only a sale of so much as is removed in the time. Ford Lum-
ber Co., et al. v. Cornett....
Deed-Excepting Timber-Removal-Time Not Specified.—If
timber be excepted in a deed, the title remains in the grantor,
and if the deed is silent as to the time of removal and there
is nothing in the other provisions of the deed or the situa-
tion of the parties or the circumstances surrounding them
when the deed was executed, to show that a severance of the
timber from the land was contemplated by the parties, the
grantor's title to the timber is not lost or defeated by his
failure to remove it in a reasonable time. Idem..........
Action for Value of Timber Cut Without Right-Defense.-
In an action for the value of timber cut without right, the
fact that the defendant cut the timber into logs and delivered
the logs to another claimant who had filed suit and executed
proper bond, and who disposed of nearly all the logs, does
not constitute a defense against the claim of the true
owner to the extent of the logs disposed of, the owners loss
being due to the tortious act of the defendant. Idem......... 457
Action for Timber Cut-Deeds-Instructions.-In an action
for the value of timber cut and removed from land, the evi-
dence examined and held that the verdict is flagrantly against
it. An instruction was confusing which quoted two or three
cails of the deed and told the jury if they believed appellant
cut and removed the timber from across any of these lines,
they would find for the appellee. Upon another trial the
court will ascertain from the testimony the line or lines over
which appellee claims the timber was cut, and tell the jury
that if they believe the line or lines are located as claimed
by appellee and that the timber was cut over all, or either
of them, they will find for appellee, but if located as claim-
ed by appellant and he did not cut any timber over any of
them, they will find for him. Hodge v. Napier.....
479
TORTS-See Master and Servant, 11.
1. Time of Trial-Effort for Continuance.-In the absence of
any effort by the defendant to continue he will not be heard
to complain of the time of his trial. McElwain v. Common-
wealth ..
.. 104
Employment of Attorneys-Bias of Jurors.-It will not do to
say that the employment of an attorney so subjects its other-
wise properly qualified citizens to bias as to prevent their
fair service in the jury box. Idem..
3. Two Defendants-Trial for
Qualification as Witnesses-Where two defendants are accused
of murder and have been allowed separate trials on the
trial of one, his co-defendant cannot be compelled to testify as
a witness for the one on trial and no comment would have
been permitted, but if he was not offered as a witness the
failure to call him was a legitimate subject of comment. Idem 104
4. Rigid Technicalities-Fair Trial. Modern thought and
modern spirit in criminal procedure will no longer tolerate
the rigid technicalities once enforced in the defendant's favor
in criminal prosecutions. Its purpose is to examine the record
in an effort to ascertain whether the defendant has been
fairly tried. Idem
Equitable Action-Submission-Section 364, Civil Code.-An
equitable action is properly submitted for trial, when the
pleadings were completed more than four months before the
term. McGoodwin Banking Co.'s Assignee v. Gooch, et al.... 550
Continuance.-In an equitable action, affidavit for continuance
and counter affidavits examined, and held that the trial court
did not abuse its discretion in refusing to grant a contin-
uance. Idem .
ULTRA VIRES-See Corporations, 3.
VACANCY IN OFFICE--See Office and Officer, 6, 7.
VENDOR AND VENDEE-See Lands; Deeds-
Vendor Holding Unrecorded Deed-Estoppel to Rescind
Trade The vendor who holds an unrecorded deed, having
procured his vendee to accept a deed from his vendor promis-
ing to destroy the deed he held, is estopped to set up his deed
against his vendee. But the latter having abandoned his pur-
chase and received from the vendor the price he paid upon
an agreement to rescind the trade, is estopped after long
delay to set up his deed against the vendor; and the estoppel
against the estoppel sets the matter at large. Mullins v. Wat-
kins.
Consideration Returned-Estoppel to Recover Property.-A
vendee who has abandoned his purchase and received back
the consideration will not be allowed to recover the property
after the lapse of many years and a change in the value of
the property. Idem
Infancy as a defense must be pleaded. Idem.
1. Verdict Flagrantly Against the Evidence-Where the verdict of
the jury is flagrantly against the weight of the evidence, it
will be set aside and a new trial awarded. C., N. O. & T. P.
Ry. Co. v. Martin
2. The verdict of a jury will not be set aside as palpably against
the evidence although it may be against the weight of the
evidence. New York Life Insurance Company v. Evans...... 600
VERIFICATION OF CLAIM-See Executors and Administrators.
WARRANTY-See Automobiles; Sales.
WEDLOCK-See Children; Husband and Wife; Divorce and
Alimony.
Construction.-Testator's will contained the following pro-
vision: "I have deeded to my son, Henry Duff's heirs about
136 acres of land in the bend of Slate above Howard's Mill
and $25 worth of household goods, it being his full share of
my whole estate except what is mentioned hereafter." Later
on testator directed certain property upon the happening of
certain events to be divided equally among "all my heirs."
In two other instances he directed certain property to be
divided equally between "all my heirs including Henry Duff's
children;" Held, that the testator plainly indicated that he
intended Henry's part of the estate should go to Henry's
children, and by necessary implication excluded Henry from
participating in the devised estate as one of the testator's
heirs. Duff v. Duff's Exors., et al.....
Undevised Estate Exclusion of Child.-A father can not ex-
clude a child from participation in his undevised estate by
giving him certain property by deed or will declaring that it
is all of his estate that he intends the child to have, but can
only do so by disposing of his entire estate. Idem.... .... 201
Advancements.-Where a testator declares in his will that
certain property which he had deeded to the children of one
of his sons was in full of that son's part of the whole estate,
such gift is not a mere gratuity to the testator's grandchil-
dren, but is in effect a gift to the son, and should be charg-
ed as an advancement to the son in the distribution of the
undevised estate. Idem
Where an estate is given to a person generally or indefinite-
ly, with a power of disposition, it carries a fee; and an at-
tempted limitation over is void. Park, et al. v. McCombs,
et al.
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But if the first taker be given an estate for life only, with
a power of disposition, the estate is not enlarged save to the
extent that the power of disposition may be exercised; and a
limitation over will pass the undisposed-of estate. Idem.... 327
6. The power of disposition need not be given in express terms.
It is sufficient if the language used of necessity implies the
power of disposition. Idem
7. Estate Devised.-Where a testator devised his property to his
widow during her life, and after her death one share of said
property was given to testator's daughter for life, and at her
death same should go to her children, the daughter took a
life-estate only in her share of her father's estate, and her
deed conveying her said interest carried only her life interest
therein. Rudd, et al v. Roberts, et al........
8. Devise for Life Remainder to Children-Limitation Over.-A
devise to one for life with remainder to her children born or
to be born and with limitation over to another in case of
the death of the children without issue, will not be con-
strued to refer to the death of the children before the death
of the life tenant, where from the will as a whole it is appar-
ent that the testator did not so intend. Beall, et al v.
Wilson, et al
Perpetuities-Limitation Over.-Where a limitation over is
void because within the statute against perpetuities, the pre-
vious estate which is vested under the will is not affected by
the void limitation. Idem
10. Devise to Child for Life-Remainder to Child.-In a devise to
a daughter for life with remainder to her children born or to
be born, a limitation that the property shall go to the testa-
tor's collateral kindred upon the death of all the grandchil
dren without issue, is void on the ground that the limitation
is within the statute against perpetuities. Idem.......
11. Contest-Trial-Pleading-Motion to Require Statement
Grounds of Contest-What Necessary to Perfect Appeal.-A
motion to require the contestants to file in writing a state-
ment of the grounds relied upon to have the will set aside,
was properly overruled by the trial court. The filing of a
transcript of the proceedings in the county court with the
clerk of the Circuit Court and having summons issued, is all
that is required to perfect the appeal from the judgment of
the County Court. Lisle et al. v. Couchman, et al......
12. Evidence-Individual Circumstances-Undue
an action to set aside a will upon the ground of undue influ-
ence, a conversation between one of the propounders, who
was at the time of the conversation guardian for one of the
contestants, in which he told her if she did not mind him she
would regret it, and when she asked him why, said, "on your
grandfather's account," was competent although it occurred
thirteen years before, it being a circumstance, and usually
such contests rest upon individual circumstances. Idem...... 346
13. Peremptory Instruction.-The trial court properly refused to
give a peremptory instruction to find for the propounders, the
evidence showing as it did a want of testamentary capacity
and the exercise of undue influence. Idem ...
14. Province of Jury. It was the province of the jury to say,
under all the evidence, whether or not the paper in question
was the last will and testament of the deceased, and their
finding, under proper instructions, must be approved. Idem.. 346
15. Contest-Evidence-Inequality.-Mere inequality in a will is
not sufficient to impose upon the propounders the burden of
proof. Clark, et al v. Young's Extx....
16. Evidence-Peremptory Instruction. In a will contest, evi-
dence examined and held insufficient to take the case to the
jury. Idem .
17. Wills-Testamentary Capacity-Scintilla Rule-Undue Influ-
ence. In a contest over the will of John Murphy, deceased,
although the evidence was conflicting as there was at least
a scintilla tending to show the want of testamentary capacity
on the part of the testator, and considerable evidence tending
to show undue influence emanating from the chief devisee,
which caused the testator to make the will, the case was
properly allowed to go to the jury. Murphy's Ex., et al v. Mur-
phy, et al.
18. Question for Jury.-As undue influence is generally employed
surreptitiously the evidence by which it is established is in a
very large degree, circumstantial, and the question of undue
influence is especially one for the jury. Idem....
...... 396
19. Burden of Proof-Evidence. The burden of proof upon the
issue of undue influence is upon the contestants of the will,
but it may be established by a simple preponderance of the
evidence; and in a will case, where the grounds of contest
are mental incapacity and undue influence, the evidence is
necessarily allowed to take a wide range, and every fact and
circumstance that may throw light upon either of these facts,
is admissible. Idem.
20. Verdict-Not Flagrantly Against the Evidence.-As the ver-
dict of the jury was not flagrantly against the evidence, the
refusal of the trial court to grant a new trial was not error.
Idem . .
397
21. Devise in Trust-Character of Estate Devised. In this case a
devise by an uncle of a tract of land to each of two nephews,
in trust for the support of themselves, their wives and chil-
dren, and at their deaths to become the property of the chil-
dren, and be divided between them, only gave their nephews
equally with their wives and children the right to the oc-
cupancy of, and a support from, the lands, during the nephews
lives. Hackett's Trustee v. Hackett, et al... . . . .
22. Inseparable Interest-Cannot be Subjected to Debts.-The
nephews have no seperable interest in the lands that can be
subjected by a trustee in bankruptcy to the payment of their
debts. Idem
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