Verdict-Conflicting general and special verdicts.

31. Answers to interrogatories override a general verdict only when both cannot stand together.-Reeves' Estate v. Moore, (Ind. App.) 31 N. E. 44.

32. In an action by contractors to recover money due them under a contract and for extra services, an answer to a special interrogatory that plaintiffs did "not perform the work substantially according to the contract" is a conclusion of law, and is of no avail against a general verdict for plaintiffs.-Board Com'rs Hamilton County v. Newlin, (Ind. Sup.) 31 N. E. 465.

33. Where contractors construct a free gravel road under a contract with the board of county commissioners, and the engineer accepts the work, and estimates it, a general verdict for plaintiffs will not be set aside because of a specific answer that appellees did not construct the road of smooth grade, and of the width of 12 feet, as required by the contract.-Board Com'rs Hamilton County v. Newlin, (Ind. Sup.) 31 N. E. 465.

34. A motion for judginent on the answers to special interrogatories, notwithstanding a general verdict with which they were not irreconcilably in conflict, was properly denied.-Lauderback v Rouch, (Ind. App.) 31 N. E. 578.

35. In an action against a railroad company for injuries to a brakeman caused by a defect in a brake, special findings of the jury that the defect could have been readily discovered by plaintiff, and that it was not shown whether the defect could have been discovered had an examination been made, negatived each other so as to leave a general verdict for plaintiff decisive that he was not guilty of contributory negligence.-Matchett v. Cincinnati, W. & M. Ry. Co., (Ind. Sup.) 31 N. E. 792.

39. The further statement in the special verdict that the first car was started down the switch towards the two loaded cars, and was permitted by defendant and its agents to come into collision with such cars, is not sufficient to show that there was negligence in moving or controlling the first car.-Hoosier Stone Co. v. McCain, (Ind. Sup.) 31 N. E. 956.

40. The further statement in the special verdict that the two loaded cars with which the first collided were held in position "by one brake in the cars being set, and one chock placed under the wheel or trucks thereof," does not authorize the conclusion that ordinary care was not used in securing the cars from moving down grade, as the verdict does not state that the brake or chock was insufficient.-Hoosier Stone Co. v. McCain, (Ind. Sup.) 31 N. E. 956. Revising.

41. Error cannot be predicated on a direction to the jury to retire and revise a special finding, where the record does not show such direction to have been injurious to the complaining party.-British American Assur. Co. of Toronto v. Wilson, (Ind. Sup.) 31 N. E. 938.

TROVER AND CONVERSION. Matters admissible under general denial. In an action for conversion, evidence is admissible under the general denial to prove that the title on which plaintiff's possession was based was void as against defendant, and that the disturbance of such possession was not wrongful.-Swope v. Paul, (Ind. App.) 31 N. E. 42.

Express trusts.

TRUSTS.

1. Where a father delivered notes to his son in trust to be collected, and part of the proceeds paid to his daughter, and the son accepted the trust, the notes were no longer a part of the father's estate, and were not affected by a will making a different disposition of them.-Haxton v. McClaren, (Ind. Sup.) 31 N. E. 48.

36. In an action against a town for personal injuries resulting from a hole in a sidewalk, plaintiff alleged that the walk had been defective for two weeks before the accident, and that defendant had knowledge thereof. The jury found generally for plaintiff, and specially that the hole which caused the injury existed only about four hours before it occurred, and that one of defendant's trustees had knowledge of the hole about two hours before the accident. Held that, as defendant may have been negligent, notwith- 2. In an action to establish a trust made by a standing the facts specially found, it was error father for the benefit of his daughter, the son beto enter judgment for defendant; but in viewing trustee, the court properly charged that the of its improbability, and the absence of the evi- jury should consider the property the father had dence from the record, judgment for plaintiff at the time; what previous disposition of propwould not be directed, but a new trial ordered. erty, if any, he made to any of his children; all Black, J., dissenting, and holding that judgment the circumstances surrounding the alleged agreeshould be rendered for plaintiff.-Jewell v. ment; and any acts or declarations by the son Town of Sullivan, (Ind. App.) 31 N. E. 829. with reference to the trust.-Haxton v. McClaren, (Ind. Sup.) 31 N. E. 48.

Construction of findings.

37. In an action against a corporation for the negligent killing of plaintiff's intestate while at work unloading a coal car standing on a switch constructed by defendant at a heavy grade into its quarry, the special verdict stated that at the time of the accident defendant's superintendent ordered the foreman to load certain stone into a designated car; that such car was started down grade, coming into collision with two other heavily loaded cars; that these two cars were thrown against the car on which plaintiff's intestate was at work; and that there was nothing to prevent the superintendent, who was present, from observing all that was done, Held, that the special verdict sufficiently showed that the superintendent had charge of the quarry and connected business, and that he occupied the position of a master, and not a mere fellow servant.-Hoosier Stone Co. v. McCain, (Ind. Sup.) 31 N. E. 956.

38. The statement in the special verdict that the switch was constructed on a "considerable grade." and that in consequence cars had to be "carefully handled and guarded," does not show that defendant failed to exercise ordinary care in constructing the switch.-Hoosier Stone Co. v. McCain, (Ind. Sup.) 31 N. E. 956.

v.31N.E.-78

Resulting.

3. Where a father, who had intended to convey certain land to a daughter as an advancement, conveys the same to a son upon the son's agreement to convey to the daughter other land of which he was the owner, and the daughter leaves the consummation of this agreement to her husband, who, instead of having the conveyance made to her, takes it to himself, equity will decree the title to be in trust for the wife. -Warner v. Warner, (Ind. Sup.) 31 N. E. 466.

4. In a suit by a sister to establish a resulting trust in land of which her brother died seised, the evidence showed that said land was bought partly with money belonging to their deceased father's estate, and partly earned by the brother and sister in cultivating the land before it was purchased; that the sister did more than the brother towards earning said money; and that the brother frequently admitted that the sister had the same interest in the land that he had. Held, that there was a resulting trust for the benefit of the sister in half of the land.-Stephenson v. McClintock, (Ill. Sup.) 31 N. E. 310. Parol trust-Statute of frauds.

5. An agreement for a joint parchase of land, title to be taken by one of the parties, being in

4. Where there is no stipulation in a con-
tract for the sale of land that the premises shall
be free from incumbrances or clouds, the ven- See "Criminal Law," 21; "Trial," 27-41.
dor is only bound to tender a marketable title.-Aider by verdict, see "Pleading," 21.
Rife v. Lybarger, (Ohio Sup.) 31 N. E. 768.

Directing verdict, see "Negligence," 20.
In action on marine policy, see "Marine Insur-

5. Where a contract for the purchase of land stipulates that if, upon examination of the title, it shall appear that anything needs to be done in order to perfect it, which the vendor is unable to do in a certain time, the sale is to be void, the vendor cannot compel the purchaser to take a title by adverse possession depending on a long Of pleading, see "Pleading,” 11. and difficult investigation of facts.-Noyes v. Johnson, 31 N. E. 767, 139 Mass. 436.

6. Where a purchaser pays money to the See "Constitutional Law," 9. vendor upon a contract for the conveyance of land, and the latter cannot or will not convey, the former has a lien for the money paid, which he can enforce against the land.-Coleman v. Floyd, (Ind. Sup.) 31 N. E. 75.

7. The possession of land under purchase on execution sale is notice of a claim of title to a subsequent purchaser thereof from a devisee See "Payment," 5. of the grantee of the execution debtor. 11 N. Y. S. 739, affirmed.-Smith v. Reid, (N. Y. App.) 31 N. E. 1082.

8. Failure by a vendee in a land contract See "Elections and Voters."

to pay or tender the last installment of the pur-
chase money, as required by the contract, will
not prevent her from maintaining an action

for the vendor's breach, and ejecting her from See "Sale," 2-12.
the premises, where the vendor had wrongfully
refused to receive a prior installment, and had
declined to accept performance by the vendee
after being notified of her willingness so to do.
-Murray v. Mayo, (Mass.) 31 N. E. 1063.
Vendor's lien.

9. In a suit to enforce a lien, the complaint, If it is sufficient to entitle plaintiff to a money judgment, is good as against a demurrer.-Coleman v. Floyd, (Ind. Sup.) 31 N. E. 75.

Water rights.

1. The grant of a right to lay pipe to a certain designated spring on the grantor's premises, and to convey all the water "of said spring" which can be taken through the pipe, and declaring the grantee entitled to "all the water" which can be taken through the pipe, does not carry with it the right to excavate, and so get water from neighboring springs to the full capacity of the pipe, but only the right to take such water as may flow from the spring designated. Manufacturing Co. v. Veghte, 69 N. Y. 16, distinguished. 13 N. Y. S. 12, reversed.Furner v. Seabury, (N. Y. App.) 31 N. E. 1004. Easements.

2. Plaintiff for many years was owner of a lot, appurtenant to which was the right to take

WHARVES.

Structures obstructing wharf-Erection under authority of city.

The exclusive power granted the common council by Rev. St. 1881, § 3161, over the streets and alleys of a city, does not extend to authorizing the construction for private purposes of a log way or elevated platform upon land used in connection with a wharf, so as to obstruct the use of the said wharf, but such power is to be exercised only for the benefit of the general public.-Adams v. Ohio Falls Car Co., (Ind. Sup.) 31 N. E. 57.

16.

Widow.

WILLS.

See, also, "Descent and Distribution;" "Execu-
tors and Administrators."

Probate, evidence of attorney, see "Witness," 3.
Reformation in equity, see "Equity," 4.
Revocation-Drawing lines through one

clause.

water from a spring on another lot across the Allowance, see "Executors and Administrators," street. Prior to 1882 plaintiff took water therefrom in pails, but in that year, a wooden pipe having been laid from the spring along the street past plaintiff's premises, to convey water to other premises, plaintiff, and the owner of the lot on which the spring existed, executed their several conveyances to each other, both of which recited the existence of plaintiff's right to take water from the spring. The conveyance to plaintiff, in consideration of the release by plaintiff, his heirs and assigns, of all right and title to the spring, granted to plaintiff, his heirs and assigns, the right to take by a half-inch pipe, from the main pipe leading from the spring along the street, all the water necessary for the family use of plaintiff, his heirs, etc., holding and occupying the said lot. Plaintiff's conveyance recited that, in consideration of the rights and privileges conveyed to him, he released all right, title, and interest in the spring. Held that, under the conveyances, plaintiff acquired the right to use a definite part of the water flowing from the spring, creating an easement running with the land. 10 N. Y. S. 570, affirmed.-Cady v. Springville Water-Works Co., (N. Y. App.) 31 N. E. 245.

Obstruction-Action to restrain.

3. In an action by the owners of a mill run by water to restrain the owner of a mill on the same stream, above plaintiffs' mill, it appeared that defendant had in his mill steam power in addition to the water power, and that when he was using the steam power he would allow the water to accumulate in his dam during working days, so that the flow was cut off from plaintiffs' mill, and that during the nighttime, and on Sundays, when plaintiffs could not use the water, defendant allowed it to run off. Held, that an injunction was properly granted perpetually restraining defendant from retaining the water except for the proper use of his mill, or from discharging it, except for the pur pose of running his mill, or so as to relieve his dam, and from holding back the water in order to accommodate his steam power. 15 N. Y. S. 327, affirmed.-Hoyt v. Cline, (N. Y. App.) £1 N. E. 623. Pollution of stream-Indictment.

4. An indictment which charges that defendant "did corrupt and render unwholesome and impure" a certain water course by putting "offal, filth, and noxious and offensive" substances into the same, charges but one offense. -State v. Frieberg, (Ohio Sup.) 31 N. E. 881.

5. It is immaterial that the indictment does not state what constituted the "offal, filth, and noxious" matter put into the water, or what quantity of such matter was put in.-State v. Frieberg, (Ohio Sup.) 31 N. E. 881. Right to deepen channel.

6. A right, acquired by the state through adverse user, to divert water from a river into a stream flowing through plaintiff's land, gives the state no title by adverse possession to land under the stream, and hence no right to broaden and deepen its bed.-Colman v. State, (N. Y. App.) 31 N. E. 902.

Ways.
See "Easements;" "Highways."

1. Under Rev. St. § 5953, which provides for the revocation of wills, a clause of a will cannot through the words thereof, with an intent to rebe revoked by the testator drawing ink lines voke such clause, but not with an intent to revoke the whole will; and in such case, when the words of such clause remain legible, the whole will should be admitted to probate, including such erased clause as a valid part of such will.Giffin v. Brooks, 31 N. E. 743, 48 Ohio St. 211. Contest.

2. An unmarried woman died testate, leaving all her property to one who had been adopted by her by a decree of court. Her next of kin contested the will on the grounds of undue influence and mental incapacity, and sought to set aside the decree of adoption on the ground that the woman was insane at the time, and her insanity was fraudulently concealed from the judge. Held that, until the validity of the adoption proceedings had been determined, the next of kin had no right to have issues framed in the will contest, since, if the adoption was valid, the adopted son would take all the property as heir, if not as legatee.-Fiske v. Pratt, (Mass.) 31 N. E. 715; Tucker v. Fiske, Id.

4. In an action to contest the validity of a will on the ground of want of testamentary capacity and undue influence, an instruction which lays down the rule without qualification that, in determining whether the writing produced was the will of the testator, the jury have "nothing whatever to do with the propriety or impropriety of the bequests mentioned in said writing, or as to whether said bequests were just or unjust, or as to whether such bequests should or should not have been made," is erroneous, since in such a case all the surrounding circumstances, including the bequest itself, are proper and material to the determination of the issue. Schneider v. Manning, 12 N. E. 267, 121 Ill. 376, distinguished. -McCommon v. McCommon, (Ill. Sup.) 31 N. E.

491.

tees.

7. Testator left surviving him a son and a daughter by his first wife, M., neither of whom lived with testator, and of whom the son was married and had two children, who lived with him. Testator also left surviving him his second wife, E., and a son by this wife, who was unmarried, and lived at home. The will provided that the residue of the estate should be "equally

divided between the families of" testator's two wives. Held, that the intention of the testator was to divide the residue of the estate equally between the families by his two wives, as constituting two classes of distributees, each family constituting a class, and that the grandchildren did not share in the distribution.-Townsend v. Townsend, (Mass.) 31 N. E. 632.

Description of property.

8. A devise of land in the "northwest quarter" of a certain section cannot be construed to mean land in the "southwest quarter" of said section, since such a construction would amount to a reformation of the will.-Bingel v. Volz, (Ill. Sup.) 31 N. E. 13.

9. Testator devised to his wife for life "the house and lot on which I now reside, being parts of lots numbered 15 and 16," etc. By another clause, "the same lot, numbered 15, so devised to my said wife," "with all the appurtenances thereto belonging," was devised to his daughter in fee. Held that, as said property was not otherwise disposed of by will, it was the evident intent of testator to devise "parts of lots 15 and 16" to the daughter, and the admission of parol evidence to show that testator intended that all of the property on which he resided should go to his daughter, if error, was harmless.-Groves v. Culp, (Ind. Sup.) 31 N. E. 569.

10. Certificates of shares of bank stock standing in the name of a deceased sister of testatrix were bequeathed by such sister to testatrix and her brother, and to the survivor, and his or her heirs, forever. Held, that testatrix's will, executed by her after her brother's death, bequeathing her stock in such bank, included not only stock standing in her own name, but also the shares standing in the name of the deceased sister, of which stock testatrix was in possession when her will was executed, with full knowledge that the beneficial interest belonged to her.-Angell v. Springfield Home for Aged Women, (Mass.) 31 N. E. 1064.

11. Testatrix, after making certain bequests of household goods to S., bequeathed to her $3,000, "together with the residue of the goods and chattels not herein before named, and $2,000 more, should there be that amount left after the disposal of the remaining estate of my deceased husband." Held, that S. was not thereby made a residuary legatee, entitled to all moneys and securities not needed to pay charges and satisfy other legacies, but that she only took the residue of the household "goods and chattels," and that she was not entitled to the proceeds of a sale of all the land that testatrix got from her husband, otherwise undisposed of, but only to have the same sold if necessary to pay the bequests of money.-Foster v. Smith, (Mass.) 31 N. E. 291.

1237

merely of the income and dividends, to be accumulated until they shall amount to $10,000.-Angell v. Springfield Home for Aged Women, (Mass.) 31 Ñ. E. 1064.

13. Under 4 Rev. St. (8th Ed.) p. 2461, § 2, requiring courts, in construing instruments creating an estate in lands, to give effect to the intent of the parties, a will giving testator's son and the son's wife "the use" of a farm on which they reside, for "their use, benefit, and support during their natural lives," gives them an estate in common, and not by the entirety, since otherwise the evident intention to provide for the wife might be defeated.-Miner v. Brown, (N. Y. App.)

81 N. E. 24.

14. A testatrix by her will bequeathed to her daugnter certain property "in trust for her sole use and benefit, and of her children and their children thereafter. But, in the event that my daughter should die and leave no children as heirs to the within-mentioned property, then it is my will and desire that all of said property shall go to my brother." The daughter survived the testatrix, and had several children. Held, that the daughter took a life estate, with remainder in fee to her children.-Schaefer v. Schaefer, (Ill. Sup.) 31 N. E. 136.

15. Elliott's Supp. § 428, provides that, where a husband devises lands to his wife in lieu of her statutory interest in his lands, she shall not be entitled to both, unless it plainly appears by the will to have been the intention of the testator that she should have the lands devised, in addition to her statutory interests. Held that, where a husband devised to his wife, "in addition to" her statutory interest in his lands, other lands, "with the rents and profits thereof," for the support of herself and his minor children "during her natural life," the wife was entitled to her legal estate in all of her husband's lands, and a life estate in the lands devised.-Like v. Cooper, (Ind. Sup.) 31 N. E. 1118.

16. Testator, by his will, devised a third of his estate to his widow, and the residue among his children, of whom there were five minors at the time of his death, payable one year after the last period of infancy; and gave his wife, as his executrix, a discretionary power of sale, not to be exercised until the majority of the youngest child. Held, that the express restraint of the power of sale cannot be stricken out without materially changing the character and purpose of the power and imperiling the intention of the will to keep the real estate undivided during the infancy of the children.—In re Christie, (N. Y. App.) 31 N. E. 515.

17. A testatrix disposed of her estate as follows: "I give, bequeath, and devise the property that shall belong to me at the time of my de* in trust to divide said propercease to

*

ty into four equal portions, and hold, manage,
and invest one of those portions for the benefit of
each of my children, and pay the net income to
him or her for and during his or her life, and
at his or her decease to pay, distribute, and con-
vey such portion, in equal shares, to and among
his or her children, and the issue of deceased
children, such issue to take the parent's share. "
By a codicil the testatrix disposed of her estate
as follows: "And 1 give, devise, and bequeath
all the property of which I shall die seised and
in trust, to hold, manage,
possessed to
and care for the same according to his best
judgment, to collect the income, and to pay there-
with the expenses incident to said trust and to the
care of said property, and to pay to the children
of my late son John, deceased, my son Frank,
my daughter, Mary, and my son Lindsay, so
much of the same as shall accrue annually upon
the amount which would come to them respec-
tively were my estate divided into four equal
parts, and distributed, one part to the said chil-
dren of John, and one part to each of my said
living children. And said trustee shall hold said
trust fund during the lifetime of my now living
children and grandchildren, paying to them the
vortions of the income of the aforesaid fund to