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lieve that defendants did not perform their part -Chicago Lumber Co. v. Merrimack River Sav.
of the contract, they must find for plaintiff, is Bank, (Kan.) 34 P. 1045.
erroneous, as it takes from the jury the issue ag

Findings.
to performance by plaintiff. – Remy v. Olds,

23. The fact that findings of fact and conclu-
(Cal.) 34 P, 216.

18. Where, in an action by a passenger to sions of law were prepared by counsel at the
recover for injuries received from the upsetting request of the court, and, after an examination,
of a stage coach, the only issues were as to the were adopted, is not objectionable.-Howard v.
suitableness of the horses and driver, the court Howard, (Kan.) 34 P. 1114.

24. In an action for rent of water power,
properly refused to instruct concerning, latent
defects in the stage, and concerning the duty of under a lease which provided that in case the
the injured party to exercise proper care in en: jured by high water, the lessor should repair

dam and race controlling the power were in-
deavoring to recover from the injury-Knight them within 10 days after the water had fallen
V. Pacific Coast Stage Co., (Cal.) 34 P. 868.
14. When the court, in its general instruc- ! failure to so repair, though the water receded

to its average winter stage, plaintiff alleged
tions, fairly gives the law applicable to the to its average winter stage February 15th, and
case, it need not give instructions asked by a continued at or below such stage tiil February
party, which merely embody the same princi- 25th, and defendant denied that the water had
ples in different language.- Missouri Pac. Ry.

so receded. Held, that the court erred in not
Co. v. Hildebrand, (Kan.) 34 P. 738.

finding on the issue so made as to the state of
15. An instruction that proof of defendant's the water between those dates.--Pengra v.
negligence is made out when” certain facts Wheeler, (Or.) 34 P. 354.
are shown is not objectionable, as assuming

25. A judgment will not be reversed for
that such proof has been made.-Elledge v. Na- want of a finding, or for a defective finding,
tional City & O. Ry. Co., (Cal.) 34 P. 720; Id. unless the finding is excepted to or a finding is
852.
16. An instruction that if defendant was Shallenberger, (Nev.) 34 P. 449.

requested upon the omitted point.-Dutertre v.
guilty of negligence, as charged in the coni-
plaint, and plaintiff was injured thereby, the
verdict must be for plaintiff, is not erroneous in

TROVER AND CONVERSION.
ignoring the question of contributory negli- Liability of pledgee for conversion, see “Pledge,"
gence, when accompanied by several instruc
tions making the right of recovery dependent

3, 4.
on plaintiff's exercise of reasonable care. Defenses.
Stephenson v. Southern Pac. Co., (Cal.) 34 P.

1. Where the liability of a number of de-
618

fendants for conversion, if any exists, is sev-
Exceptions.

eral as well as joint, a defense set up by one
17. An exception reading, "To said oral in that will defeat plaintiff's recovery is avail-
structions, and each and every part thereof, able for the other defendants.-Story & Isham
and to the giving thereof by the court, the de Commercial Co. v. Story, (Cal.) 34 P. 671.
fendani then and there duly excepted," is too Assertion of lien.
general. --Moore v. Moore, (Cal.) 34 P. 90.

2. Defendant agreed to pay the debts of
Harmless error.

plaintiff corporation, and, as security, plaintiff
18. Error in an instruction that it is suffi- conveyed to her all its' notes and 'accounts,
cient to charge defendants as partners if it be merchandise on hand, and all its property,
shown that they were joint owners is not cured with certain exceptions. It was agreed that
by other instructions correctly stating the law, dise, and apply the receipts to the payment of

plaintiff should endeavor to sell the merchan-
and what is necessary to make them liable as defendant, and that the property conveyed to
partners. - Miller v. Vermurie, (Wash.) 34
P. 1108.

defendant should not be sold at less than its

cost to plaintiff, without the consent of plain-
Taking articles to jury room.

tiff's directors. Subsequently, defendant, with-
19. On a dispute between adjoining mine out plaintiff's knowledge, sold a portion of the
owners as to their respective rights, two wit- goods, and plaintiff sued for conversion. Held
nesses who had worked on the property made that, the action being to recorer the value of
a small model, which they admitted was not a

the goods, and not the goods theniselves, the
perfect facsimile of the mines, and the court right of defendant to assert a lien thereon was
refused to admit as such, but did admit for not involved, so that Civil Code, $ 2910, pro-
the purpose of explaining the testimony. Sev- viding that the wrongful conversion of person-
eral witnesses testified to and from the model, al property by a person holding a lien thereon
and it was used by both parties, Hold, that it extinguishes the lien, had no application, for,
was not error to permit the jury to take the by its choice in its form of action, plaintiff
model to the jury room, on their request.

adopted the sale, and affirmed the title thereby
Illinois Silver Vining & Milling Co. v. Raff, conveyed.--Story & Isham Commercial Co. .
(N. M.) 34 P. 54.

Story, (Cal.) 34 P. 671.
Verdict.

Damages.
20. A verdict for a certain sum, and “inter-

3. Defendant agreed to pay the dents of
est” from a certain time, is for interest to be plaintiff corporation, and, as security, plaintiff
computed at the legal rate.-Duzan v. Meserve, conveyed to her all its notes and accounts,
(Or.) 34 P. 5-18.

merchandise on hand, and all its property,

with certain exceptions. It was agreed that
Inconsistency between general and spe- plaintiff should endeavor to sell the merchan-
cial verdict.

dise, and apply the receipts to the payment of
21. In an action against a city and a land defendant, and that the property conveyed to
company for flooding plaintiff's land, where the defendant should not be sold at less than its
special findings of fact show that while the cost to plaintiff, without the consent of plain-
city built an insufficient culvert and obstructed till's directors. Subsequently, defendant, with-
a creek near plaintiff's premises, the obstruc- out plaintiff's knowledge, sold a portion of the
tion did not cause nor contribute to the inju- gools, and plaintiff sued for conversion. The
ries, a general verdict against the city will be trial court found that, at all times after making
reverse l. - City of Kansas City v. Brady, the agtement, defendant caimed to be the own-
(Kan.) 34 P. 884.

er of the property mentioned therein, so that her
Trial by court-Demurrer to evidence. struction of its terms. The court also found

making the sale was in pursuance of her con-
22. A demurrer to the evidence may be en- that she made the sale on an agreement by her
tertained on a trial by the court without a jury. I vendee that he would pay the price on the

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debts of plaintiff, for which she had become lia-s under a conveyance from M., substituted og ble. Hed, that the agreement itself not being 'other warrant with a valid assignment; axis free from ambiguity, and defendant baring act. 1884 a patent was issued in the name of ed according to her construction of it, while, if Hold that, K. having furnished the la her construction was wrong, and plaintiff suf- rant under the offer from the proper depera fered thereby, it had a cause of action against ment that M., or any person interested tid her, yet it could not recover damages independ- substitute a valid warrant in the place of the ent of an adjustment of their respective rights one having the forged assign ment, which were under the entire agreement.--Story & Isham warrant should be legally assigned to the en Commercial Co. v. Story, (Cal.) 34 P. 671. inal locator, the furnishing of a ralid mang

4. In an action by the pledgor of a note as by K. did not create a resulting trust, 9 u collateral to another note, against the pledgee, to give her either a legal or equitable til: a for conversion, where such conversion consist the other 80 acres as against a purchaser bal ed in the transfer of both notes after the se. ing under a conveyance from M., esatted a cured note bad become due, the ineasure of 1859.-Kohn V. Barr, (Kan.) 34 P. S. plaintiff's recovery is the difference between 6. Where a husband invests his wife the collateral note and his indebtedness to de money in land, and, without her consent, tatay fendant at the time of the conversion, and not the title in his own name, a trust results in be the full value of the collateral note, as the se- favor.-Howard v. Howard, (Kan.) 34 P. 1114 cured note, having been transferred after ma Constructive trusts. turity, is subject to equities.-E. F. Hallack Lumber & Manuf'g Co. v. Gray, (Colo. Sup.) veyed an undivided interest in a mining sa

7. Where & tenant in common hu au3+ P. 1000. 5. Defendant is not cut off from this right ent, and afterwards conveyed to a thin m

to his cotenants, and they have obtained a des by the fact that he denied the conversion, as the right to have the secured note deducted latter's position is not superior to that of Ls

son, who was not a bona fide purchases, the from the amount of the collateral note is not grantors, and wbere they admit that they best a matter of defense, since, whatever the action, the undivided interest in trust for their citaplaintiff is only entitled to adequate indemnity. ant the trust will be declared, and a cate --E. F. Hallack Lumber & Manuf'g Co. v. lance to him decreed, Per De Witt Ja Bola Gray, (Colo. Sup.) 34 P. 1000.

Hardware Co. v. Schwab, (Mont.) 34 P. 24

8. Plaintiff, the owner of an uudime it Trustee Process.

terest in a mining claim, confered by a ti

deed to its cotenants, who, on the super See “Garnishment."

that the deed was valid, obtained a nuestro

and subsequently conveyed to defendani, aby
TRUSTS.

took with notice. Held, that plaintiff's te
ants, when they obtained the patent

, kan? Running of statute of limitation, see “Limita interest, and their grantee with notice ceapa

constructive trustees of plaintiff's updiniai tion of Actions," 13.

no better position. Per Harwood, J.-Berat Express trusts.

Hardware Co. v. Schwab, (Mont.) 34 P. 24. 1. In a deed conveying land, the word Following trust funds. "trustee" was inserted after the name of the 9. The mere fact that a county treats grantee, and the deed was accepted in that had died short in his accounts does not comes form. Afterwards, in a contract relating to sively prove a commingling of assets bs biz the land, the grantee affixed the word “trustee" so as to make the county's claim a superat in to his signature. Held, that the word “trustee" on his estate, as against his general creditin

mere descriptio personae, but indi. McClure v. Board Com'rs La Plata County, cated that the grantee took the title, not in his (Colo. Sup.) 34 P. 763. individual capacity, but in trust for another. Johnson v. Calnan, (Colo. Sup.) 34 P. 905.

Undue Influence, Parol evidence. 2. In a deed conveying land, the word

See “Wills," 1. “trustee" was inserted after the name of the

USURY. grautee, and the deed was accepted in tbat form. 'Afterwards, in a contract relating to Penalties--Recovery. the land, the grantee affixed the word “trustee" to his signature. Held, that the word "trus

Under Rev. St. U. S. & 5198, authoris tee," indicated that the grantee took the title. ing. the person paying usurious interest to not in his individual capacity, but in trust for national bank to recover twice the amount past another, and that parol evidence was admis- one of the joint makers of a usurious note est sible to show for whom, and for what purpose,

not recover the penalty where the illegal inte be became trustee.-Johnson v. Calnan, (Colo est was paid by the other maker:- Fix Net Sup.) 34 P. 905.

Bank v. Rowley, (Kan.) 34 P. 1049, 3. Under the statute of frauds, the existence of an express trust in lands cannot be es

Vacation tablished by parol evidence; but, where there is some written evidence of the existence of a Of Judgment, see "Judgment," 80-34 trust, parol evidence is admissible to show the truth of the transaction.-Johnso0 v. Calnan,

Value. (Colo. Sup.) 34 P. 905. Resulting trusts.

Evidence of, see "Evidence," 17-4 4. The facts from which the trust results in favor of a wife who gives money to her hus

Variance. band to invest for her may be shown by parol proof, though it tends to contradiet a convey. See "Pleading," 28-33. ance wrongfully made to the husband.--Howard v. Howard, (Kan.) 34 P. 1114. 5. In 1858, M, located 160 acres of land on

VENDOR AND PURCHASER sizument thereon. In 1801, and before ansapat: See, also, “Deed;" “Frauds, . Statute olie ent had been issued, the proper department car

"Fraudulent Conveyances; " " "Sale;" ** forgery, and suspended the issuance of a phe Improvements by rendes, seo "Vecams ent. In 1883, K., claiming 80 acres of the land Liens," &

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Sale of equity of redemption, see “Mortgages,"department, decided that defendant had no
14.

title. Held, that plaintiff need not wait to be
Showing performance, pleading and proof, see ousted, and then sue on the covenants in the
"Pleading,' 29, 30.

deed, but might sue to recover the purchase

money for breach of the contract.-Colburn v.
Verbal contracts under civil law.

Northern Pac. R. Co., (Mont.) 34 P. 1017.
1. Under the civil law, as existing in the 8. Where a grantor in a deed with cove
territory of New Mexico in 1868, a verbal con- nant of seisin has neither title to por possession
tract for the sale of real estate, accompanied of the land described, the grantee may imme-
by delivery of possession, could be enforced. diately on discovering such facts sue for the
Freeman, J., dissenting.-Maxwell Land-Grant price paid, though the grantor has in the mean
Co. v. Dawson, (N. M.) 34 P. 191.

time acquired title to the land.-Rombough v.
The contract—Construction.

Koons, (Wash.) 34 P. 135.
2. Where a bond is given for the perform-

Rescission.
ance by a vendor of a contemporaneous con-

9. In an action by the vendees of land to
tract of sale, which is referred to in, and so rescind the contract it appeared that defendant
made a part of, the recitals of the bond, stip- agreed to pipe water to the land, which it
ulations in such contract as to the times of failed to do; that plaintiffs agreed to clear and
making payments and of delivery of the convey- plant to fruit trees one-half the land within
ance will control repugnant provisions in the seven months, and the balance within a year
condition of the bond. - Coughran v. Bigelow, thereafter; that they knew that water was
(Utah) 34 P. 51.

needed as soon as trees or vines were planted,
Forfeiture.

but they planted half the tract during the first

season; that, though no water was piped and
3. On an issue whether D. declared forfeit- two-thirds of the trees died, they planted the
ed a contract with C. for the sale of land, it other half the following season; and that they
appeared that the contract provided for month- did not serve notice of rescission on defendant
ly payments, and gave D. the option to declare until they had been in possession over two
it forfeited on Ci's failure to pay an install-
ment. That, after such failure, D. conveyed years, and were in default on three install-

ments of the purchase money. Deld, that
the land to P., C.'s father-in-law, who made plaintiffs were not entitled to rescind because
the following entry in his books: "1891, Novem- of defendant's failure to pipe the water.- Foun-
ber 14, Walter Corbin by J. L. Perry, 12, $872:- tain v. Semitropic Land & Water Co., (Cal.) 34
20.” That C. continued to live on the land, P. 497.
and paid no rent therefor, and that P. lived

10. The fact that defendant, by cross com-
with him. P. testified that he bought the land plaint, asked a rescission, and that plaintiffs'
for himself, and D. testified that, when he sold rights, and all improvements made by them,
the land to P., the latter agreed to "stand be- be forfeited, as provided in the contract, was
tween" D. and plaintiff, who had a mortgage insufficient to support the judgment when plain-
thereon for money loaned C. Held, that there
was no forfeiture, and that P. bought the land tiffs answered such cross complaint only by
for the use of C.-Gray y. Perry, (Or.) 31 P. general denial, instead of setting up the sub-
691.

stance of their complaint and assenting to the

rescission. — Fountain v. Semitropic Land &
Assignment of contract Time of the Water Co., (Cal.) 34 P. 497.
essence.

11. Where vendees of land, as part consider-
4. Where it appears from a contract for ation for the contract, agree to make certain
the sale of land that the parties have in fact improvements within a specified time, and they
agreed that by failure to make certain deferred do not make the improvements themselves, but
payments at the specified times the vendee shall procure them to be made by contract, they are
lose the benefit of his purchase, the courts will not entitled, in case of rescission for failure of
grant him no relief. – Coughran v. Bigelow, the vendor to perform, to recover of the latter
(Utah,) 34 P. 51.

the cost of such improvements, but only the

reasonable value.-Fountain v. Semitropic Land
Rights and remedies.

& Water Co., (Cal.) 34 P. 497.
5. A covenant in an agreement to convey Action for price.
land, which provides that on noncompliance 12. Plaintiff sold defendant land, and took
by the purchasers with the terms as to pay his notes for the purchase money, under a writ-
ment the seller shall be free from any obliga-

ten contract by which he agreed to execute a
tion to convey, and the purchasers shall forfeit good deed when the notes should be paid. Aft-
all right thereto, time being made of the es-

er all the notes had become due, he sued on
sence of the contract, authorizes the seller to
avoid the contract or not, at his option, and he them, but did not show that he had made or
is not bound to tender a deed except on pay-

tendered a deed. Held, that the making of the
ment of the price.-Freeman v. Griswold, (Cal.) notes and contract was one transaction, and a
34 P. 327.

verdict was properly directed for defendant be-
6. Where a land contract provides that, on

cause of plaintiff's failure to perform.-Under-
noncompliance by the purchaser with the terms

wood v. Tew, (Wash.) 31 P. 1100.
as to deferred payments, the seller shall be free

13. Though the obligation of defendant to
from any obligation to convey, and the pur- pay those of the notes falling due prior to the
chaser shall forfeit all rights thereunder, ex-

last one, and prior to the time for plaintiff to
cept a right to occupy the preinises as a' ten- convey, was independent of the obligation of
ant of the seller so long as the sums paid are plaintiff to convey, and payment thereof might
equivalent to an annual rent equal to 12 per have been enforced as they became due, yet
cent.

of the price agreed on, plaintiff, having waited until the last matured.
with the right to purchase during such time, lost the right to sue on each separately, and
the seller, by bringing an action to recover the could sue only for the whole consideration;
unpaid price, waives his right to treat the such right, and the obligation to convey, being

to convey as void, and hence this mutual and depuident. - Underwood V. Tew,
clause, giving a right of occupancy for a cer-

(Wash.) 34 F. 1100.
tain time to the purchaser, which was to apply Vendor's lien.
only in case of forfeiture, has no application.-
Freeman v. Griswold, (Cal.) 34 P. 327.

14. S. conveyed land, subject to a mortgage,

to plaintiff, by absolute deed, as security for a
Defective title.

debt. Plaintiff renewed the mortgage, and aft-
7. Defendant contracted to give plaintiff a erwards, without having his debt paid, recon-
deed to certain property. A deed with cove veyed it to S., who was to sell it, and pay
nants was given, but the secretary of the in- plaintiff. S. conveyed it to his wife, and she
terior, on appeal from proceedings in the land conveyed it to D., who had no notice of any

per

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vendor's lien on the land. All the conveyances

Voluntary Payment were subject to the mortgage given by plaintiff. Held, that plaintiff was not entitled to a ven- See “Payment," 1. dor's lien on such land. - Wenzel v. Schultz, (Cal.) 34 P. 696.

Voters.

See "Elections and Voters."
VENUE IN CIVIL CASES.

Wages.
See, also, “Divorce," 1.
Residence of defendant.

See “Master and Servant," L
1. The fact that in an equity action, the
substantial object of which is to enforce a

Waiver. trust, there are joined as defendants parties of failure to join parties, see "Mecheels against whom other relief is sought, but who

Liens," 36. are not necessary parties to a determination of the trust question will not defeat the alleged | Of proofs of loss, see “Insurance," 6, 6. trustee's right to have the action tried in the county in which he resides. -State v. Superior

Warranty. Court of King County, (Wash.) 34 P. 1103.

See “Sale," 46. 2. A bill in equity, the substantial object of which is to enforce a trust and compel an accounting on the part of the alleged trustee, is

WASTE. a transitory action, even though a portion of the Injunction against-By mortgagee. relief sought would, if granted, take effect upon real or personal property; and hence its venue,

Where houses on mortgaged land bato under Code Proc. $ 161, is in the county in been removed therefrom, they are personal, which the alleged trustee resides. -State v. Su: however they may have been removed, and it perior Court of King County, (Wash.) 34 P. no longer under the operation of the morta 1103.

lien, and the mortgagee cannot therefore !

tain a suit to enjoin their further remoteChange of venue.

Stowell v. Waddingham, (Cal.) 31 P. 436. 3. The failure to deny or answer the statement in the affidavit for change of venue, to

Water Rates. the effect that affiant is informed and believes that the judge has said he considered him- In cities, see "Municipal Corporations," 16. self disqualified to try any case in which plaintiff is a party, will not be taken as an admis

WATERS AND WATER sion of disqualification, where such judge denies the motion for the change.-Southern Cali

COURSES. fornia Motor Road Co. v. San Bernardino Nat. Bank, (Cal.) 34 P. 711; Same v. Merrill, Id. See, also, “Irrigation;" "Surface Water." 712.

Meander line of lake as boundary, see "Bound Waiver of objections.

aries,” 3. 4. Under Hill's Ann. Code, $ 388, provid

Grant of rights. ing that the court may change the place of

1. Defendant water company made a con trial, on the motion of either party, when it appears froin the affidavit of such party that tract with the owner of land on a stress, the suit has not been commenced in the proper take water from the stream, and to maintais

whereby the latter conveyed to it the righ: 3 county, the objection that a suit for specific main water pipe through her land; in consideráperforinance of a land contract was not commenced in the county in which the land lay inch tap in said main pipe, wherefrom the la

tion of which, defendant agreed to put & us cannot be raised after the suit has been tried on its merits.-Johnston v. Wadsworth, (Or.) 34 led for irrigation and domestic purposes. De

owner could draw, free of cost, the water ser P. 13.

fendant supplied such water as would

through the tap mentioned, but laid no pepe Venue in Criminal Cases.

through the land. Some years later, the sa

was sold under a mortgage placed thereod TV See “Criminal Law," 12.

to the above agreement, and conveyed to 121

tiff. Held, that the right to such water si Verdict.

would flow through the inch tap was annat

nant to the land, and passed to plaintif.See “Criminal Law," 62-65; “Trial," 20. Clyne v. Benicia Water Co., (Cal.) 31 P. 114 Aider by, see "Pleading," 36–39.

Right to maintain reservoir.
Verification,

2. Evidence that defendant's reservoir is

in a locality abounding in reservoirs was in Of information, see "Indictment and Informa- material on the question of his right to 11 tion," 4.

tain it to plaintiff's injury.-Sylvester v. Jerone,

(Colo. Sup.) 31 P. 760. Vested Rights.

Liability for breaking of reservoir. See “Constitutional Law," 12.

3. One to whom a reservoir is leased in

consideration of his completing its construct na Vexatious Appeal.

and maintaining it is an owner," within Mas Ann. St. & 2272, providing that the owners of

reservoirs shall be liable for floods from the See “Appeal," 94.

breaking of the embankments.-Larimer County

Ditch Co. y. Zimmerman, (Colo. App.) 34 P. Vice Principal.

1111.

Injunction against building of dam. See "Master and Servant," 11-16.

4. Where plaintiff's land, which bordered

on a stream, was overflowed during the wicter View by Jury.

freshets, his application for an injunction to se

strain the building of a dam on the stream See "Criminal Law," 17.

should be denied, since it cannot be inferred

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that the damage from overflow would be aug- certificate that the certificate is properly made
See more.. mented by its existence.--Esson v. Wattier, by the person having legal custody of the orig-
(Or.) 34 P. 756.

inal, and also the certificate of the officer hav-
5. Witnesses for plaintiff testified that the ing custody of the great seal of the govern-

soil adjacent to the stream was a sandy loam, ment that the court whose judicial act is
See *lor and defendant's witnesses testified it was hard certified had jurisdiction to perforin the same.

clay, except in a few places, where an eddy of Held that, where the proof on which foreign
the stream had deposited sand. Surveys of probate of a foreign will devising land in Ore-
plaintiff's land showed ponds thereon which he gon was granted did not show that the alleged

claimed were filled by percolation, but the sur- will was executed and proved according to the
Su Yates

higher than the level of the river when they probate was not authenticated in accordance
i were made. Held to show that they were filled with section 731, such will was not entitled to

by an overflow or by drainage, and not by per- probate and record in Oregon.--Clayson v. Clay-
12, colation.--Esson v. Wattier, (Or.) 34 P. 756. son, (Or.) 34 P. 358,
6. Evidence that before a former dam had

5. The fact that such will and the foreign
dia: been removed plaintiff was subject to malaria, probate thereof were prepared and certified un-

and that since its removal he was free from its der amendments to sections 3082 and 3083 does
It effects, is insufficient to show that the building not entitle it to probate and record in Oregon,

of a dam would make the atinosphere malarial, such amendments not being in existence when
SL'H where it further appears that all the settlers testator died, and the will as admitted to pro-

along the banks of the stream were more or bate in the foreign country.-Clayson v. Clay-
Iless subject to malaria; that, by the cultiva- son, (Or.) 34 P. 338.

tion of the soil, the health of the neighborhood Contest.
was much improved; and that there was a 6. When contestant has closed his case
stagnant lake on his land, which might have without offering any evidence as to the value of
been the direct cause.-Esson v. Wattier, (Or.) the estate, it is error to exclude evidence offered
34 P. 756.

by proponent on the subject.-In re Flint's Es-
· Ways.

tate, (Cal.) 34 P. 863.

7. Under Code Civil Proc. $ 1312, requir-
Condemnation of private ways, see “Eminenting a copy of the opposition to probate of a
Domain," 2.

will to be served on petitioner and others in-
..!

Establishment of way of necessity, record on terested in the estate, where a written opposi-
appeal, see “Appeal,” 29.

tion to the probate of a will is filed at the time
Ti Taking land for private way of necessity, see set for hearing a petition by the executor for
"Constitutional Law," 2.

probate, and shows personal service thereof on
him, it is error to strike it from the files, on his

motion, on the ground that there is no proof of
WILLS.

service on the other persons interested, and to

refuse to hear proof of such service, on the
See, also, “Descent and Distribution;” “Execu- ground that it comes too late.-Stewart v. Hall,
tors and Administrators."

(Cal.) 31 P. 706,
Contest of will, testimony of physicians, see 8. Such an order will not be affirmed on
“Witness," 3, 4.

the ground that afterwards, on motion of con-
Riguts of children omitted, see “Descent and testant, the court vacated the order, and gave
Distribution," 2.

her time to serve the opposition, where it re-

fused to set aside an order admitting the will
G: : : Undue influence.

to probate and granting letters to the executor.
1. It is not competent, on the issue of un--Stewart v. Hall, (Cal.) 34 P. 706.
due influence on the part of the proponent wid 9. Where a will is contested on the ground
ow, to show that nine years before the will was that the husband, while sick, was importuned
made, and six years before their marriage, tes- by his wife to make it in her favor, against his
tator having then another wife, he and pro- wishes, the court properly restricted evidence
ponent went together on a camping trip, pro- 1 of the inharmonious life led by the parties to
ponent being introduced as his wife.-In re the last three or four years of testator's life.-
Flint's Estate, (Cal.) 34 P. 863.

Mitchell v. Donohue, (Cal.) 34 P. 614.
What constitutes will.

Construction - Duration of estate.
2. An instrument as follows: "This is to

10. Under a will giving to testator's wife all
serifey that ie levet to mey wife Real and per- his property to expend as she may see fit, with
snal and she to dispose for them as she wis," -- full power to dispose of any or all of it as she
dated and signed, is not vague and uncertain, ( may deem proper, and with power to convey
and devises to the wife all the real and per- all interest which testator might have in his
sonal property of the husband. Mitchell v. property at his death, a provision directing that,
Donohue, (Cal.) 34 P. 614.

after the death of the wife, certain legacies be
Probate.

paid from any money remaining to testator's
3. Where a holographic will is offered for estate, gives the legatees named no rights in
probate, and the court states that the only evi- the property as against grantees of the testa-
dence of its execution is that given in detail by tor's wife.-Hovey v. Walbank, (Cal.) 34 P.
the wife, which, if believed, would establish 650.
the will, the charge is not erroneous, as exclud- Rights of devisees and legatees.
ing from the jury evidence offered by contest 11. Testator devised the residue of his es-
ants that deceased did not mean it to be a will, tate to executors named, in trust for the edu-
where such an issue has already been presented cation and maintenance of two minor children,
to the jury under proper instructions.--Mitchell and directed that, as and when they “become
v. Donohue, (Cal.) 34 P. 614.

of legal age," the shares shall be turned orer
Of foreign will.

to them, and, if either shall die before "be-
4. Hill's Code, $ 3082, requires a foreign coming of age, the share of such deceased
will devising land located in Oregon to be exe-

child shall go to the survivor. Hold that, in the
cuted and proved according to its laws.

Ser absence of a statute providing otherwise, such
tion 3083 provides that copies of such will "and devisces were not entitled to their respective
the probate thereof" shall be recorded as wills shares on his or her marriage before arriving
executed and proved in Oregon. Section 731 at the age of 21 years.-Montoya de Antonio v.
provides that a judicial record of a foreign Miller, (N. M.) 31 P. 40.
country may be proved by a copy certified by 12. Comp. Laws 1884, § 1024, which pro-
the person having custody thereof, with the vides that the guardianship over men and
seal of the court affixed, and with the judge's 'women shall cease with their marriage," does

V.34P.-77

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