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ants were notified thereof, and the said demand draft, with bill of lading attached, was presented to defendants for payment, but they refused to pay the same after the arrival of the spikes, and refused to accept the spikes and pay for same, but on April 3, 1909, the day the spikes arrived at Marianna, the defendants wrote the plaintiff and asked plaintiff to allow 2 per cent. off for cash, or 30 days' time for payment, but the plaintiff refused this, and the car of spikes remained at Marianna until the 30th of April, 1909, waiting for defendants to pay the draft, but defendants failed to do so, but on April 26, 1909, the defendants in writing stated to plaintiff that they could not use the spikes for some time, and were not in a position to take up the bill of lading, and they offered then and there to give the plaintiff their 60 or 90 day note, with 8 per cent. interest, to pay for the spikes, at the same time advising plaintiff that unless it would take their notes they were not then in a position to take up the bill and unload the spikes; that, upon receipt of this information from defendants, the plaintiff immediately wired the defendants, "unless draft for spikes paid to-day, and we hear from you to this effect before noon, will arrange other disposition and have car reforwarded; answer," which telegram was received by the defendants before noon of April 30, 1909, but they did not answer as requested, nor pay the draft for the spikes, and by reason of the refusal of the said defendants to accept and pay for the said spikes, the plaintiff was forced to pay demurrage charges on the car to ship the goods to another point and to sell the spikes at a loss, though the best market price at the time was obtained. Damages for such losses were claimed. The defendants demurred to the declaration, on the grounds that it is vague and indefinite and states no cause of action; that no contract was made; that no notice of the resale was given, and that a

reasonable notice of the resale was not given. This demurrer being overruled, and the defendants declining to plead, a default and final judgment thereon were rendered, and the defendants on writ of error contend that error was committed in overruling the demurrer to the declaration.

tions between the parties. If the order for spikes was not at first severable from that for braces, it was so treated afterwards by the parties, and the subsequent contract relation for spikes was severable from the original order for braces, as to which latter the price or terms of payment were not mentioned.

[2] The only other contention, that notice or reasonable notice of the resale was not given to the defendants, is not tenable, in view of the allegations and exhibits showing the transactions between the parties, and the telegraphic notice, after much delay in paying the draft, that if the draft was not paid that day the plaintiff would "arrange other disposition and have car reforwarded; answer." The defendants had not complied with the contract accepted by them, and their liability for the breach is made to appear.

The judgment is affirmed.

SHACKLEFORD and COCKRELL, JJ.,

concur.

TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion.

(62 Fla. 468)

EASTERLIN v. EASTERLIN.

(Supreme Court of Florida, Division A. Nov. 21, 1911.)

(Syllabus by the Court.)

WILLS (8
CHILD.
and the birth of a child subsequent to the mak-
At the common law the marriage of a man
ing of a will by him had the effect of revoking
such will, but, when the will was made by a
sequent to the making of the will did not work
man already married, the birth of a child sub-
a revocation of such will. In the absence of a
statute, this principle of the common law must
be held to be the law in this state.
Dig. 88 469-478; Dec. Dig. § 191.*]
[Ed. Note. For other cases, see Wills, Cent.

191*) - REVOCATION - BIRTH OF

Appeal from Circuit Court, Alachua County; J. T. Wills, Judge.

Action by Juanita Easterlin, by her next friend, Joe O'Bannon, against Ada Easterlin, administratrix. Judgment for defendant, and plaintiff appeals. Affirmed.

Chris Matheson, for appellant. E. C. F. Sanchez and W. E. Baker, for appellee.

[1] The contention here is that the order for the spikes contained also an order for 350 rail braces, and as only the spikes were shipped the contract has not been performed SHACKLEFORD, J. Juanita Easterlin, as made, and action on the contract does not by her next friend, Joe O'Bannon, filed her lie. In ordering the spikes, the price was petition in the county judge's court, sitting as stated, and this price was confirmed in the a court of probate, in and for Alachua counwritten acceptance of the order. The order ty, in which she alleged that George W. Easfor the braces was: "Also ship us with this terlin, her father, on the 12th day of Janushipment about 350 rail braces, to be used ary, 1909, executed a certain instrument in for bracing rail around stiff curves." No writing purporting to be his last will and price was stated, and no reference to the testament, and afterwards, on the 16th day braces was made in the subsequent transac- of December, 1910, departed this life, leaving

To this petition Ada Easterlin, as executrix, interposed a demurrer upon the following grounds:

"(1) That there is no sufficient ground alleged in said petition for revoking the will of the said George W. Easterlin.

"(2) Because the said Juanita Easterlin was living about six months before the said George W. Easterlin died.

"(3) Because there is no equity in said petitioner."

as his heirs at law and legal representatives | die seized and possessed, or to which I shall the petitioner and Mrs. Bessie Godwin, his be entitled at time of my decease, I give, daughters, and Ada Easterlin, his widow. It devise and bequeath to my beloved wife, Ada is further alleged therein that the testator Easterlin." bequeathed and devised all of his estate, both real and personal, to his daughter Bessie Godwin, Ada Easterlin, his widow, and to Callie Easterlin Fournia, his niece, leaving nothing to the petitioner, and making no provision for her whatever. The petition further alleges that the petitioner was born on the 28th day of July, 1910, after the making of the will, by reason of which fact, coupled with the further fact that no provision was made in the will for the petitioner, it is claimed that such instrument, purporting to be the last will and testament of George W. Easterlin, deceased, was “revoked by act of law, and therefore null and void." It is further alleged that such instrument was admitted to probate on the 22d day of December, 1910, and that letters testamentary were issued to Ada Easterlin, the person appointed in such instrument as the execu trix thereof. The petitioner prayed for a revocation of the will and for general relief. A copy of the will was attached to the petition as an exhibit and made a part thereof. We copy the following paragraphs of such will:

"And as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized or possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:

"1st: My will is, that all my just debts and funeral charges shall, by my executrix hereinafter named, be paid out of my estate, as soon after my decease as shall by her be found convenient.

This demurrer was sustained by the county judge, and from the judgment rendered by him the petitioner entered her appeal to the circuit court, in accordance with the provisions of section 1710 of the General Statutes of 1906. The circuit court affirmed the judgment of the county judge, and the petitioner has appealed from the judgment of the circuit court to this court, as is also provided by such section.

As is readily apparent, one sole point is presented to us for determination. Does the birth of a child, subsequent to the making of a will by its father, have the effect of working a revocation of such will? This is the first time this court has been called upon to answer this question. We have no statute concerning the matter, as have many of the states, consequently we are relegated to the common law. We have held that "a will, not made in contemplation of matrimony is revoked by the marriage of the testator and birth of a posthumous child subsequently to the making thereof." Belton v. Summer, 31 Fla. 139, 12 South. 371, 21 L. R. A. 146. We have also held that: "Under the laws of this state the will of an unmarried woman, executed in 1884, was not ipso facto revoked by her subsequent marriage prior to April 5, 1891, but where such will purported to convey all of her property, and was not made in contemplation of a subsequent marriage, such subsequent marriage was under our laws as they then existed a total alteration of her circumstances, revoking the will." Colcord v. Conroy, 40 Fla. 97, 23 South. 561. These principles do not decide the point now "3rd: I give, devise and bequeath to my before us, but the discussion in the two cited niece, Callie Easterlin Fournia, daughter of cases, particularly the last one, will be found Charles B. Easterlin, deceased, all the fol- suggestive and helpful. An investigation of lowing described real estate lying and being the authorities has constrained us to the situated in the County of Alachua and State conclusion, however unwillingly, that at the of Florida, to-wit: The Central one-third of common law the birth of a child subsequent the southwest quarter of Section twenty- to the making of the will did not have the eight, township seven, south of range eigh-effect of revoking the will of the father. A teen east, and the central one-third of the number of the leading cases upon the subject northwest quarter of section thirty-three, will be found collected in Colcord v. Conroy, township seven, south of range eighteen east, supra, and we shall not repeat them again being the part of the Richardson land pur- here. See, also, 30 Amer. & Eng. Ency. of chased by me from Sam Richardson. Law (2d Ed.) 649; Rood on Wills, § 381; 1 Underhill on Wills, § 241; Page on Wills, § 283; Gardner on Wills, 282. The authori

"2nd: I give, devise and bequeath to my daughter, Bessie Godwin, the following described real estate lying and being situated in Alachua County and State of Florida, to wit: The southwest quarter of the northeast quarter and west half of the southeast quarter and southwest quarter of southeast quarter of northeast quarter and north half of northeast quarter of northwest quarter of Section Thirty-two, Township Seven, South of Range Eighteen east.

"4th. All the rest and residue of my estate, real, personal or mixed of which I shall

(62 Fla. 181)

FLORIDA RY. CO. v. BATTLE et al. (Supreme Court of Florida, Division B. Nov. 14, 1911. Headnotes Filed Dec. 19, 1911.)

(Syllabus by the Court.)

HARMLESS ERROR-RULING ON DEMUrrer.

ing

ties cited in the respective notes support the text. Ellis v. Ellis, 2 De Sauss Eq. (S. C.) 556, is directly in point. It was held therein as follows: "After making the will, and 18 months before testator's death, he has a son born, but dies without altering his will, or making any provision for such after-born 1. APPEAL AND ERROR (§ 1040*)-REVIEWchild. This will is too precise to be disturbed. The court cannot give any relief to the unprovided child. It would be to revoke the will." The court well says that "this is an extreme hard case," but recognizes the fact, as we do, that its duty was to declare what the law is, not to make it. The reporter appends a note to the opinion to the effect that the extreme hardship of that case, as well as of a few others which had occurred of the same kind, induced the Legislature to enact a statute.

The order must be affirmed.

There was no reversable error in sustaina demurrer to a special plea, where the case was tried upon a plea of not guilty, and the defendant was permitted to introduce evidence in support of the matters set up in the special plea.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4093; Dec. Dig. § 1040.*] 2. RAILROADS (§ 484*)-FIRES-CONTRIBUTORY NEGLIGENCE QUESTION for Jury.

Where the plaintiffs, with the consent of a railroad company, delivered cross-ties upon the right of way of the company for the purpose of shipment, and the cross-ties were burned by negligent escape of sparks from a locomotive engine, in the absence of notice to

WHITFIELD, C. J., and COCKRELL, J., plaintiff that the engine was constructed so as

concur.

TAYLOR, HOCKER and JJ., concur in the opinion.

(62 Fla. 62)

HICKS v. STATE.

to endanger the cross-ties, the mere placing of them on the right of way cannot be held as matter of law to have been contributory negPARKHILL, | ligence on the part of plaintiffs.

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COCKRELL, J. For killing Allen Little, Mary Hicks was convicted of murder in the second degree, under an indictment charging murder in the first degree, and, upon a writ of error to the life sentence imposed, she assigns the sufficiency of the evidence to support the verdict.

She asserts here that the evidence so overwhelmingly supports her claim of self-defense that the jury must have been led by something outside to find such verdict. We fail, however, to so read the evidence. On the contrary, we find ample to sustain the verdict, and follow the trial judge in refusing to interfere with it.

Judgment affirmed.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 1745; Dec. Dig. § 484.*]

Error to Circuit Court, Suwannee County; John F. Harrell, Referee.

Action by S. P. Battle and Nelson Winston against the Florida Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

O. O. McCollum, for plaintiff in error. L. E. Roberson, for defendants in error.

PARKHILL, J. The defendants in error brought suit against the plaintiff in error to recover the value of cross-ties alleged to have been negligently burned, and recovered judgment. The cause was referred to John F. Harrell, Esq., for trial; the order of reference being as follows:

"In the above-entitled cause it is hereby agreed by and between the attorneys for the plaintiffs and defendant, respectively, that this cause be referred to some attorney at law as referee for the purpose of trial and determination. L. E. Roberson, "Attorney for Plaintiffs. "Carter & McCollum, "Attorneys for Defendant.

"Agreeably to the foregoing agreement between attorneys for the plaintiffs and defendant, it is hereby considered, ordered, and adjudged that said cause be referred to John F. Harrell, Esq., attorney at law, for trial and determination as referee herein.

"Done and ordered in open court at Live Oak, Florida, this the 9th day of November, B. H. Palmer, Judge." The only objection to this order of reference is that "this order does not specifically,

WHITFIELD, C. J., and SHACKLEFORD, A. D. 1909. J., concur.

TAYLOR, HOCKER, and PARKHILL, JJ., by its phraseology, authorize such trial." concur in the opinion. This objection is not well taken. The agree

ment between the parties and the order of the court show that this cause was referred "for trial and determination.”

[1] There was no reversible error in the referee's order sustaining plaintiffs' demurrer to defendant's second plea, for the reason that the case was afterwards tried upon a plea of not guilty, and the defendant was permitted to introduce evidence in support of the matters set up in this special plea; the referee having regarded the plea as being equivalent to the general issue, and the defendant having had the benefit of evidence which might have been offered in support of it. Gainesville & Gulf R. Co. v. Peck, 55 Fla. 402, 46 South. 1019.

There was no error in the order sustaining the demurrer to the fourth plea.

The fourth plea was as follows:

"(4) And for a fourth plea to plaintiffs' amended declaration defendant says that plaintiffs placed their said cross-ties upon the right of way of defendant, with full knowledge that locomotive engines propelled by steam would be operated daily over the line of railway of defendant, along and by the same, and that their said cross-ties would be subject to the damages arising from the escape of sparks from the locomotive engines of the defendant, and that plaintiffs thereby assumed the hazards incident to the said risk."

The declaration alleges that by and with the consent of the said defendant the plaintiffs delivered the said cross-ties upon the right of way of the said defendant for the purpose of loading said cross-ties upon cars to be furnished by the said defendant to the said plaintiffs and shipping the same over the line of railroad of the said defendant, and while the plaintiffs were waiting for cars to be so furnished the cross-ties were burned by the negligence and carelessness of the defendant's permitting sparks of fire to negligently escape from its locomotive engine that was not properly provided with a spark arrester, etc.

The plea does not show that the plaintiffs were trespassers.

[2] Plaintiffs were not bound to anticipate negligence on the part of defendant. In the absence of notice to them that the engine was in fact so constructed, equipped, and operated as to endanger the cross-ties, the mere placing and keeping them on the right of way with the consent of the defendant cannot be held as a matter of law to have been

The

negligent conduct on their part, or to have been the proximate cause of the loss. contrary was assumed in the fourth plea, and, therefore, treating it as a plea of contributory negligence, it is subject to demurrer. Southern R. Co. v. Wilson, 138 Ala. 510, 35 South. 561.

In Pittsburgh, C. & St. L. R. R. Co. v. Noel, 77 Ind. 110, the court said that "the

appellee piled his wood upon the right of way of the defendant about six feet from the track, and that the wood so piled was more likely or liable to take fire and burn from sparks or coals emitted from the locomotives of the defendant than if it had been left where it was cut or upon the land of plaintiff. It is insisted that these facts show clearly that the plaintiff was guilty of negligence which contributed to his loss, and for that reason is not entitled to recover. We do not think it a necessary, or even proper, inference, from these facts alone, that there was contributory negligence on the part of the plaintiff."

We think the evidence sufficient to support the finding of the referee who heard the witnesses testify.

The judgment is affirmed.

TAYLOR and HOCKER, JJ., concur.

WHITFIELD, C. J., and SHACKLEFORD and COCKRELL, JJ., concur in the opinion.

(62 Fla. 569)

RUSSELL et al. v. STICKNEY.

(Supreme Court of Florida, Division A. Nov. 14, 1911. Rehearing Denied Dec. 13, 1911.)

(Syllabus by the Court.) 1. EQUITY (§§ 343, 345*)-PLEADING-ANSWER -EFFECT AS EVIDENCE.

If a complainant in a suit in equity desires to avoid the probative force of a sworn answer, he may do so by expressly waiving the to do this, an answer under oath, in so far oath in his bill. Where the complainant fails as it is responsive to the allegations of the bill, and direct, positive, and unequivocal in its terms, is evidence in favor of the defendant, in order to overcome which two witnesses are required, or one witness and corroborating circumstances.

[Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 702-724; Dec. Dig. §§ 343, 345.*] 2. EQUITY (§ 346*) — EVIDENCE-BURDEN OF PROOF.

complainant is seised and possessed of land, Where a bill in equity alleges that the and the sworn answer, where the oath has not been waived, denies such seisin and possession, the burden is upon the complainant to prove the seisin and possession by sufficient evidence. [Ed. Note. For other cases, see Equity, Cent. Dig. §§ 725, 726; Dec. Dig. § 346.*] 3. PROPERTY (§ 7*)—EVIDENCE OF POSSESSION

-PRESUMPTION.

Right of possession of land is incident to a legal title, and a person who has a legal title is presumed to be in possession, but such legal presumption is rebuttable, and may be overcome by proof.

[Ed. Note.-For other cases, see Property, Cent. Dig. § 9; Dec. Dig. § 7.*]

4. TENANCY IN COMMON (§ 13*) — MUTUAL RIGHTS-CHARACTER AND EFFECT OF POSSESSION OF COTENANT.

The entry and possession of one tenant in common is presumed to be for the benefit all, and will be regarded as the possession

of

of all the tenants, until rendered adverse by | leaving as her sole heirs at law two children, some act or declaration by the tenant in ac- who were infants, and were made codefendtual possession, repudiating the interest of the other tenants in the property. ants with Edward Stickney.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 28, 29; Dec. Dig. § 13.*]

5. PARTITION (§ 44*)-SUITS FOR PARTITIONLACHES. As to when the laches of a cotenant will defeat a proceeding instituted by him for a partition of land must largely depend upon the facts and circumstances of each individual case. [Ed. Note. For other cases, see Partition, Cent. Dig. §§ 111-113; Dec. Dig. § 44.*] 6. PARTITION (§ 44*)-SUITS FOR PARTITIONLACHES.

In a proceeding for partition of land, where the proofs show a good deed of conveyance from the principal defendant to the ancestor of the complainants and of the two infant defendants to an undivided one-half interest in the land, but fail to show any actual ouster of the complainants or their ancestor, the fact that the proofs show merely that such ancestor and the complainants have never exercised any acts of ownership over the land, or demanded any accounting for the rents and profits, is not such a showing of laches as to destroy the legal title, or to defeat the right of the complainants to have the land partitioned.

[Ed. Note. For other cases, see Partition, Cent. Dig. §§ 111-113; Dec. Dig. § 44.*]

Appeal from Circuit Court, Monroe County; J. B. Wall, Judge.

Suit by Ada Russell and others against Edward Stickney. From a decree for defendant, complainants appeal. Reversed.

W. Hunt Harris and H. H. Taylor, for appellants. L. W. Bethel and F. T. Meyers, for appellee.

After having unsuccessfully interposed a demurrer to the bill, Edward Stickney filed a sworn answer thereto, the oath to the anSwer not having been waived in the bill, in which he admitted the execution of the deed as alleged, but denied that Silvanus Pinder had ever entered into the possession of any part of the land, or was in possession thereof at the time of his death, or that he or his heirs had ever been in such possession. On the contrary, the defendant positively averred that he had "been in absolute control and possession from the day he made his homestead entry up to the filing of this his answer," and that at no time did Silvanus Pinder during his lifetime, or his heirs at law subsequent to his death, ever claim any portion of the proceeds arising from the crops which the defendant had raised upon the land by his own exertions, "but, on the contrary, have at all times acquiesced in the control and management of said lands by the answer, and a special master appointed the defendant." A replication was filed to to take testimony of the respective parties. A number of objections were interposed to certain proffered testimony, all of which were presented to the chancellor at the final hearing of the cause, and expressly ruled upon by him, as is provided by our rule relating thereto. See Lovett v. Armstrong, 61 Fla. 681, 54 South. 381.

At such final hearing, as we have previously said, a decree was rendered in favor of SHACKLEFORD, J. This is a suit brought the defendant, Stickney, and the bill disby Ada Russell and other named complain- missed. In such decree the chancellor sets ants, against Edward Stickney and two oth-out certain facts which he finds "established er named defendants for the partition of cer- by the undisputed testimony." After reciting tain described lands, which suit resulted in the execution of the deed by Stickney to a final decree being rendered in favor of the Pinder to an undivided one-half interest in defendant, Edward Stickney. From this de- the land, on the 12th day of May, 1882, the cree the complainants and the other two de decree proceeds as follows: fendants have entered their appeal to this court.

A very succinct statement of the bill is that it alleges that on the 12th day of May, 1882, Edward Stickney, by a certain deed, duly executed and acknowledged, conveyed an undivided one-half interest in and to certain described lands, of which partition is sought, to Silvanus Pinder, who, upon the receipt of such deed, "entered into possession of the said real estate as a tenant in common with the said Edward Stickney, and continued in the possession, as aforesaid, and while in said possession, as aforesaid, the said Silvanus Pinder, on the 28th day of February, A. D. 1891, departed this life intestate," leaving as his sole heirs at law his children, who are the complainants, and another daughter, Alice Sweat, who had subsequently also departed this life intestate,

"That the defendant has ever since remained in the exclusive possession of said tract of land, paying the taxes, cultivating it, and enjoying the rents, issues, and profits thereof without let or hindrance, and that no assertion of ownership or possession was made by Silvanus Pinder up to his death on February 28, 1891, nor any such assertion made by his heirs, the complainants, up to the filing of this bill on January 3, 1910, a period of nearly 28 years after the execution of the deed to Pinder.

"While in a court of law the possession of one tenant in common, in the absence of acts constituting an ouster, is the possession of his cotenant, yet courts of equity favor diligence, and are loath to enforce claims when the claimants are shown to have been guilty of laches for a long period of time. "It is considered by the court that the

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