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(67 N. J. L. 218)

interest in the cutting of this timber might STATE (WYCKOFF, Prosecutor) v. LUSE. be inferred, and hence a joint liability for

the expenses incurred therein by the partners (Supreme Court of New Jersey. Nov. 11,

or either of them. The men were boarded 1901.)

at the personal request of Melrose, who repPARTNERSHIP AS TO THIRD PERSONS-EVI.

resented himself to plaintiff as a partner with DENCE-APPEAL-OBJECTIONS IN INTERMEDIATE COURT-NECESSITY-REVIEW.

the other defendants in the business then in 1. Evidence that defendant W. purchased cer

hand. There being at least some evidence tain timber, and that his brother was permitted

to support the judgment, this court cannot by him to take general charge of the cutting interfere. It is not the province of this court, and removal thereof, and that the latter and

in reviewing the judgments of the court of M. were jointly interested in the timber to be cut, and the net profits were to be paid to W.

common pleas in appeal 'cases, to retry the to be credited on debts owing to him by his cause upon the merits. Deubel v. Vanderbilt, brother and M., and that the men cutting the 64 N. J. Law, 159, 44 Atl. 842. timber. were boarded by plaintiff at the person

The judgment of the pleas having reduced al request of M., who represented himself as a partner with W. and his brother in the busi the amount recovered in the court below, ness, was sufficient proof that the three were there should have been no judgment for costs partners to justify a joint judgment against in that court. The costs before the justice them for the value of the board furnished to their employés.

appear to be excessive, but, since no effort 2. Where an action was tried before a justice was made to correct the taxed bill in the court of the peace at which the costs taxed were ex below, we cannot grant the relief here. cessive, but no objection was made thereto on

The judgment below is affirmed, except as a trial de novo ou an appeal to the court for the trial of small causes, such question cannot be

to the costs of the appeal. reviewed on a further appeal to the Supreme Court. Certiorari to court of common pleas, War

(67 N. J. L. 221) ren county.

MURPHY v. WATSON. Certiorari by the state, on the prosecution (Supreme Court of New Jersey. Nov. 11, of Martin Wyckoff, against Fanny Luse to

1901.) review a judgment. Affirmed.

PLEADING-AMENDMENT AT TRIAL-VERBAL Argued June term, 1901, before GUM. ORDER-FILING OF AMENDED PLEAS

AFTER JUDGMENT. MERE and HENDRICKSON, JJ.

1. Where, on the trial of an action, the court Martin Wyckoff, pro se.

John H. Dahlke, orally ordered certain amended pleas to be filed for defendant.

which were necessary to raise the issues in controversy, the fact that the pleas were not filed,

under a rule entered nunc pro tunc, uutil after PER CURIAM. This writ brings here for judgment was entered on the verdict, did not review a judgment of the Warren pleas, en

invalidate the judgment, the verbal order enter

ed at the trial being sufficient to sustain the tered after a trial de novo, on an appeal

same. from the court for the trial of small causes. The judgment was given for a balance of the

Error from circuit court, Essex county.

Replevin between one Murphy and one bill of the plaintiff below for the board of

Watson. From a judgment in favor of the men, while engaged in cutting off a piece of timber near her house, against the pros

latter, the former brings error. Affirmed. ecutor, his brother (Cornelius Wyckoff), and

Argued June term, 1901, before DEPUE, C. Robert Melrose, who were defendants be

J., and DIXON, GARRISON, and COLLINS,

JJ. low. The present prosecutor was the only one who appealed.

Jerome D. Gedney, for plaintiff in error. One reason urged for a reversal is that a Blake & Howe, for defendant in error. motion to nonsuit for insufficiency of the state of demand was overruled. We think PER CURIAM. The only question raised there is no merit in this objection.

was with respect to the power of the court Another ground urged was that there was to order an amendment to the pleadings no evidence to show that the three defend after the case was tried. The cause was ants were jointly interested in the cutting tried December 3, 1900. Judgment was enof the timber, or that they permitted them tered upon the verdict the same day. On selves to be so held out to the public. The March 6, 1901, pleas were tiled that were evidence did tend to show that the timber necessary to raise the real subject-matter in was purchased by Cornelius Wyckoff; that controversy between the parties. The conhis brother, the prosecutor, was permitted by tention is that the filing of these pleas will him to take general charge of the cutting not support the judgment, there being no and removal of the timber; that the latter triable issue at the time of the trial, and the and Melrose were jointly interested in the power of the judge to order an amendment timber to be cut; and that the net profits after the trial is contested. It appears from were to be turned over to Cornelius Wyckoff, the stipulation, in writing, that the order reto be credited upon debts owing to him by ferred to as allowed on March 2d was verthe prosecutor and said Melrose. We think bally made by the court at the trial of the there was evidence from which a partnership cause. That was a sufficient order. The

subsequent entry of the rule was a matter fied appellant to furnish the abstract of title. of form, and, although entered after the trial, This appellant failed to do, and in July, 1901, was entered nunc pro tunc.

plaintiff tendered the purchase money, the Judgment should be affirmed.

$20 on account of the abstract, and a deed for execution. Appellant refused to carry

out the agreement, and this bill was filed in (204 Pa. 325)

September, 1901. The court decreed performPENNSYLVANIA MIN. CO. v. THOMAS. ance. (Supreme Court of Pennsylvania. Jan. 5,

The chief defense set up by the appellant 1903.)

is that the bill is founded on the second conSPECIFIC PERFORMANCE-MODIFICATION OF

tract, made December 28, 1899, and that this CONTRACT-ESTOPPEL-PRESUMPTIONS will not support a decree for specific per-ASSIGNEE OF CONTRACT.

formance, because neither the plaintiff nor 1. A bill for specific performance of a contract for the sale of land was based on the

any other vendee is named in it, and it is original agreement and a subsequent agreement therefore indefinite as to parties, and plaintiff on the back thereof, modifying the original in did not sign it, and therefore it is not mutwo points favorable to defendant. Held, that

tually binding. This argument is well andefendant was estopped to aver that the agree. ment was indefinite as to parties because nei

swered by the opinion of the court below ther the plaintiff nor any other vendee was that it "entirely ignores the fact that the named in the indorsement, or because the plaintiff had not signed the indorsement, where it

agreement signed by defendant on Decemwas signed by his counsel.

ber 28, 1899, was written on the back of the 2. It will not be presumed that the purchaser original agreement (quoting the latter). * of land stipulating for the abstract of title It also ignores the fact that an assignment clear of incumbrances is to pay for the land be.

of the rights of J. M. Thomas under this fore he examines the abstract.

3. When an assignee of the vendee under an original agreement was made to the Pennsylagreement for the sale of land tenders the pur vania Mining Company, plaintiff, after he chase money and demands the deed, and the had elected to purchase under his option; the vendor does not object that the assignee has given no notice of his rights as assignee in the

election to purchase and assignment being in agreement, he cannot thereafter object.

writing [quoting them).” The averments of Appeal froin court of common pleas, Wash

the plaintiff's bill clearly show that its claim ington county.

for specific performance is based upon the Bill by the Pennsylvania Mining Company

original agreement dated May 26, 1899, as against L. Thomas for specific performance.

modified by the agreement of date December From a decree for plaintiff, defendant ap

28, 1899; and, taking these two agreements

together, there can be no doubt as to the peals. Affirmed.

parties to the contract, or as to its mutuality. Argued before McCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MES

J. M. Thomas, his heirs and assigns, are namTREZAT, and POTTER, JJ.

ed as the parties who shall "have the exclu

sive right to purcbase said coal,” and the John C. Bane and R. W. Irwin, for appel- plaintiff company is, under the averments of lant. J. W. Donnan, A. Donnan, John G.

the bill, which are confessed and found to be MacConnell, and A. M. Neeper, for appellee. true, a party to the contract under the de

scriptive word "assigns.” “The agreement MITCHELL, J. The material facts admit entered into by A. M. Neeper, Esq., the gented by the demurrer and found by the learned eral counsel of the plaintiff company, and judge were as follows: Appellant, being the the defendant, on December 28, 1899, was owner of land, sold an option to purchase a not an agreement which vested in the comvein of coal therein to one J. M. Thomas by pany an equitable title to the coal in queswritten agreement describing the land and tion that had vested already under the terms the terms of the sale fully and explicitly. of the original agreement and the acceptance On November 30, 1899—the day before the and assignment of Thomas, but it was an expiration of the option-J. M. Thomas noti agreement modifying to some extent the fied appellant of his acceptance and election manner in which the original agreement, to purchase. On December 27th J. M. Thom

which was executory, should be executed. as assigned his right to plaintiff, and on the Mr. Neeper, as general counsel of the plainnext day appellant signed an agreement, in tiff, had the original contract in his possesdorsed on the original contract of option, sion, and it was in the line of his duty to suchanging the latter in two points favorable pervise the execution of this executory conto him, viz., that the purchase money was to tract. At all events, if it was not, it would be payable presently in full, instead of in in no way affect the plaintiff's rights to a dethree annual payments, and appellant was to cree of specific performance under the origireceive $20 as part of the cost of the abstract nal agreement, its acceptance and assignof title, which the original contract bound ment, which are all admitted, and found to him to furnish. Appellant on his part agreed be binding upon the defendants.” to execute a deed within 10 days after deliv The other objections are manifestly only ery of the abstract to the plaintiff's counsel. afterthoughts to excuse a plain breach of The bill charged that this contract was made contract. It is said that no tender of the $20 with the plaintiff, which in April, 1901, noti for half the expense was made when the

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abstract of title was demanded, and that The portion of the will involved in this conwhile, by the original agreement, appellant | troversy is as follows: was to furnish the abstract at his own ex "Item 1st. I devise and bequeath to my bepense, it was not made a condition precedent loved wife Elizabeth all my property, real, to the payment of the purchase money. But | personal and mixed, to have and to hold the it was so in the nature of things. It would same during her natural life, or as long as require a very clear contract to that effect she shall continue to be my widow. to justify a construction that a purchaser "After either of the above events the prop who stipulates for an abstract of title, clear erty to be sold and divided equally among of incumbrances, is to pay the purchase mon my lawful heirs. ey before he examines the abstract.

"The children of deceased heirs shall inIt is further said that plaintiff was dilatory herit the full portion as their parents would in the assertion of its rights and should be

have done if living." barred for laches. The court found that the The testator died September 6, 1874, the plaintiff had at all times been ready, anxious, day after his will was executed, leaving surand willing to perform its part of the con viving him a widow, two sons, a daughter, tract, and we see nothing to indicate that it two grandchildren, who were the children was more than indulgent to the appellant in of a deceased daughter, Eliza Stottlemyer, modifying the original contract in a manner

and a granddaughter, who was the child of lavorable to him, and in failure to resort to another deceased daughter, Olive Wolf. che court until after repeated efforts to get Elizabeth Wolf, the daughter of Olive, died an amicable settlement.

December 7, 1890, and Elizabeth Hoover, the Lastly, it is said that plaintiff did not give

widow of Gideon, died in October, 1901, Jefendant notice of its right or title, as as

without having remarried. Annie M. Mausignee of J. M. Thomas, at the time it made gans, one of the daughters of the testator, demand for the abstract or tender of the pur

and her husband, made a deed for their inchase money and the deed for execution. It

terests in the "Gideon Hoover farm," which would be sufficient answer that no objection

the bill prays may be construed; but it was or question on that account was made at the

stated at the argument that that was no time by the defendant. But in fact no such

longer necessary, and the only question for notice was required, as he had full knowl

us to determine is whether Elizabeth Wolt edge of the fact as long ago as December,

had such interest in the estate of her grand1899, when he accepted the favorable modifi

father as to pass at her death to her repcation of the original agreement by the coun

resentatives. She never married, and Ja. sel of the plaintiff company.

cob Wolf, her father, claims the interest in Decree affirmed, with costs.

the estate which it is admitted she would have been entitled to if she had lived until the period of the distribution of her grand

father's estate. (96 Md. 393) HOOVER et al. v. SMITH et al.

The law favors the early vesting of estates,

and "courts will, in the absence of plain ex(Court of Appeals of Maryland. Jan. 22, 1903.) pressions, or an intent plainly inferable from WILLS-CONSTRUCTION-VESTED REMAINDER.

the terms of the will, adopt the earliest time 1. Under a will made when two of testator's for the vesting, where there is more than one daughters had died, leaving children, giving all

period mentioned.” Straus v. Rost, 67 Md. his property to his wife during her life, or as long as she remained bis widow, with direction

476, 10 Atl. 75. It is a well-recognized rule that on the bappening of either event the prop of construction that in doubtful cases the erty shall be sold and divided equally among interest shall be deemed to be vested in the his lawful heirs, the interest in remainder vests on testator's death, so that a child of one of

first instance, rather than contingent, unless such deceased daughters, dying after him, but the instrument under consideration does not before his widow, has an interest which passes admit of such construction. When a testator to her representatives.

bas employed terms in his will which in Appeal from circuit court, Frederick coun. their ordinary signification are in accord with ty, in equity; John C. Motter, Judge.

such familiar and fixed rules of law, it Bill by John J. G. Hoover and others should require very clear expressions elseagainst Carrie Smith and others. From the where in the will to justify the court in givdecree, complainants appeal. Affirmed. ing such terms some other and unusual mean

Argued before McSHERRY, C. J., and ing. When, therefore, a testator directs that FOWLER, BRISCOE, BOYD, PAGE, after his wife's death or marriage his propPEARCE, SCHMUCKER, and JONES, JJ. erty is to be sold and divided equally among

his "lawful heirs," and makes no other disEmory L. Coblentz, Chas. C. Waters, and

position of the remainder after his wife's John S. Newman, for appellants. S. A. Lew

death or marriage, when and in whom does is, for appellees.

such remainder vest? At common law an

heir is "he who is born or begotten in law. BOYD, J. This is an appeal from a de ful wedlock, and upon whom the law casts cree of the circuit court for Frederick coun

the estate in lands, tenements or hereditaty construing the will of Gideon Hoover. ments immediately upon the death of his

ancestor." In 15 Ency. of Law (2d Ed.) 322, it is said: "A devise to heirs, whether to one's own heirs or to the heirs of a third person, designates not only the persons who are to take, but the manner and proportion in which they are to take. Where there are no words to control the presumption, the law presumes the intention to be that they take as heirs would take by the rules of descent." And again it is there said: “It is well settled that a gift to the heirs of one will be construed as referring to those who are such at the time of the ancestor's death.” If, then, we adopt the ordinary meaning of the term used by the testator (“lawful heirs"), we find that he presumably intended that those who would be entitled to his real estate at the time of his death should get the benefit of the proceeds of the sale. It cannot be successfully contended that merely because he gave his wife an estate for life, or as long as she continued to be his widow, the vesting of the estate given the heirs should be postponed until the widow's interest ceased. If he bad said, "After either of the above events the property to be sold and divided equally among those who are entitled to it by the rules of descent at the time of my death," there could be no question about it. And when he used a term which has that meaning, in the absence of some intention expressed to the contrary, must it not be given to it? It is true that this will speaks of real and personal property, and the record does not show how much there was of either, but the word "heirs" has been heid to include "next of kin," when used in such connection as it could be seen such was the intention; and as this testator left three children and three grandchildren, who were children of his deceased daughters, if he had died intestate the same persons who would have inherited his real estate would have been entitled to distribution of his personal property. Those who were his heirs were also his next of kin, and we are now considering the class of persons who were to receive his property. His children and grandchildren were not named in the will, but, instead of naming them, he described them by the term we have mentioned. So reading the will thus far, we find that the testator left his property to his wife for life, or as long as she remained unmarried, and, after her death, or marriage, to a class of persons whom he designated by the term which the law says means those upon whom the law casts his real estate immediately upon his death; and, as he made no other provision for his personal property, it may be assumed that he meant to include that. Under the rules of construction we have already referred to, the presumption, therefore, is that he intended that the interest in his property should vest in them at the time of his death, unless there be something else in the will to show the contrary. We have quoted above all that it says on the subject,

and hence, unless the last clause changes the meaning of the others, there would seem to be no ground to question the vesting of the estate at the death of the testator. That says, “The children of deceased heirs shall inherit the full portion as their parents would have done if living." When the will was made, two of the testator's daughters were dead; one having left two children, and the other one child. It is manifest that he had those grandchildren in mind, and primarily that provision was made for them. It is true that no one can, strictly speaking, be said to be an heir of his ancestor while he is living, but it is evident that the testator spoke of those as such who would have been "heirs" if living. If the theory of the appellants be correct, the child of one of the testator's children who died after the testator and before the widow could not have taken, as he would not have been a child of a “deceased heir." There would be nothing for the child of the deceased child of the testator to inherit unless the estate had vested in the latter. We think there is nothing in this clause of the will from which it can be fairly inferred that the testator intended to postpone the vesting of the estate until the widow's interest in the property ceased by death or marriage, but he only intended by the provisions in his will to postpone the time of their enjoyment of the interests they were to receive.

It is always difficult, in construing wills, to find cases exactly in point; but that of Cox v. Handy, 78 Md. 108, 27 Atl. 227, 501, is in several respects as applicable to this one as we are apt to find. There the testator left certain real and personal property to his wife for life, and his will contained this clause: "It is my will that after the death of my wife, Mary Ann Handy, all the property devised to her for life

shall be sold, if necessary for equal partition, or if the same can be accomplished without a sale, shall be divided amongst my children, share and share alike, the child or children of any deceased child to take the portion to which the parent if living would have been entitled.” This court held that a share of the property vested in each of the children of the testator who survived him, and if any such child died before the life tenant, leaving children, that his share was divested in favor of such children, but that the share of a child dying without children was not divested, but went to his personal representatives. Or, as was said in the opinion delivered after a motion for reargument, “a share of the property vested in each of the children who were living at the time of his death, and if any child died before the period of distribution, leaving children, they were substituted in his place; his share, however, was not divested if he left no children, but it went to his representatives." In reference to the share of Julia J. Handy, whose father died before the will was made, it was held that it

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was clearly the testator's intention that she Argued before MCSHERRY, O. J., and should take a child's part; and that opinion FOWLER, BRISCOE, BOYD, PAGE, concluded by saying, "If the deceased parent SCHMUCKER, and JONES, JJ. survived the testator, the child took by sub

Seth & Wilson, for appellant. Isidor Raystitution in his place; but, if he died in the

ner, Atty. Gen., for the State. lifetime of the testator, the child's title was by direct and original gift.” So applying the rules thus announced to this case (and the JONES, J. The appellant was indicted in clauses in the two wills as to what a child of the circuit court for Talbot county on a a deceased child shall take are very similar), charge of murder, and upon trial was conwe are of the opinion that the child of Mrs. victed of murder in the first degree. He reWolf took by direct and original gift the in

ceived the sentence of the court on the 7th terest her mother would have been entitled to day of June, 1902, and brings this appeal if she had survived the testator, and Eliza from that judgment. The questions upon beth Wolf's interest went to her representa this appeal are presented by exceptions to tive.

evidence admitted by the trial court against The appellants have cited Straus v. Rost, objection made on his behalf. 67 Md. 463, 10 Atl. 74, Larmour v. Rich, 71

The victim of the homicide was a woman, Md. 369, 18 Atl. 702, Small v. Small, 90 Md. and the killing was done by shooting with a 550, 45 Atl. 190, and other cases, but they pistol. After using the pistol with fatal efcan readily be distinguished from the one fect upon bis victim, he turned the weapon we have before us. It is sufficient to say upon himself, presumably with suicidal inthat in those cases the court reached the con

tent. He was found to have shot himself clusion from the wills under consideration through the right ear (the bullet passing that the testators had, with reasonable cer through the bone, and on down through the tainty, indicated the time at which they in throat, as described by a physician who saw tended the estates in controversy to vest, and him), and also in the chest, over the heart the court was governed by such intention. (this bullet passing under the muscles and In Small v. Small, supra, it was said "the lodging under the big muscles of the arm). distinction is clearly drawn between that Immediately after the shooting, he was class of cases where the estate or interest found to be suffering greatly from shock, vests at the death of the testator, because of and was unconscious. It was soon discoveran absence of any expressed intention that it ed, however, that the wounds which he thus vest later, and those where the testator by his inflicted upon himself, after their immediate will fixes a more distant period for the vest effects had subsided, were not dangerous. ing,” and a number of cases are cited to il Within two days after the shooting the aplustrate the respective classes.

pellant made certain confessions or stateAs no question has been raised as to ments to an attending physician in the preswhether there ought to be administration on ence of a justice of the peace, who took the the estate of Elizabeth Wolf, and as the bill same down, as to his having done the kill. made Jacob Wolf, her father, a party, we

ing for which he was afterwards indicted need not determine that question, and will and convicted, and as to his motive thereaffirm the decree, which decreed that Eliza for. These confessions or statements were beth Wolf took a one-fifth vested interest in admitted as evidence against the appellant the estate of Gideon Hoover, which survived upon his trial by the court below, which her death, and that her representative is en overruled objections thereto made by his titled to share in the distribution of said es

counsel, and are the subject of the excep. tate to that extent.

tions brought up by the record. Decree affirmed; the costs to be paid out The questions presented upon the excepof the estate of Gideon Hoover,

tions are matters of grave import to the appellant, but, as respects the disposition the

court must make of them, are free from (96 Md. 384)

difficulty. The rules of law that must deGREEN V. STATE,

termine these questions would seem to be (Court of Appeals of Maryland. Jan. 21, 1903.)

too well settled by our own decisions to MURDER-CONFESSION-EVIDENCE.

make necessary any reference to other au1. One's confession to commission of a mur

thorities. The confessions of the accused, der, being voluntary and not induced by threats especially in capital cases, as this was, are or promise of advantage, is admissible.

always to be received with caution. The 2. One may testify to a confession he heard made, though he cannot give the exact lan

law imposes the condition upon the admitguage, but ouly the substance thereof.

ting of them in evidence that they be not Appeal from circuit court, Talbot county;

induced by threats, or by promise of advan. James A. Pearce, Edwin H. Brown, and

tage to be derived from making them, and Wm. R. Martin, Judges.

the burden of showing aftirmatively that Lewis D. Green was convicted of murder,

they were not so induced to be made in any and appeals. Affirmed.

given case is upon the prosecutor. Nichol

son v. State, 38 Md. 140. The confession ( 1. See Criminal Law, vol. 14, Cent. Dig. $ 1146. which was objected to by the prisoner's

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