scribed in the will, but does own another tract which it is thought he intended to describe.
In the very recent case of Cook v. Worthington, supra, we said:
the intention of the maker by transposition to other parts of the instrument without destroying the sense, or where there is an obvious omission of a word or words, shown by reference to the other words used, then the rules of construction will permit the court to transpose or to supply these in order to effectuate the manifest purpose of the maker of the instrument, when ascertained from the instrument taken as a whole. But further than this the court will not go."
Another tract in controversy is the southeast quarter of the northwest quarter of section 5 in township 1 south, range 8 west, which the court holds was intended to an
remain in the will to identify the person or thing, the court will so deal with it, or, if it is an obvious mistake, will read it as if corrected." The case has been frequently cited, and more often criticized than approved; but it is, to say the least of it, very doubtful wheth"Where there is an obvious clerical misprision er the facts of the case warranted the appli- in the use of a word, or where the words, by cation of the principle stated above. How-reference to the context, can better effectuate ever, that principle has no application to the facts of the present case, at least as to two of the tracts of land involved in the controversy. I agree that there is sufficient description to uphold the decree as to the tract referred to as the Baker's Bayou tract, but as to the other two tracts in controversy it seems clear to me that to substitute a correct description for the improper ones used in the will amounts to nothing short of reformation of the will to conform to what the oral testimony shows to have been the real intention of the testator. We have before us nothing to explain or alter the imperfect de-swer the description in the will of "the northscriptive words used by the testator, except the bare fact that he did not own the lands answering the descriptive words of the will, but did own other lands which he doubtless intended to describe. The only fact stated in the opinion of the majority as affording a basis for upholding the decree is that the testator did not own the 100-acre tract described in the will as being in range 9 west, but did own a tract in range 8 west answering the description except as to the township range. It is difficult to understand how it can be said that there can be a substitution of descriptive words for the purpose of conforming to the tract that the testator owned, unless the court resorts to the remedy of reformation or permits oral testimony to vary the terms of the will. There is no escape from the conclusion, it seems to me, that when the court undertakes to substitute words it applies a remedy which is in effect a reformation of the terms of the will or permits oral testimony to vary them. This is not a case like Patch v. White, where the property devised is described in two methods in the will, one of which is correct and the other incorrect, and the court can disregard the incorrect description, for we have only one description here, and when that is discarded there is nothing left. The process of the court is therefore substitution pure and simple, based upon oral testimony. Nor is this a case where you can treat the error as an obvious mistake, for it will not do to change a description merely because the testator does not own the land which he de
east quarter of the northwest quarter of section 5." The only reason for concluding that the testator, when he described the northeast quarter of the northwest quarter, meant the southeast quarter of the northwest quarter, is that he owned the southeast quarter, but did not own the northeast quarter. This is, I think, merely a substitution which amounts to a reformation of the will merely upon the ground that the description should be altered so as to include the tract which the testator owned and which the oral testimony is sufficient to show that he intended to devise. The cases cited on appellant's brief demonstrate very clearly the fallacy of the position taken by the majority in holding that the words of description used by the testator can be wholly discarded and other words substituted merely because it is shown that he owned property answering to the substituted words of description and does not own land which is described by the words employed in the will.
It is a dangerous thing, I think, to tamper with the unambiguous words of a last will and testament, for to do so is to set aside what the testator himself did for the purpose of substituting what the court conceives to be the thing intended by the testator. The safe rule is to follow the language, which is clear and unambiguous, even though the acceptance of it results in an ineffectual attempt on the part of the testator to dispose of his property.
THIS IS A KEY-NUMBER INDEX
It Supplements the Decennial Digest, the Key-Number Series and Prior Reporter Volume Index-Digests
ABANDONMENT.
See Husband and Wife,
ment and Information,
17 (Tex.Civ.App.) In an action for an ac- counting, petition held to state a cause of ac- 308, 313; Indict- tion as alleging collection and retention by de- 110. fendant of commissions jointly earned by the parties. Harless v. Haile, 174 S. W. 1020.
ABATEMENT AND REVIVAL.
II. ANOTHER ACTION PENDING. 4 (Tex.Civ.App.) A prior suit between the same parties, involving the same cause of ac- tion, abates a subsequent suit when properly interposed by plea in abatement.-Blassingame v. Cattlemen's Trust Co., 174 S. W. 900.
ACCOUNT, ACTION ON.
6 (Mo.App.) Under Rev. St. 1909, § 1832, a statement of account attached to the petition becomes a part thereof, and evidence of items contained in the statement is admissible.-Reed v. Kansas Condensed Milk Co., 174 S. W. 110.
ACKNOWLEDGMENT.
17 (Tex.Civ.App.) A plea of pending ac- tion between the same parties, involving the same cause of action, is available only as in See Vendor and Purchaser, 239. abatement.-Blassingame v. Cattlemen's Trust Co., 174 S. W. 900.
IV. PLEADING AND EVIDENCE.
VI. WAIVER OF GROUNDS OF ABATE- 62 (Ark.) A married woman denying that
MENT AND TIME AND MANNER
OF PLEADING IN GENERAL.
80 (Tex.Civ.App.) Defendant, who did not appear and who did not prosecute writ of er- ror, cannot defeat affirmance of the judgment on certificate by showing prior suit by him to cancel the note.-Blassingame v. Cattlemen's Trust Co., 174 S. W. 900.
ABSTRACTS OF TITLE.
See Vendor and Purchaser, ~140.
ACCEPTANCE. 69.
See Bills and Notes,
ACCIDENT INSURANCE. See Insurance, 449, 454, 646.
ACCORD AND SATISFACTION. See Trial, 296.
27 (Mo.App.) Whether the acceptance of clothes damaged in cleaning on payment of less than the original cleaning charges was an ac- cord and satisfaction of the claim for injury to the clothes held for the jury.-Murphy v. Lung- strass D. & C. Co., 174 S. W. 114.
she signed a deed or acknowledged it as evi- denced by a certificate of acknowledgment in due form has the burden of proving that she did not sign or acknowledge it.-Polk v. Brown, 174 S. W. 562.
Evidence held not to show that a wife did not sign and acknowledge a deed as evidenced by a certificate of acknowledgment in due form.-Id.
See Abatement and Revival; Dismissal and Nonsuit.
III. JOINDER, SPLITTING, CONSOLI- DATION, AND SEVERANCE.
50 (Tex.Civ.App.) In an action by plaintiff against two defendants, with one of whom he had been associated under an agreement to share commissions on the sale of stock, such defend- ant's cross-petition against his codefendant held not to cause a misjoinder of causes of action. -Harless v. Haile, 174 S. W. 1020.
57 (Ark.) Actions by mortgagor and mort- gagee on several insurance policies protecting the mortgagee held properly consolidated.-Fi- delity-Phenix Fire Ins. Co. v. Friedman, 174 S. W. 215.
ADJOINING LANDOWNERS.
ADMINISTRATION.
See Executors and Administrators.
See Criminal Law, 406-420; Evidence, 211-265; Stipulations, 14.
II. PROCEEDINGS AND RELIEF. 16 (Tex.Civ.App.) In an action for an ac- counting by an agent against another agent, both being interested in commissions on the sale of stock, joinder of another agent as defendant, who had been brought into the transaction by the first defendant after plaintiff had left the 20 (Tex.) An adoption merely places the country, held proper.-Harless v. Haile, 174 S. adopted child on the same footing as the foster W. 1020. parent's other children, leaving such parent
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
free to dispose of his property by will as he | sented to the assignment, and not to authorize may desire.-Masterson v. Harris, 174 S. W. 570.
ADVERSE POSSESSION.
See Champerty and Maintenance, 7; Ten- ancy in Common, 15; Trespass, 78.
I. NATURE AND REQUISITES. (D) Distinct and Exclusive Possession.
37 (Tenn.) While one in possession of land can, even as against the true owner, maintain unlawful entry and detainer, his possession, where he acquiesces in the owner's entry, must be deemed concurrent.-Sequatchie & South Pittsburg Coal & Iron Co. v. Tennessee Coal, Iron & R. Co., 174 S. W. 1122.
(F) Hostile Character of Possession.
63 (Ky.) Where the interest which plaintiff and his wife attempted to convey was only a remainder to take effect after the death of the wife's mother, the life tenant, possession of grantee did not become adverse until death of life tenant.-Parsons v. Justice, 174 S. W. 725. II. OPERATION AND EFFECT.
(A) Extent of Possession. 100 (Tenn.) The possession of the record owner held constructive possession of the en- tire tract, except that held by defendant, whose possession, not having continued for the stat- utory period, after the owner left, did not ripen into adverse title.-Sequatchie & South Pitts- burg Coal & Iron Co. v. Tennessee Coal, Iron & R. Co., 174 S. W. 1122.
III. PLEADING, EVIDENCE, TRIAL, AND REVIEW.
112 (Tex.Civ.App.) In trespass to try title, where plaintiff connected himself with the sov- ereignty by a regular chain of title, the burden of establishing title by limitation rested upon defendant.-Nunez v. McElroy, 174 S. W. 829. 114 (Mo.) In ejectment by city to recover alleged street or alley, evidence held to support findings for defendants on the issue of adverse possession.-City of Harrisonville v. Foster, 174 S. W. 413.
115 (Ark.) In ejectment, held on the evi- dence that whether defendant had been in pos- session prior to a specified date within the pe- riod of limitations so as to have acquired title by adverse possession was for the jury.-Slater v. Alford, 174 S. W. 225.
See Corporations, 503; Criminal Law, 612, 956, 958, 1139; New Trial, 143; Pleading, 301; Public Lands, 173; Venue, 70.
8 (Mo.) Regarding venue, it is enough that the seal and words following the officer's signa- ture to an affidavit show the oath was adminis- tered by a notary of a certain state and coun- ty.-Hambel v. Lowry, 174 S. W. 405.
See Principal and Agent.
ALIENATION.
ALTERATION OF INSTRUMENTS.
2 (Ky.) The alteration of an assignment for benefit of creditors by the debtor's wife held not prejudicial to an attaching creditor, who as-
him to enforce his attachment.-Glascock v. Peo- ple's Deposit Bank, 174 S. W. 496.
2 (Tenn.) An immaterial change, unaccom- panied by fraudulent design, will not invalidate an instrument.-Columbia Grocery Co. v. Mar- shall, 174 S. W. 1108.
(Tenn.) A material change by a stranger will not invalidate an instrument.-Columbia Grocery Co. v. Marshall, 174 S. W. 1108.
23 (Tenn.) The intent with which an in- the instrument, but is important in determining strument is altered is immaterial as affecting whether recovery can be had upon original ob- ligation.-Columbia Grocery Co. v. Marshall, 174 S. W. 1108.
Alteration by holder of notes in respect to the time of payment is a constructive fraud, which destroys the notes and extinguishes the account for which they were given.-Id.
44 (Tex. Civ.App.) In an action for poisoning stock, evidence that a tin bucket was found on defendant's premises containing a mixture of sulphur and white powder, similar to that found in plaintiff's pasture, held admissible.-Sands v. Sedwick, 174 S. W. 894.
In an action for poisoning stock, evidence that tracks were seen leading from defendant's prem- ises to plaintiff's pasture, where stock was found dead, and returning, held admissible.-Id. In an action for poisoning stock, evidence was admissible that defendant called plaintiff a Jew, and a rascal, when first in- formed that plaintiff charged him with commit- ting the act.-Id.
In an action for poisoning stock, evidence held sufficient to sustain judgment for plaintiff.
See Pleading, 78.
APPEAL AND ERROR.
See Abatement and Revival, 260; Courts, 202, 231; 1018-1184; Divorce,
80; Costs, Criminal Law, 184, 197; Drains,
14; Eminent Domain, 262; Excep- tions, Bill of; Infants, 16; Justices of the Peace, 174; Master and Servant, 80; Wills, 367.
I. NATURE AND FORM OF REMEDY.
(Mo.App.) Unless the right of appeal is given to the appellant by Rev. St. 1909, § 2038, he has no standing.-Nathan v. Planters' Cotton Oil Co., 174 S. W. 126.
II. NATURE AND GROUNDS OF AP- PELLATE JURISDICTION.
20 (Tex.Civ.App.) Where the amount de- manded by plaintiff in justice's court exceeds its jurisdiction, the county court is without jurisdiction, and an appeal from the county court must be dismissed.-Vicars v. Tharp, 174 S. W. 949.
21 (Tenn.) Appellate jurisdiction cannot be conferred by stipulation.-Barnes v. Noel, 174 S. W. 276.
III. DECISIONS REVIEWABLE. (D) Finality of Determination. 70 (Ark.) An order quashing service of sum mons, but not dismissing the action or render- ing any judgment for costs, is not a final order from which an appeal may be taken, under
Kirby's Dig. § 1188.-Harlow v. Mason, 174 S. | W. 1163.
78 (Ark.) An order sustaining a demurrer being only an interlocutory judgment, an ap- peal therefrom will be dismissed.-Davis v. Biddle, 174 S. W. 1196.
216 (Tex.Civ.App.) Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, refusal of special charges held not reviewable T. & S. F. Ry. Co. v. Skeen, 174 S. W. 655. because not objected to at the time.-Atchison,
230 (Tex.Civ.App.) Objections to the gener al charge not presented to the court before the charge was delivered will not be considered on appeal.-Fuller v. El Paso Live Stock Commis- sion Co., 174 S. W. 930.
80 (Tex.Civ.App.) Where, in an action by assignee against debtor and assignor, as guaran- tor, the issue was whether the debtor was liable to the assignee, a judgment not determining that issue was not final.-Carver Bros. v. Mer-231 (Ark.) Admission of husband's testi- rett, 174 S. W. 929.
V. PRESENTATION AND RESERVA- TION IN LOWER COURT OF GROUNDS OF REVIEW.
mony partially proper held not error as against general objection that he was an incompetent witness for the wife.-Fidelity-Phenix Fire Ins. Co. v. Friedman, 174 S. W. 215.
232 (Tex.Civ.App.) Assignments of error, which do not present the same objections to the appellate court as were presented to the court's charge below, cannot be considered.-Hovey v. Sanders, 174 S. W. 1025.
(A) Issues and Questions in Lower Court. 171 (Mo.App.) Where a case is tried on one theory below, the defeated party cannot on appeal change his theory and raise new ques-237 (Mo.App.) A party held not entitled to tions.-Hawkins v. St. Louis & S. F. R. Co., complain on appeal of the admission of the tes- timony of the witness as to the value of serv- ices of housekeeper, where he did not move to strike out the testimony.-Schwanenfeldt v. Metropolitan St. Ry. Co., 174 S. W. 143.
173 (Mo.) Where a former adjudication was not pleaded, it was not properly before the Supreme Court on appeal.-City of Harrison- ville v. Foster, 174 S. W. 413.
173 (Mo.App.) In an action for injuries to a street car passenger, objection on appeal of want of proof that the car belonged to the de- fendant held without merit; the case having been tried below on the theory that there was no issue on that point.-Schwanenfeldt v. Met- ropolitan St. Ry. Co., 174 S. W. 143.
(B) Objections and Motions, and Rulings Thereon.
193 (Mo.) While an objection to the suf- ficiency of the complaint must be considered at any time, it will be considered with greater favor if raised by motion or answer than when interposed after trial.-Carter v. Butler, 174 S. W. 399.
In action on note by person suing as trustee under an agreement authorizing him to sue on behalf of the owners of the note, petition held sufficient as to his title to the note, where ob- jection was not raised by motion or answer. -Id.
193 (Mo.) A pleading not stating a good cause of action may be attacked for the first time in the Supreme Court.-Titus v. North Kansas City Development Co., 174 S. W. 432.
204 (Tex. Civ.App.) Where a party failed to object to a question asked a witness before an- swer, he could not, on appeal, urge his objec- tion to the answer.-Glens Falls Ins. Co. of Glens Falls, N. Y., v. Melott, 174 S. W. 700.
204 (Tex.Civ.App.) Where there was no ob- jection below that hypothetical question did not correctly present the evidence, error therein, if any, was not ground for reversal.-Texas & P. Ry. Co. v. White, 174 S. W. 953.
In an action for damages to shipment of cattle, any error in allowing witness to testify as to condition of market, based on a telegram not originally admissible in evidence, held not ground for reversal.-Id.
207 (Ky.) The impropriety of counsel's ar- gument cannot be reviewed where not objected to below.-Ross v. Kohler, 174 S. W. 36.
273 (Tex.Civ.App.) Bills of exception to the giving and refusal of charges held to present matters for review, though grounds of objection are not stated, where the trial court understood the grounds of objection.-Eaton v. Klein, 174 S. W. 331.
273 (Tex.Civ.App.) One general exception to the refusal to give several requested instructions held not entitled to consideration on appeal, where any one of them was properly refused.- Hovey v. Sanders, 174 S. W. 1025.
(D) Motions for New Trial.
281 (Tenn.) Errors which can be made to appear by bill of exceptions only must be pre- sented to the trial court on motion for new trial before relief can be had on appeal.- Barnes v. Noel, 174 S. W. 276.
291 (Mo.App.) Where demurrers were sus- tained to the evidence under two counts of the petition, but plaintiff, who had a verdict below, did not make the ruling ground for motion for new trial, he cannot, on appeal from an order 207 (Tex.Civ.App.) Remarks of counsel arresting judgment, question the sustaining of held not to be considered on appeal in absence the demurrers.-McWilliams v. Workers' Print- of request for instructions thereon.-Missouri, ing Co., 174 S. W. 464.
K. & T. Ry. Co. of Texas v. Long, 174 S. W.291 (Tenn.) The direction of a verdict must be challenged by a motion for a new trial to 215 (Ky.) Where no objection to instruc- be raised on appeal.-Barnes v. Noel, 174 S. W. tions was made before new trial, the propriety thereof cannot be reviewed.-Ross v. Kohler, 174 S. W. 36.
215 (Tex.Civ.App.) Error cannot be predi- cated upon charge of court, where no objection was made.-Sands v. Sedwick, 174 S. W. 894.
301 (Ark.) Assignments of error to the giv- ing of instructions will not be discussed, where the record shows that the appellant did not make them grounds of its motion for a new trial, as it will be deemed to have waived
them.-Railways Ice Co. v. Howell, 174 S. W.
(D) Writ of Error, Citation, or Notice.
396 (Tex.Civ.App.) Notice of appeal in the court below and a motion for a new trial there- in are not required, where the case is brought up by petition and writ of error.-McPhaul v. Byrd, 174 S. W. 644.
301 (Tex. Civ.App.) An assignment of error not contained in the motion for new trial, which under Acts 33d Leg. c. 136 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1612), constitutes the assignments of error on appeal when such a motion is filed, cannot be considered.-Watson X. RECORD AND PROCEEDINGS NOT IN RECORD. v. Patrick, 174 S. W. 632.
301 (Tex.Civ.App.) Under Vernon's Sayles' Ann. Civ. St. 1914, arts. 1607, 1612, and Court of Civil Appeals rules 23, 24 (142 S. W. xii), appellant, filing a motion for new trial, held confined to the assignments therein on appeal, except for error of law apparent upon the rec- ord.-Zmek v. Dryer, 174 S. W. 659.
302 (Mo.) Where defendant in its motion for new trial abandoned many asserted de- fenses, they were waived, and need not there- after be considered.-State ex rel. City of St. Louis v. Missouri Pac. Ry. Co., 174 S. W. 73. 302 (Mo.App.) On refusal of an injunction, failure of the court to take an accounting held not open to review, under the grounds stated in the motion for new trial.-Holmes v. Webb City Building & Loan Ass'n, 174 S. W. 122.
(A) Matters to be Shown by Record. 499 (Tex. Civ.App.) Assignments of errors to instructions and refusal of instructions, in the absence of bill of exceptions showing com- pliance with Acts 33d Leg. c. 59, cannot be considered.-Capps v. Johnson, 174 S. W. 294.
499 (Tex.Civ.App.) An assignment of error to the giving and refusing of charges will be overruled where there are no bills of exception in the record as provided by Revised Statutes as amended in 1913 (Acts 33d Leg. c. 59).— Texas & P. Ry. Co. v. Graham & Price, 174 S. W. 297.
499 (Tex.Civ.App.) Where there is nothing in the record showing any objection to charge before submitted to jury, nor any exception re- served thereto, assignments complaining of charge will not be considered.-St. Louis, B. & M. Ry. Co. v. Dawson, 174 S. W. 850.
499 (Tex.Civ.App.) Where the bill of excep- tions taken to the exclusion of evidence fails to
state the objection made, the action of the trial court cannot be reviewed.-Fuller v. El Paso Live Stock Commission Co., 174 S. W. 930.
499 (Tex.Civ.App.) Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, assignment of error will be considered waived by failure of the record to show any objection below to the portions of the charge on which they were based.-Reed v. Missouri, K. & T. Ry. Co. of Texas, 174 S. W. 956.
336 (Tex.Civ.App.) When a party adverse- ly interested to plaintiff in error is not joined499 (Tex.Civ.App.) Where the record did in the petition, failure to file a motion to dis- miss does not necessarily confer jurisdiction, as the court may dismiss of its own motion. McPhaul v. Byrd, 174 S. W. 644.
not show that an exception was ever presented and ruled upon in trial court, it would not be considered on appeal.-Gulf, C. & S. F. Ry. Co. v. King, 174 S. W. 960.
(B) Scope and Contents of Record.
516 (Mo.App.) Rendition of judgment, fil- ing motion for new trial, ruling thereon, filing
of bill of exceptions, or making the same a part allowance of appeal must be shown by the of the record, filing affidavit for appeal, and record proper to present any question for re- view.-Mangan v. Woodward, 174 S. W. 121.
522 (Ark.) Oral testimony can only be pre- served by a recital in the original record or by bill of exceptions or by reducing it to writing at the time and filing it, with permission of the court, as part of the record.-Phillips v. Jo- kische, 174 S. W. 520.
361 (Tex.Civ.App.) A mistake in the descrip- tion of land specified in the judgment in a peti-532 (Ark.) Record brought before circuit tion in error held not ground for dismissal of the writ.-McPhaul v. Byrd, 174 S. W. 644.
365 (Ark.) A court cannot enter an order granting an appeal nunc pro tunc, when no or- der was in fact made within statutory time.- Chicago Mill & Lumber Co. v. Drainage Dist. No. 15, Mississippi County, 174 S. W. 566.
(C) Payment of Fees or Costs, and Bonds or Other Securities.
387 (Tex.) Under Rev. St. 1911, art. 2084, appellate court and Supreme Court held with- out jurisdiction where appeal bond was filed more than 20 days after the term.-Dilworth v. Ed Steves & Sons, 174 S. W. 279.
court,, on appeal form probate court, by cer- tiorari and not before the circuit court when the case was pending, held not to be considered by the Supreme Court in determining whether an affidavit for appeal was filed in the probate court.-Huffman v. Sudbury, 174 S. W. 1149. (C) Necessity of Bill of Exceptions, Case, or Statement of Facts.
544 (Tex. Civ.App.) Error cannot be predi- cated upon charge of court, where no bill of ex- ceptions was reserved thereto.-Sands v. Sed- wick, 174 S. W. 894.
544 (Tex. Civ.App.) Error in denying con- tinuance cannot be considered in the absence of a bill of exceptions showing the ruling on the application.-American Nat. Ins. Co. v. Bird, 174 S. W. 939.
390 (Tex. Civ.App.) Under Vernon's Sayles' Ann. Civ. St. 1914, art. 2104, held that, on fil- ing of defective appeal bond giving Court of Civil 548 (Tex.Civ.App.) In the absence of a bill Appeals jurisdiction, appellee should have filed of exceptions, the admission of evidence cannot timely motion pointing out defect, whereupon be reviewed.-Nunez v. McElroy, 174 S. W. appellant might have amended.--Crawford V. 829. Wellington Railroad Committee, 174 S. W. 555 (Tex.Civ.App.) Where the statement of 1004. facts and bills of exception were stricken from
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