person, occasioned by using impure water furnished by it, it is im-
proper to admit evidence that greater precautions were taken by
the defendant, after the occurrence complained of to secure pure
water, than were taken before. (Green v. Ashland W. Co., 911.)
3. WATER COMPANIES – LIABILITY FOR DISTRIBUTING
POLLUTED WATER-KNOWLEDGE OF PERSON USING SUCH
WATER.-A water company which knowingly distributes water
which, from a cause not discoverable by the exercise of reasonable
care, is dangerous for domestic use, it owes the duty to its custom-
ers of disclosing such danger, and a failure to do so is fraud in
law, rendering the company liable to any person injured thereby
without fault on his part, and the failure of duty amounts to action-
able negligence, to which the same liability is incident. But if the
person injured used the water with knowledge, actual or construe-
tive, of its dangerous condition, no liability attaches to the com-
pany. (Green v. Ashland W. Co., 911.)

4. WATER COMPANIES - LIABILITY FOR DISTRIBUTING
POLLUTED WATER-WARRANTY OF QUALITY.-A water
company engaged in distributing water for compensation does not
impliedly warrant the quality of the water carried and distributed.
(Green v. Ashland W. Co., 911.)

5. WATER COMPANIES-IMPURE WATER-CONTRIBU-
TORY NEGLIGENCE IN USING.-Where it has been for some time
a matter of common knowledge that water furnished by a water
company is dangerously impure, it will be presumed that a person
of average intelligence living in the community had notice of such
fact, and, unless such presumption is rebutted, he will be deemed
guilty of contributory negligence if he uses such water. (Green
v. Ashland W. Co., 911.)

6. WATER COMPANIES-LIABILITY FOR FURNISHING
IMPURE WATER-EVIDENCE.-Where it is sought to impose
upon a water company a liability for injuries occasioned by impure
water furnished by it, it is error to admit in evidence newspaper
comments generally irrelevant to the issue, and of a sort tending
to prejudice the jury against the defendant. (Green v. Ashland W.
Co., 911.)

WILLS.

--

1. WILLS-EXECUTION - PROOF OF ATTESTING WIT-
NESSES.-Where a will is signed by the testator's making his mark,
and the subscribing witnesses are dead or beyond the jurisdiction
of the court, proof of their handwriting is a compliance with the
law as to due execution; and it need not be proved that the testator
had the will read over to him, or was informed of its contents, before
he signed it. (Scott v. Hawk, 228.)

2.

WILLS-EXECUTION-PUBLICATION.-In the execution
of a will, nothing more than compliance with the statute is neces-
sary, and publication is not necessary unless made so by statute.
(Scott v. Hawk, 228.)

3. WILLS-SIGNATURE-TESTATOR'S MARK.-Where a tes-
tator, being unable to write his signature to his will, makes his
mark instead, the will so executed is "signed" within the meaning
of the law. (Scott v. Hawk, 228.)

4. WILLS-SIGNING WITH MARK.-Where a testator signed
his will by making his mark, it is not essential to the valid execu-
tion of the will that his name be written by one of the attesting
witnesses. (Scott v. Hawk, 228.)

5. WILLS-ILLEGITIMATE CHILD AS AN "HEIR BY
BLOOD."-An illegitimate child is the "heir by blood" of his mother
within the meaning of a will wherein the term "heirs by blood" is
used, where it plainly appears that the testator intended by the use
of that term to indicate those persons whose relationship was by
some tie of consanguinity; and to exclude all others, such as hus-
band, wife, or adopted children. (Hayden v. Barrett, 295.)

6. WILLS-DECLARATIONS OF TESTATOR AS EVIDENCE.
Where a will is attacked on the ground of forgery, declarations of
the testator as to his intentions are admissible for the purpose of
corroboration, but such evidence is not sufficient either to establish
the execution of the will or to overcome the testimony of the sub-
scribing witnesses. (Swope v. Donnelly, 637.)

7. WILLS-DECLARATIONS OF TESTATOR-NOT PROP-
ERLY ADMISSIBLE.-Where the issue is whether or not a will
purporting to have been executed on a certain day is a forgery,
declarations of the testator that a will with which he was satisfied
was in existence two months before that day, also an expression of
intention made by him five years before that time, are irrelevant and
inadmissible. (Swope v. Donnelly, 637.)

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OF

8. WILLS - CHARITABLE TRUST DESIGNATION
TRUSTEE.—If a testater, after providing for certain beneficiaries
in his will, declares therein that "after the death of each one I de-
sire that my executors shall make over to the presiding bishop of
the Church of Jesus Christ of Latter-Day Saints the half of my es-
tate from which that wife's income was derived. The presiding
bishop shall receive it in trust and expend the annual income ac-
cording to his discretion, for the benefits of the members of the
Church of Jesus Christ of Latter-Day Saints," the will clearly
designates such presiding bishop as trustee and sufficiently de-
scribes the beneficiaries under the will. (Staines v. Burton, 788.)

WILLS-CONDITIONS

9. WILLS-CHARITABLE TRUSTS.-A bequest by will to the
presiding bishop of a certain church, in trust, to expend the annual
income, according to his discretion, for the benefit of the members
of such church, "whether it be for public schools, parks, watering
cities, acclimatizing foreign plants, or anything else whereby the
members may be benefited, creates a charitable use or trust, and is
not within the rule against perpetuities. (Staines v. Burton, 788.)
10. WILLS-CHARITABLE TRUSTS-CONSTRUCTION.-If a
charitable intent appears on the face of a will, but the terms used
are broad enough to allow the fund being applied either in a lawful
or unlawful manner, the gift must be supported, and its application
restrained within the bounds of the law. (Staines v. Burton, 788.)
11.
SUBSEQUENT-IMPOSSIBILITY
OF PERFORMANCE-EFFECT OF.-If a testator devises to his
wife, for her life, his "homestead and five acres around the house,"
with the understanding that his son will support and take care of
her, and that, at her death, the "homestead and land shall return to"
the son "as compensation therefor," but the wife of the testator
dies in his lifetime, and he makes no change in his will, the whole
will, taken together, including the wish therein expressed that the
son shall support and provide for his two sisters as long as they
remain single, shows that the condition upon which the son is to
take the estate is a condition subsequent, and not a condition
precedent, and its performance having been rendered impossible
by the act of God, in the death of the wife in the lifetime of the
testator, the son holds the estate by an absolute title, as if the
testator had attached no condition to the devise, for the act on

which the estate depends does not necessarily precede the vesting of the estate, but may accompany or follow it. (Burdis v. Burdis. 825.)

12. WILLS-CONDITIONS PRECEDENT AND SUBSEQUENTWHAT ARE DISTINCTION.-There are no technical words to distinguish between conditions precedent and conditions subsequent. The distinction is matter of construction. The words may indifferently make either, according to the intent of the person who creates the condition. If the language of the particular clause, or of the whole will, shows that the act on which the estate depends must be performed before the estate can vest, the condition is precedent, and, unless it is performed, the devisee can take nothing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it, and this can be collected from the whole will, the condition is subsequent. (Burdis v. Burdis, 825.)

1.

See Devise.

WITNESSES.

WITNESSES-TESTIMONY OF EXPERTS.-In an action for damages occasioned by fire ignited from sparks escaping from a road-oller engine, it being alleged that the defendant was negligent in failing to provide such engine with a spark arrester, expert witnesses, in testifying, may be allowed to exhibit a model of a locomotive engine to the jury to illustrate the use of a spark arrester, and to indicate how it could be applied to the roller-engine in question, but they should not be allowed to use such models for any further purpose. (McMahon v. Dubuque, 143.)

determining

2. WITNESSES-MATTERS OF OPINION.-In the condition of a house at the time of its destruction, whether or not it was in good repair, a witness may describe the house in detail, but he should not be permitted to testify whether or not the house was in good repair, such testimony being merely an opinion. (McMahon v. Dubuque, 143.)

3. WITNESSES-IMPEACHING ONE'S OWN.-A party cannot show inconsistent statements made by his own witness for the purpose of impeaching him. (Fall Brook Coal Co. v. Hewson, 466.)

4. WITNESSES-OFFER OF-WHEN COMPLETE.-A person is not made a witness so as to burden the party calling him with the necessity of supporting his character to the end of the trial, until he is called, sworn, and some material question is asked and answered. (Fall Brook Coal Co. v. Hewson, 466.)

5. WITNESSES-OFFER OF-IMPEACHMENT.—If calls a witness, but excuses him after he is sworn, but before any a party material question is asked, he is not afterward precluded from impeaching his credibility by contradicting him, where the witness gives material testimony for the other side. (Fall Brook Coal Co. v. Hewson, 466.)

6. WITNESS, FAILURE TO CALL-PRESUMPTION — INSTRUCTIONS.-The omission of the defendant to call its motorman as a witness, though available, will justify the court in instructing the jury that, in weighing the evidence introduced, they are at liberty to indulge in the presumption that the testimony of the motorman, if introduced, would not have been favorable to the defendant's cause. (Fonda v. St. Paul City Ry. Co., 341.)

7.

WITNESSES-RULING OUT QUESTIONS CALLING FOR AN OPINION.-A question which calls for an opinion of the witness in regard to the legal effect of a contract is properly ruled out. (McIsaac v. Northampton Elec. L. Co., 244.)

8. WITNESSES.-IMMATERIAL QUESTIONS asked of a witness are properly ruled out. (McIsaac v. Northampton Elec. L. Co., 244.)

9.

WITNESSES-EXAMINATION OF-STRIKING OUT ANSWER.-A witness' answer which is not responsive to the question may rightly be stricken out. (McIsaac v. Northampton Elec. L. Co., 244.)

10. WITNESSES-EXPERTS-QUESTION OF SANITY-PENITENTIARY WARDEN.-Where the prisoner's insanity is set up in defense of a prosecution for homicide, and expert testimony is given in support of such plea, together with evidence of acts and declarations of the defendant tending to show insanity, a penitentiary warden who, through a long period of service, has had opportunity to study criminals, is competent to testify that very many prisoners feigned insanity and delusions, and that some had deceived him and physicians. (Commonwealth v. Wireback, 625.)

11. WITNESSES - CROSS-EXAMINATION-MAKING ONE PARTY'S OWN WITNESS.-When the matter elicited from a witness in his examination in chief is departed from, or when the facts sought to be established on cross-examination are not pertinent or germane to those elicited in the examination in chief, the witness becomes the witness of the party attempting to prove such matter. (Jones v. State, 719.)

12. WITNESSES - COMPETENCY – WIFE IN CRIMINAL CASE.-A wife can be a witness for her husband, but not against him, and the state in a criminal case has the right to cross-examine ber pertaining to the facts sworn to by her on direct examination. When the state leaves the matter elicited in the examination in chief, and attempts to prove independent material facts by her, it makes her its witness and a witness against her husband against bis objection. This cannot be legitimately done. To permit it is reversible error. (Jones v. State, 719.)

13. WITNESSES-IMPEACHMENT.—If a witness is attacked by showing that he has testified corruptly, or has recently fabricated his testimony, he can be supported by proof that that he had at a prior time made the same statements, before any motive could have existed. (Jones v. State, 719.)

14.

WITNESSES-EXPERTS-OPINION

EVIDENCE.-Where

It is sought to recover from a water company for death from typhoid fever, which disease, it is alleged, was communicated to the deceased by impure water furnished by the defendant company, expert witnesses should not be permitted to give opinions going to the question of how the disease was contracted, based upon the evidence introduced upon that question, such evidence being contradictory. (Green v. Ashland W. Co., 911.)

OF

15. WITNESSES - EXPERTS - PHYSICIANS-CAUSE DEATH.-The rule that a physician may testify as to the cause of death, from personal examination or knowledge, extends no farther than the immediate cause of death, and not to what set the cause in motion. (Green v. Ashland W. Co., 911.)

See Appeal, 6, 10; Evidence, 12; Homicide, 11-13;Insane Persons, 4;

Wills, 1.
WRITS.

A WRIT OF ERROR MUST BE DECIDED according to the law as it was at the time the judgment was rendered, without any consideration of subsequent acts. (Wilson v. Hundley, 837.)