§ 356 (Ky.) Where a husband misappropriated property given him by his wife in trust for their son, and thereafter, in an effort to replace it. turned over to the wife to hold for the use of the son a part of the trust fund, the funds in the wife's hands were not deprived of their trust character, and the trust was not defeated, though the particular money received from the wife was not returned.-Graham's Adm'r v. English, 169 S. W. 836. UNDUE INFLUENCE. See Deeds, §§ 17, 196; Venue, § 50; Wills, §§ 155, 166, 329, 332, 400. UNFAIR COMPETITION. § 152 (Ky.) Where an insurance company had sold to a spendthrift, since deceased, shares See Trade-Marks and Trade-Names, § 70. of its stock at par value, and there was no evidence as to value, except that deceased had sold UNILATERAL CONTRACTS. it for different amounts, the insurance com- See Contracts, § 10. Where an insurance company issued a policy for a large amount upon the life of a man whose property was held in a spendthrift trust, the premium on which policy was secured by a mortgage upon the trust estate, and thereafter the company procured the cancellation of the policy by the payment of the cash surrender value, it is entitled to recover against the spend thrift estate only the amount actually paid and not the premium for the time the insurance was carried. Id. Where a spendthrift, whose father had devised property in trust for him until he reached the age of 25 years, borrowed from an insurance company, giving a void mortgage on the trust estate therefor, the insurance company is entitled to a general unsecured claim for the amount actually advanced to him.-Id. IV. MANAGEMENT AND DISPOSAL § 189 (Mo.) A substituted trustee, appointed by an equity court in Maryland vice a surviving testamentary trustee, had no power to convey real property belonging to testator located in Missouri.-De Lashmutt v. Teetor, 169 S. W. 34. Where a trustee held title for a life tenant only, she could not bind the remaindermen or their title, and could not dispose of the remainder by estoppel or by ratification of a void deed. -Id. § 191 (Ky.) In view of the contract in pursuance of which a trust deed was executed, held, that the trustee was empowered to make conveyances to purchasers of the property.-Collins v. Combs, 169 S. W. 721. $191 (Mo.) Where testator devised real property to certain of his executors as trustees to sell and pay the proceeds to the executors for distribution, the power could not survive a distribution, settlement, and discharge of the executors, and could not be exercised by a substituted trustee.-De Lashmutt v. Teetor, 169 S. W. 34. § 237 (Mo.) Acceptance of a partial distribution of the interest of certain remaindermen under the will of their grandfather, without knowledge that such distribution consisted in part of the proceeds of an invalid sale of the land by a substituted trustee, held not to constitute a ratification of such sale, nor to estop them to object to it.-De Lashmutt v. Teetor, 169 S. W. 34. UNITED STATES. See Public Lands, §§ 61, 112; Trade-Marks and Trade-Names. VACATION. See Judgment, § 143; Municipal Corporations, Dig. § 2068, evidence that defendant had said that he had been gambling in other counties VALUE. See Evidence, § 474. VENDOR AND PURCHASER. See Brokers: Descent and Distribution, § 75; V. RIGHTS AND LIABILITIES OF (C) Bona Fide Purchasers. § 231 (Ky.) Constructive notice furnished by a recorded instrument as to the boundary of the land and every other material fact recited therein is as conclusive as actual notice.-Loeb v. Conley, 169 S. W. 575. If recorded instrument furnishes marks by which the land can be identified or sufficient to put an intended purchaser upon notice, it constitutes constructive notice though the description is not accurate.-Id. $232 (Ky.) Notwithstanding the failure to file a lis pendens notice of an attachment or execution, as required by Ky. St. § 2358a, subsequent purchasers claiming superior rights must be bona fide purchasers, and take notice of persons in possession, especially in view of Ky. St. $ 210.-Daniel v. Holtclaw. 169 S. W. 1013. Where, after execution sale, execution debtor turned property over to creditor's attorney to For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER 169 S.W.-81 apply the rents on the judgment, and a tenant took possession, subsequent incumbrancer's rights held subject to rights of execution creditor, though lis pendens notice was not filed, as required by Ky. St. § 2358a.-Id. § 232 (Mo.) One who purchases real estate in the open and visible possession of a third person is chargeable with notice of the title and right of the third person.-Stone v. Kansas City & W. B. Ry. Co., 169 S. W. 88. VI. REMEDIES OF VENDOR. (A) Lien and Recovery of Land. § 260 (Ky.) One who levies upon land belonging to his judgment debtor, which is shown by the deed to be incumbered by a lien for the purchase price, acquires only a lien inferior to the purchase-money lien.-Likens v. Pate, 169 S. W. 734. and returned to ranch of D. who refused to sur- § 50 (Ky.) That plaintiff is personally popular in the county where suit is brought, and has numerous relatives there, does not constitute undue influence authorizing a change of venue within Ky. St. § 1094.-Louisville & N. R. Co V. Nethery, 169 S. W. 883. VERDICT. See Appeal and Error, §§ 999-1022; Criminal § 278 (Ky.) Where land subject to a mortgage $289 (Ky.) Where a lien for the purchase price of land is foreclosed by judicial sale, and the land brings more than two-thirds of its appraised value, there is no equity of redemption remaining which need thereafter be foreclosed. -Likens v. Pate, 169 S. W. 734. VII. REMEDIES OF PURCHASER. (B) Actions for Breach of Contract. $349 (Tex.Civ.App.) A petition for a vendor's breach of a contract for the sale of land held not subject to an exception that the contract as alleged did not sufficiently describe the land to comply with the statute of frauds. -Spaulding v. Smith, 169 S. W. 627. WAIVER. See Appeal and Error, §§ 216, 644, 770; Carriers, 314; Courts, 37; Criminal Law, §§ 636, 933; Eminent Domain, § 185; Executors and Administrators, § 431; Mechanics' Liens, § 199; Pleading, § 412; Sales, § 121; Taxation, § 482. WARNING. See Master and Servant, §§ 150, 153. See Sales, §§ 267-284. WATERS AND WATER COURSES. See Fraudulent Conveyances, § 51. WAYS. A petition for a vendor's breach of contract, alleging that plaintiff telegraphed defendant accepting his proposition and stating that a letter with contract would follow, held not objectionable as showing that plaintiff's acceptance See Easements, § 17. was subject to the provisions of a contract to follow by mail.-Id. § 351 (Tex.Civ.App.) A vendee's measure of damage for the vendor's breach of contract is the difference between the contract price and the market value of the land at the date of the breach, and not the profit the vendee would have made under a contract of resale.-Spaulding v. Smith, 169 S. W. 627. See Jury, $ 70. VENIRE. VENUE. See Appeal and Error, § 965; Criminal Law, II. DOMICILE OR RESIDENCE OF $ 22 (Ky.) Under Civ. Code Prac. $$ 78, 80, where an action was brought against two defendants, only one of whom resided and was served in the county, the action, having been dismissed as to such defendant, was properly dismissed as to the other.-Martin v. Franklin, 169 S. W. 540. § 22 (Ky.) Where an action brought against two telephone companies, pursuant to Civ. Code Prac. $78, was dismissed as to the defendant residing in the county, the court, under Civ. Code Prac. § 80, lost jurisdiction of the defendant residing outside the county.-Gainesboro Telephone Co. v. Buckner, 169 S. W. 1000. § 22 (Tex.Civ.App.) Where, by a carrier's negligence, plaintiff's cattle escaped from the cars WEAPONS. See Homicide, §§ 90, 119. § 4 (Tenn.) A pistol is property, and a person is not prohibited from owning one, notwithstanding Shannon's Code, § 6650, relative to selling or offering to sell, or bringing into the state for the purpose of disposing of, pistols other than army or navy pistols.-Heaton v. State, 169 S. W. 750. §6 (Tenn.) Person who picked up pistol to defend himself against an unlawful assault and fired two shots, whereupon it was taken away from him, held not to have "carried" such pistol within Shannon's Code, § 6641.-Heaton v. State, 169 S. W. 750. § 10 (Tenn.) Under Shannon's Code, § 6641, it is not necessary to a conviction that the weapon be concealed, unless it be a razor or an army or navy pistol usually used in warfare.Heaton v. State, 169 S. W. 750. §11 (Tex.Cr.App.) That accused was crossing back and forth from one county or state to another is not decisive on the question as to whether he was a traveler.-Williams v. State. 169 S. W. 1154. § 13 (Tenn.) It is not a defense to a charge of carrying a pistol under Shannon's Code. § 6641, that accused armed himself solely for the purpose of self-defense, or that he carried the pistol only on his own farm or premises.-Heaton v. State, 169 S. W. 750. § 17 (Tex.Cr.App.) Whether one accused of carrying arms was a traveler is for the jury.Williams v. State, 169 S. W. 1154. The burden is upon one who is arrested while carrying a weapon upon his person to show that at the time he was a traveler.-Id. Evidence held sufficient to warrant finding that the defendant was not a traveler.-Id. WEBB-KENYON ACT. See Commerce, §§ 14, 61; Intoxicating Liquors, See Conversion, §§ 11, 22; Descent and Dis- II. TESTAMENTARY CAPACITY. § 38 (Ky.) An insane delusion is a belief which springs spontaneously from a diseased or perverted mind, without reason or without foundation in fact.-Coffey v. Miller, 169 S. W. 852. $50 (Mo.) One has a disposing mind and memory when he is capable of comprehending the character, nature, and extent of his property, all the names and persons who naturally come within the range of his bounty, and the disposition he is making of his property.—Andrew v. Linebaugh, 169 S. W. 135. § 53 (Mo.) Testimony of statements made to witnesses by proponents of the will as to the condition of testator's mind is admissible on a contest only to contradict the proponents as witnesses, and not as evidence of such condition.-Andrew v. Linebaugh, 169 S. W. 135. § 55 (Ark.) On the trial of a will contest, evidence as to testamentary capacity held sufficient to support a verdict in favor of the will.-Boone v. Boone, 169 S. W. 779. $55 (Ky.) Evidence held insufficient to show testamentary incapacity in that testator had an insane delusion that certain of his nieces and nephews had mistreated him.-Coffey v. Miller, 169 S. W. 852. § 55 (Ky.) Where a will was attacked on the ground that testatrix lacked testamentary capacity, a verdict upholding the will held warranted by the evidence.-Campbell v. Adkins, 169 S. W. 996. IV. REQUISITES AND VALIDITY. (A) Nature and Essentials of Testamentary Dispositions. 871 (Ky.) The validity of a will is determined by the laws in force at the death of the testator.-Hudson's Guardian v. Hudson, 169 S. W. 891. 88 (Ky.) Where a husband contributed money to erect a building on land owned by his wife on condition that the wife would devise the house and lot to him, her will made under such agreement, delivered to the husband, could not be construed as a deed of conveyance effective from delivery, instead of being effective at her death.-Banks v. Cornelison, 169 S. W. 502. (B) Form and Contents of Instruments. § 105 (Ark.) Designation of legatee as nephew of grandson held not to affect validity of will, where he was also designated as the son of the testator's son.-Boone v. Boone, 169 S. W. 779. (C) Execution. § 111 (Ark.) That a testator, in signing his name on one of the sheets of his will, omitted one letter of his first name did not affect the validity of the will, where it appeared that he intended to and did sign it.-Boone v. Boone, 169 S. W. 779. (F) Mistake, Undue Influence, and Fraud. § 155 (Mo.) Such influence as testator's wife may acquire over him by her personal demeanor and conduct towards him, as his wife, and the fact that she, by her treatment of and general demeanor towards him, gains his affection and confidence does not constitute undue influence. -Andrew v. Linebaugh, 169 S. W. 135. § 166 (Ky.) Evidence in a will contest held insufficient to raise an issue of undue influence. Coffey v. Miller, 169 S. W. 852. § 166 (Mo.) Evidence that the feelings of testator were hostile to some of the proponents of his will cannot show undue influence by them or in their behalf.-Andrew v. Linebaugh, 169 S. W. 135. § 324 (Mo.) The evidence as to testamentary capacity held to make a case for the jury.Andrew v. Linebaugh, 169 S. W. 135. § 329 (Mo.) Because contestants could not locate proponents while the will was being drawn, it is not to be presumed that they had previously unduly influenced testator, so as to call for an instruction on prior undue influence.Andrew v. Linebaugh, 169 S. W. 135. § 332 (Mo.) It is proper to state in an instruction on undue influence what influence testator's wife has the right to exercise over his mind in disposing of his property.-Andrew v. Linebaugh, 169 S. W. 135. (K) Review. § 396 (Ark.) In will contest, held that failure to charge as to incapacity of city to take devise could not be complained of, where no such instruction was requested, especially as such incapacity would not affect the validity of the will.-Boone v. Boone, 169 S. W. 779. § 400 (Mo.) Admission of evidence that tesson's notes held by testator was not reversible tator's wife, and not he, gave to her son the error, since it had no such probative force to show lack of testamentary capacity or undue influence of the son or mother on testator in the making of his will that it should have changed the minds of the jurors.-Andrew v. Linebaugh, 169 S. W. 135. Instructing that certain testimony could not be taken as any evidence of the mental condition of testator or of undue influence on him was harmless, where it had no such probative force as should have changed the minds of the jurors.—Id. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER (G) Debts of Testator and Incumbrances on Property. § 848 (Ky.) A testator's will held to contemplate that the proceeds of his life insurance should be used only to discharge his one-half of the purchase price of land which he and his stepmother had jointly bought, and hence the devisee of the stepmother is bound to pay her unpaid share of the purchase money.-Penick v. Tribble, 169 S. W. 607. Under Kentucky Stats. § 2080, plaintiff may require that defendant, who was, like him, entitled to one-half of a one-half interest in land, discharge an incumbrance on the whole tract, the other half of which was devised to the defendant, where defendant's testator, the owner of such other half, was bound to pay it.—Id. WITNESSES. See Affidavits; Counties, § 139; Criminal Law, § 594; Evidence; Executors and Administrators. I. ATTENDANCE, PRODUCTION OF PENSATION. §16 (Ky.) The production of the books and papers of a corporation before the grand jury may be required by a subpoena duces tecum ad testificandum directed to the agent of the corporation having possession thereof, or by a subpœna duces tecum without the ad testificandum clause directed to the corporation itself.-Commonwealth v. Southern Express Co., 169 S. W. 517. II. COMPETENCY. eral. § 616 (Ky.) A devise to a granddaughter when she attains her majority or marriage "to hold and keep as her own" does not give her an absolute power of disposition so as to make a lim- (A) Capacity and Qualifications in Genitation over to another void as inconsistent therewith.-Johnson v. Powell, 169 S. W. 1009. A devise of property to the devisee to hold and keep as her own, but on her death without heirs to another, less the amount expended for food, clothing, and schooling for the first devisee, she may use the principal of the fund if necessary for her support and maintenance.-Id. VII. RIGHTS AND LIABILITIES OF $782 (Ky.) Under the direct provisions of Ky. St. § 1404, a widow may renounce the share given her by will, and claim dower and distributive share. Redwine's Ex'r v. Redwine, 169 S. W. 864. $800 (Tex. Civ.App.) Will giving testator's wife life estate held not to affect her community title to one-half of certain land, and she did not surrender such title by accepting the life estate; and hence, limitations ran in favor of an adverse occupant as to a one-half interest in the land, notwithstanding the suspension of remaindermen's right of action during the existence of the life estate.-Swilley v. Phillips, 169 S. W. 1117. § 52 (Ky.) On a trial for conspiring to cause wife of another conspirator not indicted was a person to be falsely accused of a crime, the a competent witness.-Rutland v. Commonwealth, 169 S. W. 584. § 52 (Ky.) Where, in a prosecution of two defendants for housebreaking, evidence was offered to show that the wife of one of the defendants secreted certain of the stolen property, she was incompetent to deny such fact in favor of her husband, but the other defendant was entitled to her testimony.-Lawson v. Commonwealth, 169 S. W. 587. (C) Testimony of Parties or Persons In terested, for or against Representatives, Survivors, or Successors in Title or Interest of Persons Deceased or Incompetent. § 149 (Tenn.) Under Shannon's Code, § 5598, providing that in actions by or against executors, neither party may testify against the other as to any transaction by the testator, etc., held that the maker of a note to a partner, sued by the surviving partners, one of whom was the executor of the deceased partner, might testify as to a payment to the deceased partner. -Turner v. Huggins, 169 S. W. 754. (D) Confidential Relations and Privileged Communications. 192 (Ky.) Plaintiff, in an action for alienation of his wife's affections, may not relate conversations between himself and wife, in the absence of defendant or some other person who might testify to what occurred.-Willey v. Howell, 169 S. W. 519. § 211 (Ark.) In an action for injuries to a passenger by falling on a defective depot platform, Kirby's Dig. § 3098, held to disqualify the passenger's physician to testify that she was afflicted with cancer and died of that disease.-St. Louis. I. M. & S. Ry. Co. v. Fuqua, 169 S. W. 786. III. EXAMINATION. (B) Cross-Examination and Re-Examina tion. § 268 (Tex.Cr.App.) Where accused elicited from a witness on cross-examination a partial answer to a question, the court properly permitted the witness to answer the question in full, though this included advice given the witness by a third person.-Taylor v. State, 169 S. W. 672. $277 (Tex.Cr.App.) That accused had filed a plea invoking the benefits of the suspended sentence law did not authorize the state to prove by him while a witness in his own behalf that he had been previously convicted on a prior trial of the same case.-Sorrell v. State, 169 S. W. 299. § 287 (Tex.Cr.App.) Where the defense had attempted to show in cross-examination of a witness for the prosecution that the witness was a spotter or detective, the state on redirect examination can show that the witness was a bonded deputy sheriff.-Clark v. State, 169 S. W. 895. ant was the author of her condition, and he W. 999. $379 (Tex.Cr.App.) A witness may be impeached by proof of statements in conflict with his testimony, by laying a proper foundation, and by calling as witnesses the persons to whom the conflicting statements were made.Cyrus v. State, 169 S. W. 679. § 380 (Ky.) Under Civ. Code Prac. § 596, § 288 (Tex.Cr.App.) In a prosecution for in- commonwealth held properly permitted to prove cest, where the defense, in cross-examining the contradictory statements by witness called by it. prosecuting witness, attempted to show that-Rutland v. Commonwealth, 169 S. W. 584. her statement that the act occurred while the parties were standing and that conception resulted was unreasonable, it was proper for the state to show on redirect examination that defendant and witness had previously had intercourse on numerous occasions.-Vickers v. State, 169 S. W. 669. (C) Privilege of Witness. § 298 (Ky.) Under Const. Ky. § 11, and Const. U. S. Amend. 5, an individual citizen cannot be required to exhibit to a grand jury his books and papers containing evidence incriminating him.-Commonwealth v. Southern Express Co., 169 S. W. 517. $ 306 (Ky.) The privilege against self-incrimination may not be claimed for a corporation by its officers and agents, and it may be required to produce its books and papers before a grand jury, though they contain evidence incriminating it.-Commonwealth v. Southern Express Co., 169 S. W. 517. $ 308 (Ky.) A person cannot determine the criminating nature of the contents of books required to be produced to the grand jury, but must appear in person, with the books and papers in his possession, and tender them to the court for determination.--Commonwealth Southern Express Co., 169 S. W. 517. IV. CREDIBILITY, IMPEACHMENT, ROBORATION. V. (B) Character and Conduct of Witness. § 337 (Ark.) In a prosecution for assault with intent to rape, the state was properly allowed to ask accused on cross-examination, whether he had not been convicted of a similar offense to affect his credibility, under Kirby's Dig. § 3138, as amended by Laws 1905, p. 143.-Hunt v. State, 169 S. W. 773. $ 337 (Ky.) Where accused takes the stand to testify in his own behalf in accordance with Act May 1, 1886 (Gen. St. 1888, p. 548), the state may show his reputation for immorality, and such evidence need not be confined to a time before the commission of the crime.Combs v. Commonwealth, 169 S. W. 879. $337 (Tex.Cr.App.) That accused was indicted for another offense was competent to affect his credibility.-Whitfill v. State, 169 S. W. 681. $361 (Tex.Cr.App.) Where, in a prosecution of accused as an accomplice to an abortion, prosecutrix testified for the state that defend $392 (Ark.) In a prosecution under Kirby's Dig. § 2043, for seduction affidavits of witnesses who stated on the stand that the facts therein stated were true, to the effect that defendant told them that he would marry prosecutrix if he got her pregnant; that they were engaged to be married if he got her that way-were competent for the purpose of impeachment.-Taylor v. State, 169 S. W. 341. § 392 (Tex.Civ.App.) Declarations in a petition not made with plaintiff's knowledge, authority, or acquiescence, in suits against other persons, are not admissible to impeach plaintiff's testimony in the subsequent action,-Gulf, C. & S. F. Ry. Co. v. Battle, 169 S. W. 1048. and Corroboration (E) Contradiction Witness. of $410 (Tex.Cr.App.) Where one accused of the unlawful sale of intoxicating liquor contended that the prosecuting witness was so intoxicated as to have no recollection of the transaction. the prosecution may show that the witness, although somewhat under the influence of intoxicating liquor, was not drunk.-Clark v. State, 169 S. W. 895. WORDS AND PHRASES. "Abide."-O'Brien v. Alford (Ark.) 169 S. W. 774. "Accessory before the fact."-Fondren v. State (Tex. Cr. App.) 169 S. W. 411. "Accomplice."-Fondren V. State (Tex. Cr. App.) 169 S. W. 411. "Account stated."-Godfrey v. Hughes & Hall (Ark.) 169 S. W. 958. 66 'Actionable negligence."-Colyar v. Little Rock V. Wickham (Tex. Civ. App.) 169 S. W. 1123. "Adverse possession.-Smith v. Chapman (Ky.) "Agent."-State v. Brewer (Ark.) 169 S. W. 169 S. W. 834. 804. "Agent of heirs."-Doke v. Benton County Lum- "Amount in controversy."-Stroud v. Conine "Any article or thing whatsoever."-State v. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER |