shows that the sum of $20,000, at which he valued said buildings and improvements in his said account, is quite substantially less than a fair valuation, even upon the calculations made by his counsel, based upon its gross and net income. We are of the opinion, therefore, that the assessors were entitled to have "judgment and execution for their costs," as provided in Gen. Laws R. I. 1909, c. 58, § 17, and we find no error in the decision of the presiding justice of the superior court in favor of the respondents. born in 1849; in his application to the New | a preponderance of the evidence, as he is. York Life Insurance Company, in 1901, he bound to do, that in his sworn account, stated that he was born March 15, 1852. We brought in to the tax assessors in June, 1909, think that it is quite apparent that his state- he placed a fair valuation upon the buildment of age in the application here in evi-ings and improvements upon his real estate. dence was false and fraudulent, and intend- We think the preponderance of the evidence ed to conceal his true age, for the purpose of obtaining the insurance at a lower rate that he was entitled to. If he did not know his age, he should have so stated. The company was entitled to know his age, as an important element in the risk involved, and in view of their rules, not only regarding the rate of premium, but also as to the limitation of amount of insurance of persons over 60 years of age, and as to the more stringent medical examination required in such cases. We think the presiding justice was also fully warranted in his finding, in effect, that the defendant misrepresented his previous condition of health in a matter of material importance. As we find that the evidence before the presiding justice fully warranted a finding that the defendant made these representations falsely and fraudulently, we are of the opinion that the decree entered De- SCIARRA v. PROVIDENCE ICE CREAM cember 7, 1912, setting aside the policies, is supported by the evidence, and therefore we do not find it necessary to discuss in detail the various questions of law raised and argued upon the briefs of the parties. The appeal is dismissed, the decree appealed from is affirmed, and the case is remanded to the superior court for further proceedings. CHAMPLIN v. TAX ASSESSORS OF PAW TUCKET. (Supreme Court of Rhode Island. June 17, 1913.) TAXATION ($495*)-PETITION FOR REVIEW OF ASSESSMENT-COSTS. Where the petitioner fails to show that in his sworn account to the tax assessor he placed a fair valuation upon the buildings and improvements of his real estate, the assessors are entitled to have judgment and execution for their costs as provided by Gen. Laws 1909, c. 58, § 17. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 889; Dec. Dig. § 495.*] Exception from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Petition by George B. Champlin against the Tax Assessors of Pawtucket. On petitioner's exception to decision in favor of respondents. Exception overruled. C. M. Van Slyck and Frederick A. Jones, both of Providence, for petitioner. Edward W. Blodgett, City. Sol., of Pawtucket, for respondents. PER CURIAM. A careful examination of the evidence in this matter satisfies this court that the petitioner has not shown by The petitioner's exception is overruled, and the case is remitted to the superior court for the entry of judgment for the respondents, in accordance with the decision. CO. (Supreme Court of Rhode Island. June 17, 1913.) SERVANT (8 217*)-ASSUMED MASTER AND Where an employé, injured by putting his hand into a hopper containing revolving knives, knew from long experience in operating the machine of the danger of putting his hand in the machine, and also knew of the danger of slipping and falling if he stood in front of the machine upon broken ice, as he did when injured, while attempting to remove ice from the hopper, he assumed the risk of injury from slipping and getting his hand in the hopper. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*] Exception from Superior Court, Providence and Bristol Counties; Darius Baker, Judge. Action by Nicola Sciarra against the Providence Ice Cream Company. Verdict of nonsuit, and plaintiff excepts. Exception overruled, and case remitted to superior court for judgment on verdict. John F. Collins and James A. Williams, both of Providence, for plaintiff. Gardner, Pirce & Thornley, of Providence, for defend ant. PER CURIAM. It is clear from all the evidence that the plaintiff, from long expe rience in the use of the machine upon which he was hurt, was fully aware of the danger incident to its operation if he put his hand into the hopper when the revolving knives were in operation; also that he was fully aware of the danger of slipping and falling if he stood upon a pile of broken and crushed ice at the front of the machine, as he did when he was attempting to remove a cake of ice from the hopper to relieve the jam ROACH v. TOWN COUNCIL OF EAST (Supreme Court of Rhode Island. June 17, 1. INTOXICATING LIQUORS (§ 74*) - COMPEL- application, petitioner appeals. Appeal denied, and case remitted to superior court for further proceedings as directed. Joseph C. Cawley and Frederick J. Berth, both of Providence, for appellant. James A. Cahill, Town Sol., of East Providence, for respondent. BAKER, J. This is an appeal from the judgment of the superior court by which an application of the petitioner for a writ of mandamus against the town council of East Providence was denied. The petitioner represents that he is a resident and legal voter in said town of East Providence, and that on the 30th day of November, 1912, he filed with the town council of said town a petition that he be granted a license for the sale of liquor at retail for premises designated in said petition and located in said town; that said town council received said petition and ordered it to be advertised according to law, and that thereafter said town council on December 17, 1912, voted that the petitioner be granted leave to withdraw; that thereafter, on December 21, 1912, he presented to said town council at a meeting thereof a demand in [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. 88 74, 75; Dec. Dig. writing, setting forth that he declined to ex 74.*] 2. MANDAMUS (§ 3*)-CONDITIONS OF RISK. Mandamus will be awarded only when applicant has a specific legal right, with no specific legal remedy for its deprivation. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 8, 10, 11, 16-34; Dec. Dig. § 3.*] 8. INTOXICATING LIQUORS (§ 74*)- COMPELLING ACTION ON PETITION FOR LIQUOR LICENSE. ercise said leave to withdraw, and demanded that said petition be granted; that said town council voted that said demand be received, and utterly neglected and refused to grant said petition, or to take any other or further action in the matter. Petitioner also alleges that the failure to grant the petition was due to the instigation of certain persons and corporations engaged in the liquor and brewery business, and that said town council did arbitrarily and unlawfully discriminate against the petitioner, and did unlawfully neglect and refuse to grant his said petition, wherefore he prays for a writ of mandamus, directed to the said members of [Ed. Note.-For other cases, see Intoxicating said town council, whose names are given, Liquors, Cent. Dig. 88 74, 75; Dec. Dig. commanding them to grant said petition for 74.*] When a petitioner for a liquor license expressly refuses to exercise leave to withdraw his petition for license and demands definite action thereon, a licensing board may be compelled by mandamus to act upon the petition by granting or refusing it, but cannot be compelled to grant it, that being a matter for its discretion. said license. [1] Section 2 of chapter 123 of the General Laws provides as follows: "The town councils of the several towns, and the boards of commissioners as hereinafter provided, may grant or refuse to grant licenses to such citizens resident within this state, for the manufacture or sale of pure spirituous and intoxicating liquors within the limits of such town or city, as they may deem proper." The power of the town council in the granting of liquor licenses, and the conditions un [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. 88 74, 75; Dec. Dig. der which that power is to be exercised, 74.*] Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Application for mandamus by John F. Roach against the Town Council of East Providence. From a judgment denying the have been considered in Dexter v. Town Council of Cumberland, 17 R. I. 222, 21 Atl. 347. In its opinion in that case the court says: "Before exercising this power, it is necessary to determine whether the precedent requirements of the statute have been complied with, and also whether the owners of a •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes * greater part of the land within 200 feet of | It perhaps might be inferred that the town the place proposed object in writing to the council had taken no action whatever on granting of such license. These determina- his petition after that date. He does, howtions are of a judicial nature, upon which ever, twice say that the council has neglectthe jurisdiction of the board depends, and ed and refused to grant his said petition. they may therefore be reviewed. It is reasonable, therefore, to conclude that When due notice has been given, and the his meaning is that his said petition was requisite number of landowners do not ob- acted upon by the town council, and that it ject to the license, it is then a matter of was refused. At all events, he does not in discretion with the board whether to grant his petition for the writ ask simply that the the license or not. Over such a conclusion town council be required to act on his pethis court has no control." tition, but that they be ordered to grant it. For the court to order this to be done, as already appears, would be an attempt to unlawfully control the discretion of the town council. [2] The statute authorizing the granting of licenses was the same then as now, except that the present law makes the addition of the restriction that only one license for each 500 inhabitants can be granted and of the provision forbidding the granting of a license to any premises within 200 feet of a public or parochial school. In this case the petitioner alleges that due notice was given and that no remonstrance to the granting of the petition was filed. There is no suggestion that the two restrictive provisions of the present law above referred to affect the application of the petitioner, and under the authority of the case above quoted the granting or refusing of the petition was a matter of discretion with the town council. It is too clear for argument, therefore, that under the law quoted the petitioner for a license has no legal right thereto. "The grand condition of obtaining a writ of mandamus is that the applicant has a specific legal right, with no specific legal remedy for a deprivation of that right." Short on Information, Mandamus and Prohibition (1st Am. Ed.) *p. 228, note 1. See, also, Spelling on Injunction and other Extraordinary Remedies, vol. 1, § 1370; Sweet v. Conley, 20 R. I. 381, 383, 39 Atl. 326. [3] We think that the petitioner, being eligible as a licensee, was entitled to have his petition acted upon. That was his specific legal right. If acted upon, he has obtained his specific legal right in the premises. The expression "leave to withdraw" is not defined in "Words and Phrases," in the law dictionaries, in the modern large dictionaries in ordinary use, or in the encyclopædias of law. In Cushing's Law and Practice of Legislative Assemblies (9th Ed. 1907) par. 1174, the effect of a petitioner having leave to withdraw is described as follows: "In this case the petition, although not granted, is not refused, but may be withdrawn and presented again." We are of the opinion that when a petitioner in express terms refuses to exercise such leave to withdraw, and demands definite action upon his petition, the licensing board could be compelled to act definitely upon the petition by either granting or refusing it. The petitioner is not very clear in his statement of what was done by the town council respecting his petition after December 21, 1912. "It is [4] The allegations in the petition ""that the town council arbitrarily and unlawfully discriminated against the petitioner, and that they were instigated thereto by certain persons and corporations engaged in the liquor and brewery business," are similar in character to the allegation in Kenney v. State Board in Dentistry, 26 R. I. 538, 542, 59 Atl. 932, 933, that the board was prejudiced against the petitioner and did not give her a fair and impartial examination, respecting which the court in that case says: sufficient to reply that this court can take no notice of such a charge in a proceeding of this sort. If she was rejected because of improper motives on the part of the board, her remedy is by an action for damages against the individual members thereof, alleging bad faith and arbitrary disregard of their duties, or improper animus against the applicant, or other malversation in their discharge of duty, but not by mandamus." We are of the opinion that the petitioner in this case has failed to show that he is entitled to the relief asked for, and that the decision of the presiding justice in denying the application for a writ of mandamus must be upheld. The petitioner's appeal from the judgment of the superior court is denied and dismissed, and the case is remitted to the superior court, to be disposed of in accordance herewith. (119 Md. 448) CONRADES et al. v. HELLER et al. (Court of Appeals of Maryland. Jan. 17, 1913.) 1. WILLS (8 294*)-CONTEST-ADMISSIBILITY OF EVIDENCE-ATTESTATION CLAUSE. In a will contest, evidence as to whether one of the executors, who was also the draftsman of the will and a witness thereto, had written the attestation clause, was irrelevant and immaterial. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 679-684; Dec. Dig. § 294.*] 2. APPEAL AND ERROR (§ 1058*)-HARMLESS ERROR-EXCLUSION OF EVIDENCE. Error, if any, in excluding evidence as to whether the draftsman, who was a witness to a will, had written the attestation clause, was harmless, where he testified that he did write the attestation clause. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4195, 4200-4204, 4206; Dec. Dig. § 1058.*] 3. WITNESSES (§ 388*) IMPEACHMENT FOUNDATION. In a will contest, questions to an attesting witness as to whether he had not stated that the paper was executed before he got there, as to whether he had made any statements that at the time the will was drawn the draftsman and another were running the affair, and as to whether the paper was signed before he got there, were insufficient as a foundation to contradict him, since the time, place, and persons to whom the alleged contradictory statements were made were not included therein. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1233-1242, 1246; Dec. Dig. 388.*] 4. WILLS ( 298*)-CONTESTS-ADMISSIBILITY OF EVIDENCE. In a will contest, where contestees had called the subscribing witnesses and made out a prima facie case as to the execution of the will before offering it, leaving the contestants to proceed with their testimony, the will itself and the reading of it was admissible. [Ed. Note.-For other cases, see Wills, Cent. Dig. 673; Dec. Dig. § 298.*] UNDERSTANDING OF 5. EVIDENCE (§ 471*) WITNESSES. Where contestants read a clause from the will to a witness in behalf of herself and the other contestants, objection to the question, "What does that mean, do you know?" was properly sustained. [Ed. Note. For other cases, see Evidence, Cent. Dig. $8 2149-2185; Dec. Dig. 8 471;* Witnesses, Cent. Dig. §§ 833, 834.] 6. WILLS (§ 293*)-CONTESTS-ADMISSIBILITY OF EVIDENCE-MORTGAGE. In a will contest, where the draftsman, a witness to the will, had testified that he did not know anything about it, a certified copy of a mortgage given by a sister-in-law of the witness to the testatrix was properly excluded as being irrelevant. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 666-672, 675-678; Dec. Dig. § 293.*] 7. WILLS (§ 327*)-TESTAMENTARY CAPACITY -QUESTION FOR JURY. Where there was no evidence tending to show the want of such testamentary capacity as is required by law, an instruction to find for the executors propounding the will was properly given. [Ed. Note.-For other cases, see Wills, Cent. Dig. 773; Dec. Dig. § 327.*] 8. WILLS (§ 302*) - CONTESTS - SUFFICIENCY OF EVIDENCE-TESTATOR'S KNOWLEDGE OF CONTENTS. Evidence in a will contest held to show that testatrix at the time of its execution knew the contents of the will. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 575, 581, 700-710; Dec. Dig. § 302.*] 9. WILLS (§ 109*) - VALIDITY · EXECUTIONKNOWLEDGE OF CONTENTS. Testator's knowledge and understanding as to the actual contents of his will are sufficient though in point of fact he may have some erroneous opinions as to their legal effect; if he understands the effect as a whole, it is not material that he does not understand the meaning of all the technical terms used therein. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 261-266; Dec. Dig. § 109.*] 10. WILLS (§ 116*)-DEVISE TO CHURCH-COMPETENCY OF MEMBER AS ATTESTING WITNESS. A member of the church, to which testatrix, also a member, left the residue of her estate, did not become an interested party so as to disqualify him from witnessing the will. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 284-298; Dec. Dig. § 116.*1 11. WILLS (§ 163*)—UNDUE INFLUENCE-PRESUMPTION FROM DISPOSITION. The fact that testatrix left the bulk of her estate to the church she herself and two of the witnesses belonged to raised no presumption of undue influence. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 388-402; Dec. Dig. § 163.*] Evidence in a will contest held not suffiIcient to establish undue influence. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*] 13. WILLS (§ 327*)-FRAUD-QUESTION FOR JURY. Where there was no evidence to show fraud in obtaining a will, the requested prayer of the executors to find for them on the issue was properly given. [Ed. Note. For other cases, see Wills, Cent. Dig. 773; Dec. Dig. § 327.*] 14. WILLS (§ 123*)--EXECUTION WITNESSES. ATTESTING Under Code Pub. Civ. Laws, art. 93, § 323. providing that all devises and bequests shall be in writing and signed by the party or by some person for him in his presence and by his express direction and shall be attested and subscribed in the presence of the testator by two or more credible witnesses, it is not sufficient to show that two or more competent witnesses signed the will, but it must have been attested and subscribed in the presence of the testator by two or more credible witnesses. [Ed. Note. For other cases, see Wills, Cent. Dig. 88 321-331; Dec. Dig. § 123.*] 15. WILLS (§ 302*)-EXECUTION-SUFFICIENCY OF EVIDENCE-ATTESTING WITNESSES. Evidence in a will contest held to show that all three of the attesting witnesses actually signed the attestation clause in the presence of testatrix and at her request. [Ed. Note. For other cases, see Wills, Cent. Dig. 88 575-581, 700-710; Dec. Dig. § 302.*] 16. WILLS (§ 302*)-CONTEST-EVIDENCE-ATTESTATION CLAUSE. An attestation clause is prima facie evidence of the facts therein recited. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 575-581, 700-710; Dec. Dig. § 302.*] 17. WILLS (§ 303*) - NUMBER OF ATTESTING WITNESSES. The law only requires proof of a will by two of the attesting witnesses. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 711-723; Dec. Dig. § 303.*] 18. WILLS (§ 120*)-EXECUTION-REQUEST TO WITNESS. It is not necessary that a testator ask his attesting witnesses to sign, and, as to whether he requested them to sign or sufficiently declared it to be his will, it is sufficient if he by word, act, or conduct made it certain that he intended the paper he was about to sign to be his will and desired the witnesses to sign it as such. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 314-317; Dec. Dig. § 120.*] REASON by said Louise Kruger when she was of Where the jury was properly instructed to find for the executors, contestees of the will, on the issue whether it was executed according to the law, although the reason given was not sufficient, the court will not reverse for error in such instruction where all the procurable evidence has been produced and satisfies the court that the law was complied with. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3424, 3427-3430; Dec. Dig. § 854.*] 20. COURTS (§ 202*)-CERTIFICATION OF VEBPROBATE COURT-JURISDICTION DICT TO CIRCUIT COURT. The circuit court has no authority to enter judgment on a verdict rendered on issues sent from the orphans' court, the established practice in such cases being to certify to the Orphans' Court the verdict of the jury and the costs, leaving that court to enter the proper judgment. [Ed. Note.-For other cases, see Courts, Cent. Dig. 88 480-486; Dec. Dig. § 202;* Appeal and Error, Cent. Dig. §§ 104, 3378, 3379.] 21. COURTS (§ 202*)-CONTEST REVIEW JUDGMENT. Where it did not appear that there was a judgment for costs in the docket entry of the circuit court on a verdict rendered on issue sent from the orphans' court, but it could be assumed that the entry was a clerical error, the Court of Appeals will not reverse the judgment, but will strike it out and affirm the rulings, and, if there was a judgment for costs entered in the circuit court, will entertain an application by appellants to reverse it so that it may be left to the orphans' court. [Ed. Note. For other cases, see Courts, Cent. Dig. 88 480-486; Dec. Dig. § 202* Appeal and Error, Cent. Dig. §§ 104, 3378, 3379.] Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge. (3) At the time of the execution of the will by Louise Kruger, did she know the contents of her will? (4) Was the execution of the will of Louise Kruger procured by undue influence exercised and practiced upon her and constraining her free will and agency in the premises? (5) Was the will of said Louise Kruger procured by fraud practiced upon her? At the trial five prayers were offered by the defendants, the executors named in the will, and all of them were granted. They instructed the jury to find for the defendants on the respective issues, and their answers were, accordingly "yes" on the first, second and third issues, and "no" on the fourth and fifth. There were ten bills of exception on rulings as to the admissibility of evidence, and the eleventh included the rulings on the defendants' five prayers. [1, 2] The caveatees in order to prove the will first called a deputy register of wills to produce the will which he said was left at the office on January 2, 1912, by the executors. Frederick Seeborn, one of the executors, and also the draftsman of and a witness to the will was next called. On cross-examination he said he wrote the will Monday afternoon and it was signed Wednesday. He was asked, "Did you write the at'testation clause out of your head, without having anything to copy it from?" and the question was objected to and the objection He was then asked, "Did you sustained. write the attestation clause?" That was ob Action by Ernest Conrades and others against George E. F. Heller and others, executors of the last will and testament of Louisejected to and the objection sustained. The Kruger, deceased. Judgment for defendants, and plaintiffs appeal. Entry of judgment stricken out and rulings affirmed. Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, and STOCK BRIDGE, JJ. Allan C. Girdwood, of Baltimore, and Elmer J. Cook, of Towson, for appellants. Daniel R. Randall and Robert Moss, both of Annapolis, for appellees. BOYD, C. J. This is an appeal from what is called a judgment on verdicts on five is sues sent from the orphans' court of Anne Arundel county to the circuit court for that county in reference to the will of Louisa Kruger, but we assume it was intended to be from the rulings of the court at the trial of those issues. The case was tried in the circuit court for Baltimore county, to which it had been removed. The issues were as follows: (1) Was the will of Louise Kruger, late of Anne Arundel county, executed by her ac cording to the laws of the state of Maryland relating to the execution of wills? (2) Was the will of Louise Kruger executed latter ruling constitutes the first exception. That question was wholly irrelevant and immaterial. The attestation clause was the usual one found in books of forms; but, if an answer to the question could have been of any possible advantage to the caveators they obtained it in the answers to the next two questions, which were as follows: "Q. Did you say in your examination in chief that you wrote the attestation clause to the will? A. I wrote the testimony for the witnesses. Q. What do you mean by that? A. What is written there, what the witnesses signed, I mean this; I wrote that." [3] The other two witnesses to the will were then called, and George Bontz (or Bunce, as his name is signed to the attestation clause) was asked, "Now, as a matter of fact, Mr. Bontz, have you not made statements that this paper was executed before you got there?" That question is included in the second bill of exceptions and was clearly objectionable. If it was intended to lay a foundation to contradict the witness, the time, place, and persons to whom the alleged contradictory statements were made should have been included in the question. B. & O. 0 |