(F) Mistake, Undue Influence, and Fraud. $155 (Ky.) Undue influence is any influence over testator's mind destroying his free agency and constraining him to do against his will what he otherwise would refuse to do.-Yahr v. Hynes, 167 S. W. 680.

§ 163 (Ky.) Evidence that a devisee's husband telephoned for an attorney to draw testatrix's will, without evidence that the devisee in any way superintended its preparation, the attorney having prepared it in accordance with instructions he had previously received from testatrix, held insufficient to impose on the devisee the burden of negativing undue influence.-Yahr v. Hynes, 167 S. W. 680.

VI. CONSTRUCTION.

(A) General Rules.

§ 439 (Ark.) Such construction is to be given to a will as will carry into effect the intention of the testator, and will give force and meaning to every clause of the will.-Archer v. Palmer, 167 S. W. 99.

(B) Designation of Devisees and Legatees and Their Respective Shares. § 506 (Mo.) Where testator bequeathed the use of an undivided half interest in certain land to plaintiff, his son, during the life of J., with the right to purchase for a specified price on J.'s death, the price to be divided among testator's "heirs at law" in case J. died without heirs of his body, such event having happened, plaintiff was entitled to share in the distribution of such price.-Tevis v. Tevis, 167 S. W. 1003.

533 (Tenn.) Will construed, and held to vest the fee in certain real estate, left in trust for testator's children for life, in the surviving grandchildren per stirpes; the word "survivors" being used to include, not only children of testator who survived, but children of such children as died leaving children surviving them.-Lee v. Villines, 167 S. W. 1117.

(D) Description of Property.

§ 559 (Tex.Civ.App.) Where a will is uncertain as to whether testator disposed only of his own property or included that which belonged to his wife, the will will be construed to simply dispose of his estate, and the wife, taking under the will, does not thereby relinquish her feesimple title to her community share.-Gulf, C. & S. F. Ry. Co. v. Brandenburg, 167 S. W. 170. A will whereby testator "lent" unto his wife for life all of his estate, and after her death all his property should be divided among his legal heirs, disposed only of his community interest in the estate, and the wife, electing to take under the will, did not relinquish her fee-simple title to her community share.-Id.

(E) Nature of Estates and Interests Created.

§ 616 (Ark.) Where testator devised his property to his wife during life, and by a subsequent clause gave her full power to sell all the property, she was given only a life interest.-Archer v. Palmer, 167 S. W. 99.

Where a will gave to a life tenant the power to dispose of the property as she might desire, in a clause separate from that creating the life estate and the remainders, the power of disposal is not limited to the life estate.-Id.

Where a testator devised his property to his wife for life, with remainder over, but gave the wife absolute power to dispose of the property during her lifetime, a conveyance by her vests a fee in the purchasers and cuts off the interest of the remaindermen.-Id.

(F) Vested or Contingent Estates and In

terests.

$634 (Mo.) Where a will bequeathed a specified interest in real property, the purchase price

thereof to the heirs of the body of testator's son J., and if he should have no heirs of his body living at his death the money to pass to testator's heirs at law, the interest of such heirs at law was contingent and not devisable prior to J.'s death.-Tevis v. Tevis. 167 S. W. 1003.

(H) Estates in Trust and Powers. § 686 (Ky.) Under a devise of real property in trust for the support of the trustee's wife and children, he to have the control of the property for such purpose, and at his death the trust to end and the property to descend to his heirs per stirpes, the death of one of the trustee's sons before him terminated the son's contingent interest in the estate.-Bank of Taylorsville v. Vandyke, 167 S. W. 869.

§ 687 (Tenn.) Will construed, and held that, on the death of one of testator's children entitled to the income of certain real property left in trust, the trust ceased as to such portion, and an unlimited fee vested in the remaindermen.-Lee v. Villines, 167 S. W. 1117.

VII. RIGHTS AND LIABILITIES OF DEVISEES AND LEGATEES. (G) Debts of Testator and Incumbrances on Property.

§ 840 (Mo.) Where plaintiffs took title to incumbered realty under a will which was filed for record, they were charged with notice of all the facts contained in their chain of title; that the property was subject to sale by exercise of power conferred in the deed of trust; and also that the purchaser might sell the land, improve or subdivide it.-Terry v. Groves, 167 S. W. 563.

(H) Void, Lapsed, and Forfeited Devises

and Bequests, and Property and
Interests Undisposed of.

§ 858 (Mo.) Provisions of a will disposing of an undivided half of real property, the use of which had been bequeathed to plaintiff during the life of J., subject to the right to purchase, and after J.'s death, remainder as to the land or purchase price to testator's heirs, held not uncertain or repugnant, but that the interest was "property specifically devised," and therefore did not pass under the residuary clause.Tevis v. Tevis, 167 S. W. 1003.

WITNESSES.

See Continuance, § 26; Criminal Law, §§ 507, 508, 598, 603; Divorce, § 184; Evidence; Trial, § 84.

II. COMPETENCY. (C) Testimony of Parties or Persons Interested, for or against Representatives, Survivors, or Successors in Title or Interest of Persons Deceased or Incompetent.

§ 140 (Mo.App.) On hearing exceptions to the final settlement of the administrator of a partnership estate, testimony by the administrator of transactions and conversations between himself and decedent was incompetent.In re Whitlow's Estate, 167 S. W. 463.

§ 144 (Mo.App.) Where defendant's husband, since deceased, represented her in transactions with plaintiff, out of which the cause of action grew, plaintiff was disqualified by reason of the husband's death from testifying to conversations and transactions had between them.Bone v. Friday, 167 S. W. 599.

$149 (Tex.Civ.App.) In an action for the purchase price of coal furnished after the death of defendant's husband, and used in running the machinery of the hotel to which defendant succeeded upon his death, testimony by one who claimed to be defendant's agent, instead of an independent contractor, engaged to operate the hotel machinery at a fixed sum, as to

§ 158 (Ky.) In an action for an accounting by the surviving partner against the estate of the deceased partner, written contracts, the articles of dissolution, the books, etc., being record evidence and having no reference to any verbal statements of the deceased, were not rendered incompetent by Civ. Code Prac. § 606.Newberry's Adm'x v. Rhinehart, 167 S. W. 674.

$ 159 (Mo.) In an action by the administrator of a mother against her son, with whom she lived, for an accounting of his acts as her agent, no books having been kept, the court properly refused to permit the son to testify as to his oral accounting to her as to each item of business done.-Barnett v. Kemp, 167 S. W.

546.

$159 (Tex.Civ.App.) In an action to recover an interest in land, testimony of defendant that there was no agreement for its sale and the ap plication of the proceeds to the obligation of plaintiff's intestate, as asserted, held based on a transaction with decedent and inadmissible.Lester v. Hutson, 167 S. W. 321.

In an action to recover an interest in land, where plaintiff relied on the possession of her intestate, testimony of defendant, that before he purchased the land in question intestate was in possession, held not objectionable as a transaction between defendant and deceased.-Id. Testimony of defendant as to his possession held not incompetent as a transaction with deceased.-Id.

§ 175 (Mo.App.) Where, on the hearing of exceptions to the final settlement of the administrator of a partnership estate, the exceptor introduced portions of a referee's report as bearing on a question of res judicata, the administrator was not thereby rendered competent to testify to transactions with decedent, though the report contained incompetent testimony of the administrator.-In re Whitlow's Estate, 167 S. W. 463.

The exceptor did not waive the incompetency of the administrator to testify to transactions with decedent, by introducing such report.-Id. § 178 (Tex.Civ.App.) Under Rev. St. 1911, art. 3690, held that, when a deposition of the opposite party was taken by the representative of decedent, such party might cross-examine the witness and bring out matters favorable to his interest.-Lester v. Hutson, 167 S. W. 321. Under Rev. St. 1911, art. 3690, held that a party so called and whose deposition had been taken could not testify to matters not testified to or inquired about in the deposition.-Id. Where a witness is called by an administrator, his disqualification to testify against decedent is waived, and his testimony elicited by deposition or otherwise is admissible.-Id.

(D) Confidential Relations and Privileged Communications.

§ 191 (Ky.) Under Civ. Code Proc. § 606, testimony of the divorced wife of plaintiff in an action against her parents for alienation of her affections, that in her presence defendant told plaintiff that he might take his farm, rent free, and live there with his wife, but that plaintiff declined, left, and never returned, held competent, not being a communication between husband and wife growing out of the marriage relation.-Hostetter v. Green, 167 S. W. 919. Under Civ. Code Prac. § 606, providing that neither a husband nor wife shall testify during the marriage, or afterwards, as to any communication between them during marriage, held, that the word "communication" should be given a liberal construction to embrace all knowledge upon the part of either obtained by reason of the marriage relation, but that a divorced husband or wife was a competent witness against

$220 (Ark.) Failure of the plaintiff, in an action upon policy insuring her husband against accidental death, to object to testimony by the physicians who attended the insured, which was privileged, renders the testimony competent.Maloney v. Maryland Casualty Co., 167 S. W. 845.

III. EXAMINATION.

(A) Taking Testimony in General. $255 (Tex.Cr.App.) A school teacher who testified that she always made a correct record of the age of the children in her room as furnished by them, but that she had no independent recollection of the age of a child, could testify to the age of the child by referring to the memorandum made by her.-Sorell v. State, 167 S. W. 356.

(B) Cross-Examination and Re-examina

tion.

that there was any lurching or jerking, plain§ 268 (Ark.) Where engineer of train denied tiff held properly allowed to show on his crosshave been caused by letting off too much steam. examination that, if there was, it could only -Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83.

$268 (Tex.Cr.App.) Under Code Cr. Proc. 1911, arts. 794, 795, a wife who testifies for her husband on his trial for crime is subject to cross-examination like any other witness, except that new incriminating evidence cannot be brought out by her.-Taylor v. State, 167 S. W. 56.

$268 (Tex.Cr.App.) The cross-examination of a deputy sheriff testifying for accused is not limited to what was testified to on direct examination; but the state may ask him any question material in the case.-Martoni v. State, 167 S. W. 349.

§ 268 (Tex.Civ.App.) Where, in an action upon a benefit certificate, the defenses being that insured in her application falsely stated that she had never had a certain disease, defendant had introduced a physician showing that he had treated her for the disease, it was proper to permit plaintiff to show on crossexamination that she completely recovered from the disease in a few days.-Modern Brotherhood of America v. Jordan, 167 S. W. 794.

§ 270 (Tex.Cr.App.) Where a witness for the state on trial for rape testified that accused had paid a specified sum to the husband of prosecutrix and had received a fourth thereof, but there was no agreement that he should receive any part of the damages recovered by prosecutrix in a civil action, a question whether he thought he was entitled to any part of such damages was properly excluded.-Burge v. State, 167 S. W. 63.

IV. CREDIBILITY, IMPEACHMENT, CONTRADICTION, AND COR

ROBORATION.

(A) In General.

cused testified that decedent had insulted her § 330 (Tex.Cr.App.) Where the wife of acthe night before the killing and that she then told accused thereof, the state on her crossexamination, could prove that decedent had previously insulted her, and that she had not told her husband, thereof and could ask her whether she had told a third person that she did not know why accused killed decedent.-Taylor v. State, 167 S. W. 56.

§ 330 (Tex.Cr.App.) Accused, on the cross-examination of a witness, may show any fact affecting his credibility.-Burge v. State, 167 S. W. 63.

(B) Character and Conduct of Witness. $ 337 (Ark.) Where, in a prosecution for

proper cross-examination to ask her if she had not been guilty of prior acts of intercourse with others, to affect her credibility as a witness. Garrard v. State, 167 S. W. 485.

8337 (Mo.) Under the direct provisions of Rev. St. 1909, § 6283, when the defendant becomes a witness, it is proper to prove his conviction of other crimes, but not that he has committed other crimes of which he has never been convicted.-State v. Banks, 167 S. W. 505.

§ 337 (Tex.Cr.App.) Where accused, who filed a plea for suspended sentence, testified in his own behalf, the state on cross-examination could ask him as to the number of times he had been arrested and confined in jail for offenses not involving moral turpitude.-Williamson v. State, 167 S. W. 360.

That accused, testifying in his own behalf, had been charged with robbing a railroad car did not affect his credibility as a witness, where it was shown that, after investigation, no indictment was returned against him.-Id.

§ 337 (Tex.Civ.App.) Where accused, charged with selling whisky, testified in his own behalf, the state could attack his general reputation and show that he had been indicted for various offenses.-Martoni v. State, 167 S. W.

349.

§ 345 (Tex.Civ.App.) It is not competent to impeach a witness by proving that he has been indicted for a felony or other crime, but the inquiry should be confined to proof of general reputation for truth.-Western Assur. Co. v. Hillyer-Deutsch-Jarratt Co., 167 S. W. 816.

$350 (Tex.Cr.App.) A question on cross-examination of a state's witness as to whether he had not run away with another man's wife was properly excluded, in the absence of any showing that the witness had been indicted, or that any complaint had been filed against him.-Willis v. State, 167 S. W. 352.

$ 361 (Tex.Cr.App.) Where evidence of contradictory statements has been introduced to impeach a witness, his general good reputation may be proved, but merely laying a predicate | for proof of such statements does not justify proof of good reputation.-Thompson v. State, 167 S. W. 345.

Where it is attempted to be shown that a witness is testifying under corrupt motives or fabricating testimony, evidence of his good reputation is admissible.-Id.

$361 (Tex.Cr.App.) Where witnesses for accused, who filed a plea for suspended sentence, testified that accused's reputation for truth, veracity, and honesty, and as a law-abiding citizen was good, the state on cross-examination could ask them whether they had not heard of his being charged with violations of law, though such violations did not involve moral turpitude. -Williamson v. State, 167 S. W. 360.

(C) Interest and Bias of Witness. §372 (Tex.Cr.App.) The motive of a witness and his interest or bias may be shown on his cross-examination.-Burge v. State, 167 S. W. 63.

(D) Inconsistent Statements by Witness. $379 (Tex.Cr.App.) Where the wife of accused testified that decedent had insulted her, and that she told accused before the killing, and

on cross-examination stated that she did not remember whether she had told a third person immediately after the killing that she did not know why accused killed decedent, the testimony of the third person that she did so state was admissible.-Taylor v. State, 167 S. W. 56.

$388 (Ky.) Testimony of statements by a witness for the prosecution in an endeavor to persuade a witness for the defense to accuse a person not indicted was properly excluded, where the witnesses had not been previously questioned concerning such statements, as required by Civ. Code Prac. § 598.-Gabbard v. Commonwealth, 167 S. W. 942.

§ 389 (Ky.) Where a witness for the defense had testified as to the conversation between him and two witnesses for the prosecution, and statements in that conversation, it was proper had denied on cross-examination making certain for the prosecution to introduce evidence of such statements for the purpose of impeaching the witness but not as evidence of the defendant's guilt.-Gabbard v. Commonwealth, 167 S. W. 942.

WORDS AND PHRASES. "Absconding or concealing."-Davis v. Carp (Mo.) 167 S. W. 1042. "Accidental."-Maloney v. Maryland Casualty Co. (Ark.) 167 S. W. 845. "Assumed risk."-Chesapeake & O. Ry. Co. v. De Atley (Ky.) 167 S. W. 933. “Blackleg.”-United Mine Workers of America v. Cromer (Ky.) 167 S. W. 891. "Burden of proof."-Ranney v. Lewis (Mo. App.) 167 S. W. 601.

967.

"By virtue of office."-Putnam County v. Johnson (Mo.) 167 S. W. 1039. "Cash value."-Gulf Compress Co. v. Insurance Co. of Pennsylvania (Tenn.) 167 S. W. 859. "Certificate."-Laclede Land & Improvement Co. v. Morten (Mo. App.) 167 S. W. 658. "Children."-Warne v. Sorge (Mo.) 167 S. W. "Citizens."-State v. Southern Sand & Material Co. (Ark.) 167 S. W. 854. "Communications."-Hostetter v. Green (Ky.) 167 S. W. 919. "Constructive trust."-Ferguson v. Robinson (Mo.) 167 S. W. 447. "Contributory negligence."-Chesapeake & O. Ry. Co. v. De Atley (Ky.) 167 S. W. 933; Bryning v. Missouri, K. & T. Ry. Co. of Texas (Tex. Civ. App.) 167 S. W. 826. "Deadly weapon."-Jones v. State (Tex. Cr. App.) 167 S. W. 1110.

"Deface, disfigure, or damage."-Saffell v. State (Ark.) 167 S. W. 483. "Disability in any wise."-Commerce Trust Co. v. Ellis (Mo.) 167 S. W. 974.

1117.

"Traveler."-Ballard v. State (Tex. Cr. App.) 167 S. W. 340.

"Educational institution."-Ward Seminary for Young Ladies v. City of Nashville (Tenn.) 167 S. W. 113.

"Extra compensation."-Dallas County v. Lively (Tex.) 167 S. W. 219.

"Family."-Wood v. Lewis' Estate (Mo. App.) 167 S. W. 666.

"Gambling device."-State v. McTeer (Tenn.) 167 S. W. 121.

"Heirs at law."-Tevis v. Tevis (Mo.) 167 S. W. 1003.

"High degree of care."-Bryning v. Missouri, K. & T. Ry. Co. of Texas (Tex. Civ. App.) 167 S. W. 826.

"High-water mark."-Coffman v. Saline Valley R. Co. (Mo. App.) 167 S. W. 1053. "Improper act."-Davis v. Carp (Mo.) 167 S. W. 1042. "Indignity."-Dowling v. Dowling (Mo. App.)

167 S. W. 1077. "Irreparable injury."-Acme Cement Plaster Co. v. American Cement Plaster Co. (Tex. Civ. App.) 167 S. W. 183. "Leasehold."-Matthews 167 S. W. 695.

V. Crofford (Tenn.) "Libel."-Texas Furniture Co. v. Meyers (Tex. Civ. App.) 167 S. W. 766. "Loan or forbearance."-Hamilton v. Kentucky Title Savings Bank & Trust Co. (Ky.) 167 S. W. 898. "Manslaughter in the third degree."-State v. Prince (Mo.) 167 S. W. 535. "Maritime contract."-Rounds

V. Cloverport Foundry & Machine Co. (Ky.) 167 S. W.

384.

"Material to the risk."-Modern Brotherhood of America v. Jordan (Tex. Civ. App.) 167 S. W. 794.

"Nearest blood kin."-Smith v. Egan (Mo.) 167 S. W. 971.

"Nolle

prosequi."-Scheibler

V. Steinburg

(Tenn.) 167 S. W. 866. "Once a month."-Southern Surety Co. v. First State Bank of Montgomery (Tex. Civ. App.) 167 S. W. 833.

"Ordinary care."-Bryning v. Missouri, K. & T. Ry. Co. of Texas (Tex. Civ. App.) 167 S. W. 826. "Our basis limit."-Charles B. Smith & Co. v. Duncan (Tex. Civ. App.) 167 S. W. 233. "Party."-Kentucky Traction & Terminal Co. v. Downing's Adm'r (Ky.) 167 S. W. 683. "Party aggrieved."-Carrick v. Garth (Ky.) 167 S. W. 687.

V.

Harrison (Mo.

"Passive trust."-Shelton App.) 167 S. W. 634. "Private residence."-Ward v. State (Tex. Cr. App.) 167 S. W. 343. "Residence."-Pecos & N. T. Ry. Co. v. Thompson (Tex.) 167 S. W. 801. "Resulting trust."-Erdman v. Kenney (Ky.) 167 S. W. 685; Ferguson v. Robinson (Mo.) Id. 447; Shelton v. Harrison (Mo. App.) Id. 634. "Robbery."-State v. Flynn (Mo.) 167 S. W.

516.

"Sound and healthy condition."-Alsworth v. Reppert (Tex. Civ. App.) 167 S. W. 1098.

"Trespass to try title."-Lester v. Hutson (Tex. Civ. Apn.) 167 S. W. 321.

"Trust."-Shelton v. Harrison (Mo. App.) 167 S. W. 634.

"Undue influence."-Yahr v. Hynes (Ky.) 167 S. W. 680.

"Willful."-Johnson v. State (Tex. Cr. App.) 167 S. W. 733.

"Willfully."-Corrigan, Lee & Halpin v. Heubler (Tex. Civ. App.) 167 S. W. 159. "Without prejudice."-Freidenbloom v. McAfee (Tex. Civ. App.) 167 S. W. 28. "Yard."-George v. Quincy, O. & K. C. R. Co. (Mo. App.) 167 S. W. 153.

WORK AND LABOR.

not act or renders services with no intention of 84 (Mo.App.) Where a party voluntarily does other party should pay, he cannot recover comcharging therefor, or understanding that the pensation, even though the parties are strangers between whom no family relation exists.-Wood v. Lewis' Estate, 167 S. W. 666.

87 (Mo.App.) Services rendered to each other by members of a family are presumed to be gratuitous.-Wood v. Lewis' Estate, 167 S.

W. 666.

Claimant's cousin who, for many years, was a member of the family of claimant's father, her guardian, and who, after the father rented his house for 16 years, lived with claimant, being treated as a member of the family, held a member of the same family as claimant within_the rule that services between members of a family are presumed to be rendered gratuitously.— Id.

§ 28 (Mo.App.) Though a promise to pay for services between members of a family will not be implied, it may be inferred from facts and circumstances reasonably justifying the inference of an actual agreement.-Wood v. Lewis' Estate, 167 S. W. 666.

$28 (Tex.Civ.App.) In an action for work and labor done upon defendant's well, evidence held to support a verdict for plaintiff and not to show that plaintiff guaranteed any flow of water, or that no payment was to be made unless the well was satisfactory to defendant.Ortiz v. Walker, 167 S. W. 831.

lation within the rule that services rendered to $30 (Mo.App.) The existence of a family reeach other by the members of a family are presumed to be rendered gratuitously is a question for the court, if the facts are clear and undisputed; but, if the facts touching the existence of such relation are in doubt, it is a question for the jury.-Wood v. Lewis' Estate,

167 S. W. 666.

WRITS.

See Execution; Habeas Corpus; Injunction;
Mandamus; Prohibition; Supersedeas.
Of error, see Appeal and Error.

YEAR.

See Landlord and Tenant.