on the subject generously collected in 23 Cyc. 1112; Am. & Eng. Ency. That the issues arising from the pleadings in the former action were identical with those presented by the present action is not open to doubt. What there is of distinction has relation to matter of form, and not of substance. There the answer in an affirmative way pleaded the legality and sufficiency of the proceedings under the April petition, and this was put in issue by the reply. Here the petition challenges the legality and sufficiency of such proceedings, and this is put in issue by the answer. It is true that in the former action the matter of the failure to designate in the notice of election the particular place at which such election was to be held was not pointed out by specific allegation. But the challenge was to the validity of the proceedings as a whole, and of necessity it included the question of the sufficiency of the notice. And, as a finding that the notice was sufficient was necessary to the judgment entered, the estoppel of such judgment must be held to forbid any further inquiry into the subject. "Matters which follow by necessary and inevitable inference from the judgment, findings or determinations of the court in relation to the subject-matter of the suit which are necessarily implied from its final decision as being determinations which it must have made in order to justify the judgment as rendered, are equally covered by the estoppel as if they were specifically found in so many words." 23 Cyc. 1306; Hornish v. Stove Co., 116 Iowa, 1, 89 N. W. 95; Brant v. Plumer, 64 Iowa, 33, 19 N. W. 842; Ostby v. Secor (Iowa) 94 N. W. 571.

As we have seen, the former action was regularly submitted to the court to determine the merits of the matter in controversy, and that the result of this was a dismissal of the petition. There was then a final judgment within the meaning of the law, and as such it became conclusive. Campbell Ayres, 18 Iowa, 252; Scully v. Railroad, 46 Iowa, 528.

V.

3. We need not concern ourselves about whether or not proper steps were taken to organize the new district by the election of directors, etc. The proposition to establish such new district having carried, the organization thereof could not be matter of moment to plaintiff.

4. One other matter of contention remains to be noticed. It appears that 240 acres embraced within the limits of the old independent district was not included in the organization of the new. This could not affect the validity of the organization of such a new district; and, in any event, it was a matter of no moment to plaintiff. We need not concern ourselves, therefore, to determine the status of such omitted lands. This is matter, in the first instance at least, for the school authorities.

We find no error in the judgment, and it is affirmed.

SMITH et al. v. RYAN.

(Supreme Court of Iowa. May 20, 1907.) 1. EVIDENCE-NONEXPERT OPINIONS-MENTAL

САРАСІТУ.

Though a nonexpert may state his conclusions as to the mental capacity of a testator, only as based on facts within his knowledge detailed by him in evidence, there is no error in allowing him to answer a question in form not so limited, where in the connection in which it is asked he must have understood that the opinion called for was that based exclusively on the facts already detailed by him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 2292.]

Where plaintiffs' witnesses had testified to strange and unnatural actions and conversations of testatrix from a time preceding the execution of the will up to her death, in support of the allegation of the petition that when the will was executed she was suffering from longcontinued and progressive senile dementia, rendering her incapable of executing a valid will, it was competent for defendant to show, by witnesses intimately acquainted with testatrix and familiar with her conduct and habits during that period, how she talked and acted in particular respects, as tending to show that she was not affected as claimed by plaintiffs.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 131.] 3. APPEAL · DENCE.

REVIEW

OBJECTIONS TO EVI

Statements of one of the contestants of a will that she destroyed a prior will of testatrix, having been evidently proven for the purpose of impeaching her testimony, given on cross-examination, that she had not destroyed the prior will, objections based on their having been proved as a declaration against interest and inadmissible against the other contestants cannot be considered.

4. WILLS-TESTAMENTARY CAPACITY-Undue INFLUENCES-EVIDENCE.

Testimony of plaintiffs, in a proceeding to set aside for undue influence and want of testamentary capacity the probate of the will of their mother, as to her financial condition when she married defendant, 17 years before executing the will, is properly stricken out, as having no bearing on the issues. 5. SAME.

As bearing on the reasonableness of the disposition of testatrix's property by her will, making her husband sole devisee, evidence of his embarrassing financial condition, ill health, and expenditures is admissible on a contest of the will for undue influence and want of testamentary capacity.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 129, 405.]

6. SAME-EXECUTION-READING WILL.

Under Code, § 3274, providing that a will shall be signed by testator, or by some person in his presence and by his direction writing his name thereto, and witnessed by two persons, it is not necessary that the will be read to or by testator, in the presence of the witnesses.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 261, 262.]

7. SAME-PROCEEDING TO SET ASIDE PROBATE -SUBMITTING ISSUE OF EXECUTION.

Under Code, § 3296, providing that the probate of a will shall be conclusive as to its due execution till set aside by an original or appellate proceeding, an issue as to execution of the will is properly witheld from the jury, on a proceeding to set aside its probate, in

the absence of evidence that it was not duly executed.

8. SAME EVIDENCE OF MENTAL CONDITION—

DECLARATIONS.

Declarations or conduct of testatrix tending to throw light on her mental condition when the will was executed may be considered, in connection with other facts and circumstances surrounding or attending the execution of a will, on a contest of the will for undue influence and want of testamentary capacity. [Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, §§ 133, 134, 415-421.] 9. SAME REVOCATION-EVIDENCE.

Declarations of testatrix, made after the execution of the will, as to her wishes with reference to the disposition of her property, cannot be considered as tending to show revocation of the will.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 696.]

10. APPEAL-REVIEW-ESTOPPEL TO ALLEGE ERROR.

Plaintiffs, having put in evidence declarations of testatrix in making out their affirmative case on the issue of undue influence, cannot claim error in the court allowing the same to be considered by the jury on such issue.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3. Appeal and Error, 88 3591, 3597.] Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

Proceeding to set aside the probate of a will on the grounds that it was not duly executed; that it was procured by fraud, duress, and undue influence of defendant, who is the sole devisee; and that testatrix lacked testamentary capacity. The issues raised by denials of plaintiffs' allegations were tried to a jury, and from judgment on a verdict for defendant plaintiffs appeal. Affirmed. Flickinger Bros., for appellants. Harl & Tinley, for appellee.

MCCLAIN, J. An instrument purporting to be the will of Christina Ryan, deceased, was offered for probate by defendant, her surviving husband and sole devisee, and probate was granted without contest. Subsequently this action was commenced by plaintiffs, who are the children of Christina Ryan by a previous marriage, to set aside the order of probate.

1. In one group of errors assigned may be considered many objections to questions asked nonexpert witnesses as to the mental capacity of testatrix. There is no controversy between counsel as to the general rule that a nonexpert witness may state his conclusions as to mental capacity of a testator, only as based upon facts of his own knowledge detailed by him in evidence. Where the nonexpert witness testifies in favor of mental capacity, he cannot be limited to specific facts so strictly as one who expresses an opinion against such capacity; but there is no necessity here for a decision of this distinction. Many of the questions in response to which witnesses for defendant were allowed to state as a conclusion that testatrix was of sound mind, over the objection for plaintiffs that such opinion was not based solely on the facts de

tailed by the witness in his testimony, were unobjectionable, on that ground, showing as they plainly do, that the opinions expressed were based on the facts narrated as of the witnesses' own knowledge. In a few instances, the questions as set out in the abstract seem to call for the opinion of the witness without regard to any facts to which the witness has testified; but in these instances an examination of the transcript, which has been rendered necessary by denials and reaffirmances of the correctness of the abstract as to these specific questions, has demonstrated that in the connection in which the questions were asked the witnesses must have understood that the opinions called for were those based exclusively on the facts already detailed by the witnesses, respectively.

2. Another group of errors assigned includes various objections to rulings permitting witnesses for defendant to relate the habits and characteristics of testatrix which had come under their observation. Witnesses for plaintiffs had been called to testify as to strange and unnatural actions and conversations on the part of testatrix from a time preceding the execution of the will up to her death, in support of the express allegation of the petition that at the time of the execution of the will she was suffering from a long-continued and progressive disease, called "senile dementia," which rendered her incapable of executing a valid will, and it was certainly competent for proponent to show, by witnesses intimately acquainted with her and familiar with her conduct and habits during that period of time, how she talked and acted in particular respects, as tending to show that she was not afflicted, as claimed by plaintiffs. Such testimony was received and considered in Bever v. Spangler, 93 Iowa, 577, 61 N. W. 1072, Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69, and many other cases to which specific reference is unnecessary, without any intimation by this court that such evidence was incompetent. 3. It is claimed that statements of Josephin Woodworth, one of the plaintiffs, to the effect that she had destroyed a prior will of her mother, were proven as declarations against her interest, which could not properly be considered as against the other plaintiffs. There is no occasion for invoking any such rule. The statements were evidently proven for the purpose of impeaching the testimony of plaintiff Woodworth, given on cross-examination, that she had not destroyed the prior will. Whether the statements were properly admissible by way of impeachment is not now the question. Such statements had no bearing as direct evidence against plaintiffs, nor could they be construed as in any way prejudicial to plaintiffs, save as they tended to affect the credibility of Mrs. Woodworth as a wit

ness.

4. Complaint is made of a ruling striking out all the testimony of plaintiffs as to their mother's financial condition when she mar

ried defendant. No suggestion is made, however, as to what bearing this evidence could have had on the mental capacity of testatrix or the influence surrounding her when the will was executed, 17 years afterward. Defendant's testimony as to his own embarrassing financial condition, ill health, and expenditures on his wife's property was admissible as tending to show the reasonableness of the disposition of testatrix's property. Sim v. Russell, 90 Iowa, 656, 57 N. W. 601.

5. It is contended that the court erred in withholding from the jury the issue as to due execution of the will. The probate of the will was conclusive that it had been duly executed until such probate was set aside by an original, or appellate, proceeding. Code, § 3296. The burden was therefore on appellants to sustain their allegations that the instrument was not properly executed. It is not sufficient that there is a dearth of evidence on the question. The claim made is that on cross-examination of one of the attesting witnesses, called by proponent, it was made to appear that the will was not read over to the testatrix in the presence of the attesting witnesses, and that she signed it by making her mark after the witnesses had signed the certificate of attestation. It is not required by the statute that the will be read to the testator or by him, in the presence of the witnesses. Code, 3274. It seems that the attesting witnesses must sign after the testator has signed, and not before. Marshall v. Mason, 176 Mass. 216;1 Brookes v. Woodson, 87 Ga. 379, 13 S. E. 712, 14 L. R. A. 160. The statement of the attesting witness, as given in the abstract, that testatrix affixed her mark after the witnesses had signed, is not, however, found in the transcript which we have been compelled to consult in view of a denial in the appellee's amended abstract of the correctness of the abstract as to the testimony of this witness. There is nothing in the testimony of the witness, as read from the transcript, to support the contention that the will was not duly executed, and the court therefore properly withheld from the jury any issue as to the execution of the will.

6. With reference to the instructions, the following suggestions will be sufficient in reply to the criticisms upon them made by counsel: Statements or declarations of testatrix, or conduct on her part, tending to throw light on her mental condition at the time the will was executed, might properly be considered by the jury, in connection with other facts and circumstances surrounding or attending the execution of the will. Manatt v. Scott, 106 Iowa, 203, 211, 76 N. W. 717, 68 Am. St. Rep. 293; In re Goldthorpe's Estate, 94 Iowa, 336, 62 N. W. 845, 58 Am. St. Rep. 400; Dye v. Young, 55 Iowa, 433, 7 N. W. 678. But subsequent declarations as to the wishes of testatrix with reference to the disposition of her property cannot be considered as tending to show revocation of a 67 N. E. 340, 79 Am. St. Rep. 305.

will, and the jury was properly so instructed. Perjue v. Perjue, 4 Iowa, 520; Gay v. Gay, 60 Iowa, 415, 14 N. W. 238, 46 Am. Rep. 78. The contention that the court erred in authorizing the jury to take into account declarations of testatrix prior and subsequent to the execution of the will, as bearing upon the issue as to undue influence, is not well founded, for the evidence as to such declarations was introduced by plaintiffs in making out the affirmative case on that issue. They cannot now claim, after having put the evidence before the jury, that it should not be considered on that question. The issue as to coercion and duress was properly withdrawn from the jury, because there was no evidence to support a finding on that ground in plaintiff's favor.

We discover no error in the record, and the judgment is affirmed.

The plaintiff's daughter, 31⁄2 years old, fell into a pool of hot water, collected in a sag hole in a street of the defendant village adjacent to the sidewalk, by a drain which was connected with the steam-heating plant of the defendant school district and had its outlet in the street. This is an action to recover damages for her injuries. Held, that the evidence was sufficient to sustain a finding by the jury to the effect that the defendant was guilty of negligence in not keeping the street in a safe condition, and that the trial court did not err in submitting the case to the jury, nor in refusing to give certain requested instructions as to the defendant's duty of inspection and its right to assume that the person in charge of the heating plant would not be negligent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 1612–1621, 1745-1757.]

(Syllabus by the Court.)

Appeal from District Court, Freeborn County; Nathan Kingsley, Judge.

Action by Thorvald Svendsen against the village of Alden and others. Verdict for plaintiff as against defendant village, and from an order denying a motion for judg ment or for a new trial, said defendant appeals. Affirmed.

Perl C. Cornish and H. C. Carlson, for appellant. Lovely & Dunn, for respondent.

START, C. J. On December 26, 1905, the plaintiff's daughter, a child 31⁄2 years old, while walking with her sister, two years older, along the sidewalk on a public street of the defendant village, fell into a pool of hot water in the street at the side and under the walk, whereby she was seriously injured. This action was brought for the benefit of the child to recover damages for the injuries so sustained, on the ground that they were caused by the negligence of the defendants.

The

At the close of the plaintiff's case the action was dismissed by the trial court as to the defendant school district and its officers. cause was submitted to the jury on the issues between the plaintiff and defendant village, and a verdict returned in favor of the plaintiff and against the defendant for the sum of $600. The defendant appealed from an order denying its motion for judgment or for a new trial.

The important question raised by the assignments of error is whether or not the evidence is sufficient to sustain a finding by the jury to the effect that the defendant village was guilty of negligence in the care of the street which was the proximate cause of the injury of the child. The evidence is practically undisputed that Independent School District No. 93 is a school district which includes within its boundaries the defendant village, but the village has no control of the affairs of the school district; that the school district in the year 1904 erected an addition to its school building fronting on one of the principal streets of the village, known as "Broadway," and placed in the basement thereof a steam boiler and heating plant; that for the purpose of draining the basement the village council, on the application of the school district, granted to it permission to construct an underground tile drain from such basement to and along the street in front of it, and the drain was so constructed along the street for some 50 feet to its outlet in an open ditch, but within a week afterwards it was extended along the strect underground for 50 feet further to a new surface outlet under and adjoining the sidewalk in a sag or hole which was some 15 feet long, 4 or 5 feet wide, and 5 or 6 inches deep; that the school district caused the discharge pipe of its steam boiler to be connected with the drain with the knowledge of the village, through a member of its council; that on the afternoon of December 26, 1905, the janitor in charge of the steam boiler discharged the hot water therein into the drain and the water was thereby collected in the sag hole, the outlet of the drain; and, further, that the steam therefrom enveloped the sidewalk at this point where the children of the plaintiff were then passing, and the youngest one, in trying to escape from the steam, became confused, fell into the hot water, and was seriously scalded on her head, arm, leg, and body. There was also evidence tending to show that on different occasions before the accident hot water had been sent through the drain from the steam boiler-that is, three witnesses severally testified to the effect that they saw steam coming through the cracks in the sidewalk at the first outlet of the drain, each witness testifying to a different occasion, and, further, that the janitor in charge of the heating plant was a licensed engineer, and that from an engineering standpoint the water in the boiler should

have been cooled before drawing it off, and that it was improper to discharge the water when it was hot from the boiler.

It is urged by counsel, in support of their claim that the defendant village upon the undisputed evidence is entitled to judgment absolute in its favor notwithstanding the verdict, that the village officers had a right to rely upon the presumption that the janitor in charge of the heating plant would exercise due care in the use of the drain and would not negligently cause a nuisance on the street; that his negligence was the sole proximate cause of the child's injury; and, further, that there was no evidence tending to show that the village had any notice that the drain would be or had been used for the purpose of discharging hot water from the boiler through the drain. It is true that negligence of a person or party will not be presumed, in the absence of evidence tending to establish it; hence the mere fact that the janitor negligently turned hot water into the drain, which resulted in the injury complained of, would not be sufficient to support a verdict for the plaintiff. The village, however, was charged with the duty of exercising ordinary care to keep its streets in a reasonably safe condition for persons making lawful use thereof, and, having licensed the construction of the drain in one of its most important streets, it was bound to exercise ordinary care, not only as to the construction of the drain, but also as to its use within the street. Upon a consideration of the whole evidence we are of the opinion that the defendant was not entitled to a directed verdict in its favor as a matter of law. It was a question for the jury to determine whether, under all the circumstances disclosed by the evidence, ordinary care was exercised in the premises by the village authorities, some of whom knew that at the head of the drain was a steam boiler and at its outlet was an open sag hole, under and adjacent to the sidewalk of the street, in which either cold or hot water might be accumulated, whereby a nuisance would be created in the street.

The defendant also urges that in any event its motion for a new trial should have been granted for errors in the instructions of the trial court to the jury and for its refusal to give certain requested instructions. It is claimed in this connection that the court erred in submitting to the jury the question whether the village had notice that the drain had in fact been used on different occasions for the purpose of draining hot water from the boiler, or whether the village had notice that the drain was either intended to be used, or might be used, in the ordinary operation of the steam plant, for such purpose. and in instructing the jury that, if the village had such notice, it would be its duty to prevent such use. The objection made to such instructions is that there was no evi

dence which would justify the jury in finding that the village had any notice, actual or constructive, that the drain would or might be used for the purpose of drawing the hot water from the boiler, or that it was ever intended for such purpose. There was evidence tending to show that the village either knew, or might have known by the exercise of ordinary care in looking after the safety of its streets, that the drain, in the manner it was constructed and used, was liable to become a nuisance in the street. It is true that there was no evidence to justify a finding that the drain, when constructed, was intended for the discharge of hot water from the boiler; but, when the entire charge of the court upon the subject of notice to the village is considered as a whole, it is clear that it was free from reversible error, and as favorable to the defendant as it was entitled to.

The defendant requested the trial court to instruct the jury that it would not be the duty of the village officers to make an inspection of private property or of "the method of use of the drain," unless they had knowledge, actual or constructive, of some circumstance or condition or fact that would move a man of ordinary prudence to make an inspection under similar circumstances. This was refused. If the instruction had been limited to the private property of the school district, the request would have been abstractly correct; but the instruction is by its terms applicable either to private property or to the method of using the drain. The duty of inspection as to private property and as to the method of using a drain within the limits of a public street are not the same. It was a question for the jury whether the duty of exercising ordinary care for the safety of the street by the proper municipal authorities required any inspection of the method of using so much of the drain as was a part of the street. The instruction was therefore misleading, and it was properly refused.

The defendant also requested the court to give this instruction: "The village authorities had a right to assume that the janitor or person in charge of the boiler and heating plant in question would properly operate the same, and in discharging, flushing, or washing out the boiler would perform the act in such a manner as not to create a dangerous nuisance in the streets, until they had notice of the fact that it was customarily and usually done in a different manner." This was properly refused. While it is a general rule that negligence cannot be predicated upon the assumption that others upon whom duties are imposed will not exercise due care, yet the court could not, as a matter of law or justice, say to the jury that the village authorities might assume that the janitor would not operate the boiler so as to create a nuisance in the street until "they had no

tice of the fact that it was customarily and usually done in a different manner"; that is, until they had notice of the fact that the negligence of the janitor had been so often repeated as to become his custom or habit. We find no errors in the record which would justify a reversal of the decision of the trial court.

Order affirmed.

COHUES v. FINHOLT. (Supreme Court of Minnesota. May 31, 1907.) 1. TRIAL VERDICT-SUFFICIENCY-CONSTRUOTION.

A verdict is not to be isolated from the pleadings and record before the trial court and read as an abstraction. It must be read and construed by the trial court in the light of the issues made by the pleadings and the record, exclusive of the evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 809-812.] 2. SAME-INFORMALITY.

Although a verdict may be informal, yet it is sufficient if by a reference to the pleadings and record it can be made certain; but, if it cannot, the defect is not cured by the entry of a judgment which is definite and certain on its face.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 783.]

3. EJECTMENT-VERDICT.

Rules applied, and held, that the verdict in this an action of ejectment was sufficient to authorize the trial court to enter judgment there

on.

(Syllabus by the Court.)

Appeal from District Court, Ramsey County; Grier M. Orr and William Louis Kelly, Judges.

Action by H. Cohues against Martin Finholt. Judgment for plaintiff, and defendant appeals. Affirmed.

Harold Harris and C. E. & J. C. Otis, for appellant. R. A. Walsh, for respondent.

START, C. J. The complaint, in this an action of ejectment, alleged that the plaintiff was the owner and entitled to the possession of a tract of land described as follows, namely: Commencing at a point on the southeast corner of lot numbered 30, block numbered 4, Lyton's addition to St. Paul, according to the map and plat thereof on file and of record in the office of the register of deeds of Ramsey county; thence northerly, along the easterly line of the lot, 40 feet; thence westerly, on a line parallel with the southerly line of the lot, 1 foot; thence southerly, on a line parallel with the easterly line of the lot 26 feet; thence easterly, on a line parallel with the southerly line of the lot, 31⁄2 inches; thence southerly, on a line parallel with the said easterly line of the lot, to the northerly line of Sycamore street, being the southerly line of the lot; thence easterly along the southerly line of the lot to the place of beginning—and, further, that the defendant was in possession of the land and