administration. Without entering into a detailed computation of values, it is sufficient to say the wife did not receive to exceed the residence, worth about $4,500 in excess of onethird of the estate. The parties estimate the value of the estate to have been $100,000, and even had the design been to leave it in equal parts the discrepancy might be attributed to difference in judgments of value. Moreover, his correspondence and declarations show that the property was distributed in pursuance of a matured design on his part and what was done cannot be said to indicate that it was the work of a disordered mind. That his memory became impaired we have no doubt. He sometimes forgot for a time what he had done the day before, and had difficulty in locating places and remembering descriptions of his land. But nothing in · this record indicates that his memory was so poor that he could not, and did not, attend to all his business with good judgment. True, he sometimes referred to his wife for facts as younger men often do, but neither this nor anything else proven showed that he was helpless or dependent on her for direction or care, save in his last sickness. We have referred to the facts proven rather than the opinions of the witnesses, for the latter are seemingly in sharp conflict. Taking into consideration the facts relied on as a basis of the opinions of the nonexpert witnesses and the opinions of the physicians, we are inclined to think that the mental impairment was no more than that attributable to advancing age. He was in possession of his faculties though these were less vigorous than formerly. Without reviewing all the evidence which we have read with great care, we are content to state our conclusions merely, and these are: (1) That the evidence fails to show that deceased was helpless or dependent on defendant for care prior to his last sickness in 1902, and for this reason no presumption arose that the conveyances were of her procurement; (2) that the burden of proof was on plaintiffs to show that the conveyances were the result of undue influence exerted by the defendant, and (3) that the evidence fails to sustain the allegation to this effect. The trial court did not err in dismissing plaintiffs' petition, and the decree is affirmed. TOWN OF NEOLA, Appellant v. S. W. REICHART. Breach of the peace. Any riotous or forcible conduct or the utter1 ance of blasphemous language in a public place is a breach of the peace. 2 Cities and towns: POLICE POWER: PUNISHMENT OF CRIME: ORDINANCES. Where the statutes authorize a city or town to define by ordinance an offense against the municipality and prescribe a punishment therefor, the fact that the statutes also define and provide for the punishment of the same offense does not render an ordinance to that end void because inconsistent therewith. Appeal from Pottawattamie District Court.- HON. W. R. GREEN, Judge. WEDNESDAY, SEPTEMBER 26, 1906. THE evidence indicated that the defendant and several others were in Steffen's saloon; that he and Foley were jollying each other, when the latter playfully threw his arms around defendant's neck and offered to kiss him, and accidentally knocked his hat off; that defendant remarked that he was no d n fool," and, as Foley was about to apologize, called for drinks, and struck at Foley twice, missing him about four feet. Thereupon Foley threw defendant to the floor and demanded that he admit that he had enough, whereupon the latter responded by calling him a son of a bitch. The city marshal entered at this time, and, after parting them, filed an information against defendant in the mayor's court, where he was convicted. Upon appealing to the district court the information was amended so as to charge that defendant "did willfully and unlawfully disturb the peace of others, whose names are to affiant unknown, by the use of loud, violent, and tumultuous language, and by obstreperous conduct and carriage, and by profane, obscene, and offensive language calculated to provoke anger in other persons, and thereby caused a breach of the peace; and at the same time and place, and as a continuance of the same transaction, the said defendant did willfully and unlawfully commit an assault upon one J. P. Foley, and strike him in anger, and engage in a fight with him—all contrary to the ordinance in such cases made and provided." At the conclusion of the evidence defendant moved that a verdict be directed for the defendant on the grounds (1) that the ordinance under which the prosecution was had covered the same offense included in the statutes of the State and was inconsistent therewith, and (2) that the evidence failed to show that the peace of any person was disturbed. This motion was sustained, and a verdict directed for defendant, and judgment entered thereon. The plaintiff appeals.- Reversed. John P. Organ and F. A. Williams, for appellant. No appearance for appellee. 1. BREACH OF THE PEACE. LADD, J.-The evidence shows conclusively that the defendant, if guilty at all, was guilty of an assault, or of an assault and battery, or of engaging in a fight or an affray, or of making use of blasphemous language. These were denounced by sections 11 and 12 of the ordinance of the incorporate town of Neola, and the same penalties provided as are fixed by statutes of the State defining the same offenses. See Code, sections 4774, 5029, 5033, 5034. The trial court must have held that the enactment of such an ordinance was an excess of the powers conferred on a city or incorporated town, as the transaction was without doubt a disturbance of the peace. By "peace," as used in this connection, is meant the tranquillity enjoyed by the citizens of a municipality or community where good order reigns among its members. It is the natural right among all persons in a political society, and any intentional violation. of that right" is a breach of the peace." breach of the peace." See Davis v. Burgess, 54 Mich. 514 (20 N. W. 540, 52 Am. Rep. 828), where it was held that the use of indecent and profane language on a public street constituted a "breach of the peace." The court there said that " actual personal violence is not the essential element in the offense. If it were, communities might be kept in a constant state of turmoil, fear, and anticipated danger, and conduct of a guilty party, not only destructive of the peace of the city, but of the public morals, without the commission of the offense. The good sense and morality of the law forbids such a construction." In State v. Benedict, 11 Vt. 236 (34 Am. Dec. 688), public peace is defined as that "invisible sense of security which every man feels so necessary to his comfort and for which all governments are instituted." In City of Cornvallis v. Carlile, 10 Or. 139 (45 Am. Rep. 134), it is said that the word "peace," in its legal significance, means "quiet, orderly behavior of individuals to another" and "toward the government, which is said to be broken by acts of a certain kind. Any riotous, forcible, or unlawful conduct or procedure is a breach of the peace. Offenses against the public peace include all acts affecting the public tranquillity, such as assault and battery, riots, routs, and unlawful assemblies, forcible entry and detainer," etc. 4 Blk. Com. 142. What happened was in a place to which the public generally was invited, and in the presence of numerous citizens who had a right to be there, and was clearly a disturbance of the peace of that community and the persons present. II. May a city or incorporated town declare acts offenses against the municipalities, and prescribe punishments therefor, when the same acts are denounced as misdemeanors by the statutes of the State and punished accordingly? If 2. CITIES AND power: punishment of crime: ordi nances. ordinances. such power is specifically conferred, the authorities agree that it may be excised. The conflict arises in TOWNS: police determining whether such authority is to be implied from statutes conferring general powers upon municipalities to enact such This court is committed to the doctrine that if the subject of the ordinance is fairly within those powers conferred upon the town or city, the mere fact that the matter has been covered by statute will not invalidate the ordinance. This was settled in Town of Bloomfield v. Trimble, 54 Iowa 399. In that case an ordinance denouncing intoxication and fixing a penalty was upheld, though there was a statute to the same effect. But the scope of the statutes conferring such powers have been somewhat narrowly limited. Thus in City of Mt. Pleasant v. Breeze, 11 Iowa, 399, an ordinance punishing the keeping of gambling devices was not within a statute investing the city with authority "to suppress gambling;" and in City of Chariton v. Barber, 54 Iowa, 360, a statute empowering cities "to suppress and restrain" houses of ill fame was held not to authorize the enactment of an ordinance declaring the keeping of such houses a misdemeanor and prescribing punishment therefor. In Town of New Hampton v. Conroy et al., 56 Iowa, 498, the above decisions were followed, and the ordinance concerning the sale of prohibited liquors held invalid, because prohibited by fair implication of the statute. In City of Centerville v. Miller, 57 Iowa, 56, an ordinance denouncing the keeping of any house where loud or unusual noises are permitted, or persons are permitted to congregate and engage in the use of profane or vulgar language to the disturbance of others, was held to have been authorized by a statute conferring power to prevent noise, disturbance, or disorderly assembly. The court refused to extend the foregoing decisions, intimating doubt as to their correctness. In Incorporated Town of Nevada v. Hutchins, 59 Iowa, 506, it was held that power "to cause any nuisance to be abated" did |