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to find for the plaintiff, there was no error in TROVER AND CONVERSION. refusing defendant's request to submit the case on special issues.-Banks v. Mixon, 179 S. W. See Embezzlement, Cm11; Evidence, On 317. 690.

I. ACTS CONSTITUTING CONVERmm 350 (Tex. Civ.App.) In action by former

SION AND LIABILITY partner for share of commissions on deal com

THEREFOR. pleted after dissolution, issue as to whether deal was pending at time of dissolution and def-liver stock certificate within 10 days of de

On ( deal was pending at time of dissolution and def- en 9 (Ky.) Failure of custodian bank to deinition of "pending" held sustained by the peti- mand held not conversion because of the thien tion.-Daniel v. Lane, 179 S. W. 906. Special issues which were not put in con- stock.-Ohio Valley Banking & Trust Co. v.

refusal of purchaser from owner to accept the troversy by the evidence, or were included in Wathen's Ex'rs, 179 S. W. 230. and controlled by issues which were submitted, were properly refused.-Id.

II. ACTIONS. Cw352 (Tex.Civ.App.) Where the court had in- en 40 (Ark.) Evidence, in an action against a formed the jury that the issues in a passenger's partnership for the conversion of goods delivaction for injuries in alighting were to be sub- ered by a railroad without payment of plaintiff, mitted as raised by the pleadings, the form of the consignor's draft, held to sustain a verdict the question submitting defendant's negligence for plaintiff on the issue of plaintiff's consent to the jury held_not objectionable.-Aransas to the delivery:-Vehicle Supply Co. v. McInHarbor Terminal Ry. v. Sims, 179 S. W. 895. turff, 179 S. W. 999. On 365 (Tex.Civ.App.) A finding upon a special issue submitted to the jury becomes immaterial

TRUST DEEDS. when other facts have the legal effect to elimi- See Mortgages. nate the issue embodied in such finding.-International & G. N. Ry, Co. v. Berthea, 179 S. W.

TRUSTS. 1087.

See Monopolies. 366 (Tex. Civ. App.) Assignment complaining of refusal of special issues requested, with I. CREATION, EXISTENCE, AND VAothers substantially given, held not to be con

LILITY. sidered, where exception was taken to the refusal of all the requested issues.-Morris v. Mc

(B) Resulting Trusts. Spadden, 179 S. W. 554.

m> 63 (Ky.) Ky. St. § 2353, abolishes the old A general exception to the refusal to give doctrine of resulting trusts, except in two cases special charges en masse will be overruled, expressly saved.-Neel's Ex'r v. Noland's Heirs, where part of them were embraced in the main 179 S. W. 430. charge as given.-Id.

89 (Ky.) To establish a resulting trust by

parol evidence as against the holder of the X. TRIAL BY COURT.

legal title to property, the proof of all the es

sential facts and circumstances must be clear, (A) Hearing and Determination of Cause. convincing, and satisfactory.-Neel's Ex'r v.

Noland's Heirs, 179 S. W. 430. Om 367 (Ky.) Submission of suit to annul mar

Parol evidence in an action to establish a reriage on the ground that defendant had fraud, sulting trust in a farm, held not of that clear, ulently represented that she had been divorced convincing, and satisfactory character requisité from a former husband held not premature, to the establishment of such a trust.-Id. where the wife admitted that she had not been divorced from a previous husband, though the

(C) Constructive Trusts. case had not been set for trial.- Robinson v. Robinson, 179 S. W. 436.

en 110 (Ky.) In an action to recover land, on

the ground that defendant agreed to buy it for Cum 370 (Ky.) The court, over objection, may not plaintiff's ancestor and had fraudulently taken submit issues in a special proceeding created title in his own name, evidence held insuffiby statute not providing for jury trial.-Stearns cient to establish a constructive trust.-HoltzCoal & Lumber Co. v. Commonwealth, 179 s. claw v. Wells, 179 S. W. 193. W. 1080.

To establish a parol constructive trust, the 374 (Ky.) Where a distinct legal issue is proof must be such as to leave no rational doubt in an equitable action, decided by a jury, the as to the truth of the necessary facts; and, verdict cannot be set aside unless flagrantly to establish such trust against documents showagainst the evidence.- Procter v. Tubb, 179 s. ing the legal title to be in some one else, the W. 620.

evidence must be strong and convincing.-Id. Findings as to legal issues of jury erroneously impaneled in equitable action on defendant's UNDISCLOSED AGENCY, application for jury trial, made after the coinmissioner's report, could be disregarded by the See Principal and Agent, 140-145. chancellor in determining the disputed questions of fact.-Id.

UNITED STATES.

See Citizens; Indians; Patents. (B) Findings of Fact and Conclusions of Law.

II. PROPERTY, CONTRACTS, AND Om 403 (Tex.Civ.App.) Where the trial court

LIABILITIES. failed to file findings of fact within the 10 days On 74 (Ky.) That the surety for a defaulted after expiration of the term allowed by Vernon's government contractor assumed the contract and Sayles' Ann. Civ. St. 1914, art. 2075, his subse- sublet it to meet the original contractor's dequently filed findings were a nullity, and could faulted pay rolls did not render it liable for not be considered. - International & G. N. Ry. funds borrowed by the subcontractor to meet Co. v. Muld, 179 S. W. 686.

the pay rolls.-Citizens' Trust & Guaranty Co.
v. Farmers' Bank of Estill County, 179 S.

W. 29.
TRIAL DE NOVO.

USAGES.
See Appeal and Error, Omm 895.

See Customs and Usages.

USURY.

unless made with intent to deceive and de

fraud.-Barnes & Mitchell v. Campbell, 179 S. I. USURIOUS CONTRACTS AND W. 444. TRANSACTIONS.

112 (Ark.) Where lots to which a vendor's (A) Nature and Validity.

title was unmarketable formed a substantial Om 32 (Ky.) Giving a note in consideration of part of the purchase, the purchaser could refuse a conveyance of land is not a transaction for to pay any more on the price and demand the the loan or forbearance of money, as regards the return of the amount already paid.—Mays v. rate of interest being usurious.-Nantz v. Hurst,

Blair, 179 S. W. 331. 179 S. W. 400.

IV. PERFORMANCE OF CONTRACT. 34 (Mo. App.) Under Rev. St. 1909, $ 4571, 15 notes for $35 each with 8 per cent. interest, (A) Title and Estate of Vendor. secured by mortgage on household furniture for a 130 (Ark.) A purchaser of land, before he loan of $350, held usurious.-Riepe v. Vette, 179 is required to pay the purchase price, is entitled, S. W. 952.

unless stipulated to the contrary, to receive not VACANCY,

only a good title, but one which is marketable.

-Aays v. Blair, 179 S. W. 331. See Officers, Om55.

A marketable title must be a clear record

title, and not one by adverse possession.-Id. VACATION.

(D) Payment of Purchase Money. See Judgment, 391; Judicial Sales, C35.

Om 175 (Ark.) Purchaser under unexecuted conVAGRANCY.

tract held ordinarily entitled to detain purchase

money if vendor's title is not such as he is enOm3 (Tex.Cr.App.) Evidence held to support titled to require.-Mays v. Blair, 179 S. W. 331. conviction of vagrancy.-Looper v. State, 179 mm 175 (Ky.) Unless there is immediate danS. W. 110.

ger of loss without legal remedy, a grantee will VALUE.

not be relieved from payment of the price for

alleged defect in title and insolvency of grantor, See Courts, On 231; Evidence, On 317, 323, where he is in possession under an executed 474.

contract of sale.-Todd v. Finley, 179 S. W. VARIANCE.

455. See Indictment and Information, Cm122.

V. RIGHTS AND LIABILITIES OF

PARTIES.
VENDOR AND PURCHASER.

(C) Bona Fide Purchasers. See Contracts, Om10; Fixtures, Om 21 : On 228 (Tex.Civ.App.) One obtaining a

Frauds, Statute of, 69, 143; Fraudulent veyance from a grantee in a deed, absolute in Conveyances, Cum313; Homestead, 117, form, but in fact a mortgage, acquires no title 118; Logs and Logging, Om2; Public Lands, unless he is a purchaser for value and without w178; Remainders ; Sales; Taxation, Om notice that the deed was a mortgage.-McLe805.

more v. Bickerstaff, 179 S. W. 536.

On 232 (Tex.Civ.App.) A conveyance by a I. REQUISITES AND VALIDITY OF CONTRACT.

mortgagee out of possession passes no title.

McLemore v. Bickerstaff, 179 S. W. 536. Com 3 (Ark.) Contract of one party to sell land On 239 (Tex.Civ.App.) Where the question was at a stipulated price, the other in return to solely one of boundary, and plaintiff was not pay the price, is for the sale of land, and does in possession of the land which it claimed, the not create an agency for sale, although sales by bona fides of plaintiff's purchase or want of the purchaser are contemplated in it.-Federal notice does not give him additional rights.Realty Co. v. Evins, 179 S. W. 344.

Lockwood Inv. Co. v. Geiselman, 179 S. W. Om 33 (Tex.Cïv.App.) A purchaser of land held 549. not entitled to rescind on the ground that the deed of dedication prepared by his grantors

VI. REMEDIES OF VENDOR. showed that they were to build a viaduct, which (A) Lien and Recovery of Land. they did not.-- Barnes & Mitchell v. Campbell, em 253 (Tex.Civ.App.) Decree of foreclosure of 179 S. W. 444.

Where a vendor subsequently agreed with a rendor's lien held erroneous, the description in city for the construction of a viaduct on the the deed being defective, while the only descripproperty sold, a statement at the time of the tion in the purchase notes was by reference sale that there then existed a contract for the thereto, there being po proof as to the intent construction of the viaduct is no ground for or that there was a mutual mistake.-Stewart rescission.-Id.

v. Thomas, 179 S. W. 886. In a suit where it was sought to rescind a C260 (Tex.Civ.App.) Execution and record of purchase of land on the ground of misrepre- indemnity note and trust deed by original pursentations as to future actions, held, that such chaser of land held to create a lien in favor of misrepresentations were not fraudulently made the holders of the note subject to the lien of the so as to warrant rescission.-Id.

holder of vendor's lien notes previously acquir

ed by a subsequent purchaser of the property.II. CONSTRUCTION AND OPERA- Grubbs v. Eddleman, 179 S. W. 91. TION OF CONTRACT.

A holder of vendor's lien notes held not to Om78 (Ark.) Under changed agreement con- lien of the holders of a note to indemnify in

have a lien for improvements superior to the cerning payment of purchase price and furnish- dorsers upon a note given for the price.-Id. ing of abstract of title, time held not of the

for value essence as to performance by the vendor.- Omo261 (Tex.Civ.App.) Purchasers Mays v. Blair, 179 S. W. 331.

and without actual notice of previous transfers

of vendor's lien notes are, as against unrecorded III. MODIFICATION OR RESCISSION transfers of such notes, bound only by their OF CONTRACT.

actual knowledge or notice appearing from the

records.-Lubbock State Bank v. H. O. Wooten (C) Rescission by Purchaser.

Grocery Co., 179 S. W. 1141. Om 110 (Tex.Civ.App.) Where the agent of a Where a purchaser, who had given vendor's landowner represented to purchasers that a via- lien notes in payment, retransferred the land duct would be subsequently constructed, breach on condition that she should be discharged from

the notes, the notes are on reissue thereafter who rescinded, was able to sell the land at the valid as against the vendor.-Id.

original price, the purchaser, who defaulted, is A holder of a subsequent series of vendor's entitled to recover his payments.-Chamberlain lien notes held to have a lien superior to those v. Ft. Smith Lumber Co., 179 S. W. 740. of the holder of unrecorded earlier notes, there On 334 (Tenn.) A vendor of land cannot esbeing nothing in the record to give notice or to cape liability for a deficiency on the ground cast suspicion on the statements of the seller. that the purchaser looked over the tract, which -Id.

was very large.-Caughron v. Stinespring, 179 As the purchase of a vendor's lien note car- S. W. 152. ries with it as an incident the lien, and the lat- Where a sale is in gross, no recovery can ter is within the registration statutes, one de- be had save for fraud, but if by the acre, the sirous of protecting his lien should secure a purchaser may recover for the deficiency at the written assignment and record it.-Id.

agreed price.-Id. 261 (Tex.Civ.App.) Where a deed reserved a To recover for deficiency in land on misvendor's lien securing the purchase money notes, representation as to the quantity conveyed, it and a trust deed authorizing appointment of is not necessary that the acreage be stated in trustee was executed as additional security, the a deed, but this may be shown by extrinsic eviaction of the grantor's successor in appointing dence.-Id. a trustee and the sale of the property under 334 (Tex.Civ.App.) Interest paid on the exthe trust deed after the notes had been trans- cess of purchase-money notes, due to a mistake ferred to a third person was unauthorized and in acreage, was recoverable.-Lindsay v. Vogelconveyed no title.-Etheridge v. Campbell, 179 sang, 179 S. W. 58. S. W. 1144.

339 (Ark.) Purchaser who arbitrarily broke C263 (Tex.Civ.App.) Where vendee executed off negotiations instead of demanding that dea note secured by deed of trust to indemnify in- fects in vendor's title be cured held not entidorsers upon a purchase-money note for the tled to recover purchase price.-Mays v. Blair, property, such lien was not destroyed by a sale 179 S. W. 331. subsequently made by him in consideration of Cm 341 (Tenn.) In a suit to recover for a dethe vendee's assumption of the original vendor's ficiency in a parcel of land, parol evidence, lien notes.-Grubbs v. Eddleman, 179 S. W. 91. showing the terms of the contract as to the Om 266 (Tex.Civ.App.) Where a contract for price and number of acres, must be clear and the sale of land and the cultivation of cane was certain; those matters not being stated in the secured by a vendor's lien, failure to assert the deed.-Caughron v. Stinespring, 179 S. W. 152. lien upon a partial breach held not waiver for future performance.- Imperial Sugar Co. v. Ca- (B) Actions for Breach of Contract. bell, 179 S. W. 83.

Om350 (Tenn.) Evidence held to show that On 267 (Tex.Civ.App.) A release of a vendor's complainants purchased a farm by the acre and lien held to release it as to a money considera- not in gross, and so could recover for deficiency tion only, and not as to performance of a con- in acreage.-Caughron v. Stinespring, 179 S. tract for the cultivation and sale of sugar cane. | W. 152. -Imperial Sugar Co. v. Cabell, 179 S. W. 83.

VENUE. On 274 (Ky.) In action on vendor's lien note, answer, alleging a vendor's misrepresentations See Criminal Law, Oww119–137, 1051. as to the acreage of the tract relied on by the purchaser, and that part of it was in the ad- I. NATURE OR SUBJECT OF ACTION. verse possession of other parties, if tendered in Cum8 (Tex.Civ.App.) Under Vernon's Sayles' time, would set up a good defense.-Stone v. Ann. Civ. St. 1914, art. 1830, § 7, wife's acDaniels, 179 S. W. 831.

tion charging husband's fraud upon her in B. Om 281 (Ky.) In an action on notes executed county, that some of the property was there by defendant's grantor and to charge the land situated, and seeking to establish a resulting with a lien, evidence held to warrant a finding trust, held properly brought in B. county-Fox that the notes were not a lien on the land and v. Fox, 179 S. W. 883. that the defendant purchased without knowledge of the debt and never assumed its pay

II. DOMICILE OR RESIDENCE OF

PARTIES. ment.—Gambill v. Grigsby, 179 S. W. 822.

285 (Ky.) Where only two of the defendant's On 22 (Tex.Civ.App.) Under Rev. St. 1911, art. purchase-money notes had matured and the oth- 1840, action against husband and divorced er five were not then due, a decree for the sale for necessaries purchased during the marriage of the land to satisfy all the notes was invalid.held properly brought in the county of the wife's Mottley v. Roemer, 179 S. W. 581.

residence.-Trammell v. Neiman Marcus Co.,

179 S. W. 271. Cm 296 (Tex.Civ.App.) A vendor, who has reserved an express vendor's lien to secure the

VERDICT. consideration for a conveyance, may, on default by the vendee, rescind the contract and See Appeal and Error, Om930, 1070; Trial, recover the land in trespass to try title.-Im- Om 329–366, 374. perial Sugar Co. v. Cabell, 179 S. W. 83.

VERIFICATION. VII. REMEDIES OF PURCHASER.

See Pleading, mm 290. (A). Recovery of Purchase Money Paid. Om334 (Ark.) Purchaser under unexecuted con

VESTED RIGHTS. tract heid ordinarily entitled to recover back See Constitutional Law, Omw102. purchase money if vendor's title is not such as he is entitled to require.-Mays v. Blair, 179 S.

VETO. W. 331.

Under contract of sale, cash payment held a See Statutes, 32, 33. payment on the purchase price, and not merely a payment for an option, and hence recoverable if the vendor failed to furnish a marketable See Master and Servant, Om189, 190.

VICE PRINCIPALS. title.--Id. em 334 (Mo.App.) Where an agreement for the sale of land contained no provision as to reten

VOLUNTEERS. tion of payments on default, and the vendor, See Master and Servant, On 89.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

VOTERS.

w 17 (Tex.Cr.App.) Whether a pistol which

defendant was accused of carrying could be See Elections.

fired held a question for the jury.-Miles v. WAGES.

State, 179 S. W. 567.

Om 17 (Tex.Cr, App.) Evidence in a prosecution See Master and Servant, Ow70–80.

for unlawfully carrying a pistol held to sustain

conviction.-Davis v. State, 179 S. W. 702. WAIVER.

Om 17 (Tex.Cr.App.) On trial for unlawfully See Appeal and Error, Cm644; Criminal Law, carrying a pistol, evidence on the whole case Omm 577; Estoppel; Fixtures, ww33;

Insurance, cm141, 388, 556, 558; Pleading, come a traveler held sufficient to sustain a conviction, 406, 408; Sales, em 288; Vendor and 'Pur- - Taylor v. State, 179 S. W. 1161. chaser, om 266; Witnesses, Om 219.

Instruction attempting to define "traveler"

held incorrect and properly refused.-Id. WAR.

WEBB-KENYON ACT. On 21 (Ky.) Under international law and Captured Property Act, Act Cong. March 3, 1863, See Intoxicating Liquors, Em11242. title to property not used in actual hostilities could not be devested in the insurgent states,

WEEDS.
and one whose property was captured or aban. See Agriculture.
doned might obtain its restoration. -Neel's Ex'r
v. Noland's Heirs, 179 S. W. 430.

WILLS.
WARDS.

See Death, Omw 5; Descent and Distribution ;

Executors and Administrators; Taxation, Om See Guardian and Ward.

860–895; Trial, Omw140. WAREHOUSEMEN.

IV. REQUISITES AND VALIDITY. See Carriers, Omm 140.

(A) Nature and Essentials of Testamenta.

ry Dispositions. WARRANTIES.

70 (Ky.) The validity of a will, as to per

sonal property, is determined by the law of the See Insurance, mm 265.

testator's domicile at the time of his death, and,

as to real property, by the law of the jurisdicWARRANTY.

tion wherein it is situated.-Rutledge v. Wig

gington, 179 S. W. 389. See Sales, 251–288.

(C) Execution. WATERS AND WATER COURSES. Om 15 (Ky.) Under Ky. St. 1909, $ 4828, a See Damages, @m108; Drains; Levees; Limi- will written by some other than testatrix and tation of Actions, Om55.

attested by only one witness is not valid.-Rut

ledge v. Wiggington, 179 S. W. 389. VIII. ARTIFICIAL PONDS, RESER- Om 119 (Tenn.) Unless publication of the conVOIRS, AND CHANNELS, DAMS, tents of a will to the subscribing witnesses is AND FLOWAGE.

required by statute, they need not be informed Eww171 (Ky.) One constructing bridge over of the character of the document when they stream held not liable as for obstructing the subscribe.—Long v. Mickler, 179 S. W. 477. stream, where overflows are due to extraordi-m123 (Tenn.) Under Shannon's Code, $ 3895, nary rains or floods, which could not be an- it is not necessary that a witness to a will subticipated by persons of ordinary experience and scribe, either knowing that it is a will or in prudence.- Louisville & N. R. Co. v. Conn, 179 the presence of the other witness to it.-Long S. W. 195.

v. Mickler, 179 S. W. 477. Omw 179 (Ky.) In action against railroad com

(D) Holographic Wills. pany, claimed to have obstructed stream by hridge, evidence held to show that rains and Omw 132 (Ky.) Under Ky. St. 1909, $ 4828, a Hoods, at time of flooding of plaintiff's premises, will wholly in the handwriting of the testatrix were extraordinary and of unusual occurrence is valid.-Rutledge v. Wiggington, 179 S. W. -Louisville & N. R. Co. v. Conn, 179 S. w. 389. 195.

V. PROBATE, ESTABLISHMENT, WAYS.

AND ANNULMENT.
See Easements; Highways; Private Roads. (B) Actions to Establish or Determine

Validity in General.
WEAPONS.

Om 230 (Tex.Civ.App.) Agreement whereby wid

ow, children, and legatee of testator agreed to See Death, 31, 44, 91, 95.

withhold the will from probate and to take On8 (Tex.Cr.App.) It is not an offense to car- certain shares therein held not to estop the ry a pistol either so defectively manufactured parties from claiming under the will after its or in such bad repair that it cannot be fired at probate by purchasers from the estate.-Masterall.-Miles v. State, 179 S. W. 567.

son y. Harris, 179 S. W. 284. Omw 8 (Tex.Cr.App.) In a prosecution for carry

VI. CONSTRUCTION. ing pistol, refusal to charge that accused was entitled to acquittal if the pistol would not

(A) General Rules. shoot or was unloaded at the time named, etc.,

439 (Ky.) The only purpose of rules of conheld not error.-Davis v. State, 179 S. W. 702. struction is to give effect to the intent of the em ll (Tex.Cr. App.) Though accused came to a testator. -Whitaker v. Whitaker's Adm'r, 179 city as a traveler, that fact does not warrant S. W. 584. him in carrying a pistol about the streets for several days while searching for work.-Smith v. (C) Survivorship, Representation, and State, 179 S. W. 711.

Substitution, The right of a traveler to carry a pistol will m545 (Ky.) Where an estate is devised for not defeat a prosecution for unlawfully carry- life, with remainder, and if the remainderman ing a weapon, where the journey was temporari- die without lawful heir, then to a third person, ly abandoned while he burglarized a house.-Id. the words “dying without lawful heirs" are restricted to the death of the remainderman be- | VII. RIGHTS AND LIABILITIES OF fore the termination of the life estate.-Jewell v. DEVISEES AND LEGATEES. White, 179 S. W. 212.

(A) Nature of Title and Rights in GenOm 545 (Ky.) Will giving life estates to tes

eral. tator's three sons with remainder to survivor Om714 (Ky.) A devise of land by a husband to on death of other two without heirs of their his wife in fee held, in view of the surrounding body, held to vest fee simple in survivor, on circumstances and the devise of a life estate in death of the other devisees without issue.-Kirk all of his other property, to be a satisfaction of V. Kirk's Ex'r, 179 S. W. 1065.

her claim against the lands

devised, which were (F) Vested or Contingent Estates and In- acquired with her money.-Whitaker v. Whitak

er's Adm'r, 179 S. W. 584. terests. 634 (Ky.) Where a will creates a life es-(C) Advancements, Ademption, Satisfactate in trust, with remainder over at death

tion, and Lapse. of life tenant, the devisees take a vested fee in Omm 775 (Tex.Civ.App.) Wills of husband and the remainder, subject to be defeated by their wife killed in a common catastrophe made each death prior to that of the life tenant.-Johnson the primary beneficiary of the other, and their v. Whitcomb, 179 S. W. 821.

foster son the secondary beneficiary. There beOm 634 (Tex.) A remainder is vested where ing no evidence as to which died first, held, there is a person in being who would have an that the son would take as primary beneficiary immediate right to the possession upon the ter- to give effect to the wills.-Fitzgerald v. Ayres, mination of the intermediate estate. -Caples v. 179 S. W. 289. Ward, 179 S. W. 856.

(D) Election.. Will bequeathing residuary estate to testator's wife for life, with remainder over to the Ow792 (Tex.Civ.App.) Whether widow given five children, held' to give one of such children rent of community property for life and furnia vested remainder.-Id.

ture in hotel had elected to take under the will, The law will not construe a remainder as con- where she and devisee continued to live on the tingent, where it can reasonably be taken as property, held for the jury.-Wichita Valley vested.-Id.

Ry. Co. v. Somerville, 179 S. W. 671.. Where testator bequeathed his residuary estate

An election by a widow to take under her for life, with remainder over to his five children, husband's will in lieu of her community and the life tenant being granted power of disposi- homestead rights must be unequivocal and with tion with the consent of the children, the re- the intention to make an election.-Id. mainder of a child was nevertheless vested.-Id. Where testator bequeathed his residuary es

WITHDRAWAL. tate for life, with remainder over to his children, directing that the descendants of any re

See Elections, m 146. mainderman dying before the life tenant should succeed to the remainderman's share, such di

WITNESSES. rection will be construed to prevent lapsing of See Continuance, em 26; Criminal Law, C the remaindermen's legacies, and not affecting

452-478, 676; Estoppel, On 21; Evidence; the vested character of the remainders.-Id.

Trial, cm 76; Wills, Om115–123. The contingency that the death of a remainderman before the life tenant may prevent such

II. COMPETENCY. remainderman from coming into possession of his interest does not render the remainder con- | (A) Capacity and Qualifications in Gentingent.--Id.

eral.

37 (Tex.Cr.App.) In prosecution for selling (H) Estates in Trust and Powers. intoxicating liquors in prohibition territory, a Om692, (Ky.) Powers of appointment are "ex- question to fix the time of sale within the period clusive” when there is granted to the donee the to make the witness testify as to facts of which

of limitations held not objectionable as seeking

of the class, and “nonexclusive” when no such right he had no recollection.-Alverez v. State, 179 S. of selection or exclusion is granted.-Barret's

W. 714. Ex'r v. Barret, 179 S. W. 396.

Om 60 (Ky.) Competency of husband and wife When a power of appointment to a class is to testify against each other in action for dinonexclusive, the exclusion of any member of vorce, as permitted by Civ. Code Prac. $ 606, the designated class in making the appointment as amended by Act March 15, 1912 (Acts 1912, invalidates the attempted exercise of the power. c. 104), extends only to issue of probable dan-Id.

ger or bodily injury to the wife as specified Failure of donee of nonexclusive power of therein.-Hester v. Hester, 179 S. W. 451. appointment to a class to give each member a @mw 78 (Tex.Cr.App.) Evidence held to show a substantial share fairly , proportioned to the witness was not defendant's wife, and compeamount for distribution held to invalidate the tent to testify.-Galvan v. State, 179 S. W. 875. attempted execution of the power.-Id.

Under will creating trust for son during his (C) Testimony of Parties or Persons Inlife, and providing that property should pass

terested, for or against Representaas he might direct by last will to his wife and

tives, Survivors, or Successors in Ti

tle or Interest of Persons Deceased heirs at law, power held nonexclusive.-Id.

or Incompetent. Execution of power of appointment to widow and heirs at law by giving each brother and Omw 138 (Mo.App.) In an action against a desister $1,000, and the widow $147,000, held in- cedent's estate to recover compensation for servvalid under the illusory appointment doctrine. ices, plaintiff's sister held not excluded by Rev. -Id.

St. 1909, 6354, as a witness to decedent's The illusory appointment doctrine under agreement to compensate.-Biggerstaff v. Riley, which the donee of a nonexclusive power of ap- 179 S. W. 744. pointment must give each member of the class on 159 (Mo.App.) In action for damages from a substantial share of the fund is the law of breach of contract, evidence, tending to show this state.-Id..

a codefendant's connection with the contract or Where donee of nonexclusive power of ap-cause of action in issue and on trial, held not pointment gave each of his heirs $1,000 and his to come within Rev. St. 1909, $ 6354, forbidding widow $147,000, acceptance of these amounts party to testify in his own favor as against held not to estop heirs from questioning validity opposite party, shown to be insane.-Powell v. of execution of the power.-Id.

Batchelor, 179 S. W. 751.

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