2. The second question is whether or not an injunction will lie under the circumstances. It is elementary that equity will grant that relief to prevent a threatened trespass, especially where there can be no adequate pecuniary compensation, because it would be diffcult or impossible to ascertain the damage resulting from such an act, and where otherwise a multiplicity of suits cannot be prevented: 1 High on 392 Injunetions, 4th ed., 697; 27 Century Digest, "Injunction," sec. 86, cols. 1626, 1627, sec. 101, col. 1663. There has been a material modification in such cases of the requirements that the injury should be irreparable and the legal remedy inadequate. The tendency of American authorities is to extend the application of the remedy, and to grant it "in many instances and under many circumstances where Chancellor Kent would probably have refused to interfere": 3 Pomeroy's Equity Jurisprudence, 1357. In cases of continuing trespass "there can be no question that by all the better class of authorities he [the land owner] is entitled to an injunction, even though the damages are merely nominal in a pecuniary point of view": Wood on Nuisance, 3d ed., p. 1156, sec. 789. On general principles, accordingly, and in view of the specific rule of this court in the duck pass cases (Lamprey v. Danz, 86 Minn. 317, 90 N. W. 578; L. Realty Co. v. Johnson, 92 Minn. 363, 104 Am. St. Rep. 677, 100 N. W. 94, 66 L. R. A. 439), there can be no doubt as to the propriety of granting an injunction in such a case as is here presented.

3. The remaining question concerns the propriety of the exclusion by the trial court of testimony tending to show that the defendants were acting from "unmixed malice." We think that in this case, which involves the express findings of the court, the plaintiff was entitled to an injunction from danger of trespass. But he was called upon to face the contention that the proposed blinds were not three hundred and twenty-five feet from the land, as the court found, but six hundred feet from his land, as the defendants' evidence tended to prove. Plaintiff accordingly found it desirable or necessary to show that the defendants' proposed act was malicious, would constitute a nuisance, or would make the use of his own property imminently dangerous. He should have been allowed to show everything relevant under his pleadings reasonably tending to entitle him to an injunction. He was entitled to invoke the general principle that "intentionally to do that which is calculated in the ordinary course of events

to damage, and which does, in fact damage, another, in that other person's property or trade, is actionable, if done without just cause or excuse': Bowen, L. J., in Mogul v. McGregor, L. R. 23 Q. B. D. 598, [1892] App. Cas. 25. And see Walker v. Cronin, 107 Mass. 555.

Plaintiff has cited us, in this connection, to cases which tend more or less to apply this general principle to this particular class of cases, 393 namely: Young v. Hichens, 6 Q. B. 606 (disturbance of nets and waters by rival fishermen); Keeble v. Hickeringill, 11 East, 574 (willful discharge of guns on defendant's own land to drive away wild fowl from plaintiff's decoy pond); Ibbotson v. Peat, 34 L. J. Ex. 118 (similiter); Carrington v. Taylor, 11 East, 571 (similiter). We do not here determine that plaintiff could make out a specific cause of action under this somewhat general principle. That question should be determined only upon a record which would fairly present the relevant testimony.

Order reversed.

Any Wrongful Intrusion upon the Right is both an injury and a damage, and is a proper subject for legal redress: Diana Shooting Club v. Lamoreux, 114 Wis. 44, 91 Am. St. Rep. 898. A person who extends his arm over a division fence into the premises of another is a trespasser, though his body remains on his side of the fence: Hannabalson v. Sessions, 116 Iowa, 457, 93 Am. St. Rep. 250.

Injunctions Against Hunting and other trespasses on land are considered in the note to Moore v. Halliday, 99 Am. St. Rep. 751; L. Realty Co. v. Johnson, 92 Minn. 363, 104 Am. St. Rep. 677.

APPLEBY v. APPLEBY.

[100 Minn. 408, 111 N. W. 305.]

CONTRACTS in Restraint of marriage, or which tend to bring about a separation of husband and wife, are opposed to public policy and utterly void. (p. 716.)

MARRIAGE-Antenuptial Contracts.-An antenuptial contract providing that, in consideration of the contemplated marriage, and the release and relinquishment by the intended husband of all his rights and interests in the property of his intended wife, she agrees to provide from her estate, after her death, an annual income to him so long as he should remain unmarried, is not in restraint of marriage, but only a limitation on the duration of the income at the election of the husband, and is therefore valid. (p. 716.)

MARRIAGE-Antenuptial Contracts.-An Antenuptial Contract providing that, in consideration of the contemplated marriage, and the release and relinquishment by the intended husband of all his rights and interests in the property of his intended wife, she agrees to provide, from her estate, an annual income to him so long as he shall remain unmarried, provided the parties were, at the time of the death of the wife, living and cohabiting together as husband and wife, does not tend to induce a separation between husband and wife, and is therefore valid. (p. 722.)

MARRIAGE - Antenuptial

Contracts Consideration.— An

agreement to marry is a sufficient consideration to support an antenuptial contract definitely fixing the property rights of the parties. (p. 724.)

MARRIAGE

- Antenuptial Contracts Consideration.— Although an original engagement to marry is absolute and entered into some months before the execution of an antenuptial contract between the parties, the agreement to marry remains as a sufficient consideration to support such contract. (p. 724.)

MARRIAGE.-Antenuptial Contract cutting off the homestead right of the husband and his statutory one-third interest in his wife's property is valid. (p. 725.)

MARRIAGE.-Antenuptial Contracts in anticipation of marriage, equitably and fairly entered into, exclude the operation of law in respect to the property rights, so that so far as the contract extends, it, and not the law, furnishes the measure of such rights. (p. 725.)

MARRIAGE—Antenuptial Contracts.—A valid antenuptial contract respecting the property rights of the parties fully performed by one of them after the marriage and before her death, will not be declared void at the instance of the surviving husband merely because one of the provisions of the contract might be so construed as to have justified the one performing in adopting a course before her death that would have rendered the contract inoperative. (p. 726.)

MARRIAGE-Antenuptial Contracts-Wills.-A valid antenuptial contract definitely settling the property rights of the parties so far as the husband is concerned is a sufficient assent on his part to the provisions of the will of his wife, disposing of the remainder of her property in trust to a charity, especially when the terms of the will are in substantial compliance with the contract. (p. 726.)

MARRIAGE-Antenuptial Contracts-Wills.—If an antenuptial contract in favor of the contemplated husband definitely settling the property rights of the parties is fully performed after the marriage, the wife has the right to dispose of the remainder of her property by will in trust for a charity, and in so doing she does not violate the statutes against uses, and trusts. (p. 727.)

WILLS-Equitable Election.-If a testatrix devises to her husband certain property constituting the homestead of her mother, if at the time of the death of such testatrix she herself is the owner thereof, and then makes certain bequests to her mother which are accepted and received by the latter upon the death of the testatrix, the doctrine of equitable election does not apply against the mother, and the husband does not take the homestead under the will. (p. 728.) WILLS-Lapsed Legacies.-If a will provides for an annual allowance for the care and maintenance of property so long as it

shall be rightfully occupied by a person, who, under the will, is to take it upon the happening of a certain contingency, and such contingency does not happen, such provision of the will lapses and becomes inoperative. (p. 729.)

T. D. O'Brien, A. E. Clark and H. Richardson, for the appellants.

F. B. Kellogg, C. A. Severance and R. E. Olds, for the respondents.

414 BROWN, J. Cornelia Day Wilder Appleby died in January, 1903, leaving what purported to be her last will and testament. It was presented to the probate court of Ramsey county for allowance, was duly proved and allowed, and a final decree of distribution of her estate entered in accordance with its terms and provisions. Dr. T. E. W. Villiers Appleby, her surviving husband, appealed therefrom to the district court where the decree of the probate court was in all substantial respects affirmed. He then appealed to this court from an order of that court denying his motion for a new trial.

Amherst H. Wilder, with his wife, Fannie S. Wilder, and daughter, Cornelia Day Wilder, an only child, resided for many years in the city of St. Paul, where in numerous business enterprises he accumulated what would constitute, outside of modern railroad financiering, a vast fortune, aggregating over two million dollars. He determined in his lifetime to provide at his death from a large portion of his wealth a perpetual fund for the benefit of the worthy poor of St. Paul. To that end he created by his last will and testament the "Amherst H. Wilder Charity" and amply provided for carrying out his wishes in this respect. That his wife and daughter fully concurred and co-operated with him in his benevolent purposes is evidenced by the provisions contained in the last will of each. The will of Mr. Wilder, and that of his wife, Fannie S. Wilder, were before us in the case of Watkins v. Bigelow, 93 Minn. 210, 100 N. W. 1104, where the will of Mrs. Wilder, supplementing that of her husband, was construed and upheld. The will of Mr. Wilder, and also that of his wife, made numerous minor provisions to various persons, provided fully for the daughter, and left a large portion of the residue of their estate to the charity thereby created 415 and provided for. Reference is here made to the opinion in the former case for a full statement of the facts relative to those wills and the charity thus established. In 1896 Miss Wilder and Dr. Appleby be

came engaged to be married to each other, pursuant to which they were married in May, 1897, and continued thereafter to live and cohabit together as husband and wife until the time of her death on January 20, 1903. Prior to their marriage, in May, 1896, they entered into an antenuptial contract, the material portions of which are as follows:

"Whereas, it is agreed by and between the parties hereto, Cornelia Day Wilder, also called herein party of the first part, and T. E. W. Villiers Appleby, also called herein party of the second part, each of St. Paul, Minnesota, each of full age, that a marriage is shortly to be had and solemnized between the parties hereto; and

"Whereas, said party of the first part now has in her own name and right, and there is also held for her in trust under the last will of her father, Amherst H. Wilder, late of said St. Paul, a large amount of property, real and personal, and she expects to have and acquire hereafter from time to time a large amount of property; and

"Whereas, under the last will of her father a large amount of property is held in trust for any child or children born to said Cornelia Day Wilder, her surviving, and the parties hereto desire by this antenuptial agreement to arrange, and do hereby arrange, as to all and every part of the present and future property of every kind and character of said Cornelia Day Wilder, and of any child or children born to said Cornelia Day Wilder, who may her survive, and then die without becoming of full age, issue of said intended marriage:

"Now, in consideration of the premises and in consideration of one dollar to said party of the second part paid by said party of the first part at the time of making this instrument, and other good and satisfactory consideration received by said party of the second part from said party of the first part, the receipt of which said party of the second part hereby acknowledges, it is agreed by and between the parties hereto that said party of the first part shall at all times and on all occasions have full right, 416 liberty, and authority, and as fully and in all respects the same as she would have if not married, to use, enjoy, manage, convey, mortgage, grant, alienate, and dispose of all and every part of her present and also of her future property and estate, of every kind and character, including, also, the right and power to dispose of same, and all and every part of same, by last will and testament, all and each and every part thereof as she shall from time to time deem fit and proper.