STATUTE OF FRAUDS-PAROL SALE OF LAND-
BREACH-RECOVERY FOR IMPROVEMENTS.-A purchaser of
real estate by parol may have compensation for improvements
placed on the land, but damages cannot be recovered for the non-
performance of such a contract. (Jordan v. Greensboro Furnace
Co., 644.)
See Insurance, 8, 9; Specific Performance, 1-3.
See Arrest; False Imprisonment, 1-3; Interest, 1-3.
WATERS AND WATERCOURSES.
1. WATERS AND WATERCOURSES.-NAVIGABLE RIVERS
ARE PUBLIC HIGHWAYS, subject to public use, and the right of
passage over them extends to all parts of their channels, and any
obstruction thereof is a public nuisance. (Pascagoula Boom Co. v.
Dixon, 537.)
2. WATERS AND WATERCOURSES OBSTRUCTION-IN-
JUNCTION.-Booms for logs which prevent the speedy passage of
rafts and logs down a navigable stream must have legislative
warrant for their construction. Otherwise they are a nuisance, and
their construction may be enjoined by a person suffering special
damage. (Pascagoula Boom Co. v. Dixon, 537.)
WATERS-DEFINITION.-"RELICTION" is the term applied
to land made by the recession of the water by which it was pre-
viously covered. (Hammond v. Shepard, 274.)
4. WATERS-RELICTION-OWNERSHIP.-If an addition to
land, by reliction, takes place suddenly and sensibly, the ownership
remains according to former boundaries; but if it is made gradually
and imperceptibly, the derelict or dry land belongs to the riparian
owner from whose shore or bank the water has receded. (Hammond
v. Shepard, 274.)
5. WATERS.-SHORE OWNERS ON MEANDERED LAKES,
whether navigable or non-navigable, take title only to the water's
edge as title to the bed of such lakes is in the state. (Hammond v.
Shepard, 274.)
6. WATERS-ACCRETION, OR RELICTION-APPORTION-
MENT.-To take land by accretion or reliction, a shore owner on
a meandered lake must make it appear that the addition to his
shore was made by slow and imperceptible processes; and if two
or more persons own the shore from which the water has receded,
the new land must be apportioned between them according to the
extent of their shore line. (Hammond v. Shepard, 274.)
7. WATERS-MEANDERED LAKES-RELICTION-DEPRIV-
ING THE STATE OF TITLE.-No shore owner on a meandered
lake can deprive the state of its title to the former bed thereof
without establishing, by proof, that the dry land was formed by the
water receding from his shore line, whether it took place suddenly
or gradually. (Hammond v. Shepard, 274.)
1. WILLS-CONSTRUCTION-REPUGNANT
If an estate in fee is devised, and the testator attempts by a con-
dition in the will to prevent its alienation except by will, the estate
passes in fee to the devisee free of such condition, as well as free
of a condition in the will against liability for the devisee's debts.
Such conditions are repugnant to the estate granted and void.
(Kaufman v. Burgert, 813.)
2. WILLS-RESIDUARY CLAUSE-CONSTRUCTION OF-IN-
TENTION OF TESTATOR.-In Ohio, there is no distinction made
between the effect of a residuary clause in a will with respect
to void and lapsed devises of realty and such bequests of person-
alty, because, in that state, both real and personal property, of
which no disposition is made by will, go to the next of kin. Hence,
in all cases, the intention of the testator must control, which is
to be ascertained from his situation at the time of the execution
of the will and from a consideration of all of its provisions. (Davis
v. Davis, 725.)
3.
CLAUSE CONSTRUCTION OF-
VOID AND LAPSED LEGACIES.-There can be no proper appli-
cation of the rule that a residuary clause carries all the estate
of the testator not otherwise lawfully disposed of by the will, in-
cluding void and lapsed legacies, when a different intention may
be fairly drawn from all the provisions of the will. (Davis v. Davis,
725.)
4. WILLS RESIDUARY CLAUSE-HOW CONSTRUED, IF
IT HAS TWO APPLICATIONS.-If the language of a testator,
In the residuary clause of his will, admits of a limited application,
as well as one of a more general character, it should be given that
construction most favorable to the heir at law. (Davis v. Davis,
725.)
5. WILLS-RESIDUARY CLAUSE - VOID CHARITABLE
BEQUESTS ARE SUBJECT TO STATUTES OF DESCENT.-
When the residuary clause of a will, which does not purport to
dispose of the general residuum of the testator's property, provides
that "the balance" of a particular fund, derived from certain
specified sources, shall, after the payment of debts, and certain
charitable legacies, which have become void from the happening
of an unexpected event, be divided among persons named, that
"balance" is only what is left after taking from the fund the
amount of the charitable bequests. Hence, the amount of the char-
itable legacies does not pass under the residuary clause, but goes
to the heirs, under the statutes of descent and distribution, as un-
disposed of property. (Davis v. Davis, 725.)
6. WILLS-CHARITABLE REQUESTS OR DEVISES-STAT-
UTE INVALIDATING-OBJECT AND EFFECT OF.-A statute
which invalidates a legacy or devise to any benevolent, religious,
educational, or charitable purpose, where the testator dies, leaving
children or an adopted child, unless the will was executed, accord-
ing to law, at least one year prior to the decease of the testator,
is designed for the special protection of the children or adopted
child of the testator and their representatives, though it inures also
to the benefit of the collateral heir when the lineal heir survives the
testator and then dies. (Davis v. Davis, 725.)
7. WILLS.-DELUSIONS on the part of a testatrix, though
without foundation, that her sons had defrauded her are not suffi-
cient ground to set aside her will passing over such sons. They
still have the burden of proof to show not only that the testatrix
was laboring under such delusions at the time she made the will,
but also that the will was the result of such delusions, before a
court is justified in setting aside the will therefor. (Hemingway's
Estate, 815.)
8. WILLS-DELUSIONS.—An unfounded delusion on the part of
a testatrix that her sons had defrauded her is not sufficient ground
to set aside her will excluding them, if it appears that the testatrix
before her death sought a reconciliation with her sons, but that
they neglected her, of which she complained to others. (Heming-
way's Estate, 815.)
9. WILLS-PROOF OF-SECONDARY
original will cannot, for any cause, be produced in court, its exe
cution and contents may be proved by secondary evidence, and it
may be admitted to probate on such evidence. (Pratt v. Hargreaves,
551.)
10. WILLS-PROOF OF-SECONDARY EVIDENCE.-If a per-
son while domiciled in one state makes what is termed by the law
of that state a valid nuncupative will by notarial act, and by such
law made a public record not to be taken out of the state, and
such person subsequently removes to, becomes a citizen of, and
dies in another state, the will may be admitted to probate in the
latter state upon the production and presentation of a duly au-
thenticated copy thereof from the records of such other state.
(Pratt v. Hargreaves, 551.)
WILL-REVOCATION-REMOVAL OF TESTATOR.—If a
valid will is made in one state, the removal of the testator to an-
other state, and his becoming domiciled therein, do not revoke the
will. (Pratt v. Hargreaves, 551.)
12. WILLS-ESTOPPEL TO CONTEST-RETURN OF BENE-
FITS.-A legatee under a will who accepts a legacy in ignorance of
his rights in the premises may, upon the discovery of such rights,
and upon the return or offer to return what he has received under
the will, proceed to contest its validity and to assert his rights in
the estate under the law. (Medill v. Snyder, 307.)
WILLS-CONTEST-FINDINGS OF TRIAL COURT CON-
CLUSIVE.—The credibility of witnesses and the probative force
of the facts as to testamentary incapacity in a contest of a will are
for the determination of the trial court, and if it appears that there
was legal evidence to support such court's findings, the question is
not open to further consideration on appeal. (Medill v. Snyder, 307.)
14. WILLS-CONTEST-FINDINGS OF JURY.-In an action
contesting the validity of a will, the court may call a jury, and may
accept or adopt its findings in whole or in part, or it may ignore
them and upon independent consideration of the evidence make
findings of its own. If the latter course is pursued and judgment
rendered accordingly, the errors of the jury become immaterial.
(Medill v. Snyder, 307.)
See Deed, 2; Descent; Executors and Administrators.
1. WITNESSES-COMPETENCY OF CHILD.-When a witness
is called, and it is objected that by reason of insanity or youthful.
ness he does not understand the nature of the oath, and is therefore
incompetent, it is the duty of the judge to examine into the question
of his competency, and to reject him unless he is satisfied he is com-
petent. (Commonwealth v. Reagan, 496.)
2. WITNESSES EVIDENCE TO SUPPORT CHARACTER.-If
a witness is assailed on cross-examination by questions calculated
to impeach his veracity and question his truthfulness, he may intro-
duce evidence to sustain his general character. (Warfield v. Rail-
road, 911.)
3. WITNESSES EXPERT - QUALIFYING VALUE OF
LAND.-Ordinarily, the proper way to qualify one as a witness to
value of property, is to show that he is familiar with sales of simi-
lar property and the prices paid therefor. (Cochrane v. Common-
wealth, 491.)
EVIDENCE.-OPINIONS OR CONCLUSIONS drawn from
the statements of third persons, and not being those of an expert
upon a proper subject for expert testimony, are inadmissible as
original evidence for either party, and cannot be made the basis
for impeaching a witness; but the answer in respect thereto, if
permitted, is conclusive upon the party calling for it. (Brown v.
Odill, 914.)
5. EVIDENCE.—HYPOTHETICAL QUESTIONS may be based
upon any assumption of facts which the testimony tends to prove,
according to the theory of the examining counsel. (Medill v. Snyder,
807.)
See Evidence; Marriage and Divorce, 11.
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