpetuities in personalty, 841. Presumption: stale claim, 192. Residence within state, 192. Probate court: offspring, 192. Probate of wills, 898. Bealty, personalty, 898. Proceedings outside of, 195. Property in common, 193. Severance of same, 194. Real estate descent, i'93. Realty of decedent, 932.' Rent paid in advance, 192. Setoff, statutory, 192. Signature presumption, 510. Statutory remedy cumulative,' 955. Summary manner, 195. " Usages validity, 194. Vacating judgment, 193. Variable: in places, 196. As a system, not^ 196. Conditions change, 196. Different times, 195. Writ of error, 1256: Writ of ne exeat) 1257. Communications with Deceased Per- sons. See Transactions with Depeased Persons. Compensation of Administrator, Execu- - tor, Guardian and Trustee, 196. Additional counsel, 199. Administrator as trustee," 203. " Attorney as administrator, 199. Discretionary power, 200. Extraordinary services, 200. Legal services, outside duty,' 2001 Commissions allowed, 13, 15. I '"' Contract for definite sum, 199. Ordinary situation, 199. Situation changed, 199. Trustees not by contract, 202. ' Costs and fees, rules, 198. Evidence, not bound by, 197> 202, 440. Executor: entitled.' to, 197.' Executor and as trustee, 202. Not his partner, 197. Extraordinary services, J97. Court rule effect, 198, 200. 1310 GENERAL INDEX r REFERENCES Compensation of Admr., etc.— continued. Extraordinary services — continued.; Court's view, is test, 197. Experts not binding, 197. Itemized,, should be, 197, 200, Legal services , are, 200. ; , Guardian ad litem: ,. Allowance before services, 200. Additional counsel 199, 201. Leave to employ, 199. Seasonably necessary, 199. Without court order, 199. Consent immaterial, 201. Contract fox definite sum, 199. Changed situation, 199. , Court has fhe power, 199. Days in court, $16.50, 203. Out of court, $8.75, 203. Duty of court,, 198. Enforce payment, 198. Executor's Attorney's work, 202, Fixed by, proceedings, court, 201. Foreclosure and sale, , 198. In lower court, 203. In supreme court, 203. Legislative authority, 201. Lien on ward's title, 1,98. Not liable for .costs, 202. . , Official emoluments, , 198, 199, 201, 202. , ,,, ,, . Out of the estate, 197, ,200,,.' ; Paid out of estate, 197, 200. Not so paid, 200', 201. Proof and notice required, 202.' Public officer, 199, 202. Bate of compensation, 201, 203. Bealty income, corpus, 198. Reasonableness j. 198. , Reasonable sum,, 203, Reduced on appeal, 20L , Statute not mandatory,, 201. Unsuccessful, contest, 201. Without compensation,, 199. Maladministration, 203. Trustee: of implied trust, 198, Breach of trust, 198. Cestui, que trustent, 202, Discretion of the court, 202. Executor also as, trustee,, 202. , Proportionate division, 202, , Income and corpus, 20?. : May be direct to attorneys, 202. , Not bound ,by the testimony, 197. Not contract controlled, 202. Official emoluments, 199. Reasonable attorney's fees, 202. Supreme court may fix, 202. ARE TO PAGES.] Compensation of Admr., etc. — continued^ See also Administration Expenses. Costs and Fees. Competency of Witnesses. See E vi de nce - Husband and Wipe. Impeachment op Witnesses. Objections, Transactions with Deceased Persons. Witnesses. Composition. See Compromise. Compromise, 203. C6mplete bar, when, 204: Composition defined, 204. Debtor and single creditor, 204.' Compromise, definition, 204. Conditions^ afterward different, 205. Conditions for compromise, 204. • Effective compromise, 204. ' Favored in the law, 205. Fraud negatived, 205. Fruits of, retained, 2. Payment part for whole, 2/ 204. Not consideration, 204. Receipt in full, 204. Settlement, how, 205. Signing, knowledge presumed, 205. Against signer's statement, 205. Uncertainty, facts, law, 205. See also Accord and Satisfaction. Settlement. Computations of Estates, etc., 205. Annual payments; support, 591. Complicated computations, 206. Mortality tables, 205. Present value of estates, 205. Wife 's inchoate dower, 205. Computation of Time. See Time. Concurrent Jurisdiction, 206. Adequate and complete remedy, 164, 207, 208. ' , Action to enforce trust, 2Q8. Executor of estates; ' 211. Insolvent bank suit, 209. Deceased stock holders, 209. Enforced only in equity, 210. Legacy payment action, 207. Circuit Court, 207. County, not exclusive, 207. Nature of trusts, 207. • Receipts in full; 207. With county coMrt, 207. Partnership accounting; ■ 21L Preferred claim, 211. Eesiduary sole legatee; 209. Action for personalty; 209. Personal Estate, 209.. Sales of irealty set aside, 208. • Settlement of estates, 207, 208. Speeial. ; circumstances, 210.. Suspended jurisdiction, 208. Title to personalty; directly, 211. Trust, after estate settled, 208, Prevent dissipation,, 208, , , ; Trust enforcement, 208. Trust execution, 208. Waiver, failure to raise, 208. See also Circuit Court. 'Equity. Jurisdiction. Condemnation, 212. ■ "' Appeal; special authority, 78. ABE TO PAGES.] Condemnation — continued. <; ' Benefits: to offset value, 212. Excess of. land taken, 212. . Under different statutes; 214. When no damages, 214.i ; Damages" sustained,, 214. Depreciation,'. 212. Elements or items, 212. Liberal discretion, 212. Evidence in,; 212, 213. Examination, 212. Liberal rule, 213. Expert testimony,' 212. Value of other realty; 213. Inducements of any kind, 213. Notice of time and place, 212. Owner or occupant only, ,214. Not waived by demand, 2l2. Public good only, 213. Private considerations, 213. Rule' of damages, 212, ; i • i , Street appropriation, 1. Value of land, 213. As between parties,, 213. Other realty, 213. , Recitals in deeds, 213. Verdict must contain, 214. View of premise's, 1 .212. , . , t,. Court's! statement, ,213. , . . - TJse knowledge, 214. , , Conditions,, See Bond, : for Maintenance. Con- struction of Deeds. Construc- tion of .Wills. Devises., i Vest- ing of Estates, etc. . , .ill Consent. See Agreement. Jurisdiction. , Stipu- lation. Consideration, 215. i Additional, parol evidence, 215, 216. Love and affection, 216., ,_,, v ,.,j Antecedent indebtedness, 217. Part payment, 217. ,, ( ,,-_, j L j Cash;, express or implied, 809. , Consideration defined, 215,. , • , Burden or benefit, 217. , . Debt extinguished, 219. By operation of law, 219. Debt of another;"new, 47l, 472. Decedent 's ' notes, heir, 217.''' Defense of without, 908. " - Extension of time, 217, 917. Failure; parol evidence, 215, 217. Between original parties; 217. 1312 GENERAL INDEX [REFERENCES Consideration — continued. Failure — continued. Immaterial, when, 218. Verbal agreement, 216. For value received, 216. Fraud; third person, 467. Frauds, statute of, 470. Future sales, memoranda, 215. Guaranty consideration, 490.. Husband to wife, 216. Care and attention, 218. Not a valuable, 218. Inadequacy of, 216, 218. Badge of fraud^ 217. Exception to pay money, 218. Fraud, makes void, 218. Prima facie valid, 218. ■ In writing, when, 470. Modify agreement, 217. After execution, -812. Original illegal contract, 216: Past consideration, 216. Parol evidence, 215, 216, 217. Various detailed points, 802. Partial failure, pro tanto, 215. Particularly set out, 216. Proof of failure, 216. Additional, 216. Promise for promise, 219. Bealty conveyance, 218. Benefit of third person, 127. Eecitals in deed, 215, 218. As having been paid, 219. Entire contract, 217. Inconsistent with, 217. Manner of payment, parol, 328. Not conclusive, 217. Belease of third party, 218. • Service agreement, 218. Personal services, 219 f Silent on subject, 217. Terms omitted, 809. Valuable, however, small, 218. See also Frauds, Statute of. Constitution, 219. Dower of non-residents, 220. Guardian appointment, 219. Inheritance taxes, 588. Insanity, jury trial, 220. Judicial power of state, 21.9. Ordinance of 1787, 220. Eepeal of, 220, , Police power, 220. Powers of judges, 219. Provisions, 220. ARE TO PAGES.] Constitution — continued. Unconstitutional, 219, 220. Act not a law, 220. Waive rights, 219. Construction of Contracts, 220. Ambiguity, 222, 225. Conversations, etc., 224, 225. Surrounding circumstances, 224. Breach : specific price, 222. Personal service, 222. Condition precedent, 221. Conversations leading to, 224. Explain ambiguity, 225. Decease of one party, 223. Lease binds devisee, 224. Lease contract, 224. Peculiar skill, 223. Perform in person, 223, 224. Due bill, specific, 221. Effect to every part, 225. Enumerations, 224. Express over implied, 224. Forfeiture, 221. Grammar or punctuation, 224. Implied in express contract, 223. Correlative obligation, 223. Insurance division, 223. Intent of parties, 221, 224. Law for the court, 221, 223. Lawful and unlawful, 223. Office of construction, 224. Oral contract, vague, 223. Jury when, and court, 223. Parol, in detail, 802. Parties' construction, 222, 224, 225. Ambiguity, 222. Personal representatives, 223, 224. Devisees, realty lease, 224. Whether named or not, 223. Printed form fdled, 225. Written control, 225. Eeading nothing in or out, 225. Surrounding circumstances, 222, 225. Ambiguous contract, 224. Evidence competent, 222. Nature of the subject, 222. Parol testimony, 222. Eeasonable construction, 221. Several instruments as one, 120. Two papers as one, 222. Several as one, 224. Two reasonable meanings, 225. See also Ambiguity. Consideration. Construction or Deeds. Con- tracts. Parol. Usage. GENERAL INDEX 1313 [ REFERENCES Construction of Deeds, 225. Actual state of lands, 228, 229, 754. Ambiguity, ' absent, 229, 232. Ascertained beginning, 226. Charge upon land, 228. Conditions: place, 227. Precedent, defined, 227. Precedent, none, 230. Precedent, subsequent, 230. Belief by court, 230. Subsequent: found, 230. Subsequent not absolute, 227, 230. Subsequent not favored, 227, 228, 229. Consideration recital, 215, 231. Creditors' equities, 231. Evidence 'to explain, 231. Future payments, 231. Parties left statu quo, 231. Eecovery of consideration, 231. Controlling influences, 226. Corporations nonexistent, 228. Court to construe, 228. Exception in deed, 229, 230. Not reservation, 230. .. Father to minor son, 230. Fee or use, uncertain, 229. Fixed landmarks, 226. Forfeiture not favored, 228. Future effect, valid, 230. Possession in future, 230, 231. Government' surveys, 226. Highway or river, 226. Identity of persons, 226. Intent of parties, 229, Meaning of language, 229. Jury, as to description, 228. Omission of grantee's name, 226. Parol evidence,' 228, 229. '.'., Consideration, 231. Intent testamentary, 231. Interpret description, 231. Not vary warranty deed, 232. Section omitted, 228. Surrounding circumstances^ 231. Plat referred to, 226. Quit-claim deed, 227. Eeservation in deed, 229, 230. Distinction; exception, 230. Something in futuro, 230. Eight of way, 227. Implied grant, 227. Obstruction thereof, 227. Subsequent control resumed, 227. Surrounding circumstances, 228. Interpret description, 231. Make deed definite,' 228. Zimmerman — 83 ARE TO PAGES. ] Construction of Deeds — continued. Surrounding circumstances — cont 'd. Not to vary, 231. Testamentary effect of, 1235. Two conflicting clauses, 229. Against the grantor, 229." Former shall stand, 229. Warranty deed," effect, 232. Excluding parol, 232. ' Free of incumbrances, 232. See alsd Ambiguity. Bond fob Main- tenance. Construction of Con- tracts. Deeds. Sale of Eealty. Construction of Statutes, 232,. Adopted statute, ,233, ,234,, 236. , , Not before construed,, 23|3- Subsequently construed, 236. Ambiguous language, , , 235. Unambiguous, 235. Colloquial meanings,, 237, Common law changed, 23,4, Not by implication, 194, 195. Directory statutes, 233. Definition, of, 233. Elliptical language, 233. Enumerations, 236. Equitable construction,, ,23,5,. , Every : insane persons, , 234. ■ , v , , . . , Inconsistent provisions, ,236. ,.,' Conflicts not favored,, 237. Intent versus , letter, 234. ;.,-.,.. Limitation statutes, 232. Exceptions expressed, 232,,, i Limiting words or clauses, 23,6. Mandatory: '. defined, 233. Natural justice : words,. 234. Omissions or defects, 23,5. Particular words, ,232, 235. , , Practical construction, 234,;, 235. Primary object of law, 235., ,, Prohibit living party, 233,,, Punctuation, 236. Purpose of construction, 232, 235. Legislative ' intention, 232. Ee-enacted statutes, 234. Eemedial statute, 235. Eepugnant : intent, 234. Absurd words, 234. Eetroactive, not, 967. Eevision, substitution, 235. Re-writing error, 236. Mere rule, not act, 236. Special proceedings, 195. Special provision; 233., , Title: of the, act, 235,: ■ 237- ,. True construction rules,i , 23,3. Also to adopted statutes, 234. 1314 GENERAL INDEX [REFERENCES Construction of Statutes— continued. ,, True construction rules — continued. Every part with whole, 233, 235. Every word some force, 234. General system on subject, 234, 235. No clause superfluous, 234. Two affirmative; same subject, 237. Construction of WiUs, 237. Actions: for construction, 241. Action, not , necessary, 26Q. Cloud on title, 263. Equity,: not in possession, 263. Partition suit, 257. Remedy in ejectrfient, 249. Ambiguity: latent, 241. Circumstances surrounding, 60. Extraneous facts, 242, 258. Intention unaseertainable, 255. Name of church society, 25,9. Necessary to construction, 264. One-tenth of one-twenty-fifth, 2'64. Patent, requiring rejection, 254, 255. Three parts to four, 261, 262. Appeal: executor, when; 243. Error not appealed from, 258. Charitable trusts ih detail, 145. Child; construction, 53. Codicil: and original, one, 248. Evincing a desire, 182. Not cut positive gift, 182. Revoked bequest, intestate, 258. Will as codicil, 252. Condition: subsequent, 244. Attach and defeat, 260. Conditions void, 251. Determines in testator's life, 253. Impossible to perform, 248. ! ' Precedent as to college, 247. Precedent; contingent, 260. Repugnant to grant, 252. Subsequent, defeasible, 265. Subsequent is favored, 248. Time of payment only, 252. Vested or contingent, 260. Death: without issue, 252. ; After testator's death, 252, 255. During testator 's life, 252, 254, 266. Share go by representation, 254. Declarations: of testator, 242. Evidence admitted, 242. Expressed at the writing, 246. Intention, inadmissible, 61. Intention of scrivener, 246. Person or thing intended, 242. Defeasible devise, 261. ARE TO PAGES. ] Construction of Wills— continued. : , Description : two lines, 241. General and particular, 247. Lot 9 for lot 10, 242. Northeast quarter as southwest, 265. Sec. 21 as see. 22, 258. Devise: upheld if possible, 245". Descent or purchase, 249. Pee, repugnant condition, 252. Several undivided, 250. Void in whole or part, 250, 264. Discretion: of trustees, 260. Must not be arbitrary, 260. No person to determine, 262. Without words of bequest, 262. Doubtful cases, leanings, 248, 254. Heir to be favored, 264. Effect of will, in general, 1229. Election: as to widow, 244, 245. Living person's estate, 249, 250. Enumerations, exceptions, 246. Equitable conversion: Pay over and deliver, 243. Realty .treated as money, 241. Equity; all questions, ,211. Executor: appeal right, 243. Institute construction, 243, 260. Six-year limitation, 245. Extrinsic circumstances, 24Q, 242, 245, 248. Actual state of the property, 754. Ambiguous language, 60. Changing descriptions, 242; 258. Identify parties, 1144, 1146. Inconsistent provisions, 242, 243. Meaning of words, 248. Name of church society, 259. Not. to explain cr add to, 242, 265. Not when unambiguous, 249. Position of testator, 256. Showing realty circumstances, 265. Will referring to another, 249. False assumption rejected, 245, 264. First duty in construing, 259. From the will itself, 266. Paramount consideration, 264. Uncertainty of sense, 262, 264. Implied bequests, 258, 265. Absolute silence in, 258. Court cannot reform, 258. Expressions in will, 258. Revoked bequest, intestate, 258. Inconsistent provisions, 242, 243, 261. Earlier vesting, than later, 261. Rule that latter prevails, 261, 264. Indebtedness: to testator, 261. Barred by the statute, 261. GENERAL INDEX 1315 [REFERENCES Construction of ., Wills— continued. Indebtedness — continued. "Charge'', part of residue, 262. Inheritance words; absence of, 872. Intent of testator, 240, 241, 260. All-dominating rule, 254. Declarations; inadmissible, 61, 246. Person or thing intended, 242. First and great, rule, 246. Former wills considered, 872. From the will itself, 242. Restated, detailed, 1159. Inconsistent with rules, 240. Intent plain, uttermost limits, 265. Paramount consideration, 264. Surrounding circumstances, 246. Technical meanings, 240, 256/ Testator's meaning out, 253. Vital thing is intent, 263. | Intestacy : property, 244, 257. ' Bequest revoked "by codicil, 258. Complete disposition, 254, 256. Devise 1 by implication, 258. Absolute silence in, 258. Court cannot reform, 258. Expressions in will, 258. Facts of will; not intent, 257. Physically written, 2571' Presumption against, 247, 254, , 259. Presumption not conclusive, 257. Joint tenancy exception, 250. ' Jurisdiction to construe : Actual contest ' unnecessary, 260. After assignment, county court, 263. Clouding the title, 263. County court, when, 241, 243. Courts of equity, 253, 260. Dispose of all questions, ! 211. , Domieil state 1 of testator, 245 f , 2(47. Dower and homestead, 257. Ejectment, when, 249. " Equity: trust or othei' equity, 263. Notice necessary, 241. ' Partition suit, '257. Pending administration, 260, 261. Statute not abridge equity, 260. Unappealed construction; held void, 155. Widow's intestate rights,' 257. ' ' Keep in family, 265. Legacy, general, specific, .241. Construed not in specie, 259. Legacies : estate charge, 249. Future time certain, 2d0. Sale of remainder, 249. Life estate: in personalty, 240. Converted into "money, 240. ARE TO PAGES.] Construction of Wills'— continued. Life estate — continued. If one or the other dies, 252. Intent, specific bequest, 240. Power to sell and use, 248. Property left after death, 249. Sold after decease, 240. Terminated before decease, 255. To' trustee, to pay income, 255. Words of inheritance, 246. Life estates, in detail, 698. Mutually agreed wills, 249. Accept Or reject, 249. Acts constitute election, 250. -Living person 's estate, 249. Trust declared therein, 250. Not issue' ait probate, 1232. Future consideration, 1232. Paragraph revocation, 1235. Parties: executor entitled, 243, 251. Co-executor held essential, 251. Executor 's duty to act,' 243, 260. Legatee not interested, 251. Trustee entitled, 260'. Perpetuities, 250, 251, 255, 256. Phrases construed: All the proceeds, 870'. Among his or her children, 253, 254. Annuity from proceeds, 245;' As "trustee shall deem best, "260. Attend church regularly, 15 yrs., 259. Charge upon land, 244. Contrary to public policy, 263. Die without issue, 252, 255. Dispose of as they like, 248. Divided into 5 equal shares, 266. Good moral character, 246. ; "Household furniture & effects," 259. If one or the other dies,' 252, 253. If she 'survive me) 252.' Individual indebtedness, 248. Inferential trust devise, 256. th trust for, in popular sense, 256. In' trust for, technically, 255, 256. Issue then- living; 255. Money and personalty, 244. ' Moral and sober life, 255. "My lawful heirs", shall go to, 258, 264. ' ' Necessary for her needs ' ',' 262. "Needs it for his own use", 262! Northeast quarter as southwest, 265. One-tenth as one^twenty-fifth, 264. "Par value ' ' to mean ' ' face value, ' ' '263.' ""■ l! ' '' "' ' ' Payable to the legal heir ", 265. 1316 GBNEKAL IND^X [REFERENCES Construction of Wills — continued. Phrases construed — continued. Plan of division by thirds, 261, 262. Seem to him proper, , 251. Such estate as may remain, 258. Support and maintain, 248. Support charged on farm, 241. Surplus equivalent, 240. Three apparent parts to four, 262. To pay and deliver, 255. "Treasury stock", held corpus, 261. Unfitness or unworthiness, 260. "Unmarried at that date", 263. Precatory trusts, in detail, 868. Precatory words construed, 245, ; 251. Precedents, slight utility, 258, Adjudicated cases help, 264. Seldom control, 264. Provision ; remainder is, 60. * Or none intended, 60. Reform will; cannot, , 258. Rents and profits; not stated, 263. Residuary clause; effect, 244. Bequest revoked by codicil, 258. Deceased sister 's share, 266. Expressed in some form, 259. Future vesting thereof, 263. Intent to confine, 266. Void bequest, 251. Residue, defined, 348. Revoked bequest by codicil, 258. Became intestate estate, 258. Rights as to. .wills, 1229. Rules: none inflexible, 262. Administered in equivalent, 1159. Broad as to contracts, 265. Trust or will variation, 1169. When not, applied, 266, 11.49. Several papers together, 247. Subsequent on prior clause, 182. Substitutional bequest, 251. Supplied or rejected, 247. A "provision" supplied, 254. Bequest revoked; intestate, 257, 258. Clause, void, uncertainty, 251, 255. Ellipsis supplied, 60. Language used and intent, 257. Law cannot unmake or change, 262. Northeast quarter as southwest, 265. One-tenth for one-twenty-fifth, 264. Reconciled from, will, itself, 262. To supplied; no trust, 790. "Without issue", supplied, 248. Words not added, intestate, 257. Technical: meanings, 240, 256. Courts will give name, 256. Not explicitly given, 256. ARE TO PAGES. 1 Construction of Wills — continued. Technical— continued. Unnecessary in wills, 256. Testamentary instruments, 1229. Trusts, in detail, 1141. Two persons applicable, 240. Two things applicable, 242. Validity; not at probate, 1232, 1235. Paragraph, impliedly revoked, 1235. Vesting of estates, in detail, 1195. Vesting of estates: remainder, .250. As a future estate, 250, 255. Condition precedent, 260. Conditions , void, 251. Estate to trustees, 254, 255. Favor early vesting, 266. Future time certain, 260. Future, vested or contingent, 260. In fee, defeasible, 261. Intermediate death, 250. May never happen, 260. Vesting postponed, 256. Vests in first taker, 251. Without words of bequest, 262. Void: whole or part, 250. Clause, for uncertainty, 255. Conditions void, 251, 252. Construed valid if possible, 264. Part of residuum, 251. Widow fails to elect, 244. Dower and homestead, 257. Insane, court elects, 245. Intestate rights, 257. Will: speaks from death, 245, 257. Ambulatory during life, 257. Governed by law -at death, 257. Right to make; enforced, 1159. Will rights, in detail, 1229. Wills, in general, 1229. Words construed : "All", is unambiguous, 257. ' ' Capital ' ' ; accumulated profits, 244. ' ' Ohildren ' ' : definition, 253, 254. Child, spn, issue, 53, 253. "Heirs" of a living person, 258, 264. Illegitimates, as issue, 253, 254. " Part [' construed as fraction, 262. "Provision", after-born child, 253. "Provision", for widow, 245. ' ' Securities ' ', as to stock, 263, "Stock" as animals only, 244. Words: ,Ordinary meaning, 246, 247, 261. Language molded to express, 264. Law, and good morals, 253. GENERAL INDEX 1317 [REFERENCES Construction of Wills^continued. Words — continued. Transposed or r ijected, 264j Unless absurdity results, 246, 247. Very broad and restrictive, 264. Words of will to subject, 265. Yield to peculiar sense, 253. See also Advancements. After-born Child. Ambiguity. Charitable Trusts. Codicils. Equitable Conversion. Legacies. Life Es- tates. Perpetuities. Precatory Trusts. Revocation. Trusts. Vesting ov Estates, etc. Widow. Wills. Words and Phrases. Constructive Trusts. See Implied Trusts. Trusts. Contempt, 266. Appeal: none in general, 266. Wilful disregard of order, 267. Erroneous order violated, 267. Court may punish, 267. Party cannot recover, 267. Party's right to hearing, 267. While in contempt, 26,7. Eefusal to answer, 267. Costs of proceedings, 267. Disobedience of order, 267. Equity proceedings, 267. Failure to admit, 267. Procee lings, 267. Punish for criminal contempt, 267. Refusal established; 267. Requiring him to answer, 267. Service defective) 267. Contingent Claim, 268. Accrues: unfailing test, 271. After become absolute, 269. - Assets remaining only, 269. Balance from heirs, 269. » : ' Pour years after time expired, 269. Within one year, '269. After estate settled, 269. * Allowed in county court, 271. Not in county court, 269. Remedy against heirs, 269. ■ Agency contract bond, 270. After estate settled, 271. Before settlement of estate, 269. After estate settled, 271. Liability* established, 269: ' Must become absolute, 269. Not after estate settled,' 269. Which did not accrue, 269. ARE TO PAGES. ] Contingent Claim— continued. Contingent: . definition, 270, 272. Absolute, contingent, 270. Essential element of, 271. May ripen into absolute, 271. Uncertain as ■ to absolute, 271. Contribution: action, 268. /. As a contingent claim 1 , ■ 268. . •■ Piled after time expired, 272. One year after absolute,' 269-. Sureties right to, 268. Covenants in deed; 271. Accrued when paid, 271. Action, nominal damages, 271. Action, substantial damages, 271. Failure to. < present, 271. Pixed amount, definite time, 272. Joint notes not due, 270. Not contingent, 270.: Provable as claim, 270. Partnership:, accounting, 272. . Contingent .until settlement, 1068. Permissive statute, .270. , i Possible deficiency, 272.. Present as contingent claim, 269. : Or after absolute, 269. Subscription contract,' 271. Debt payable in .future; 271. Surety's claim, 269, 270. Payment, absolute; 270. Trust funds not barred, 270. ... i i. Contingent Interests. See Future Contingent > Estates. Trust Variation. Vesting op Estates, etc: < Contracts, 272. i Absence of fraud or deception, 65. Agreements merged, in, 276. .- ' Benefit of third party, 275, 283. After rescinded, 275, 282., Bond of principal, 282. ,. , ,, Condition precedent,, 283. . Contract not reopened,, 282. Debt due to third, 282. Enforced by,, third, ,280, '281, ' 282; 283. ■■'-..'.', , , ,' '■,,., Land benefit, not money, 283, J Material man, 282. ' Realty and"' support, 282. Right of action, 275, ; 282. ' Under seal, 2-75. " Bequeath property, 279, 282. Damage rules, 317: "' ' Deed conveys merely; 278. Executory contract, 274. 1318 GENERAL INDEX [REFERENCES Contracts— continued, r Express contract, 277. Failure to examine, 279. Foreign contract, 278. Capacity of parties, 280. Expressed therein, 278. Law governing, 278, 279, 280. Made in two states, 280, 281. Married woman, 279. Payable where, 278. Performance, 278. Personal contracts, 280. Publici policy, 279, 280. Remedies, 280. Statute of frauds, 281. ■Universal comity, 280. Validity, 280. Void when payable, 278. Form immaterial, 279. Informal contract, 281. * Negotiations only, 281. Preliminary only, 281. Proposal and assent, 279. Implied contract, 276. Inability to understand, 65. No fraud Or deception, 65. Infants' contracts, 274, 577. Voidable, 274. Ingenious contract, 282. Inheritance contract, 283. Interest in detail, 607. Joint obligations, 617. Letter: mailed, 275. Limitation of actions, 705. Limitation runs from breach, 718. Limitation statute extinguishes, 709, 712. Law of forum prevent, 712. Manual delivery, 279. Inoperative, 279. Parol evidence, 279. Married woman, 279. Foreign contract, 280. Mistake or negligence, 65. Note, evidence only, 278. Not executed, 281. May be shown, 281. Offer: effect of, 275. Assent presumed, 277. Business failure, 277. By telegram, 277. Continuing one, 276, 277. Eipened, 276. Signed by one, 275. Until revoked, 276. Omissions, blank, 787. ARE TO PAGES.,] Contracts — continued. Option contract, 277. Administrator, 278. Enforceable, 277. Parol contract, 274. PaTt performance, 274. Statute of frauds, 274. Parol variance of, 273. Additional consideration, 276. After statements, 275. Consistent with, 278. Deed or note, 278. Delivery condition, 279. Executory to .executive, 274. Fraud or mistake, 274, 276. Part performance, 277. Previous agreements, 275. Previous, statements, 274. Rules in detail, 802. Written, not required, 65. Partial contract, 278. Deed or note, 278. Presumption, 278. Proved by parol, 278. Part performance, 277. Payments applied, 273. Plural form, 280. Single signer, 280. Preliminary acts, 281. Presumed to understand, 65, 66. Quantum: meruit, 274. Re-adopted contract, 279. Reasonable knowledge, 281. Reasonable value, 279. Contract conflict, 279. Recitals in deed, 279. Reform and enforce, 274. Rescind; for fraud, 274. Consideration, 276. Unlawful contract, 274. Res gestae, in detail, 960. Revenue stamp, 274. Sealed instruments; limitation, 717. Services contract, 273. Services, in detail, 999. Stock corporations, 282. Testamentary promises, 999. Unilateral contract, 275, 277. Void contracts, 276. Indivisible, 277. Presumption, 277. Service contracts, in detail, 999. Valid acceptance, 276. Writing complete, 275, 276. Written, not, required, 65. See also Agreements. Bond tor Main- tenance. Commissions of Bros- GENERAL INDEX 1319 [REFERENCES Contracts — continued. See also, etc. — continued. ers, etc. Consideration. Con- struction op Contracts. Cove- nants. Deeds. Entire Contracts. Frauds, Statute of. Land Con- tracts. Marriage Contracts. Married Woman. Novation. Options. Parol. Rescission op Contract. Services. Unlawful Contracts. Writings.. Contribution, 283. Accrues when paid, 284. Against co-surety, 130. Attorneys' fees, 287. Against deceased co-surety, 25. Absolute when paid, 268. ' Contingent claim, 268. Between partners, 284. Illegal act, 284. Mistaken conception, 284. Between wrong-doers, 284. Co-guarantors, 284. Breach by deceased, 284. Co-surety, quasi-trustee, 284. Executor against joint maker, 171. Judgment conclusive, 130. Legal and equity right, 284. Principles stated,' 284. Bight forfeited, 284. Special advantage, 284. Support: several parties', 283. Against one or more, 283. Agency of wife, 284. Household details, 283. Largely by one, 283. Sureties, in detail, 1052. Wrong by co-surety, 284. See also Joint Obligations. Sureties. Conversion. See Actions bt Extr. or Admr. Dis- covert. Personal Estate. Services. Conveyance. See Construction op Deeds. Deeds. Fraudulent Conveyances. Mort- gages. Sale op Personalty. Sale op Eealty. Corporations. See Charitable Trusts. Officers. Corpse, Eights to. See Dead Bodies. ARE TO PAGES. ] Costs and Fees, 285. AcerUe, at judgment, 294. Administrator. See Trustees. Against: the heir, 293. Legatee" proponent, 295. Undertaking of, 293. Appeal: from order* 293. ■'' '■'' Only from judgment, 293. i i ' ' Associate counsel, 294. ! Attorneys: liable for, 288. When not employed, 288. Authoritative rulings, 289. Before services rendered, 203. Circuit court, 289: As to sec. 4041b, 292, 293, 294. Construction case, 290, 292, 293. Contested will, 291. Discretion as to^ 290. Governed by sec. 2918, 290. In lieu of costs, 292. Co-executor as legatee^ '292. Contest of' will, 288. As to sec. 4041b, 292, 293. County and' circuit, 289: Bule in supreme court, 288. Contribution action; 287. ' Attorneys' fees; 287. Costs, statutory only, 286, 289. Both out of estate, 290. Not supreme court, 286. Trust estates, 289. Will cases, 287. Counsel fees: to trustees, 289,' 290. Against the proponent, 295. Construction case, 290, 292, 293. Contested will, 291, 292 294. • Executor-named allowed 294. Executor-named, not extr., 291. In lieu of Costs, 292. Not to other parties, 289, 290. Ostensibly ' for ' executors, 290.' Stipulation as to*; 291. County court, 290. ' As to sec. 4041b, 292, 293, 294. Discretion as to, 290. Statutes' controlling, 290. Definition, detailed, 287. Discretion : trial courts, » 286,. , Allow or withhold,. 289, 294. As to abuse of, 294. Equity cases, 287. Party or fund, only, 287. Supreme court, 286. Equity, limitation, 286. Discretion, 287. Statutory,' only, 287. 1320 GENERAL INDEX [REFERENCES Costs and Fees— continued. Executor named-: not extr., 291. Bad faith, of, 294. , Costs not allowed, 294. Counsel fees against, 295. Counsel fees allowed, 294. Ordinarily. as proponent, 294. Executor. . See Trustees. Expert witness fees, 294. Fraud, undue, influence, 294. General question of, 289. Guardian ad litem, 289. Compensation of, 293. Improvident appeal, 293. Out of ward's property, 289. Personal liability, 292. Guardianship: incompetent, 288. Against petitioners, 291. Allowance denied, 294. Both contestants, 288. • Consent: all parties, 294. Special proceedings, 291. Improvident appeal, 293. Interpreter 's . fees, 615. Limitation, in equity, 286. Priority over debts, 292., Probate fee is, 288. Stipulation; counsel fees, 291. Guardianship contest, 294. Trustee ;, guardians ad litem, 292. Supreme court, 286. Authoritative rule in, 289. , Both out of estate, 290. Construction case, 290, 293. Contestant of will, 288, 291. Executor named allowed, 294. Justifiable contest, 289,. 291, 293. Not deprived, 286. Sec. 4041a does not apply, 289. Trust estate involved,, 291. Under sec. 4041b, .294, Trustees, etc; judgment, 288. Appeal in bad faith, 289. Construction expenses, 287. Counsel "fees proper; 289, 290. Method prescribed, 288. Mismanagement, 288. Not personally, 288, 290. Ostensibly for executor, 290. Out of the estate,' 2'88, 290. Witnesses, two causes, 287. See also Administration Expenses. Compensation op Admr., Extr., Grdn., & Trustee. Oppicers. Counterclaim. See Pleadings. Set-opp. ARE TO PAGES.] County Courts. See Probate Courts. County Judge, 295. Advice to litigants, 297. Assist district attorney, 297. Authority specific, 296. Counsel previously, 296. Court outside county, 298. Disability, disqualification, 299. Drafting papers, 297. Fees for child permits, 298. Fees to salary, 297. Filing of oath, 296. Guardian ad litem, 297. Improper fees collected, 298. Judge , of a court, 297. Appeal, statutory, 297. Jurisdictional limits, 298. Not common law,, 297. Subject to review, 297. Writ of; certiorari, 298. Justice of peace, 298. Incompatible, 298. Liability of, 296. Magistrate. Se,e Judge of, etc. Mandamus remedy, 295. Office important, 296. Office in court house, 297. Pecuniarily interested,. 298. Deprived of power, 298. Minors not consent, 298. Orders absolutely void, 298. Personalty, charge of, 296. Powers of circuit judge, 296. Refusal to qualify, 295. Retaxation of costs, 296. Salary during term, 296. Not from' state treasury, 297. Statutory; qualified, 296. Summary manner inquiry, 1243. See also Court Commissioners. Cus- : TODY AND COMMITMENT. Court Commissioners, 299. Appeal from power, 300. Common law writs, 300. Habeas corpus, 299. Remedies, as to, 299. Restraining, 300. Judge at chambers, 299. County judge, 299. Jurisdictional, 299. Mere judicial error, 300. Powers, circuit judge, 299. Preventing acting, 300. Punish for contempt, 299. GENERAL INDEX 1321 [REFERENCES Court Commissioners — continued. Remedies as to, 299. > • . Restraining of, 300. Words "a judge," 299. Court Rules. See Rules op Practice. Covenant, 300. Benefit of third, ,301. ' Consideration, 301. Under seal, 301; Incumbrance; free, 300. Accrues when paid, 27i." , Contingent claim, 271. Extinguished, 300. Married woman, 301. Mortgage, payment, 766. Deficiency .afte^six years, 766. Not implied, 301. / Common law, ,301. > Partial title failure, 301. , Pay to third person, 301. Grantor's liability, 301. Peaceable possession; with land,. 328. Quiet enjoyment, 301. Renewal privilege, 301. See also Construction of Deeds. Deeds. Landlord and, Tenant. Credibility of Witnesses. See Impeachment of Witnesses. Witnesses. Creditors' Actions, 302. Action against executor, 306. County court control, 306. Executors exempt, ' 307. ' Garnishment rule, 306. Administrator discharged, 308. Administrator to bring, 302. ,j •:. , Existing creditors only, 305. Reasonable diligence, 303. All property liable, 307. : Alienation power, 307. Personalty in trust, 307. i Statute, realty, only, 307. Trustees liability, 307. Certify to county court, 30,8.,, Cloud on title, 303. Restore records, 303. Conveyance : to third, 304, 305, 307. Husband to wife, 305. , One void, one valid,' 305. Two papers as one, 305. Creditor may bring, 302. Compel executor, 302. Pursue heirs, 303.' ' ARE TO PAGES.] Creditors' Actions — continued. 1 ' Creditors' rights; two funds, 744. Application of security, 744.. Deceased bank stockholder, 176, Delay subsequent creditor, $05. Deficiency pf. assets, 302. Adjudication, 302. Apprehension, 302. Equity of redemption, 303. , Prom inventory, 303. Execution return, 306/308! Fraudulent purpose, 305, Heirs : liable when, 303, 305. Attachment in, 305,! Equitable action,, 305. Grantees, trustees, 306, Incidental matters, 306. Limitation statute, 306. May bring action, 305. Surviving partner, 304. Title' had passed, 306. Title of minors, 306. Husband and wife, 305, 306. Personal judgment,- 306., ',' Void, as to creditors, 3,08. , Wife colluded, 307. Inadequacy of price, 303. Insolvent: good faith,, 303. , r , Conveyance to children, 304. Conveyance to third, 304. ' Inadequate price, 303. Non-resident , creditor, 305. Not a judgment debtor, 307. Preference to creditor, 304. May be. relative, 304. , . Pending ,litigation, 304. , , , Purchase; from . insolvent, 303, , At sheriff's sale, '308,' Satisfaction effect, 308. Other creditors, 304, Realty first exhausted, 306. , Receiver appointed, 308. "',.,■ Stay of proceedings,, 305, Vi , , .' Surviving partner ; heirs, 304. '.. Transfjer between parties, 307. Trust: conveyance, 303. Resulting from, 30,4. ., . Uninventoried property, 302, Action for: claimant, 305. Pending appeal, ,305., Widow in active fraud, 308. . Npt for support, 308. ,, , , No right to proceeds, 308, Will forged; to set aside, 'pO.S. ',', Tested in county court, 308. See also Actions by Extr. or Admr. Husband and Wife. ' 1322 GENERAL INDEX [REFERENCES ARE TO PAGES.] Crop Sharing. See Bents and Profits. Cross Examination, 308. Adverse party examined, 312. Bias of witnesses, 309. Discretion of court, 309, 310. Enmity or friendship, 309, 310, 311. Temptation, 309. Browbeat, etc., 312. Confined to direct, 309, 310, 311. Broader as to party, 311, 312. Effect when not, 310. Not too limited, 312. Credibility, 309. Associations, etc., 309. Interest in suit, 309. Discretion of judge, 309, 310. Large measure of, 310. Party rights, 310. Regulation necessary, 311. Disgrace of witness 311. Matters irrelevant 31,2. Party imputed 311, 312. Handwriting, 507. Immaterial question; bound, 1241. Impeachment, 312. Prior examination, 312. Liberally indulged, 310. Limit of examination, 309. Nominal party, 312. Non-experts; details, 436. Objected to or not, 312. Party: different rule, 309, 310, 311. Disgrace insinuations, 311, 312. Fraudulent transfer, 311. Ill-feeling between, 311. Nominal party, 312. Not absolute right, 310, 311. Payment defense, 311. Purpose of examination, 310. Truth aids, 310, 311. Bight: restrained, 309, 310. Absolute within limits, 311. Begulated from benchj 311. Bule of cross examination, 309. Examined in chief, 309. Not applied to party, 309, 310. Not beyond this, limit, 309. Testing memory, etc., 309. Written such a thing, 310. Must exhibit, 310. See also Discovert. Examination op Witnesses. Impeachment of Witnesses. Currency. See Monet. Curtesy, 313. Actual seizin of wife, 313. Common law: definition, 313. Pour things requisite, 313. Seizin in fact, 313. Statute change, 313. Conveyance to exclude, 313. Creditor's right: dower, 314. Curtesy subjected, 314. Dower and curtesy, 314. His children only, 313. Husband's interest, 313. None before death, 314. Bemainder or reversion, 314. Dower estate outstanding, 314. Statutory modification, 313. Tax deed title, 313. Custody and Commitment, 314. Constitutional, 315, 316. Custody rights, in detail, 794. Equity jurisdiction, 314. Guardianship, 314, 315. Not police power, 316. Helpless persons, 314. Industrial school, 314, 315. County expense, 315. Judges can commit, 315. Parent's right, 314. Magistrate powers, 314, 315. Unknown to law, 315. Maintenance delegated, 315. Police power, 314, 315. Equity not, 316. State guardianship, 315. State public school, 316. Judge of ; court, 316. Substitute for parent, 315. See also Infants. Parent and Child. Custom. See Usage. Cy Pres, 316. Elizabeth statute, 316. Judicial power only, 316. Liberal construction, 317. Sovereign power, 316. See also Charitable Trusts. Damages, 317. Executory contract, rule, 317. Contemplation of parties, 318. Hadley v. Baxendale, 317. Market price, 317. Husband 's death, 318. Widow may settle, 318. Widow's right, 318. GENERAL INDEX 1323 [REFERENCES Damages — continued. Infant, death of, 317. Infant; damages, 577. Insanity proceedings, 318. Interest, in detail, 607. Liquidated : Fixed damages, 317. Money payment, 317. Penalty, when, 317. Substantial breach, 318. Mitigation, 318. Specific work, breach, 317, 318. Profit ascertained, 318. See also Actions by Extr. or Admk. Day. See Time. Dead Bodies, 319. Administrator, etc., 319. Funeral charges, only, 320. Adult child, parent, 320. Attitude personal, 319. Cemetery lot, 319. Close personal intimacy, 319. Died remotely, 1 319. Friendship eliminated, 320. Funeral expenses, 479. Nearest relative, 319'.' Legal right, 319. Order of right to, 319. Parent to minor, 320'. ! Statutory recognition, 319. Wife surviving, first,' 320. "Kelatives" includes,' 320. Death. See Birth, etc. Construction of Wills. Dead Bodies. Presump- tion of Death. Vesting of Estates. Debts, 320. Agreement to take part, 321: Other creditors, 321. All property liable for, 307. Trust property, when assignable, 307. Answer for another's debt, 470. Authority to sell, 321. Decedent's; curtesy; not dower, 314. Definition, 320. Due deceased, non-resident, 322. Executor's: own debt, 321. Due the deceased, 321, 322, 421, 616. Foreign estate settled, 321. Funeral expenses, 480. Gratuitous agreement, 321. ARE TO PAGES. ] Debts — continued. Jurisdiction given, 322. Legacies ; deducted from, 457, 678. Novation; substitution, 773. Presumption of, 321. Estate duly settled, 321. Party chargeable, 321. Allowance, etc., 322. Intestate estate, 321. Bights fixed at death, 322. Testate estate, 321, 322. Eevival of barred debt, 708, 709. Two creditors agree, 321. Executor one of' them, 321. See also Claims. Setoff. « Declarations. See Admissions. Decree. See Judgments. Deeds, 322. Absolute: not in trust, 323, 328. Acknowledgment : Different counties, 327. Different days, 327. Presumptions, 327. Purpose of, 327. Administrator: signature, 324. Deed and record thereof, 327. Defective publication, 325. ' License not signed, 327. Presumptively regular, 325, 327. Proof of record, 325.' Adverse possession, 324/ Benefit of third party, 325.' Between the parties, 324. Acknowledgment, 327. ' Witnesses,' statute, 1839, 324. Centre of highway or stream, 323. Confidential relation, 326. Burden of proof, 326. Consideration : Parol evidence, 328. " Contract presumption,' 328. ' ' Conveyance ' ' includes mortgage, 326. Court recitations, 323. Presumptive, administrator, 324. Prima facie evidence, 323. " Signature, administrator,' 324. Covenants:' with land, 328. Peaceable possession, 328. Delivery: to register, 323. Parting with control, 324; No set ritual, 325. Destruction, not effective, 394. 1324 GBNEEAL INDEX [REFERENCES Deeds — continued. Disposition of property, 1252. Effect, in future, 326. Failure to examine, 328.. Fraudulent release, 329. Grant, under sec. 2340, 1242. Insane person; voidable, 599. Life tenant takes deed, 329. Mortgage by parol, 323, 802. Name of grantee, 329. , Person intended, 329. Notice: constructive, 324, 325. Affected with notice, 325. Index notice, 325.' Put upon inquiry, 325- Without notice, 325. Omissions: Administrator, 324. Authority to $11, 325. Date in certificate, 324. Date omission, 326. ■ Of grantors in body, 327. Parol evidence as to, 802. Parol trust as to, 810. Power of attorney, 328. Effect of sealed pqwer, 329. Notice imported, 329. Not recorded, 328. Not to mortgage, 328. Eevoeation of, 329. Strictly construed; 328. Wife to husband, 539. Quit claim deed, 326. Common law ,effect, 327. Grantee, no remedy, 329. Title of grantor only, 327. Recitals: consideration, 215, 217, 218, 219, 327. Sheriff's: dower, 324. Subsequent purchasers, .324. Information sufficient, 326. With knowledge, 326. Title: fails in part, 326. Claim as devisee, 326. Trustee's deed, 323i Trust violation, 323. Variance from power, 327. Vendor to prepare, 323. Witnesses: signatures, 324. Absence of,. 324. At common law, 324. See also Consideration. Construc- tion op Deeds, Delivery. Escrow. Parol. Power. Sale of .Realty. Default, 329. Against executor, etc., 329. ARE TO PAGES.] Default — continued. Infants, non-residents, 330. Discretion of court, 330. Negligence of solicitor, 329. Definitions. See Words and Phrases. Delivery, 330. Assignment, actual transfer, 98. Deceased grantor, 331. Escrow attempted, 333. Grantee's evidence, 331. Possession by, 334. Declaration of trust, 332. Destruction by grantee, 332. Destruction, not effective, 394. Effective delivery, 332. Escrow; attempted, 333. Escrow; delivery essentials, 390. Execution includes, 331. Express or +e icit, 331. Tacit effective, 331. Gift; delivery essentials, 481. Grantee's access to, 332. Grantor's direction, 334. Husband and wife, 334. Immediate strife, 331. Intention question, 334. Manual delivery, 333. Condition precedent, 333. Mental reservation, 333. Mutual reliance, 333. Eorgetfulness, 333. Mistaken delivery, 334. Note and mortgage, 330. No set ritual, 331. Object, of making, 332. Official bpnds, 332. , Parent tp minor, 332. Precluded, 332. Possession by grantee, 331. At grantee's decease, 333. Circumstances; testimony, 332. Delivered after its date, 333. Presumption rebutted, 332. Presumptive delivery, 331. Possession of maker, 331. No delivery, 334. Safe-keeping, 331. Presumption: at date, 332. From execution, 334. Grantee's possession, 331. , .Grantor's control, 334. Recorded: prima facie, 333. Grantee's inference, 334. Grantee's subsequent assent, 323. GENERAI/ INDEX 1325 [REFERENCES Deli very— continued. Eeoorded — continued. Grantor 's direction, 334. May be rebutted, ' 333. Revocation attempted, 331. Stranger for grantee, 331. Title: passes by, 333. Attorney's intent, 333. Conditions in, 333. Intent effective, 333.' Mutual reliance on attorney, 333. Not revested, 333. Transaction, incomplete, 333. See also Deeds. Escrow. Gift. Demurrer, 335. After trial on merits, 338. By way of answer, 338. : Capacity to sue, 338. Demurrer ore tenus, 338., Not general demurrer, ,338. ,, Special demurrer, 33,8. Character of action, 336. Counterclaim : answer, 336 Counterclaim only, 337.., County court, 337". Petition in proceedings, 337. Treated as objection, 337. Different cause of action, 338. Excess of parties, 337,,, Joint demurrer, 336. Limitation, specified, 713. , , . Motion to quash, 337. Petition :, , county court,, 337. Objection to evidence,, 336, 337, < > Nature of action, 336, 1016. Not appealable, 338. Ore tenus demurrer, 336. Appealable when, 338. Capacity to sue, 338. , , Equity jurisdiction, . 3,38,.! Not as to jaw remedy, 388. / More latitude, 337. Objection to evidence, 336, 337, 338, Prayer for relief, not to, 868. Preliminary proceedings, 338. Eeaches back to first, .33,4 Counterclaim; answer, , 336, , , Counterclaim only, 337. Ees adjudieata, when, . ,961,,. ■ ; Striking out, .frivolous,', 33,7. See also Pleadings. Demand, 334. Dower damages, 370, 372. ' Foreign guardian, 335. ' Not as sureties,' 335. Money to be refunded, 334. ARE TO PAGES. ] Demand — continued. Note or bill, 335. ; " Defense matter, 335. English statute, 335. "Not elsewhere," 335.' Unnecessary, 335. Presentation) services, 334. Refused to pay, 335. Implies demand, 335. Depositions, 339. Admit whole or part, 343. Party as a witness, 344. Adverse examination, 343. Adverse party, not first, 343. Door not opened, 343. Either party 1 may use, 343: Make party 'his witness, 344. Other party, same subject, 343. Parts as desired, 344. Appearance: waiver, 340. Benefit of both parties, 340. Certificate; defective, 341. Technical objection, 341. Commission depositions': Admit ■ or suppress, 342. Commissioner's duty, 34ll Competency, 340. Consul of U. S., 342. Court rules govern, 340. ' ' Cross-examination, 343. Defective ' certificate, 3'42. " Defects and irregularities, 342. Exact place, immaterial, 339. Form of oath, 342. Last interrogatory, 342. Oath, circuit court rule, 342. Oral interrogatories, 341. Without the state, 341. Only 1 to another state, 341. Parties and attorneys, 339. Presumption as to oath, 342. Reading interrogatories, 341. Returned for correction, 341. Statutory rules, '340. Strictness of rules^ 342. Unofficial persons, 341. Want of notice, 341. Competent at time, 340. ' Contempt proceedings^ 341. County coiirt: Non-contested matters, 344. Evidence, when offered,' 343. For party offering, 343. Notice and certificate, 344. Objections of party, 343. Opposite party's, 343. 1326 GENERAL INDEX [REFERENCES Depositions — continued. Evidence — continued. Status changed, 343, Objection to interrogatory, 781. Opposite party's use, 340. No different status, 343., Objections by other party, 343. Bead whole or part, 342. Right of either party, 340. Bead portion only, 342. Either party may, 343. Opposite party, ,342. Other party, same subject, 343, Reason still exists, 340. Residence, objection, 340. Judicial notice, 340. Taken during trial, 344. ' Transactions with dec'd., 343. Venue, want of, 339. Whole testimony, 340. Without the state, 341. Cross examination, 343. Notice or commission, 343. Witness in court, 340. Discretion in use, 34Q. Impeach or contradict, 340. See also Discovert. Deputy. See Officers. Descent and Distribution, 344. Administrator 's right, 345. Agreement modifying, 348. Action for property, 348. Approved in part, 348. Contrary to the will, 349. Creditor 's rights,, 348. , Election of widow, 349. : Stipulation disregarded, 349, i , Blood of ancestor, 346. , Ancestral blood or not,, 346. .. . Descends to next of kin, 346 j None ancestral, 346. Certificate: joint' owner, 349. Improper recital, , 349. Of descent; unknown heirs, 350. Degrees of kin: < Grandmother, uncles, 347. : Descent, next of kin,, 346. , Ancestor blood or not, 346. Equally to next of kin, 347., Inherit equally, 346. No ancestral blood, 346. Not to personal estate, 346. i, Devisees: from death, 345. Same amount as law, 347. ARE TO PAGES. ] Descent and Distribution — continued. Homestead descent, 35p. Husband sole heir, 348. Intestacy presumed, 348. Joint tenancy, 620. Kin ; relatives, 658. ; Kindred of half-blood, 345. Blood ancestral and not, 346. Inherit equally, 346. Bules of civil law, 346. Lands descend on death, 345. Vest, subject to rights, 345. Legacies: sale of remainder, 347. Negative testate proof, 348. ' Intestacy presumed, 348. "Parents": definition, 347. Father and mother, 348. Personal estate, 346. Does not descend, 347. Not inheritable, ; 347. Besidue: definition, 348. Agreement, on objection, 349. Held in trust, 349. Intention as to, 349. Widow's election, 348. Take as a class, 347. Unmarried infant, 345. Blood of ancestor, 346. Brothers and sisters, 345. No other direction) 349. No other issue, 346. Personalty case, 347. Sold by guardian, 346. Sold during ' lifetime, 346. Statute construed, 346! Widow: intestate residue, 347. Deceased, leaving another) 348. Election; agreement, 349. Election; another widow, 348. Election ; not affect residue, 349. Failing to 'elect, 347. Will assumed' valid, 350. Judgment upheld, 350. See also Heirs. ' Judgments. Kin. Settlement. Survivorship. Devises. Devisees, 350. Condition: not to alien, 351. Curtesy of ' husband, 351. Debt liability,' etc., 351. Dower, profits, waste, etc., 351, '" Not convey for time, 352. Definition, 350. Bequeath, devise, 350. Real estate, 350. Devise of son 's .lands, 350. Son 's devisee rights, 350. GENERAL INDEX 1327 [KEPBKENCBS Devises — continued. Executed oral contract, 352. Intestacy avoided, 352. Joint tenants; not devise, 623. Lands acquired after will made, 899! Legacy charge, in detail, 675. Legacy lien not trust, 352, 680. Devisee personally liable', 680. Lost writing to devise, 352. Quantity as by descent, 351. Common law rule, 35i. Devise or descent, 351. Bemainder, reversion, 351. ' Residuum, void legacies, 352. Intestacy avoided, 352. Unless cbntrary intent, ' 352. ' Take at once on death, 859. Vesting of estates, in detail, 11'95. ' Void; legacy to residue, 351. ' Because patent ambiguity, '352. Conditions, wnat void, '351. Converted realty, SSI- Devise, undecided^ 351;. Fall into residuum, 352.' Not convey for time, 352. With power of sale, 352. See also 'Constrtjctiost of Wills. Vesting of Estates, etc. Dictum, Judicial and Obiter. See Rules of Practice. Discontinuance, 353. Absolute rights to, 353. Cause necessary, 355. Modified to discretion, 355. Affirmative decree, 354. Attorney's authority ended, 354. Attorney cannot prevent, 104. Code does not affect, 353.' Common law right, 353. Counterclaim and reply, 353, 355. Defendant, affirmative decree, 354. Permit to restore, 353. Befusal to strike off, 353. . Court may deny, 354. Equity practice, 353. Hearing on merits, 627. Judicial action necessary, 354. Allow or deny, 354, 355. Discretion upheld, 355. Oral order sufficient,' 354. Order denying effective, 354. Bights of others, 354. May substitute another, 354. Order on stipulation, 354. Beal controversy, 355. Cause necessary', 355. ii'Uaoil ARE TO PAGES.] Discontinuance — continued. Stipulation, not bar, 355. Oral testimony, 355. Special authority, merits, 355V ' Without costs, 355. Voluntary dismissal, 355. No practical difference, 355. Discovery, 355. Administrator: in equity, 359.' All rights settled, 360. " : " ,,; Circuity of action, 360. Disbursed oh claims','360. During administration, 360. Find separate liability, 360. Held in abeyance, 360. ' Parties brought in, 360. Proof from county 1 court, 360. Sums paid to heirs, 360. Adverse party, see. 4096, 356: ' Admissibility, different, 357. As admissions, 357, 359. Not of employees, 359. ' Party examined, not offer, 3'59. Admission, nature of, 357. 1 ' ' Adverse party ' ' : definition; 361. Affidavit for order, 361. ! Counter affidavit, 361. All material issues, 357. Broad as cross^xamination, 357. Cannot otherwise prove, 357. Cross examination nature, 362; Discovery bill extended, 357: Evidence of party offering; 343. Bights of parties, 343. ' Foreign: without state, 360. ' As other depositions, 360. General deposition Statutes, 360. Letters rogatory, 360. Oral or commission^ 360. Guardian: ad litem, not agent, 362. Father of minor, 363. n Minor real party, 362. Not general guardian, 363. Liberally construed, 358, 361, 362. More ample, remedy, 358, , Not striptly deposition, 357. Oral interrogatories, 358, As other depositions, 360. Foreign: oral or commission, ?60. General deposition statutes, 360. In all cases, oral, 360. , ,, , Non-resident party, 358. , Order, if before issue, 357. Pleadings, limit, 356. \ Production of papers, etc., 359. Physical objects, 362. 1328 GBNEEAL INDEX [REFERENCES Discovery — continued. Adverse party — continued. Same rule, other witnesses, 362. Substitute for bill, 358. Whatever is relevant, 356, 362. Bill of discovery, 356. Abolished here,, 356. Adverse party, sec. 4096, 356. Filed in equity, 358. Form and substance, 358. Broader than equity, 362. Compelling inspection, 359. Credible denial, 359. Not duty 1 1 gain control, 359. Papers of third party, 359. Possession rebutted, 359. Possession, whereabouts, 359. Concurrent jurisdiction, 359, 360. Contempt proceedings, 356. County, court: adverse examination, 358. Before court commissioner, 358. Filing of claim, 358. May be had therein, 358. Under see. 4096, 358. County court procedure, 357. Action for recovery, 358, Admissibility as evidence, 362. Compel: .examination, 357. Equity concurrent, 360. Executrix of dec'd, extr., 357. Governor National Home,. 361. Nature of discovery, 357. No remedy to enforce, 358. Order therein, 357. Cross examination at trial, 361. Employee called, 361. Be-examined close of, 361, 362. Discretion of judge, 361. Impeachment questions, 361, 565. Not new matters^ 361. . Incriminating evidence, 362^ Avoiding civil liability, 362. Opinion of witnesses, 362. Trial court's discretion, 362. Violation of primary law, 362. "Plead", may mean clainf, 359. Befusal to answer, proceedings, 356. Wife: husband's property, 541. See also. Deposition's.' Writings. Dismissal. See Discontinuance. Disqualification. See County Judge. AEE TO PAGES.] Distribution. See Discent and Distribution. Judg- ments. Dividends. See Trust Funds. Divorce, 363. Attorney's services for wife, 364. , Action against husband, 364. Autsority statutory, 364. Deceased husband's estate, 364. Action against admr., 364. Alimony enforced, 364. Judgment unimpeached, 364. Not county court claim, 364. Dower cut off, 363. Minor children support, 364. Prohibition of marriage, 364. Not extra-territorial, 364. Property division, 364. Wife estopped, 364,. Testimony: divorced wife, 363. Not confidential, 363. Within the year, 364. Judgment dissolves marriage, 365. Not wife 's husband, 365. Documentary. See Evidence. Writings. Domicil, 365. "Acquired domicil", 367. Former Louisianian, 368. Change of domicil, 368. Circumstances for change, 368. Citizens' rights^ 368. Essential requisites, 368. Intent future return, 368. Temporary returns, 368. Construction of wills, 367. ■Bealty intent of will, 367. Foreign: testatrix claim, 366. Proceedings, in rem, 368. Guardianship, 367. Besidence another county, 367. Home; one at a time, 522. Husband can change, 366. Husband's is wife's, 367. Power as -to homestead, 530. Wife cannot change, 367. Without wife's consent, 366. Immaterial, 368. Proceedings in rem, 368. Inheritance taxes, 592, 593. Intention: often material, 366. Future return intent, 368. GENERAL INDEX 1329 [REFERENCES Domicil — continued.. Intention — continued. Mental resolution, 366, Eemoval must accompany, 366. Jurisdictiqn, 367. ..,.,., Estate here, 368. Proceeding in rem, 368. Payment presumption, 365. Personal property transfer, 366. Bequest validity, 367. Execution and power, lex loci, 367. Law of domicil, 367. . "Proper residence", 367. Not special, 367. , Presumption where living, 522, Probate, when decided, 654. Eeal property, lex loci, 3,67., Devise by will, 367. Execution and power, 367. "Residence", "domicile", 366. Attendance at school, 3 68. Eesidenee conditions, 36.8. Definition, test,. 366, 368. Every person can fix, 368. One only at a time, 368. Purpose and removal, 366. Signifies what, 368. Taxation purposes, 366. ,,i. Purpose and removal, 366. Temporary purposes, 368. Voting not conclusive, 368. "Wife separate, when, 366., Cannot change, 367. Dower, 369. After ten years, sheriff's deed, 370., Allowance from personalty, 370. Before assignment of, ,370, 371. Possession right retained, 375. County court's power, 372. Bight not disputed, 372. Continuation from husband, 370. Curtesy subject to debts, 376. Damages for withholding, 370., 372. Against husband 'si alienee, 373. Gross sum in , lieu of, 373, Money judgment for, 373.. , Seizure limitation, 373. Vesting of husband's title, 373. Demand therfor, 370. Damages from, demand, ,372, . Belief from damages^ 37,0.; Divorce cuts off, 3,70. Election: right secured, 372. Also as to personalty, 372. Homestead and dower vests, 374. Must account foif, will .estate, 372. Zimmerman — 84 ARE TO ^AGBS.J Dower — continued. Election — continued, Will ineffective, 372,, 37,4. , Equitable estates,, , , 375. At common, law, 375. Husband no paper title, 375. Many, states , changed, 375. Where , legal , in, effect, 375. Estopped, by fraud, 375. Fraudulent conveyance,., 372, , Ignorance, of intended wife, 374. Prospective husband 's deed, 373, 374. Bevives in wife, 374. ,,, Widow claim dower, ; ,3,72... . Wife active, in. fra,ud,i, 375. Free frpm unsecured debts, .374, 376. Gross sum in, lieu, of, 373., Action in equity, 373. .,,', Estoppel of withholder,; 373i Held in trust, 373. . ,..,, Homestead: right, in, 370., < Not in , remainder, 37,4- ■,. Possession without assigned, 375., ( Bight on election, 374. Husband cannot divert, 371. .' Ignorance of intended wife, ; 374. Non-resident wife, 371. Prospective husband, 373, 374. Inchoate dower right, 370. " Before assignment, 370, 371, ; Computed on land contract, 376! Expectancy till death, 371. Fraud, as to, 370. Ignorance of intended wife, 374. Incumbrance on land, 374. Mechanic's lien suit, 371j- 376. Not a future estate, 372. Prospective husband's deed, 3,73, 374, Release, to stranger, 372^' Belinquishrnent, 372. Wife bring action, 374. Law greatly favors, 370. ,,,, • , Lease, wife joins,, 374., < i.. Bents after decease, 374, ,..,,,". LegaL status i only, 375. -j ..„;: Living separately :? fraud, 375^,(1 Marriage: proof of, 371. .-,::.-., : License .to sell realty, 372. i ■ Validity determined, 372, Mesne profits from, 371. Assigned or not, , 371. In rents j lease, 374, i.,-, Becovery thereof, 371. Non-resident: wife, 371. Lands conveyed by [husband, 371. Statute frpm Michigan, 376. Time of husband^ death, 371, 376. 1330 GBNEEAL INDEX [REFERENCES Dower — continued. Non-resident — continued. Time of the conveyance, 376. Widow, different right, 371 . Possession with children, 375. Release to husband, 372. Ineffective, also personalty, 372. Remainder: life estate, 373. After estate for years, 375. Conveyance- without wife, 374. Eeversion or remainder, 375. Resident aliens, 371. Seizin: necessary, 373. At common law, 375. Homestead estate excludes, 374. Seized during coverture, 375. "Seizin" denned, etc., 375. Subject to life estate, 374. Sheriff's deed, 370. Trust for years, 375; Vests from death, 370. After amount fixed, 370. See also Widow. Drunkenness. See Incompetents. Duress. See Unlawful Contracts. Election. See Remedies. Widow. Emancipation. i See Parent and Child. Eminent Domain. See Condemnation. Endorsement. See Promissory Notes, etc. Entire Contracts, 377. Absent for short time, 378. Continuation services, 378. Both parties to act, 378. Defined: as to payments, 379. Difficulties arising, 379. Election of remedies, 380. Excusal of performance, 377, 378. Prevention for cause, 379. Unexpectedly impossible, 379. Unseasonable 1 service, 378. Wrongful discharge, 380. Future commencement, 379. Statute of frauds, 379. Payment: refusal of part, 378, At stated periods, 379. End of period, 378, ARE TO PAGES.] Entire Contracts — continued. Performance: general rule, 377, 379. Act of God, law, party, 377, 378. Personal services, 31. Recovery quantum meruit, 377. Sickness or death, 377. Personal services, 377. Sickness of wife, 377. Quantum meruit, 377. Contract being void, 379. Refusal to pay part, 378. Wrongful discharge, 380. Sale contracts, severable, 380. Absence of intention, 380. Services generally, 999. Special contract for work, 378. Statute of Frauds, 379. Violent storm destruction, 379. Void in part, 378. Realty and personalty, 380. Statute of Frauds, 379. Waiver: receiving back, 378. Consent to discharge, 379. Letters as evidence, 379. Of remedies, 380. Wrongful discharge, 380. Equitable Conversion, 380. Date of death, back to, 381, 382. Deeds by beneficiaries, 1149. Deprive of vested rights, 384. Discretionary authority, 382, 383. "As soon as practicable", 382. General purposes, 382. Void in part, 382. Implied conversion, 381. Apparent, from will, 381. Express and implied, 383. Necessary implication, 153, 382. Plan or purpose fails, 382. Treated as though done, 381. Mandatory: not in power, 381. Execution difficult, 383. Express or implied, 383. Sale intended, 381. Money for all purposes, 382. Though not necessary, 382. Partnership, doctrine in, 1067. Survivor's realty power, 1067. Phrases construed: "As soon as practicable", 382. Distributed as money, 383. Division after decease, 383. Invested in fund, 382. "Pay from time to time", 383. "Payment", use of, 383. "Pay over and deliver", 381: GENERAL INDEX 1331 [REFERENCES Equitable Conversion — continued. Phrases construed — continued. Pay the proceeds thereof, 1148. Property "put on interest", 383. "Within five years",, 382. Void devise, 382. Treated as money, 984. Principle of doctrine, 381. Devise with direction, 381. Money with direction, 381. Perpetuity statute, 158, 381. Taking place at death, 381. : Really a fiction, 384. Deem done which ought, 384. No real conversion, 384. Not in fact become so, 384. Eealty with personalty, 381. Realty with sale power, 149. Treated as money/ 241. Trust for masses, 383. Unnecessary to carry out, 383. Though if necessary, 383. Vested rights; not, 384. Void: devise, 382. Particular purposes, 382. Part of general, 382. Equitable Lien. See Lien. Equity, 384. ; ■ Accounting, 387. Discovery' necessary, 388. Actions: law and equity, 385. Equity not enlarged, 385. Forma only abolished, 385. Inherent) differences remain, 385. Legislature cannot affect, 3 86. Adequate law remedy, 388. ' ■ i: T Construe will: ejectment, 389, 390. Decide land recovery, 389. ■ i Pailure to object, 389. Must be as efficient, 390. Objection by answer, : etc., 388. i Objection , by demurrer, 389. Objection seasonably taken, 389. Objection waived, 389. Time, expense, multiplicity, 390. All-pervading principle, 390. Amendment : law to equity, 390. Charitable trust, 387.' Condition: subsequent, precedent, 389. Construe wills: trust pWer, 390. Not legal rights only, 389, 390. Contract ':' meeting of minds, 389. Not on terms expressed, 389. County court jurisdiction, 170, 387. ARE TO PAGES.] Equity — continued. . I ,,. . ,■ . v County court, etc. — continued.: Co-extensive in eBtates, 387. Enforce oral bequests, 387. Party misled by court, 388. Set aside probate, undecided, 387. Demurrer: ore tenus, 388. As to law remedy, 388. Enjoin: sheriff's sale, 387. Apply in same suit, .388. Not in another suit, 388. Not. other i equity process,, 388; Findings, absence of, 166. Forfeiture relief, .389; Fraudulent orders, 475. Gross laches, 386, .387. Improvements : title >f ailurej 385. Jurisdiction : secure, 386. Trust gives construction, 390. Jury, when to try, 387.; Court decides whole ease, 388. Court may adopt, 388. Particular issues, 388. Set' aside verdict, 388. , Law judgment, relief, 385. Lost or destroyed will, 386. Natural justice, 385. Not limited to: set rules, .386. Relief from judgments ; rule; 1 476. Rescission of deeds, 387. •<■■:•. Settlement of estates, 389. Jurisdiction taken, whenj ' 389. Title': present and future, 390. In being, not in being, 390. Tried by the court, 387.' •• Court decides whole case, 388. Issues by : jury, when, 387. Unadministered assets,' 389; Unreasonable delay, 386, 387. Vacating judgments, 385. Void administrator's sale, 385. Purchaser 's improvements, 385. Will construed, at law, 389.' Will probate: setting aside, 385, 387. Any probate fraud, 387. Appeal in circuit court,' 167. '■'•'•'■ ' County ' court's power, undecided, '387/ •: ■ ■" >■<'- ■i- M Exclusive in county court, 386; 387. Fraudulently ' obtained, r < 386. ■' '•'• Unreasonable delay, 386,' 387. ; ■• ' ! i "With clean hands", 390. !" See also Circuit- Court. 'Concurrent Jurisdiction. ■ Fraudulent Or- ders. Jurisdiction. Laches. Mistake. . 'Reformation. < • Specific Performance. ■■< " ' '■• "■ 1332 GENERAL INDEX Error, Writ of. See WkIt of Error. [REFERENCES Escrow, 390. Agent merely of grantor, 394. Agency terminated at death, 394. Conditions: deed, 391, 392. Contained in deed, 392. Future certain event, 1 393. Future uncertain event, 393. May rest in 1 ' parol, 392. >•■ Memorandum of grantor, 395. • Proved by parol, 392. it Consideration unnecessary, 395. ' Deed contains . conditions, 392. Delivery: absolute, 391. Contingent or conditional, 391, 393. Effective double delivery, 394. Oral direction to deliver; 395. Possession and control, 391, 392, 393. Returned on recovery, 394. Through still another, 394. Title does not pass, 393. Title passes, first delivery, 393." To escrow after decease, 395t To husband to grantee, 395. Delivery, generally, 330. Directions to deliver, 395. Disposition of lands, 392. ■■ At death: three methods; 392. (1) Reservation of life estate,! 392. (2) Delivery to third person, 392. (3) Control, effected by will, 392. Escrow: defined, 391. Certain drafts, 394. Deed delivery, 393. Note and mortgage, 393. Understanding, 393. Friend, without consideration, 395.; Oral directions to husband, 395... Valid against heir, 395. Future:; certain event, 393. Uncertain event, 393, 395. i Grantee: not hold deed, 392. ii Grantee's deed from deposit, 393. Grantor:, divest power, 391. i . . Authority and control, 391. Contingent or conditional, 391. , Not beyond his control, 394. Prevent by silence, 394. Until future condition, 391. Husband to wife,' 393. Homestead consideration, 393. Subsequent destruction, 394. Note and mortgage > 393. Oral:, agreement to sell, 392. Deed and mortgage) 392. ARE TO PAGES. ] Escrow — continued. Oral — continued. Directions to deliver, 395. Not modified in escrow, 812. Subject to recall, 391, 392. Subsequent destruction, 394. Through executor, 395. Title passes: first delivery, 393. Does not pass, 393. Escrow to executor, 395. Grantees deed from deposit, 393. Grantor's present deed, 394. Subsequent destruction, 394. Trustee of grantee, 393. See also Delivery. Estoppel, 395. Account: more than bill, 396. Admissions : judicial, '398. Of payment, 399. Out of court, 398. Administration claim ; contract, 120. Admitted without objection, 399. Adoption order; petitioner, 52. Agents' unauthorized act, 399. Beneficial interest in will, 399. Confirms whole will, 399. Change of position, essential, 401. County court: enforced in, 397. Doctrine of equitable, 397. Equitable estoppel rules, 397. Constructive fraud, 398. Deception in conduct, 397. Deception in declaration, 397. Gross negligence, 397, 398. Means not available, 398. Negligence without fraud, 398. Owner directly apprised, 398. Title known to both, 398. True state of title, 398. Title of record, silence, 398. Estoppel in pais rule, 398. Change of ' position, essential, 1218. Definition of, 401. Executor as guardian, 400. No privity between, 400. Executors and heirs, acts, 397. Attorney's influence, 397. Defective probate, 397. Ratified acts, 397. Ileir: appears and participates, 400. Contesting on appeal, 1117. Infant void marriage, 399. Fraudulent age declared, 399.,, ,,,, ■. Infant; equitable, 583, 584. Influenced to act,;398, 399. GENERAL INDEX 1333 [REFERENCES Estoppel — continued. Inventory, failure to object, 400. Not estopped as to sureties, 400. Limitation statute, 714, 717. Married woman: bound, 397. < Direction to sign for her, 400:i Husband marries another, 400. Dower after his decease, 400. . Mortgage on homestead, 400. Must be pleaded, 398. ■ Natural justice principle, 399. Oral land surrender, 399. Action necessary, 399. Offer not accepted, 399. Owner: sees property sold, 397. Third person must act, 397. ' Title claimed by another, 397. Eemainderman, proceeds, 400. Deed of fee by -life tenant, 400. Representation made, 401. . Settlement by heirs, 401. Note, consideration, 401. Sunday, contracts, 1051. Title: shown by party, 396. Claimed by another, 397. » Gross negligence, 396.' Ignorance of true state, 396. Known to both, 398. ' Owner directly apprised, 398. Eecord of title, silence, 398. Third 'person must act, 397. Wilful concealment, 396. Trustees and heirs ;' widow,. 400. ,Wards after age, 397. ''.' Void realty sale, 397. Widow: rights undisclosed, 400. Trustees and heirs, 400. Evidence, 401. Accounts: . ,, _<,,,, Defective, as memoranda,, 404. , Memorandum of , , epntraelj, . 405. : , Mistake, name oyer,! 4.0.4. . Party not impeached, . 402, ,, Settlement of, mutual, 403. Administration accounts, ,15. Admissions :• of agent, 404. Advancements : Certificate of decedent,'"57:' Final judgment proof, 404. Oral evidence of writing, 404.' Appearance of persons or. things, 407 Baptismal certificate, 408. Birth, age, death, 11.3,, , , Books of science, 139. Breach, of Bond,, 129. I ARE TO PAGES. ] Evidence — continued. , Burden of , proof :, shifting; 408. Fraud; undue influence, 1161. , Certificate: clerk 's - seal, 403. , Falsifying; burden, 406., Certified copies : „ ; ■ , , Admr, letters < and, bond, 404. Originals in court, 402., Cestuis que trust intended, < 141. Circumstantial: defined, 404. , Establish express, icon tract; 405. Material fact proven, 1 406.: ■■ Child's evidence,. ,582. Claims,: absence of, 171. Clear preponderance, 637. Competency;; iiObjections,,i ,780. - Competency i of ! witnesses, , 1236. Competency ruling, , 408. , Competent when tendered, 402. Construe contracts, 403. ,.,; Conveyance pnly a part, . 403. n,>, ,. Deceaseds party's evidence,. 405i,,' Adverse evidence, sec. 4096, 405. Part admitted^ whole, 405. Justice's minutes, 405... ,...,. Deceased witness: same parties,' 405. Same action or issues, 40,8. ., Disclosing of ;def ense,, 402. Enmity: or friendship, 403. , Impeachment i purposes, 408. ; Execution of wills, -in detail,. 411. Execution of writings decease, 174. As at common r la»w,,, 174. ... ,,,,! Expert testimony,) 432. , . : : Fraud or mistake, 939. , ,- : Gift; evidence as $o,:481., . , ,,, <, . Handwriting; 507. , , ■ , Husband .and wife, . 402, 53,5.; , , Personal violence,, 402., , Wife .acting: as' agent, ,403. < l> Incompetents ; guardianship,, 569. • , Inherently improbable, ,405.- u . , ,: Inheritance, rights, ; 54. ,,. , Insane -perspns,,, 595, ,, ■ ., ■ Lost, writings igstablished^SS;,.,^, Lucid inljerval^.^urden, ,40^. . .,,, , Majority, rule not recognized, J238. Marriage: proof in detail, 723. Proved^ by persons present, 402." Mental capacity, in detail, 1080. Mental unsoundness adjudged 1 , 571. Negative testimony, 404." ' Failure to observe, 407. Near enough 1 to hear, '407'. Observation*,' - affirmative,': 407. Notice to produce: at trial, 403. i Secondary evidence, 403. . ■ ■■ 1334 GENERAL INDEX [REFERENCES Evidence — continued. ' ■ ' Objectionable, competent, 404. Objections, in detail s 780. One competent witness, 1239. Parties, in detail, 814. Photographs: improper, 406. Immaterial as to time, 407. Properly identified, 406. Prior trial evidence, 406, 408. Absent or deceased witnesses, 408 Preponderance, 406. Not with numbers, 1239. Presumed to favor party, 874. Privileged communications, 890. Proportion of sum, 406. Reasonable inference; jury, 406. Rebutting evidence, rule, 403. Direct, in discretion, 403, 404. Remarkable state of facts, 405. Representative capacity, 404. Ees gestae: in detail, 960. Communications at time, 403. Return of sheriff, 403. Services in detail, 999. Signatures, 507. Subject to objection, 1117. Testamentary capacity, 1080. Testimony, testifying, 1244. Testimony to prove, 404. Transactions with deceased persons, 1105. : ; • Trial by court, 406. Improper evidence, 408. Opportunities, 1239. Undisputed, reasonable, 406. Not opinion, or weak, 407. One witness, party, 406, 407. Special knowledge of judge, 407. Undue influence, in detail, 1161. ' Usage or custom, in detail, 1181. Usage, not favored, 403. Value: of services: question, 402. Bearing on contract price, 406. Other individual parcels, 407. Personal services, in detail, 999. Realty; recitals in deed 213. . Experts; other lands, 2l3. Record of other transfers, 407. Skill; customary rule, 402. Without the state, 408. Question of fact, 408. Witness absent or deceased, 408. Prior trial, evidence, 408. Witnesses, in, detail, 1229. Written proof: Oral given; excluded, 403. ARE TO PAGES. ] Evidence — continued. See also Admissions. Cross-Exami- nation. Depositions. Discovery. Examination or Witnesses. Execution op Wills. Expert Testimony. Handwriting. Hus- band and Wife. Impeachment op Witnesses. Leading Ques- tions. Objections. Parol. Privileged Communications. Re- buttal. Res Gestae. Testa- mentary Capacity. Transac- tions with Deceased Persons. Undue Influence. Writings. Evidence Against Decedents. See Transactions with Deceased Persons. Examination of Witnesses, 409. Conclusions of fact, 410. Criminate witness : rule, 409. Court, as to effect, 409. Objection; not attorney, 409. Witness as judge, 409. Hostile or adverse witness, 409. Discretion of court, 409. Interruption: without, 409. Interest: written, 409. Leading questions, 410. ' Appeared "frightened,"- etc., 410. Permissible, when, 410. Trial judge, examine, 409. Betray bias or prejudice, 409. Limits indicated, 409. See also Cross-examination. Evi- dence. Impeachment, etc. Lead- ing Questions. Objections. Witnesses. Execution, 410. Deceased judgment debtor: Heirs and administrators, 410. Prerequisites to issuance, 410. Suspension of judgment, 410. Estate settlement; county court, 410. Not execution issue, 410. Under claim statute, 410. Execution of Wills, 411. Attestation; subscribing, 412. Acts, physical, mental, 417. Attesting is what, 412. Different things, or not, 412, 417. Distinctions given, 412. Nature of instrument, 413, 415, 417. Presumptive evidence, 414, 420. Of all essential acts, 419, 420. GENERAL INDEX 1335 [REFERENCES ARE TO PAGES. ] Execution of Wills — continued. Attestation— continued. Proof of signatures, 414, 419. Subscribing is what, 412. Without certificate, 415. Certificate : Against witnesses, 420. All the essential facts, 419, 420. Convincing proof against, 415, 418, 419, 420. Insufficient proof, 419, 420, 421. Vague testimony, 418: One wit. dead: two against, 418, 420. Will sustained, 421. Presumption therefrom, . 414, 417, 418, 419, 420. Proof without certificate, 414, 415. Testator, mark signature, 420. Want of recollection, 414, 415, 420. , Witnesses all dead, 414, 419, 420. Codicil: no valid will, 417. English statute adopted, 412. Exception as to blind, 412. Testator's conscious presence, 412. Weight of authority, 412. Joint will, 420. Not lightly set aside, 420. Presumption: of regularity, 415, 420. Both witnesses dead, 419, 420. Convincing proof, 415, 418, 419. Vague impressions, 418, 419. Menvory of scrivener, 419. Memory of witnesses, 415, 420. Uncertain guide, 420. , p!| Signing before testator, 415. Privileged communications, 416, 418, 419. ' Publication: By signing only, 413. Nature of instrument, 413, 415, 418. Silent declaration, 413, 418. Testator fully apprised, 413. Requisites: valid will, 417. Scrivener as witness, 416, 418. • Absence of memory, 419. '■ Signing of testator: Affixing mark, 413. Manner of making, 420, 421. Name in adjoining room, 419. Testimony of one witness, 417. Witnesses ■ deceased, 420. i Direction, to another, 413. Follows certificate, 421. Not in witness' presence, 417, 418. Obliterated signature, 421. Testamentary writings, 416, 417. Both form a codicil, 417. Execution of Wills — continued. Testamentary writings — continued. First adopted in second, 416. Second witnessed: first notj 416. Two 1 instruments, 416. Testimony: ' Contest; one witness, 417. Courts below disagree,' 413, 416, 420. Foreign language used; 416, 419, 420. Many years later, 420. Uncertain guide, 420. Oral evidence not all, 901. Physician attending, ' 418, 419. Mental competency, 1 '419. Proponent, beneficiary, 416. Eead and explained, 416. Closer scrutiny,' 416. Testator German, 416. Witnesses disagree/ 416. Rules : non-contested cases, 417. Contested cases, 417. General' evidence; 420. ''- Signatures ptroved, 414, 415, 419. Signing before testator, 415, 418. Upheld against one or both, 413, 415, 418, 420. Will itself strong, 418. 1 Not lightly set aside, 420. Witnesses disagree, 413 ; , 416, 418, . 420." Witnesses : Adjoining room, 412, 414. Attorney and scrivener, 416, 418, 419. Attending physician, 418, 419. Scrivener merely, 419. Waiver of competency, 416, 419. Blind testator exception, 412. Each other's presence, 415. 1 - English statute, 412. Hear and see read, 414. Heir without provision, 1239. Nature Of 'instrument, 413/415, 417, , >, .418.' ' ' Present r want of memory, 414, 420. Proponent, beneficiary, present, 416. Incompetent as party, 416. Interpreter at making, 416. See if he chose, 412, 414, 419. Signing before testator, 415', 418. Special request: unnecessary, ,4J4. ■ Implied from circumstances, 417, 419. ' Testator's conscious presence, 412, 419. '" ,,. Weight of authority, 412. " , Wife of executor, 417. 1336 GENERAL INDEX [REFERENCES Execution of Wills— continued. Written in lead pencil, 419. See also Privileged Communication. Probate of .Wills. Testamen- tary Capacity. Undue Influ- ence. Wills. Executors and Administrators, 421. , Account : court 's motion, 422. Acting as trustee, 429., Advance : own risk, 422, Appointment rights, 42,7/ Assets: for own debt,,, 424, 428.' Breach of trust, 424. : Party also liable, 424.' Attorney; , private employee,! 107. Authority: evidence of, 426. Claims: pay not purchase, 422. Co-executors : ^.utjiority, 424. Act together, in general, 428. Power, in- detail, 859. Eight of appeal, 429.' .Trustees, in detail, 1118. Two for, one against, 427. Competency of executor, 429. Appointment mandatory, 429. Control only by county court, 429. Conversion: sue for, 423. Cost liability,, 423. ; Conveyance: authority, 425. Defective notices, 425. r To admr. personally, 425. Through third party, 425. Costs: estate chargeable, 427. Debtor of deceased,, 423, 427, Debt assets of i estate, 427. , Debt inventoried, 427, 428. Discharge, of debt, 427. Default judgment, against, 422. Different estates, same executor,; 210. Discharged, pending appeal, 429. Still rights, as such, 429. ■ Erroneous judicial advice, 422. Executor as trustee, in detail, 1118. Separation of , duties, 45; Executor; intestate estate, 33. Executor-named, 428: Authority' of, 428. Common law; curtailed, 428. Duties; probate appeal, 904. Not' executor,"428. Undertaking on appeal, 428. Insolvent administrator, 38. Irregular administration, 422. Letters, as proof, 427. Liable for trust property,. 429. ARE TO PAGES. ] Executors and Admrs. — continued. Liability to heir, 423. Bond, cumulative, 423. Parties in estate matters, 814. Personalty residue, 425. Convert to money, 425. Power, under wills, in detail, 859. Prior to administration, 426. Property of a stranger, 425. Possession: devised realty, 422. Action for occupation, 426. After six years, 426. Technically, against equity, 423. When estate settled, 425. When not needed, 426. Purchase trust property, 1118. Qualify: necessary, 424. Realty: not trustee of, 423. Administration rights, 930. Purchased with estate funds, 1120. Refusal to act, 423. Regarded as trustee, 429. Release powers of, 321. Removal, not without notice, 422. Rents and profits, 423. Entitled to, against heirs, 423. Not chargeable for, when, 426. Representative capacity, 426. Descriptive of office, 425, 426. Effect of word "as," 426. Proof of fame, 426, 427. Statutory bond, 426. Sale of personalty, 423. Without previous order, 423. Sale of realty, 425. Cannot purchase, 427. To himself : remedies, etc., 429. Settlement by heir, 429. Six-year limitation, 426. Sole surviving executor, 867. Speculate, estate funds, 428. Sue : as representative, 424. Accruing after decease, 424. Cause arose in Efetime, 424/ Note payable to bearer, 425. Support of deceased's mother, 424. Mother's administrator, 424. Title: of devisees, 425. Vindication of, 425. Trustees, in detail, 1118. Trust funds, in detail, 1131. Trust nature of office, 427. Undertaking on appr^.1, 428. Widow, trustee for, 427. Will not proved, 425. GENERAL INDEX 1337 [REFERENCES Executors and Admrs.— continued. See also Accounts ot Extrsj & Admrs. Administration.' Admr. de Bonis Non. Admr. with "Will Annexed. Compensation 1 op Admr., etc. Foreign Extr. & Admr. Liability. Parties. Power. Public Admr. Removal. Representative Capacity. Spe- cial Admr. Trustees. ■ Trust Funds. ' ■■ Exemplification. See Authentication. Exemptions, 430. Animals; year's food, 430. Annexation: homestead, 430. Debtor and family, 431. Earnings; also team, 431. Farm implement^ 431. Not farming, 432. Fraud; not effect sale, 468. , Fraudulent purchase, 432. Gift of exempt property, 431. Government seeuritiesy 431. Inheritance taxes, 588. Laws not vested, 430. Liberally construed, 430, 527. Occupation or business, 430. Pension money: taxes, 431. • Converted to other, 432. "Span of horses," 430. Stock in trade; use, 432. Intention to engage, 432. Trade or business, 431. Tradesman; merchant, 431. Undivided interest,' 430. Personalty; homestead, 430. "Wagon: hearse, 432. Waiver of selection, 431. Year provision support, 431. See also Homestead. Expert Testimony, 432. Comprehended facts, 434.'' Credibility not, 433, 438. Discretion of court, 441. Disregarded; little weight, 438. Evidence as heard, 433, 434, 439. Conflicting, complicated, 439. Hypothetical, when, 439. Many witnesses, 436, 439. Similar case stated, 433. Single witness, 433, 434, 436. Understanding of facts, 435. Fees: ordinary witness, 442. Preparation contract, 442. ARE TO' PAGES. ]. Expert Testimony— continued. General merits of. cause, 435. General rule: witnesses, 433, 439; 441. Converse of > rule; 439. Honesty or dishonesty, 436: Hypothetical case, 433, 434, 435. All material facts, '440. Claims, to 1 be facts, 435, 440. Evidence before or after, 437; Facts fall, answer ' falls, 440. Foundation in evidence,! ' 440. ■" More-appropriate, 435. Preponderance unnecessary, 435. Sufficient facts, 440'. Reason for preference,- 435. Rules stated, 435j 438. Sufficient material faets, 440. When not "necessary)" 439. When.' , necessary, 439. Insanity: act of, 435. Direct inquiry, non-expert, 441. Insufficient facts, 438. Court's discretion, '438. Non-expert, how examined, 441. Prevent confusion, 441. Non-expert 'impressions, 1 441. 1 ! ; Jury knowledge from view,' 213. Latitude of inquiry, 434. Leading questions, 439. " ' Medical books, 435. Mental capacity, 438. Non-expert: testify, 438, 440. Discretion of court, 1 439. ' Eccentricities 'merely, 440.' Exception : to rule, 438. '"'■ Familiarity only, 439. First state faets; 438, ! 440; 442. Lettgthyi conversation, 439. Specific, facts: impressions; 442. True field of opinion, 442. Value of opinion, 440. Trained nurse, 440. - ' Non-expert: weather, 434. Daily occurrence matters, 437. Description difficult/ 437. Insanity impressions, 441. Insanity opinion, 441; Insanity questions, how, 441. Prevent confusion, 441: Mental' capacity, 438. ■ Acquaintance, familiarity, 439. Based on conversation, 439. Qualify himself by facts, 438, 439. Observation knowledge, 437. Opinion without grounds, 1088. Special knowledge^ ' 437. '• Value of property, 434, 435J 436. 1338 GENERAL INDEX [REFERENCES Expert Testimony-^continued. Objection specific, 782. Object of all rules*, 434. Opinion: on facts, 435. As to ultimate fact, 438. Not decide fact issues, 438. Not necessarily expert, 441. Physician; examines party, 437. Derived, from statements^ 437. Facts' in evidence* 437. Not leading questions, 439. Party's medical adviser, ,437. Abortion case, 443. Criminal case, 443. Statements of party, 437. Testify as to license, 440. Precise fact, from letters, 443. Privileged communications*. 890. Proverbially unreliable, 442. < Laek of knowledge 442. Little or no data, 442., < • ■ "' ■ Science, art,- skill, 433, 439* 441. Scientific investigation, 438. Testify directly, 438. "Skill," broadly used, 441. Special knowledge, 441. Any subject, 441. State of weather, 434. Testamentary capacity in detail, 1080. Ultimate fact in case, 438, 439, 442. Preeise fact, from letters, 443. Science, art and skill, -442. Very point in issue,''442., Unsatisfactory nature, 434. Value of property, 434, 435, 436. All having experience, 436. Common witnesses, 436. Competency examination, 436. Cross-examination, 213, 436. Hypothetical case, 436. Not conclusive, 443. > Other realty in vicinity, 213. Heal or personal, 437. Second hand article, 443. Special knowledge, 436. Trees cut down, 437., Value of services, 437. Advisory, not conclusive, 437, 440. Executor's, not binding, 437. Want of ordinary care, 435. Weak and inconclusive,, 442, Express Trusts, 443. Lands, in writing, 443. Statute of frauds, 444. Limitation statute, 444. Ostensible partners, 444. ARE TO PAGES. ] Express Trusts — continued. Penal bond for proceeds, 444. See also Trusts. Trustees. Factor, 444. Definition, 444. Factor, or auctioneer, 445. Interest in proceeds, 445. Paying before receiving, 445. Principal paid in advance, 445. Lien upon goods, 444. Possession until paid, 444. Sell in own name, 444. Sell on credit, 444. Specific property in goods, 444. Sue for purchase price, 444, 445. Factor control, when, 445. Principal control suit, 445. Sole interested party, 445. Trustee of express trust, 444. Fees. See Costs and Fees. Feme Covert. See Married Woman. Final iTudgment. See Judgments. Final Settlement. See Accounts of Extrs. & Admrs. Descent and Distribution. Judgments. Settlement. Fixtures, 446. Agreement of all parties, 447. Consider personalty, 447. Chattel mortgage, 446, 448. Fence: permanent, 448. Other's land by mistake, 448. Bails along: intended for, 446. Rails laid as fence, 448. House in the moving, 843. Intention: improvements, 447. Machinery, fastened, 447, 448. Primary importance, 447, 448, 449. Grantor and grantee, 449. Landlord and tenant, 449. Mortgagor and mortgagee, 449. Vendor of personalty, 449. Landlord and tenant, 446. Attached a* entry, 449. Building not attached, 669. Counters, screens, furnace, 449. Icehouse, lessee built, 449. Personalty per agreement, 669. Surrender before removal, 449. GENERAL INDEX 1339 [REFERENCES Fixtures — continued. Lease: lessor no title, 446. foundation immaterial, 446. Hostile to true owner, 447. Mortgage: fixture vendor, 446. Chattel mortgage, 448. Machinery placed, 446, 448. Subsequent accessions, 448. Pass with realty, 447. Physical annexation, 447. Of little importance, 448, 449. Eemoved without injury, 448. Solid foundation, personalty, 449. Trespasser affixes, 447. True fixture rules, 446, 447, 448. Intention, main test, 447, 449. Three elements, 447. Foreclosure. See Mortgages. Foreign Contracts. See Contracts. Foreign Executors and Adminstrators, 449. Action by: in our courts, 450. Advantage by abatement, 450. Assets, immaterial, 451. Demurrer or abatement, 450. Piling foreign letters, 450> 451. Mortgage: foreclosure, 450. : Power of sale in mortgage, 450. Not want of title, 450. Same footing as domestic, 451. Subsequent filing, 450. Waiver of filing, when, 450. When, may sue, 450, 451. Wrongful, death here, 451. Appeal under sec. 4031, 451. Non-resident administrator, 450. Foreign Guardians, 451. Action by: Appointment authority, 451. Demurrer or abatement, 451. No guardian in state, 451. Not jurisdictional, 451. Title: sell lands here, 451. Statut6ry authority, 451. Foreign Judgments, 452, ; ' Administrators, against, 452. Independent; different states, 453. Principal; ancillary, 453. Appellate jurisdiction, 455, ARE TO PAGES. ] Foreign Judgments-^continuedi. ' Claim: barred; other state, 453. Allowed; Mich, judgment,! '455. Disallowed in Minn!, 1 453. Effect in other states, 454. Parties and privies, 454. Property in other state, 454. ' Residence; other facts, 454. Full faith and credit, 452, 453, 454, 455. According to law of state, 452. Effect in such state, 452. , Highest evidence of credit, 455. Proceeding in rem, 454. Jurisdiction, 452. > ..-■,■'.. Administration proceedings, 454. Actual locus of property, 454. Domicil finding unnecessary/ 454. Proceedings in rem, 454t Property in own state, 454. Pace of record, 453. Foreign country, 453. Necessary facts to give, 453. Proceedings in rem, 453, 454. Supreme ! court of Iowa, 455. Power to review, 455. ■■••■•' Mortgage on Iowa lands, 455. > . Judgment on note here, 455. > Substituted service, 455. Service in other state, 453. Substituted service, 455. Special jurisdiction court, 455; Authenticated transcript, 455. Force here and Minn., 455. No proof of Minn. Statutes, 455. Prima facie jurisdiction, 455. Vacating judgment on, 452 Foreign Jurisdiction, 456. Administration : Domicil immaterial, 456. Property in each state, 456. Debt, foreign legatee, 457. Enforce : foreign laws, 457, Liberal, proper cases, 457. . Protect our 1 people, 457. Foreign inferior court, 457. Guardianship: letters, 456. ' Appointed for nonresidents, 456. Pair on its face, 456. , Mortgage on Iowa lands, 457. Action in' rem, 457. Discharge, of debt in Iowa, 457. Ineffective as to note,i 457. Note, estate assets here, 457. Service in nonresident state, 456. Stockholders liability, ; 457. 1340 GENERAL INDEX [REFERENCES Foreign Jurisdiction — continued; Statutory right: Coupled with remedy, 457. < . ■ Enforceable where created, 457. Substituted service, 457. Title to lands; other Btate, 456. Conversion of sueh lands, 456. Will and residence here, 456. See also Foreign Judgments. Foreign Laws, 457. . ■<■ Enforce: statutory rights, 458. Judicial notice not taken, 458. Must be 'proved, 458. Decisions also, 458. Method of proof, 458. Stipulation of parties, 458. Presumed the same, 458: Common law states only, 458. In absence of proof, 458. Not of penal nature, 458. Similar statute, 458. Question of fact, 458. Oral proof, for jury, 459. Statute, for courty) 459: ■ Swiss limitation statute, 459. Should be. pleaded, 459. ''■' Similar, statute; decisions, 458. 1 Foreign Wills, 459. •. ..... Action to compel probate, 460. Admitted: without letters^ 459. - Passes title to realtyy 459. <■■ Authenticated copy, 462. Authority of executor,. 460, <462. Certificate i defective; : 46L ''Compared! vrithi original, '* 461. Defined judicially, 461. Federal '. statute, : ' 462. • Executor with sale power, 462. Informality of probate; 461. Jurisdiction must appear, -461. Not proof of death, 460. Decree of TSTevada, 460. Realty located here, 460. Enforcement of trust, 460. ■' Circuit court, 460. . ■. . Partial belief, county court, 460. Evidence of no debts, 459. Foreign law essentials, 462. '• Not validity here, 462. < Guardian' ad litem, failure, 462. Independent proceedings, .461. ■ Authority given, sec.. 2295, 461. Authority, required, sec. 3267, 461. Probate required, ■■ sec. 3789, et al., 461, 462. ■ AKE TO PAGES. ] Foreign Wills — continued. Letters, where no debts, 460. Probate necessary, 462. Probate or recording, 460. Probate unnecessary: Lands devised in trust, 460. Power of sale in will, 462. Recording passes title, 459, 460, 461. Title effect on realty, 460. Sec. 3267, in county court, 461. Sec. 2295, register 's offl.ee, 461. Forfeiture, 462. Equity: never favors, 462, 463. Not enforce or insert, 463. Reasonable meaning, 463. Requires what is just, 462. Ignorance, not construed as, 462. Intent doubtful; construction, 221. Language construed against, 228. Lease; benefit of lessor, 672. Choice of remedies, 672. Maintenance bond ; relief, 116. Promptness required, 463. Settled law, avoidanee, 463. Waived : rent acceptance, 462. Tender of amount due, 462. Fraud, 463. Abuse of .trust relations, 466. Confidence reposed, 466. Inadequate sale price, 466. Acquiesced in, 3. Actual; constructive, 466. Attendant circumstances, 468\ Burden on party charging, 468, 469. Inference of fraud, 468, 469. Undue influence, in detail, 1161. Reasonable certainty, 468, 469. Clear and satisfactory proof, 467, 468, 469. Reasonable certainty, 468, 469. Collateral, fraud attack, 183. Consideration: third person, 467. Ignorant of the fraud, 467. Contract signed in blank, 467. Conveyance: defraud creditors, 464, 467. Confidential relation, 326. Entrusted with money, 326. Proof burden, 326. Husband privy with grantee, 469, Husband to wife, 468, 469. ' Except as to homestead, 468. Trust for party intended, 466. Valid between parties, 464, 467, 468. Without wife's knowledge, 469. GENERAL INDEX .1341 [REFERENCES Fraud — continued. n Dower estoppel by, 400., Dower rights affected by, 369. Election of remedies, 465. Definite decision, 465. Rules stated in, detail, 954. Upon discovery, 465. , ; „ Equity: no limit, rules, 465. , • . Way open to punish, 465., Evidence inherently improbable, 468. Evidence, in all frauds, 939. Evidence set aside contract,, 939. Exempt property purchase, 467. Remedy on the fraud, 467. ■ False statements, 464, . Forged note payment, 948.,, Fraudulent orders; judgments, 475. Fraudulent securities, 464. Husband and wife, 468. Fraud known to grantee, ; 469. ; Homestead exemption, -468. "Withhold from record,, 469. i- : ,': As to creditors, 469< Without wife's knowledge,, 469. Inadequate consideration, 2,17, ,23.8. Infant, age declaration, 399., ,, i, r Knowing incapacity, 465. Limitation, exception in equity, 711. Misrepresentations : [Stated, 465 H c^ Confusion of mind, 465. , , , i Four questions to, coisider; 467. j Fraud without, exception, 467. Signing note' or, contract, 469. Guilty of no negligence, 469 .v : Negligence of note maker, 468.;,,/ New incident discovered, 3. ',.-,..■ Once a fraud committed) 466 Parol, exception to prove, 808. : i Rules stated, ,813. •; ,, ,, Positive fraud, defined, ,464, 467. Knowledge pr negligence, 464. Specifications given, 466. Presumption: in selling, 466. . ., Knowledge or, negligence, ,466. Presumption of innocence, 468. Probate matters; equity: ', Executor's fraudulent accounts'; 465 Executor 's ' fraud conveyances, 465. Fraud relating to' will, 467. Fraudulent probate, 1 465, 466. Laches shown, 466. Relationship not badge, '468. Closer scrutiny, 468. . "'■ Release, fraud, recorded, 178. Never of legal force, 178. Rescinded in toto, 464. ' Sue for damages, 465. AKE TO. PAGES.] Fraud— continued. • > . - ' >',>,;. Rescission of contract, 937. Reversing ' names in will, 468. : Attorney, < charged with, , 468. '•; Settlements, set aside, for, .1023.1 Statute of, frauds, 47f0,.< , ■ ■ . :i Undue influence, in .detail, 1161. Unlawful contracts, in: detail, 1177. Vary written contract, 464,, 469'. dear evidence,, i469.< > U ■■ Parol, evidence, , 464j . ' ' ■ , , Vitiates everything, 464. ■See also' Equity. Fraudulent Obheks. UNDUE' INFLUENCE; , • ,, .', i Frauds, Statute of, 47,0. Acceptance: void contract; 472. Answer, for another 's . debt, ■ 471. • Advantage must be> object, 472. Father, . minor/ soni's,-, 474.; i : Incidental advantage), 472. .'.' Incidental not object, 472. ' In form', not in effect, 473. New ' consideration, 471, 472. A. irequests B., ; to pay G, 47L Between seller and buyer; 475. Consideration; value received, 1242. Contingent: human life; 471.. Support during life, 471. ..■■:,: Contract fully executed, 473. > Deed to; be, mortgage, ■ 470. ' Devise: realty and personalty, 472. Entire contract, future start, 379. Escedw deed; oral sale, 392. •_}•>' Father, pay minor's debt, 474. Foreign contract, forum, 281. Fraud, generally, 463. Guarantying payment, 471. Party's own transfer,' 471. Implied consideration, 471. Implied ,trustsj! not, 470. Indemnify surety; oral, 471. I Land contract:- i Grantee need hot sign, '472.' Lease; parol cases, 670, 671. Order, vendor not sign; 474.' ' Parol antenuptial contract, 474,. Parol executory ' con'tracr, 472. Payment subsequently, '472.. ; ' Price $50 or more, 472. ' Valid from delivery, 472. Parol land sale void*. 471., Parol., modification, 475,, •; Written within year,, 475.. Parol, to buy jointly, ,47,5,. Partnership: in lands, 473. 1342 GENERAL INDEX [REFERENCES Frauds, Statute of — continued. Part performance: Either party terminate, 473; Otherwise fraud result, 824. Part payment: possession, 470, 473. Eealty and personalty, 474. Unexecuted fraction, 474. Recover reasonable value, 473. 1 Stopping of portion, 474. Verbal land Sale, 471. Personalty and realty, 474. Indivisible, void, 474. Promise and consideration, 470, 475. Reformation affecting, 950. Reiterated within year, 475. Repurchase stock sold, 474. Part of original contract, 474. ' Statute: English, states, 471, 472. Memorandum: land sale, 472. English: party charged, 472. Wis.": party who sells* 472. Simply not actionable, 471. Wis. and New York, 971. Contracts void, 471, 473. Statutory, defense, personal, 474. Strangers no right, 474. :! Time within year, 471. Continuous service, 473. Excess; of two days, 473. One year from performance, 473. Possible, death before, ! 473. Written within a year, 475. Parol modification, 475. Type- writing signature, 474. Written, not so required, 65, 475, 812. See also Part Performance. ' •'' Fraudulent Conveyances. See Actions by Extr. ok Admr. Creditors ' Actions. Bower. Erato. Frauds; Statute ' of. Husband and Wife. Incompe- tents ' Sale of Realty. In- fants' Sale of Realty. Married Woman. ,, Sale of Realty. Un- due Influence. Fraudulent Orders, 475. Acts of opposite party, 477, , Administrator's false pretenses, 477. After appeal expired, 478. After minor's majority, 478. Broad rule stated, 476, 479. Acts of opposite party, 476. Defense not available, 476. Fraud or accident, 476. Ignorance of fact. 476. ABE TO PAGES; ] Fraudulent Orders — continued. Broad rule stated — continued. Prevented from availing, 476. Without fault or negligence, 476. Burden on the trustee, 477. '■ Compel new accounting, 476. Constructive fraud, facts, 478. Contrary to equity, 476. Default judgment against ward, 478, 479. Laches: heir's interest, 479. Payment, been admitted, 479. Prior to ward's decease, 478. Defense prevented, 477. Directly induced judgment, 479. Not merely conditions, 479. Estate, one-third value, 477. Estate to wrong persons, 476. Exception, confirmed rights, 476. Limitation statute, 476. Failure of guardian ad litem, '478. Final judgment, five years, 476. Administrator's false pretense, 477. Application year later, 477, 478, Laches of petitioner, 477. ' Marriage concealment, 477. Fraudulent concealment, 477, 478. Fraudulent securities designed, 1027. Ignorance of the fact, 477. Inequitable; ignorance, 477. Irregularity entered, 476. Laches: of applicant, 476, 477, 478. Heir's interest developed, 479. New York; Massachusetts, 476. Not grant specific relief, 477. Obtained by fraud, 476, 477. One year limitation, 478. Parties lived at distance, 477, 478. Probating will, vacated, 478. '' Regardless of circuit court, 476, 478. Releases, mere conveniences, 478. Rule, elastic, restrictive, 479. Settlement not opened, 478. Only order complained of, 478. Unauthorized value finding, 1028. Vacate orders; proceedings, 476. Vacating judgments, 1184. Without fault or negligence, 477. WrongfuJ administration, 476, 477, 478. See also Fraud. Mistake. Settle- ment. Vacating Judgments. Funeral Expenses, 479. Corpse; burial rights, 319. Debt; applies to all estates, 480. GENERAL INDEX 1343 [REFERENCES ARE TO PAGES,] Funeral Expenses— continued. Estates liable for, 480. Not , contract relation, 480. Expenses, attending funeral, ,479. Married Woman: separate estate, 480. Credit of the estate, 480. Estate primarily liable, 480. Husband liable or not, 480. Husband ordered. charges, 480. Near friend or relative, 480. Paid by party or stranger, 480. Before administration, 480. Re-imbursed from estate, 480. Widow with estate funds,; 480. Bank and condition, 480. See also Administration Expenses. Claims. Future Contingent Estates, 480. Circuit court: Ninety -nine, year lease, 481. Pending administration, 481, Loan and mortgage, 480. No means available, 480. To prevent sale, 48p.. Remainder: to pay heirs, 481. Balance for parties' benefit, 481. Estate in solido, , 481. Preserved as provided, 481. Sale of portion or whole, 481. Threatened destruction, 481. Statute; not more power, 481. Merely provides method, 481., Ninety-nine year lease, 481. Not a trust violation,, 481. See also Power. Trust Variation. Vesting or Estates, etc. Future Delivery Contracts. See "Unlawful Contracts. '• Garnishment. See Liability. Gift, 481. ^Assessed against donor, 489. Causa mortis: Conditional gift, 484. Definition, 483, 484. Delivery also essential, 482, 483, 484, 489. Donor survives ; defeated, 483, 485. May be revoked, 484, 485. Not complete before decease, 483. ■':' Taken; pay donor's debts, 485. Custody, third person, 490. Title actually passes, 490. Turn over after death, 490. Gift — continued. t .,,., r; ; > Delivery essential, 482,,! 487. ....";, At law . and, in ; equity, :482. , ,; ; Causa mortis : : ; : completed, 482, 484, 489. :• • -, Change of, possession,. 483, 489. Directed: not effected, 483., Chattel or chose, 482. Circumstances excuse act, 489. Constructive;, intent, ,485, Delivered after ,deoease, 483. Insurance policy; manual, 487. Instrument, , is of fund, 487. Inter vivos: .completed, 482, ,484, ;487. ,,.,. , , Nature of property,, 489. : • ■> Promisor's own note, 487. .—.,/> .Such as subject admits ,of, 487. To agent of donee,. 490. ;,-.,. . ,' Delivery, generally, 330. Deposit box: with key, 488., Contents after death, 488. Evidence: ,, i < , Declarations : afterward, 488. Character of possession, 488/ Declarations of deceased, . 48,; 488. Of donor to third persons,. 489. Self serving; in derogation, 490. Abortive will or codicil, 490; ; Donee of dee'd. donor, 490, Dqnee'stalk, dec'd. donor, 490. ; Opposite party not testifying, 490. Family circumstances, 483. Indefinite; held gift, 485. Large amount of personalty, 486. Grand-niece; paralitie. uncle,,486. Large attorney 's fee, 486. i i Large physician's fee, 486. Large sums to relatives, 486. Not undue influence, 486. Other circumstances, 486. Bes gestae as to gift,, 483.. Not hearsay, 483. , ,, Statements of parties, 483. - "Was, to pay for, operation,'' 487. , Transactions with deceased, 1105. Exempt' property, 43l. Fund: in bajnk, 485. Intent emphasized, 485. Inter vivos; causa mortis, 485. Symbolical delivery, 487: Husband to ; wife, 551, 558. Infants: brother to sister, 483. Note, father to : infant, 484. ■ ' Creditors ; subsequent, existing, • 484.:, • • '• Father, not invalidate, 484. 1344 GENERAL INDEX [REFERENCES Gift — continued. Infants — continued. Handed to mother, 484. In trust for child; 484. Irrevocable, 484, 797. Insurance policy; manual, 487. Inter' Vivos : " ' ; Absence of recovery hope; 484. Donee actual possession, 484, 487. Fully executed before decease, 483. Effect irrevocably, 488. Intention to part With, 487. ■ Land, parol, ; possession, 486 1 , 486. ; Ownership acts; will, 486. Title by will; not gift, 486. Unambiguous declarations, 486. Unmistakable evidence, 486: Valuable improvements, 485, 486. Negotiable instruments; 487.'- Without written assignment, 487. Note: and mortgage, 482, 489. ■ ■ Delivery; gift to minor, 322. Endorsement and delivery, 488. Name of absent son, 488; : Note delivery essential, 482, 487. Payable after decease, 487. Promisor's note; promise, 487. Settlement: causa mortis, 489. Parent' and child;' scrutiny,- '489. Promise without act, 483. Ee-delivery ; special purpose, 485, 488. "' Endorsements erased, 488. To collect interest, 490. Reservation for donor, 489, 490. Revocable until delivery, 482.' ' Subjects and delivery, 485. Testamentary only, 487. Immediately after death, 487. Not if title 'passes, 490. See also Delivery. Guaranty, 490.- Collection of debt, 490, 491. Exhaust other remedies, 491. Consideration; 'expressed, 490., Expressed by implication, 491. Satisfies statute, , 491. Fails to express, 491. "For value received," 490, 491. Need not pass, 491., ,, , Creditor's own debt, 491. Note of third person, 491. Definition, 490, 492., Collection : payment, 490. "Guarantor," ordinarily, 492. Other meanings, 492. ARE TO PAGES. ] Guaranty— continued. Infant's guarantor, 491. Unenforceable contract, 491. Liability limit, 492. Exception; disability, 492. [ Notice of acceptance, 491. Promise to pay debt, 491. Guardian Ad Litem, 402. Accountable; attorney only, 497. Administration;' voidable, 494. Valid as to' others appearing 1 , 498. Void as to the minors, 498. ' Admr. de bonis non, 496. Nunc pro tunc guardian, 496. Appeal; without leave, 495. Duty to; not affect costs, 496. Leave to perfect, 495. Permission unnecessary, 496. Appointed : during trial, 494, 498,. Attorney; court matters, 497. Continued until discharged, 495. Appointed • in lower court, 496. Court, where prosecuted, 495. Circuit court, same appointee, 498. Not necessarily so, 498; ' Notice; hot required, 494. Other parties ; no interest, 494. Attorney's fees; expense, 495, 497. Attorney to be appointed, 494, 497. Claim contest; party, 497. Irregularity, waiver, 497. Common law, 493. Continued until removed, 495. Counsel employed ; ' leave, 497. Court's duty to appoint, 597. Disqualification : edunty judge, 497. Former guardian ad litem, 497. Duties and powers : Appeal without permission, 496. Appearance when necessary, 497. Continues throughout, 496. Court matters only, 497. Examine into case, 495. General guardian ignored, 495, 496. Illy advised; court interferes, 496. Take advice of court, 496. May proced without, 496. At his peril, 496. Not perfunctory merely,, 495, 49(6. Ordinarily passive only, 497 Power limited; property rights, 497. Protect infant's interest, 495, 496, 497. Protect testamentary scheme, 497. Quasi-official character, 497. GENERAL INDEX 1345 [REFERENCES Guardian Ad Litem — continued. Duties and powers — continued. Stimulate, executors, attorneys, 497. Advisory capacity, to them, 497. Stipulate ; no right, 497. Supported by counsel, 496. Under control of court, 495, 497. General guardian, adverse, 494, 495. After guardian ad litem, 495. Guardian ad litem necessary, 494, 495. May be guardian ad litem, 494. Not affect guardian ad litem, 495, 496. Practice; foreclosure, 494. Usually guardian ad litem, 494. Infant: not bound, 493. Appeal, signed by attorney, 494. Consent, ratification, 493. Defendant: guardian ad litem, 495. Disaffirm after age, 493. No laches charged, 493. Reasonable diligence, 493. Inference; other court, 495. General guardian, 495. Insanity develops, 597. Widow's election rights, 1224. Liability: in damages, 495. Necessary where notice, 493. Neither person nor property, 497. Parties, rights in detail, 814. Probate of wills, 493. Subsequently, insufficient, 493, Widow elects; no guardian, 494. Removal; no cause, 495. Stipulation; judgment, 497. Ward's property rights, 497. Subsequent appointment, 493. Disaffirm notwithstanding, 493. Jurisdiction, not cured, 493. Prior proceedings, 493. Trustee of property, not, 497. Trust estate; new appointee, 497. Void: on failure, 493, 498. Valid as to others, 498. Voidable only, 494. Waiver of irregularity, 298, 497. Not formal notice, 499. See also Compensation op Exte., Admr., Grdn. & Trustee. Guardian and Ward, 498. Accounts : < Board charge, without order, 502. Settled before action, 501. Actions : Name of ward, when, 500. Zimmerman — 85 ARE TO PAGES. ] Guardian and Ward — continued. Admissions: of spendthrift, 500. Before and "after, 500. Appeal; adverse party, 499. Bar of claims, 506. Bond: conditions prospective, 503, Acts before appointment, 503. Additional, cumulative, 503. Circuit court: Accounting and damages, 500. Appoint and remove, 5Q0. Concurrent jurisdiction, 211. County court, primarily, 211. County court custody order, 504. Extraordinary cases; 500. Domicil of ward, 502. Pour-year limitation, 504, 503. Accounting later, 505. Includes any bond, 505. Legal capacity to sue, 505. Punds of ward: Authoritative rule, 502, Deposit own credit, 502. Guardian's personal loss, 502. Question of good faith, 502. Without indicia, 502. ' Certificate', guardian personalty, 502. , Did not show trust, 502. Failure of bank, 502. Guardian accountable, 502. Invested in trade, 502. Guardian 's property, 503. Personalty liable, 502. , Profits of the trade, 503.,. Ward at age; elect, 503. Guardian also executor, 501. Benefit policy monies, 505. Guardian ad litem, appeal, 501. Incompetent 's son 's rights, 501. Insolvent guardian, 505. Probate of . will, 501. - . Ward's money, r.s estate, 505;; Guardian ad litem; guardian ignored, 495. Guardian as adminstrator, 32. Guardianship : Acts before appointment, 503, Authority solely from court, 503. Jury trial inapplicable, 499. Proceeding: not case, 499. Record, absolute verity, 503. Record sole evidence, 503. Incompetents; guardianship, 569. Indebted to ward, 503. . Intermeddling : property, 504. Jurisdiction : Citizenship: nationality, 500. 1346 GENERAL INDEX [REFERENCES Guardian and Ward — continued. Jurisdiction — continued. Persons without state, 500. Mixed settlement with ward, 503. Non-contractual services, 506. Notes, by and to guardian,' 505. ^ Order irregularity made, 501. Past defalcations, 505. Release: disputed balance, 501. Religious faith as ward, 504. ' Sale of personalty: Inadequate price, 500. Sale of realty: Bond not formally approved, 499. Covenant: 'incumbrances, 499. Foreign guardian's right, 451. Waiver by guardian, 503". Special guardian, 1033. Stranger assumed to act, 504. Guardian not estopped, 504. Infant not estopped, 504. ' Not as extr. de son tort, 504. Same person appointed, 504. Terminates: at decease, 500, 504. Pinal account settled, 501. Meaning of "discharge," 504. Other wards; same order, 505. Trust relation; settlement, 504. Ward at twenty-one, 501, 504, 505. Testamentary: Divorced mother, custody, 505, 506. Married woman; person, 505. Appointee holds as trustee, 506. Trust funds, in detail, 1131. Volunteer, ward services, 505. Waiver of irregularity, 298; 1218. Ward after at age, 500. Accounts settled before action, 501. Collect oh guardian's failure, 500. Pour months' delay, 501'. Eeasonable time, 501. ' Release: disputed balance, 501. Ward's decease, after, 500. Accounting; administration, 501. Guardian powerless, 500. Will ; under guardianship, 502. See also' Accounts or Guardians. BOnds. Guardian ad E/item. Incompetents. Incompetents ' Sale op Realty. Infants. In- fants '' Sale op Realty. Insane Persons. Parent and Child. Special Guardian. Sureties. Trustees. Trust Funds. Guardians' Accounts. See Accounts op ' Guardians. ARE TO PAGES. ] Habeas Corpus, 506. Certiorari, for record, 507. Court commissioner's right, 507. Jurisdictional defects only, 506. Merits not considered, 506. Not change of venue, 506. Not remedy, mere error, 506. Reaches body, not record; 507. Handwriting, 507. Comparison of writings, 508. Already in the case, 508, 509. Ancient writings, 508. English, old rule here, 508, 509. Genuineness admitted, 507, 509. True rule given, 509. Adopted here, 509. Correspondence knowledge, 508. Cross-examination: ' Not admitted or denied, 507. English and American, 508. Deceased persons; Common law presumption, 510. Overcome; clear evidence, 510. Execution and Contents, 510. Guarantor's execution, 510. Endorsements, statute : Not only to guarantor, 510. Experts, unsatisfactory, 508.' Fraudulent insertion, 510. Innocent holder, 510. Not admitted of denied, 507. Signature : Affidavit, party or not, 510. Corporate' name by P., 915. Ambiguity free, 915. Ambiguous, 917. Deceased; proof required, 510. Gommon law rules, 510, 511. Though not denied, 510. Denial as a witness, 508. Denial before trial, 509. During trial, 509. Perhaps before noticed, 509. Denial must be specific, 508. Denial not specific, 508. Direction; mark signed, 510. Sealed instrument, 510. "Execution" and "executed," 509. Execution only, denied, 508. Fraud, without denial, 509. Genuineness; evidence, 911. Inference insufficient, 508. Mark; without witnesses, 510. Can write or not, 510. Practice to witness, 510. Prima facie genuine, 510. GENERAL INDEX 1347 [REFERENCES Handwriting — continued. > Signature: mark — continued. ' Statute likewise applies, 510. Not alleged; forgery, 508. Not denied; note, 912. Object of statute, 509. Summons, printed, 509. Testimony, interested, 509. General, not specific, 509. Transaction with deceased, 1105. Heir-Looms, 511. Heirs, Heirship, 511. Action for his share, 511. Action for personalty, 513. Ail existing executor, 513. Foreign heir bring, 513. No administration, 513. Adverse possession continues, 708. ; Blood relatives, only, 151. On grandsons' deaths, 151. Bond of adminstrator, 511. Certificate of descent, 514. Contract as to heirship, 514. Creditors: against heir, 175, 512. Ancillary administrations, 175, 513. Claim not filed, 175, 513. Executor not appointed, 512. ■'•. Not barred by sec. 3873a, 512. Ejectment preceding administration, 512. Fraudulent deed set aside, 512. ■■•> "Heir": in will, unambiguous, 514. Heir, unborn child, 59. Heirs of, living person, 514. Entitled, on, his death, 514. "Heirs at law" term; 512. ■ : Legal sense, 512. Heirship, before settlement; 512.. Indians; federal laws, 512. Administration; allotted lands, 513. Heirship -question stipulated,! 513. Illegitimate son as heir,. 513. ■ Judgment; not transfer title, 513. Jurisdiction; county court, 513. Parents' declarations, 513. '< Paternity by preponderance -, 513. TJ. S. may recognize or not, 513. Kin relations, 658. "Lawful heirs," defined, 258. "Legal heirs;" technically; 512. Benefit -certificate ; widow, 512. . Personalty transfer; -512. - ' Realty succession, 512. Legitimacy t 6887 ■•', '•■•■•" ! Non-resident claim judgment, 175. ARE TO PAGES. ] ;• Heirs — continued. ' r .< , .. Realty: possession, 514. Conveyed without consideration, 513. "To her heirs in fee," 513. . . Not- mean children, 514. . : Settlement with guardian, 21. Settlements' made by, >1023. Support out; of estate, 13. See also Birth, etc. Descent and Distribution. Legitimacy. Highway, 514. Appeal bond: Inadvertent omission ill, 515. Boards or bodies, 514. Act judicially, 514. i Compensation for taking, 1. ■ Failure to take oath, 515.;. Jurisdiction: '■':'■ Act , judicially, 514. ■:■ ,'• Commissioners : appointed, 514. No. consent or waiver, 514. ' Strict compliance, 514. ' ■ " ,", Town , supervisor, . 514. ■ Biver, public highway, 514. Time and place ; meeting, 515. Slight discrepancies, 515. - ; Title to center, 1. 1 Two; make valid decision; 515. See also Condemnation. Holidays, 515. Appoint administrator, 516. Authority to hear cause, 515. "Waiver not applied, 515. Contracts maturity on, 515. Next succeeding day, 515. Court business suspended, 516. Judgment on; void, 515. Judicial act. prohibited, -516. Deposition by notary, 516. Not extra-territorial, ■ 516. . ' Not mere ministerial, 516. As justice summons, 516. •■< ' Jurisdiction: person,, subject, 515. Person "work or not," 516.:" < '<' See also Sunday. Homestead, 516. ! Absence' from home,. 519. Himself rents elsewhere, 519, 527. Bent to a tenant, 519, '527. Administrator's sale of, 979. "Agricultural purposes": : Annexed to city, 518. i Without regard to use, ' 527. Alimony: charge on, 532. 1348 GENERAL INDEX 526, Homestead — continued. Buildings construed: Four-story store, 518. Second story, saloon, 527. Several on quarter acre, 519 533. Occupied by family servants, 526. Stores, shops, offices, etc., 519. Three-story brick hotel, 524. Claim in supreme court, 522. Conveyance : Defective; effect, 525. Effect on husband, 525, 526, 529, 531. Eeformaticn, now, 525, 533. Specific performance, 525. Devisee, before probate, 521. Homestead ; existing judgment, 521. Equity rights, against heirs, 529. , Specific performance, 529. Husband, not wife, void, 526, 531. Equitable interest husband, 531. Eight reserved for grantor, 526, 529. Void now, without wife, 531. Husband to trustee for wife, 520, 522. Husband to wife; creditors, 520, 532. Without wife's signing, 522. Not fraud to creditors, 521. Parol contract by husband, 522. Judgment before deed, 522. Wife ratifies by deed, 522. Passive trust for wife, 520. Presumed for new home, 522. Statute quoted as amended, 523. To son, reserving life est., 520. Wife alone, occupying, 521. Wife; not witnessed or ack., 523. Creditors: equities against, 521, 527. All cases included, 521, 522, 525. Peculiar situation, 532. Presumed to know fact, 526. Security or other property, 525. Third persons or husband, 525. Decedent's homestead: Exempt from his debts, 526, 534. Not heir 's debt, when, 534. Exemption to only $5,000, 534. Family afterward broken up, 520. Interstate; widow life estate, 533. Disposition of proceeds, 533. ' ' Expectancy, ' ' indeterminable, 533. On condition subsequent, 533. Proceeds, widow's interest, 533. [REFERENCES ARE TO PAGES.] Homestead — continued. Decedent 's — continued. Proceeds of, how disposed, 533. Sale to carry out will, 533. Eeversioner 's proceed 's, 533, 534. Not as to own debt, when, 534. Seven years, removed from, 527. Intent to return to, 527. Vendor's purchase lien, 530. Whole title vests at death, 534. Widow's rights, sec. 2271, 526. Definitions, 518. ' ' Agricultural purposes, ' ' 527. As used in a will, 527. Compact as possible, 518, 525. Exempt only $5,000, 534. House and appurtenances, 524. Devised homestead: Legacy payments; reversion, 528, 529. . Not specifically; charge on, 530, 531. Adm. expenses, debts, etc., 530. Legacies by gen'l. directions, 531. Proceeds balance exempt, 531. Widow sole, elects, 529. Disconnected tracts, not, 518, 525. Crossed by public alley, 527. Divided by highway, stream, etc., 518. Easement across tract, 525. Domicil: husband change, 523, 529, 530, 531. Abandoning family, 530. Ceases to be homestead, 523. Dower: widow entitled, 519. Exemption ; not descent, law, 533. Favored in the law, 525, 527. ■ * Embrace all cases, 525. Fraud; 1 -sband to wife, 468. Home: can have but one, 522, 526. Intention of acquiring, 526. Overt acts in fitting, 526. Presumption where living, 522. Purchase with intent, 526. Eelates back to purchase, 526. Temporary purpose certain, 522. Husband: seized in fee, 523, 524. Free himself to alienate, 523, 529. Abandoning family, 530. Change, in good faith, 531. , Defiance of wife's wishes, 530. Owner and possessor, 531. Intention of: acquiring, 526, 529. > After seven years' removal, 527. Overt acts in fitting, 526. GENERAL INDEX 1349 [REFERENCES Homestead — continued. Intention of — continued. Return when able, 531. Three years; return intent, 530. Voting in other state, 530. Not eonelusive, 530. Judgment: any civil action, 519. Against devisee occupying, 521. Between contract and deed, 522. Creditors presumed to know, 526. Tort action; also exempt, 519. Land contract for: ' Advances for improvements^ 527. . Satisfaction as release, 530. Lease: secured under, 530, 532. Governed by same rules, 530. Surrender by husband, 530, 531. Wife's refusal to consent, 530, 531. Liberally construed, 527. Material: for repairing, 521. For building' same, 526. Relate back to purchase, 526. Mechanic's lien; wife, 522. Mortgage : Defective description, 528, 532. Note, family maintenance, 528. Reformed now, statute, 528, 533. Homestead subsequently, 532. Liens on included property, 532. Husband to wife, 522: Past indebtedness alone, 525.' Power of attorney to sell, 530. Subsequent judgment, 519, 521. Subsequent mortgage, 522. Not covering homestead, 522. Wife living apart, 527. Husband's food necessities, 527. Wife; not witnessed or ackn., 523: Husband's homestead est., 523, 529. Not release her dower, 523. Statute quoted as amended, 523. With other property, 519, ■ 532. Without wife's signature, 518, 522, 527. Not statute of descent, 533. Exemption law only, 533. Occupancy : specific, 520. Herself, agents or tenants, 5~25. Must be present right of, 532. Remainderman, revisioner, 532. Lives with life tenant, 532. Proceeds by overt acts, 527. Storing furniture, 524. Partition: widow's interest, 529. Rights as to, detailed, 822. '■ Policy and' spirit of law, 527. ARE TO PACES. ] Homestead-^continued. Presumption of, 524. . • ■■■ Proceeds: with intention, 525. Balance; foreclosure sale, 529. Extends without state, 525. / House and lot received in sale, 528. Not asserted till action, 528. 7 ' Subject to three-year lease, 528. Portion used; debts, expenses, -527. Sale with personalty, 527. Protection for whole family, 530. Reformation^ defective inst., 524, 528, 532, 533. Presumably, now reformed, 533. Removal from homestead, 521, 526. New failed in effect, 524. Temporary purpose certain, 522. Without return intention, 521, 527. Reversioner: remainderman, 532. ' Sale to carry out will, 533. Title subject to widow's estate, 534. Selection: reasonable right, 519. Adverse party, survey, 520. Assumed to include house, etc., 519, 524. Compact, where claimed, 519. Government subd., lines, 519, 520. Unless otherwise selected, 520, , , 524, 5.28. Waiver by failure,, 524. Single man may hold, 519. Street, alley, not included, 522. Tenant in common, 520, 531. Acquiescence sufficient, 532. Free from creditors, 532. Hotel, proceeds in, 531. Intended to re-occupy, 531. , Use for unlawful' purposes, 5281 Undivided interest, realty, 520, 531. Vendor's purchase lien, 530. Void administrator's sale, 991. Remedies lapsed, 991. Widower ; children gone, 519. Board with tenant, 519. Widow: intestate estate, 533. Disposition of proceeds, 533. "Expectancy," indeterminable, 533. Life estate; condition subsequent, 533, 534. Proceeds, same interest in, 533. Right in only $5,000, 534. Wife no estate in, 523, 524, 529, 531. Merely veto power, 524. Will, not statutory' only, 527. Household Furniture, 534. Clock is furniture, 534. 1350 GENERAL INDEX [REFERENCES Household Furniture — continued. Piano is not, 534. Possession; no administrator, 843. Presumed husband's, 534. "Wife; proof of, 534. Husband and Wife, 535. Actions as to married woman, 733. "Adult persons" includes a wife, 557. Agency of husband: Held out as agent by wife, 886. His skill, industry, etc., 552. Creditors not entitled to, 552, 553. Not competent to deny, 543. Power same as of s' .anger, 542, 885. Property as his own, 550. . Fraud of creditors, 550. Sale of wife's property, 545. Agency of wife: Act, and bind husband, 538. Assumes to so act, 556. Adopts her act, 556. Contract is husband's, 557. Signs his name, 557. Declarations as agent, 538. Presumed in household affairs, 539. Not implying agency, 283. Purchasing family supplies, 553. Her contract, her husband's, 553. Scope of employment, 539, 556. Testify to act within scope, 556. Third person with husband, 538. v Ante-nuptial contracts, 728. Business together; wife's est., 546. Both became liable, 546. Common law: J Acts void, ab initio, 737. . Changed by statute of 1850, 545. Estates; entireties not moieties, 538. Equity sustained, direct from hus- band, 545. Husband owner of personalty; 545. Husband to profits from realty, 545. Partnership ventures, 551. Statute secured her separate estate, 545. Wife could take realty or personalty, 545. Other than from husbd., 545. Wife not contract; property, 538. Wife 's earnings, her husb 's., 539. Witnesses: ground, public policy, 540. Contract rules; married woman, 733. Conveyances; married woman, 733, ARE TO PAGES.] Husband and Wife — continued. Conveyances to others: Defectively executed; husband, 540, 737. Homestead, invalid, both, 540. Not enforced as to wife, 540. Wife alleges undue coercion, 546. Evidence to be convincing, 546. Without wife's knowledge, 554. Conveyance to wife: Chattel mtge. to secure debt, 543. Conditional limitation to wife, 541. Consideration; homestead right, 548, 551. Creditors; clear evidence, 549, 551. Equitable title - in wife ; husb. legal, 550, 558, 559. Estoppel as to creditors, 549. Ownership statement, 549. Exemptions; not fraud, 468. Homestead ; through trustee, 542, 546. Homestead to wife; creditors, 541. Honest intent ; no consideration, 547. Separate estate unnecessary, 547. Husband direct to wife, 539, 541, 547, 554, 558. Consid., divorce withdrawal, 554. Equitable title; legal, 550, 554, 558, 559. Giving her separate estate, 550, 554, 558. Her grantee gets same title, 550, 558. Husband retaing legal, 550, 554, 558. Insolvent husband; consid., 554. Statute now, direct, legal est., 554, > 558, 559. Fraud; one of fact, not law, 558. Husband's directions to wife, 543. Upheld against him, 543. Used as homestead for family, 543. Wife may convey, 553. Joint tenancy, in detail, 620. Life insurance, 601. Marriage, 723. Money not agreed to be repaid, 551. Non-exempt to the wife, 541, 543,' 551. Creditors; existing, 541, 543, 551. Creditors; subsequent, 541, 546, 547. Not wife's separate estate, 541. Subsequent destruction of deed, 548. Consent by undue influence, 548. GENERAL INDEX 1351 [REFERENCES Husband and Wife— continued. Conveyance to Wife — continued. Consent must be voluntary, 548. Estop parol evidence, 548. Subsequent creditors; evidence, 546, 547. Deed not recorded until creditors, 547. Third party to wife; husb. money, 549. Creditors; clear evidence, 549. Trustee unimportant in equity, 547, 558. While solvent: representations, 552. Corporators of company, 551, 557. Damages for husband's death, 318. Damages; for wife's injuries, 540. Husband's admission, 541. Time and services of wife, 542. Medical attendance, 542. Debt of husband: Joint note; separate estate, 549. Note and mtge.; his use, 555. Mtge. held; note not, 555. On estate of both, 555. Deposition ; before marriage, 538. • Discovery: wife examined, 541. Property of husband, 541. Domicil; husband can change, 545. Husband's is wife's, 367. Wife, separate for divorce, 366. Employed by wife, 552, 553. Mixed with support, 559. Skill, industry, profits, 552, 553. Substantial showing, 559. Expends money: wife's property, 557. No claim against the realty, 557. Presumed for her benefit, 557. Family expenses, jointly, 742. Feme sole: when not, 540. Furniture presumed husband's, 538. Gift from: exempt only, 551. As against creditors, 551. Fraud; fact not law, 558. Eeceive now; same rule, 558. Husband's obligations, 730. Industrial earnings: Boarder's money is not, 551. Husband defrayed exp., 551. Husband with help of wife, 558. Compensated for wife, 558. • Not individual earnings, 558. Bights as fo, 736. Insurance: prior to 1891, 541. Joint tenancy: Execution; husband's interest, ' 540. Labor, creditors not control, 553. ARE TO PAGES. ] Husband and Wife — continued. > > : Lease with husband; interest, 555. ; Letters between; privileged, 552. Limitation statute: Between husband and wife, 550. Not run against wife, 550, 554. Light strictly confined, 715. Payment of mortgage by wife, 1 556. Laving apart : Cannot bind husband, 555. Justifiable cause, 555. Deed for maintenance, 537.' "Living together," construed, 558. Apart three years; gives support, 558.' Loan; husband's benefit, 740. Maintenance contract rescission, 126. Married woman; contract rules, 733. Mechanic's lien; wife's house, 545. Husband makes improvements, 545. Mortgage: and bond, both, 538. Both agreed to assume, 554. Deficiency judgment; wife, 538. For husband's debt, 741, 743. Necessaries: See also Support. Absence; support for family, ;542. Attorney's services for her, 542. Elopement; desertion; 540. Living apart; justifiable cause, 555. Obligation to support, 539, 542, 546. Separate estate charged, 546. "Stoddard Lectures," are not, 557. Third person supplies her, 542. Wife may testify as to, 555. Ownership against husband's, 558, 738. Parties, nominal, 814. Partnership; with husband, 550, 551. Or other person, 550, 551. Physician's bill, by wife, 741. Possession of wife, 733. Power of attorney: Wife to husband; his deed, 539. Power to bind husband, 539. Desertion without cause, 540. Household; agency presumed, 539. Implied, as to necessaries, 539. Not living apart; prima facie, 555. Sole ground of agency, 539. Temporary absence of husband, 539. Wife elopes; necessaries, 540. Privileged communications, 890. Promise to pay wife's debt, 556. Purchase with wife's money, 552, 553. Madelarge profits for her, 553. Subsequently conveyed to her, 553. Eesulting trust, 552, 553. 1352 GENEKAL INDEX [REFERENCES Husband and Wife — continued. Purpose of statute; actj 551. Free from husband and his debts, 551. Separate estate, 551. Representing himself owner, 546. Wife, owner, present, silent, 546. Reconciliation contract, 557. Agree to pay: laudable, 557, 558, Separate estate: Acquire by contract, 550. * Acquire entirely on credit, 545, 554, 738, 740, 742. ,. .Bind herself by mortgage, 554. , Bind herself at law, 550, 558. Husband acquires possession of, 557. Not apply to joint deed, 558. Personal trust by .parol, 558. Trust for her benefit, 558. Husband's; in wife's, name, 555. Married woman, specifically, 733. Person other than husband, 550. Rec'd from husband, 550, 558. Signing with husband: Charge separate estate, 549, 741, 743. Innocent third party, 549. Husband's debt.; duress, 913. Transfer before due, 913. ... Lease for his benefit only, 555. " Note and mtge. ; his sole use, 555. Mtge. valid; no deficiency, 555. On property, of both, 555. Note only, 742, 743. Security, husband's debt, 741. Support : See also Necessaries. , Care and attention; consideration, 218. Common law liability, 555. Husband cannot recover for, 557. Husband's duty to support, 121. Obligation to support, 539,, 542, 546, 557. Apart; neglect or consent, 555. Confined in asylum, 556. Not shirk by contract, 559. Not while away from home, 556. Only home he selects, 555. Surety: wife, in detail, 1052, Husband or third party, 540, 738, 740. Title, in wife's name, 555. Undue influence: Evidence to be convincing, 546. Wife's evidence insufficient, 546. As against creditors, 546. Voluntary separation agreement, 553. Assignment of inB. policy, 553. ARE TO PAGES. ] Husband and Wife — continued. Wife's property rights: Acquire by her contract, '550. Board men of husband's firm, 548. No reference to her estate, 548. Charge of her business; possession, 548, 552, 554. Deal with as his own, 548. Husband's creditors, 548, 552. Wife's title and possession, 554. Common law rights. See Common law. Contracts; separate estate, 538, 550. All others, in equity only, 538. Contract with husband ; separate estate, 548. Crops, husband's work; not for his debts, 545. Equity, before the statute, 538. As to separate estate, 538. Gift direct from husband, 558. Fraud: of fact not of law, 558. Husband's possession; not title, 548. Husband works her farm, 541. Improvements on her realty, 538. Lien by specific writing only, 539. Lien, on after acquired property, 539. May deal with husband, 542, 548. i Closely scrutinized, 542. Permits husband, take income, 544. Not compel accounting, 544. Purchase realty wholly on credit, 545. Statute, rights and remedies, 538. Witnesses : Action for necessaries; wife, 555. Acts within scope of agency, 556. Co-defts. : wives incompetent, 543. One nominal interest only, 557. Common law rule, grounds, 540. Competent as to necessities, 543. Coverture qeased; death, divorce, 552, 556. Confidence by marital relation, 553, 556. Transactions with deceased, 556. Mental opinion on acts, 556. Opinion based thereon, 556. Uninfluenced acts, 556. Debarred in general; exceptions, 543, 547, 552, 557. Directly for or against only, 554. Divorced party: non-confidence, 542, 548, 552. Within a year, . 1241. Either may prove agency, 552. Either, of legatee or heir; will, 552. Husband as agent for wife, 539, 543. GENERAL INDEX 1353 [REFERENCES Husband and Wife — continued. Witnesses — continued. Incompetent; generally, 543. Nominal party only, 546, 547. Not to deny agency, 543. Objection to general offer, 552. Offer should state, 552. Parties; inchoate dower rights, 544. Nominal; representative, 814. Proper, not necessary party, 546. Representative capacity, for both, 547. Though not nominal party, 547. Representative capacity, wife, 554, 555. Rule as at common law, 547, 557. Directly for or against, 554. Except parties to suit, 547. Including separate estate, 547. Rules by court': two exceptions, 547. Agency for each other, 547. No other exceptions, 547. Personal violence charge, 547, 554. Testify when parties, 540, 547. Though testified to by another, 557. Transactions with dec'd. spouse, 556. "Wife as agent for husband, 540, 544. Determined by the court, 544. Household management not, 743. Not express or implied, 544. Probably wife may prove, 552. Property in wife's charge, 1 544. Proved before she testifies, 544. Proved by direct questions, 544. Should have been asked, 544. Testify relating thereto, 544:. Within scope of agency, 544. Wife as book-keeper, not agent, 552. See also Bond fob Maintenance. Creditors' Actions. Homestead. Implied Trusts. ; Insurance. Joint Tenancy. Marriage Oon- . tracts. Married Woman. Neces- saries. Parties. Hypothetical Case. See Expert Testimony. Illegal Contracts. See Unlawful Contracts. Illegitimacy. See Legitimacy. Imbecile. ' See Incompetents. ARE TO PAGES.] Impeachment of Witnesses. Credibility, 559. Account books verified, 560. Admitted facts potent for; 564. No direct testimony against, 564. Adverse party, for examination, 565. Attendant circumstances, 564. Avocation of witness; 562. "Believe 1 him under oath," 560., Court not bound to accept, 564. Credibility : "■■•'"'' * Acquaintances, residence; etc., 309. Collateral disgrace matter, 311. Credibility set forth, 563. Credit of adversary party, 563. Friendship or enmity, 309. Inherently improbable, 564. Interest in suit, 309. May not impeach own witness, 563, 564. One witness,- overcome several, 564. Party calling not prejudiced, 563. Party may show fact different, 563, 564. Produced by either party, 563. Independence of witnesses, 563. Not a criterion, 563. Purposes immaterial, 563. Crime: charge only of, 562. Cross-examination as to, 565. Procedure to so discredit, 565. Deposition excluded; used, 340. Foundation for: Apprise witness exactly, 562. Insufficient to produce record; 562. Only proper, when material, 565. Proved only 'as questioned, 562. Question, immaterial matter, 565. f Witness entitled tp admit, 562. General reputation : ' Interrogatory propounded, 560, '561. General reputation only, 560. Second question, 560, 561. Intervention, other residence, 565. Living in neighborhood, 562.' Truth and veracity, 560, 561. Twenty-two months before/ 564. Illegitimacy; bastardy, 1 564. >' Immaterial to issue;' 561. Inherently improbable, 564. Intoxication, affected by, 564; Judgment, collaterally, 560. Official certificate, by official, 565. Order, collaterally, 560. Parties' testimony: Credibility determined, 562. Interested in result, 562. 1354 GENERAL INDEX [REFERENCES Impeachment of Witnesses — eon tin ued. Parties' testimony — continued. Not verities in case, 561. Party calling not impeach, 561, 563, 564. Mistaken, or unworthy, 561. Truth of particular fact, 561, 564. Personal animosity, 565. Foundation to be laid, 565. Preponderance : May not go with numbers, 564. Statements out of court, 561. Credibility, from oath, 563, Evidence, when a party, 561. Foundation, must be laid,, 563:. But not to party, 563. Even as to an agent, 563. Impeaching credibility, 561, 562. Not impeach own witness, 564. Show fact different, 564. Only evidence on issue, 561, 564. Witness first interrogated, 562. Testimony of witness himself, 563, 565. Impeaching him, 563, 565. Uncontradicted testimony, 562. Court not bound to accept, 564. Inherently improbable, 564. Not liable to question, 562. Implied Trusts, 565. Action for, survives, 28, 29. County Court; implied trust, 568. Jurisdiction thereof, 568. Established by parol, 568. Frauds statute, not apply, 566. Heir induced deeedent, 567. Heir profits by intestacy, 567. Property impressed with trust, 567. Refrain from disposing of, 567. Reliance by deeedent on heir, 568. Husband uses separate est., 568. Trust implied: consent, 568. Investment^ another 's money, 568. Clearly traced thereinto, 568. Innocent persons; dealing, 568. In own name; trust, 568. ' Recovered out of property, 568. Statutory exception, 568. Limitation statute: Property surrender essential, 566. Resulting trust; effect same, 567. Since denial or repudiation, 566. Technical, continuing trust, 567. Trustee of express trust, 566. Realty, with wife's money, 566. As agent of the wife, 567. Deed in husband's name, 566, 567. ARE TO PAGES. J Implied Trusts — continued. Realty, etc. — continued, Fully executed; consideration, 567. Heirs ' rights the same, 566. Laches; twenty years, 566. Limitation statute, effect, 567. Not enforceable under statute, 567. Resulting trust in wife, 566, 567. Sold and reinvested, 567. Was an extreme case, 567. Wife estopped ; joint fraud, 567. Resulting trusts: Abolished by statute, 567. Against creditors of trustee, 567. Executed by trustee, 567. Valid, absence of fraud, 567. Voidable trust, 567. Widow against husband's extr., 568. Institute in county court, 568. Legal claim; to establish trust, 568. Pending administration, 568. See also Trusts. Improvements. See Permanent Improvements. Inchoate Dower. See Dower. Income. See Rents and Profits. Trust : Funds. Incompetents, 569. Action in own name, 24. Adverse party: Proposed guardian is not, 572. Aggrieved person: Guardian ad litem is, 573. Proposed guardian is not, 572. Relative or friend who petitioned, 574. Son with' contested transfer, 573. Costs and expenses : Adjusted by county court, 571. Costs against ward, improper, 571. Incurred in the three courts, 571. Out of estate; attorneys' fees, 57.1. Evidence : I Adjudication of unsoundness, 571. Direct evidence, 571. How admissible as to prior, 571. No evidence of prior thereto, 573. Presumptive, subsequently, 571. Ward's evidence prior to, 572. Affecting transfer, 572. Expert, weak and inconclusive, 574. GENERAL INDEX 1355 [REFERENCES Incompetents — continued. Evidence : expert — continued. Not against direct evidence, 574. Though positive, dogmatic, 574. Ill treatment of subject, 572. Insane persons, 595. Premature finding as to contract, 573. Undue influence to obtain deed, 572. Vendor 's, as to vendee 's title, 572. Ward's charge of wife unchaste, 571. Gen'l reputation of wife, 571. Husband 's knowledge thereof, 571. Wife's evidence; not party, 571. Guardianship rules: • Care of health and person, 574. Experts, weak and inconclusive, 574. Not against direct evidence, 574. Though positive, dogmatic, 574. Guardianship upheld, 574. . Incapability, satisfied statute, 573. Insane hallucinations, 574. ' ' Mentally incompetent, ' ' means, 573, 574. Not for physical, but mental, 574. Not imbecility or insanity, 572, 573. Prior decisions given effect, 574. Eeversal rule stated, 57,4. Statutory conditions,,, exist, 572.,. ., Substantially total, must be, 573. Incompetency indicia, 1080. Insane: action in own name, 573. Intoxicants exclusively : Contracts as in insanity, 574. ' ' Drunkenness, ' ' legally defined, 574. May yet convey property, 572. Mentally unsound at time, 572. Jurisdiction : Attend at court, if able,, 573. Guardianship proc. statutory, 570. Must show; fact of proc, 570. Notice, children custodian, 573. Petition and verification signed, 570. Amend after judgment, 570. Jurat not signed, 570. Nunc pro tunc, invalid, 570. petition insufficient, 570. Statute strictly construed, 570, 573. Otherwise proc. void, 570. .' What petition should state, 570, 573. Held sufficient without, 570, 573. Very general petition upheld, 570. Next friend, significance, 1243. Pauper incompetent: Father to handle money, 571. ARE TO PAGES. ] Incompetents — continued. Petition. See also Jurisdiction. Application of friend, 570, 574. Friend, conditions, when, 570. Relatives should apply, 570, 574. Property of aged people: Clear evidence of inability, 5/72. , Courts hesitate to interfere, 572. Inadequate farm rental, 572. Ward, appear and defend, 570, 573. . Guardian ad litem, when, 573. Weak-minded adult: Child treated as < a minor, 571. . Control of father; at home, 571. Father must care for, 571. , Owes service to father, 571. See also Accounts or Guardians. Guardian and Ward. Incompe- tents' Sale of Realty. Insane Persons. Testamentary l Ca- pacity. Incompetents' Sale of Realty, 575. Bond of guardian: Defective; invalid sale, 576. Sureties" liable on sale bond, 577. Mortgage agreement, 577. Wards remedy on, 576. Homestead; support of ward,, 57.7. Jurisdiction : Meager petition, sufficient, 575, ,576. Matters left out of it, 575., ,. Notice required to validate, 575, 576. Question reconsidered, 577. Represented by guardian,, 576. U. S. Decision different, 576. Valid as to ward without, 576. Notice; See also Jurisdiction:.' 1 Necessary in executor 's- sale, 576. Not to ward, incompetents, 576. Petition. See Jurisdiction. Sale: indirectly to guardian, 577. Heirs of deceased ward, 577. Not estopped by accounting; 577. Inadequate price, 577. ' ' << Laches; time begins at decease, 577. Nominally to third person, 577. Summary proceeding fbr Sale, 577. Ward after competent: Attacking void, gdns. sale, 575. Paying for improvements, 575. < Refund purchase money, etc., 575. . Use and occupation', 575. Left to remedy on the bond, 576. Purchase in good faith, 576. Settlement with guardian, 1 575. Not estopped otherwise, 575. 1356 GENERAL INDEX [REFERENCES Incompetents' Sale, etc. — continued. Waiver by guardian: None specified in sec. 3919, 576. See also Infants' Sale or Realty. Sale of Eealty. Indorser. See Promissory Notes, etc. Infants, 577. Action concerning: At common law; next friend, 581. By or against the minor, 581. Express contract of guardian, 581. Guardian ad litem at trial, 580. Proceeding without guardian, 580. Represented by grdn. ad litem, 581. Title of action; complaint, 581. Administration : Parents or grdn. ; not bind, 584. Guardian ad litem, 584.. Age declaration; fraud, 581. Contracts.: voidable, 579. Beneficial to himself, 583. Actual discretion attained, 583. Actual express fraud, 583. Equitable estoppel, 583. Not' conduct or silence, 583. Between infant and servant, 584. Disaffirmance of, 580. Executed contracts, also, 582. Executory or express ; not liable, ■ 583. i Father also not liable, 583. Written guarantee; consid., 583. Implied^' ■ See Necessaries. Judicial aid to avoid, 582, 583. Offered to make good, 482, 583. Restoration at trial, 582. Waiver of formal offer, 582. Not beneficial to him, 583. Surety or accommodation, 583. Valid, upon adults, 579. Void or voidable; option, 583. ,Gapable of restoration, 583. Crime capacity: Presumption; under fourteen, 581. Rebuttable, over seven, 581, 582. Custody of infant, 581. Neglected infant, . 582. Damages: injuries to person, 579. Employer liable, for injury, 585. Contributory negligence, 585. Illegally employed; 585. Release; county court approval, ' 585. Infant, 18 months of age, 579. ARE TO PAGES. ] Infants — continued. < Damages — continued. Liable for torts as adults, 584. Degree of care; rule, 584. Guilty of negligence, 584. Recovery by parents, 579. Deceased infant: Realty; common ancestor, 580. Disaffirmance of contracts, 580. After majority, 580. Guarantor still bound, 585. Emancipated infant: Make gift to infant sister, 581. . May acquire property, 581. Estoppel doctrine, 584. Equitable, when, 583. General guardian: Appeal; failure of gdn, ad litem, 580. • Judgment by default: Avoided by appeal for error, 583. Or other direct proceeding, 584. Cannot always be vacated, 584. No substantial injustice, 584., Collateral attack : service, 583. No guardian ad litem, 583. Vacated; guardian ad litem, 583. Laches in an adult, 583. > Majority; domicil, 723. Mortgage: purchase money, 580. Conditions of avoiding, 580. Given for precedent debt, 580. Mortgagee; infant's vendee, 581 Surety for "purchase money, 581. Necessaries : Bound by implied contract, 582. Executory contract for, 582, 583. Express contract; not liable, 582, • 583. Personal needs of infant, 584. . Alleged servant of, 584. When actually furnished, 583. Note given in. infancy, 578. , Ratification after age, 578. Notice: distribution, 579. Partition,;, non-resident, 579. Quardiah ad litem later, 579. Ratification after age : Any recognition of promise, 578. Beneficial; possession retained, 580. Release by guardian, 585. Not approved ; county court, 585. Rents; wrongfully withheld, 957. Services: quantum meruit, 579. Adopted; same rules, 580. Service upon infant, 580. GENEEAL INDEX 1357 [REFERENCES Infants — continued. Seven years of age: Highway; travel and play, 581. Less degree of care, 581. Injury damages, negligence, 579. Trespass; compens., damages, 579. Testimony of child: After four years of age, 582. Conviction sustained, 582. Discretion of court, 582. ■Intelligence, factor, 582. Title in own name for infant, 579. Assumed protector; in trust, 579. Torts of infant, detailed, 794. Unmarried infant, descent, 345, 346, 349. Waiver; consent for them, 298.. Workmen's compensation act: Guardian not essential, 585. Same plane as adult, 584. When not legally employed, 585. Act does not apply, 585. Contributory negligence, 585. Employer liable for injury, 585. Misrepresenting age, 585. Eelease held not binding, 585. Approval; county court, 585. See also Accounts ' of Guardian. Adoption. Custody and Commit- ment. Guardian and Ward. In- fants ' Sale or Realty. Ma- jority. - . Necessaries. Parent and Child. Infants' Sale of Realty, 585. Bond: in summary sale, 586. In public sale, 587. Defect fatal, 587. Strictly followed, 587. Construction of will: Action in circuit court, 587. Adverse parties necessary, 587. Court; determine ownership, 587. Sale after distribution, 587. Estoppel; void sale after age, 397. General may be special, 587. Invalid; no oath, 982. Purchaser's remedy, 982. Wards not estopped, 982. Jurisdiction; petition, 586. Defective public sale bond, 587. Cannot be waived, 587. , Makes sale invalid, 587. Provided in sec. 3919, 587. Strictly construed, 587. Married minor ward, 586. Not dependent on bond, 586. ARE TO PAGES.] Infants' Sale, etc. — continued. Lands sold for taxes, 587. Redemption rights, 587. Notice: where guardian acts, 586. Not affect, sec. 3919, 587. , Represented: guardian, court, 586. Binds the ward, 586. Summary proceedings, 586. Affidavits; other methods, 586. Informal examination, 586. Waiver; not in see. 3919, 587. See also Incompetents' Sale op Realty. Sale op Realty. Inheritance Taxes, 588. Accrue at transfer ; death, 591. Annuity; income tax, 593. Calculating value, means, 591. Constitutional : Ch. 355, L. 1899, is not, 589. Ch. 44, L. 1903, is valid, 590. All taxed: not exemptions, 590. Sustained: re-affirmed, 590. County court: Incident to estate settlement, 590. Judicial in character, 590. Judgment, not res adjudicata, 590. Defeasible estates; payment, 591. Definition^ essentially, 588. Not absolutely uniform, 590, 591. Not upon the property, 588, 589, 590. Tax on the privilege, 588, 589, 590. Department rulings, 593. Ambiguity absent, 593. Erroneous rulings, 593. Discount provision reasonable, 591. Domicil: determines succession, 592. Taxation at; chattels, 593. Exemptions: Under $10,000, held valid, 589. Evidence : Corporation's business; stocks, 591. Value of stock certificates, 591. Physician's death certificate, 591. Generally: ' Ancient: Roman law, 589. ■ Classification ; rates, 589, 590. • "■. Uniformity in classes, 590. ' Unconstitutional act, 589. "Death duties'-' in England, 589. Exemptions; reasonable, 589, 590. Excise taxes; privileges, transfers, 590. Long in force in Europe, 589. Power to regulate and tax, 590. Privileges and occupation, 590. Not uniform as property, 590, 591. 1358 GENERAL INDEX [REFERENCES Inheritance Taxes— continued. Generally — continued. Progressive feature, 589, §90. Reasonable; unobjectionable, 589. Taxation of transfers, 590, 594. Imposed on beneficiaries; 589. "In contemplation of, death," 591, 593. Advanced years, to child, 593. Burden is upon the state, 593. ' Definition of phrase, 591. Gifts of very old man, 593. Large gifts, following a will, 593. Had surrendered management, 593. Made withiri six years, 591. Several years before decease, 592. Interest provision reasonable, 591. Judgment; not res adjudicata, 590. Not judicial controversies, 590. Prosecute independent action, 590. Lien on property until paid, 591. Life insurance: Taxable, Law of 1915, 592. < Transfer, to trust company, 592. Wife beneficiary, 592. New York transfer act, 591, 592, Decisions resorted to, 591, 592. Payable at time of transfer, 591. Except unascertaihable, 591. Penalty provisions: j Uncertainty; due and payable, 591. Litigation as to tax, 592. Power: created previously, 594. Appointment after passage, 594. Failure to appoint under, 594. Made from a class under, 594. Vested and contingent, before, 594. Exception not imported into, 594. Produce private books, 589. By third party, 589. > : . Corporation;, decedent's stock, 589. Party without the state: Affirmed, TJ. S. Supreme Gt., 592. All taxable under act here, 592. Legal situs at domioil, 592. Tax therein paid in 111., 592. Transferred to trust company, 592. Reserved life estate, 592. ' Securities in Illinois, 592. Were never within state, 592. ., Prosecute independent action, 590. Right to take property: r ■ Contra: TJ. S. and most states, 589. Inheritance or by will, 589. Tax* imposed at transfer, 591. . ■: .'. At' the. time, of death, 591. AKE TO PAGES.] Inheritance Taxes — continued. Trust transfer: Effect in possession at death, 592. Held taxable, 592. Unascertainable at transfer, 591. ' Postpones payment, not imposing, 591. Value of : widow 'a interest, • 591. Remainder; other interest, 591. Widow's support allowance, 593. Not taxable, 593. Injunction, 594. Counsel fees, recoverable, 594. Dissolve; on reference, 594. Granted without notice, 594. Issue on bill filed only, 594. Insane Persons, 595. Action in own name, 24. Crime Commission: Insanity at the trial; jury, 598. Not sufficient evidence, 597. Suicide commission, 598. Also attempted murder, 558. Not presumption, 598. Damages: against petitioners, 599. Acted recklessly, wantonly, 600. Advice of counsel, defense, 600. Discharge by county court, 600. i Private sanitarium liable, 600. Restrain and guard, 600. Deed, voidable, not void, 599. Contra: English courts, 599. Defense must be set up, 596. Dementia is or may be, 598. Evidence : Act of insanity, question, 435. Adjudication; effect of, 599. Comprehension ; widow, 596. Direct inquiry; method, 441. Guardianship proceedings, 596. Non-expert; few facts, 438. Non-expert impressions, 441. Testamentary, capacity, 1080. Expert testimony, 432. Eraud practiced on: Foreclosure sale ; set aside, 596. Knowledge of insanity, 596. Proceedings correct in form, 595. Restore his property, 596. Guardian ad litem for, 597. Guardianship; incompetents, 569. Insanity indicia: Do not reason on the subject, 596. Impossible to convince, 596. Incapable of making will, 596. GENERAL INDEX 1359 [REFERENCES Insane Persons — continued. Insanity indicia— continued. .„. . Limitation statute, 596. Indicia; yet be sane, 596. Instances detailed, 1080. Opinion on false reason, 596. Subject to sudden changes, 596. Judgment by default: Exeusable; set aside, 597. Lucid interval, 595. Act itself is proof of, 598. .. , Burden; party claiming, 595, 598. Conveyances held- valid, 598. i Established; burden , shifts, 598. Little evidence overcome, 598. May bind himself in, 600. Testamentary capacity, 1080. , Mental capacity: generally, 108ft. Delusion not influence, 597., Issue; sufficiency; to act, 599. Particular . subjects, 599. Capacity on others, 599. , Reasonable ability judgment, 599. Old-age insanity, 600. Lucid' intervals, 600. Presumption: continuing, 595, 597. After lucid interval, 598, In favor of sanity, 597. Not when intermittent, 597. Private sanitarium, duty, 600. Eealty sale by guardian, 597, Notice; not recognized, 597. Rules; testamentary capacity, 1080. Service of process on, 597. Settlement: by deceased, 596. Admr. may avoid, 596. Softening of brain, 598. Statutory definition, 598. Support: by county, 599. Circuit court, improper, 599. When appropriate, 599. County court jurisdiction, 599. Homestead liable for, 600, , Payment on valid claim, 600. Irregular proceeding, 600. Wife committed, 828. Testamentary capacity, 1080,: Test of insanity, 597. ; Insane delusion, 597. Language or acts, 597, Partial insanity, 597. Sane, act and talk foolishly, 598. Unreasonable suspicion?, 597, i See also Incompetents. Incompe- tents' Sale or Eealty. Sale of Eealtt. Testamentary, Ca- pacity. ARE TO PAGES.] Insanity. See Insane Persons, Inspection of Books and Papers. See Discovery. Writings., , Insurance, 601.,. Benefit of others, except wife: Assured may dispose of, 604, 605, 606. Will or otherwise, 601, 605. _ . Beneficiary dies before - assured, 602, 606. ,'.,,.'.,. Assured may change, 603,' 606. Benefit certificate, 606. , , , By will to others, 606. No successor therein, 602, 603, .',.:,, 606. ,, .,,-.■ , Supcespion. provided,, 602,,, Passes to administrator, 603. No interest in premiums paid, 605. i , , Eight expectancy; not absolute, 605. Certificate ; against- ,by-law, 603. Against charter, 6,03. :,,, i Change; incompleted, 602. Executor; not , ; as guardian, 603,/ Same person; immaterial, 604. Ineffective; notiee defeet, 603. Named in will; not making, 602. Residuary clause in will,ifi03v- Wif e ; not change . or assign, 604. Definition; life insurance, 604. Pay during lifetime, 604. As to wife; matured, 604; 606. Surplus to, the assured, .604. Subject to garnishment; 604. Wife's interest in, 6,04. "Friend" designation in will, ,603. Contrary to charter 5, takes, 603. Contrary to by-laws; takes, 603; Manual transfer to, fiancee, 604. Effective; chose in action, 604. r Writings .to protect company, 604. "Mother," includes step-mqther„, 606. Stepmother under "heirs," ,606. Payment^ during lifetime, 604. Property: proportions, 605. Accounting -by trustees, 605. . Other realty; dower interest, 605. Widow's share on homestead, 605. Her insurable interest, 605. Several beneficiaries: "Children; " not grandchildren, 603. Surviving child takes all, 603. "Family;" each equal share, 603. Joint, the survivor taking, 602. Widow and children ; equally, 602. 1360 GENERAL INDEX [REFERENCES Insurance — continued. Wife beneficiary: Assignment by husb. and wife, 605. Before and after 1891, 605. Divorce, not divest wife, 607. Husband control before, 601. Not since ch. 376, L. 1891, 602, 606. Matures in her life; hers, 606. Unless contrary provision, 606. Paid-up; after wife's death, 606. As to law of 1891, 606. Her sole property, 606. Husband no claim on, 606. Premiums, her behalf, 606. Reserve right .to change, 607. Notice, held ineffectual, 607. Vested, subject to divest, 607. Sole and separate property, 604. Not change or assign, 604. Not reached by creditors, 604. Not valid as to past policies, 604, 606, 607. Unless right reserved, 607. Surplus in lifetime to assured, 603. Wife dies before insured, 602. Nevertheless vested in her, 602. No successor therein, 602. Interest, 607. v After maturity: ■ Implied at same rate, 608. Federal rule, contra, 608. Continuous until paid, 609. Against sureties; principal, 614. Anciently called usury, 613. Ascertainable; computation, 609, 613. Ascertained by evidence, 610. Scarcely unliquidated, 609. Value of farming' implements, 610. Prom suit commencement, 610. Bond, recovery on, 609. Damages exceed penalty, 611. Common law rules, 609. Compound interest: AgainBt public policy, 610. Agreed by adjustment, 610. • Becomes principal by contract, 611. Compound interest allowed, 611. Principal due; interest failure, 611. Defaulted interest coupons, 613. Election of whole debt due, 613. Subsequent coupons, 613. Enforced; settlements only, 610. Executed contract settlement, 610. AKE TO PAGES. ] Interest — continued. Compound interest — continued. Matured prin. and interest, 614. Excess of legal, remitted, 614. Statutory prohibition, 610. Ten per cent computed annually, 610. Under partial payment rule, 610. Damages, contract breach, 609. See also Unliquidated demands. General rules stated: Ascertained by computation, 613. Established market value, 613. Means accessible to party, 613. Commencement of suit, 614. Because constitute demand, 614. Contract rate stipulated, 612. Contract silent on rate, 612. Demand, fixes interest time, 614. Being no agreement, 614. Unliquidated, but liquidable, 614. Extras: with market value, 613. Prom time of demand, 613. N. Y. 1829, our existing statute, 613. Decisions there, followed, 613, 614. True principle of interest, 613. Until principal repayment, 608, 612. Weight of" authority also, 613. Wholly unliquidated ; exceptions, 614. Ascertainable; from breach, 614. As compensation; not interest, 614. Breach of warranty; sale, 614. Guardians' accounts; rests, 610. Annual rests, 21. Neglect of duty, 21. On balance in hands, 611. Wards' funds; rules stated, 612. Interest upon interest: See Compound interest. Judgment, legal rate, 610. Though contract ten per cent, 610. Legacies, in detail, 675. Legacy, from end of year, 612, 614. Legal interest, meaning, 608. Limitation; debt barred, 611. Interest likewise, 611. Maximum rates: penalties, 614. Allowed; principal, interest, 614. Remit excess of ten per cent, 614. Mere incident to debt, 609, 611. D^bt barred ; interest also, 611. Monthly balances; wages, 610. Open running account, 612. Interest from action started, 612. No demand for payment, 612. GENERAL INDEX i3ei [REFERENCES Interest — continued. Open account— continued. Sold on sixty days time, 612. Statements sent at intervals, 612. Constituted accounts stated, 612. No interest claimed therein, 612. Partial payment rule: Adopted in this court, 610, 611. Rule in full, stated, 610, 611. Quantum meruit: See Unliquidated demands. Services : See Unliquidated demands. Unliquidated demands: Absence of agreement, 609. Account and promise to pay, 611. Commencement, because demand, 614. Common law rule, 609. Demand fixes interest time, 614. Unliquidated, but liquid'able, 614. Exceptional; from breach, 614. As compensation, 614. Means of ascertaining, 609, 613. Computation or otherwise, 609, 613. New York rule adopted, 609, 613. No account, no demand, 609. Quantum meruit: services, 609. From suit commencement, 611. From time of demand, 612. From time of verdict, 609. Not from time of service, 612. v Time of filing claim, 612. Eecovery doubtful, contested, 609. See also General rules stated: Usage proof, ignored, 609. Usury; treble damages, 614. "Voluntary excess payment, 836. Interpleader, 615." Bill of; defined, 615. Equity of bill, 615. Executor, will construction, 615. Champion of legatees, 615. Distinction explained, 615. Nature of interpleader, 615. Filing not encouraged, 615. Notice to co-defendants, 615.. Interpretation of Contracts, etc. See Construction, etc. Interpreter, Fees Taxable, 615. Interrogatories. See Depositions- Zimmerm an — 86 ARE TO PAGES. ] Inventory and Appraisal, 616. Administrator's own debts, 616. How chargeable; inventoried, 616. Included in inventory, 616. Defense here, improper, 616. Not estopped to deny, 616. Not relieved; creditors, 616. Not required to pay, 616. Appraisers: Change; persons or result, 616; Named in the will, 616. Failure to object to, 400. Gift, stricken from, 6i6. Motion of claimant, 616. Inventory not conclusive, 616. Investments' of Guardians, Trustees, etc. See Accounts or Guardians. Guae- 1 man And Ward. Trustees. Trust Funds. Joint Obligations, 617. Agreement not to sue one, 618, 619, 620. Bar as to him alone, 618. Partial satisfaction, only,, 620. Settling own matter only, 619. Contribution, right of, 619. Deceased joint obligor: Common law ; survivor only, 617. Judgment, separate, 620. Not jointly with otheTS, 617. Revived against admr., 617. Judgment against one, 618. Against executor, separate, 620. Agreement not to sue, 618. Bar as to the others, 618. Partnership contract, 620. Mortgage,, several notes, 617. Notes separately; parties, 617. Security in common, 617. Adverse title against, 618. Bound to each other, 618. Community of interest, 618. Relation of trust, 617. Oral agreement, buy jointly, 620. Statute of frauds, 620. Partnership contract, joint; 620. Payment received from one, 618. .Bar as to the others, 618, 619. Direction from other to pay, 619. Remains debt of both, 619, Limitation statute, 619. Payment by. one, not bar, 619. Partial, bar pro.tanto, 619. Release under seal, 618. 1362 GENERAL INDEX [REFERENCES Joint Obligations — continued. Payment from one— continued. Right of contribution, 619. Show full compensation, 618. Eelease under seal of one, 618, Bar as to the others, 618. Parol evidence, not control, 619. Singular number, expressed, 619. Joint and several, 619. See also Joint Tenancy. Joint Tenancy, 620. Definition; Bl. Comm., 621. Severance; effect of, 623. In lifetime only, 623. Significant incident, 623. The four, unities, .623. Descent taken by, 622. Devise by one, inoperative,, 623. Entireties; definition, 622, 623. Apparently none now, 622, 623. Husband and wife: At common law; entireties, 620,, 622, . 623. Husband not alienate, '621. Consent of wife; separate estate, 624. Execution, as to life est., 621, 623. Hold as at common law, 621. Changed subsequently, 622. Note and mortgage, 622. Now hold as joint tenants, 622, 623, 624. Severed by deed from wife, 623. Devise by either, inoperative, 623, 624. Grantee holds in common, 623. Insurance benefit certificate, 621. Mother, daughter, one dies, 621. Survivor takes the whole, 621. Legacies: without indication, 622. Within common law, 621. Married women statute, 622, 623. Personalities, joint, 621. As at common law, 621. Nature, as realty, 621. Purchase only, taken by, 622. Act of the parties, 622. Severance ; to common, 623. As by alienation, 623. Devise by one inoperative, 623, 624. Trust estates: in solido, 622. See also Joint Obligations. Judge of County or Probate Court. See County Jupge. ARE TO PAGES.] Judgments, 624. Allowance of claim is, 626, 628. Except as to execution, 628. Appeal determination, 87. Appeal from final decree, 629. , Set a^idev in part only, 629. Assignees of he\rs; proper, 629. Assignees; subject to. equities, 626. Bind parties and privies, 627, 631. In" rem, subject, whole world, 631. Interest, law or estate, 627. Collateral attack questions: Not whether obtained by fraud, 631. Whether jurisdiction had, 631. Conclusive; everywhere, 625, 629, 630. Collaterally safe, 625, 626. Extent of heirs rights, 626. Including probate court, 625, 629, 631. , Including propositions therein, 630, 631. In personem,; on parties, 631. In rem; subject; whole world, 631. Jurisdiction competent, 625, 630, 631. Not affect legal title, 626. Subject matter in suit, 626. Till set aside directly, 630, 631. Upon rights of parties, 626, 630, , 631. Default: by administrator, 625. Not asset admission, 625. Deficiency in foreclosure, 629. After decease of mortgagor, 629. Definition: judgment, order, 627. Dismissal: hearing on merits, 627. Answer praying for, 627. Effect of judgments: Conclusive -until reversed, 630, 631. Including probate courts, 631. In personem, upon the parties, 631. In rem, subject, whole world, 631, Propositions assumed, decided, 630, 631. Within jurisdictional limits, 630. Executor asks adjudication, 633. Conclusive on due notice, 633. Judicial advisory directions, 633. Protects all parties concerned, 633. Though without notice, 633. Pinal decree:' Application after extr's. decease, 630. Heir of devisee applies for, 630. Assign realty according to will, 630, 632. GENERAL INDEX 1363 [REFERENCES Judgments — continued. Final decree — continued. , Though title passes by will, 630, 632. What proof of title as to parties, 630. Binds only parties with notice, '628, 632: Concludes extent of heirs rights, 629, 630. Conclusive as any final, 625, 626, 629, 632. Within its jurisdiction, 626. Conclusive for certain purposes, 628. Protects administrator, good faith, 628. Conclusive, questions adjudicated, 628, 630. Determine parties' rights, 633. Not as to prior life lease, 633. Not as to prior title rights, 633. Such title as decedent had, 633. Effect, left an open question, 627. Erroneously made', 44. General effect of judgts., 630. Applies to probate courts, 631. Interest, in detail, 607. Mistake corrected; twelve years,, 630. Not affect legal land title, 626, 628, ,630, 632. Notice to parties, essential, 627, 628. As to account only, not, 627. Failure goes to juris., 628. Publication notice only, 629.^ Void as to those not, 628, 630, Power to order distribution, 630, 632. Construe ' will ; decide, 632. Propositions assumed; decided, 630. Recitals not required, 632. When not final, 42. Whether title con be divested by, ' 630. Foreign : Heirs must have notice, 627, 628. Jurisdiction inquired into, 626. Foreign judgments, 452. Form, against admr., trustee, 629, 633. De bonis testatoris, 633! Estate liaMe, Set forth, 629. Otherwise, personally liable, 629. Presumption of good faith, 629. Regardless Of pleadings, 633. Guardian's account settlement, 630. Infant heirs: without notice, 627, 628. Cloud on realty title, 631.' ARE TO PAGES.] Judgments — continued. Infant heirs — continued. Without guardian; void> 631. Interlocutory judgment, 627. Judgment: bbtained in lifetime, 628. Against executor;, circuit court, 632. After claims barred, 632. Effective without filing, 628. Judicial advisory directions, 633. Judicial decisions, 634. ; Jurisdiction, in detail, 640. 1 Notice essential; probate, 628. Binds only those having, 628. Binds ; publication notice only, 629. For account only; insufficient, 627. Jurisdictional; not error, 628. Statutory; not conclude title, 628, 630. : Void as to those not having, 628. Nunc pro tunc, writing, 626. After term, orally made, 626. Ordered later so entered, 632. ' Orally given from bench, 626, ' 632, 633. i Clerieal duty remains, 632. Effective, not written, 632; 633. Finding filed; decree ordered, 632. Ordered signed nunc pro tunc, 632. Written merely evidence thereof, 633. Order deciding- appeal, 87. Order for judgment, '626. Not execution thereon, 626. Parties; all having interest in, 627. Person who pays; action, 627. ' Prematurely entered; irregular, 629. Probate courts : •"'''. Judgment rules apply, 630, 631. More jurisdictional defects, 628. ' Powers limited to statutes, 629. Probate of will Conclusive, 897. ' Collaterally safe, 899. Recitals not required, 632. '■' ' Res adjudieata, when, 960/ Stipulation; thwarting will, 632. Sole beneficiary order is, 139. . Title of devisees vests, 632. ' Subject to creditor's rights, -632. Unappealed . construction held ^pid, 155. , '' .'"'.„''.•','•.'. "' ,.,] '-: Vacation: At a subsequent term, 626: Default, after a year, 626. , , ■ , Non-resident application, 626. Established rules of, 633. .:,■ . Written, merely evidence of! oral, 633. 1364 GENERAL INDEX [REFERENCES Judgments— continued. See also Descent and Distribution. Foreign Judgments. Fraudu- lent Orders. Judicial Deci- sions. Mistake. Orders. Set- tlement. Vacating Judgments. Judicial Decisions, 634. Appellant not prejudiced, 635. Error corrected before, 635. Authority, extent of: Effective as ultimate questions, 635. Assumed within issues, 635. Deliberately decided, 635. Presented and considered, 635. Propositions assumed, 635, 636. No relation to decision, 636. Not support conclusive, 636. Obiter; not within questions, 635. Several independent grounds, 636. Minor points also, 636. Certainty, correctness, 636. Long adhered to, 636. Clear preponderance is, 637. Competent evidence solely, 638. Contrariety of opinion, 637. Specific error groundy 637. Decide actual controversies, 635. .., No moot questions, 635. Department ruling, weight, 638. Federal questions, strictly, 636. Applied to a state case, 636. Initial determination, 637. Clear preponderance against, 637. Judgments, in detail, 624. Jury in equity cases, 635. Obiter dictum, in detail, 973. Obiter; not within questionsy 635. Opinion of supreme court, 636. Conclusions of law, 636. Decision and opinion, 636. Findings of fact, 636. "Opinion" of trial court, 636. "Decision" as to facts, 636. • Findings, judicial conclusion, 638. Of little consequence, 638. Statement of reasons, 636. . Oral announcement, judgment, 638. Written, evidence merely, 638. Positive authority of, 634. Purposes of future cases s 634. Questions of fact, 635. Trial courts, superiority, 635. Repeated statements of law, 637. Conclusiveness of, 637. ' Not necessarily involved, 637. Reversal, fact question, 637. ARE TO PAGES. ] Judicial Decisions — continued. Right of matter, 637. Facts from evidence, 637. Illogical footsteps, 637. Rules of practice, 973. Trial court's; after affirmed, 634, 635. Cannot be disturbed, 634, 635. When supreme court's, 634. See also Rules op Practice. Stare Decisis. Judicial Notice, 638. Acts of Congress, 639. Administrator, same estate, 638. City is a corporation, 639. Date was on Sunday, 639. Divisions, of state, 639. Distances therein, 639. Foreign laws, not, 458. Government land surveys, 638. Lands assumed in this state,, 638. Judgment or proceeding, 639. In same action in court, 639. Not of other actions, 639. Nature, use, of "air-gun," 639. As of " beer, " " gas ' ' and ' ' car, ' ' 639. Pleading of matters, 639. Practicing attorneys, 638. Judicial Rules. See Judicial Decisions. Rules op. Practice. Jurat. See Verification. Jurisdiction, 640. Adequate remedy at law, 649. Objection; answer or demurrer, 649. Not ore tenus at trial, 649. Administration : Conditions fully stated, 36. 'Existence of estate, 37. Had before will was found, 652. Hearing on petition, 36. Irregularly granted, voidable, 36, 642. No personalty, no debts, 645. Not collaterally attacked, 652. Not without will proven, 646. Or proceedings started, 646. Of live persons, void ab initio, 647. Prima facie estate showing, 653. Residence and decease, 35, 36. Status at death governs, 37. See also Estates of decedents. See also Probate of wills. GENERAL INDEX 1365 [REFERENCES ARE TO PAGES.] Jurisdiction. — continued. Administrator de bonis non, 651. Executor continued as trustee, 651. Adoption; statute violation, 52. After seven years absence, 651. Annul will after probate, 653. Appearance: when waiver, 644, 651. Contested on merits, 645. Defect of process serving, 644, 645. Appellate: not by consent, 654. Court had de novo power, 654. Asset: whether it is such, 644. Assistants: power tq appoint, 646. Attorneys' fees: administrator, 651. Power to make lien, 652. "Waiver by appearance, 651. Claims against estates, 172. County court, law policy, 172. Collateral impeachment: Administrator cannot be, 652. Not fraud question, 631. Not .if jurisdiction had, 183, 642. Propositions assumed or decided, 650. Waiver by appearance, 651. Concurrent jurisdiction: Claims: circuit court; taken away, 647. Equitable character in equity, 644. Equity not take,, when, 643. Implied trusts; equitable estoppel, 645. Over guardians of infants,! 643. Consent : Appellate jurisdiction not by, 654. Where appellate already has, 6'54. Assent or ratification, 647. Can give as to parties, 642. Cannot give of subject-matter, 642, 653. Construction of wills: Circuit court: estate pending, 260. Chancery, over trusts, 253. Cloud on title, 263. Ejectment; law action, 249; Partition suit,. 257. Statute not abridged, equity, 260. Trust or other equity, 263. County courts; before statute, 646. General notice by publication, 646. Not after estate assignment,. 263. When necessary to settlement^, 241, ' 243. . ; Widow's dower; homestead; not, 257. Domieil, state of testator, 245, 247. County courts, as probate: Jurisdiction — continued. County courts, etc. — continued. Claims; exclusive in character, 642. Equitable; enforce implied trust, 645. , Equitable estoppel enforced, 645. Equity full, as in law, 653. Creating implied trust; 653. Decedent's funds from wife, 653. Equity powers in trust estates, 645, 651. Extensive over estates, 642, 644. , Pull statement of jurisd., 645. All acts in administration, 645. Death, domieil, estate, 646. Giving effect to intention, 6,45. Irregular admin., voidable, 642. Judgments conclusive, unappealed, ■■.. 644. ■ Offspring, of common law, 642. Plenary in all est. matters, 644. 1 Much is an equitable character, 644. Concurrent with equity, 644. Proceedings regulated by statute, 644. Revoke orders entered, 642. See also Presumption. Records. Trust bequest not in will, 645. Will, administration, estates, 644. County judge, out of county, 653. Court ought not exercise, 652. Deemed not to have, 652. Manner unknown to law, 652. Whether objected to or not, 652. Claims: exclusive character, 642. Amount due on land 'Contract, 643. Circuit court over, taken away, 647. Creditors: no guardian ad litem, '648. Definitions of jurisdiction, 642, 651. Absence from trial, 652. Complete as to parties, 652. , Complete as to subject matter, 652, 653. : Effect of pleadings;. : 653. Not by parties consent, 653. .Render right or wrong judgment, 653. ■• . ■ Wrong judgment, error only, 653. Erroj; merely, immaterial, 44. <■ Estates of decedents: Death, domieil, estate, 646. Decedent : non-resident domieil, 649. Chose in action; money, 649. Debts due him, personalty, 649. Locality of personalty confers, 649. ; 1366 GENERAL INDEX. [REFERENCES Jurisdiction — continued. Estates of decedents — continued. Domieil; primary, 646, 649, 654. Conclusive as to parties, 654. Decided necessarily, when, 654. Federal courts; no jurisdiction, 649. Pull statement of acts, 645. Prima facie estate showing, 653. Probate courts; extensive, 642, 644\ Property within state, 651. Domieil, immaterial, 651. Jurisdiction elsewhere, 651. Settlement; proceeding in rem, 649. Subject matter ; particular case, 646. Subsequent appointment, infants, . 647.. Erroneously found; conclusive, 367. Estoppel : equitable enforced; 645. Pinal decree: of assignment, 650. Application of parties, 650. Determine distribution, 653. •;■ Not adjudicate lessee's rights, 650. Judgments, in detail, 624. Poreign judgments: ' May be inquired into, 642. Poreign jurisdiction, 456. Guardian ad litem: None: infants unharmed, 648. See also Probate of wills. Guardian's accounts: Settlement order, conclusive, 650. Guardianship : Citizenship immaterial, 500. Incompetents, ,569. Besidence immaterial, 500. Highway, commissioners, 514. Holiday; judicial, act, 515. Historically, and now: Chancery, formerly of wills, 643. Realty and personalty, 643. Common law as to realty, 643, 646. Conclusive between parties, 646. ': County courts in this state, 644, 646. Conclusive; all having notice, 646. Conclusive, unless appealed from, 644. Wills, administration, estates, 644. Courts of special juris, in U. S., 644, 646. Begulated by statute, 644, 646. • Under various names, 644. Ecclesiastical, as. to personalty, 643, 646. .Conclusive, all persons, 646. , Inoperative as to realty, 643. Presumption not indulged in, 644. ARE TO PAGES. ] , Jurisdiction — continued. Historically and now — continued. Eealty sale as in general courts, 644. Want of appears affirmatively, 644. Where record is silent as to, 644. Where records fail to show it, 644. Incompetents ' realty sale, 575. Infants' realty sale, 585. Judgments : conclusive collaterally, 650. Judgments, in detail, 624. Propositions assumed, decided, 650. Trial court, after appeal, 650. Judicial notice of prior acts, 643. Administrator, same estate, 643. Non-resident: publication, 649. Jurisdiction of property, 649. Not for personal judgment, 649. See also Estates of decedents. Notice: of final distribution, 646, 647. Adoption as to parents, '51. Blank in publication affidavit, 649. Probate valid; time lapse, 648. Eecord merely silent, 648. Defective publication notice, 650. Parties appearing bound, 651. General by publication, 646. Incompetent realty sale, 647. May be waived, 647. Probate ; subsequent proceedings, 647. Eealty sales; specific parties, 647. Want of, proceedings void, 647. Person, by appearance, 95. Petitioners in administrations, 661. Petition, if no demurrable, 642. EecOrd in same estate, 642. Power on allegations made, 642. Premature judgment entry, 649. Irregularity; may be waived, 649. Others than judgment creditor, 649. Presumption: not indulged in, 644. Indulged in superior courts, 875. Eealty sale as in general courts, 644. Want of appears affirmatively, 643, 644. Where record is silent, 644, 648. Statute violation, 52. Where records fail to show, 644. Probate courts. See County Courts. Probate of wills: Complete jurisdiction, 646. Conclusive ; all having, notice, 647. Death, domieil, , estate, 646. GENERAL INDEX 1367 [REFERENCES Jurisdiction — continued. Probate of wills— continued. No guardian ad litem ; estate insol- vent, .648. , , Binding upon the creditors, 648. Minors unharmed; realty, sale, 648. Probate bound widow and extrs., 648. Realty in heirs; pers. in extrs., 648. . -,, , i j Void as to minors only; if at all, 648. Widow, extr. sole benef., elected, 648. Notice; defective; set aside, 650. Binding on those appearing, 651. Deceptive recital in order, 650. Jurisdiction to hear proofs, 650. l Not to bind parties, 650. Oral proof as to notice, 650. Proof of pub. not. filed, 650., , ...' Recital of legal notice given, 650. Notice failure; subsequent acts, 647. Petition to set aside ; amendment, ,652. Assignment falls ,,with probate, „ 652. , Proceeding in rem, 901. Binding all the world, 901. Public welfare and policy, 901;. Specific persons, 901. Subject matter; particular case, 646. Recitals: as intendment, 650. t Certificate of probate; notice, 650. Notice; in compliance with law, 650. Records: fails, not binding, 643. : Judicial notice of prior acts, 643. Must show affirmatively, 643. See also Presumption. Whole record continuous, 643. Reformation, 952. Sale of realty : Derogation of common law, 647. Failure of notice, waiver, 647. ,, Fraudulent; executor as trustee, 649. Incompetent; guardian, represents, " 547. , . Petition; statute; no inferences, ,, 648. Jurisdiction of parties; notice, 647, 651. No guardian ad litem; sale held , valid, 648. Petition, facts as statute states, 647. Jurisdiction of subject matter, 647, 648. ABE "iO PAGUS. 1; Jurisdiction — continued.! ,,, Sale of realty — rcontjnued. ; : Petition; value of personalty, 643. Presumption as ,in general courts, ,. ' ,7,i,644. . ,.,,.,',. Special notice, etc., necessary, 651. Trusts: enforce implied, 645.,. Bequest not in will, 645., : Though remedy at law, 645. Waiver: • Parties; not subject matter,,, 642. Assent or ratification, 647. . . i ,. ! Contested, on merits, 645. Irregularity, by judgment debtor, : : 649. ■ :.,;.,[ Jurisdiction of person, 645. Notice may be, waived, ,647. Whefl by appearance, 644., Widow: sole benef. elects, 648., See, also Probate, of wills. Wrong: determination, immaterial, 650. See alsoi Appearance. Concurrent Jurisdiction. Circuit) Court. Equity. Foreign Jurisdiction. Incompetents, , Notice. Publi- , cation. Jury, 654. Administration, on appeal:,' , Not a case for a jury, 656,, ' Commitment of infants: Industrial sch. ; house of refuge, 656. Communication, judge, jury, 657. In open court only, 657. ' , Presence of counsel, 657. > ■■ Contract breach,, by jury,, 658. ,,:., "' Equity cases: , • Only in, aid of the court, 655. ' i !■.:•■ Tries only special issues, 655. Guardians appointed without i > 655. Insanity determinations: ,., Criminal cases : Discretion of , the court, 656i i Not as a matter of -right, 656. Prior to the constitution, 656. Right does not extend to, 656. Sec.; 4700, as common 1 law, 656. Summary, jury or otherwise, 656. Partition; circuit court: Feigned issue, in ..chancery, '657: ' Finding, , erroneous instruction, 657. Supreme court; equity: Reverse; clearly against facts, 656. , Reviews questions of fact, 656. View, knowledge from, 212; 657. Credibility of evidence, 657. Waived only by consent, 655:' 1368 GENERAL INDEX [REFERENCES Jury — continued. Will probate on appeal; Analogous to chancery courts, 650. Assist court, if desirable, 655. Court may determine wholly, 656, 657. Long established rule, 658. Questioned in dictum, 658. No authority for, 658. Triable in common law courts, 658. Court 's duty same as without, 655. Declining to submit, not error, 657. Errors and urging 1 to agree, immate- rial, 657. Feigned issue in chancery; 655, 656, 657. , Improper testimony, immaterial, 657. Insanity verdict set aside, 655. May be entirely disregarded, 656. May order new jury trial, 655. Discretion of the court, 655. Not binding on the court, 655, 656, 657. Nuncupative; same effect, 655. Set aside, if unsatisfactory, 655. Special question form, unimportant, 657. Submitted; later withdrawn, 656. Submitting special issue, 656. Weighty, in doubtful case, 655. Kin, Relation, 658. Administration right of kin, 660, 661. Blood descent favored, 659. Liberally, illegitimates, 661. Brother, brother-in-law, 659. Consanguinity: definition, 660. Civil, canon, and common law, 660. Difference only in collateral; 660. Degrees, how computed, 660. Each question, a degree, 660. Lineal and collateral, 660. Definition ; strict ; general, 659. Class; includes interested, 659. For administration purposes, 661. Petitioners; interested persons, 66.1. Degrees, how computed, 660. Diagram and method, 661. Father and mother, equal, 660. Father-in-law; son-in-law, 659. Grandmother; uncles, 659. Heirs-at-law; realty, 660. Statutory difference, 660. Next of kin, Bee. 3807, 659. Administration rights, 660, 661. Includes as to personalty, 660. In their legal sense, 660. ARE TO PAGES. ] Kin, Relation — continued. Next of kin — continued. Liberally, illegitimates, 661. May be "near relatives," 660. No interest ; living relative^ 661. Not mean nearest relatives, 660, Practically, as heirs, 660. Refers to a class, 659. Those entitled to share, 659. Relation; not include wife, 659. Affinity by marriage, 659. Blood kindred, 659. Step-daughter, as child, 659. Benefit certificate, 659. Her husband not, 660. Son-in-law as near of, 659. Step-daughter, orphan, 659. Relationship of daughter, 660. See also Administration. Labor. See Services. Laches, 661. Circumstances govern, 662. Disability; not imputed, 663. Discountenanced in equity, 662. Long delay will prevent, 662. Less than limitation, 662. Equitable action: Unreasonable delay bars, 662. Final judgment set aside, 662. Fraudulent concealment, 662. Gross, barred in equity, 386, 387. Heir, not knowing interest, 663. Knowledge: upon inquiry, 662, 663. Duty of inquiry, 662, 663. Kept in ignorance, 663. Legal action : Acquiescence as estoppel, 662. Limitation statute analogy, 662. Long delay held no bar, 663. Kept in ignorance, 663. Relief from judgments, 476. Laches prevents, 478. Reformation, effect, 952. Subrogation not affected, 1046. Time: lapse not bar, 662. Frequent value .changes, 662. Long accounting delay, 662. Reasonable, depends on facts, 662. When not affected by, 662. Trustee; accounting, 1130. Year's accounting delay, not, 663. Land Contract, 663. Acceptance: non-signing grantee, 664. GENERAL INDEX 1369 [REFERENCES Land Contract — continued. Acceptance — continued. Agreement of both parties, 664. Adopted, party not signing* 664. , Binds both parties, 664. Assignee: of vendor, notes, 665. Against vendor for title, 665. Entitled strict foreclosure, 665. Vendor, trustee of legal title, 666. Whether notes non-negotiable, 666. Both or neither bound, 664. Decedent vendee : fully paid, 664. Administrator no right thereto, 665. Descended to heirs at once, 664. Interest in lands,. real estate, 664. Land not required for debts, 664. Deceased vendor: work payment, 665. Declarations to show work, 665. Equitable mortgagor and mortgagee, 664, 655. Strict foreclosure of contract, 664. Escrow: not to a party, 664. Foreclosed as mortgage, 765. Homestead improvements, 527. Notes; whether non-negotiable, 666. Parol evidence as to, 811. Payment: enforcement of ,. 666. When promise is absolute, 666. Without tender of deed, 666. Possession right, silent, 665. Purchase money to be paid, 665. Presumption of meaning, 666. Remedies; law, equity, 954. Satisfaction, releases, 762. Foreclosure judgment, 765. Several notes due on default, 664. Share pro rata, not priority, . 664. Vendee: owner after execution, 665. Equitable owner of the land, 666. Liable for taxes assessed, 665. Mortgagor and mortgagee, 665. Vendor, legal title in trust, 665, 666. Vendor: legal title, security, 665, 666. Legal title for his assignee, 665. Remedy of assignee, 665. Transfers notes to another, 665. Trust for assignee and vendee, 666. Vendor retakes possession, 664. Ineffective^ vendee not consenting, 664. Wife's: failure to sign, 666. Inchoate dower value, 667. Computation methods, 667. Proper, not necessary party, 666. Refusal to join, in deed, 666. „ Options of vendee, 667. See also Mortgages. ARE TO PAGES.] Landlord and Tenant, 667. Alterations : Different, landlord, life-tenant, 672. Life-tenant, remainderman, 672. Making small apertures, 671. Material building changes, 669. Material change is waste, 669,; 672. Substantial change meant, 672. Covenant of enjoyment: Implied at common law,, 668. Statute, under three years, 668, 670. Decease: of lessor ; devisee, 224. .; Equity: remove lease cloud, 672. Fixtures: removed by tenant, 668. Attached at entry, 449, Building, npt attached, 669. Lessor, with no title, 446. Parties may agree as to, 669. ■■ Remove while in possession, 669. Replevin proper remedy, 669. Surrender before removal,, 449. Forfeiture stipulation: Choice of damages for breach, 672. Delay, itp declare, 672. Equity to remove cloud, 672 4 Lessee's j surety not party, 672. Not bound or relieved, 672. For benefit of lessor, 672. Growing crop at leasing, 669. , Lease : , Assignment by lessee, 668. Lessee still liable, 668. Growing crop at execution, 669. Not reserved, lessee's, 669. , Homestead right in, 530, 532. Lease for years: Dower; ninety-nine year, 374. Notice of prior rights,., 120. , Not written, with- possession* 670.. Rent binding on lessee, 670. Parol evidence of surrender;; 668. Lease with purchase option, 672. Not a contract of sale, 672. Mining leases; distinct, 671. Covenant to prospect, 671. . Ninety-nine years, trustee, 671. Under an implied power, 671. Parol: one year, building, 670. Affirmatively appear, year, 671. Effect in future, valid, 670. Five year; part performance, 1034. Statute, of frauds, different, 671. Tenancy becomes periodic, 671. Modified estate at will, 671. Notice to terminate, 671. Payment period, 671. Pays rent regularly, 671. 1370 GENERAL INDEX [REFERENCES Landlord and Tenant— continued. Parol — continued. Until premises sold, void, 671. Renewal: privilege clause, 670. Called for a' new lease, 670. Conditions, when enforceable, 672. Precise terms of original, 670. Except removal condition, 670. Privilege "four years more," 670. Notice; not new lease, 670. Time of notice waived, 670. Bent: in advance; fire loss, 668. Acceptance after breach, 668. Bents, generally, 957. Repairs : agreement necessary, 670. Applies, parts used in common, 670. Surrender: in law, 668. Effect of voluntary, acceptance, 671. New lease including old, 668. Parol evidence, incompetent, 668. Tenancy at will. See Parol. Tenancy by sufferance, 669. Landlord's consent essential, 669. No notice to terminate, 669. Tenant in common: Lessee of co-tenant, hold over, 668. Tenant : possession rights, 669. Landlord no entry rights, 669. Live-stock, includes increase, 672. Hiring for term, likewise, 672. Trespass against landlord, 669. See also Bents and Pkofits. Lapsed Legacy. See Legacies. Vesting op Estates, etc. Last Sickness. See Claims. Law, 673. Foreign laws, 457. Foreign to be proved, 673. Ignorance no excuse, 674. Mistake of law, 748. Not an exact science, 673. Presumption of knowledge, 673, 674. Administrative rule, 674. Criminal code, effect, 673. Obsolete in broad sense, 673. ' Statutes, 1039. Unconstitutional act, not, 674. Leading Questions, 674. Appearance of persons; things, 675. Defined; answer suggested, 674. Presumption of inquiry, 674. ARE TO PAGES. ] Leading Questions — continued. Discretionary with court, 674, 675. Abuse of discretion, 674, 675. Error may be fatal, 674. Suggested answer; presumption/ 674. Experts; considerable strictness, 439. Objection should be special, 674. Own witness hostile, 674. Stir witness's recollection, 675. Not to suggest answer, 675. Lease. See Landlord and Tenant. Legacies, Legatees, 675. Agreement: to bequeath, 681. By father for minor child, 683. Testimony of mother, 683.. Consideration; name child, 681. Elect to sue for damages, 683. Leave something at death, 681. Oral, to leave legacy, 680, 682. Pay for past services, 682. Quantum meruit, 682. Written, to leave realty, 682. Proving by lost writing, 682. Charge upon devised land, 679. Devisee also executor, 683. Barred for two reasons, 683. Devisee personally liable, 680. Equity foreclosure action, 680, 681. Limitation statute applies, 679, 680, 683. Remainder sold to pay, 679. Separate sales, injury to parties, 682. Court adopt best method, 682. Devisee's est. defeasible, 681. Legacy first applied, 682. Value thereof computed, 682. Bemainder applied, if necessary, 682. Balance charge of trustee, 682. Whole property in fee sold, 682. Support and annual payments, 683. Failure: legal or equitable, 683. Both remedies barred, 683. Six year limitation, 683. Irregular short absences, 683. Trustee for legatee, 679. Not of express trust, 679, 680, 683. Condition; character, trade, 858. Death of either legatee, 683. Death, prior to date of will, 684. Unknown, living abroad, 684. Definition of legatee, 676. Distinction from devisees, 676. Legacies include realty, 680. GENERAL INDEX 1371 [REFERENCES Legacies — continued. Definition — continued. Sometimes devisees, 676, 677. Delay in admitting, 685. Demonstrative legacies, 677. Devisee to pay: Charge upon the lands, 676. Devise on express condition, 681. General legacies: Sum in bonds and notes, 677. Homestead:, charged, 679. By general direction, 681. Power to charge, 529. Income or interest payable: Annuities, from death, 684. General, life bequest, 684. Authorities conflicting, 684. Fund for investment, 684. Ordinarily not computable, 684. General, year from death, 678, 684, 685. Statutory order on, 684- Infants, as to support, 684. Residuary, life bequest, 6S4. Accrued income thereon, 684. Specific, carry accessions, 684. Joint tenancy, legacies, 679. Judgment creditor of devisee, 681. Lien on realty, 693. Limitation statute, 679, 680, 683. Bar specially pleaded, 684. Offset of debt on legacy, 457, 678. Oral: promise by a legatee, 676. Promise to leave legacy, 680. To pay sums as legacies, 676. Enforced as a trust, 676. Partnership : interest ; not specie 1 , 259. Parties: suit to recover, 677. Payable future time certain, 260. Payment by the executor, 678. At the end of year limited, 678, 684, 685. Interest from such date, 678, 685. Conversion of proceeds, 678. Implied promise to pay, 678. Out of personalty, first, 680. Promise by him to pay, 678. Words "after my death," 685. Personal chattels: Delivered to life beneficiary, 676. Personalty first liable for, 680. . Common law rule, 680. Proportionate residuum share, 682. Meaning of said legacies, 682. Release of testator; undelivered, 677. Extrinsic evidence to prove, 678. Ineffective as to legacy, 677, ABE TO PAGES. ] Legacies — continued. Eesiduary, also executor, 680. Holds as executor, 680. Misapplies funds, estopped, 681. Residuum: personal, real, 678. Bequest paid in any event, 680. Devisee, also extr. misapplies funds, 681. , Absolved from giving bonds, 680. Estopped, asserting personalty, 681, Judgment creditor; lien only, 681. Rules of priority, not apply, 681. General legacies, charge on, 678, 681. Realty after personalty,' 678, 681. Title in administrator, 1099. Vested remainder sold to pay, 679. Being homestead, immaterial, 679. Widow preserve, election only, 679. Heirs protected by bidding in, 679. Life estate in, immaterial, 679. Reversion sold to pay, 679. ■, Setoff against debt, 457, 678. Settlement by legatees, 1023. Specific legacies: Distinction from general, 677. Railroad stock, at par, 677. Title, in detail, 1096. , Title : transfer by executor, 676. < " Vesting of estates, in detail, 1195. Civil law rules; personalty, 1200. Vesting: condition precedent, 680. Condition before decease, 680. Void legacy, residuum, 679. , See also Construction of Wills. Vesting op Estates, etc. Legal Holiday. See Holidays. Legal Tender. See Tender. Legitimacy, 685. Child of divorced husband, 687. Born after subsequent' marriage, 687. Divorce record inadmissible, 687. Parties evidence inadmissible, 687. Second husband; no eurtesy, 687. Second marriage immaterial, 687. "Children," include illegitimate, 687. Husband's evidence: incompetent, 687. Illegitimate son of Indian, 688. Legitimatizing children, 687. Not involved in probate, 687. Nearest blood relations, 687. 1372 GENERAL INDEX [REFERENCES Legitimacy — continued. Nearest relations — continued. Child of illegitimate son, 688. Illegitimates blood relatives, 688. Judicial intention construction, 687. Set definitions modified, 688. Non-resident illegitimates, 687. Judgment inoperative, 687. Paternity: determined how, 688. Acknowledged, but in fact not, 689. Whether entitled to inherit, 689. Appear, reasonable clearness, 688. Informal writing of, 688. Law of parents domicil, 688. Letter ' ' your affectionate father, ' ' 688. Signed in "witness" presence, 688. Not precise or formal, 688. Pension bureau report, 688. Witness not attest in writing, 688. Presumption of legitimacy, 686, 687. Pacts show illegitimacy, 687. Overcome by clear evidence, 686. Not wife's testimony, 686. Rule and common law rule, 687. Same status as legitimates, 689. As regards the mother, 689. Damages for death, 689. Testator's intention respected, 688. Set definitions modified, 688. Void marriage: Child legitimate, 686. Husband living at marriage, 686. Wife's evidence: Incompetent as to non-access, 686, 687. Even inferential evidence, 686. Location of husband; improper, 686. Not testify as to illegitimacy, 686. Recital in deed; improper, 686, 687. Letters. See Writings. Lex Loci Contractus. See Contracts. Liability, 689. Administrator or executor: Concluded; order to pay claims, 692. With or without assets, 692. Counsel employed by him, 691. Has lien on estate assets, 691. Estate assets stolen, 691. After neglect to pay, 691. ARE TO PAGES. ] Liability — continued. Administrator, etc. — continued. Funds not controlled by other court, 692. Liable to third party, when, 692. Liable as such; insolvent bank, 691. Make sale through agent, 691. Agent makes misrepresentations, 691. Payment of mortgage; contract, 692. Assumed in deed accepted, 692. Ordinary estate debt, 692. Payment on void judgment, 692. Protected on erroneous, 692. Personalty on his contract, 690. Assets sufficient or not, 690. Exceptions to general rule, 690. Judgment out of his estate, 690. Sale of personalty ; personally, 692. Not in realty sale, 692. After estate is settled, 690. Administrator owes heirs, 690. Liable; action, personally, 690. Chattels to life beneficiary, 690. Sale or destruction, 690. Counsel fees: Administrator personally liable, 691. Allows attorney to act for him, 691. Liable quantum meruit, 691. Charge same in account, 691. Priority over general debts, 691. Has lien on estate assets, 691. When he is unable to pay, 691. Creditor apply to estate, 691. Debts, includes contract, tort, 690. Decedent's property for debts, 321. Definition of, 692. Garnishment of admr., trustee, 690. Garnishment continues after order, 690. Liability to such process, 690. Not before final order, 690. Trust fund for a period, 692. Whether after final order, 690. Guarantor's; for infant, 492. Guardian ad litem; damages, 495. Money for safe-keeping, 690. Property, all, for debts, 307. Decedent's at death, 321. Revoked administration, 692. Expenses, how paid, 692. Share of heir: Admin, primarily liable, 690. Bond, cumulative remedy, 690. GENERAL INDEX 1373 [REFERENCES License. See Liquors. Sale of Realty. Lien, 693. Administrator's attorney's fees, 697. Agents on property, 881. Artisan 's common-law, 698. Statute prior to mortgage, 698. Attorney : Agreement; personal injury, 695. Action not assignable, 696. Defendant settles; pays himself, 695. Eelieved, though knowledge, 695. % Made on estate assets, 697. Not champertous under rule, 696. Cause of action, plaintiff, 6>94. Not defeated by defendant, 694. Judgment for damage claim, 693. Services and disbursements, '694. When before judgment, 693. On order for collection, 693. Settlement by client, 108. Costs contract, 108. Debts on realty; sec. 3873a, 696. Denominated a realty lien, 696. Equitable under sec. 3274, et al., 696. Limits county court only, 696. Not bar Qther remedies, 696. Devise in fee, defeasible, 697. Factor ; on personalty, 444. Guardian ad litem fees, 696. May be foreclosed, 696. Improvements; bona fide, 385. Legacy: on realty, 697. Acceptance by devisee, 697. Annual charge: six-year statute, 698. Charge personalty; realty; 697. Enforced by foreclosure, 697. Specific money ; on realty, 697. Mechanic : Homestead rights" 522. Husband buys; wife's house, 694. Waived by an assignment, 696. Money loaned upon a note, 697. Homestead, vendor's liens, 697. Not like purchase money, 697. Used and to be used in building, 697. Vendors of realty: Claim filed against estate, 695. Homestead, how affected, 695, 696. Waiver of superior rights, 695. Enforced in equitable action, 697. Foreclosure, though mortgage dis- charged, 698. Grantee's death, not destroy, 696. Homestead also included, 695, 697. ARE TO PAGES. ] Lien — continued. , Vendors of realty — continued. Not after vendee's decease? 695, 696. J. bought, pays for P., deed direct, 694. Equity, strictly confined, 695. Money advanced; subrogated, 694. Same as deed from himself, 694. Substantial equity clear, 694. Mere chose in action, 696. Representatives; not heirs, 696. Third person, when entitled, 695. Same effect and order as mortgage, 695. Under certain circumstances, 693. Waiver; voluntary surrender, 694. Life Estates, 698. Foreclosure sale: Life tenant purchaser, 702. Incumbrance : ' . * Life tenant; subrogation, 702. Personal chattels: <■ • Beneficiary sold or destroyed, 699. Remedy against her extr.,' 699. Delivered to life beneficiary, 699. Executor's liability terminates, 699. Resume after decease, 699. Life legatee also executrix, 699. Possession vested as legatee, 699. Co-executor's sale as her agent, 699. Taking receipt, of life legatee, 699. Failure, not liable on bond, 699. Phrases construed: "All" estate, "right to sell," 700. After "decease," '(parted" to children, 700. No language of' more than life, ; 700. Power of sale not general, 700. Sell life estate only, 700. Will construed as made, 700. Apparent devise in fee, 701. Also disposed of fee thereafter, 701. Child with proceeds; estopped, 705. "For her special benefit,'! 702. Fee; alternative modification, 701. "Legacies" to include realty, 702. One or the other diesj 252: "Purchaser," means for value, 703. "Sell" as "to her seem fit," 702. "Held for the income thereof," 702. 1374 GENERAL INDEX [REFERENCES Life Estates — continued. Phrases construed — continued. "Or to retain during her" life, 702. Bight to ; sell, or hold in specie, 702. "Sell," "use and enjoy, during life," 702. Life, with power as given, 702. May give title in fee, 703. When "breach of trust," 703. What "remains" to children, 702. "Sole use and benefit" during life, 700. "Power to dispose of" as neces- sary, 700. Sold and "necessarily used," 700. Conveyance held valid, 700. Power, without a trust, 700. Statutes applicable, 700. Unexpended, only passes, 700: "Whatever remains" to heirs of both, 700. Wish; arrange her affairs, 872. ' ' Sole use, benefit and behoof, ' ' dur- ing life, 701. "Estate that may remain," to others, 701. Gould not give away, 701. Corpus, necessary for support, 701. , Trust held not created, ■ ' . ' Die without issue, to others, 704. Life estate in one-half, 704. Life estate with control, 704. No trust or power of sale, 704. Possession right and control, 704. Power to sell implied, 704. Use and consume; corpusj 704. 1 " Use " and ' ' Control ' ' during life, 702. No right to the corpus, 702. "Use and dispose of," best judg- ment, 704. At death "all the property ' ' to others, 704. Not power to dispose of fee, 704. Only life estate, 704. Widow life ; children fee, 704. "Without issue remaining alive," 703. Conditional fee, terminating, 703. Death at any time, 703. "Having children then living," 703. Passed on death of child, 703. Perpetuities not offended, 703. Words "for her life"; limited, 701. ARE TO PAGES. ] Life Estates — continued. Power of sale: mortgage, 701. Ordinary deed conveys fee, 702. Sell, if three agreed, 861. , Power to devise; unexecuted, 701. Precatory trusts, in detail, 868. Precatory words: Construed as life; implied trust,- 700. Devise in fee; precatory words, 701. Eule in Shelley's Case, 700. Tax deeds: Curtesy tenant, not profit, 699. Taxes: life tenant to pay, 703. Praud in failure, 703. Terminated before decease,' 255. Testamentary guardian; wife, 704^ Entitled to hold property, 704. May act as trustee, 704. To trustee, to pay income, 255. Vesting of estates, in detail, 1195. Words of inheritance, 246; , See also Construction of Wills. Power. Precatory Trusts. Vest- ing of Estates, etc. Life Insurance. See Insurance. Limitation of Actions, 705. Absence from the state, 707. ' Six years before decease, 717. Absence not prove residence change, 717. Temporarily within state, 710. Temporarily without state, 710. Accounts beyond six years, 709, 710. Confined to mutual, 709. Accrual: definition, 178* After and before death, 178. Executor or admr. appointed, -1070. Administrator's- invalid sale, 708. Five and ten year statutes, 708. Not bar to profit recovery, 1130. Minor's rights thereunder, 717. Laches not bar to accounting, 1130. Unless trust denial, 1130, Adverse possession: Commences in lifetime, 708. Heir disability immaterial, 708. N. Y. construction applies, 708. Statute from N. Y., ^1829, 708. Affects right, and remedy, 709, 712. Bar effectual as payment, 712. Become inseparable, 712. Enforcement and claim, 712. Federal; many states: contra, 712. Attorney: 'end' of proceeding, 713. GENERAL INDEX 1375 [REFERENCES Limitation of Actions— continued. Attorney — continued. Accrual at breach, 718. Collection of debt, 718. Bar in law, in equity also, 718. Bar effectual as payment, 712. Bond of administrator, 129. Accrual of action, 129. Glaims in county court: Applied more rigorously, 175, 178. , Piling stops running, 708. Partnership accounting, 715. Pending in circuit, 707. Plead; failure immaterial, 713, 1016. 1017. Residuary legatee bond, 715. Suit pending at decease, 169. Waiver is ineffective, 713. Complete accrual necessary, 1 716. After condition performed, 716. Knowledge of proper party, 717. Construction of: Exceptions must be express, 707. General words ; operation, 707. Contribution of co-surety, 711. Death of party: Accrual after death, 709, 716. Also to two years statute, 709. Double the ordinary period, 716, 1070. Not barred otherwise, 716. No competent parties, 709, 716. Not till administrator appointed, I 178, 715, 716. Accrual period to death, 709, 716. Death during last year, 711, 716. Limit after death before filing; 168. Running not interrupted, 709. Unless statute provides, 709. Debt secured by mortgage, 716. Debt six; mortgage twenty, 716. Interest payment on debt, 716. Extends' mortgage time also, 716. Defense; not unconscionable, 713. Estate settlement, six years : Infringement strictly necessary, 714. Judgment after inoperative, 710. Bight determined before, 710. Befusal to remove executor, 712. Reasonable care and diligence, 712, 714. To' secure speedy settlement, 711, 714. Whether statute self-executing, 710, 714. Will carried out, anyhow, 711, 714. Equitable estoppel: Obviated only by, 714. ARE TO PAGES. ] Limitation of Actions — continued. Equitable estoppel- — continued. ■ Widow's election also, 714. Estoppel in pais; not avoid, 717. Extinguishes contract itself, 709, 712. Fraud: exception in equity, '711. Six years, applies in law, 711. Fraudulent orders,' relief, 476. Guardian: and ward; not, 712. Accrual; discharge, 504. Against sureties; four years, 716. Bond in void proceedings, 715. Implied contract; accrual, 715. Accrual on breach of duty, 718. Demand not necessary, 718. There is no exception, 718. Collection of note by atty., 718. Complete in law, also in equity, 718. Wrong subsequent to barred breach, 718. Attorney and cliept, 718. Inducement to lose a right, 718. Trustee and cestui que trust, 718. Inheritance taxes, 588. Interruption of running, 715. Marriage will not, 715. Only express statute, 709, 715. Joint debtor pays; consent, 709. Jurisdiction failure, 478. Law: of forum, remedy, 712. Non-resident v. non-resident, 712. Place of contract governs, 718. Action elsewhere; presumption, 718. Barred there; also elsewhere, 718. Right extinguished, 712; Legacies : Annual money payments, 719. Barred in six years, 719. ■ Barred in twenty years,' 714. Charge upon land, 711, 714. Twenty-year presumption, 711. Met by a new promise, 707. Money paid on judgment, 708. Based oh foreign judgment, 708. Recovery on reversal, 708. ' Mortgage: six years on note, 759, 766. Covenant under Seal, 766. Foreclosure, twenty years, 759, 766. Twenty years ; deficiency, 766. Objections to evidence, 708. Ground to "be distinct, 708. Partial payments: before due, 707. Voluntary and unconditional, 711. Within prescribed period, 707. Partnership accounting, 715. Payment at decease, 999. 1376 GENERAL INDEX [REFERENCES Limitation of Actions — continued. Payment before or after bar, 707, 833. Part after bar saves, 707, 833. Payments applied: Open account; earlier items, 832. Parties fail, court applies, 709. Payment presumption ; Common law in force, 707. None within bar period, 835. Statute payment rule, 707. Twenty-year limitation, 707. Pleadings: in circuit court, 707. Amendments : Allowed as in other eases, 713. Discretion of court, 853. Introduces new cause, 717. Continues to run, 717. Showing excuse of delay, 713. Simply expanding allegations, 717. .Relates back to original, 717. Available only by answer, 708, 719. Common law, also specially, 710, 719. Same under the statute, 710. County court; immaterial, 713. Considered, however, 1016, 1017. Demurrer: sections specified, 713. Pacts in complaint or answer, 710. Facts stated in complaint, 710. Then taken by demurrer, 710, 713. General to all actions, 710. Immaterial in county court, 713. Mere mention, insufficient, 730. Not affirmative in complaint, 29. Nor in counterclaim, 29. Sec. 3841, in circuit court, 176. Policy; not unfavorable, 713. Eealty, three-years; debt, 711. Residuary legatee bond, 715. Revival of barred debt, 708. Acknowledge and promise, 708, 709. Mere admission; insufficient, 709. Prqmise in writing, signed, 709. Sale of realty: Defective; five-year statute, 993. Fraudulent; minors, 991. Ten year poss., consid. paid, 992. Sealed contract; twenty years, 717. Specialties; any parties, 717. Services: pay at decease, 713, 999. Decedent, in detail, 999. Legacy; later promise, 1017. Substitutionary, 1017. Mature when services cease, 713, 715. Rendered over six years before, 717. State entitled to benefit, 709. Statute in force, governs, 712. Subrogation; effect, 715. ARE TO PAGES.] Limitation of Action&^continued. Subrogation — continued. Falls with debt, 715. Testamentary payment, 708. Accrues at decease, 708. Trusts: not applicable to express, 711, 714. Administr tor's realty sale, 713. Applicable to contract trusts, 714. Cognizable only in equity, 714. Devise subject to legacy charge, 714. Not express trust, 714. Implied, resulting; constructive, 714. Resulting trust; likewise, 712, 714. Technical and continuing, 714. Ten-year statute in bar, 707. Termination of trust character, 713. Unless denial or repudiation, 711, 713, 714. Brought to knowledge, 714. Commences therewith, 707. Repudiation, what is, 714. Six year limitation, 714. Vested property right, 718. Cannot be taken away, 718. Wages payable monthly, 709. Waiver; may be had, 708. Not county court claim, 713. Warrant of attorney; seal, 708. Not extend period, 708. Widow's election statute, 714. Wife : not run against, 711, 713. Common law rule, 715. Marriage not stop running, 715. Transaction between them, 715. Not extended otherwise, 715. See also Claims. Contingent Claim. Liquors, 719. License: Administrator not obtain, 719. May dispose of bulk, 719. Comes to end with license, 719. Personal; not assignable, 719. Not go to administrator, 719. Except now by statute, 719. Lost Will, 720. Appeal, executor named, 64. Declarations to rebut, 720. Existence or non-existence, 720, 721, 722. Existence three days before, 720. Against scrivener's evidence, 721. Secondary evidence of, 722. Equity: has jurisdiction, 720. Not to set aside probate, 720. GENERAL INDEX 1377 [ REFERENCES Lost Will — continued. Equity — continued. Independently of statute, 720. Evidence of contents, 721. As at common law, 721. Case sufficiently proved, 721. Knowledge of accidental destruction, 721. Coupled with an adoption, 722. Eevoked the will, 722. Opportunity Jo reproduce, 721. Presumption of revocation, 721. Presumption of revocation, 720. Pacts (f stated cases, 721j 722. Opportunity of contestant, 721, 722. Overcome by evidence, 720, 721, 722. Whether contestant destroyed, 722. Lucid Interval. See Insane Persons. Lunacy, Lunatic. See Insane Persons. Magistrate. See County Judge. Custody and Commitment. Maintenance. See Bond tor Maintenance. Cham- perty and Maintenance. Majority, 723. Lex rei sitae; domicil, 723. Non-resident infant, 723. Estate interests here, 723. Majority different age, 723. Personal statutes, Contracts within state, 723. Disability here, 723. See also Infants. Mandamus, 723. ■ Compel judge to fix bond, 723. Compel referee approval, 723. Marriage, 723. Ceremony prima facie valid, 725. Common law marriages, 728. Denned; valid here, 728. Not Valid in England, 728. Cohabitation, 725, 727. Declarations of deceased, 726. Definition: civil contract, 724. Agreement between parties, 726. Direct; circumstantial, 726. Fact to be proven, 726. Zimmerman — 87 ARE TO PAGES. ] Marriage — continued. Dower; action for, 724. Pact of marriage, 724. Proof of marriage, 724. Foreign divorce; publication, 728. Parties domiciled here, 728. Foreign marriage; 1 proof, 727. Solemnized in a church, 727. Burden on him who denies, 727. Infant, age fraud, 399. Presumption : Cohabitation : lawful, 725. Illicit in origin, 725, 727. Overcome by proof, 725. Continuance i of life, 725. Dissolution of divorce, 725. Facts of involved case, 725. In favor of marriage, 725. ' Proved': by oral testimony, 724. Civil contract: formalities, 724. Cohabitation and acts; 724y 725. Date; proved by conduct 725. Direct or circumstantial, 726, 727. Facts of involved case, 726. Not hearsay declarations, 727. See also Foreign marriages, 727. See also Presumption, 725. Sign and verify as T. nee P., 726. Sale of realty to pay debts, 725. ■ Void : common law or statute, 725. Divorce from such marriage, 726. ' Other Valid marriage before, 726. Held lawful widow, 726. Not estopped by divorce, 726. Where party already married, '725. Invalid for any purpose, 726. . Otherwise; where voidable, 726. Prior illegal intercourse, 726. When valid, Valid everywhere, 727. Exceptions: law of nature, 727. Grounds of public policy, 727. Leave, state, evading purposes, 727. Ceremony in another state, 727. Nor common law marriage, 727. Not recognized here, 727. Without legal authority, 724. See also Marriage Contracts. Marriage Contracts, 728. Ante-nuptial contract: Any "provision," sufficient, 733. Both parties retain property, 733. Burden of impeaching, 732. Cannot vary marriage [duties, 730. Construe, as other agreements, 732. ' Meaning attributed at signing, 732, ■"!"' 1378 GENERAL INDEX [REFERENCES Marriage Contracts — continued. Ante-nuptial — -continued. Destroyed proven orally, 729. Divorce; alimony, contract, 732. Whether further property? 732. Doubtful or ambiguous, 731, 733. Most favorable to widow, 731, 733. "Either party dying intestate," 732. Testacy does not nullify, 732. . Husband change, given more, 730. Widow bound thereby, 730. Inadequacy of provisions, 731. Intention, controlling, 731, '732. Marriage promises preceding, 733. Not a badge of fraud, 733. Must be free from fraud, 730. Burden on party alleging, 733. Not to share in personalty, 731. Precludes allowances, 731. Nothing, inherently auspicious, 732, 733. Oral, executed, valid, 730, 731. Orally made before marriage, 731. Deed in escrow; no title, 732. Widow recording; no laches, 732. Estoppel, not shown, 732. Eight to elect within year, ' 732. Writing, etc.,. after marriage, 731. Void, jointure statutes, 731. . Void, statute of frauds, 731. Pecuniary amount not paid, 733. Obligation is sufficient, 733. Post contract attempts to construe, 731. Value only as to intention, 731. Preclude statutory allowances, 73.1. Property rights, contract, 730. Provide for necessaries of life, 731. Seasonable support provision, 731. Monthly, sixty dollars, 731. Eegarded with favor, 732. Eegarded with rigid scrutiny, 730, 733. Eight existed before statute, 733. Statutes as in most states, 733. Undue influence indication, 732. Wife only signing is bound, 733. Husband's obligations: Cannot vary marriage duties, 730. Support and care for wife, 730. Cannot shirk; contract away, 730. Support promise, no consideration, 730. Agreement, nudum pactum, 730. Intended husband's deed, 729. ARE TO PAGES.] Marriage Contracts — continued. Intended husband's deed — continued. Given without consideration, 732. Inoperative as to marital rights, 732. Post-nuptial contract: Attempting to construe ante-nuptial, 731. Domicil law, entire property, 729. For a destroyed ante-nuptial, 729. Additional gift of husband, 729. Attempted revocation of ante, 729. Destroyed proven orally, 729. Binding on both, 729. Including and slightly adding, 729. Not contract they could make, 73.0. Widow bound on old, and gift, 730. Husband's promise to support, 730. Express or implied; no recovery, 730. Wife leave him her property, 730. While domiciled in Prussia, 729. Realty acquired here, 729. Wife releasing interest, void, 729. See also Marriage. Married Woman, 733. Acquire estate: on credit, 654, 737, 738, 740, 742. Estate or business not essential, 741. To make authorized contract, 741. Herself liable at law, 738, 740, 741. Husband and wife, 535. Lease jointly with husband, 742. His benefit; she liable, 742. Other than her husband, 738. Subsequent intention, immaterial, 742. Actions: for reversion injury, 736. Alienation husband's affections, 741. At law; separate estate only, 739, 740. Equity: other than separate estate, 740. Also her separate estate, 742. Incident to contract rights, 738. Liable to action for a tort, 744. Give note in settlement, 744. May sue and be sued, 739. Not husband's growing crops, 736. Settle and discontinue, 739. Against attorney's protest, 739. Trespass, with possession only, 739. Agency; husband; wife, 535. Common-law : Acts void, ab initio, 737. Feme covert, not bind herself, 737. GBNEEAL INDEX 1379 [REFERENCES Married Woman — continued. Common law — continued. Husband and wife, in detail, 535. Contract rules : ' Cognizable only in equity, 740. In absence of enabling act, 740. Not enforced at law, 740. Contracts as to separate estate, 740. And as to personal services, 740. Enforceable at law, 740. !i Not' suretyship contracts, 740. Rules restated as settled, 742. (1) Purchase of property, 742. Separate estate or not, 742. (2) Contracts as to her estate, 742. Enforceable at law, 742: (3) Bind at law by estoppel, 742. (4) Charge her estate in equity, 742. Even husband's debts, 742. Conveyances : Bargain and sale deeds, 736. Presumption; consideration, 736. Convey whole or part, 741. Executed release of Tealty, 743. Consideration for money, 743. Husband and wife, in detail, '535. Mortgage for husband's debt, '741, 743. Title direct from husband, 736. Without husband joining, 737. In her baptismal name, 739. Covenant of, enforced, 301'. ■'••'-' Defective conveyance; reformation, 737. Earnings : entitled to, 736. Actions' at law; 737. Board; expenses; 551: Contracts as to business, 737. Husband Js, at common law, 193. Husband's; help of wife, 558. Profits of her business, 736. Employ husband to manage, 735, 737. Apportionment Of products, 735. Both carry on together, 737. Each liable in law, 737. Contract oral or written, 738. Crops free from his debts, 737. Eetain rights to profits, 735, 737. Estoppel; effective, 397, 400. Fruits of mortgage, 400. Family expenses, payment, 742. Jointly with husband, 742. Foreign contract, 1 valid there, 743. Invalid here; enforceable, 743, Funeral expenses; estate liable, 743. ARE TO PAGES. ] Married Woman — continued. Gift or grant from husband, 743. Disability removed, 743. House management; not agency, 743. Not to allow testimony, 743. Husband and wife, in detail, 534. Life insurance, 601. Loan: for husband's benefit, 740. ' Marriage not revoke will, 739. Mortgage for husband 's debt, 741, 743. Suretyship: bar not inconsistent, 743. Name: of her husband, 739. Also baptismal name, 739. " Partnership with husband, 739. Physician's bill, she contracted, 741. Not liable therefor at law, 741. Possession : , Evidence of her ownership, 739. Patent, proof; right to crops, 736. Residing with husband; lands, 735, 740...:. Usual incidents of ownership, 740; Property claimed by her, 735, .743. As to husband's creditors, 738, 743. Burden was upon her, 738, 743. , Recital in bill of sale, 73.8. Disability as to gift, removed, 743. Gift from husband;, title, 739, 743. Purchased after marriage, 735, 743. Purchased .with husband's ,m,oney, 739, 743. Separate estate: Contracts binding in law, 735, 739. Otherwise in equity, 735. Equitable grounds, only in equity, ' 743. Give note in tort settlement, 744. Husband 1 holds ; implied trust, 557, 558.. Implied incidental rights; 738. Intention to charge; insufficient, 741, 743. Not action at law without, 740. Permits husband to use, 736. Not compel accounting, 736. Privilege of feme sole;. 736. , Same rights; .all .the,, world,, 736.. Including her husband, 736. Statute gives ; , contract power, 735. Title direct from husband, 736. Signing lease with husband, 742. Signing with husband: Charging (her est. in writing, 741, 743. Held to be ineffective, 741. Defective conveyance with, 737. Intention to charge insufficient, 743. 1380 GENERAL INDEX [REFERENCES Married Woman — continued. Signing with husband — continued. Lessee of realty; liable, 742. Note : not liable at law, 742, 743. Though charging in writing, 743. Security, her property, husband's debt, 741. Enforceable against property, 741. Surety; without separate estate, 740. Not liable in law action, 740. Statutes: extend privileges, 736. Applicable to all property, 737. From N. T. law of 1849, 737. N, Y. construe; act of 1850, 737. Not deprive of rights, 736. Powers by implication, 738. Incident to contracts, 738. Principal object of the act, 742. . Husband; debts and control, 742. Scope of laws stated, 740. Without liabilities, 736. Support of a parent, 743. Surety; accommodation maker, 738, 740, 743. Equitable considerations, 740. Not affecting separate estate, 738. 740. "' Not at law; as to equity, 738, 740. Surety, in detail, 1052. See also Husband and Wipe. Marshalling Assets, 744. Contract rights prejudiced, 745. Equality, generally equity, 744. Equitable rule stated, 744, 745. Failure to plead right, 744. Homestead right favored, 744. Laches: no knowledge, 745. One personalty; one realty, 744. Part of premises sold, 745. Principle of election, 744. Secured claims against estate, 745. Burden of collection on est., 746. At expense of estate, 746. Federal rule adopted, 745. Insolvency; unsecured creditors, 745. Eeceive dividend first, 745, 746. Benefit of security also, 745, 746. Beeeived payment in full, 745. Eight to securities cease, 745. Same status as unsecured, 746. Securities over sufficient, 745, 746. Masses. See Charitable Trusts. ARE TO PAGES. ] Master and Servant, 746. Condonation of fault, 747. When presumed, 747. Reasonable commands, 747. Duty to obey them, 747. Servant: business himself, 746. Advance master 's interests, 746. Discharged before time, 746. Whole time to master, 746. Substantial insubordination, 747. Ground for discharge, 747. Unreasonable hours, 747. No extra compensation, 747. Voluntarily does do, 747. Wrongfully discharged, 747. Action : damages for breach, 747. Not for contract wages, 747. Paid to that time, 747. See also Entire Contracts. Services. May, 747. Discretionary when, 747. Not public or third persons, 2. ' ' May ' ' and ' ' must ' ' ; same section, 4. Indicates ordinary meaning, 4. Means must or shall, 1. Public officers, for public, 2. Public rights concerned, 1. Ordinary use, permissive, 3. Medical Works. See Books of Science. Memorandum. See Writings. Mental Capacity. See Incompetents. Insane Persons. Testamentary Capacity. Minor. See Infants. Mistake, 748. Accounts; name over, 749. Administrator: judge's order, 749. Amend records: Agreement; estate settlement, 753. Corr cted twelve yrs. later, 753. Judgment different, 753. To conform as pronounced, 753. Conform as pronounced, 753. After considerable time, 754. Appear by the record, 753. England and many states, 754. More liberal rule here, 754. Everything subject to mistake, 754. GENERAL INDEX 1381 [REFERENCES Mistake — continued. Amend records — continued. Not mere remembrance, 753; Question as to a judgment, 754. Regardless of time limit, 753. County court procedure, 755. Error in actual entry, 751: After year expiration, 751. Incident to general powers, 749. No power; judicial determination, 754. Such by. statute or appeal, 754. N. E. half to east half, 754. Extrinsic evidence to aid, 754. Merely correct evidence of, 754. No rights intervened, 754. . Personal to de bonus testatoris, 750. Recollection of judge, 750. At subsequent term: Clerical errors, 749. ■ > ■ ■ "Contestant; " word omitted, 751. Matters of form, 749. •■' Clerical errors: At subsequent term; 749. ' ' Contestant ; ' ' word omitted, 751. Duty to disregard such, 750, 752. "From" instead of "for," 750. Given name; in appeal bond, 750, 751. "Him" for "them", 752. •■ "Plaintiff" for administrator, 752. "The" for "no;" "receive" for "recover," 749. Corrected at any time, 749. Disregard collaterally, 749. Year 1761 for year 1861, 750. Error disregarded, 750. Contract: clear mistake, 750. Amount of promissory note, 751. Avoid or rescind, 750. > Clearly and satisfactorily, 751. Preponderance insufficient, 751. Excusable negligence, 65. Have ascertained the facts, 750. 1 Mutual as to land value, ^7-53. Not law or legal effect, 752; Evidence required, 939. Pinal judgment, ignorance, fraud, 754. Misled by the court, 749, 751. > Power to relieve, 751. Mistake of law: Definition :• , fully stated, 750. Clearest and most satisfactory, 751. Family lawyer on facts, 750. Fraud or imposition, 752 ; . Legal effect of omission, 752. May have relief, 752. ARE. TO PAGES.] Mistake 1 — continued. /■.•, Mistake of law — continued.,:. Belief in equity, 1126. Belief refused* in such, case, 751. Parol, exception to prove, 813. Mistake of fact:, definition, 753. , Ignorance, not negligence, 753; .Ignorance unconscious,. 753, 754. "Waiver of inquiry, is not, 753. BeformatiOn, in detail, 949. BuleS' stated; relief granted, 751., Of fact, not of law, 752. Omission or, .insertion, 752. Beducing to writing, 752 -Set aside settlements, 752. Settlements ;set, aside for, 1023. : Vacate orders: >n .. Fraud: irregularly made, 749. '. Must be of fact, not law, 752. ; Not after the term, 752. Except" mistake, etc., 752. Vacating judgments, in detail, 1184. Vacation; amendment, rules, 755. Will: not after probate, 751. Prove sec. 22, instead Of -21, 754. Extrinsic evidence, 754. Words misplaced: . Interfering, word, rejected, - 754. Necessary inference, read, ■ 754. ■ "Not" in appeal bond, 754. Bules apply to statutory paper, 754. See also Equity. Fraudulent Orders. Nunc Pro Tunc. Reformation. Settlement. Vacating : , Judg- ments. Modification of Wills. See Descent and Distribution. Pro- bate op Wills. Trust Variation. Money, 755. Bankers and money-dealers, 756. Cannot' attribute as money, 756. Bank-notes are money, 756. Not necessarily all, 756. - Certificate of deposit: ■' Payable in currency, 757*. : Also by -statute, 757. ' Clearly negotiable, 757. Payable in current " funds, " 757. Held not negotiable, 757:-/, Currency: . ,' l:r . ■ .. ■iv, : V. t Coin and bank-notes, 756. Coin and paper ; money, 756. i '.May include current, funds, 756. Does when money meant, 756. National bank-notes, currency, 756. Not legal tender, 756. ■■''' 1382 GENERAL INDEX [REFERENCES Money — continued. Currency — continued. Only bank-notes so issued, 756. Treasury notes, currency, 756. Are legal tender, 756. Deposit in bank, loan, 757. Agent deposits; takes risks, 757. Unless principal consents, 757. Depositor a creditor, 757. Generic; includes coin, 755. Lawfully actually current, 756. Legal tender: Coined, generally, must, 756. Coined money not always, 756. Current, may or may not be, 756. Money need not be, 755. National bank-notes, not, 756. Not necessary to money, 756. Paper may be refused, 756. • Payment in either, good, 756. Treasury notes are, 756. Money had and received, 24, 757. Action for defined, 757. Equity and conscience, 757. Obligations for money, 757. Treated as money, 757. Distinct from chattels, 757. U.S. 1 bonds; certificates, 757. Paper, coined, money, 755. Eecovery for conversion, 757. Statute as to money, 756. As here set forth, 756. Not commodities, 756. See also Liability. Tender. Monument, 757. Amount found reasonable, 757. Expenditure before administration, 757. Mortality Tables. See Computation of Estates, etc. Mortgages, 758. Administrator; not liable, 764. Not necessary party, 764. Administrator's realty sale, 760. Not cut off mortgage, 760. Assignment; without note, 764. Claims : Failure to present notes, 760, 763, 764. Bar to deficiency judgment, 763. Not bar foreclosure, 760, 763, 764. Covenant to pay, therein, 766. Note, fix interest terms, 766. Though note barred, 766. ARE TO PAGES. ] Mortgages — continued. Covenant to pay — continued. Defectively executed, 759. Void as to homestead, 759. Deficiency, against executor, 763, 764. Conclusive against him, 764, 766. County court allow it, 764, 766. Not against heirs, 766. No claim filed, 766. Whether allowance entitled, 764, 766. Deficiency against heirs, 629. Definition; form, 763, 764. Intention; express promise, 763. Transfer as security, 763, 764. Discharge by quitclaim, 762, 765. Competent; show unpaid balance, «765. Foreclosure stand as such, 765. Vendor's lien for balance, 765. Not contradict by parol, 765. Discharge; not payment, 765. Does not carry debt, 759. Pee passes by foreclosure, 762. Fixtures as to mortgagor, 759. Foreclosure ; object, 761. Admr., not necessary party, 764. Fraudulent release of, 764. Homestead: defective, 528, 533. Future advances, 525. Incident to the debt, 759. Debt, principal thing, 765. Interest of mortgagee: Discharge by quit-claim deed, 762. Interest in the land, 762. May pass by conveyance, 762. Not ousted by ejectment, 762. Possession of mortgagor, his, 762. Interest, on matured interest, 766. Exceeding 10 per cent annual, 766. Land contract, mortgage lien, 762, 765. Deed of homestead, wife signing, 762. Foreclosed as a mortgage, 765.' Reconveyance unnecessary, 765. Satisfied by the payment, 765. Satisfaction by husband alone, 762. Divested original grantee, 762. Limitation statute: Covenant under seal, 766. Foreclosure, twenty years, 766. Deficiency also, 766. Taxes likewise, 766. Six-year bar to notes, 759, 766. Deficiency judgment, 759. Not to foreclosure, 759. Maintenance bond mortgages, 116. Note assignment: GENERAL INDEX 1383 [REFERENCES Mortgages — continued. Note assignment — continued. Carries mortgage with it, 759, 764. Without formal assigning, 759. May be without mortgage, 759. Subsequent mortgage assignment, 762. Eeeording ineffective, 762. Not a realty "grant," 765. Note and mortgage, personalty, 761. Note or bond, unnecessary, 766. Notes paid and satisfied, 760. Discharges mortgage, .760, 762, 765. Not independent property, 762. Parol: deed shown by, 763, 764. Bill of sale as security, 764. Clear and satisfactory, 763. Contemporaneous events, 763. Legal or equitable, 763. Purpose of writings, 763. Power to sell; not mortgage, 763, 764. Purchase money mortgage, 761. Substituted mortgage, 761. Third party furnishes money, 761. Vendor's lien for, 765. Foreclosure for, 765. Without wife's signature, 761. Also substituted one, 761. Eelease of part premises, 760. Purchaser ; subsequent mortgagee, 760. Kennedies, note, mortgage, 763. Satisfied by co-executor, 759. Secure bond -for support, 766. How satisfied, 766. Several notes; different times, 759, 760. Interest default; all due, 760. Part purchase money, 761. Priority does not prevail, 760, 761. Mortgage in commonj 617. Priority, not ratably, 759, 760. Conflict; settled here, 760. Bests upon time due, 760. Signature of wife : Homestead; invalid without, 759. Testamentary character, 1234. Two promises to pay, 766. Without witnesses: Good between the parties, 760. Becorded; not constructive notice, 760. See also Deeds. Land Contract. Power. Sale of Bealtt. Mortmain, 766. English, mortmain statute, 767. Deed, year before decease, 767. ARE TO PAGES. 1 Mortmain — Continued. l . In force in Pennsylvania, 767. Not in other states, 767. Not in British colonies, 766. Not in force here, 767. Silence of legislature, 767. Motion; not oral evidence, 767. See also Orders. Musical Instruments. See Household Furniture. Must. See Mat. Mutual Accounts. See Account Books. Names. See Parties. Necessaries, 768. Artificial teeth are, 769. Definition, legally, 769. Guardianship : Spendthrift; admissions, 768. Necessaries furnished, 768. Husband and wife, 536. Infants, 1 detailed, 577. Minor child: express promise, 769. Not on express , contract, 769. Or implied from facts, 769. Eules, in detail, 582, 797, 802. Not liable, ipso facto, 768. Parent and child, 794. Physician's bill: Wife apart from husband, 769. Presumption of liability, 769. Wife not liable, if husband, 769. Wife: to charge husband, 768. Competent witness, 768. See also Husband and Wife. Infants. Parent and 'Child. ,' , , , Ne Exeat. See Writ of Ne Exeat. Negotiable Instruments. See Promissory Notes, -etc. Newly Discovered Evidence. See Trial. New Trial. See Trial. 1384 GENERAL INDEX [REFERENCES Next of Kin. See Kin. Non-Expert. See Expert Testimony. Non-Negotiable Instruments. See Promissory Notes, etc. Non-Resident Administrator. See Foreign Executors and Adminis- trators. Nonsuit, 770. Proper equity practice, 770. Upon opening statement, 770. Not prevail here, 770. Upon plaintiff's evidence, 770. Undisputed other facts, 770. Where conflict of evidence, 770. When plaintiff rested, 770. Should have been granted, 770. Defendant supplies evidence, 770. ARE TO PAGES.] Notice — continued. Publication — continued. Pinal account; not assignment, 771.' Prescribed by court, 771. Put a man on inqury, 771. Rumor, suspicion, 771. Rumor, suspicion, insufficient, 771. Sale of realty: suit nature, 772. Executor's sale, 576. Infants sale; no notice, 772. Incompetent's sale, 772. Guardian acts; no notice, 772. Others not entitled to, '772. Notice as in other suits, 772. Notice, in detail, 979. Trustee's, in county court, 773. Sureties not entitled to, 130. Waiver may be had, 1217. Will construction, 772. Publication; binding, 772. Will probate; necessary, 772. Set aside; notice proof, 773. See also Jurisdiction. Publication. Writings. Notes. See Promissory Notes, etc. Notice, 771. Administrator de bonis non, 773. Adoption: parent affected, 52, 773. Appearance or consent, 772: Assignment of estate, 771. Publication as to account, only, 771. Foreign heirs not appearing, 771. Without notice; not conclusive, 773. Attorney; imputed to client, 106. Guardian ad litem appointment, 494.. Infants : .notice ineffective, 772. Defective or otherwise, 772. Distribution order, 579. Guardian ad litem necessary, 772. Not charged with laches; consent, 772. Unrepresented : and unharmed, 772. Essential; probate judgment, 624. Informalities, not vitiate, 771. Judgment creditor of heir, 55. Knowledge: unrecorded deed, 772. Permission to sue; bond, 130. Partners; one to all, 1064, 1066. Public administrator, 773. Publication ; county court : Contradictory proof of, 773. Defective; lapse of time, 773. Record merely silent, 773. Effective for jurisdiction, 772. Novation, 773. Acceptance be implied, 776. Appear by circumstances, 776. Not express, or writing, 776. Benefit 'of third person, 776. Not novation contract, 776. Case; informal assent, 776. Case stated; exchange bill, 775. Case stated; decedent, 774. Case stated; no notice, 775. Case stated ; order, 775. Clear case stated, 775. Definitions; principle's, 774. All three must assent, 775. Essentials thereof, stated, 776. Gift not an element, 774. Civil law different, 774. New obligation for another,. 774, 775. New contract must be valid, 774. One debtor for another, 774, 775. Part of common law, 774. Pay debt to third person, 774. Mutual agreement necessary, 775. All three must assent, 775. Informal assent, 776. Note of deceased person,i 774. Agreement to pay heirs, 774. . Not the legal holders, 774. Notice to payee, essential, 775. Privity in all cases, 775. Transfer must be complete, 775. GBNEEAL INDEX 1385 [REFERENCES Nunc Pro Tunc, 776. Filed after time limit, 777. On previous oral order, 777, 778. Guardian ad litem, present, 777. Jurat to verified petition, 777. Oral judgment, 1890, 777. Party died before written, 778. Proof of service, 1894, 777. Written judgment as of 1890, 777. Oral pleading amendment, 777. Proof of service filed, 777. Sale of realty; defect, 778. Not to be supplied, 778. "Superior" to "circuit," 777- Nuncupative Will, 778. Bear witness to his will, 778. Not to what he says, 778. "Bequeath", to personalty, 779. Common and civil law, 778. Declaration, such his will, 778, 779. "Devise", to realty, 779. Follows English statute,. 779. InefCective as to realty, 778, 779. Or to income of realty, 779. Nuncupative codicil, 779> ■ Not revoke written will,, 779: Bealty income, realty, 779.' Saying nothing to witnesses, 779. Soldiers in active service, 779. Different principles, 779. Strict law compliance, 778. Void in part; effective, 779. Oath. See Verification. Obiter Dictum. See Rules of Practice. Objections, 780. Account of extr. and admr., 15. Objections specific, 15. Agency of husband, 781. General offer to prove, 781. Competency of wife, 781. Competency of witness, 781. As to evidence, is not, 782. Transactions with deceased, 782, 78 1108. Competency of witness, 1110. Deposition: Not made in court, 781. Objection at taking, 781. Evidence generally, 336, 338. Evidence manifestly improper, 782. ARE TO PAGES.] Objections — continued; ,.,'.■■<, , Evidence improper — continued. , Court's own motion, exclude, 782. In its discretion, 782. Objected to or not, 782. General, deemed sufficient;. 783. Though overruled, 783. ■ General: Competency of evidence, 780. Is not as . to witness, 782. Not to order of time, 780. Evidence manifestly improper, 783. Evidence was received, 782. Evidence was rejected, 782. Not complain as too general, 782. . . Specific, no application, 782. • Not limitation statute, 781'. Heir on appeal, 1117: Hypothetical question, 782. Objection, specific on request;; 782. Immaterial evidence, 781. Incompetent, irrelevant,'- 1 immaterial, 782. '-.■■-> ■ More specific, on request, 782. Not. witness ■ competency, 1108. Object of making, 782. Question, general, leading, 781: Not trial objection, 781. When cannot urge, 782. ■ Reason for excluding evidence, 782. Court to explain on request, 782. Rule specifically stated; 782. ' As to when, specific, 782. Specific: ' Admission of books, 781. Competency of wife, 781. Ground of; , intoxication, 781. Order of time, 780. Proper cross-examination, 783. Other objections waived, .780; 781. Specific, no application,- when, 782. Subject to objection, 1117. To any evidence given, 780. n Equivalent to demurrer; 780. Transactions with deceased, 1105. Waiver of: - ' , ., , ,,, i-,| , All objections by specific, 780. Specific overruled, 780, r, ?, Offers. See Contracts. Realty, Estoppel. - Sale op Officers, 783. Acts by de facto officer, 786, 787. In a de jure office, 786. Valid as to 1 ' third 1 persons, ' 787, 1386 GENERAL INDEX [REFERENCES Officers — continued. Appoint court attendants, 786. Attorneys : Officers of the court, 784. Quasi; of the state, 784. Corporate : Essence of; are trustees, 784. Ministerial; are agents, 784. Officer does, principal does, 786. Though unauthorized, 786. -Power of president, contract, 785. As against innocent persons, 785. Assumed in the past, 785. Express, or by board, 785. Outside of authority, 785. Eegular course of business 1 , 785. Was managing officer, 785. Contract of employment, 785. Eesponsible, abuse of power, 786. ■ Rules as to directors, 784. Signed by president and secretary, 785. Presumed to have power, 785. Signing corporate name, 785. Better to sign direct, 785. With official title, 785. By the officer, 785. County Court: Cannot be abolished, 786. Void act abolishing, 786. Acts of de facto officer, 786, 787. As to de jure office, 786. Color of right conferred, 787. Valid as to third persons, 787. Void superior court, 786. Defray own expenses, 784. Jury, exception to rule, 784. Deputy Clerk: Power to make certificate, , 784. In name of the clerk, 784. Signed by the deputy, 784. Presumption clerk absent,, 784. Sign judgment roll, 784. Not stating absence, 784. Furnish Certified copies, 785. Entitled to reasonable pay, 785. Absence of statutory fees, 785. Penalty imposes duty, 785. Regardless of use to put to, 785.. Increase of duties, 786. Without pay increase, 786. Notary falsifying certificate, 786. Presumption : Not to violate the law, 784. Salary: officer of no term, 785. County board's refusal, 786. ARE TO PAGES.] Officers — continued. Writ regular upon face, 784. See also County Judge. Recoeds. Omissions, 787. Afterward written in: Agent exceeds instructions, 790. Applied to; husband and wife, 790. Homestead inserted, 790. Authority is implied, 790. Authorize by parol, 787. Instrument under seal, 787, 790. Intention of the party, 787. Without authority; validity, 788, 790. Date in deed, immaterial, 326. Grantors in body of deed, 327. , Name: no blank space, 790. Summons signature, 790. Note, signed in hlank, 788. Accommodation of party, 788. Altered before negotiated, 788. May have others sign, 789. Unless otherwise agreed, 789. Originally by two or more, 789. Valid when negotiated, 788. Written part to stand, 788. Corporation officer; authority, 790. Pilled with any name, 789. Inserted $450, instead of $45, 789. Alteration not vitiate, 789. Non-negotiable; signer held, 789, 790. Order or bearer; endorsed, 789. Party delivered to agent, 788. Rule completely stated, 789. Agent of signer of note, 789. Implied authority to fill, 789. Usual stipulations, only, 788. Papers signed in blank, 788. Agreement to be inserted, 788. Palse representations, 788. Filled as agreed, valid, 788. Unauthorized insertions, 788. Will; not supplied, 788. Remainder, omission supplied, 790. Supplied or rejected, 237. " To " supplied ; trust change, 790. "Year" in acknowledgment, 787. Omitted Child, 791. At probate application, 791. Or after will admitted, 791. Undetermined which, 791. Belief son was dead, 791. Son at probate of will, 791. GENERAL INDEX 1387 [REFERENCES Omitted Child^continued. Eevocation : , -will and probate, 791. Not collaterally, 791. In action at law, 791. Remedies in county court, 791. Opening and Close. , See Affirmative. Opinion Evidence. See Expert Testimony. Options, 791. Accepted within time, 792. Expires at limit, 792. Interest in land, 792. Enforceable if exercised, 792. Offer to sell; time, 792. Eealty; interest in land, 934. Surrender without deed, 934. Tender of money; office, 792. Decease before action, 792. Performance against heirs, 792. Sufficient acceptance, 792. See also Contracts. Orders, 792. Construed as judgment, 793. Form, not determine, 793. Decision; oral, written, 793. Clerk to enter oral, 793. Effective as written, 793. Entry: appeal purposes, 793. , Not necessarily recorded, 793. Einal order, what is, 793. Ordinance of 1787, abrogated, 220. Judge at chambers, 792. Motion; not oral evidence, 767. Not entered of record, 793. Oral, is in fact, 793. , Before findings filed, 793. "Ordered judgment", 792. Revoke, at any time, ,792., Writing, evidence of, 793. " See also Fraudulent Orders. Judg- ments. Records. Orphan. See G-uardian and Ward. Infant. Kin. Parent and Child, 794. Custody : Aunt as against father, 801. Abuse, profanity, etc., 801. Child left to uncle; father dec'd., 796. . ARE TO PAGES.] Parent and Child — continued. , Custody — continued. Guardianship; care to mother, 796. Mother then entitled, 796. No support means, 796. Child's welfare; court determines, 798, 799, 800, 801. Child's welfare, primary, 798, |799, 801. Father be unfit, 799, 801. Given to mother, 799,. Coarse and vulgar speech, 799. Though poorer, 799. Circuit court proceedings, 800, 801. After county court, 8,01. Parents right to care, custody, 801. Unless clearly improper, 801. Welfare of child considered, 801. Remarried mother given, 801. Deceased father 's request, 801. For brother; not control, 801. Fitness , shown ; adultery, ,801. Taken from parents, 800, 801. Commitment of children, 314. Common law right; absolute, 798. Modern rule more humane, 798. Father; if unfit, to mother, 799. Child's welfare; to mother, 799. Father may lose right, 798. By neglect, abuse, etc., 798. Incompetent, unsuitable, 799. Father; paramount right, 795, 798. If not rendered unfit, 795. . Court give to another, 798. Or child's welfare, not, 798. Under statute also, 79,8. , To nurture ; fourteen years, 795. Given to aunt, habeas corpus, 798. Father able and suitable, 798. Indentures void, father unfit, 795. Child between 7 and 14 yrs., 795. Infant fourteen, choose himself, ,795. Not compel parental rights, 795. Mother, custody in divorce, 800. Attempted testamentary appt., 800. Dies testate; grandmother, 800. Suitableness of father, 800. Creditable since divorce, 800. From marriage time, 800. Neglect 1 since divorce, 800. Paternity suspicion, 800. Mother, same right, if widow, 795, 796. Otherwise, if remarried, 795, 801. Court then to choose, 795. 1388 GENERAL INDEX [.REFERENCES Parent and Child — continued. Custody — continued. Unsuitable; instances not, 799, 800, 801. Deed parent to minor, 802. Emancipated ; father may, 796. Child's property rights secure, 796. • ''Express agreement; circumstantial, 801. Though insolvent at time, 796. Gift: to child, upheld, 489, 796. Effective when executed* 796. Father eannot revoke, 797. Bule, method, conditions, 798. Infant; bind father, 802. Automobile accident, 802. Physician's services; another, 802. Mortgage to minor; delivery, 332. Necessaries. See Support of child. Personal injury: child's action, 799. Not medical attendance, 799. Physician might ; necessaries, 799. Voluntary, father anil . brother, 799. Not recover for minority, 799. Presumptions : Child working for father, 797. Acting for him, 797. Not agency as to torts, 800. Services : After arriving at age, 795. No contract; no pay, 797. Father's right bef pre age, 795, 799. Child hold property, 796. Deal with himself, 796. May emancipate child, 796. , Though insolvent, 796. Support of child: After, divorce as before,. 364. Father's offer if given custody, 801. Does not relieve him, 801. Though improperly detained, 801. Mother's agency ;. bind . father, 797, 801. Mother for past support, 798. Case is one of equity, 798. Mixed facts, case stated, 797. Mother had no expectations, 798. Not depend uppn contract, 798. Out of child's estate, 798, "Widow charged with custody, 798. Parent bound to support, 795, 797, r . , 801. Permit a stranger, 795, 802. Eule; implied, allowed, knowledge, 802. ARE TO PAGES.] Parent and Child — continued. Support of child — continued. Eule succinctly, stated, 797. Father ready to supply, 797. Implied promise relation, 802. Necessaries furnished, 797. Not on express contract, 582. Parent's omission of duty, 797. Before others acting, 797. Services, in detail, 999. Stepson in parental relation, 802. Eule of allowed necessaries, 802. Step-father liable; physician, 802. Special exigency, 802. Venue, where child, not father is, 802. Eemoval by mother, 802. Torts of child: Father liable, he permits, 797, ■ 800. Morally and legally, 797. Similar acts shown, 797. Father, no general liability, 800. Agency: is proved, 800. Not presumed, 800. Parent not able to prevent, 800. Service for father, insufficient, 800. See also Bond for Maintenance. Custody and Commitment. In- fants. Services. Parol, 802. Agency : Sign as principal; shown, 807. Not to relieve himself, 807. Agreement to re-purchase, 813. Bill of sale : security, 809. Not modified; in escrow, 812. Condition: precedent to, 810. Defense suspicious, 810. Manual delivery, condition, 810, 811. Not binding till occurs, 810. Not, intent to take effect, 810. Not to be presently binding; '810. And later become void, 810. Consideration : Additional, may be shown, 214, 805. Admissible to show, 805. After execution; consideration, 812. Modified on same, 812. * Contract express or implied, 809. Contract, not within fraud statute, 812. Deed; manner of payment, 328. Different may be, shown, 807, 812. Distinction as to, a deed, 811. Failure of shown, 7, 8.05, 807, 810. GENBEAL INDEX 1389 Parol — continued. Consideration — continued. - Negotiations leading up to, 814. Explain consideration, 814. Some statement of given, 812. Shown not inconsistent with, 1 812. Time and manner of paying, 810. Construction of contracts, 809. Ascertain nature of, 810. Circumstances surrounding, 225. Nature and qualities; 222. Not as to conversations, 811. Obscure terms explained, 809, 811. Patent ambiguities, 809, 811. Show what parties meant, 812. * By ambiguous term, 812. Construction of deeds, 228. Extensive evidence, 228, 229. Subject matter, 231. Devise agreement; services, 811. Escrow, proved by, 392. Executory to executed, 805. Parol inadmissible, 805. Fixtures: show intention, 808. Fraud: or mistake; exception, 808. Clear and convincing, 808. Contracts signed in blank, 807. Original contract shown, 807. Parol trust; must show, 811. Preponderance insufficient, ' 808. Written, dishonest purpose, 812, 813. Boundary lines not settled, 813.' Distinct oral contract shown, 812, 813. Pleading makes claim, 813. Legatee, hold in trust, 806. Lost required writing,. 119, 814. Oral, clearly shown, 814. Maintenance, executed, 119. Mortgage; any conveyance, 763, 764. Part only in writing, 807, 809, 810, 813. Agreement to repurchase, 813. Deed or note; part only, 811. Must appear from writing, 809, 813, 814. Otherwise not show, 809, 814. " Not language of parties, 813. In absence of fraud, mistake, 813. Eeal transaction sifted, 813. Everything said and done, 813. Support agreement and bond, 809. Not show as to personalty, 809. Terms of sale may be shown> 809. Doubtful on this point, 809, , Writing, part execution, 813, 814. Promise to indemnify surety, 806. [REFERENCES ARE TO PAGES.] Parol 1 — continued. Promissory notes, etc.: Agreement not liable, 912. Agreement not of force, 911. Ambiguous in terms, 917. Consideration: failure, 805, 807, 810. Endorsement in blank, 807. Manner or fund, payment, 807. Note presumed part only, 811. Priority of endorsements, 804. Surety signed as principal, 805, 807. Surrender at payee's decease, -806. ' Unambiguous note, 915, 916. Understanding at time, 804. : 'Realty: Agent to sell; authority, 805. Gbntract complete, final, 811. Not parol, to change original, 812. Substitutionary; oral, 811 Ee-adoption of oral plan, 811. Would be new, 811. ' Consideration be shown, 805. Deed and executed parol trust, 810. Not void, but voidable, 810. Deed part; whole shown, 805, 807. Deed presumed part only, 811. Deed shown to be mortgage, 804, 806. Must be so intended, 806. Not absolute to conditional, 8*05. Not show express trust, 804. Eule of property, 805. ^Devise of, lands, oral, seryices, 811. If possession given, 811, Full payment insufficient, 806. Lease; part perf prm ;. fraud, 808. Parol trust; must show fraud, 811. Partition dffectuated, 806. Part payment;' no' possession, 804. Part performance; in equity, 805. Possession; relinquishment, 805. Recitals not 'contractual, 812. Not conclusive or exclusive, 812. Some consideration shown, 812. Different aliunde shown, 812. Tenant's sale to co-tenant, 808. Eeceipt; may contradict, 807. Includes elements of contract, 810. Not contract in form of, 808; Eeceipts in full, 1025. Res, gestae, in detail, 960. Statute of frauds: not within, 808. Modified by parol, 808;'814: ,( Oral, devise for services, 811. , , ; . , When writing not required, 812. 1390 GENERAL INDEX [REFERENCES Parol — continued. Statute of frauds — continued. Modified; original consideration, 812. Third person: his benefit, 806. Between him and a party, 814. Transaction shown, 814. Time: of performance, 805. Subsequently enlarged, 805. Trusts, parol; lands, 1141. Unilateral contract: Agreement may be shown, 812. Written contracts: At the time or prior to, 276, 804, 808. Extrinsic facts may be shown, 813. Not part of negotiations, lan- guage, 813. Fraud or mistake, exception, 808. See also Fraud. Modified after execution, 812. Essential, after in effect, 812. Not while in escrow, 812. On old consideration, 812. Bule generally stated, 806, 807. "Conclusively presumed," 807. Not vary or contradict, 806, 808, 813. Bule "satisfactorily stated," 807, 808. Apparent, are not exceptions, 807. Not reduced to writing, 808. Fraud or mistake, exception, 808. Clear and convincing, 808. Not mere preponderance, 808. Parol competent as to: (1) Contradict, mere receipt, 807. (2) Consideration, 807. (3) Manner and fraud, pay- ment, 807. (4) Merely passes title, 807. (5) Part only in writing, 807, 809, 813. Three classes, of exclusion, 808. Otherwise admissible, 808. Vendor, and vendee's agent, sign, 808. Not show sale by sample, 808. Written, fraudulent purpose, 813. Distinct oral may be shown, 813. Writing develops: Parol proof excluded, 804. Writing, evidence of a fact, 807. See also Contracts. Frauds, Statute op. Writings. Partial Payments. See Payments. ARE TO PAGES.] Parties, 814. Actions: Admr. 'a sale for own debt, 816. Interested; all in subject matter, 816. Judgment; recover money paid, 816. Legacies; property jointly, 817. All legatees and extrs., 817. Plaintiffs; defendants, 817. Mortgage foreclosure ; administra- tor, 764. Tax deed; restrain issue of, 816. Not administrator, 816. Trusts; suits affecting; all, 816, 817. Cestui que trust, necessary, 818. Chancery rule still in force, 818. Notwithstanding statute, 818. Construe personal clause, 818. Declining executor, necessary, 818, • ■. Uninterested legatee, not bring, 818. Not party till brought in, 820. Numerous interested, 816. Sale to pay equitable liens, 817. Lien holders, plaintiffs, 817. When rights are definite, 817. Appeal; no interest, 81. Cross-examination; more liberal, 310, 311, 312. Discretion; not right, 310. Discontinuance refused, 820. Another plaintiff substituted, 820. Estate proceedings: Extr. or admr. stand for all, 821. Only adverse party, 821. Bepresents the estate, 821. Guardian ad litem; contested claim, 821. Appearance not as a right, 821. Appeared amicus curiae, 821. Irregularity waived by him, 821. With consent of court, 822. No control of litigation, 821. Not a party in interest, 821. Duties, however, applied, 821. Not essential to jurisdiction, 821. Notice of appeal; not served, 821. Evidence: See also Probate Proc. At common law, 195. Broader examination allowed, 817. Adverse, has not right to, 817. Credibility; influenced, 817. Witness as adverse party, 818. Husband and co-defendant, 8&0. Custodian, nominal only, 821. Husband nominal party only, 820. GENERAL INDEX 1391 [REFERENCES ARE TO PAGES.] Parties — continued. Evidence — continued. Rule adopted; nom. or represen., 821. Though subject to costs, 821. Wife not testify, when, 820. Husband, representative capacity, 818, 819, 820. Both he and his wife, testify, 819. Husband and wife iriterest in, 818. Testify though not parties, ' 818. Nominal parties, merely, 819, 821. Representative capacity, 818, 819, 820, 821.' Testify 'as to his intent, 819.' , Wills; legatees and heirs, .parties, 819. Husband and wife of, not, 819. Transactions with receased, 819. Executor; also guardian, 820. Different parties, 820. Named in will; nominal, 820. Judgments: Conclude parties and privies, 816. Jurisdiction; by consent, 815. Jurisdiction of in probate, 647, 651, 65,2. Names: not initials, 816. , -..Adopt name;, bound by it, 820. Entitled by initials, 817. ' ' Estate of ' ' instead of executrix of, 819. Initials for ..Christian, 817,. , Good; better practice, not, 817. Known by two different, 819, Both linked with "alias," .819. Married woman; maiden, 818. Baptismal; conveyances, 8J.8. ,, Entitled to husband's, 818. Not known, any name,, 816. Wrong Christian name, 817. Bill in equity; parties, 818. Corrected; oral proof, 8l8. Wills and contracts, 818. Persons not in being, 820. Represented' by living, 820. . Represented by trustee, 820. Probate proceedings: Conclusive on' everybody,' 819. Executor named, nominal, 820. Heirs and legatees parties, 819. Disqualified as to sec. 4069, 819. ' Unless merely nominal, 819. Unless representative, 819. Husband or wife incompetent, 819. Cannot be agents, 819. Parties — continued. Probate proceedings — 'continued. Heirs, one side; legatees, adverse, 820. '' '"■ ■ ' " ' '" ' Adverse may waive competency, 820. Personem to an extent, 819. Proceedings 'in rem, 819. Transactions with deceased: in detail, . 1105. Executor 1 named, nominal, 820. Means face to face, 816. Nominal parties, merely, 819. Probate j>roc. ; legatees, heirs, 819. Husband and wife of, 819. - Representative capacity, 818, 819. Testify to receiving letters, 816. Genuineness of letter, 816. Witness fees: not recover, 816. See also Husband and Wipe. Trans- actions with Deceased Persons. Witnesses. Partition, 822. Action is equitable, 822. Action pending administration, 823. Common law rule, 822. Severance of property, 822. County Court: Procedure therein, 824. Subordinate to claims, 823. Homestead : Action for including dower, 823. By widow in possession, 823. Perhaps now maintained, 823. Not subject to, or sale, 823.,. Reversion subjected to, 823, Statute still protects, 823. Invest: not of appearing adults, 824. Absentees, ' infants, dower, 824. Jury : , feigned issue, 657. Parol, of land,. effectuated, 822. Binding upon parties,. 822. Title legal and equitable, 822. Personalty : severance, , 822. Incapable of division, 822. Reversion subjected^ 822, 823. Title,, disputed, doubtful, 822, 823. First, be settled,, 823. , . , Will may be construed, 823. Size of each interest, 823. Vested interest necessary, 823, 824. Not vest in future, 823, 824. To bring action for, 823. Will: may be construed, 823. Suspended division, 824. 1392 GENERAL INDEX [REFERENCES Partnership. See Surviving Partner. Part Performance, 824. Acceptance of portion, 474. Agreement to accept part, 825. Inducing other creditors, 825. Either party terminate, 473. .Fraud statute, obviated: Delivery of possession, 824. Frauds, statute of, 470. Give up further litigation, 824. Mere part payment, 274, 824. Payment; no other act, 470, 824, 825. Pull payment, insufficient, 825. Inducement to so act, 825. Operate; as fraud, 825. ■ Other act: possession, 473, 825. Lease for five years, oral, : 825. Part performed; enforced, 825. Possession and money expended, 277. , Eecovery for: Contract price governs, 825. Services void contract,, 473. Void entire contract, 825. Sale, realty and personalty, 823. Part, validated whole, 825. Void purchase agreement, 825. Accept part of goods, 825. Becomes binding, 825. See also Parol. Passive Trusts. See Trusts. Paupers, 826. Definition: of pauper, 828. "Poor" in the statute, 828. Insane; support of, 824. Committed wife, 824. Pauper; question of fact, 827. Definition' of pauper, 828. In want, and no means, 828. Not the poor man, 828. Question of fact, for jury, 829. Relief as well as support, 829. Temporary relief, 827. Physician's services: . County held hot liable, 829. Unauthorized authority, 829. Poor houses: Not fit for children, 826. Some other asylum, 826. Possessed of property, 828. Emergency relief, 828. Distinction recognized, 828. ARE TO PAGES.] Paupers — continued. Possessed of property — continued. Exhaust their resources, 828. Must apply it; sale, 828. Not a "poor person," 828. Effect of support given, 828. "Weak-minded children, 828. ' "Belief" as well as "support," 829. Medical services incurred, 829. Public support of: Enforce relative's duty, 826. Not relieve the public, 826. Liability of county, 827. Express or implied contract, 827. Claim for support, 827. Public's primary obligation, 826. "Belief" as well as "support," 829. Relatives support of: Common law; derogation, 829. Statute is exclusive, 829. Enforce a natural duty, 826. Past support, action fails, 829. Becord show case proved, 827. Statute, is prospective, 829. Town not collect, 829. Town settlement: Lose, withou gaining, 827. Notice; liberal construction, 827. Temporary absence, 827. x Pirst actual relief, 827. Voluntary absence, 827. While not pauper, 827. Town support of: Liable on request only, 827. When entitled to "relief," 829. Question for jury, 829. Weak-minded children, 828. Money, entrusted to father, 828. See also Custody and Commitment. Payments, 829. Acceptance of like contract, 832. Appeal from judgment: Acceptance of conditions, 833, 834. Questioned decision, 834. Accepting part, 83. Appeal from another part, 834. Implied promise to restore, 835. Not waived by payment, 832, 833. Becovered on reversal, 833, 835. Application: several contracts, 830, 831, 836. Debtor, apply as lie chooses, 831. When payment made, 831. GENERAL INDEX 1393 [REFERENCES Payments — continued; Application — continued. ' Mortgage, several notes, 760. Different parties, 760. Neither applies, equity applies, 831, 832. Not presumption of intention, 836. Open current account, 832. Applied to earlier items, 832. Relieves statute bar, 832. Pay without designation, 830, 831, 832. Creditor may apply, 830, 831. Admitted debts only, 830. Rules fully stated, 831. Apply only to direct payments, 831. Creditor; account charged, 1 831. Tacit consent of parties, 10. Authority to receive, 837. Demand of securities, 837. Failure; payor's negligence, 837. Possession of securities, 837. Claims : Admr. pay not purchaser, 831. Amount actually paid, 831. Credit on executor's claim, 836. Defense ; not pleaded, 835. Extinguished; kept alive, 831. Deceased deemed reasonable, 1015. Died without fixing, 1015. Defense of: Affirmative defense, 834, 835, 1015. Not under general denial, 834, 835. Burden upon defense,' 834. Did not shift, 834. Porged securities, not, 832. Matter of defense, 1015. Must be pleaded, 834, 835, 1016. Not in county court, 835, 1016. Realty payment not, 836. Personalty pleaded, 836. No payment, in complaint, 835. Unnecessary to state, 835. Valid securities, are, 833. Decedent's declarations, 665. Definition; of "to pay," 835. "Payment" as discharge, 835. Demand of securities, 837. Demand on sale; credit, 977. • Extinguishes the debt, 831. Part, pro tanto, 831. Interest, in detail, 607. Interest; partial payments, 610, 833. Joint obligations, 617. Land contracts, 663. Legacies generally,! 673. Zimmerman — 88 ARE TO PAGES.] Payments — continued. Limitation statute: Before or after claim barred, 833. Effectual bar as payment, 712< No payment presumption within, 835. Open account; early items, 832. Part payment after, barred, 833. Part payment relieves, 831. Presumption of, 707. Marshalling assets, 744. Negotiable instruments, 837. Person, in possession, 837. Not in possession, 837. Authority; burden, 837. Promissory notes, in detail, 905. Note not, unless agreed, 831, ,834. , Evidence establishing, 835. Novation.; substitution, 773. Paid in full recital, 10. ' : Part, . disputed claim, 10. Part payment to release, 217. Payable at decease, 1013. v Pay, meaning of, 1247. - i , . Permanent improvements ; . > • i recovery, 838. Place of payment, 836. At specified office, 837. Money deposited, payor's; 837. Remittance by mail, 837. Residence of creditor, 836. Pleadings. See Defense of . •■ Presumption of: Common law; residence, 365, 873. Ordinarily against, 834. Overcome by evidence, 833, 836. Recital in deed, 833:' Twenty years past due, 707, 836, 873. ' ; Protest payment: Compulsion of process, 832. Officer's, demand sufficient; 832. Seizure not essential, 832. Void, tax collection, 832. Receipt in full . for part, 832. ; Conclusive, when, 832. Refusal; not defense waiver, 918. Services, in detail, 999. Several liable: Payment by primary debtor, 836. Accommodation .makers, ,836. ' Makers complete discharge, 836. Common law perpetuated, 836. Several notes;- parties,: 760. Common security*: 760. Solido payment right, 835. Assignee has likewise, 834. - 1394 GENERAL INDEX [REFERENCES Payments — continued. Subrogation, in detail, 1043. Voluntary : Excess interest paid, 836. To secure possession, 836. Land conveyance, 1004. Not recovered back, 834, 836. Taxes before delinquent, 834. Not to protect, 834. See also Marshalling Assets. -Parol. Promissory Notes, etc. Permanent Improvements, 837. Claim for: Improve in good faith, 837, 838. Not when wrongfully held, 837, 838. First with acquiescence, 838. Completed afterward, 838. Fraudulent realty purchase, 838. Active participant, 838. Maintenance contract; breach, 119, 121. Part paid; contract fails, 838. Trust funds from corpus, 838. 1 No authority in will, 838. Not even with consent, 838. Trust property purchase, 838. Fraud, with knowledge, 838. Void administrator's sale/ 838. Void contract; possession, 838. Perpetuities* 838. Absolute power somewhere, 840. Regardless of equivalent, 840. Aim of statute, 840. . » Alienation unduly suspended, 840. Trustees sell at any time, 840. Sufficient for statute, 840. Charitable, not religious, 839. Trust provisions construed, 839. City, corporate purposes,- 841. Not being a trust, 841. Devise Valid in first taker, 840. When condition is void, 840. During one life, 255. English doctrine of, 839. ' Equitable conversion, 842. Not apply in such case, 842. • Exceeding twenty-one years,, 839. Express sale direction, 839. Includes all to limit, 839. No equitable conversion, 839. Gross term; and gestation, 841. Existing infancy, 841. Life of longest liver, 841. All candles at once, 841. Confuse provisions, 841. ARE TO PAGES.] Perpetuities — continued. Number, not of life estate, 841. But of lives in being, 841. Personalty : Common law rule, 839. Not in force here, 841. Private trust perpetual, 841. Alienation not suspended, 841. Realty to charitable use,. 842. Not apply in such case, 842. Eents and profits: Successive devises of, 841. Without sale power, 841. Statutes, limit to realty, 839, 841. Suspension of ownership, 841. Differs from power supervision, 841. Terminate in any event, 839, 840. Persons be undetermined, 840. Power may be in suspense, 840. Within the period, 839, 840. Trust to city sustained, 840. Twenty-one years from will, 840. Permissible under statute, 840. See also Charitable Trusts. Equit- able Conversion. t ! Personal Chattels. See Legacies. Personal Estate. Personal Estate, 842. Action fpr admr. 's default, 844. Admr. holds as trustee, 845. Advance to heir: Admrs. may at own risk, 843. Civil law rules; vesting, 1200w Conversion of : Admr. may waive tort, 846. Sue on implied contract, 846. Defaulting; executor-devisee, 846. Estoppel rule applies, 846. Domieil: of owner; law, 842. Power to transfer; bequest, 367. Executor, residuary legatee, 845. Held as executor, 845. Goods and chattels; when, 845. Heirs : title by admn., 844, ' 845. Inheritable: is not, 844. Except heir-looms, 844. Intestate personalty, 346. Joint tenancy, 620. Jurisdiction : Location confers: non-resident, 845. Legatee or distributee, 844. Life estate in : Converted and invested, 843. Specific delivery: when, 843. Executor relieved, 843. GENERAL INDEX 1395 [REFERENCES Personal Estate — continued. Moving house: personalty, 843. Realty, on either lot, 843. "Net personal estate," 845. Presumption of title : Furniture; widow's possession, 843. Possession of movable, 845. Question of fact, 845; Primary, for expenses, debts, 844, 845. Recovery of by administrator, 846. Heirs' equitable interest, 846. Lapse of time, when bar, 846. When heir converted to use, 846. Residuary legacy title, 1099. Sale, of decedents '• Admr. absolute power, 843. General or specific, 843. Without any order, 843. Before administration, 842. Notes and mortgages; no order, 843. No license to sell liquors, 843. Order protects ; under appraisal, 843. Specific legacy; sale of, 843. Usually sold by admr., 844. Specific chattels, 844; Settlement : Between admr. and heir, 846. Prior to administration, 846. Without administration, 846. Party estopped, 846. Special administrator: Conversion not within sec. 3824; 846. Title in detail,' 1096. Vesting of estates; in detail, 1195. See also Sale op Personalty. Title. Personal Service. See Service. Petitions, 847. Adoption petition imperfect, 52. Amendment after appeal, 847. County court, generally, 847. County court rule, 847. Pacts accorded legal effect, 847. "Heirs-at-law"; relationship, 847. ■Jurisdiction, if not demurrable, 642. Kin, in petitions, 658. Petitioners in administrations, 661. Petition, verification, signed, 847.' : Jurat not signed, 847. Presumed not sworn to, 847. Sale of realty, 979. , Statute, strict compliance, 847. No inferences indulged, 847. ARE TO PAGES.] Petitions-^-continued. Verification : Not signed or dated, 847. ■Held^sufficient, 847. See also Administration. Adoption. . Amendments. Incompetents. In- fants. . Jurisdiction. Kin. Parties. Pleadings. Probate of Wills. Physicians. See L'xpert Testimony. Privileged Communications. Pleadings, 848. Abatement and in bar, 852. Bar overrides abatement, 852. Common law rule; 852. Pleaded in same answer, 852. Adequate law remedy: Answer, demurrer, ore tenus, 853. Admission in conclusive, 46. Admission, both pleadings, 857. Might not be conclusive, 857. Affirmative tested by, 58. Amendment : Adding count at trial, 850, 851. 1 Not required to elect, 850. After answer, without new answer, -852, 855. ■■■>■ Averments common to both; 852. General denial/effect, 853. New averments, 852. ' • ' ■ ■ • ' Original answer applies, 852, 855. After appeal, 72, 73. After judgment, proof s, 853. • ' Defect corrected by 'answer, 853. Conform with issue tried, 851. Contract to money had, 74. Discretion broad, 73. Evidence without objection, 850. Indefinite tender; no objection; 856. Considered amended, 856. Immaterial variance, 849. Law action to equity, 855, 856. Now permissible, 855, 856. Law, continued in equity, 856. Limitation statute; discretion, 853. New matter on appeal, 73, 74. Oral decision, amending; 854. Writing, nunc pro tunc, 854. Power of, in county court, 855. Prayer, at trial, 1010. Quantum meruit to contract, 74. Tort to contract action, 850. Substitution; improper, 850. Claim in circuit court, 852.. Allege absence of notice, 852. 1396 GENERAL INDEX [REFERENCES Pleadings — continued. Construed : Code, liberally construed, 849. Common law against pleader, 849. Objection frrst at trial, 849. Greater latitude to sustain, 849. Than in demurrer, 849. ! Contract, express and implied, 854. Express contract, recovery, 854. Not quantum meruit, 854. Recovery on either, 854. Copy served, different, 854. Prevails over original, 854. Corporate character: Of city, not pleaded, 852. Counterclaim : Equitable defense; when, 850. Must be so named, 851. County Court: Amendment powers, detailed, 855. No pleadings except petition, 850. i Appearance as answer, 850. No formal answer, 850. Payment not required to be, 856. , Petition in general terms, 850. Not with particularity, 850. Relief consistent with case, 850. Not specifically demanded, 850. Strictness, not requisite, 850. Defect: corrected by answer, 853. Parties, by answer or demurrer, 853. Denials and admissions : Between words and folios, 852. Equity action: Law relief not grantable, 853. Attention of court, 853. Equitable defense: Counterclaim in law action, 850. Mere defense, insufficient, 851. Estoppel pleaded, 398. Evidence of contents, 47. Federal statutes, 639. Foreign Jaws pleaded, 459. Frivolous : Argument required, 851. Not if required, 851. Mere reading discloses, 851. General denial: Any fact alleged, disproved, 856. Facts by necessary implication, 856. Insanity not proved, 849: Proof that cause never existed, 856. Information and belief denial, 851. Except knowledge presumed, 853. Public record, ignorance, 851, 856. Not available, 856. Pleading points out, 851. ABE TO PAGES.] Pleadings — continued. Information and belief — continued. Representative capacity, 851. Limitation statute: Amended in discretion, 853. All actions; detailed, 710. Amendments in detail, 713, 717. Available, pleading only, 849. Demurrer; action given, 713. Facts must be pleaded, 853. Not in county court, 175. Pleaded or waived, 849. Specially pleaded, 719. Money had and received, 851. More definite and certain, 856. Not appealable, 856. More than one cause, 854. Incidental connected matters, 855. Infallible test, 854. "Negligence or incompetency," 854. Mixed law and fact, 854. Payment: not in complaint, 855. Answer must set up, 855, 1016. Defense of," in detail, 829. Not required, county court, 856, 1016. Prayer for relief, in detail, 867. Amend at trial, 1010. Quantum meruit and contract, 926. Express contract claim, 927. Relief consistent with case, 850. Not specifically demanded, 850. Representative capacity, 960. Right to discontinue, 850. State particular facts, 854. "By his fraudulent acts", 854. "Carelessness or negligence", 854. Supplementing pleading: Discretion of court, 849. May impose terms, ,849. N. Y. rule followed, 849. Unverified, unsigned, by party, 855. Attorney ?s testimony as to, 855. Admissible as to weight of, 855. Inadmissible as 'o admission, 855. Proceeding to trial thereon, 855. Admission conclusive, 855. Evidentiary after substitution, 855. Variance : Disregarded, on issues proved, 851, 853. Neither party misled, 849, 854. Immediate amendment, 849. Proof followed, 849. Ownership of notes; gift, 854. GENERAL INDEX 1397 Pleadings — continued. Variance — continued. . ■ . Payment; specific performance, 851. Pleadings and proofs, 849. Waiver; affirmative matter; 1218. Want of legal capacity, 856. Special demurrer, 856. See also Amendment. Bill op Par- ticulars. Demurrer. ; Prateh for Relief. , Set-off. Pledge. See Collateral Security.., Police Power. See Constitution. Policy of the Law, 857; Contentions not revived, 857. Judicial tendency) 858. Day in court, entitled, 858. Exeeutor : Assume to act as, 858. Unauthorized interference, 858. Exemption laws, 527. Interest, duty, conflict, 857. Limitation statute, favorable, 713: Legacy condition : Capable of performance, 858. Gpod moral character^ 858. Promotive of good morals, 859. Useful trade or profession, 858. Public charity, 858. Care of destitute; 858. Helpless from any cause, 858. Public policy: , Constitutional; is public policy, 859. Constitutional, not against,' 859. Contracts; against, 279, 280. Decisions, when considered,, 859, Determined by constitution, 859. Legislature settles, declares; 859. Upheld whether invoked or not, ,859. Valid statutes passed, 859. Uphold judicial sales, 857. Somewhat -irregular,; 857. Wills, not to avoid, 858. Wills to be probated). 904. Poor Houses and Poor Persons. See Paupers. Post-Nuptial Contract. See Marriage Contracts. Power, 859. Administration realty sales, 979. ; ■ [REFERENCES ARE TO PAGES.] Power — continued. Appointee : Title, on act creating, 865. . Under instrument creating; 865. Authority , by will : i, 'i Express or by implication; 861.' Within sec. 2102, statute,, 861. Beneficiaries not execute, 1149. Contingent interest protected, 865. Deed without apt words, 861, 863. Express after twenty years; 839. Excludes previous sale, 839. Foreign executor : Without probate here, 867. ' Foreign wills, 459. Implied power: "Convert into money" is, 861. Exeeutor forbidden to sell, 863. Implied equitable conversion^ 866. Implied designation of extr., 866. Lease for ninety-nine years, 867. Prohibition implied, 839. Trustee, by implication, 863. Will commanded sale, 866. Implied, exeeutor to sell, 866. Investment of proceeds, 865. Low interest rate upheld^ 865. Injuring no one, 865: Mortgage on property sold, 865. Life estate with power, 861. Power without trust, 866. Consideration valuable, 867. Deed without mention, 866.' Fee to purchaser, 866. Eight to use and consume, 867. Sale power, personalty, realty, 867. Sell,, for family support, 863. Includes here, mortgage i power, 863. .;. Not .simple sale power, , 863. Mortgage without power mention, , 863. | r . ._! , ,',, , ,. . Reformed to include, 863. , Sell if three agreed,, 861. : Mortgage by two invalid, 862. One received his share, 862. ■''' Sale 'by other two invalid, 862. Not estopped, 862: I Sole control, devise power,' 864. Devise power unexecuted, 864. ' Court •' adjudges ' equally, -864. Not disposition in life; 864. Use of corpus, construed, 861. Without apt ppwer .words, 863. Not, , execution of power, ; 863. Only conveys interest, 863.. 1398 GENERAL INDEX [REFERENCES Power — continued. Life estate with — continued. Statute not change rule, 863. Except where no trust, 863, 866. Mixed trust and power, 862, 863. Details only discretionary, 862. Executed also by successor, 862, 863. Not necessarily all trusts, 863. Not naked power, executed or not, 862. Not devolving on successor, 862. Other states, like statutes, 862. Power is imperative, 862. May be compelled, 862. Eelates to portion of principal, 862. "Portion" first discretionary, 862. But not unlimited, 862. "Shall seem to him proper," 862. Mortgage: is conveyance, 862. , Carry out trust obligations, 863, 866. "Sell", may mean mortgage, 866. Language so construed, 866. Future contingent interests, 867. Mortgage, etc., paid by another, 866. To protect remainderman, 866. Delinquent taxes, 866. Power of ; attorney to sell, not, 865, 866. To sell, does not include, 863, 865. In case of simple power, 863. Naked power annexed: Not mixed trust and power, 862. Not succeed to successor, 862. Not always appoint trustee, 863. Not testamentary; valid, 1153. Power of attorney to sell, 865. Not power to mortgage, 865. Quit-claim deed: By one owning life interest, 861. Not will power sale, 861, 863. Not sale under power, 860. Bealty; estate sales, 979. Several executors: All must unite, 861, 864. Proceeds invested in personalty, 861 . One executor sell assets, 861. Sub* 3, sec. 4971, not apply, 861. Two of three sign, 861. Equity not compel third, 861. Unless arbitrary, capricious, 861. Within power of sec. 2137, 861. Sole surviving executor, 867. Testator's purpose fails, 863. ARE TO PAGES.] Power — continued. Testator's purpose fails — continued. No duties upon trustees, 865. Primary object also sale, 865. Valid power to sell, 865. Power not operate, 863. Title of appointee, 865. To sell in a mortgage: Extr. of mortgagee may, 861. Trustees, in detail, 1118. Variation of trust power, 861. Court cannot authorize, 864. Bemainderman cannot vary, 864. Bepairs from principal, 864. Remainderman agrees, 864. Will requires income for, 864. Special power cannot cut-off, 864. Common law and statute, 864. Contingent interests protected, 864. Including contingent devisee, 865. Special power, or no power, 864. Vesting in devisee; extr., 1208. When beneficiary elects, 865. Duty to sell absolute, 865. Made to life tenant, 865. Though election power, 865. See also Charitable Trusts. Con- struction op Wills. Future Contingent Estates. Deeds. Life Estates. Mortgages. .Sale op Bealty. Trust Variation. Vesting op Estates, etc. Wills. Power of Attorney. See Deeds. Power of Sale. See Power. Practice. .See Bules or Practice. Prayer for Belief, 867. Amended at trial, 868. Contract to value of, 868. Consistent with facts, 868. • Court not limited to, 868. Demurrer not lie to, 868. Have established trust, 868. Not prayed for, 868. Nature of action by, 868. Whether legal or equitable, 868. Not go to jurisdiction, 868. See also Pleadings. Precatory Trusts, 868. "All the proceeds", meaning, 870. Charitable trust: GENERAL INDEX 1399 (REFERENCES Precatory Trusts — continued- Charitable trust — continued. Special, "recommend", direction, 870. Void for general purposes, 870. Codicil language, precatory, 872. Former wills considered, 872. General rules; principles, 869.' (1) Technical language unnecessary, 8.69. (2) Precatory; may create trust, 869. (3) Mandatory or discretion; 869. (4) Person, estate, clearly denned, 869. Approved, and followed, 870, 871, 872. Life estates, in detail, 868. Precatory words; aptly stated, 870. Imperative if necessary, 872. Not as far as older cases, 870. Intention is clear, 870. Reasonable certainty, 870. When held imperative, .870. "When not imperative, 870. ' ' Provision ' ', contingent remainder, 871. Specific instances: ' "Desire" trustee appointed, 872. Command or direction, 872. "Full confidence", "request", 869. Intent to create trust, 869. Persons and quantum clear, 869. "Full trust and confidence", 870. Devise, absolute fee, 871. Not "limiting" ownership, 871. "Words held advisory merely, 870. Widow was remarriageable, 871. After-born children, 871. "Provision" undetermined, 871. Testator had in mind, S71. Life estate, remainder, 87J, Widow to 'be trustee, 871. "Wish that" property, 871. Without inheritance words, 871. Will so arrange affairsj 872. Not mandatory words, 872. Wife absolute estate, 872. Trust by intention, 872. Trust in first taker, 871. Intent appears clear, 871. Eead from language, 871. Words of inheritance, 871. Absence, no Significance, 872. Preferred Claims. See Claims. Funeral Expenses. ARE TO PAGES.] Prejudice. See County Judge. Presumption, 873. Administrator; appointment, 874. , Consent of all; presumes all, 874. Season not disclosed, 874. Good legal cause, 874. Adoption : Abandonment finding, 875. Eecord being silent, 875. Agency; household affairs, 539. No presumption of, 887. Claims: Notice for; final judgment, 876. Nothing to the contrary, 876. ■■''■ Deeds: Admr 's. : recitals, license, i etc., ; 874. Prima facie, title, 874. Will was proved, 874. ' Eecord rebut, 874. Delivery at its date, 332, 875. Executive; overcome, 334. , i Life tenant : without knowledge, 1 875. Deed on land contract, 875. Possession under will, 875J Not adverse; no notice, 875. Not to be whole contract, 875. Possession of grantee, 331. Circumstantial rebuttal,: 332. Does not run backward^ 876. Existence at certain date, 876. Error: must be shown, 875. Season - for order, presumed good, 875*. Evidence of witness: Favor of party calling, 874. Existence: . ,, Beneficiary in policy, 876. Person, relation, state of things, 876. Until, contrary shown, 876., Foreign laws; the same, ,458, 873, .. Common law states only, 4581 Not penal enactments, 458. Furniture ; without administration, 843. Home, where living, 522. :''.''<■■•• Household furniture; husband, 534. Innocence, fair dealing, 468. Intestacy, not testacy, 875. Jurisdiction : Judgments, superior courts, 8751 Not, indulged in, 644. Not when reeord shows, 874. Probate notice; record silent, 875. After fifteen years, ' 875. '''' When record silent, only, 874. 1400 GENERAL INDEX [REFERENCES Presumption— continued. Land contracts, 666. ' Law, knowledge of, 673, 877. Legitimacy, 685. Limitation; payment, 707. Marriage ; presumption, 723, 709. Minor : At home; father's direction, • 874. Torts; no presumptions, 800. Necessaries; not liable, 874. Notes: Endorsement; about date, 873. Not to be whole contract, 875. ' Paid; taken up, cancelled, 874. Overcome; other dealings) 874. Payment ; ordinarily not, 834. Overcome by evidence, 833, 836. Eeceipt and deed delivery, 833. Twenty years past due, ■ 836. Purpose of several unlawful, 873. All are presumed liable, 873. Otherwise, purpose lawful, 873. Records: in detail, 943. Piling endorsement, correct, 874. Though antedated, 874. Other business intervened, 875. Probate records, loosely kept, 876. No guardian ad litem or letters, 876. Presumed after 60 years, 876. Judged know law and acted, 876. Proceeded regularly, 876. Executor 's deed valid, 876. Representation in dealing, 464. Services-; relations, 999. \ Signature and writing, 876. No suspicious earmarks, 876. Twenty "year payment; 707, 873. Limitation statute additional, 873 : Wills; execution of, 411. See also Execution or Wills. Pre- sumption of Death. Records. Presumption of Death, 877. Absent twenty-one years, 877. Action for dower, 877. Prima facie dead, 877. Administration; living, 878. Life shown afterward, 879. In other court, 879. No jurisdiction, 878. Void, ab initio, 878, 879. Administration petition, 878. Inconsistent statements, 878. , ARE TO PAGES.] Presumption of Death — continued. Administration petition — continued. Judgment of decease, 879. Life may be shown, 879. Mixed facts stated, 878. Prima facie case of death, 878. Burden of proof: Party asserting death, 877. After seyen years, 877. Diligent search: Inference, left residence, 879. Proof of not required, ' 879. Domieil : Intention controlling 879. Temporary absences, 879. After majority, 879. Proof of births and deaths, 879. Documentary pyidence, 879. Seven years absence: At expiration of seven years, 879. Federal authority, 878. Presumed dead, 878, 879. Time of the death, 878, 879. Question of evidence, 878, 879. See also Survivorship. Principal and Agent, 880. Acts of agent: Fraud, misrepresentation, 883, 885. Ignorant of the fraud, 883. Knowledge and silent, 883. Principal bound by, 883, 885. 1 Private instructions, 885. ScOpe of authority, 885. Admissions of agent, 46, 47. Agent becomes surety, 883. Entitled to rights of, 883. Reeover of principal, 884. Authority or ratification, 884. Agency is not, presumed, 887. Agency not disclosed, 888. Agent himself liable, 888. Agent substitues another, 881. Attorney as collector, 101. Authority of agent, 887. Business' management, 889. Not endorse notes, 889. Every delegation of power, 888. Carries necessary incidents, 888. May be proved by him, 887, 888. When writing not required, 887, 888. , Wife for husband also, 887^ 889. No presumption of agency, 887. Apparent authority, 887. Express authority, 887. Fact of agency proved, 887. GENERAL INDEX 1401 [REFERENCES Principal and. Agent — continued. Authority of agent — continued. Fact of authority, 887. Principal ratifies, 888. , Power to purchase, contract, 888. Not incident to superintendent, • . 888. .. As a matter of law, 888. Receive negptiable paper, 889. Gives power to endorse, 889. Secret instructions ineffective, 888. As to prior apparent powers, 888. Third persons, on inquiry, 889. Authority to bind: Failure, not personally held, 882. Note signed in blank, 885. Within scope of authority, 885. Authority to sell: Principal's debts taken, 882. Both parties by consent, 883. Common law, evidence, agent ; 195. Contract; agent's name, 883, 886. Agency known by other party, 886. Binds principal, 886. Parol admissible, 886. Cannot relieve himself, 887. Disclosed or not, 1 887. Effect of under seal, 883. Not bind principal, 883. Oral evidence of, 883. Principal, avails himself of, 883, 886. Shown by parol evidence, 884. Written not contradicted, 884. Declarations of agent, 882, 885. Of. agency* does not prove, 888. Made out of court, 888 f May be by a'gent himself, 888. Part of res gestae, 47, 882. Or authorized, 882. i Reliance on agent 's claim, 889. Incompetent evidence, 889. Deposits in own name, 885. Agent takes all. risks, 885. Unless principal consents, 885. Distinctions : Agent, factor, broker, 886. And as to title, 886. Escrow; depositary agent, 394. Expenses of agent : i Bound by agent's acts, 885. Have principal charged, 885. Charged in agent's name, 885. Credit given to principal* 885. Though furnished money,, 885. Express orders of principal, 881. Agent liable, if deviated, 881. Sells for check, not cash, 881. ARE TO PAGES.] Principal and Agent — continued. False representations, 883, '885..., . Unknown to principal 885. i Principal bound, 885. , Fraud with other party, 886. Principal, not bound, 886. Furnished funds to buy, 8.86. Not buy on credit,. 886. Principal not bound, 886. Unless has . knowledge, 886. Unless ratified,. 886. ., ■ , . Guardian not minor's ,> agent, 362i Husband, and wife, in detail, 535. Husband as agent:,, . ., Held out, as agent by* wife, 886. , Sign note in her name, 886. Bound, though no agency, 886. His skill and industry, 552, ,553. Trusts of his wife 's, 552, 553. Powers as for third party, 882, 885. Testify; presence or, not, 883. ■ Wife. bound by, acts, 545. , Wife 's, property as his own, 550. Wife 's, separate estate, 882. , Known principal, 888. Principal's credit, 888. , Lien, of agent,: . Advances and services, : 881. Favored in the law, 881. Money, principal no right to, 890. Agent personally .liable,: 890r Part payment, contract fails, 890. Action, recover back, 890. Notice, to bind principal, 883. Brought home to agent, 883;.,; Partnership : . , , , : Each agent of firm, 882. Principal bound : , . i- Accepts , benefits of contract, 882. , Gives sufficient . authority, 885. Justifies dealing with agent, 885. Quasi-trustees : Purchases of principal, 884. Jealous scrutiny, 884. Ratification: in detail, 928. Appropriates benefit, 881. Equivalent to authority, 884. Part, .confirms whole, 881. ■ Sub-agent's acts, binds, 881. Unauthorized contract; or disaffirm./ ,884,; 929. Realty : . Parol, .clearly, established, 886, 888. Written authority unnecessary, 882. Revocation of authority, 884. Death of principal, 884. Depends, on notice to parties,: 887. 1402 GENERAL INDEX [REFERENCES Principal and Agent — continued. Revocation, etc. — continued. Exceptions; agent's name, 884. Estate held liable, 884. Notice, for the future, is, 887. Person of previous dealings, 887. Qualification of rule, 884. Revocation, in detail, 967. Title in trust: Agent takes in own name, 882. Trust companies: Custom of dealing with, 889. Not same strict rules, 889. Plenary authority to act, 889. Principal's "knowledge of charge, 889. Exceed express authority, 889. Germane to subject, 889. Held to be agent, 889. Unauthorized acts, 887. Agent professes so to be, 889. Himself liable, 889. Principal becomes notified, 887, 889. Must affirm or deny, 887, 889. Warranty or representation, 887. Wife, as agent: Assumes to act, 556. Bind husband, contracts, 882. Husband and wife, in detail, 535. Husband or third party, 882. Presumed, household only, 882. Not imply other, 888. Prove her agency, herself, 887. Purchasing house supplies, 553. Signing his name, 557. Testify thereto, 882, 885. Direct questions, 885. Scope of agency, 556. See also Auction Sales. Commis- sions op Brokers, etc. Factor. Husband and Wipe. Ratifica- tion. Principal and Surety. See Sureties. Privileged Communications, 890. Attorney : Acts for two persons, 893. Waiver of one; not the other, 893. Actual retainer unnecessary, 893. Not fee payment, 893. Professional capacity, 893. Between party and another, 893. Attorney not privileged, 893. Character of legal advisor, 891. Contract with third party, 893. Implied right to testify, 893. ARE TO PAGES.] Privileged Communications — continued. Attorney — continued. Not professional, 893. Waiver of privilege, 893. With one not attorney, 893. Credibility: trial preparation, 894. Coaching of witness, 894. Not privileged, 894. Letters to wife, 891. Her attorney testifies, 891. Scrivener witness to will, 891, 894. Waiver; may testify, 891. Representative; successor, 893. Cannot waive as to former, 893. Witness to agreement, 893. Circumstances proper, 893. Mental competency ; competent, 1092. Not waiver of privilege, 893. Will witness, distinguished, 893. Attorneys, clergymen, physicians, 891. Not testify; waiver, 891. Privilege of client, patient, etc., 891. Protected after decease, 891. Husband and wife: Communication between, 892. Testified; after decease, 892. Letters between them, 891. Letters written to wife, 892. Privilege of either, 892. Wife as to deceased husband, 894. Physician: After patient's decease, 891, 894. Living not permitted, 891. Benefit of the patient, 892. Examined as to mental capacity, 892. Not obtained to prescribe, 892. Testify to will probate, 892. Information to treat, 892. Liberal interpretation, 892. Mentality; deed, 1092. Necessary to know, 892. Not general intercourse, 892. Not permitted to disclose, 892, 894. Patient's will, consent, 892. Patient testifying herself, 894. Not waiver for physician, 894. ' ' Permitted " ; no circumstances, 895. Personal injury action, 894. Whether he treated her, 894. Whether she complained, 895. Privilege of patient, 892. Testimony in court only, 892. Waived by patient; not physician, 892, 894. GENERAL INDEX 1403 [REFERENCES Privileged Communications — continued. Physicians — con tinued. Will contest; competency, 894. Information from decedent, 894. Physician's observations, 894. Waiver, by patient only, 894. See also Attorney and Client. Ex- pert Testimony. Probate Courts, 895. .Abolishing a county court, 896. Void, defect in title, 896. County court: Court of record, 896. , Probate powers conferred, 896. Courts appoint assistants, 896. Court determines necessity, 896. Not taken away, 896. Jurisdiction ; Judge of probate, 896. Powers on county courts,, 89d. Ch. 86, B. S. 1849, 896. Eecord must show, 895. , Strictly complied with, 895. Offspring of common law, 895. Powers from statute,, 895. Broad and comprehensive, 896. Same as circuit court, 896. On appeals from its orders, 896. Eevoke, etc., records, 895. Incident to general powers, 895. Order irregularly made, 896., Same as in most states, 895. Statutory; qualifiedly, 895. Strictly complied with, 895. , As to subject matter, 895. See also Jurisdiction. Probate Judge. See County Judge. Probate of Wills, 897. Administration before probate, 901. Appeal trial, in equity, 166. Application for: Grantee of devisee, 900. Tax deed, not estop, 900. Whoever takes title, 900. Or can use as evidence, 900. Common law: Changed by statute, 898. Conclusive as to personalty, 898. Not as to realty, 898. Proved in ejectment, 898. Title muniment, 898. Conditional will, 901. Condition takes place, 901. Not defeat will, 901. ARE TO PAGES.] Probate of Wills — continued. Contestant : Non-heir legatee of earlier, 901. Construction : Eights of a widow, 900. Unlawful, widow, 900. Definition of will, 900. ; Delay in probate immaterial,' 904. Should be proved at once, 904. Devisees : Homestead included, 899. Lands subsequently acquired, ; 899. Take at once on death, 899. Duty to uphold will, 898. Effective: > ■■■ Certificate annexed, 899. Eecord in register 's ■ office, 899. Treated ' as conveyance, 899. Conclusive as to execution, 898. Immediately on probate, - 1232. Personalty and realty, 898. Eelates back to death, 1233. When proved and allowed, 898. When duly proven, only, 900. Effective when proven, 900. Executor named: Appeal, in good faith,' 904. Duty to probate will, 904. Public duty also, 904. Bepresents testator, 904. Foreign wills; probate; effect, 459. Fraud; obtained by, 898. Guardian ad litem; infants, 493. Instrument incorporated in, 899. Judgments of probate: Collaterally: revocation, 899. Fraud procurement,' 899. Forgery precluded, 899. Proceeding in chancery, 899. Subsequent will revocation, 899. Undue influence, 899. . Will, safe from any attack, 899. Jury; practice on appeal, 654. Language not understood, 899, 901. Lease,, not, as will, 900. Natural justice will, 904. Strong nullifying evidence, 904. Will not natural one, 904. Weaker testimony, 904. No right to suppress or change, 904. Notice necessary, 772. Appearance; infants, 772. < Parties: in detail, ,814. . , ■ ..• Estate proceedings, in detail, 814. Legatees and heirs, 900. ; t Probate essential, title, 900. 1404 GENERAL INDEX [REFERENCES Probate of Wills — continued. Proceeding in rem, 901. All the world, parties, 901. Besides specific persons, 901. Binding all the world, 901. Public welfare involved, 901. Testator's rights regarded, 901. Parties to contrary, 901. Proof requisite: Attestation clause, presumptive, 901. Overcome by evidence, 901. 1 Unsupported by memory, 901. Execution of will; detail, 411. Oral evidence is not all, 901. Statutory conditions, affirmatively, 901. Public policy,; to probate, 904. Bights as to wills, 1229. Set aside for fraud, 385, 386, 387. Settlement among heirs, 904. Nevertheless proved at once, 904. Stipulation of all parties, 901. Contest extended, 1157. Parties release rights, 1157. Different disposition, 901. Mental incompetency, 901. Testimony otherwise, 902. Not control the court, 902. Duty to public, 902. , i Perhaps to testator, 902. Stipulation; pro forma contest, 902. Statement : Circuit court, on appeal, 902. Badically changing provisions, 902. Admitted in county and circuit, , 902. All parties, including guardians, 902. Settlement proceeded to judgment, 902. Appeal again to circuit, 902. Former judgment, res adjudicata, 902. Large attorneys fees, 902. Will unambiguous, 902. Trust for long period, 902. Stipulation, immediate payments, 902. Use of income, some trust, 902. Bes adjudicata contention, 902. As to first unappealed judgment, 902. Law: Subverting testator's wishes, 902. Inviolability of trusts, 902. Trust termination rule, 902. Jurisdiction exceeded, 903. ARE TO PAGES.] Probate of Wills — continued. Stipulation, etc. — continued. Power to change rule, 903. Testator's interest, note of, 903. Contract void, where minors, 903. Adults, except as estopped, 903. Judgment, coram non judice, 903. Bight to make will, 903. Includes carrying out, 903. Jurisdiction failure of, 903. For displacing will, 903. ^ Decree, regarded as nullity, 903. Except county court probate, 903. Expenditures subsequent, 903. Unjustifiable waste, 903. Attorneys, etc., must account, 903. Judicial direction, faith, 903. Not applicable here, 903. Executors personally liable, 903. Grounds of public policy, 904. Void judicial direction, 904. County court, full juris., 904. Acts there valid, 904. However erroneous, 904. Time of probate: Any time after death, 900, 904. Twenty-seven years after, 900. Though previous petition, 900. Two wills admitted, 900. As will and codicil, 900. Construed together, 900. Validity of provisions, 899. Immaterial at probate, 899. Wills in general, 1229. , See also Execution of Wills. Priv- ileged Communications. Testa- mentary Capacity. Undue Influence. Wills. Production of Papers. See Writings. Professional Ethics. See Attorney and Client. Profits. See Bents and Profits. Promissory Notes, etc., 905. Accommodation makers, 917. Payment by maker, 917. Action : on note or debt, 908. Amend at trial, 908. Both without election, 908. Debt, if note altered, 908. Payment refusal; not waiver, 918. GENERAL INDEX 1405 [REFERENCES Promissory Notes, etc. — continued. Alterations, in detail, 66. Erasure, interlineation, 907. Explained before offered, *910. Interlined, no blank line, 916. Not forfeiture of debt, 908. ''Order" to "bearer," 67, 907. Attorney 's_ fees : Clause; non-negotiable, 911. Recover in foreclosure, 911. Bill of exchange : Drawer has reasonable time, 915. Negotiable, order or bearer, 915. Order, non-negotiable, 915. Burden of proof; not shift, 919. Cashier : Cash or collateral turned over, 915. Proof of bank's money, 915. Discount authority, 915. Not his own notes, 915. * Certificate of deposit is, 910, 911. Limitation statute, from date, 911. Not within exceptions, 917. Within general statute, 917.. Negotiability, 757. Payable in currency, 757. Receipt from cashier, 912. Consideration': in detail, 215. Defense of without, 908. Estate notes given for heir's note, 912. Deposit account checked out, 912. Heir estopped from defense, 913. Extend time of payment, 917. Failure, by non-performance, 913. Failure, shown orally, 912. Between original parties, 912. Condition subsequent therein, 918. Deceased endorser: Possession proof of, 918. Burden does not shift, 919. Presumption only, 918. Sec. 4192, not apply to, 918. Deceased maker: Signature proof necessary, 914. Thtiugh no objection, 914. Definition of, 910. Demand; rules stated, 335. Dishonored: Interest past due, not, 909. Duress : Not available; innocent holder, 913, 914. ! Endorsement: Deceased endorser; proof, 918; ARE TO PAGES.] Promissory Notes, etc. — continued. Endorsement — continued. Effect of, in blank, 908, 909. Parol, not effect, 909. Payee and another, 908. Payee presumed first, 908. Possession is proof of, 918. Presumed made at date, 907. "Without recourse"; good faith, 910. Evidence of debt, merely, 314. Evidence, prima facie, 912, 914. Without denial, 912. Or other proof, 914. Express contract, . definition, 914. Circumstantial evidence, 914. Fraud: tinctured with, 913. Estopped by negligence, 914. Forgery defense Telied on, 918. Payment of forged note, 918. Admission of signature, 918. May be explained away, 918. Other forged notes, 918. Payment refusal; not waiver, 918. lightning-rod contract, 913. Representations relied on, 469. ^Forgery.. See Fraud. Genuineness: questioned, 910. Appears on face thereof, 910. Explained before offered, 910. Denial, or evidence objection, 910. Gift ; note and mortgage, 482, 489. Note; no consideration, 487. Guardian's notes, 137. Handwriting, in detail, 507. Husband and wife: in detail, 535. Husband's debt; wife's, estate,. 913. Note and mortgage; duress, 913. Transfer before due; valid,! 913. Interest: in detail, 607. Mere incident to debt, 909. Unpaid, not dishonored,. 909. Joint and several, singular, 619, 907. Joint obligations, 617. Judgment ! note : ■ < Entry in any state, 912. Power; name interlined, 916. Stipulated attorneys, fees, 912. Land contract notes, 663. Limitation of actions, 705. . Maturity: , Principal due; not interest, 909. Negotiable instrument law: Ambiguous in 1 terms, 917. Parol, even third persons, 917. Attorney's fees; negotiable, 917, 1406 GENERAL INDEX [REFERENCES Promissory Notes, etc. — continued. Negotiable inst. law — continued. Makes note itself proof, 914. Purpose of law; not radical, 918. General principles same, 918. Regulates negotiable only, 916. Eules, conflict; former decisions, 917. Non-negotiable : Attorneys' fees clause, 911, 917. Interlineation affects, 916. No authority for, 916. Payable from specified fund, 913. Notice of defense set up, 913. Notice to endorser, 913. "On or before", effect of, 914. Omissions, in detail, 787. Parol: Agreement at making, 907. Agreement^ not of force, 911. Agreement not to be liable, 912. Ambiguous in terms, 917. Even as to third persons, 917. Blank endorsement, 909. Consideration failure shown, 216, 807, 812.i Mistake; equitable defense, 916. Payment, manner or fund, 807. Signatures, ambiguity free, 915. Conversations inadmissible,- 915. Corporate, individually, 915. Surety shown by, when, 911. ■ Surrender at decease, 806. Unambiguous; not vary, 916. "Payable after my demise", 917. Payable to bearer: Bona fide payor protected, 908, 909. Executor sue personally, 425. Lost or stolen; payment, 908. Or by blank endorsement, 908. "Order of", by' endorsement, 916. Payment: for debt, 908. Action on note or debt, 908, 913. Burden of proof; on defendant, 913, 914. On person paying, 919. Extend payment time, 917. New note given for, 917. Generally, in detail, 829. Merely suspends remedy, 913. New note, not discharge old, 911. Note merely suspends action, 908. Not unless expressly agreed, 908; 909, 913, 914. Person not the holder, 919. Presentation and demand, 913. Notice to endorser, 913, ARE TO PAGES.] Promissory Notes, etc.^continued. Payment — continued. Presumed, taken up, 874. Received as security only, 916. Agreement not proved, 916. Certificates of deposit also, 916. Renewal notes; old stamped ''paid", 915. Clear contrary evidence, 915. Not intended as discharge, 915. Third person 's note is payment; 916. Contrary indorsement changes, 916. Then like his own debt, 916. In property purchase, 916. Possession; "payable to order", 917. Title in payee, 917. Without, endorsement, 917. Presentation and demand, 913. Protest for non-payment, 913. Renewal. See Payment for debt. Several, one mortgage, 907. Priority, not ratably, 907. Signature: in detail, 507. Admitted if not denied, 912. Corporate name, by F., 915. And others, officers, 915. Binds all individually, 915. Conversations,' inadmissible, 915. Corporate name by treas.j sec. 917. Ambiguous: parol, 917. Word "secretary", omitted, 917. Deceased makers; proved, 914. Genuineness denied, 911. Indefinite proof, 911. Signed in blank: in detail, 787. Holder agent of signer, 910. Obtain other makers, 910. Implied power; blank required, 916. Rules, in detail, 787. Singular, two signing, 907. "Surety" after one name, 907. Stipulation ill: Credit, on endorsement, 909. Payments provable, 909. Surety: in detail, 1052. Shown by parol, 911. Depositing, collateral to new, 911. Sureties discharged, 911. Executory usurious contract, 911. If creditor has knowledge, 911. Release of collateral, 918. Surety pro tanto only, 918. Transactions with deceased, 1105. Transfer : First assignee's good faith, 915. GENERAL INDEX 1407 [REFERENCES Promissory Notes, etc. — continued. Transfer — continued. Inures to his assignee, 915. Though latter had notice, 915. Note secured by mortgage, 910. Like ojher negotiable paper, 910. x Mortgage passes as incident, 910. Not notice of mortgage contents, 910. Suspicion of defect, insufficient, 910. Bad faith, to impair title, 910. Nor mortgage security words, 910. ' ' Without recourse ' ', insufficient, 910. Without final assignment, 907. Void between parties; law, 917. Drunkenness: invalid, 918. Also holder in due course, 918. Ordinary intoxication, 918. Innocent holder enforce, 917. Warrant of attorney, not extend, 708. Whole contract; not presumed, 914. Without date; payment time, 907. Without name; order of, 916. No promise to pay anyone, 916. ' See .also Alterations. Checks. Hand- writing. Joint Obligations. Omissions. Parol. Sureties. Proof of Heirship. See Birth, etc. Heirs. Presump- tion op Death. Proof of Publication or Service. See Publication. Service. Public Administrator, 919. Made without notice, 920. Not collaterally questioned, 919. Rights of next of kin, 919. • After appointment, 919. Temporary situation merely, 91'9. Publication, 920. Affidavit, strictly construed, 920. Corrected, filed, 922. Presumptive evidence, 923. Proprietor, foreman, 921. Recital insufficient, 921. Arbitration, publication, 922. Defective; time, lapse, 648. '■"' Corrected affidavit filed, 922. Effective for jurisdiction, 772. English, legal language, 923. ■ Legal, official notices, 923. Pinal account, only, 771. ARE TO PAGES.] Publication— continued. German newspaper, 920. MoBt likely to give notice, 920. Laws, secretary's certificate, 920. Published volumes, 920. Legal language : public expense, 923. Foreign language, paper, 923. Notice in English, 923. Silent as to language, 923. Papers, different editions, 922. Summons 'publication, 921 Attorney as commissioner, 921.' Foreign judgment, 923. Personal liability here, 923. Order a judicial act, 921. Personal service supersedes, 921. Complete when, 921. Weeks, successfully, three, 921. Computation, of time, 922. First day or last, 922. Five weeks successively, 922. Mixed, insufficient, 922. Four successive weeks,; 922. Mixed, insufficient, 922. Full, twenty-one days, 921. ,,..,, Mixed, held sufficient, 921. Once a week for six weeks, 922. Correct publication, 922. Six 'successive weeks, 923.. Mixed, sufficient, 923. Six weeks successively, 922. Six successive; sale, 921. , Forty-two days, sufficient, 921. Mixed, insufficient, 921. Three weeks successively, 923. Mixed, insufficient, 923. See also Jurisdiction. .Npnqj. Serv- ice. .ii , Public Policy. See Policy op the Law. Public Trusts. See Charitable Trusts. Purchase Money Lien. See Lien. Quantum Meruit, 924. Contracts: failure, 924. Part performance, 924. Contract" price governs, 925. Sickness intervening," 924. Performed and accepted, 924. Treated as rescinded/ 925. When recovery allowed, 925. Without quantum meruit, 925. 1408 GENERAL INDEX [REFERENCES Quantum Meruit — continued. Entire contract: Excusable non-performance, 925. Refusal to pay part, 378. Wrongful discharge, 380. Express contract shown, 927. No recovery thereunder, 927. Infant, orphan, recovery, 924. Negligent, unskilful employee, 925. Allowed to complete, 925. No meeting of minds, 926. Performance prevented, 925. Afterward completed, ,925. Either remedy, 925. Pleading:, both causes, 926. Recovery on either, 926. Pleading express contract, 927. Not recovery on merits, 927. Without amendment, 927. No value proof; void also, 927. No recovery allowed, 927. Services, generally, 999. Son, after at age, 926. Rate or time not fixed, 926. Special instance 1 and request, 927. Testamentary promise failure, '925. Por part services, 927. Unliquidated demand, 925. Carries no interest, 925. Void: indivisible contract, 925, 1011. Contract to deed realty, 926. Service recovery, 926. Entire contract; recovery, 927. Express promise, 926. Services contract, 926. As though not express, 926. Not evidence of value, 926. Eeputation for skill, 926. Services, improvements, 925. Special contract,, 920. Services, improvements, 926. Sunday contract, 927. New contract, or value, 1050. No value proof, 927. Pleading amendment, 1049. ' Eefusal to accept agreed lot, 926. Recovery for services, 926. Will provision failure, 1010, 1011. See also Services. Quia Timet, 927. Legacies and annuities, 927. Probate Court: Legatees, by parol, 928. Settle in advance, 927. ARE TO PAGES.] Quia Timet — continued. Remove title cloud, 928. Tenant in common, 928. Quit Claim. See Construction of Deeds. Deeds. Ratification, 928. Accepting of avails, 929. Ratified unauthorized treaty, 929. Agents; unauthorized deal, 928. Assumed authority as, 929, 930. Part of transaction, 881. Principal, affirm or deny, 929. Appropriate avails, 881. Conditions as to, 929. Knowledge of facts required, 930. Ratify circumstantially, 930. Ratifying; becomes liable, 930-. Also, when sub-agent, 930. Sub-agents' acts, 881. Ratify part; confirms whole, 928, 929. Realty; may be orally, 929. Authorized in advance, 930. Also be ratified, 930. With some formality, 930. Effect of ratifying, 929. Retroactive efficacy, 929. Right of third parties, 929. Infant agency failure, 929. Oral promise to pay void, 929. Not ratification, 929. Infant ratify orally, 928. Plat signed and acknowledged, 930. Ratified, power of attorney, 930. Same formality necessary, 930. Sunday contracts, 1047. Through wrong of another, 929. Insistence on performance, 929. Operates as waiver, 929. See also Waiver. Real Estate, 930. Acquired after will made, 899. Administration rights : Action for use and occupation, 934. When not by admr., 934. Chargeable with rents, profits, 933. Only while in possession, 933. Common law rule, 932. Absolutely to heir, 932. Representative no right, 932. Descends to heir immediately, 932, 935. GENERAL INDEX 1409 [REFERENCES Real Estate — continued. Administration rights — continued. Executor not against devisee, 934. Debts and legacies, 934. During estate settlement, 934. Possession only ■ under see, 3823, 935. None at common law, 935. Extr. 's estate, not intervening, 935. Heir maintain ejection, 933. Until possession taken> 933. Insolvent estate; for creditors, 934. Against assignee of heirs, 934. Possession not duty, when, 933, 935. No debts, no right, 935. Realty and personalty, for; debts, 934. Not barred by see. 3873a, 934. Representative 's right ■ now, 932. Adopted from Michigan, 933. Deed deprives heir of rights, 933. Possession rights, denned, 932, 935. . j. Possession, without sale, 933;- Sell without possession, 933. * When possession, right ceases, 933. Ancient fence lines, 936. Color of title. 931. Considered as personalty, 934. "Pay over and deliver", 934. Contract, convey to decedent, 935. Such lands, realty, 935. Continuing lease contract, 935. Binding on devisees, 935. Rents; not by admr., when, 935. Conveyance fraudulently obtained, 933. Ostensibly for third' party, 933. 1 Held in trust for him, 933. Covenant by guardian, 931. Estate not bound, 931. Devisees take at death, 899. Disposed of at death, 933. In three ways, 933. Government description, 933. Prevails oyer acre numbers, 933. Whether more or less, 933. Income of realty, is realty, 935. Joint tenancy, 620. Judicial notice; subdivisions, 932. Law of location governs, 75, 367, 935. Construction of deeds also, 934. Descent and transfer, 935. Lease; surrender by parol, 932. ''Assignment effect, 932. Lien for purchase price, 932. Zimmerman — 89 ARE TO PAGES.] Real Estate — continued. Notice : Public sale; jurisdictional, 932. Put Upon inquiry, 931. Suspicion of defect, 931. Nuncupative' will, not, 778. 1,; ' ' Option in writing, interest, 934. Surrendered without deed, 934. Accepted and acted on, 934. Parol : Agency to charge, 886, 888. Fraud or mistake,/ 932. Sale of realty, void when, 932. Supply county and state, 932. Partnership in realty 1 , 932. Representative 's fights to, 932,' 993. When no further right, 933. Sale at a sacrifice,' 931. Absence of mistake', fraud, 931. Statute of frauds: Part payment ; no' possession, 931. Surrender of interest in, 934. Without deed or conveyance: 1. "Acts'" of parties cftrJcerned, 934. 2. "Operation" of law, 934. Tax title: : '"; Purchased' by administrator, 934. Title : Legal vests in heirs, 932. Suspicion of defect iri; 931. ' Will 1 devising, passes title, 933. Sae also Deeds. Devises. Equitable Conversion. Sale op Realty. • Title. Real Estate Brokerage. See Commissions of Brokers, etc. Rebuttal, 936. Excludes original, generally, 936. Admission error, when, 936. Case,,, not unfairly upheld, 937. Discretion of court, 936. Equity, moje liberal, 936. Good faith, not error, 936. Material, might b$ error, 9?7i Not abridge party's right, 936. Original and rebuttal, 937. No objection to it, 937. Range, matter of discretion, 937., No abuse, no error, 937. Surrebuttal: Against rule of order, 937. , Receipts. See Settlement. Writings. 1410 GENERAL INDEX [REFERENCES Records, 943. Admissible in evidence, 945. Amended:, ,j;ules in detail, 748. Anciently during term, 943. As to service, after order, 945. Clerical, after the term, 943. Piling:, , £3 B^f ore, term commencement, 945. Same day sufficient, 945. Date presumed correct, 944. Failure to endorse tiling, 944. Left with clerk, 944., Indorsement of riling, 944. Handed to clerk outside, 944, Neglect until later, 945. Effectual for proper date, 945. ,Presumed properly filed, 944. Though paper , antedated, 944. Foreign' record, effect o;f, 943. , Import absolute verity, 944. Not evidence by affidavits, 944. Mistake; in detail, 748. Oral decision, valid, 944;. Announcement is decision, 946. Clerk to enter, 793. Court's intention, ,946. Judgment, not opinion, 946. Not preliminary, 946. Clerk's entry thereof, 944. Formal order unnecessary, 945. Nune : pro tuna entry, , 944. Presumption of good cause, 944. Day, ends and begins term, , 945. Priority of order, 945. Discloses, consent of all, 877. , Error not to be presumed, 945. Guardian ad litem; after six years; 946. . Record fails to disclose, 944. That hearing was had, 945. Minutes fail to show, 945. Not spread on record, 9451 Does not invalidate, 945. : On date noticed, 945. Special statute, 945. Same, case considered, 943. Subsequent, portion, '943., Service; proqf of filing, 996. Stipulation in open court,' 944. Entered; a verity, 944. "Whole record in estate: Before court; each application, 943. Continuous record, 943. Petition for license to sell, 943. Prior record, part thereof, 943. Written, merely evidence ■, of, ,793. ARE TO PAGES.] Records — continued, See also Nunc Pro Tunc. ' Officers. . Orders. Reference, 946. Adinr. ; surviving partner, 948; Clear preponderance, 948. Not disturbed, 948. Compulsory : Account, fifteen items, 947. Containing other matters, 948. Incidental to account, 948. Equity, as law cases, 948. Without consent; account, 947. Conditions of: Absence of any showing, 947. ' Long account, 947. Affirmative showing, 947: Against either 's consent, 947. Record supplies facts, 947. Findings : 1 Dignity of court findings, 948. Hearing is "a trial ' ', 947. Long account; cases, 947. Sound discretion as to, 948. Twenty items sufficient, 948. Order confirming report, 948; ' Not appealable, 948. Other incidental matters, 948. Refer whole case, 948. Outside of county; 948: Large expenses allowed, 948. Stipulation.: , Anysissue in any court, 947. Consent in open court, 947. Finding of court, 946. Referee's fees, by parties, 947. Both liable to action, 947. Signed by the judge, 947. Re-refer case: Failure on material facts, 948. Waiver: ,. . Constitutional, hearing right, 946. Hearing by court or jury, 946., Reformation, 949. Charitable trust deed, 952. Conditions of: Binding contract omitted, 950. Original contract valid, 950. Sufficient consideration, 950. Not voluntary instrument, '950, Decree performance, also, 949. Deed after eight years, 952. Evidence: , Beyond reasonable controversy, 952. Reasonable doubt compared, 952. GENERAL INDEX 1411 [REFERENCES Reformation — continued. Evidence — continued. Clear and convincing, 951, 952. Forfeiture not inserted, 951. Jurisdiction ancient, 952. Laches intervening, 952. Satisfactory explanation, 952. Mistake and fraud, 951. Mistake by scrivener, 951, 952. Mistake must be' mutual, 951, 952. ' Mistake of law, 752. ; Fraud, imposition, 752. Relief, fraud, or mistake, 951. Statute of frauds: Harmony, binding contract, 950. Valid executory contract, 950. Testamentary sense, 952. Third persons f rights, 952. Voluntary instruments, 950, 952, Wife.'s defective conveyance, 950. As to separate estate, 950. , Changed by statute, 951. , , , , Homestead rule as .to,, 950., 95.1, 952. Nor executory contract,, 951. Subsequent death, of husband, 951. Will: Equity not, reform, 258, 949. Making a .voluntary act, 949. No court authorized, 949. Not to supply : omissions, 950. Probate, n,ot 'attacked, ,949. , Reject inserted part in, 950. Arises before probate, 950. Fraud; parol evidence;, $50. . > Relation. See Kin. Release. See Agreements. Joint Obligations. Settlement. Remainders, Vested and Contingent. See Devisees. Futuke Contingent Estates. Power. ' Trust Varia- tion. Vesting' of Estates. Remedies, 953. Adequate in county court, 207, 208. Against decedent's' estate, 25. ' Choice of two funds, 744. Claims ; county court, exclusive, 168, : ; : ; '■' 175. Common law right, 955. Statutory cumulative, 955. Unless public polity, 955. ARE TO PAGES.] Remedies — Continued. Concurrent jurisdiction, 206. Contribution against decedent; 25. Court commissioner 's acts, 299. Deficiency in foreclosure, 954. . Action on notes, 954. Election: '>■'■' Binding upon election, 953. Ignorance' of material fact) 953. Opposite parties fault, 953.' Maintenance ; husband, stranger, 121. Rescind or damages, 124 j- Note or debt; discretion, 908. Tort and' contract, ' 953. " Two inconsistent positions, 954. Any unambiguous act; 954. Conclusive 'evidence, 954. Two inconsistent remedies, 953. Entire contracts, 38. Executors; same as others," 1016. Fraud' induced contract, 954. ' Election, prompt, complete, 465. (1) Rescind whole contract, 954. Act with promptness, 954. (2) Recover damages for breach, 954. And enjoy fruits, 954. Promptness unnecessary, '954. Forfeiture clause: > Enforced, or damages, 955. Land contract loan, 954. ' Action' at law; equity, 954. Dee^d shown to be mortgage, 954J Law of the forum, 280. Limitation statute : Equity barred; legal also, 955. New right and remedy, 954, 955. Appeal; statutory, 955; Rescission, in detail,- 937. Sunday contract, 1050. Taken away, conditions^ 953.' Trust property purchase ; fraud, 1124, 1130. See also Rescission of Contract. '< Removal, 955. ' Admr. de bonis non, 957. Without notice after removal, 957. Failure, within six years, 956. Implied and be valid, 955. Non-resident executor, 955. Not without notice,' 955.' Power of, ' discretionary, 955, 956. Acrimonious, hostile, feeling, 956. Executor chargeable or not, 956. Disabilities not limited, 9S6. 1412 GENERAL INDEX [REFERENCES Removal — continued. ' Statute from Massachusetts, 956. Construction adopted, 956. Without notice to others, 956. Unless court directs, 956. Bents and Profits, 957. Acceptance; forfeiture. waiver, 668. Admr. as against heir, 957. No possession taken, 957. Administration rights to, 930. Apportionment of rents, 959. Paid in: advance to decedent, 959. Breach of contract; profits, 318. Claim for accounting, 959. Survives in trust estate, 959. Crop raised on shares, 957. Cropper, definition of, 958. No estate or ownership, 958. Pacts stated of mere cropper, 958. Landowner, legal title, 958. Not create partnership, 959. Stipulate, as to title, 957. Charge on share, 957, 958. Tenant; estate and ownership, 958. Tenant in common; cropper, 958. Depends upon wording, 958. Destruction by fire, 957. Dower in rents, 371, 374. Future expectant estates, 958. Disposition not provided, 958. Future profits, recovery, 959. Based on past profits, 959. Heirs barred; admr. also, 957. Income of realty, is realty, 95%. Infant, after at age, 957. "Rent from my farm/' 959. Additional provision, 959. Not needed for debts, 935. Successive devises of, 958. - "Without sale power; void, 958. See also Landlord and Tenant. Trust Punds. Repeal, 959. Implication not favored, 959. Negative, express or implied, 959. Reports of Guardians. See Accounts or Guardian. Representative Capacity, 960. "As" before administrator, 960. Contract obligations, 960. Letters and order, 43. Not, in appeal bond, 960. ABE TO PAGES.] Representative Capacity — continued. "As" before Admr. — continued. Without descriptive merely, 960. Passes title personally, 960. Capacity pleaded, 960. Privity, executor, guardian, 604. Proved by cerified copies, 960. Bond and_ letters, 960. Sue as such, when, 424. Wife witness, for co-defendant, 960. See also Parties. Res Adjudicata, 960. Affirmance on other grounds, 962. All questions determined, 962. Appeal pending, 962. Federal practice, 962. Followed here, 962. Not affect judgment, 962. States, both •ways, ! 962. Supersedeas, undetermined, 962. Defendants different, 961. Demurrer decision, 961. In supreme court, 961. Not circuit court, 962. \ General affirmance, 962. Interest, not presented, 962. Ordered payment of money, 961. Absolute or life, open, 961. Part not 1 appealed from, 962. Points: actually decided, 963. Different claim or cause, 963. Only actual decisions, 963. Might have been decided, 963. Rule of law stated, 961. As in N. Y. case, 961. Parties and subject matter, 962. Identity of causes of action, 962. Supreme court errors, 961. Jurisdiction failure below, 961. Re-hearing, correction only, 961. Will probate, stipulation, 902. Jurisdiction exceeded, 902. TJnappealed judgment, 902, 903. Res Gestae, 963. Agent's representations, 963. Accompany transactions, 963. Within his authority, 963. Elucidate character of, 964, 965, 966. Connected with as part, 964, 966. Grow out of principal act, 964. Concurrent with, 963. Contemporaneous only, 964, 965, 966. Not after intervening acts, 964, 9,65. Not after narration, 964, 965. Whether oral or written, 965. GENERAL INDEX 1413 Res Gestae — continued. Intestate's declarations, 964. v << Minor matters connected, 966. Not competent to prove major, 966. Possession of property, 965. Assumption of ownership, 965. And offer to sell, 965. Explanatory of possession, 965. Principle set forth, 964. Approved by, Qreenleaf, 965. Bute by Greenleaf, 966., Prior: to party leaving, 964. Independent prior act, 965. Not declarations after, 9164. Rescission of Contract, 937. Deed with possession given, 940. No fraud or Concealment, 940. Offer of title and possession, 940. Estoppel from denying, 940. Destruction of personalty, 940. Equivalent to rescission, 940. Efficient cause, rescind^) 938 ; Other parties consent implied, 938. Election of remedies, 465. Executory* only, rescinded, p39. ' , Bankruptcy; terminate, 942. Converse of specific .performance, 939. ,' , j One repudiates;, other rescinds, 942. Failure, to make payment^, |9j59. Formal tender unnecessary, .040. Offer to return sufficient, 940. Fraud; generally, 46,3.. Acquiescence after discovery, 941. Discovery of new incident, 941. Evidence as in refprmation,. 939. Clear and convincing, 939. Not loose, inconclusive, 93p, Prerequisites : r i (1) Bestor,ation, original position, 941. (2j) Rescind in totp, 941, (3), Both to be complete, , 941. Exception, part payment, 942. Condition of, 942. . t[ . Eescind in toto, 938, 941. Signature obtained by fraud, 942. Absence of negligence/ 942. Victim only may rescind, 941. General rule, consent of all,,. 938; Need npt>be expressed, 938,, 93,9. Intestate, fraud on, 942 r Maintenance bpnd rescission, 116. Administrator; may sue, 942,,, [REFERENCES ARE TO PAGES.] Rescission of Contract— continued* Mistake v" ,.■■' •■■ • ■ B'vidence required, 939. >, Eescind on account of, 938. Mutually rescind and' vary, .940., • Witihout new consideration,, 940.- Original imported into, 940. Non-performance of other party, 939. Either rescind, when,' 939. •■. <••':£! Failure by sendee,, 939. Sale of land, 939. '. i ■ Sale, of personalty, 939Li, i, , Offer, action in equity, 941, 942. - Not action at law, 941>. 942.' ; i • .One of two wrong doers- dies, 942. : Judgment against .executor, 942. Prevent other performing, 939.; . Withini stipulated time, 939. ! Subsequently perform, 939. _. iQjiantumi., meruit, 939. Seasonable time to reject, 941. i • Both 1 tests applied, 941. Consumption of .article, 941: Determined by inspection, 941. Practical test? only,, 941. ,_■,,,' Beeovery of consideration, 942.,, 'II Bescission must be complete)- '■ 942. Refusal to receive back,i 940. >n , Is waiver of tender, ,940. i, , Bemedies, generally, |953. .. -!,,;, ,Bes'cinded: • , i-" 1 •''', Done or; omitted to,. do, 938. TNot expressly declared, 939. ;! Othef,.party treat rescinded, 938. Sale of lots, by; administrator, 942. See :also, Bond,, tor (Maintenance. Bemedies. , Residence. SeevDoMicrL. Residuary Estates. See Bond to, Pay Debts And. Legacies. ■ Construction of Wills. Lega- cies* Vesting, of i Estates, etc. Residuary Legatee Bond. < ■/ SeeiBoND to Pay Debts and Legacies. Resignation, 966. Equivalent to,refusal.of,,966. Exeeutor or administrator, 966. Not twithout statute, , 42^ 966. :ii- ,, ,',.',. Resulting; Trusts. ,, , See Implied Trusts.,, Trusts. 1414 GENERAL INDEX [REFERENCES Retroactive, 967. Intentions unmistakable, 967. Not from general language, 967. Reversion. See Devises. Vesting or Estates, etc. Revocation, 967. Administration : irregularly granted, 968. Regularly granted; will proved, 972. Agent's authority: Decease of principal; 968. Depends on notice to parties, 970. Notice to agent; common law, 972. Check; fund ; notice, 162. Deed delivery; strife, 331. Fraudulent orders, in detail, 475. Gift revocable till delivery, 482. Life insurance policy: Beneficiary; revoked by death; 970. Mistake, in detail, 748. Orders irregularly made, 968. Vacating judgments, in detail, 1184. "Widow 's allowance, 1220. Wills: After admission to probate, 972. Not collaterally raised, 899. Subsequent will;' not, 899. Whether paragraph revoked, 972. By changed conditions, 972. Brought by divorce, 972. Declarations inadmissible, 972. Paragraph held revoked, 972. Republication to stand, 972. Alteration without obliteration, 969. Want of re-attestation, 969. Codicil revocation effect, 971. Declarations inadmissible, - 969. Lost will, is different, 969. Not part of res gestae, 969. Unsworn testimony, 969. Destroying without intent, 969. Devised specific realty, 970. Contract, nominal sum paid, 970. Will conveys" interest in, 970. No residuary clause, 971. Contracted to sell before death, 970. Common law, revoked, 970. Changed in England, 970. Changed in most states, 970. Expressed a desire to change, 971. "Implied by law," sec. 2290; 969. As at common law, 969. ARE TO PAGES.] Revocation — continued. Wills — continued. Marriage of a woman, 970. At common law, 970. Changed by our statute, 970. Held not to revoke, 970. Great weight of authority, 970. Massachusetts, contra, 970. Removed by implication, 970. Reason ceased to exist, 970. Widow; remarried, husband heir, 970. Did not revoke, 970. Intent; without act to will, 969. Signed, but not statutory, 969. Lost, presumed destroyed, 971. Burden on proponent, 972. Lost will, in detail, 720. Marriage of man; issue, 971. At common law, revoked, 971. Marriage and adoption, revokes, 971. Obliterated signature, 972. Genuine to attestation clause, 972. Once revoked, conclusive, 971. Second will, revoking last, 971. Deposited former, revoke Intent, 971. Did not restore former, 971. Seven ways of revoking, 968. AH others prohibited, 968. Four by specific acts, 968. Three, signed, attested, etc., 968. Signed and dated, ineffective, 969. Failure to follow statute, 969. Statute of 29, Chas. II, 968. Substantially, sec. 2290, 968. Includes personalty, 968. Subsequent will, expressly, 968, 971. Without express words, 968. Two wills; no revocation clause, 1230. Later revokes former, 1230. See also Adoption. After-born Child. Lost Will. Wills. Revoking Fraudulent Orders. See Fraudulent Orders. Right of Way. See Construction of Deeds. Rule in Shelley's Case, 973. "Heirs of the body," 973. Not in force this state, 973. Se6. 2052, opposite doctrine, 973, What the rule is, 973, general index 1415 [ REFERENCES Rules of Practice, 973; Account items objected to, 976. Affirmative of issue, 59. Based on general conditions, 974. County court: Detailed practice points, 976. . , Formal rules ; commentary, 976. Evidence subject to objection, 1117. Extra compensation, 976. Better to itemize, 975. Allowed against rule, 975. Findings of trial court, 976. Some evidence, uncontroverted, 976. Hearing after noticed day, 975. Presumed other business, 975. Or postponed regularly, 975. Becord, valid probate, 975. Infirmity of rules, 974. Judicial decisions, in detail, 634. Law of the land, 974. Judgments, decisions, rules, 974. Obiter dictum: Bouvier 's philosophic rule, 974, 975. All points to be argued, 974. Judicial dictum, 974. Bouvier 's rigid rule, 974. Few opinions without, 974. Definition of, 974, 975. Different views, same conclusion, 974. Few judges do not offend, 974. Great English judges, 974. Judges, lawyers, differ, 974. Not always reprehensible, 975. Origin by mere dicta, 975. Points necessarily considered; 975. Not only result arrived at, '975. Order of proof directed, 975. Discretion of court,! 975. Prescribed by supreme court, 974. Law of the land, 974. Prior will, in will contest, 976. Recital in probate certificate, 975. Sustaining jurisdiction, 975. Trustee appointment, 975. Trial, in detail, 1115. Tried in open court, 976. Proceedings in open, 976. Violations, when material, 976. Immaterial errors, 976. See also Judicial Decisions. Policy of the Law. Trial. i Sale of Personalty, 976. Administrator; absolute power, 843, 977. , . ARE TO PAGES.] Sale of Personalty — continued. Administrator — rcontinjied- ■.,. > Acts in personal capacity, 978. Assumes all liabilities, 978. , Lien on. estate, 978. ,.,. Creditors - and distributees, 977. Holds title as owner, 978. Order; protects,: under, appraisal, 843. Represents no principal, 978. Speqific legacy,; own debt,, 843. To himself, is voidable, 979. Usually converted , into money, 844. Without order, of court, 843, 977. Agreement to bid, jointly, 979. Agreement to buy jointly* [979. Not nudum pactum, 979. Authority to, sell,, 977. Not for debt payment, 977. Contract: actual sale,i 977., Executory only, 977. May be in form of receipt, 978. Disclaim purehasp : , keep goods,,. 977. Evidence : Parties to the contract, 978. Proof of no contract, 978., Factor 's rights as to, t 444, Fraud; confidential relations, 466. Frauds, statute, of,. 47.0. Fraudulent as to creditors, 978. Valid as between parties,, 978. Guardian; inadequate! price,, 466; Implied title warranty, 978. Liquors, without license, 719. Note and mortgage,; no order,- 423. Parol : Agreement to buy jointly, 979. Not within statute, 979. 'In 1 form of receipt, 978.' Not to vary contract, 978. Plain and unquestionable* 978. Not as agreed on, 978. With realty; part perf., 474. Repurchase stock sold, 474. '■ Sale on approval, 978. l ' ; Sale or return, 978. Standing timber interest, 977. Stolen property sale, 978. Surviving partner to himself, 979. , Widow, before administration, 842. Without credit stipulation, 9/7. Re.claim upon delivery, 977. If payment refused, 97.7. See also Auction Sales. Personal Estates;. , Warranty. 1416 GENERAL TNDEX [REFERENCES Sale of Realty, 979. Admr. or (Trustee purchaser, 985, 988. Admix, conveys to E. for herself, 992. Admx. against 1 E. and K., 993. ■ ■ Equity in admx. favor, 993. None without fault, 993. 1 ' Constructively fraudulent, 992. Cured by five year statute, 993. Ten year poss. ; consid. paid, 992. E. conveys to K. : with notice, 992; 993. ■' ■Valid till set aside, 993 : . Verbal sale, effect, executed, 993. Wrong without moral turpitude, 992. Bidder', a quasi party, 109. Breach of professional confidence, 987. ' Curtesy; 'subject to decedents' debts, 314. •'■/' ' Dower not Subject to debts, 314. Good faith, remedies, accounting, 992. Grantees no notice of fraud, '987. Laches, failure to investigate, 987. ■ Suit twenty years after, 986. No actual fraud, voidable, 987, 9'88. May set aside in equity, 987. Not set aside in ejectment, 987. Subsequent bona fides, 987. Statute 1 prohibits purchase, 985, 986. Through third par.ty, 985, 986, 987. Trustees cannot purchase, 985, 989. Injuries or not, 989. Voidable at election, 989. : Unless iwill authorizes, 985. Trustees, in: detail, 1118. Void, used in sense of voidable/ 986, 987, 9.89. , Legal title passed,: 986, 989. Words void and voidable, 986. Administrator . appointment, 984. Must be valid, tO;license, 984. j Agents authority: Need-not be in writing, 9,82,, Ratification,, not, writing, ,9:82., . , Alienation incident . to gift, ,984 :; For. life or otherwise, 984. Life interest, on execution, 984. Bond; 1 '' Not formally approved, 982. Confirmation order cured, 982. Circuit Court: Jrahdulent s'ale; set aside, 208. Not make order of license, 982. ARE *0 PAGES.] Sale of Realty — continued. Claims : Piled unpaid, not' allowed, 992. Justly due and owing, 992. When order for sale made, 992. Conditions of sec. 3919, 984, 985. Waived by guardian for ward, 986. Confirmation order: Appeal from order confirming, 992. Pacts requiring withholding, 991. Fraud unnecessary, 991. False' representations, 990. Not ' conclusive, when, 984. Sec. 3919, complied with, 984, 985. "Court having jurisdiction," 982. Dbmicil of decedent, 982. Contract by letters, 991. Conditional acceptance, 993. Place of payment, 993. Disposition of property, 1252. Equitable conversion: (.''Be treated as money, ' ' 984. Evidence pf other sales, 992. Improper ,to,,show value, 992. Expenses: of the sale, 982. Administration, not in order, 989. Executors must all join, 986. Exercise . best judgment, 986. Not in petition for, 986.; False representations, 981. Discovery before confirmation, 990. Entitled to rescission, 990. Fraudulent sale; by decedent, 985. As to' creditors, 991. By tj-ustee; set aside, 208. Not wholly void, 991. Frauds, statute of, 470. Gross sum to be paid, 993. Nuihber of acres, descriptive, 993. "More or less," 993. Without fraud or mistake, 994. Guardian 's sale : Fraud, to nominal third party, 987. Set aside, after twelve years, 987. Not covenant for ward, 981. Notice to ward, unnecessary, 986. Unlawful' acts of guardian, 982. Wards not estopped, 982. Waive conditions of sec. 3919, 986. Ward settlement, ineffective, 986. Homestead : Administration expense, when, 992. Not liable in ordinary sense, 992. ,;: Parol contract of husband, 985. Part of mortgaged premise's',' 992. GENERAL INDEX 1417 [REFERENCES Sale of Realty — continued. Homestead — continued. Purely lawless proceeding, 991. Minors without remedy, 991. Adverse possession statute, 991. Five year statutes, 991. Ten year adverse possession, 991. Record silent as to, 983. Void, collaterally, 983. Sale without considering, 990. Title held invalid, 990. Inadequacy of price: Not sufficient to set aside, 991. Different with other facts, 982, 991. Fraud unnecessary, 991. Not alone ground for attack, 987, 991. Sale at a sacrifice, 981. Confidence in sales, 981. Not set aside, 981. Index in register 'a office, 987. Not affect validity; 987. Jurisdiction : presumption : As in general courts, 984. Record regular on face, 984. ' See also Power. "Notice. Liability : Differs from personalty* 989, 990. Notes and mortgage by admr., 990. Administration concluded, 990. ,,-, Admr. not personally liable, ,990. . Must be, construed together, #90. Payment out of proceeds only, 990. Representative, not personal, 990. License limitation, 989. Discretion after ..first year, 989. Within two year limit, 989. Laches of administrator, 989. Extension properly refused, 989. Life interest, on execution, 984. Limitation statutes : Accrues from' sale date, 983. Barred by ten and five years, 983. Barred by ten and one year, 988. Minor after at age, 988. County court, three years, 696. Errors after five years, 983. Purely lawless proceeding, 991. Deed gives color of title, 991. Five and. ten year statutes, 991. No accounting right, 991. Ten and twenty year adverse, 991. ©ood faith immaterial, 991. See also License limitation. ARE TO PAGES.] Sale of Realty^continued. » Limitation! statutes — continued. ' l 1 Suspension of administration,' 988. Terminates at discharge, 988. Limited to three years, 173. In county^ :court, ; 173. Market value of land, 1246. Marriage validity raised, 372. Minors : No guardian at probate, 986. Widow elected, 986; ''More or less," meaning of, 993. Mortgage including: homestead, 1 992. Nunc pro tunc order after sale, 992. Order to- include entire estate, 992. Special notice to mortgagee, '092. Nature of a' suit; notice, 772. Notice: .'• As: in other suits, 772. •Collateral proceeding, 982. ' Given as required, or void, 983. Mortgagee^ under sec. 3884, 992. Notice to adverse partSes, vital, 986. / Notice to ward, ' unnecessary, 986. Omission of place, void, 983. - Par with general court, 983. Presumed in general court, 983. Where record is silent, 983. . Proof of '-by proprietor, 982. Recital held insufficient,- 982. '.'Facts not' specified, 982; Record fails to: show, 982. Record isi not silent, void, 983. ! Special jurisdiction, by ' due notice, ' ' 988. -"■"■'■.'>! •/("( ■ i •••'■• •"' 1017. See also Family relation rules. Inconsistent- claims, 1018. Interest, in detail, 607. Limitation statute: Barred i by quitting service, 1011. Considered/though not pleaded, 1017. Implied contract, servant, 1013. 1 .Accrues at completion, 1013. Demand not necessary, 1013. Legacy, oral, later promise, 1017. Begin to run, before promise, lpl,7. , mi | NpJ; new contract, 1017. . Reasonable value only, 1017. Substitutionary only, 1017. Not necessary to plead, 1012, 1017. Payment at decease, 1002, 1009, 1013, l6l5. At or before decease, 1015. Service' terminates before, 1013 1014. Services until decease, 1009, 1014. Void 1 contract; accrues when, 1014. '' Six years before death, 1014. Lost days during term, 1005. Negligent and unskillful, 1002, 1004. Contract not performed, 1005. Hired by the day, 1005. Present ' arid looks on, 1005. Officer of corporation, 1011. 'Orphan infant: Not in loco parentis, 1002. Quantum meruit, 1002. GENERAL INDEX 1421 Services — continued. Payment: affirmative defense, 10.15. , Counterclaim; personalty conversion, 1015. ' ' Deceased deemed reasonable, ' ' 1015. Died without fixing, 1015. Ordinarily must be pleaded, 1016. Court rule provision, 1016. Not county court claim, 1016. Value ' of realty transferred, 1016. Not pleaded in answer, 1016. Nevertheless held available, 1016. Payments, generally, 829. Pleadings: generally, 848. Amendment at trial, 1010. As to payment at death} 1014. For alternative prayer, 1010. Counterclaim of conversion, 1015. Answer shows the facts, 1016. Demurrer, proper objection, 1016. Payment, ordinarily pleaded, 1016. Court rule, unnecessary, 1016. Not county court claim, 1016. Value of realty conveyed, 1016. Presentation of bill for, 1004. Promise : Past work and for future, 1016. Subsequent promise, 1002, 1016. Whether before or after, 1002. Quantum meruit, 1 in detail, 924. Quantum meruit, when not, 1018. Received back' after absence; 1005: Re-ieference, upheld, 1015. Several liable for support, 1013. Skill, general reputation, 1006. Special instance, request, 1015. Performance and value, 10l5. Quantum meruit, 1015. Strangers; family relationship, 1007. Testamentary promise: Cause accrues at death, 1002, 1009. Legacy oral, promise after, 1017. v\ Stated sum; quantum meruit, 1017. . Evidence of; not conclusive, 1017. Substitutionary, promise, 1017. True value inquiry ; interest, 1017. Valid consideration, enforeible, 1017. Past services', stranger, good, 1017. None in fact made, 1002, 1010, 1011. Not barred by statute, 1002, 1009. [REFERENCES ARE TO PAGES.] Services — continued. Testamentary promise — continued. Oral, as to personalty, valid, 1010. Eecovery quantum meruit, 1002, 1008, 1009, 1010, 1011. See also Family relation rules: Settled by payment, 1011. Told that provision made, 1002. Void, realty and personalty, 1008, 1011, 1013. Indivisible, whole facts, 1008, 1009, 1011. Value of: Experts, advisory only, 1005. Not bound, to credit testimony, 1009. Though uncontradicted, 1009. Not by particular cases, 1001. Presentation of bill for, 1004. "Prevailing wages, " not conclusive, 1016. : Court scale within figures, 1016. Prove by customary rule, 1001. Stated sum is evidence of, 1017, Not at all conclusive, 1017. Third person, similar, 1006. True value inquiry; interest, 1017. Void contract:' As though no express, 10,67. Convey realty, oral' void, 1008. Not permitted to perform, 10p8. Devise realty and personalty, 1008, 1009, 1011/1013; Indivisible, whole fails, 1008, 1Q09. Performance not sufficient, 1 1008. Gratuity, rebutted by, 1008, 1009, 1011, Implied promise to pay, 1007. Indefinite of , "duration, lOlg. Not admissible for value, 100'6. Not extend payment time, lOl'l. Partial performance 6f, 1013. "Property left, "realty and per- sonal, 1013. BemoVeV presumption, 1014, 1015. Heaves implied contract, .1014. Express . contract first, 1014. : -..„ l Not ii by strangers, 101.4, , Verbal, , not, within year, J006. Quantum meruit, 1006. : . : ■;.■ Weekly payments, in full, 1006* . f. Work by the day, 1002.: Deduction. for defect, 1002. ■ Ordinary care and skill, 1002. See also Bond' fob ■ (Maintenance. Cons'toeration. Entire ; Con- 1422 GENERAL INDEX [REFERENCES Services — continued. See, also,.. etc.— continued. , , tracts. Master and Servant. Quantum Meruit. Sessions of Court. , See Terms , or . .Court. SetrOfE. Counterclaim, 1018. Accounting action, 1020. | ., , , Decree,. •iWithput pleading, 1020. Accounts after decease, 1019. Action by executor, 172, 1023. Affirmative of issue, when, 58. ,, Between all parties, 1022., ,,, And only parties, 1022. , , Claim not due, 1021. , , Nqt set-off against due, ,1021. Statute; common law, 1021. Counterclaim statute, 1019. Definition of, 1019. Between all parties, 1022. • ,„, Cross-action; mutuality, 1022., Distinct demand, 1019. Term, counterclaim, 1020. , Bemurrer n to pounterclaim, 336, .337. Determined as separate action, 1031. Dismissal qf action, 1019., , Demand in reconvention, 1019. Not absolute right to, 355. Not 'carry counterclaim, 1019, , , Equitable defease,, ejectment, 850, 1019. Equitable setoff permitted, 1022. ,, Insolvent estate; debtor, 1020. Bank lien, if due and payable, 1021. Bank M not against deposit, 1021. Claim not due, 1021, Debtpr to insolvent waive, 1022. Set-off, from estate, 1022. Equal, distribution required, 1021. Equitable .setoff permitted, 1022. Insolvent debt nqfi, due, 1022. ^Different principle, 3-022^ . i$6 authority to waive, 1022. Owing by insolvent and due, 1021. Not due not enforcible, 1021. Purchase claim; setoff; 1020. Bight fixed at decease, 1021. ' Statute; common law, 1021. Judgments mutually set off, 1022. Higher and lower courts, 1022. Legacy; debt against, 678. Legatee's note against Bhare, 1022. Limitation statute in, 29. , , Not to be pleaded in, 29. • ARE TO PAGES.} Set-Off — continued. Liquidated, liquidable, 1019. Must, be, so dominated,, 1020. ... , Objection by demurrer, 1023. .Failure; stand as answer, 1023.- • Partnership claims, 1020.. Action, pn deceased's note, ,1020. Perfectly actionable form, 1019. Pleaded: as counterclaim, 1020. Action by executor, 1Q23. Not pleaded as setoff, 1023. Setoff as counterclaim, 1020.. , .Pleadings, in detail, 848. . Qualify plaintiff's right, 1020. Replevin by administrator, 1023. Not claim against deceased, 1023. Statute, not common law, 1019. Borrowed frqm civil law, 1019. When allowable, when not, 102Q. Withdrawal of setoff, 1020. Settlement, 1023. , Accounts of guardians, 17. Cpmclusive on parties, 20. ; Not with heir, 21. ,, Admr. de bonis non, 1Q25.,, Beceipt to be filed,, 1025, , Attqrney, one side, 104. Before will was found, 1028. After administration, 1028. Effective aB estoppel, 1028. Client settle actjqn, 105, 108. Compound interest included, , 1026. Deliberately made, 1026. < Distinctions : Settlement, compromise, accord, 1026. Ejectment: Estate not settled, 1024. Encouraged, fairly made, 1029. Estate claim with heir, 1029. Before administration, 1029. Binding on administrator, 1029. Estates : Einal judgment six years after, 1027. i Action, within three years, 1028. Of fraud discovery, 1028. 1 Laches, not found, 1028. Amount need not be named, 1027. Nor dollars to each, 1027. Becitation merely; 1027. Might have ordered sale of, 1028. Not found securities' value, 1027. i Partition, mutual mistake, 1028. ' Fraud: and forgery, 1028. GENERAL INDEX 1423 [REFERENCES Settlement — continued. Estates — continued. Partition not called for, 1028. Not undertake to make, 1028. Recitals not essential part, 1028. Not conclusive, "1028. Securities assigned to heirs, 1027. Fraudulent, forgeries, 1027. Preserve for all parties, 1026. Proceeding in rem, 1026. Settlement proof, 1025. Even of sole heir, 1025. Evidence of without objection; 1028. Fraud or mistake, 1024, 1025, lb'26, 1027, 1028, 1029. Proof clear, convincing, 1029. Fruits of, retained, 2. Heirs, convey equitable rights, 1029, " 1030. Admr. to recognize, 1029. Heirs; without administration, 1030V Bound by estoppel, 1030. Creditors may administer, 1030. ^Admr. or executor, also, 1030. Have equitable title, 1030J Note given for personalty, '1030.' Estopped; consideration defense, 1030. , Reliance on note as valid, 1030. Joint obligation, 617. Legatees : Deduct" notes against, 1026. Part only of shares, 1025. Not conclusive, 1025. Receipt in full, 1024. Not foreclosed, 1024.' , Mutual accounts, conclusive, 1024, 1025. Findings of trial court, 102^5. Fraud or mistake, 1024, 1025, 1026. Items not mentioned, 1026. ' , Offers noi admissible, 1029. Part for the whole, 4, 1025. Compromise, 1025. Consideration for .balance, 4. Partners; assumed settlements, 1029. Prior negotiations, i029. Merged in agreement, 1029. Becomes conclusive, 1029. Receipt: in full, 4, 1024, 1027, 1250. Amount named paid, 1027. "Boiler account in full", 1028. Contract form; parol, 978. Elements, of contract, 1027, 1028. Full of all claims, 1027; . , Form of, conclusive, 1027. Inconclusive, 1025. ARE TO PAGES.] Settlement — continued. Receipt — continued. No right to demand, 102. Part for the whole, 1025. Compromise, exception, 1025. Subject to explanation, 1 1025, 1027. Though payor is deceased, 1027. Varied, contradicted by parol, 807, ,1027,' 1028. Rents : Admr. charges' himself , 1025. "Waiver as; devisee, 1025. Services: Legacy to be riia.de, 1026. Receipt, conclusive, 1027. Set aside f or rnistake, 752. Settled before administration, 10241 "Settle", legal meaning, 1024. '"'''; Signer neglects to read, ' 1029. Full opportunity, ' 1029. Six-year limitation, 1026. Administered, as will, 1026. Voluntary settlement, 1.028. Jurisdiction to dismiss, 1028.. "' Passed ' out of existence, 1028. Waiver of appeal, 1026. See' ( also Accord and Satisfaction. Compromise. Judgments. Seven- Year Absence. See Presumption of Death. Shall. See Mat. Shares in Crops. See Rents and Profits. Sickness, 1930. Entire contract, 1031. ,,,,, Excuses perf ormance, 1031, Excuses non-performance, 1030.. Personal- services, 1030. • Recovery quantum meruit, 1031. Signature. See Execution of Wills; Handwrit- .. ING. Sole Beneficiary Bond. See Bond to Pay Debts And Legacies. Sole Executor. See Executors" and 'Administrators. 1424 GENERAL JNDEX [REFERENCES Special Administrator, 1Q31. Administrator, defective, notice, 1032. Power of special, 1,032. Adverse party; will appeal, 79. Included in, 1032. Appeal and stay effect, 1033. Auxiliary; procedure, 1032. "Granting of letters", 1032. Intervene in action,, 1032. To preserve property, 1032.. , Irregular appeal, 1032. Personal representative, 1032. Bring an action, 1032. Subsequent, administration, 1032. Power: Take and preserve property, J032, , , Fully as regular, 1032. , ', , Preservation" of property, 1032. Responsible as such, 1031. Until, admr. qualifies, 1031. , Special, is administrator, 1073. Specific, purposes; procedure, 1032. Special Guardian, 1033., Appoint after general, 1033. No jurisdiction, 1,033. Though appeal and stay, 1033. Appointment, without r^otice,' 1033. * "Whether constitutional, 1033. Specific Legacy. See Legacies. Specific Performance, 1033. Circumstances control right, 1034. Conditions governing refusal, 1036. Discretion; inequitable,, 1034. Pacts of particular case, 1036. "Well founded objection, 1034. Damages, remedy, 1034. Definition of, 1034. Redemption distinguished, 1034. Discretion' of court, 1034, 1035. Not' absolute right, 1036. Essential requisites, 1037. " Fails to- specify time, 1034. Homestead : Parol agreement of both, 1036. ■' Husband's deed alone, 1036. Void; son as against heirs, 1036. Inadequacy of consideration, 1035. Inchoate dower withheld, 1037. - Wife not having signed, 1037. Inheritance rights, extra rule, 54. Land contract; declarations,, 665. Lost contract, evidence, 53. ARE TO PAGES.] Specific Performance — continued, , Mutual relief right, 1035, 1037. Parol land sale, 1034. Essential requisites, 1037. Fraud is practiced, 1036. Part, and offer of, balance, 1037. Possession and part payment, 1036. Possession trespasser, 1036. Tenant in common, 1034. Void, not voidable, 1036. Other states, , contra, 1,036. Parol lease; fraud,, 1034. Estpppel as to statute, 1034. Parol to devise land, 1036. Performance, , possession, 1036. Part, performance; fraud, 1034, 1035. Personalty and land, 1037. Realty, part performance, 1037. Reform, with decree, 1033. Not actual contract, 1034. Signed by one party, 1035, Terms definitely expressed, 1034. Authorized presumption, 1034. Time not of essence, 1035. If possible b,efore decree, 1035. Uncertain description, 1035. Can be made certain, 1035. Spendthrift. See Guardian and Ward, tents. , Incompe- Stare Decisis, 1037. Appellate court's errors, 1038. Corrected without prejudice, 1038. Long stood at rest, 1038. .Stand for all cases, 1038. Once decided by court, 1037. Trial courts guide, 1038. Though may be righted, 1038. Wrong rule firmly fixed, 1038. Rule of property, 1038. See also Judicial Decisions. Statute of Frauds. See Frauds, Statute of. Statute of Limitation, See Limitation op Actions. Statutes, 1039. Administration of estates, 1039. Substantially as most, 1039. Conveniently classified, 1039. Judicial notice, publication, 1039. Law, in detail, 673. QENERAL INDEX 1425 Statutes — continued. Not retroactive, 967. Probate courts, from statutes, 1039. See also Construction of Statutes. Statutes Cited, 1285. Stay of Proceedings, 1039. Ancillary proceedings authorized, 1040. Separate action, pleading appeal, 1040; County court order staying, 1041. , Bond order, acted upon, 1041. Interpret such stay, 1041.,,. . Within judicial powers, 104l 1 Discretion of court, 135. Guardianship appeal: , . From order appointing, 1039. Not authorized to act, 1039. Matter appealed from only, 1040. Sale vacation, appeal : . ■ Suspended the order, 1040. Judgment in' force, 1040. Special appointment,, 1033. Right not restored, 1033. Will probate appeal: Creditor's order after appeal, 1043,:; Executor qualifies before,, 1040. Order notice to creditors, 1040. Effective pending appeal, 1040. Letters not granted, 1039. Stipulation, 1041. Counsel fees out of estate, 1042. Held not binding, 1042. Counsel for client, 1042. Binding on client, 1042. Counsel in open court, 1041. Entered of record, 1041, Imports absolute verity, 1041.., Mandamus to vacate, 1041. Discontinuance not bar, 355, Ends proceeding, 354. ( Material date stipulated, 1042.',- Different date correct, 1042. Parties stipulate action, 1042. .Carried out generally, 1042. , Court not stultify itself, 1042. Precluded themselves, 10,42., Referee report; signing, 1041.,.' Relieve from effect, 1042. Cannot place in statu quo, ,1043. Plain fraud, mistake, 1043. Discretion of .court, 1042, 1043., Waiver of jury' trial, 1042. , , Properly set, aside, 1042. Zimmerman — 90 [REFERENCES ARE TO PAGES.] Stipulation — continued. Will. contest adjusted, 1042. Disallow will; ineffective, 1042. , Not to thwart will, 1042. Substitute different disposition, 1043. Widow's portion; against will, 1043. Stranger, 1043. Administration^ granted, 34, 1043. ■ Cannot move the court, 34, 1043. Admr. de bonis non, 43. s ,■,.. Though subsequent purchaser, 1043. First procure status, 1043. Subrogation, 1043. Compelled to pay mortgage, 1045. Interest by verbal contract, 1045. Possession; improvement, 1045. Contribution 1 between sureties, 1044. American, statute,' rule, 1044. Equity; and law, 1044 1 . Keep judgment alive, 1044. Surety has creditor 's. rights, 1044.' Surety who has paid, 1044. Definition of, 1045, 1046: Independent of contract, 1045.' Misapplied by trustee', 1046. Recognized equity principles, 1045. J Rights of original, only, 1045. Favored by the law^ 1046. Homestead : Mortgage paid by wife; 1045. Laches; third persons, 1046. Limitation period, 1046: Life tenant; incumbrance, 1045. Existing mortgage paid^ 1045: ' Mortgage on the fee, 1045. ' ;;; "' Remainderman; grantee, 1045. Security turns out void, 1045. Loan to pay- estate debts, 1044. Defective mortgage security, 1044. Not treated as volunteer, 1044. Money: for purchase price, 1044. Failure to secure; fraud, 1045. To pay off a mortgage, 1045. Security turned' out void, 1045. Not regarded as volunteer, 1046. Volunteer: ' Interest to protect, 1046. Misapplied ' by trustee, 1046. Without security promise, 1046. No subrogation right,' 1046. Subscribing. See Execution or Wills. ; 1426 GENERAL INDEX [REFERENCES Subscription, 1046. Assigned, subject to equities, 163. Action; part' for all, 1047. Have incurred obligations, 104?. Sufficient consideration, 1047. Liability is a debt, 1047. But not absolute, 1047. Subscription, Sunday, 1050: Telegram attached, 1047. Substitution. See Attorney and Client. Succession Tax. See Inheritance Taxes. ARE TO PAGES.] Sunday— continued. Services, etc. — continued. Ground not set up, 1050. New Contract shown, 1050. Settlement, old account, 1050. Kentucky law same, 1050. Signing of a petition, 1049. Signed, delivered after, 1051. Mailed after, valid, 1051. Subscription; build church, 1050. Subsequent promise to pay, 1048. Tort; defective bridge, 1048. . Navigating on canal, 1048. Unlawful otherwise, in detail, 1177. See also Unlawful Contracts. Sunday, 1Q47. Burden of exception, 1049. Gar 7 lpad of potatoes, 1051. , i Delivery, payment; , Monday, 1051. Oral ; void two reasons, 1051. Contracts mature; next day, 1048. Deed, checks,, recording, 1051. Defense not set up, 1050, -1051. Delivered after, valid,, 1051. Estoppel no aid, 1051. , ' Executed on week, day, 1049. ■ ;; Last ; day Sunday; years, 1050. Days under sec. 4971, 1050. Performed preceding: day, 1050. Lease; absolutely void, 1049. Incapable of ratification, 1049. Not competent to prove,i 1049., Materials furnished, 1050. Account stated, 1050. Unless subsequent promise, 1050. Money loaned; business, 1048, 1049, 1050. . Money paid; and retained, 1049. Not enforced in law, 1049. , Not void for, .all purposes, 1048. , Partial payments, effect, 1051. Pleadings, secular day, 1051. , Might not be conclusive; 1051. Publication Sunday, 1051. Ratification, incapable of, 1049, 1050, , 1051. Dated following day, 1051. Deed, check, recording, 1 1051. New; contract made, 1050, 1051. Recognition, acts, 1050, 1051. Release of damages, 1049. Remedy: neither party, 1050. Not enforce or set aside, 1050. Services quantum meruit, 1049^ 105.1. Amend to conform, 1049. Supplementary Proceedings, 1052. In the action itself, 1052. Substitute; creditor's bill, 1052. Support and Maintenance. See Bond for Maintenance. Widow. Support of Insane, Poor, etc. See Paupers. Sureties, 1052. Additional bond: Insolvency; interest; penalty, 1057. Agent becomes . surety, 883. Appeal bond: Liability thereunder, 1062. Not impeach judgment, 1056. "Appointment of guardian", 1058. Includes qualification, 1058. . Attorney 's negligenee, 21. Bonds, in, detail, 127. Breach fixed by judgment, 1059, 1060. Conclusive on sureties, 1060. Insolvent in insolvent bank, 1059. Permissive; sue; deceased surety, 106L Default not determined, 1061. Without notice, 1061. Though, absconded or died, 1Q59, 1061. Valid promise of principal, 1059. To indemnify, 1059. Concluded by order, 130, 135. Contingent claim: Surety ; deceased principal, 1057. Contribution: co-surety, 1054, 1057. At, law; equity, 1056, 1061. ' y Bound for same obligation, 1060. , Co-surety a quasi trustee, 284. Different instruments, 1060. GENERAL INDEX 1427 » [REFERENCES Sureties — continued. , , ( Contribution — continued. One surety pays whole debt), 1061. Reasonable attorney,'s fees, 1061. Principal 's insolvency immaterial, 1061, Bight may be lost, 284, Discharged powers statutory, 1059. Principal by law, 1060. Fraudulent deed set aside, 1060. Surety not paid .debt,, 1060. , Incompetent's realty sale: Limited t° bond stipulations, 1060. Mortgage, not mentioned, 1060, Sureties and w^rd; not liable, 1060. Indemnify : Implied promise to, 1060. .Not within statute, 1054. Valid oral promise, 1059. Without payment, 1059. Judgment conclusive, 105^, 1060. Liable to third person, 1Q62. Limitation, against eo surety, 1057. Equity, ten years statute, 1Q57. Four-year statute; ward, 1062. , AccrflaJ pi action, 504, 505. Guardian's accounting, 1062., ;Euns from, each installment, 1057. Six years from payment, i057. Married, woman : Accommodation maker, 738, 740. . Law;, equity* 738, ,740. Separate estate;, applicable, 1054. Husband; third perspn, 1054. Mortgage, equity, 740, 743. Not binding at law, 1054,. , , , ■ , .Likewise in equity, 10.54. Not made a party, 1,062, Not concluded or relieved, 10,62, , Obligation of: Nothing by. inference,, 1055. Nqt materially changed, 1055, Official bonds :. , ,,.,.,' ,, Fraud upon his sureties, 1056. Judgment against principal, 10,55. Evidence against sureties,, 1055. Open judgment, when, 1060. Pay when due; sue co-surety, 1057. Without demand or notice, .1057. Probate, bonds: Concluded by proper decree, 1058. ... . Though not parties, 1058. .,, .Contribution at law; equity, 1058. , ,Permission unnppessary, 1058. - , i Contribution; co-sua^ty, 1,054,, 1057. Accounting order conclusive, /1Q54. £RE TO PA Question of evidence, 1072.,: ; Succession, of causes, 1072.. Burden on those claiming, 1072. Eealty; and' personalty, 1072. See 'also Descent and Distribution. Suspension of Power of Alienation. •See Perpetuities. Table of Cases Codified, 1259. Table of Foreign Citations, 1279. Table of Statutes Cited, 1285. Taxation of Estates, 1072. Domicil, taxation purposes, 366. Income,, annuities i> ■■■••■ ■ \< •■ Could be liquidated, ■ 1074. Inheritance tax paid, 1074. Whether trustees must pay, 1074. Inheritance taxes, 588. Non-resident's income, 1074. ' Property from Wis: courts; 1075. Trustee and securities,, without, iV.I 10751 • • "■ •■'■ '•'>' ■■ ' Sources within state, 1075. Not' necessary to file claim, 1074. Personalty: " Assessable to administrator, 1073. Not yet been appointed,. 1073. >■ < Possession: not relate' back, 1073. When in possession as such, 1073. Assessed to estate, when,.. 1073. Decedent, a resident of A., 1073. Admr.- a resident of O., 1073. Not in possession nor held, 1073. Not' decided as to Aj's right, 1073. District! where owner resides, 1073. Where administrator < resides, 1073. Re-assessment, previous 'years; 1073, 1074. Administrator; in town, 1073. Appointed! before May 1, 1074. Assessable against executors* 1074. Back taxes, omitted; 1074. ; Bedause tax roll, ' evidence, 1074. Burden 1 On executors;: 1074. City, not' against estate, 10'73. If executors have personalty,' 1074. Eealty: without the state,' 1074. Special admr: is administrator, 1073. Trustees ; one in' state,' two ' without, 1075/" " ' ! ' Resident receives income"; taxable, 1075. '' '"' ' Voluntary; paid before delinquent, 834. ' _ . t ; " , '" t ' See also Inheritance Taxes. Telegrams, 1075. .,.,',; ■•, ^ ,;, . Dispatch, delivered, first, 1075. Default,, contents shown,! 1075. Message ^received,, original, 1075: : Por evidentiary purposes* 1075. 143Q GENERAL INDEX [ REFERENCES Tenants in Common, 1075. Each seize.d of his share, 1076. Lease, possession, expiration, 1076. Established by evidence, 1076. Hold-over presumption, 1076. Otherwise, original- tenancy, 1076. One tenant: Convey undivided part, 1076. Lease distinct portion, 1075. Oral contract of purchase, 1076. Possession once, obtained, 1076. •Can hold by force, 1076. Property not severable: One not exclusive possession, 1076. Property severable: Creditor may seize share, 1076. One could take share, 1076. , Become owner thereof, 1076. Take property by force, 1076. Tender, 1077. Check: deposited in court, 1077. Good to stop interest, 1078. Ground of objection, 1078. Claim on land contract, 1077. Conclusive admission, 1078. Due to tenderee, 1078. Where not essential, 1078. Court rule; legal actions, 1078. Dispute as to amount due, 1078. Tender kept, good, 1078. Equity: Court rule, legal actions, 1078. More liberal than law, 1078. Offer to bring money in, 1078. Legal tender : i :Absolute and unconditional, 1077. Check good when, 1078. : i When stop interest, 1078. Mere offer to pay, 1077. Money, in detail, 755. Npt necessarily money, 1077. , Pa,per currency, bank-notes, 1077.; Unless objected to, 1077. ,. What constitutes valid, 1077. Without condition, 1077.' Bescissiqn : Tender to return, 1077. Unconditional offer, 1078. Not part for whole, 1078. Valid legal tender, 1077. Without condition, 1077. Waiver : Eefusal to accept, 1078. Bepudiate contract in toto, 1078. See also Monet. ARE TO PAGES.] Terms of qourt, 1078. Adjournment: No specific time, 1080. Subject to judge's order, 1080. Adjourn from day to day, 1079. , Effect of omission, 1079. County courts: Adjournments; continuances, 1080. General and special terms, 1080. Final adjournment, 1079. Not delegated to clerk, 1079. Motion; not decided, 1080. Entered at next term, 1080. Order made and- signed, 1080. Presumption of regularity, 1080. Power as to business, 1079. Limited by abuse, 1079. Sessions of court, 1079. Many within term, 1079. Term: Anciently a single session, 1079. Continuance of term, 1079. May be many sessions, 1079. Until court acts, 1079, 1080. Until next term, 1079, 1080. End and commencement same day, 1080. Presumption of regularity, 1080. Testamentary Capacity, 1080. Competent giving directions, 1085. Presumption to execution, 1085. Declarations of testator, 1088, 1089. Evidence : Affirmative proof required, 1087. Before sanity presumption, 1087. Burden then on contestant, 1087. Attesting clause presumption, 1090, 1091. Many years later; wit. memory, 1090, 1091. Attorney, witness testify, 1092. Burden upon contestant, 1084, 1087. Presumption; some proof, 1084. Confidential relations, 1085, 1086. Burden of proving fairness, 1086. Declarations of testator, 1088. About time of will, 1088. After the will execution, 1088. Prior and subsequent, 1089. Expert testimony detailed, 432 r Guardianship proceedings, 1092, 1093. Persuasive effect, 1092, 1093. , GENERAL INDEX 1431 [REFERENCES Testamentary Capacity — continued. Evidence — continued. Impeaching scrivener, witness, 1089, 1092. Own contradictions, 1089. Incompetents, in general, 569. Insane persons, in general, 595. Letters, during year prior, 1083. Mental capacity, detailed, 432. Natural justice will, 1093. Strong evidence required, 1093. Non-expert; property given, 438, 440. Discretion of court, 439. Rules; mental capacity, 432. Insanity questions, 432. Non-expert opinions rejected, 1089. Much favorable evidence, 10891 Opinion without grounds, 1088. Physician's lips sealed, 1091. Physician, witness, impeached, 1091, 1092. Witnesses; against experts, 1092. Physicians present; witnesses, 1093. Against experts; witnesses, 1093. Physician, witness, testify, 1092,, if f Privileged communications,, detailed, 890. Scrivener, and witnesses favor,, 1091. Physicians, experts, contra strong, 1091. ' ' Seemed intelligent, reasonable ' ', / 1089. Sufficient at deed execution, 1087. Overshadowed by circumstances, 1087. See also Guardianship - ; Slight affirmative required, i087. Burden on contestant, 1087. Wife as to knowledge of will, 1085. Wife; deceased husband, 1091. Guardianship: Capable and comprehending, 1087. Condition been the same, 1088. Adjudicatiop admissible, 1088. Does not disqualify, 1087. Future presumption, 1088. Pending at will making, 1093. Piling, effect on wills, 1093. Physical disabilities, 1093. Record evidence at the time, 1088. Testimony substantially same, 1092. Not res adjudicata, 1092.' Persuasive in effect, 1092, 1093. Ward's declarations, 1088: After execution of deeds, 1088. ARE TO PAGES. ] Testamentary Capacity — continued. Ignoring existing heirs, !d86. Incompetency indicia : Approved by bowing head, 10,90. Attesting clause presumption, 1090. , Corroborating evidence, 1091. Contents from widow, 1090. Years after, witness old, 1090. Capacity up to signing; death, 1091. Change of former habits, 1089. Greater susceptibility, 1089. Immoral tendencies, 1089. Eccentric, arbitrary, prejudiced, 1091. Prejudices explainable, 1091. Relationship not determine, 1091. Referring to deceased heir as liv- ing, 1092. Not overcome strong evidence, 1092.' See also Insanity indicia. Suffering, responded by nods, 1090. Will imposed, on him, 1090. Tortured with pain, 1088. Not incoherent Or deluded, 1088. Violent, suspicious, unreasonable, 1090. Incompetents, in general, 569. Insanity indicia instances: Belief in clairvoyants, 1083. Dementia and delusions, 1083. Despondent ; , attempted suicide, „, 1089. " Afterward became insane, 1090. Seenied intelligent, reasonable, 1089. Epileptic fits; unconscious, 10,84. Before and after making, 1084. ,, Faculties up to fit, 1084. Poisoning motives imputed, 1086. Otherwise of sound mind, 1086. Separately or collectively, rj .1083. Softening of the, brain, 10,86. Mind clear, at times. 1086. Nervous prostration, 1086. Spiritualism; eccentricities, 1085. High intellectual powers, 1085. Spiritual' mediums, dreams, 1083. Wife unchaste, son, illegitimate, 1084'. >;■ :>- i'... i \ " - .r'*-j'£ Delusion, without evidence, 1084. Insane persons, in general, 595. Insanity rules of lawr' '■'■• i'.'"-''.) ; "' •'! Delusion; impute motives, 1084. 1432 GBNE^AIi INDEX I REFERENCES Testamentary Capacity — continued. Insanity rules, etc. — continued. Distinctions, difficult, 1084. Sane persons so afflicted, 1084. Hallucinations inoperative, 1083. Will unaffected by, 1083, 1084. Lucid interval, 1230. Old-age insanity, 1093. Lucid Intervals, 1093. Partial insanity may defeat, .1083. Presumption of sanity, 1084. Burden upon contestant, 1084. Some sanity proof required, 1084. Test of insanity, 597. ( Mental capacity; insane persons, 595. Bules governing: "Correct, statement of the law," 1081 By Davies, J., of New York, 1082, 1083. Capacity to comprehend, 1082, 1084. Collect without prompting, ,1082. By Seiden, X, of New York, 1082. Some intelligence, insufficient, 1082. By Chancellor Walworth, 1082. Sound discerning mind, 1082. By Bedfield, J., of Vermont, 10^82. Foregoing N' Y. rules,. 1082., English and American cases, 1082. Beferred to and upheld, 1085, 1088, 1090. Understand the nature, 1086. Affections not poisoned, 1086. Appreciate the claims, 1086. No insane delusions, 1086! Test: not best or wisest will, 1090. Belationship' not determine, jt091. Testamentary qualifications, 1090. Weakness of understanding, 1082. Person ninety years old, 1085. Clearer proof required, 1085. More easily influenced, 1085. See also Incompetents. Insane Per- sons. Privileged Communica- tions. Testamentary Guardian. See Guardian and Ward. Testamentary Instruments. See Wills; Testamentary Trusts. See Trusts. ABE TO PAGES.] Testimony. See Evidence. Impeachment of Wit- nesses.. Witnesses. Time, 1094. Computation : Appeal; judgment entry, 1095. Days or weeks before, 1094. Posting of notices, 1094. Specific instances, 1094, 1095. Statute, publication only, 1094. Tax deed; time issued, 1095. Extended by parol, 1094. Fraction: not considered,! 1094, 1095. Hearing date later, 1095. EeguJarity presumed, 1095. Night and day time, 1095. Per diem compensation,. 1095. Splitting up of days, 1095. When, and when not, 1095. Priority presumption, 1094. Acts on the same day, 1094. Statute, publication only, 1095. See also Publication. Title; 1096. Absolute deed as security, 1101. .Legal title in grantor, 1103. Satisfaction clears, 1101. Administrator : Has title to personalty, 1097. Not vindicate realty title, 1097. Adverse possession: Always strictly construed, 1Q97- Certificate of descent, 1104. Deed, grantor to another, 1104. - Manual delivery, ll04. Lett^ of the, statute, 1097., Not marketable title 1101. Quit .claim deed, 1104. Heirs omitted, 1104. Tax title claimant, 1098. Any actual occupation, 1098. Ten-year possession, 324. Void county court judgment, 1098. Possession before; not apply, , 1098. Certificate pf descent, 1104.. Chattel mortgaged properly, 161. Claim of deceased, 1102. Lapse of time, immaterial, 1102. Sole heir; administration, 1102. Cloud on title: Bond for maintenance) 12,3, 125. Defect, apparent cloud, 1103. GENERAL' feSfDEX 1433 [REFERENCES Title — continued. , Cloud on title — continued. Enjoin homestead sale, 1098. ' Sheriff 's deed issue, 10*98. 1 Not equity, if law remedy. 1098. Color of title, 1097. Void administrator's 1 deed, 1101, 1103.' ■■' " ' " ■■ , !| Improvement recovery, 1101, 1104. Contested claim title, 1097. ■ '■• Conversion; 'title tried, 1016. Decease; passed three ways, 392. Deed; execution,' delivery, 1104. ■ '■ Quit claim, 1104. ' ' Destruction; not • effective^ ' 394. Devisee of implied trustee, 327. Devisees: : < ''■•• !■•< Administrator not vindicate/ 1097. Also exeeutor with power; 1100. Deed by devisee passes title, 1100. Disposition! of property, 1252. Equity: ' i ■> .•: ■•>> ' Acts on whole title, 1101. Future, vested, contingent, 1101. Escrow title passing, 393. Estoppel as to, 396. > t Foils; in part, 326. Foreign wills,, 459. ! , Fraud of creditors, 1101. Voidable, not void, 1101. • Incumbrance; lien, 1243. , Legal titte: ,-. : ,'> , ,, ■ <■'. Personalty in administrator,. 1097. Bealty jn the; heirs, 1097. Life estate; in possession, 1103. Erroneous judgment, 1103. , ; Adverse possession, , 1103. Eemainderman 's rights,, 1103. Life tenant purchases, 1102., , Contribution:;, remainderman, ,1102. Deeds to, third party, 11Q2.,:,, Foreclosure sale, 1102- ,,, Improvements, taxes, 1102. Eemainderjman 's rights, 11,03. Subrogated to, , a; lien, 1102. Marketable: ,, Adverse possession not, 1101. „ , Not open to, judicial doub.t, 1100. Not where action necessary, { 1101. Delivery passes title, ,333,, , , , Redelivery, not revest, 33^. Not Where parol .necessary, lj.01. , Tax 4^e,4 extinguishes, title, ilOO. Tax deed, is marketable, 1101, 1103. ' Twenty years, possession is,, 1101. Payment of' taxes, lloi. am ko pages: i Title — continued. Mortgagor's decease; to heirs, 1100. Conveyance by heirs to mortgagee, 1100. Note, administration only, 1100. ' Partnerfenip; legal ? equitable, 1069 v Personalty: Administrator has title, 1097, 1099. Chattels; sale' of, .stolen, 1099. Implied title Warranty, 1099. , Civil law; English, contra, 1099. General American rule, 1099. Later English cases,, 1099. r Sale without title, 1099. Claim of deceased husband, 1102. Sole heir;' administration, 1102. Custody in bailee, 1104. 1 'Until donor"s decease, 1104. In administrator's hand's, 1102. Passed by circuit court, 1102. Legatees and kin, not, 1098. By administration only, 1099. Note and mtge. to administrator, 1100. " 'I"'"' '■ Where money paid to heirs, 1100. Eesiduary legacy, same, 1099.,/; .'i' 1 Sole ; heir; not right to claim, 1102. Administration; only, 1102. Lapge of, time; immaterial, 1102. Possession,: prima facie, 1098, 1100; Against void itax title, 1101., Personalty , a'lsp, 1099. ',-,., , , Power : apppintee 's, 865. ,..!•,/ Quit claim deed; interest only, 326. Twenty ..years,^ ina^ketabl/s, llQl.-v Partial sale; part performance, ,. ,■ ■ 1 M 3 -; ,!■ <„ ;' Eealty:' " ," !' . .' ji|i Passes, by. ^he, will, 1101. Court's power to, assign, 1101, , ."' 1103. | .' | , ii '•' ,.. Vests in heirs at decease, 1097. . Subject'to debts,, etc., 1097,110:!. Vests in. devisee at ; depease,, 11Q3. Buns to centre of street, 1097. Trustees: in detail, 1118. Beneficiaries cannot convey,. 1149. Bond before title vests., 1128, 113.1. Pending life estate, ip99. Coupled with.' trust .duties, 1099. Violation of trust, 1097.' ". Passes title, when, 10^7. Vesting of estates, in derail, 1195, Void : ' administrator 's deed, 1099. , Color of title; improvements, 1101, ■ m •■•"' , • 1434 GENERAL INDEX [REFERENCES Title — continued. Void; — continued. Presumption evidence, 1099. Warranty of title, 1220. Widow, sole devise^ elects, 1099, 1100. Fee descends to heirs, 1100.. Wife's name; husband's, 555. Will: , . , Ineffectual until probate, 1099, 1232. Passes title, when proved, 1097, 1098. Hoi. , Issuing Jetters, immaterial, 1097. Eelates back to the decease, 1098, 12 33-,i ' ... , . .,. Taking benefit; not contest, 1100. , . Not apply to other, persons, 1100. Vests at the decease, 1103. Decree; rights deceased had, 1103. See aljso Delivery. Escrow. Per- sonal Estate. Eeal Estate. Vesting op Estates. Tombstone. See Monument. Torts, 1104. Executors, administrators, 1104! Father for infants,- 1104. Distinguishing features, 1104. Homestead, judgment, 1104. Infants: liability, 1104. Compensatory damages, 1104. Negligence ; tender years, 1104. Transactions with Deceased Persons, 1105. Actual presence of each Other, 1106. Admissions of deceased, 1107. | Against party 's title, 1107. Negativing gift; intent, 1114. Not self -saving declarations, 1112. Though door opened, 1112. Admissions of living party, 1108. Against his interest, 1108. Paynient £y deceased, 1108. Adverse party also present, 1114. , Testimony admissible, 1114. Agent deceased : Deposition of, introduced, 1107. "Not enable testimony, 1107. Settlement made with, 1107. Agent pay testify, 1107, 1108. As at common law, 1108. Board and lodging: Quality, time, proper, 1108. ARE TO PAGES. ] Transactions, etc. — continued. . Condition when a fitness, 1114. Competent by resigning, .1114. Prior thereto, immaterial, 1114. Cross-examined, as adverse,; 1112, 1113. Details not covered, 1113. , Door opened, 1112. Deceased might refute, 1114. Deeds : Ambiguity in language, 1107. Deceased grantor, 1107. Grantee as to delivery, 1107. Testify to possession, 1107. "Saw deed in posssession, " 1114. Shown. for examination, 1114. Delivery: to deceased, lllll Denial of return, 1111. From deceased; possession, 1114. Inference of same, 1111. Deposition before decease, 1114. Still inadmissible, 1114. Gift from deceased, 1109. Executor, as to declarations, 1114. Not endorse donor's name, 1110. Possession before decease, 1110. Guardian not agent, 362. Inferences of transactions, 1111, 1113. Immaterial if competent, 1113. Incompetent as transactions, 1113. Insurance : Not through insured, 1111. Beneficiary testify, 1111. Letters : Identify the signature, 1109. Notified the deceased, 1109. Not transaction personally, 1109. Received from deceased, 1106, 1109. Testify to contents, 1109. Being lost, 1109. Means face to face, 1106. Nominal party; admissible, 1112. Executor, declarations, 1114. Note: Agency to wife, to collect, 1107. Testify as agent, 1107. Alteration striking out, 1107. Contents of note, 1111. Deceased payee, 1111. Delivery to deceased, 1111. Endorsement at delivery, 1109. Furnished, deceased's credit, 1109. Inferences of delivery, 1113. Payment to deceased, 1111, 1113. Notified deceased party, 1109. Not by letter, 1109. GENERAL INDEX 1435 [EEFEBENCES Transactions, etc. — continued. Objections : Adverse party only object, 1110. Competency of witness, 1108, 1110. ■ . 1 1 ■ . Specifically i to witness, 1108, ; 1110. Testimony objection, insufficient, ' 782, 1108, 1110. Officers of corporations, 1110; 1114. Competent by resigning, 1114. Condition when a witnessy 1114. One not an actual party, 1107. Derives interest or title, 1109, 1110. Eeal party in interest, 1107, 1110. , Opening door,- opposite party, 1110, ; 1115. All matters relating to, 1115. By witnesses not parties, 1113, 1115. Disqualification removed, 1113. Not as to specific duties, 1115. Rebuttal and surrebuttal, 1113. Called as adverse party, 1111, 1112, 1113. Not self-serving declarations, 1110. Order of proof, yield to statute, 1113. With deceased agent, 1110. Order of proof, yields to statute, 1113. Parties, in detail, 814. Nominal; representative, 814. Payment to deceased, 1111, ,1113. Receipt of deceased, 1113. ,,, Explaining contents, 11-13,,. 1114. Self-serving declarations, 1112. Services : Contract; cross-examination, 1108. Performance and value, 1112. Personal, performed, 1115. ' Time and labor spent, .1108. Payment implication, 1108. Signature of deceased, 1109. Third person with deceased, 1110, 1111. Party participates, act or word, 1111. Party testify to, when, 1110. Did not participate, 1110. Presence not affect, 1110. Settlement with party's note, 1111. Presence affected settlement, 1111. Strictly personal between them, 1111. Third person also parties, 1112. Evidence improper, 1112. Third person, with witness, 1111. Deceased negotiated sale, 1111. Claim against estate, 1111. Inferences as to deceased, 1111. Title npt from deceased, 1109, Hit). ABE TO PAGES.] Transactions, etc. — continued. "Waiver of opposite party, 1110. Calling his opponent, 1110. Refraining from objecting, 1-110. Wife, party, deceased husband, 1112. Will: Executor, proponent only, 1112. Nominal party only, 1112. Testimony admissible, 1112. " Heir, witness, party, 1110. , Called by adverse party, 1110. Husband or wife, nominal, 819. .,', ,., Proponent, beneficiary, 1109. See also Parties. Transfer Tax. See Inheritance Tax. , TriaJ, 1115. Re-opening; further proof, 1116. Discretion, of court, 1116. Appeal from county court. 111?., Evidence presented, 1116. Heir consenting at probate, 1 1117. Not estopped, 111,7. , Omitted in, county, .court, 1117. Trial de novo, 1116, 1117. , Conduct of trial, 1116. Court or referee: ,..., Evidence- objected to, 1116. Cases clear of doubt, 1116. Clearly incompetent, lll7. Confusion in trial, 1117. Offers to receive, 1116. Refusal, to give; waiver, 1116. Subject to objection, 111,6. Where reasonable doubt, Hl6. De novo in circuit court, 81,' 82, 173. Evidence; court trial, 406, 408. ,, Jury trial; devise contract, lll7. Will cases, coktest, till. Motion for new trial, 1115. Motion hearing; evidence, 767. Newly discovered evidence, 1116. Before the decision, 1116. Inadmissible evidence, 1116. See also Rules of ' Practice. Trial by Eeferee. See Reference,,, ,: " . : Trust Companies. , r , , , See Principal ,and Agent. Trust Funds. Trust Contravention or Assignment, See Trust Variation, 1436 GENERAL INDEX [REFERENCES Trustees, 1118* Administrator : Beneficiaries; creditors, heirs, 1129. Not trustee as to realty, 1120. i Unless bought . with estate - funds, 1120. See . also Executor as trustee. Attorney) private 'employee} 107. Bond: -.>: ■ ■ >> , ' Must give before acting, 1128, 1131. Both 1 trustee, and' cestui que trust, 1128. Compensation: generally, 1 196. Allowed per administrator statute, 1130. Conveyance: by beneficiaries, 1129. Trustee as to legal estate, 1129. l When rights vested, 1129. Court appointees: Approval of parties, 1128. Disapproval' of' parties, 1128. Ascertainable, 1 intention, 1128. Certain court' discretion, 1128. Competent, of integrity, 1128.' Friendly, harmonious, 1128. In effect of testator, 1129. Neither party dictate, 1128. Property to be on interest, 1129. Succeeds td title, 1128. Corporation as trustee, 1124. ' Exempt from bond, 1124. Definition; 'broad sense, 1128. Detailed inclusions, 1128., Extrs., admrs., guardians, 1129. Delegating duties to another, 1121. Only when authorized, 1121, ' 1122. Denied the trust: , Attorneys fees; .expenses, 1124. Laches bar, when, 1130. "Not charge for services, 1124. Devisee with legacy charge, 1130. Not trustee of express trust, 1130. Disadvantageous contract,, 1126. ., ; Mistake of law, ; iram,a,terial,. 1126. Presumptively fraudulent, 1126. Representative or personally, 1126. See also Widow's right. With cestui que trust, 1126. Escrow ; trustee of grantee, 393. Executor as trustee, ■ 1120, 1122. Admr. continues so to act, 1130. Charges, and received five per cent, 1130. Not compound interest,' 1130. Diligent in performance,, 1130. Entitled fees as trustee, 1,130, ARE TO PAGES.] Trustees— continue d . Executor as trustee — continued. ' > Charge to rents handled, 1130. . Not to the estate proper, 1130. i Pees ! as administrator 's statute, .. ,. • 1130. Carry out trust, 5. Erroneously continued as trustee, :1127, Administrator de bonis non, 1127. Estate vested in, 1127. i » 1 Pending suspension, 1127j ■ Given trust duties, 1123. Assumed to be so named, 1123. Hold estate; paid, as executor, 1124. Though trust duties, 1124. i,; Named both, in the will, 1 1130: Assignment as to trustees, 1131. Not change title, 1131. Not qualifying, 1131. Directed to act, judgment, 1130. Held estate as executors, 1131. Sureties liable for default, 1130. Qualify only as executors, 1130. Named testamentary trustee, 1127. Acts as 'executor many years, 1127. Functions till ace. allowed, 1127. Jurisdiction to settle, 1127. Till qualified as trustee, 1127. Perform trustee duties, 1122. Vesting; executor with power, 1208. Widow's personalty; election, 1123. Factor is trustee, 444. Failure of a trustee, 149, 152. Fraudulent sale. See Purchase trust property. Investments : Convert j,Qto real estate, 1122. Not, unless authorized, 1122. Discretion, without directions, 1J122. Joint trustee, more stringent, 1122. English rule adopted, 1123. Not personal securities, 1123. Beal ; estate; governmental, 1123. Manufacturing Co., securities, 1123. Apparently safe at time, 1123. Withhold directions; loss, 1123. Rule for investments, 1123. Realty or statutory, 1123. Not personal security, 1123» Otherwise not protected, 1123. Unless court order, 1123. i . Trust funds, in detail, 1131. Joint trustees. See Power. GENERAL DifDEX 1437 JREBEBENCES.AEE TO PAGES.] Trustees — continued. ,■ Limitation statute: in detail, 705. i , ,i Acts: with consent of : a]}, U20. Five year sale statute, 1130.: - Not bar to profit recovery, 1130. ■ Laches not bap to accounting, 1130. Unless trust denial, ,1130. Six-year; , from fraud knowledge, ' 1126. Reasonable diligence, 1126. "Widow's election; estoppel, 1126. Loss of trust funds: I ,m ' Deposits fund in bank) 1122. Appropriation of fujid; 1122. Identity put an end to, 1122. ' In his own name, 1122. ' Good faith and prudence, 1122. Parties: Suit against a trustee, 1123. Beneficiairies parties, 1123. Possession: actual receipts, 1122. Fraud or gross negligence, 1122. Merely ignoring trust, 1122. Power: under wills, in detail, 859. Implied; to conduct business, 1125. Employ attorneys, 1125. , , Joined to a trust, ill.2,3... , . Joint, trustees; joint pow^r, ,1125. Act of one less than all, 1125. Not universal, 1,12,5,*, ■ i Appeal by one of two, 1];2,5:.! Held justifiable, 1125. : Conveyance; joint aetion, 1125. Negative acts; or omission, 1125. One authorize the, other, 1130. To waive,, lease stipulation, 1130. One collective person, 1J25. One may invoke court, 1J25. Excuse non-joinder, ,11,25. , Good faith; expenses, 1125,n Protection, or recovery, 1125. : One not take active part, 1130. Pay as ''seem: to,- him proper", :1123. ,.' > Purchase trust property: Actual and intended fraud, 1124. Improvements voluntarily made, 1124, 1129. ■ ■ ■ ' Allowance, '• trustee himself, 1120, 1124., Taxes, commissions; abstracts, 1124. , Trustee or fraud ■ purchaser, 1124. Trustees — c ontinue d. , , u , , , : . Purchase trust propertyrrtTcqntinued. Admr., ■ third person, good faith, ; yalue, 1129. Admr., made no profit, 1129. Sustained for, such reason, 1129. Approval, knowledge of- <, ■ court, ■ 1129. ; , Final accounting, ,16 years /later, ,,.,1:129. ,,, ih . ,.,.„,. , ..,/ First objection then made, 1129. Good faith immaterial, 1129. , , Heir barred, give year statute, ,113,0. Elect; between two courses, 1130. Not prevent profit , recovery, .,,,.. 1130. Possession iten years; improve- , , ments, 1129. ■ , Voidable,, , common law, , , statute, ._■'>, ,, ,,1P9. , , .-, ,v,l- , ^Attorney held as, trustee, 1120, 1124. Account, fully as such,; 1120. Fairly made or pot,, 1120. Persons, uniting with him, 1124. OpJAon of interested parties, 1120. Laches, is no recovery bar, ■ 1130. Unless trust denial, 1130. Not as general rule, 112,2,, , Remedies; choice of, 1124, 1130. , Affirm or' disaffirm,, 1124, 1130,. Respond, property, ,yalue, profits, , ,1128, 1130. .,,,, ' ;';,,,,,. Rule : by Chancellor Walworth, 1120. Agents, quasi trustees,; rule, 1121. Conditions making trustee, 1121. , May abandon agen,cy, 1124. Directors and superintendent, ,H2,V„ -.,. Executory contract, colorable, 1121. . ,,, ., Fully stated , as settled,' 1120. Not, permitted, Ijq purchase, 1120. Sale to stranger,, colorable, 1121. , Suddenly ,. becomes ,,, interested, 1121.. .',;' Voidable,,,, by cestui que trust, i, X}ii- ,,,, ■. •■. What, was once trust estate, 1121. , ,, , Once validly sqld, 1121., Scrutinized with, care, 1120. Voidable, though valid , intent, 1128, 1129. Qualification necessary, , 1131. Give bond as required, 1131. " Title not vest until ,bond, 1131. 1438 GENERMj index [REFERENCES Trustees — continued. Realty sale : ' ] " " County court's power, 1127: Limited by sec. 3040, 1127. Rescission action, 1126. Willing to do equity, 1126. Title: Appointed successor, 1128. Vests before qualifying, 1128, 1131. Vests, trustee after qualifying, 1131. Trusts, in detail, 1141. Widow's rights! Accounting by trustee, 1128. Bargains away her rights, 1125. Recovery because of fraud, 1126. Election, limitation statute, 1126. Trustees induce loss; duties, 1126. Fees from rent funds, etc., 1130. Ignorance, failure to elect, 1125. Restitution made to widow, 1127. Trustees expenses, charges, 1127. Trustees of her legal rights, 1126. As well as will purposes, 1126. Not affirmatively, 1126. See ' also ' Accounts of Guardians. Executors and Administrators. Liability. Trust Funds. Trusts. Trust Funds, 1131. Bank deposit of deceased, 162. Corpus or income: Assessment on bank stock, 1137. Capital loss to remainderman, 1137. Income thereon to life tenant, 1137. Not reimbui-sed from earnings, 1138. Before dividends to tenant, 1138. Capital, capital stock, 1139. Capital definition, 1139. Capital stock, definition, 1139. Executors division of, 1139. Good faith; allowed, 1139. Corpus rules given: (1) Identical property, 1140. (2) Money into corpus, 1140. (3) Proceeds of corpus sale, 1140. Dividends not declared, 1140. Not apportionable, 1140. Ordinary loans at death, 1141. Interest accrued at death, 1141. Deceased life tenant; remainderman, 1140. 1 Agreed profit division, 1140. ABB TO PAGES.] Trust Funds — continued. Deceased life tenant — continued. Extra dividend was income,' 1140. Insurance received, corpus, 1140. Ordinary loans; interest, 1141. Receipts from sale of rights, corpus, 1140. Surplus held; not income, 1140. Surplus, undivided profits, corpus, 1140. Unearned increment, corpus, 1140. Dividends from increased value, 1138. Fifty per cent dividend/ corpus, 1138. Realty dealings, exception, 1138. Represents corpus, 1138. If not earnings accumulation, 1138. Specific realty corporation, 1138. Mining .stock of wasting nature, 1138.' Life tenant, current interest, 1138. Remainderman, part of princi- pal, 1139. Stock dividend to life tenant, 1138. Earned since decease, 1138. Surplus account of earnings, 1139. Counts not compel declaration, 1139. Dividends not yet declared, 1139. Undivided profits dividend^ 1138. Before trust; as evidence shows, 1138. Not conclusive, corpus income, 1138. Out of earnings to life tenant, 1138. Creditors of beneficiary: Court's action thereon, 1135. Liability of trustee, 1135. Deposit as trustee, 1134. Credit to him as trustee, 1134. "Guar." following name, 1134. Insufficient to protect, 1134. Inform bank, insufficient, 1134. Protected from loss, 1134. Deposit in own name, 1134. Cestui que trust, follow it, 1133. Recent English rule, 1133. Informing bank; not enough, 1134. Loss, if any, personal, 1132, 1133. Mixes with own funds, 1133, 1137. Checks out sums, 1133, 1137. Held own money, 1133, 1137. Trust money remaining, 1137. QENER4I* INDEX 1439 [ REFERENCES Trust Funds— continued. T Deposit in own name — continued. , Own, wife's and employer's,. 1134. Checks applied to, 1134. Dividend stock proceeds, 1137. Form of preferred stqck, 1137. Held to be income, 1J37, 1138. Matter of evidence, when, 1138. Failure to show actual gains, 1137. Burden on trustee, of no gains, 1137. Charged, usual gains, 1137. i With annual ^ests, 1137. Nq other breach of trust, 1137. Refusal; compound interest, 1137. Failure to file claim, 270. , Fees apportioned: Administration charged to corpus, 1139. Care of trust property to income, 1139. „ , ,, i ■ ; , , i " Court not bour^d. by , testimony, 1139. ■ ' , Executors alsp trustees, 1J39. ; [Income: assignable, 1155. Realty; several life estates, 1151. Inference of trust, 1152. Rents and profits, 1152. Insolvent trustee: , , ■ , Dissipated, not traceable, 1133, 1134. Property traced and followed, 1133. Invested in own name, 1134. Proceeds of ward's .estate, 11,34. Trustee having life, estate, 1134. Transferred to g>. with knowledge, , , • U34. Will by S. to others, 1134. . Ward ( ignorant till , S 's. , decease, 1134. Impressed with trust to ward, 1134. Realty purchased likewise, 1135. Ward not barred by statute, 1135. Devisees of S. take subject to, 1135. County court cannot adjust, 1135. Circuit court jurisdiction, 1135. Investments : , . Beyond jurisdiction, not, 1136. Convert into realty, 1122. Not unless authorized, 1122. Delegates to attorneys, 1136. Trustee held responsible, 1136. Discretion without directions, 1122. Joint trustees, stringent, 1122. English rule fqllowed, 1133, 1135. Statutory changes, ll33. Foreign land, not, 1136. Guardian's investments, 19, 20, 21. ARE TO PAGES.] Trust Funds — continued. Guardian's investments — continued. Own name; personal, 502. Pu£s into jrade, 502. Ward at age; elect, 503. Manufacturing 'Co., , securities, 1123. Good faith; loss, 1123. „ Rules set forth, 1123. Court order protects, 1123. Securities specified in statute, 1135. , , No other protected, 1135. ■ Trust companies, statute rule, 1135. Will grants "full power", 1135. Prudent, provident securities, 1135, 1136. .Statute not restrict, 11^5, .1136. Without court approval, 1133. Wili'gives full discretion, 1136. Following existing laws, 1135, ', H36. Not hazardous position, 1136. Prudent discretion/ 1135, 1136. Reasonable, not arbitrary, 1136. ' Remainderman's , interest also, 1136. Will not followed, U41. M Trustees, held for breach,. 1141. Construed to carry, out, 1141. Loaned by trustee to himself, 1135. Not protected investment, ; 1J.35. Neglect to invest: ., Chargeabje, simple interest, 1133. Except ', for six months, 1133. Fraud or wilful breach, 113if. Charged compound interest, 1133. Premiums, in purchase: Amount paid made good, 1135, Life, tenant, remainderman, 11.35. Testator had; trustee purchased, ,r 1139 - .' ., „" •■'.'■ Test of true income, 1136, 1139. Computation indicated, 1136, 11,39. Though securities appreciate, 1139. -''•"', "Real estate, securities", 1141. Not bonds with others, 1141.,. Sole mortgage intended, 1141. , , Title: , , ' , ; , ., Traced- and followed, 1133. .Trustee not as own, 1133. Property, not traceable, 1133,' Il34. Trust companies, see. 2100b, ,1135. i , See also. Accounts op Extrs. & Apmrs. Accounts op Guardians. Mar- shalling Assets. Trustees. , Trusts. 1440 GENERAL INDEX [REFERENCES Trusts, 1141. Action to establish survives, 28, 29. Accounting, enforcement, 28, 29. Active and express trust, 1148. Active trusts in force, 1143. Clearly expressed on face, 1144. Essentials as at common law, 1150. Objects, persons, definiteness, 1150. All else discretion, 1150. Failure of attempt to create, 1150. For want of certainty, 1150. Property becomes ' residuum, 1150. Or intestate, 1150. Lawful before statute, 1143. Limitation of time immaterial, 1150. Except; as to perpetuities, 1150. New York, distinguished, 1144. Parties, sui juris, may terminate, 1150. Will not prohibiting, 1150., Perpetual, as to converted fund, 115p, Not offend against law, ,1150. Sec. 2075, never concerns active, 1150. Appointed trustee succeeding, 1150. Legal 'title vests in him, 1150. Bond, of trustee: Essential to qualify, 1149. Executor as trustee, 1149. Until qualified, 1149. Mandatory requirement, 1149. Construction: wills, in detail, 237. None, unless uncertainty, 1149. Conveyed to issue, if any, 1147, 1148. Active and express trust, 1148. 1 Not vested in life tenant,' 1147. Trustee act for unborn issue, 1148. Created by grantor, 1153. Divided at decease, 1153. Not, testamentary, 1153. Deed, absolute in form, 1143. Not stow trust by parol, 1143, 1144. Deposit, trustee's own name, 1146, Personally held for loss, 1146. ' Though good faith exists, 1146. Devise, subject to charge, 1144, 1149. Limitation statute, 1149. Trust by devisee, 1144. Questioned; distinguished, 1144, 1149. Devise with power; support, 1146. Unaccomplished by trufet, 1146. ARE TO PAGES.] Trusts — continued. Elements of a trust : Benefit of a person other than trustee, 1151. Donee control for self, no trust, 1150. If use is purely corporate, 1151. Corporation holds equitable, 1151. Merges in legal, if also held, 1151. Legal, one person; equitable, an- other, 1151. No person both at same time, 1151. If so, equitable merges in legal, 1151. See also Intention to create: Severance, legal from beneficial, 1150. '"" Enforcement in equity, 208. Evidence: construction in detail, 237. "Eliza" to mean "Louise", 1146. Extrinsic; identify parties, 1144, 1146. Surrounding circumstances, 1144. Executors as trustees: in detail 1118. Estate title as trustees, 1146. Trust duties imposed, 1146. "Trustees", as extra. & trustees, 1149. Not qualifying as trustees, 1149. Vesting in devisee, extr. with power, 1151. Guardian ad litem; infants, 497. Implied trust: in detail, 565. Fraudulent conveyance, 1145. Obtained, ostensible purpose, 1145. Income: in detail, 1131. ' Assignable by beneficiary, 1147. . , Of realty, several life estates, 1151. Contravening statute, 1152. Trust unnamed; no trust, 1152. Want of trustee, 1152. Trust in rents and profits, 1152. Clearly expressed and defined, 1152. Intention to create: Certainty, element necessary, 1152. Intent must be clear,^1152. Omission to devise in trust, 1152. Considered as to sec. 2081, 1152. Requisite certainty includes, 1152. , (1) Subject matter, "1152. (2) Beneficiaries, 1152. (3) Interests; nature, quantity, 1152. (4) Manner of performance, 1152. GENEftA^ .INDEX 1441 [REFERENCES Trusts — continued. Intention to create — continued. , Uncertainty of these is fatal, 1152. , See also Elements of a trust. Technical language unnecessary, 1146, 1152. Vague, . general, .equivocal, 1152. Want of a, trustee, 1152.. Without the "trust", "trus- ' tee", 1152. Not necessarily show intent, 1152. , , Words "in trust", construed, 1148. ';" "In trust" construed, 1148. Include widow; popular sense, 1148. Investment of trust funds, 1131. Lands to trustee: .Assigned in form to trusted, 1148. Bond failure; no order for, 1148. Mandatory, requirement,, 1149. ' Qualify before a,e;ting, 1149. Directions to sell the lands, 1148. Deeds from beneficiaries, no title, 1148, 1149. ' , '',',' Merely equitable right, 1149. Equitable conversion; personalty, 1149. Might elect to take in specie, 1149. Deceased child 's heirs not, 1149. Not , by operation of law, 1149. Vested in executors as trustees, 1149. Executed except sale, 1149. Failure to qualify as trustee, 1149. Lease for ninety-nine, years, 1152. Legal title in devises, 115,1. Power in trust, extr. as trustee, 1151. Life estates, in detail, 698. , . ; > Limitation statute: As affecting trusts, in detail, 705. Devise with legacy charge, 1149. Effect on various trusts, 1148. Express and .resulting out of,' 1147. Time of trust, immaterial,! 1150. Living person's estate by will, ,1147. Taking under, the will, 1147. , His estate bound, 1147. Private and public trust, 1152. ■ : Distinction "as to certainty, 148, 1152. Parol promise to bequeath, 1144. County or circuit icourt, ,1144. \ Enforcible as a trust, 1144. Method to follow, 1145,' Zimmerman — 91 ARE TO EAGE^.J Trusts — continued. Parol trust: " Court not compel or restrain,, 1146. In land's, voidable only, 1146. Election, of trustee, 1146. .Inducement fraud, essential, 1148. Life estate, etc., annexed to deed, i'isi. ',, No active duties on trustee, 1151. Legal title vested, in benef., , . . , ' 1151. ( , Trustee might execute, 1151. .Might execute writing of, 1151. Verified answer, available, 1151. Unenf orcible , at inception, 1151. Voidable only, by grantor's heir, 1151. May be executed, 1146. Not absolute nullity, 1146. . Parties,' in suits involving, 814. Passive trusts abolished, 1143.' Example, of passive trust, 1143. , Hold and convey to others, l ! l47. As if no trustee named, 1147. Contingent estates also, 114.7. , , Life estates therein valid, 1147. Like "will "provisions, 1147. ,..,... Passive, or dry .trust, 1147. . , Titie in beneficiaries, 1147.' ... ., Valid as in direct, 1147. Various contingencies, 1147. Not, a passive' trust, '115(1 Not resulting" by implication, 1143. Those credited, in writing, 1143. Title in' cestui que trust, 1143, 1144, 1147, 1151. 'rot ' ' i 1- " Trustee acquires" no title, 1143. Trustee no' active duties, 1143, 1151. Penal bond to account is, 444,,, Perpetuity statute.: in detail^ 8,35. Contravening statute, 1151, 1152. Limited to ' realty, "1145. Trust term exceed period, 1152. Personal trust, construed, 1146. Personalty trust unlimited, ll49. May be by jarol, 1153. Not affected by statute, 1147,.' 11 53. Statutory or otherwise, 1149. Power, in detail, , 859. Purchase by trustee: in detail, Ills. AH classes of trustees, 1145. Bid oft,' by trusiipe's attorney, 1145. Trust benefit of "re-sale, 1145. Not of trust property, 1145. Realty and, personalty : sale, ,1146. • ; One .trust agreement, 11467 .' 1442 GENERAL INDEX [REFERENCES Trusts — continued. Eealty and personalty — continued. Trustee, with powers, 1153. Deed in escrow, 1153. Not testamentary, 1153. Terminated; condition occurs, 1153. Trustee act for unborn issue, 1148. Trustees, in detail, 1118. Trust to sell lands, 11481 General trust failed, 1148. Trust variation, in detail, 1153. 1 Uses and trusts statute: Common law abolished, 147. Including charitable, 147, 158. Limited to realty, 1145. Not applicable to personalty, 159, 1147, 1153. Vesting, of estates, in detail, 1195. Want of trustee, immaterial, 1152. But trust omission considered, 1152. "Widow for self and children, 1149. All claimed trust invalid, 1149. Others, widow and children, 1149. "Widow claimed whole title, 1149. Brewery and operation, 1149. Decree, of trust for all, valid, 1149, 1150, Fullest discretionary powers, 1149. See also Charitable Trusts. Con- struction or "Wills. Implied Trusts. Perpetuities. Power. Precatory Trusts. Trustees. Trust Funds. Trust Variation. Vesting op Estates, etc. Trust Termination. See Trust Variation. Trust Variation, 1153. Assignment of income,, 1155. Not rents and profits in lands, 1158. Valid as to personalty, 1155. New York statute, contra, 1155. No statutory restriction, 1155. Will not prohibiting, 1155. Beneficiary convey interest, 1158. Trustee must recognize, .1158. Not contrary to will, 1158. Change scheme of will, 1155. No power in the court, 1155. No power in remainderman, 1155. No power in trustee, 1155. Not vary in any manner, 1155. Conduct of executors: Controlled by court appointing, 1157. Equity on debtor personally, 1157. ARE TO PAGES.] Trust Variation — continued. Construction rules: Beneficiaries not to change, 1159. Unless express or implied, intent, 1159. Not control intent, 1159. Only aid to get intent, 1159. Valid trust created, 1159. Mugt be carried out, 1159. Court direct application, 1160. Against debtor personally, 1157, 1160. Of beneficial interest, 1157, 1160. Devisees can sell remainder, 1158. Duty to enforce rent rights, 1158. Imposed upon trustees, 1158. Not dispose of rents and profits, 1158. Not hold trust futile, 1158. Future contingent interests, 1159. Ninety-nine year lease, 1160. Equity authority sustained, 1160. Statutory proceeding dismissed, 1160. Statute, for absence of scheme, 1159. Not violation of trust, 1159 Intent to be carried out, 1159. Beneficiaries not to change, 1159. When so expressed or implied, 1159. May authorize equivalent, 1159. Distribution same course, 1159. To effect intention, 1159. Trust not allowed lost, 1159. Equity bar remainderman, 1159. Change title to entirety, 1159. Not extinguish equivalent rights, 1159. Mortgage; land not owned, 1160. Corpus treated as personalty, 1160. Court may compel payment, 1160. From beneficial interest, 1160. May assign income, 1160. Land trust for mortgagor, 1160. Income and possible corpus, 1160. Not lien on the land, 1160. Ninety-nine year leases, 1160. Authorised; no express right, 1160. Implied power to lease, 1160. No express sale restriction, 1160. Implied sale restriction, 1160. Lease power not restricted, trust time, 1160. Unless, express or implication, 1160. GENERAL (INDEX 1443 [REFERENCES Trust Variation— continued. Ninety-nine-year lease — "continued. . . Not made in trust violation, 1160. Seasonable trust execution, 1160. Principal applied to repairs, 1155. Remainderman agrees, 1155. Will provides otherwise; invalid, 1155. Property control: • Beneficiaries not to change, 1159. Unless express or implied, 1159. Duty of courts to uphold, 1155, 1157. Before or after death, 1155. Entitled, careful protection,' 1157. Without scrutiny of reason, 1157. Intention must be carried outj 1159. Make will and have enforced, 1159. Cannot violate ititent, 1159. Courts should enforce, : 1159. Preserving specific realty, 1158. Not enquire why, 1158. Sale of trust realty: Grantors wishes, to go in specie, . 1156. Best interests of infants, 1156. Not warrant disturbance) 1156. Xo educate, maintain, 1156. Carried as far as possible, 1156. Interests as creator provided, ,1156. ■Not as appears to court, 1156. Prevent entire failure, 1156. Intervene only to preserve, 1156. Remainders, may be sold, 1^.56. Judgment acts on whole title, 1156. Bind all, present or future, 1156. In being and not in being, 1156. Parties in being, represent all, 1156. For jurisdiction purposes, 1156. Prevent threatened destruction, 1156. Sold only to preserve title, 1156. Only equity power, 1156. , Pay taxes, liens, etc., 1156! Present benefit, reversed, 1156. Subsequent further sale, 1157. Stipulation as to will: Disallow; disregarded, 1159. Distribute differently,., 1159. . Held inoperative, 1159. Stipulation to admit will, 1157. After extended contest, ,1157. ^Conveyance of interest, 1157. Gift of parties, 1157. Not to thwart will, 1157. Trust termination per will, 1157. ARE TO PAGES. ] Trust Variation— ^-continued: Stipulation as to will->-continued. ' f : Judgment condition, 1157. Bona fide carrying out, 1157. Substitute' parties view, 1159. Extended rules stated, 1159. Terminate trust: . . ■■■■ > 'Beneficiaries consenting, 1158. Court refuse to interfere, 1158. . Single duty remaining, 1158. Legatees and trustees willing, 1158. Intent trustee should execute, 1158. Duration many years, 1158. No power to frustrate, 1158. ■ I : , Though legacy vested, 1158. No authority or discretion, 1158. ,; , May terminate^, proper, fcase, 1158. All duties performed, 1159. -All' parties before courtj 1158. Before expiration limited, 1158. No express of implied prohibition, 1158. . ,.,:-: Parties agree; trustee resists, 1155. Whether county court, can? 1155. Whether, trustee resisting? 1155. , , . Will limit not reached, 1155. Perpetual trust; parties agree, 1157, - , ■ H58. .,,,,, Will not' prohibiting, 1157, 1158. Proceedings, -if court has. power, 1155. (1) Cestui que trust, a , ,party, 1155. (2) Court must investigate, 1155. (3) Must require security, 1155. Cestui que trust 's protection, 1155. Waives of contrpl by widow, 348. See also Descent aijd Distribution. Future ' Contingent '.■ Estates. Power. Probate op Wills. Trusts. Unconstitutional. See Constitution. Undertaking. See Appeal. Bonds. , Sureties. Undue Influence, il61. , Burden of Proof: AH wrong that burden shifts, 1175. Cannot be presumed, 1165. Circumstances merely suggest fraud, 1165, 1170, 1172. Burden on party profiting, 1166. Protect weak, ' 'unsuspicious, 1166. •'! +"'•' 1444 GENERAL INDEX [REFERENCES Undue Influence — continued. Burden of proof — continued. Fiduciary trust relation, 1165, 1166. . Presumption of injustice, 1166, 1169. Rule, later, disapproved, 1166, 1172. Contestant has burden, 1163, 1165. Fiduciary relation exists, 1165, 1167. Burden of proof shifting, 1166, 1167, 1168, 1172; All wrong that it ; shifts, 1175. Belation not exist, 1169. Strictly no shifting of burden, i 1172. Bule authoritatively stated, 1172. Deed to third wife, 1167. Nephew; niece; care; not exist, 1167. Finally fully restated, 1172. Inference, raising fraud, 1172. Proof necessary, 1172'. Non-related, partner, fiduciary, 1173. Not required to shew, voluntary, 1173. On party charging, first to last, 1175. Clear and satisfactory, 1175. Not mere preponderance, 1175. On party who alleges, 1165, 1168, 1174, 1175. After will once proven, 1165. From first to last, 1175. Presumption of undue influence, 1166, 1169, 1170, 1172, 1174. Aged, aged susceptible, 1174. Trust confidence ; suspicion, 1174. Opportunity, disposition, 1174. Unless negatived, direct proof, 1174. Also opportunity; disposition, 1170, 1172. Cared for testatrix fifteen years, 1170. Conveyance not inequitable, ,1170. Distinguishable from others, 1170, Confidential relations, 1173. , Not defeat proper gift, 1171. Not because child favored, 1170. ARE TO PAGES.] Undue Influence — continued. ■ Presumption, etc — continued. : ' ' Secrecy ' '• and ' ' opportunity ' ', 1170. Subject susceptible*. 1170. Old age; mental weakness, 1170. Proponent not affirmatively, 1165. True rule; party alleging, 1168, 1172, 1175. '• Circumstances showing fraud, 1168, 1172. Then burden; other party; 1168, 1172. Definition of, 1163, 1164. Antithesis of right influence, 1175. Destroy free agency, 1163, 1171, 1174, 1175. Exerted mala fide, 1163, 1175. Moral coercion; ulterior purpose, 1175. Beasonable influence, 1163. Bestated; solicitation; coercion, , 1171, 1174. Subtle species of fraud, 1166. Evidence: See also Burden of Proof. Absence of proof, 1164, 1165, 1173. Beneficiary, clerks, present, 1173. No claims; no direct influence, ■ ' l 1173. Circumstances suggest fraud, 1165. Circumstantial almost wholly, 1166. Clear and satisfactory, 1175. Not mere preponderance, 1175. Confidence abused, 1165. Confidential partner, legacy, 1173. Need not show voluntary, 1173. Confidential relation occupied, 1166. Conduct of favored one, 1166. Previous relation ; circumstances, 1166. Testatorfs susceptibilities, 1166. Conjecture or suspicion, 1163. Cpntestant furnish evidence, 1165. After will once proved, 1165. Apparently free agent, 1165. Declarations of testator, 1170, 1173. Not evidence of the facts, 1173, 1 1175. Admitted on mentality, 1173. Condition of mind, 1088. On success in subverting, 1170. Before or after will, 1170. Condition of mind, 1170. Wanted beneficiary, have estate, 1175. l GENEEAL INDEX 1445 [REFERENCES Undue Influence — continued. Evidence — continued. Worked and helped him, 1175. Assumed admissible, 1175. Harmony 1 with will, 1175. ' ' Was importuned ' ', improper, 1175. "Disposition" of favored child, 1173. As to exerting influence, 1173. /Facts must' be shown, 1165. Husband aided; gave directions, 1165. > Must be affirmatively shown, 1165. Tour elements to be shown, 1176. - (1) Testator subject to, 1176. (2) Opportunity to exercise, 1176. (3) Disposition to exercise,' 1176. (4) Result appears affected, 1176. Clear and satisfactory evidence, 1176. Clear establishment of three, 1176. Especially with natural will, 1176. Meager on disposition, 1176. And slight evidence of fourth, 1176. Ill feeling and opportunity, 1171. Not mere anticipation, 1171. Ninety years; less proof, 1165. Not to prove undue influence, 1170, 1175. ' Clearly mere hearsay, -'1170. Paying large fees; gifts, 1170. 1 Not evidence of, 1170. Proof to raise fraud inference, 1172. Actual; not Opporunity, 1172. Satisfactory proof of facts, 1163. Scrivener falsifying certificate, 1172. Evidence of little weight, 1172. "Secrecy" and "opportunity", 1170. Applied to active efforts, 1170. Strong evidence, will unnatural, ;... 1176. Less proof where natural, 1176. Transaction;, absence of party, 1173. Eebuts coercion, duress, 1173. Two facts to be proven, 1169. Exertion of updue influence, 1169. Success in subverting, il69. t Undue influence not presumed, 1165. Weakened mentality, 1167^ Change of habit, 1167. Found not to exist: Believer in spiritualism, 1164. ARE TO PAGES.] Undue Influence-^continiied. Found not to exist — continued. Beneficiary, clerks, servants, present, 1173. -,.,:■ No claims thereon; no direct influ- ence, 1173. Cared for testatrix fifteen years, 1170. ■■ Conveyance, of whole : estate, 1170. No presumption; distinguishable, 1170. Children not helpful, 1171. ' ■ ■ • Gives to providing niece, 1171. Confidential partner, legacy,- 1173. : ' ' Need not show voluntary, 1173. Consideration for support/ 1175. Burden does not shift, 1175. Declarations in harmony, 1175. Reasons for making, 1175. Directions in absence of party, 1173. Rebut coercion, duress, 1173. ' Eighty-six, vigorous,! manager, 1174. Changed after daughter's protest, -1174.- . :, > New will, all to daughter, 1174. Without compulsion; 1174. Exceptionally self-willed,' 1169. Secret; beneficiary 's home, 1169. Feeble old woman to . companion, " 1172. ' Parties ■ who charge must prove, 1172. , :, . Still rhave the burden, 1172. Great influence with) testator, 1164. Husband procured drawing, 1165. Gave directions; present, 1165. Ill feeling and opportunity,' 1171. Son-in-law for support, 1171. Living with favored child, 1173. Unequal; not presumption, 1173. Nephew and niece; cared ;for her, 1167. Not beneficiary; burden, 1167. Old, weak, with son alone, 1176. Peculiar, eccentric suspicious, 1168 Second wife 'si supervision,; estranged, 1174. ■ Reversing both lower courts, 1174, Siek wife; natural affection, 1169. Weakened mentally, physically, 1171 Contents, by witnesses : only, 1171 Found to exist: Brother, liquor, controlling, 1166 ■■vii H67. ■ ,....; Confidential relation; suspicion, 1166. " ' : 1446 GENERAL INDEX [REFERENCES Undue Influence — continued. Found to exist — continued. Deed, aged, susceptible person, 1174. Trust confidence; suspicion, 1174. Opportunity and disposition, 1174. Presumption of fraud, 1174. Unless negatived; direct proof, 1174. Deed to trusted adopted son, ,1165. Circumstances suggest it, 1165. Not affirmatively proved, 1165. Feeble, helpless, liquor ; to son, 1168. Intoxicated son's acts, 1165. Meager proof on disposition^ 1176. Trial court, not clearly erroneous, 1176. Old,, weak) dictated by wife, 1168. Unrepresented weak sister, 1164. Husband and wife, 546. Evidence convincing, 546. Making of will : Different than statute, 1169. ,• Fraud burden on contestant, 1169. Not most just, reasonable, 1173. But his own judgment, 1173. Not obliged to give reason, 1169. Product of own volition, 1170. , No equity to thwart, 1170. Unequally; no presumption, 1173. •Diving with favored child, 1173. Proper influence : Beneficiary; scrivener; 1164. Had great influence) 1164. Convinced by persuasion, 1173. . If it be by hia own will, 1173. Mere importunity; husband, 1164. Absence of duress, fraud, etc., 1164. : . Motives of affection; gratitude, 1171, 1175. Not moral coercion, 1164. Protest as not as promised, 1174. Different will so made, 1174. Freely . and voluntarily, 1174. Second wife, of year, impaired, 1175. Siek wife; natural affection, 1169. 1 Left will, years unchanged, 1169. Solicitation or argument, 1164, 1171. Weak person's best interest, 1164. Wife or child; fair, 1163. Yield to attachment, 1164. Eules fully stated, 1164. Antithesis of right influence, 1175. Burden of proof finally restated, 1172. AKE TO PAGES.] Undue Influence — continued. Bules fully stated^-continued. • "All wrong" that burden shifts, 1175. Confidential relation exists, 1166. Presumption, 1166, 1168, 1171. Defense after will proved, 1165. Dispose of property as he chooses, 1170, 1175. Four elements must be shown, 1175. (1) Testator subject to, 1175. (2) Opportunity to exercise, 1175. (3) Disposition to exercise, 1175. (4) , Besult appears affected by, 1175. Clear and satisfactory evidence, 1175. Clear establishment of three, 1175. And slight evidence of fourth, 1175. Especially with natural will, ;-. . ' U75. :,. Impair free agency, 1171, 1174. Not suspicion or assumption, 1171. Not most just reasonable, 1173. But different, if left alone, 1173. Proper and improper, 1164. Bestated; solicitation; coercion, 1171. ' ' Secrecy ' ' and ' ' opportunity ' ', 1174,. . Applied to active efforts, 1174. Strong evidence, will unnatural, 1176. Less proof where natural, 1176. Subtle species of fraud, 1166, 1175. Unequally; no presumption, 1173. Living with favored child, 1173. Wrong which sounds in fraud, 1175. Establish; clear and satisfactory, . 1175. . Secrecy: badge of fraud, 1169. No application; circumstances, 1169. Only with susceptible party, 1169. And disposition to exercise, 1169. ' ' Secrecy ' ' and ' ' opportunity ' ', ■ "'i ' 1170. Applied to active efforts, 1170. Transfer of realty, 1164. Consideration of support, 1175. Burden does not shift, 1175. Mere importunity, 1164. Unrepresented weak sister, 1 1164. Unlawful Contracts, 1177. Account on, allowed, 7. GENERAL, INDEX 1447 [REFERENCES Unlawful Contracts — continued. Agreement not to prosecute, 1178. Duress; execution arid payment, 1179. . ;„, Equal footing When made, 1178. No duress; no recovery, 1179. Not recover, money back, 1178. Between immediate parties, 1178. Corporate stock under par, li.81. Illegal, both parties, 1181. ( No rescission or restoration, 1181. Duress, species of fraud, 1180. Contracts, void, not voidable,' 1180. Eeasonably adequate cause, 1180. Act not voluntary, 1180." Executory : Rescission and recovery, 1177. Conditions fully stated, 1178. Moral turpitude, 1178. Law favors rescission, 1179. Wholly unexecuted, 1177. Embezzled funds by agent, 1180. Eeeeive security therefor, 1180. False representation as to, 1178. Recovery for the fraud, 1178. Fraud, in detail, 463. ! General rules of law, 1178. Exceptions, as to recovery, 1178. Advantage of fiduciary relations, 1178. ■ . . '. ■• >> Protect weak, necessitous, 1178. Kinds '• of contracts < void, 1177. Malum se or prohibitum, 1177. Prohibited by statute,, 1177, 1178. Eecovery . denied, , 1177. Grain delivery in future, 1179. Actual view to delivery, 1179. Bona, fide intention, 1179. Doctrine rigidly enforced, 1180. Notwithstanding statute, 1180. Made to cover gambling,, 1179. Pretended; not purge, 1179. Transactions gaining, import, 1179. Whole security void, 1179. Illegal, without , fraud, 1180. Law not aid, enforcing, 1177* 1T81. Between immediate parties, 1178. Malum se or prohibitum, 1177. Nor recover money, 1179. Except executory contract, 1177, ; - i 1179. Weak and necessitous, 1178. Fiduciary relation, 1178, Prevent competitive bidding, 1180. Third person injured, 1180. Sunday contracts, in detail,, 10,47. ARE TO PAGES.], Unlawful Contracts— continued. Usury defense personal, 1179. Violates public morals or. policy, 1180. See also Sunday. Usage, 1181. Admitted without pleading, 1182. , Common law validity, 194. Exception to parol rule, 1181. General trade custom, 1183. Bound though ignorant, 1183. Ignorance not relieve,, 1183. Presumed in contract, 1183. Interest usage proof, 1181. Allowed legal, rate, 1181. Local custom different, 1183, Meaning of word or term, 1182. At time and place, 1182; Contract accordingly, 1182. Proof of such meaning, 1182. Not to change contract, 1182, 1183. Custom supposed considered, 1182, 1183. Showing real contract, 1182, 1183. Parties presumed to, know, ,1181. Pay for services, 1182. Percentage^ purchase money, ll82. ',' Place of contract',', 1183. Principle of admission, 1181. Proof, clear and explicit, ,1181, 1182. Ancient, uniform, notprious, 1181. Vary agent's instructions, 1181. , "Workmanlike manner", 1183. Uses and Trusts. See Trusts. Vacating Fraudulent Orders. See Fraudulent Orders. Vacating Judgments, 1184. Affirmed , judgment, not, 1189. After term and after year: Amend: not to wipe out, 1191. Correct; mistake in entry, 1191. Fraud, not limited, 476, 478,,, Jurisdiction failure, 478, No power to set whole aside, 1191. Correcting clerical error, 11,91. Not entry of new judgnjent, 1191. . Only correcting old entry, 1191. Not modify or, amend, 1191. Even as intended,; 1191. After the, term : Aotions at law or equity, 1185. Clerical errors corrected, 1185. 1448 GENERAL INDEX [REFERENCES Vacating Judgments — continued. After the term — continued. Clerk 's entry same day, 1191. Common law rules govern, 1185. 1190. When not mistake, statute, 1185. Delay in entry, immaterial, 1191. Errors and irregularities, 1185. Court never acted, 1185. Errors of law or fact, 1191. Leading case ; correctly stated, 1186. Affirmance of rules, 1187. Mistake, in, detail, 748. Mistake ratified, 1185. No power except by sec. 2832, 752, 1187, 1191. However . meritorious, 1187. Mistake' of fact, not law, 752. Nor finding as basis, 1190. Merely because of error, 1190. Not a premature judgment, 1187. Not at a subsequent term, 1185. Not mere error of court, 1186. Record presumes acted, 1185. ' Where mind of court acted, 1185. Not error by itself, 1187. Only surprise statute, 1187. Not, if court's mind acted, 1189, , Not, if jurisdiction had, 1188. Not prevent irregular errors, 1185. Instances 1 stated, 1185. Only by appeal or writ,' 1189. Or mistake, etc., statute, 1189. Order oral; same rules, 1190. Entered nunc pro tune, 1190. Precluded again acting, 1189. Rule has its, exceptions, 1189. Motion at same term, 1188. Continued to subsequent, 1188. Supreme court, included, .1187. Void judgments corrected, 1185. Whether 'by parties consent? 1190. At same terni: Control over its own orders, 1188. Inadvertently entered, 1185. Power on court's motion, 1185, 1188. County court: Practice and procedure, 1191. Court's own motion, 1185. At the same term, 1188, 1190. Jiidgmeht affirming another, 1190. To 'vacate or modify, 1188. Without notice to parties, 1190. Default; non-resident, 626. Enforce fraudulent judgment, 1191. Fraudulent orders, in detail, 475. ARE TO PAGES.] Vacating Judgments — continued. Infant's rights detailed, 583, 1191. Irregularity submission, 1186. Waiver, jurisdictional defect, 1186. Parties only have right, 1186. Except when nominal only, 1187. Real, but not nominal, 1187. Premature judgment, 1187. If unjust or inequitable, 1188. Irregular not void, 1187. Prevent inequitable use of, 1191. Probate court: Administrator's sale, 1186. Not after five years, 1186. Third parties interested, 1186. Pounded upon fraud, 1189. With negligent ignorance,. 1189. Powers; fraud, mistake, etc., 1186. Revoking oral widow allowance, 1188. Abuse of discretion, 1188. Probate of will; fraud, 1186. Can the county court? 1186. Equity not set aside, 1186. Powerless as to court's error, 1185, 1186, 1187. Rule of practice, 1189. Default judgment, 1189. ( Set aside as necessary, only, 629. Technical irregularity, .1185. Prompt, after knowledge, 1185. Waiver, by other, step, 1185. Unavoidable absence of attorney, 1188. Error to refuse vacation, 1188. Within a year, sec. 2832 : Abuse of discretion; refusal, 1189. More than year after entry, 1189. Neglect of guardian ad litem. 1189. Within a year of knowledge, 1189. Actual notice sufficient, 1187. After notice of same, 119]. Attorney ceases to be such, 1190. Pour years; in such case, 1190 Notice as to party then, 11P0 Year to so run, 1190. Cannot act arbitrarily, 1190. Indicate some injustice, 1190. Mistake, surprise, inadverteneo 1186. Not surprise at rulings, 1187, 1191 Order within a year, 1187, 11 PI Not only application, 1187. Some legitimate ground, 1190. See also Fraudulent Orders. Judg- ments. Mistake. SEVERAL IJSfDEX 1449 [REFERENCES Value. , See Evidence. Expert Testimony. Services. Variance. See Pleadings. Vendor's Lien. See Lien. Venue, 1192. All parties on same side, 1193. Not one of several, 1193. Appeal from county court, 1192. Affidavit of prejudice, 1192, 1193. Not determine immediately, 1193. Mandamus not lie, 1193. Order 1 denying; not appealable, 1193. Time to last -day of term, 1192. In which to make order, 1192. Probate of will, proceedings, 1192. Unauthorized venue change, 1192. Waiver by appearanee, 1192. Order; for jurisdiction, 1192. Verbal Agreements. See Parol. Verdict. See Jury. Verification, 1193. Accounts, manner, effect, 5, 6. Affidavit; caption wrong, 1194. Affidavit of appeal, 1194. • Justice, allowed to sign, 1194. Otherwise, invalid, 1194. Defective ; valid as oath; 1194. ■ Jurat, nunc pro tunc, 777. Not with jurat unsigned, 1194. Official certificate proof, 1195. Signatures proved, 1195. Testimony might rebut, 1195. Must be convincing, 1195. Proof of actual making, 1194. Parol, inadmissible, 1194. Eequires proper caption, 1194. Complaint : defective; 1194. Allegations positive, 1195. Verification by attorney, 1195. No ground of belief, 1195. By guardian ad litem, 1195. As the party, 1195. Treated as unverified, 1194. Guardian ad litem, 14. ARE TO PAGES.] Verification — continued. • Jurat : Absence; no oath, 1194. - Affidavit; nunc pro tunc,' 777. Evidence of the oath, 1194. Placed there afterward, 11'94. Inadvertent mission, 1194. Not cure defect, 1194. Orders not reciting, 1194. Verified by signature, 1194. : Petition for guardian : ' Duly signed and verified, ! 1194. Certificate; by officer only, 1194. Order recites, ' verified, 1194. Petition; dated, signed, 1194. Not' verified by affidavit, 1194.' As in pleadings, 1194. Verified: proved by oath, 1194. Not necessarily, affidavit; 1194. Vesting of Estates, Etc., 1195. "After the death" Qf daughters, 1201. Enjoyment, postponed, 1201. Equitable interest only, 1201. Subject to being divested, 1201. Subject to ripening, 12Q1. Present title in executors, i2.01. Took effect immediately, 1201. tJpon death of testator, 1201.' At, death of testator 'or intestate, 34. Avoidance of absurdity, 1202.. Ordinary sense modified, i202. "Without issue", added, 1202. Words excluded, or abridged, 1202. Charitable trusts, in detail, 145. Civil Ww; ; personalty, 1200. ' "Conditional fee to children, 1212. ' Terminating at their death, 1212. Condition precedent: Failed as to college name, 247; Failed, because impossible, 1205. Fitness to take at thirty, 1204. Arrives before testator 's ' death, 1204. Executors to determine, 1204. Condition impossible, 1204. Time limited had expired, 1204. Rule as to " impossible ' ', 1204. Regardless of cause, 1204. Condition subsequent : ' favored, 1202. Addition of '" without issue ", 1202. Charge on land, preferably, 244. Defeasible on condition, 265. Especially heir against stranger, 1202. If heard from in ten years, 1204. 1450 GENERAL INDEX [REFERENCES ARE TO PAGES.] Vesting of Estates — continued. Condition subsequent — continue^. After ten years, title vesting, 1206. Condition occurred; divested, 1206. Interest in divorce case, 1204. Condition valid, failed, 1204. Wife, possession entitled, 1204. Present estate vested, 1204. Valid condition annexed, 1206. Not divested, prior to, 1203. Descended to children, 1203. Noti . necessarily postpone vesting, 12*03. Executors to hold, pendency, 1203. Once vested, not divested, 1203. Counterpart of one precedent, 1203, , If impossible later, 1203. Repugnant to grant, 252. Time of payment only, 252. Vested subject to, 1202, 1203. Vested subject to reforming, 1203. When vested, when contingent, 1207. Conditions void ; first taken, 1204. Not to alien, 351. Not to have dower, curtesy, etc., 351. Nqt, subject to debts, etc., 351. Construction of wills, in detail, 237. "Death of either'*, then to heirs, 1212. Death after testator's death, 1212. From whole purview of will, 1212. "Eemaining living heirs", 1212. Surviving children; grandchildren, 1212. ' ' Without issue ' ', supplied, 1212. . Harmonize other provisions, 1212/ "Death" "without issue"; 252, 1208. After testator's death, 252, 255. During testator's life, 252. May mean, without issue born, 1209. Statute, at death of ancestor, 1209. Ordinarily, at testator's death, 1208, 1214. Here, death after testator 's, 1208, 1215. Yields to will intent, 1208. To W. with legacy condition, 1208. Vest, subject to legacy charge, 1208. Subject to divesting, 1208. Widow and remainderman .survive, 1208. "Deceased child", issue of, 1205. Died before trust, ended, 1205. After the testator, 1205. Leaving widow, no issue, 1205. Vesting of Estates — continued. Deceased child — continued. Equitable vested immediately, 1205. N. Y. construction, 1205. Meant death before testator, 1205. Will not to contrary, 1205. No other disposition of, 1205. Pay income to, evidence of, 1205. "Deceased child" without issue, 1215. Language interpolated, 1215. Mean dies in testator's life, 1215. "Revert to, other children", 1215. "Eevert", meaning to "go to", 1215. "Divided'^, "after her death", 1215. Not present devise, 1215. Lapsed on child's death, 1215. Went to the others, 1215. Postpones vesting any, 1215. Statute not change effect, 1215. Those alive at division, 1215. "Divided" at widow's death, 1206. Among children surviving, 1207. Children and sister, same, class, * 1207. Members uncertain till wife's death, 1207. Intent of testator, 1207. Eef erred to wife's death, 1207. "Between my lawful heirs", 1207. After life tenant's decease, 1207. Division after wife's death, 1207. Not vest until then, 1207. General rule, contingent, 1206. Primary, intent governs, 1206. Intent, vest at testator 's death, 1206, 1207. No survivorship provision, 1206. Question of will intent, 1206. Treated as bequeathing personalty 1206. Implication of sale only, 12,06. Not as future land estate, 1207. Dower, vests from death, 370. Executors : Legal title to personalty, 1199. Act as trustees thereof, 1199. Realty bought with personalty, 1199. Authority to take title, 1199. Then becomes realty, 1199. Realty; possession during lives, 1199. Legal estate as trustees, 1199. Common law; statute, 1200. Declared purpose only, 1200. Extent required only, 1200. Residuum in executors, 1099. GENERAL, INDEX 1451; [REFERENCES Vesting of. Estates — continued. Executors — continued; Trustees by implication, 1190. Duty to administer as such, 1190. . "When acting as trustees, 1199., Future, without intervening, 1213. "Heirs" of living person, 1214. Heirs at his decease^ 1214, Homestead vests: "Widow and then living heirs, 1215. "In case of his death", 1209. Heath after testator's, 1210. Not frustrate whole scheme, 1210. Disposition unascertainable, 1210. Possible intestate estate, 1210. Wife dying, is not widOWy 1210. Son survives, no issue, wife dies, 1209. Without issue surviving, 1209. 1 Otherwise, to his issue, 1209: Then to his widow, 1209. Income : During daughters' lives, 1199, 1201. Accumulate as to realty income, 1201. Severable, though same clause, 1201. Statute, not personalty 1 income, 1201. ' •'• Disposition of remainder, 1201. Implication to accumulate, 1201. Silence regarding it, 1201. "From and after", certain age, 1201; Accumulate during majority, 1201. Eefers to enjoyment not vesting, 1201. Not provided according to 1 law, 1209. Eight to fund carries, 1209. Being nothing to contrary, 1209. Silence; directed to accumulate, 1213. Added to residuum, 1213; Not permitted as to realty, 1213. Vested right only carries, 1 1209. Income "divided" for ten years, 1211. After life estate to wife, 1211. Children's interest, testator's death, 121,2. Deceased child's heirs and widow take, 1212. Legal against all but : trustees, 1212. Present grant, future division, ,1212. ARE TO PAGES. ] Vesting of Estates — continued.. Income, divided, etc. — [Continued. r ., , Subject to life estate and trust, 1 1212. , :, , „/ Executors in trust ten years, 1211. .Principal then remaining, 1211. Bequeathed to children, 1211. Inconsistent; earlier vesting, ,261. Later prevails; rule, 261. , Inheritance words unnecessary, ,1202. . ' "Heirs of his body", 1202. , , . Statute .dispenses , with, 1202. "Interest" to "be paid" to sons, .1209. . During their lives, 1209. Interest, sons,!. then survivor, 1209. Principal after their death, 1209. Interest according to law, 1209*. Living grandchildren at, 1200, 1209. . , . , . i NoJ; .vest immediately, 1209. ; On decease of representatives, 1209. Vest; at sons '. deaths, 1209. Leanings \ doubtful eases: ,:,, Absolute, nqt defeasible, ,12,03. First taker, not second, 1203; General ; inheritance rules, 1203. Primary intent, not secondary, 1203. Vested, not contingent, 12,03. Life estates, in detail, 698. .Life insurance,, 601. "Pay as necessary to needs", 1211. ,AJt>sfllute,,and ) vested, 1211. "Direction" only; not controlling, 1211. Intention controls, 1211. No person to determine , ' ' needs ' ', 1211. . , She herself then determines, 1211. Sum of $800; dies shortly after, 1211. ', Time, to payment only, 1211. Pending majority arriving 1201. Dea^h under majority, 1201, 1202. ' Leaving issue, 1202. Equitable in beneficiary, 1202. Legal, except ad to trustees, 1202. Income or estate, applied, 1201. Trustee, subject to trust, 1202. Legal title only, 1202. Trustee with power of sale, 1201. Vested,,. condition subject, 1202. > Pending life benefits: i • , i Executors, trusts hy implication, J ■ 1199- . .■ '.; •', If 1452 GENERAIi INDEX [REFERENCES Vesting of Estates — continued. Pending life benefits — continued. Hold title of personalty, 1199. And realty purchased with, 1199. Eealty after purchase, 1199. Income and corpus, 1199. Life estates, in detail, 698. No express title provision, 1199. Not appointing them trustees, 1199. Eealty title also as trustees, 1199, 1200. Extent required only,' 1200. Eealty and personalty tied up, 1199. Subject to condition subsequent, ' 1202. : ' •' "' '"' Vesting subject to a life, 1204. Widow with full power, 866. Personalty : Legal title in executor, 1199. Office, nature of trust, 1199. Subject to trust duties, 1199. By law or the will, 1199. Upon the probate, 1199. Where executors are trustees, 1199. Eealty after investing, 1199. Executors take title, 1199. Remainders : Contingent, to unborn child, 60. Legacies, condition precedent, 1200. Contingent, may not happen, 1200. Legacies payable in future, 1200. Vested, not condition precedent, 1200. Not vested, contingent, 1200. Eemainder, reversion ; distinction, 351. ' "' '"" ! ' Rule; realty, personalty, 1200. Eemainder subject to life of E., 1210. C. one-third; P. one-third, 1210. H. dies before E. dies, 1210. "Pay over to", intended conversion, 1211. Necessary to intention, 1211. Eealty as personalty, 1211. ,R. and C. legal,, vested, 1210. Trustees of H. legal vested, 1210. H. against all but trustees, 1210. Equitable, remainder, 1210. Vested in his children, 1210. Trust one-third to son H., 1210. Residue to children, 1214. ■ "But", "die without" issue, 1214. "Revert'.' to the others/ 1214. ARE TO PAGES.] Vesting of Estates — continued. Residue to children — continued. Death rule not to be extended, 1214. Circuit court's decision, 1215. Direct devise, take absolute estate. 1214. Intent reasonably certain, 1214. Not search to defeat, 1214. No language overriding, 1214. Residuary estate: definition, 1213. Future estate, presumptive^ 1213. Lapsed legacies fall into, 352. May be several; intent, 1213. Rents and profits; no provision, 1213. Added; to residuum, 1213. Future income distributed, 3213. Until residuary determined, 1213. Realty income distributed, 1213. Silence: directed to accumulate, 1213. Not permitted as to realty, 1213. Vested within four years, 1213. Void devise; query, 3.51,. 352. Void legacies. faU into, 351, 352. When to take effect, 1213. Beneficiaries then living, 1213. After widow's death, 1213. Reversion; remainder; distinction, 351. Rules as to vesting: Death of testator ordinarily, 1208, 1214. Direction to divide, 1209. Displaces general rule, 1209. Those at division time, 1209. Effect at testator's death, 1209. Yields to intent; death subsequent, 1208,, 1215. Death of child; bequest in terms to, 1216. Decease in testator's life, 1216. "Divided" at specified time, 1215. General rule; realty, personalty, 1200. So held as to both, 1200. Income, vested right only carries, 1209. Intent, reasonably certain, 1214. Not search to defeat, 1214, Law favors early vesting, 1216. In case of uncertainty, 1216. Legacies future time certain, 1200. Vested, not subject to condition, 1200. Legacies, condition precedent, 1200. GENERAL INDEX 1453 [REFERENCES Vesting of Estates— continued.;, Eules as to vesting — continued. Contingent; may never happen, 1200. Nearly equivalent to "possessed", 1200. None of rules inflexible, 1211. Will and circumstances, 1211. Yield to intention, 1211. Personalty vesting; civil law, 1200. Precedents of little value, 1214. Intent reasonably clear, 1214. Not invoked to override, 1214. Remainder not vested, contingent, 1200. Residuum in executors, 1099. Right to fund itself, 12091 Nothing to contrary, 1209. Vest's right to use of,, 1209. Statute, differs from . common law, 1207. Statute, common law, classified, 1207. Term, ' ' vesting ' ' ; limitations, 1207. Superior to all others ; intent, , 1216. Read out of language, 1216. "Vested", in English law/1200. As to future interests, 1200. Not condition precedent, 1200. Vesting immediately, 1210. Legal and equitable,, 3,210. Unless will clearly contrary, 1210. "Vesting", originally' realty only, 1200. Vests; controls doubtful case, 1214. Not looked to defeat intent, 1214. Will first consulted ; statute , after, 1212. Operation not to be, reversed, 1212. Specific; devise to trustees, 1213. Income to widow; remainder, 1213. No language to postpone, 1213. Nothing uncertain in will; 1213. Vested, testator's death, 1213. Suspending conveyance, 1206. Vested at time expiration, 1206. Ten-year trust to trustees, 1214.' ' Directs pay; give and bequeath, 1214. Present grant; vesting, 1214. Postpone distribution, 1214. Time postponed only : , Annexed to payment or gift,, 1200. Vesting not deferred, 1200, 1210. ARE TO, PAGES, ] Vesting of Estates— continued. Title: Beneficiaries cannot confer, 1206. Where it vests in trustees, 1206. Class devise, at testator ■ s death, 1200, ' ...';'.,■' Nothing indicating contrary, 1200. , Divestedj condition occurred, 1206. Executors as , trustees, ,1199. Personalty; purchased realty, ^1199; Legal in heirs; trustee control, 1208. Tied up. during lives,, 1199. Realty title, as trustees, 1200. Extent required only, 1200. Trust, .convey to issue, 1205. Not vest in cestui que trust, 1205. Trustees : Executors as,, by implication, 1199. Duty to so administer, 1199. Hold personalty as trustees, 1199. Realty purchased with, ,ll99. Realty title, as, trustees, 1200. Extent required only, 1200, r /'Trustee to assume control", 1208. ,, Legal title in beneficiaries, 1208. Income to, heirs, 1208. With trust power in trustee, 1208. Power of sale, also,, 1208. Life- estate; remainder, 1208. Widow 'selection; vests from, 374. Will rights; Become vested at testator's death, 1198, 1205, Executors acting as trustees, 1199. Passing title, requires probate, 1199. Relates back to the death, 1199, 1205. "Without issue," supplied, 1202, 1212. See also Afterborn Child. Construc- tion of Wills. Trusts. Voluntary! Payments. See Payments. . See- Services., Waiver, 1216. Absence of intent to,;1218. y- • Appeal; irregular judgment* 1217J Accepting [judgment condition, 1217. Irregularity; guardian ad litem, 1218. ,, / ,,,;.,„, V r With; court's consent,. 1218. 1454 GENERAL INDEX [ REFERENCES Waiver— continued. Change of position: Essential to estoppel, 1218. Not essential to waiver, 1218. .Constitutional trial rights, 1'217. Defense of, pleaded, 1218. Deposition defect:' '' Appears and cross-examines, 1217. Objects to questions, 1217. Disqualification of judge, 12l8. Minors not waive, 1218. Fact question, when, 1219. Failure to give notice, 1217. Failure to urgp objections, 1218. Guardian ad litem: Appeal irregularity, 1218. With court's consent, 1218. County court practice, 12l9. Heirship claim, 1218. Not by claim filed, 1218. Implied from circumstances, 1218. Claim of absence of intent, 1218. Established otherwise, 1218. Infants : Not judge's disqualification, 1218. Rescission of contract tender, J.218. Jurisdictional defect : Appearing and contesting, 1217. Service of process, 1217. General, appearance, 1217. Notice of appeal, H\7. .Vacating irregular judgment, 1217. Asking such relief, 1217. Jurisdiction, generally, 640. Law question, when, 1218. Fact; different inferences, 1219. Maintenance contract, 120, 121. Rule as to waiver, 1218. _'„ Definition of, 1218. Service of process defect : Appearing and contesting, 1217. General appearance, 1217. Argued a demurrer, 12l7. Or want of service, 1217. Time, all cases generally, 1218. Transactions with deceased, 1105. ' Witness fees; presence, 1239. See also Appearance. Ratification. Wards' Sale of Realty. See' Incompetents' Sale of Realty. Infants' Sale of Realty. Warranty, 1219. Agent's authority to, 1219. ARE TO PAGES. ] Warranty— continued. Agents' authority — continued. Express authority, 1219. Or usual course; 1219. 1 '' Representation, 1220. Definition of, 1219. Implied warranty of title, 1220. Possession condition, 1220. Not under statute, 1220. Quality of goods, 1219. No implied warranty, 1219. Not particular fitness, 1219. Personalty; implied title, 1099. Facts may be shown, 1099. Representation; not the same, 1219. Principal may be liable, 1220. Warranty always is, 1219. Reverse, not necessarily, 1219. Three ways to warrant, 1220. Widow. Action for husband 's death, 27, 28. Agreement during coverture, 1224. Releasing interest in estate, 1224. Void after husband's death, 1224. Allowance : Advances for heirs' support, 13. Administrator personally liable, ; 13. Amount in court's discretion, 1225. Ante-nuptial contract; not allowed, 1228. Dower rights, profits, not impaired, 1221. Fraud with husband; transfer, 1228. Not given allowance out of, 1224. Minor may have, 1225. ' ' Possession of life devise, 1221. Not entitled to, 1221. Except death to probate, 1221. Practice and procedure, 1228. Reasonable amount, before order, 1221. At executor's risk, 1221. Realty income, allowed, 1228. Extent on hand only, 1228. Means net income, 1228. Release of interests to creditors, 1224. Entitled to allowance, 1224. Revocation; discretion abuse, 1222, 1223, 1225. Causes afterward arising, 1225. • Orders not retroactive, 1225. ( Situation being unchanged, 1222: Testate as well as intestate, 1223. GENERAL INDEX 1455 [ REFERENCES Widow — continued. Conversion of estate funds, 30. No damage done, 30. Declarations in damage suit, 47. Election : Affects all personalty of. estatej 1223. All realty within state, 1223. Realty without the state,' 1223. Ante-nuptial contract void, 1228. Escrow deed; may elect, 1228. Assignable in her lifetime, 1225. May bequeath by will, 1225. ' Attorney filing, presumed authorized, 1224. Until evidence otherwise, 1225. Bar herself within the year, 1225. Accepting funds, not bar, 1225. Acts inconsistent with right, 1225. Becomes her absolute estate, 1225. Common law rule, 1222. Will not exclude dower, 1222. Unless expressed or implied, 1222. Decease or incompetent, 1226. Made by representative, 1226. Excluded from intestate estate, 1222, 1227. Will, with no election, 1222. . Executor trustee of her sharej 1225. Husband cannot divest, 1225. Merely Offer by will, 1225. She may then choose, 1225. Income provision, reverted, 1226. Insane widow; no excepti6n, 1223. Equity eleets; common law, 1223. With or without statute, 1223. Executor now, by statute, 1223. Most advantageous choice, 1223. Net personal estate, 1226. After administration expense, 1226. Construction; partition, 1226. Provision; expend as necessary, 1223. Equity compel execution, 1223. Not legally uncertain, 1223. Intent to make, 1223. Personal trust for widows 1223. Provision was per cent of residue, 1228. Becomes residue, not intestate, 1228. Realty found to be intestate, 1227. Provision, not as intended, 1227. Barred, not electing, 1227. Small amount to widow, 1227. ARE TO PAGES. ] Widow— continued. Election — continued. Rejected provision ; not residue, 1227. Otherwise when part of residue, 1228. Release of election interests, 1223, 1227. Equity set aside,' six years later, 1227. Allowed as if elected, 1227. ' For gross undervalue, 1224, 1227. Guardian ad litem contest, 1224. To trustees knowing' value, ; 1224. Widow, ignorant of value, 1224, 1227. Voidable as to ! her, 1224. Right cannot be taken away, 1224. Either personalty or dower, 1224. By release during coverture, ■ 1224. • ; " ■' Sole beneficiary elects, 1223, 1226. Grantees same interest, 1226. Incumbrance 1 purchase, 1226. Might subrogate, 1226. Not if consideration, 1226. Though fee purchase', 1226. Homestead as intestate, 1226. 1 Insolvency, of estate, 1223, 1226. Realty title in heirs, 1223, 1226. Statute changes former rule, 1222. Realty and personalty included, 1222! Will : isin lieu of dower, 1222. Unless plainly expressed, 1222. Statute strictly followed, 1227. Where no provision made, 1225, 1227.' ' ' ' May now have share, 1226. Will contest not' excuse 'delay, 1224. Fraud With husband; transfer, 1228. Debts paid;' allowance, 1228. Homestead : Insurance, expense of, .1227. 'Right only, of, $5,000, 1228. Insurance expense; .homestead, 1227. ' Litigation expense incurred, 1226. Property rights after divorce, 364. Selection of $200: Absolute selection right, ,1221. Order unnecessary, 1221. May: select note as pa»t,i 1221-1222. Must show to get title, 1222. Not selected in life-time, 1228. Error to allow, 1228. 1456 GENEBAL INDEX , [REFERENCES Widow — continued. Settle for killing ,husba»(j, 1224. Without administrator, 1224. Wife subsequent to will, -348. See , also Dowe$, Homestead. Hus- band and Wife. Wife. See Husband and Wife. Wills, 1229. Agreement not substituted, 1236. Agreement to will:., , ,, , Realty and personalty, 1234. Indivisible; both void, 1234. Oral, void as to realty, 1234. Alteration: in, detail,, 66. Since execution; , voids it, 1230. Not being explained, 1230. Assumed to be valid, 350., Agreement of parties, 350. Beneficiary: Not contest, others ' title, 1100. Codicil and will, one, 1233. Construction : . in detail,. 237. Extrinsic, .evidence; not vary, 1232. Not enlarge or control meaning, ,1232. i Place , court, | testator 's position, 1232. ',, ,. . .. To interpret language, 1232. Plain and unambiguous, 1232. Not latent ambiguity, 1232. Not issue at probate, 1232. , ; Future consideration, 1232. Paragraph revocation considered, 1235. , . Separately from the probate, 1235. Declarations as to making, 49,. Definition of, will, 1233. ',' Devisee", takes realty, 1231. Effective after probate, 1232. Certificate; conclusiveness, 899. , Immediately on death; title, 1233. Relates. back to death, 1232. Speaks from that moment, 1232. When duly proven, 900. Execution of Wills, 411. Foreign wills, 459. Fraud : Attorney, reversing names, 1233. Whether set aside for, 1230, 1231. Governed by law at death, 257. Ineffectual until probate, 1099. Instruments : Certifying notes held) valid, 1234, ARE TO PAGES.] Wills — continued. Instruments — continued. Possible agreement not excluded, , 1234. Present will of the maker, 1234. Revoked, by later disposition, 1234. Witnessed; not contractual, 12:J4. Codicil and will, is will, 1233. Deed: conveying in trust, 1235. Not testamentary, 1235. Principles ; testamentary deeds, ', 1235. (1) Clearly deducible, 1235. (2) Ambiguous instrument, 1235. (3) No testamentary indication, 1235, Definition of will, 1233. Note and mortgage, testamentary, 1234. If contractual, enforcible, 1234. Not contractual; will if at all, ■ ; 1234. Several together may be will, 1230. Each partially disposing, 1230. Testamentary character, 1233. Incorporated in later will, 1233. ; Two, last referring to first, 1233. First not properly executed, 1233. Unambiguous lease, 1233. Intention : Governs : extrinsic circumstances, 1230. Language not understood, 1232. Law; when it takes effect, 1232. Existing at the decease, 1233. "Legatee?', takes personalty, 1231. Living person's estate given, 1233. Election to take, binds, 1233. Lucid interval: Stress on will provisions, 1230. Not lightly set aside, 420. Nuncupative wills, 778. Oral promise by legatee, 1231. Created trust to carry out, 1231. Modifying probate order, 1231. Probate: in. detail, 897. Adjudication conclusive; fraud, 1231. Construction,; not in issue, 1232. Considered after probate, 1232. Matters for the future, 1232. Nor any other questions, 1232. Paragraph impliedly revoked, 1235. , GENERAL INDEX 1457 [REFERENCES Wills — continued. Probate — continued. Separately from piobate, 1235. Legal effect not involved, 1235. Oral legatee promise, modifying, 1231. Creating trust to carry out, 1231. "Whether set aside for fraud? 1230, 1231. Concealing fact of fraud, 1231. Conclusive as to no fraud, 1231. Equity; no jurisdiction, 1231. Gross laches ineffective, 1231. Not in county court; laches, 1231. Realty disposition : May be made in three ways, 1230. Reformed; cannot be, 1231. Subject in detail, 949. Revocation: in detail, 967. Later will a former, 1230. Without revocation clause, 1230. Paragraph void; after probate, 1235. Rights as to: Agreement not substituted, 1236. Breaking guarded against, 1231. Court's duty to uphold, 1232. Every sane man to make, 1231. Guaranteed by constitution, 1236. Hope of inheritance, 1234. Kin wishes, immaterial, 1232. Make and have enforced, 1159. Scheme not disturbed, 1159. More sacred than contract, 1235. " Court and parties abide by it, 1235. No power to correct, 1235. Not set aside or reformed, 1235. Need not give reasons, 1233. Not most just; unequal, 1173. Part of the common law, 1235. Policy, not seek to avoid, 1232. Right to discriminate, 1233. Same right as to contract, 1232. Vest at death, 1198, 1205. Speaks from the death, 245, 1232. Taking under a will, 1233. Confirms the whole, 1233. Testamentary capacity, 1080. Testamentary promises, 999. Title: in detail, 1096. Prom decease after probate, 1231, 1232. Effect, legally at decease, 1233. Taking benefit; not contest, 1100. Zimmerman — 92 ARE TO PAGES. 3 Wills — continued. ' Two independent wills, 1230. Cannot have such,, 1230. Later revokes first, 1230. l Without revocation clause, 1230. Undue influence, in detail, 1161. . Vesting, of estates, in detail, 1195. See also! Codicils. Construction of Wills, Descent and Distribu- tion. Execution op Wills- Foreign Wills. Lost Will, Nun- cupative Will. Power. Probate or Wills. Revocation. Testa- mentary Capacity. Trusts. Trust Variation. UiJdue Influ- ence. Vesting of Estates, etc. With Will Annexed. See Administrator with Will An- , nexed. Witnesses, 1236. Adverse party witness, 1239. Showing facts different, 1239.! Appearance of things, etc., 410. Attendance : All to obey subpoenay 1240. Duty to attend as ebihmanded, 1240. Experts; extra work; extra fees, 1240. Implied or express contract,' 11240. Not counties or stats; 1240. Experts Of all kinds, likewise, 1240. Whether professional or not, 1240. Not implied contract; experts, 1240. Subpoena not compel equipment, 1240. Testify facts within knowledge, 1240, Attorney, subscribing witness, 1239. Belief unddr dath, 1237. ' Competency r Court's inling 1 effective, 408. Evidence, when presented, 402. Impaired mental condition, 1340. Not necessarily incompetent, 1240. Trial court to decide, 1245. Weight ordinarily, not competency, 1240. Unless substantially triial, 1240. Too late after examination, 1238. Motion for new trial, 1238. Value (ft personalty destroyed, 1241. Conclusions frojn iae*s, '123-8-, Ordinarily facta only, 1238., 1458 GENERAL INDEX I REFERENCES Witnesses — continued. . Cross-examination : Immaterial question; bound, 1241. Error to impeach, 1241. Credibility: Avocation not to discredit, 1238. Credibility hot impeached, 1238. Entitled to belief, 1238. Whatever occupation, 1238. Enmity or friendship, 1237. Party calling the witness, 1239. Criminal charge against, 1237. Enmity or friendship, 1237. Evidence, generally, 401. Examined by court, 409. Examined without interruption, 1237. Executor; testator's declarations, 1241. Expert testimony, 432. Fees: Attendance; without state, 1239. Attending different causes, 1238. Attending, not sworn, 1238. Between parties, 1240. Experts, not compel extra, 1240. Extra work; may imply extra fees, 1240. Implied or express contract, 1240. Not upon counties or state, 1240. Fixed at $1.50 per day, with mileage, 1240. Not criminal cases, 1240. Parties not recover, 1237. Waived by presence in court, 1239. Hostile; examination, 409. Husband and wife: in detail, 535. Divorced wife, agency matters, 1238. Not confidential matters, 1238. Divorce ; within the year, 1241. Still incompetent, 1241. For and against, when parties, 1237. For husband, as agent, 1237. For wife as agent, 1237. Husband and wife; detailed, 535. Husband as nominal party, 1238. Eules fully stated, 1238. Wife for co-defendant; husb. nomi- nal, 1240. Incriminating evidence rules, 362. Intoxicated at transaction, 1239. Infants : Between seven and fourteen, 1239. Four years of age, 1239. Majority rule not recognized, 1238. ARE TO PAGES. J Witnesses — continued. Memoranda: Refresh memory; defective, 1237. Non-experts, 432. One competent witness, 1239. Preponderance : Not go with numbers, 1239. Sustained, unless against, 1239. Present in court; fees, 1239. Privileged communications, 890. Befusal to answer, 1238. Subscribing witness to will: in detail, 411. Attorney competent to testify, 1239. Heir, not a beneficiary, 1239. Test, beneficial interest, 1239. Trial court's opportunities, 1239. Preponderance against finding, 1239. Uncontradicted statement, 1239. Court not bound to accept, 1239. Wills; execution of, 411. Without the state, 1239. Additional compensation, 1239. See also Cross Examination. , Evi- dence. Examination 1 op Wit- nesses. Execution op Wills. Expert . Testimony. Husband and Wipe. Impeachment op Witnesses. Leading Questions. Objections. Parties. Privileged Communications. Transactions with Deceased Persons.. Words and Phrases, 1241. Abbreviations, 1246. , Acceptance, 1244. Accord, 1244. Account, 1245. Actual value, 1246. All, . 257. Adult persons, 557. "As", before administrator, etc., 1243. Balance, 1245. Bequeath, 1245. Capital, 244. Cases at law, 1242. Certificate of depogit, 1243. Child in will, 53, 253. Children, 603, 1245. Circumstantial evidence, 1244. Claim or demand, 1242. Clear preponderance, 1246. Consent, 1246. Construction of contracts, 220. Construction of deeds, 225. GENERAL INDEX 1459 t REFERENCES Words and Phrases — continued. Construction of statutes, 232. Construction of wills, 237. Conveyance, 1243. Currency, 1243. Current funds, 1243. Death without issue, 1246. Debt, 1244. Devise, 1245. Directory statute, 233. Ditto marks, 1246. Duplicate application, 1244. Earnings, 1243. Expenses}* 1246. Pace, 1245. Face value, 1245. Family, 603, 1245. Good moral character, 1244. ■■ Grant, 1242. ,, . Heirs of living, 258, 264. Illegitimates, 253, 254. Income of real estate, 1245. Incumbrance, 1243. Indebtedness, 1244. In good faith, 1243. Inheritance, 1245. Inquire in a. summary manner, 1243. Institution and . organized, 1242; Intention, 1247v Judicial act, 1244. Lawful heirs, 1245. - Liability, 1247. Living together, 1247. Long account, 8. Mandatory statute, 233i Market price, 1246. Market value, 1246. Merger, 1242. Money, 1243. More or less, 1247. Mother, 1247. Mutual accounts, 8. Next friend, 1243. "Or", as and or alias, 1247. Parents, 347. Part, 262. Pay, 1247. . Pay over and deliver, 1242. Paid in full, 1245. Plow land, 1247.. : , , Preponderance, 1244. Promissory note, 1243. Provision, 245, .1245, , Purchaser, 1246. Receipt in full, 1243. Relatives; 320. ARE TO PAGES.] Words and Phrases— continued. Residence, 1244. Residue, 1246. Revert, 1247. Rules as to, 1242. Securities, 263. Seizin, 1246. Stock,- 244. Subscribed, 1243. Succession, 1245. Suitable, 1244. Surviving, 1244. Survivor or survivors, 1244, 1246. Testifying, 1244. Testimony, 1244. . i Unless, as except, 1242. Value, 1247. Value received, 1242. Vesting of estates, in detail, 1195. Void, voidable, 1245. Wills, in detail, 237, 1229. See also Appropriate General Titles for Constructions, Definitions, etc. Writings, 1248. Administration letters, authority, 43. Cross-examination : , Placed in witness,' hands, 1250. Dispqsition of property, ,1252. (1) Conveyances, 1252.; , . Requires consideration, 1252. (2.) Executory contracts, 1252. (3) Testamentary; future, 1252. Requires death to enforce, 1252. Explained by parol: Letters after the contract, 1249. Medical report by examiner, 1250. Not when vesting a rightj 1249, Otherwise not excluded, 1250, Defective^ as memoranda, 1250. Payment, though receipt, 1250. Written and verbal, 1250. Receipt and other writings, 1249. Receipts in full, 125Q. Res gestae, in detail, 960. Rule, when not allowable, 1250. (1) Written instrument required, 1250, (2) Contract put in writing, 1250. (3) Where one asserts writing, ' 1250. Other disputes it, 1250. When evidence of a fact, 1249. Will, deed, or covenant, 1249. 1460 GENERAL INDEX t REFERENCES Writings — continued. Letters : Acceptance by mailing, 1230. Though never received, 1250. After contract; explained, 1249. Between husband and wife, 1252. Contract made by, 1250. Dunning letter for balance due, 1250, 1251. Failure to reply, 1250. Keiterating contract, 1250. Silence admission of claim, 1251. Admitted to show, 1250. Evidence of the contents, 1253. Original burned or destroyed, 1253. Subsequent to contract breach, 379. Letter-press copies, admitted, 1253. Improper, nothing as to originals, 1253. Orders,, binding if accepted, 1252. Countermanding letter, 2 P. M., 1252. ,,,; . Acceptance, sub-station, 4 P. M., 1252. Withdrawn until accepted, 1252. Original and letter press copies, 1253. Proof of mailing in time, 1251. Not remember; not weaken, 1251. Prima facie evidence 1 of, 1251. Eealty sale contract, 1253. Enforce specific performance, 1253. Promise, sufficient consideration, 1253. Signed by stamp; copy, 1253. Competent as evidence, 1253. Transactions with deceased, 1105. Lost writings: To establish written contract, 1254. Clear and satisfactory evidence, 53, 1254. Maps and diagrams, 1254. Establish independent fact, 1254. Strict evidence rules, 1254. Slight 'proof of accuracy, 1254. Memoranda : Auctioneer's, of sales, 110. Defective contract used, 1250. Future sales, consideration, 215. Made at the time, 1249. Copy of the same, 1249. Original and copy defaced, 1249. Third copy used, proper, 1249. Testified to as correct, 1249. ARE TO PAGES.] Writings — continued. Memoranda — continued. Made in party's own interest, 1254. Self-serving memorandum, 1254. Not unless witness needed it, 1252. Admission, held error, 1252. Not used to refresh memory, 1254. Entries against decedent, 11. Made by another, 1254. Unless he knows it correct, 1254. Open to some suspicion, 1249. Affecting credibility, 1249. Used to assist memory, 1249. Prove cash payments, 6. Within present recollection, 1252. Not producing at testimony, 1252. Affects credibility, 1252. Not competency,. 1252. Unless unreasonable refusal, 1252. Written in ledger of vendee, 1251. Admissible as an admission, 1251. Substantive evidence; identified, 1251. Not by wife's evidence, 1251. Not admissible as account, 1251. Memorandum so made, not, 1251. Presence of both parties, 1251. Testify to what took place, 1251. If he could identify, 1251. Though not his name, 1251. Vendee's wife at his dictation, 1251. Witness heard, made and saw, 1251. Minutes of former trial, 1251. Production of: At adverse examination, 359. Asked to produce on cross-examina- tion, 1253. Not sufficient to act, 1253. Control of papers, duty, 359. Credible denial of, 359. Formal notice to produce, 1253. Or demand for production, 1253. Letter press copies, 1253. Originals to be accounted for, 1253. Custodian be subpoenaed, 1253. Not in party's control, 1253. Not duplicates of originals, 1253. Notice at trial, insufficient, 1249. Writing not in court, 1249. Order to deposit with clerk, 1250 Proper discretion, 1250 GENERAL INDEX 1461 [REFERENCES Writings — continued. Production of — continued. Private books and papers, 1253. Of a third party, 1253. Possession rebutted, 359. Receipt in contract form, 978. Receipts in full, 1250. Telegram : Varying offer in writing, 1251. See also Contracts. Handwriting. Parol. Writ of Certiorari, 1254. Appealable orders or judgments, 1255. Common-law writ not apply, 1255. Court not review, 1255. Appear wrong has been done, 1255. Nature to be corrected, 1255. Circuit court to county judge, 298. Common law rule prevails, 1255. Issued to inferior courts, 1254. Acting judicially, 1254. Judicial nature only, 1255. Officer or municipality, 1255. Not ministerial or unlawful acts, 1255. Jurisdictional errors only, 1255, 1256. Has no other use, 1256. Except to bring record up, 1256. Not postponement denial, 1256. Not weight or credibility of evi- dence, 1256. Test validity of proceeding, 1255. Notwithstanding supersedeas, 1255. Judgment pleaded in estoppel, 1255. Other proceedings taken, 1255. Reaches record, not body, 1256. Record must show, 1255. Parol testimony not allowed, 1255. Superintending control, 1255. Not lightly exercised, 1255. When ordinnary remedies suffice, 1255. Suspends the execution, 1255. Does not vacate, 1255. ARE TO PAGES.] Writ of Error, 1256. According to common law, 1257. After judgment, law action, 1257. Some supposed mistake, 1257. Civil actions; final judgments, 1256. Triable by jury only, 1256. As a matter of right, 1256. Except divorce actions, 1256. Constitution preserved common law, 1256. Cannot be taken away, 1256. Where existing before, 1256. Criminal as in civil cases, 1256. Not issue of insanity, 1256. Not decree in equity case, 1256. Not to review order, 1256. Statute not enlarged it, 1256. Not restrictive effect, 1257. Upon final judgments only, 1256, 1257. Not bring up subsequent orders, 1257. Writ of Ne Exeat, 1257. Ancillary to an action, 1258. Application of complainant only, 1258. Not against plaintiff:, 1258. Functions as common law, 1257. Obtain equitable bail, 1257. Issued by court of equity, 1257. Against a debtor party, 1257. Not against third person, 1257. Nature of equitable bail, 1258. Party about to leave, 1258. To make decree ineffectual, 1258. Provisional remedy, 1258. , Issued at summons, or after, 1258. Recital of ancient writ, 1257. Statute not change, 1257. Special order of court, 1258. Statute, not create or define, 1257. Common law recognized, 1257. Scope not enlarged, 1257. "Sufficient grounds", means, 1258. As at common law, 1258.