we have no means of knowing. There has not been a substantial compliance with section 2698 of the Code. The answers to the interrogatories should have been suppressed.

3. The note being fraudulent as between the original parties, the plaintiff cannot recover unless he show that he is a bona fide holder, for value, before maturity. There is no evidence upon this subject but the answers to the defendant's interrogatories, which we hold should be suppressed.

4. The defendants claim that if the note is found to be fraudulent it should, pursuant to the prayer of their crosspetition, be cancelled. This cannot be done. The note is in the hands of a third person, and he may be able to show that he is an innocent holder for value.

Reversed.

IN THE MATTER OF THE WILL OF RACHEL HULSE, Deceased. Filed December 13, 1879.

The publication of a will to the witnesses thereto is not essential to its validity.-[ED.

Appeal from Allamakee circuit court.

A will of deceased, dated April 28, 1877, was presented for probate, which was resisted, and another will, dated October 26, 1877, was presented as the latest disposition of intestate's property. The cause was sent to a referee who found, and so reported, that the last will was invalid, for the reason that at the time of its execution the testate was not possessed of a sound mind. The will first executed was found by the referee to have been properly executed, and he recommended its admission to probate. The report of the referee was confirmed, and the will dated April 28, 1877, was admitted to probate. The party contesting this will appeals. No appeal was taken from the decision as to the will of date October 26, 1877.

Dayton & Dayton, for appellant.

Stoneman & Chapin, for appellee.

ВЕСК, С. Ј. 1. The referee found and reported the facts in regard to the execution of the will to be as follows: "The evidence was all directed to the question raised by contestant's objection that the will was not properly executed and published. From the evidence I find the facts to be: That one or two days prior to the signing of said instrument, said Rachel Hulse requested one John S. Deremo to write her

will; that in pursuance of said request said Deremo gave directions to his daughter, in the presence of said testatrix, to write the will in form as she should direct; that the testatrix then dictated the terms of the will as written down at the time by the daughter of said Deremo; that after it was written it was read over to Mrs. Hulse and she then expressed herself satisfied with it, and that it was in accordance with her wishes; that said Deremo took said will away with him, and returned with it a day or two afterwards, when she again expressed a desire to execute it; that said Deremo went for the two witnesses, who were neighbors, and who went to the residence of Mrs. Hulse; that in their presence Mrs. Hulse was asked by said Deremo if she desired to have the paper read; that she said she did not as she knew what it was; that her name was then written to the instrument, and she took the pen in her hand in the presence of the witnesses and made her mark, and the witnesses then in her presence signed the will as witnesses; that the testatrix did not state to the witnesses, nor in their presence, that it was her will; that she did not request said witnesses to sign it; that it was not stated at the time of its execution, by anybody, that it was her will; that the witnesses understood at the time that it was her will, having been told so previously by Mr. Deremo; that the witnesses on the stand recognize the instrument offered as the one they had signed as witnesses; that the testatrix was an old lady between 70 and 80 years of age, and in feeble health, lying in bed at the time said will was executed."

The referee found as a conclusion of law, based upon the facts reported by him, that the will was properly executed, and ought to be admited to probate. The contestant filed exceptions to the conclusions of law reported by the referee, which were overruled. This ruling of the court, and the decree admitting the will to probate, are made the grounds of the only assignment of error in the case.

2. The appellant insists that the testator should publish the will; that is, "give the witnesses to understand what the instrument is, and that he knows the nature of the transaction in which he is engaged." The correctness of this position presents the only question discussed by counsel. We proceed to its consideration. Code, § 2326, provides

that "a will to be valid must be in writing, witnessed by two competent witnesses, and signed by the testator, or by some person in his presence, and by his express direction." Under

this statute must the testator make any declaration as to the character of the instrument, and his knowledge of its nature, for the information of the witnesses? This is the question before us.

The statute requires that the instrument shall be "witnessed" by two competent witnesses. This is the only requirement as to the attestation of the will.

To witness means "to see the execution of, as an instrument, and subscribe it for the purpose of establishing its authenticity." This may be done without any declaration by the testator to the witnesses as to the character and purpose of the instrument, which amounts to what is called publication. We conclude that the language of the statute does not require publication of this character. Statutes similar in provisions, as the statute of frauds, (29 Car. 11, c. 3,) which requires wills to be "attested and subscribed" by witnesses, have been construed by the courts not to require publication in the sense of the term as it is used by counsel in the discussion of this case. See 1 Redf. on Wills, (Ed. 1869,) c. 6, § 18, paragraphs 13, 14, 17, 20, 21 and 29; § 19, paragraphs 23 and 24; § 23, paragraph 9 and notes.

3. Counsel for appellant cites Lorieux v. Keller, 5 Iowa, 196, insisting it holds that publication of the will in the presence of witnesses must be shown. The language of the decision upon which counsel rely hardly has the force and effect. they give it. But, certain it is, the question as to the necessity of publication in the presence of the witnesses was not in the case, and was not decided.

We conclude that the circuit court did not err in confirming the report of the referee, and in admitting the will to probate. Affirmed.

CATHERINE CAIN, Appellant, vs. THE CHICAGO ROCK ISLAND &
PACIFIC RAILROAD COMPANY, Appellee.

The right of a railroad corporation to locate, build and operate its road in the public streets of a city or town is subject to the equitable control and proper police regulations of the municipal authorities. The city of Des Moines authorized the construction of defendant's railroad track along the center of Vine street, in said city, and provided by ordinance that at least eight feet on each side of said street should be left between the track of said defendant and the sidewalk. Subsequent to such authorization plaintiff's husband purchased a lot abutting on said Vine street, and erected a brick building thereon. Afterwards defendant, without authority, constructed a line of side track of its road along within six feet of

said building, and upon four feet of the space allowed for sidewalk. Plaintiff alleges that by reason thereof, and the operation of said road over said track, the walls of the house have been greatly damaged, ete.; that cars are left standing upon said side track in front of her doorway, etc., so that her premises are rendered almost worthless; and that since the death of her husband, in 1876, she has occupied the same as a homestead. Held, that the ordinance of the city in regard to the location of the tracks on said street was a proper police regulation; that the injury complained of by plaintiff was of a continuing character, and she was entitled to all damages sustained by her during her occupancy since the death of her husband, although the road complained of was constructed prior to that time, bnt not for damages sustained by the property during her husband's lifetime.-[ED.

Appeal from Polk circuit court.

The substance of the petition is: that in the year 1872 Robert Cain, plaintiff's husband, purchased a lot on the north side of Vine street, in the city of Des Moines, and erected thereon a brick dwelling-house, the outer wall of which was upon the south line of the lot and abutted on the sidewalk. Before the purchase of the lot and the erection of the house the city, by an ordinance, had granted to the defendant the right to run its railroad track along said street, which was 82 feet wide, the said tracks to be constructed as nearly as practicable to the middle line of the street, and so as to leave at least eight feet on each side of said street between the sidewalks and said track.

In the year 1873 the defendant, without the permission of said Robert Cain or the plaintiff, and in violation of said ordinance, laid a side track within six feet of the line of said street, and within six feet of said dwelling-house, and upon four feet of the space allowed for a sidewalk by the city plat; that there was sufficient space in said street for defendant to lay its side track without encroaching on the space allowed for sidewalk, on either side; and defendant put down said side track to reach warehouses along the north side of said Vine street, and not because it was necessary to operate said road.

The said Robert Cain died in the year 1876, and it is averred that the plaintiff has occupied said house as her dwelling and homestead from the time it was erected up to present; "that defendant leaves cars standing upon said side track, in front of plaintiff's doorway, often for periods of a day or two at a time; that leaving said cars standing so near plaintiff's house and running them and their engines past, and the general use of said siding for railroad purposes, has (737)

v3—47 (no. vi)

shaken the walls of said house, and so shaken it as to render it almost worthless; that it is rendered unfit for a dwelling, and for such purpose is rendered valueless; that plaintiff has suffered great annoyance and disturbance from the close proximity of the cars, to her damage in the sum of $1,500," for which she asks jndgment. There was a demurrer to the petition, the substance of which is that the plaintiff is not entitled to recover upon the facts stated in her petition. The demurrer was sustained. Plaintiff appeals.

Clark & Connor, for appellant.

Wright, Gatch & Wright, for appellee.

ROTHROCK, J. 1. That a railroad company may locate and build its road in the public streets of a city or town in this state, without the consent of the corporate authorities of such city or town, has been definitely settled by frequent decisions of this court. City of Clinton v. C. R. & M. R. 24 Iowa, 455; Newton & Southwestern R. Co. v. Mayor, etc. 36 Iowa, 299; Cook v. City of Burlington, Id. 357; Slatten v. Des Moines Valley R. Co. 29 Iowa, 148; City of Clinton v. C. & S. R. Co. 37 Iowa, 61; Davis v. C. & N. W. R. Co. 46 Iowa, 389. It is also well settled that such right is subject to equitable control and proper police regulations, and if a railroad be constructed upon a street in such a careless, improper or negligent manner as to be an injury to the owner of property abutting upon the street, he may recover damages by reason of such careless, negligent and improper construction, provided his injury be special, and not common to the general public. Cadle v. Muscatine Western R. Co. 44 Iowa, 11; Park v. C. & S. W. R. Co. 43 Iowa, 636; Frith v. City of Dubuque, 45 Iowa, 406. This court has never determined that a person cannot recover damages for special injuries to his property by reason of the construction of a railroad in the street of a city, and the right to construct being subject to equitable control and proper police regulations.

The ordinance of the city of Des Moines, prescribing the extent to which Vine street should be occupied by railroad tracks, was just such an ordinance as it had the power to make and enforce, provided it was not an unreasonable restriction upon the railroad company. That it was not unreasonable must be presumed, in the absence of a showing to the contrary. The allegations of the petition being con