the heirs, the devisees or legatees, and the personal representatives, and the cases decided are therefore eagerly scanned in order that the position of the claimant may be ascertained. Not only are the individual claims to be considered, but they must be scrutinized carefully, because the personal, representative may claim as against the heir or as against the devisee, and the heir may claim against the devisee and vice versa. Growing crops produced by annual labor and cultivation are, for some purposes, a part of the real estate, to which they are attached and until there has been a severance of them from the land, actual or constructive, they follow the title. For other purposes they are regarded as personalty, and do not pass with the land, but go to the planter. After maturity and severance from the soil they are, for all purposes, personal property: Phillips v. Keysaw, 7 Okl. 674, 56 Pac. 695.

A crop growing, the product of annual sowing or planting, falls strictly under the denomination of emblements, and as such passes to the personal representative in the absence of any devise of the land on which it is growing: Mitcham v. Moore, 73 Ala. 542; Kinsman v. Kinsman, 1 Root, 180, 1 Am. Dec. 37; In re Ring's Estate, 132 Iowa, 216, 109 N. W. 710; Hathorn v. Eaton, 70 Me. 219; Penhallow v. Dwight, 7 Mass. 34, 5 Am. Dec. 21; Heard v. Fairbanks, 5 Met. 111, 38 Am. Dec. 394; McGee v. Walker, 106 Mich. 521, 64 N. W. 482; In re Pope's Estate, 83 Neb. 723, 120 N. W. 191; Bradner v. Faulkner, 34 N. Y. 347; In re Kick, 11 N. Y. St. Rep. 688; In re Kupp's Estate, 2 Woodw. Dec. (Pa.) 228; Shofner v. Shofner, 5 Sneed, 94. In Missouri, where the widow has no dower assigned to her, growing crops on her deceased husband's lands go to the executor or administrator, and not to her: Whaley v. Whaley, 51 Mo. 36; Morris v. Thomas, 51 Mo. 159. But as between an executor or administrator and a devisee of land, the latter is entitled to the crops growing thereon at the death of the testator. "Unharvested crops go to a devisee of land, and not to the executor. As against the heirs at law, they go to the executor, but against the devisee, they do not": Dennett v. Hopkinson, 63 Me. 350, 18 Am. Rep. 227; Hathorn v. Eaton, 70 Me. 219; In re Andersen's Estate, 83 Neb. 8, ante, p. 613, 118 N. W. 1108; In re Pope's Estate, 83 Neb. 723, 120 N. W. 191; Bradner v. Franklin, 34 N. Y. 347; Cox v. Godsalve, 6 East, 604, note; West v. Moore, 8 East, 339; Cooper v. Woolfit, 2 Hurl. & N. 122, 26 L. J. Ex. 310, 3 Jur., N. S., 870, 5 W. R. 796. Of course, the devisee's title is subject to the paramount right of creditors to be paid out of the assets of their deceased debtor. The crops on devised lands must, however, be treated as if they were chattels specifically bequeathed to the devisee, and hence cannot be sold for the payment of general legacies, but only for the payment of debts after other assets not specifically bequeathed have been applied: Stall v. Wilbur, 77 N. Y. 158.

Where a father by deed conveyed a farm to his son, but occupied it himself until his death, and worked it jointly with his son, the corn and fodder growing thereon at the death of the father

belonged to his estate, and the administrator was entitled thereto; and the son having taken possession of it, the administrator could recover in trover, the defendant being entitled to no more than his share of the crop: McLaurin v. McColl, 3 Strob. 21.

A verbal agreement was made between a man and one of his sons that the son should take a certain part of the father's land "to the halves." After his father's death the son cut the grass, made it into hay, and placed it in a barn. The administrator inventoried the hay, and divided it. A stranger, having converted to his own use that part which was taken by the administrator, was liable to the administrator, who could successfully maintain an action of trover for the conversion: Foster v. Gorton, 5 Pick. 185; Wilson v. Shearer, 9 Met. 504.

In Mississippi, the right of an administrator to crops growing at the intestate's death can only be exercised in two ways: by obtaining an order of the probate court to sell the crops as they stand or to cultivate and complete them: McCormick v. McCormick, 40 Miss. 760; Farley v. Hord, 45 Miss. 96; Dickey v. Wilkins (Miss.), 17 South. 374; Gordon v. James, 86 Miss. 719, 39 South. 18, 1 L. R. A., N. S., 461.

Where land was devised to certain grandchildren, and the executor was directed to sell all the perishable part of the estate, including among other things, "crops on hand" and all other personal property not otherwise disposed of, a crop growing on the plantation at the death of the testator passed to the grandchildren as devisees, and not the executor: Pratte v. Coffman's Exr., 27 Mo. 424. Under a will in which the land is given to the executors, with discretion to retain it until the debts are paid out of the rents, the lands do not go primarily to the devisees, and the executors have the right to apply the crop to the payment of debts: Tayloe v. Bond, 45 N. C. 5.

The only decision not reconcilable is Shelton v. Shelton, 1 Wash. (Va.) 53, which was, that crops made the year testator died did not pass to the devisees by the word "appurtenances," but went to the surplus of the personal estate and belonged to the executor; and in that case the president of the court of appeals (Pendleton) expressed himself rather of the opinion that the testator intended the crops to go with the devise.

In some states, however, the statutes have controlled the common law, and have made the executor or administrator, and not the devisee, entitled to crops growing on the devised premises at the time of the testator's death, though it is optional with him to complete and gather them: Upchurch v. Norsworthy, 12 Ala. 532; Eubank v. Clark, 78 Ala. 73; Blair v. Murphree, 81 Ala. 454, 2 South. 18; Marx v. Nelms, 95 Ala. 304, 10 South. 551; Wright v. Watson, 96 Ala. 536, 11 South. 634; Cheney v. Roodhouse, 32 Ill. App. 49; Humphrey v. Merritt, 51 Ind. 197; Evans v. Iglehart, 6 Gill & J. 171; Jones v. Jones, 17 N. C. 387; Thomas v. Lines, 83 N. C. 191; Waring v. Purcell, 1 Hill Ch. (S. C.) 193. But an administrator

is not chargeable with crops planted after his intestate's death: Rodman v. Rodman, 54 Ind. 444.

Where a tenant had grain growing at the time of his landlord's death and by his agreement was not entitled to the straw from his rented land, the landlord's widow was entitled to recover from such tenant for a conversion of such straw as matured within "one year from the death of her husband" in accordance with the local statute: Swain v. Bartlow, 62 Ind. 546; Evans v. Iglehart, 6 Gill & J. 171.

As between the devisee of land and the executor, unharvested crops on the lands devised go to the devisee; but, as between the executor and the heirs at law, they go to the executor. It is difficult to reconcile the distinction which has been well called "capricious," but in the main it appears to be that in the testator himself the crop is partly a chattel interest which goes to the executors rather than to the heirs, but to the devisee rather than to the executors, upon the presumption that such was the intention of the testator, though, of course, this presumption is open to rebuttal: Dennett v. Hopkinson, 63 Me. 350, 18 Am. Rep. 227; Shofner v. Shofner, 6 Sneed, 94.

Clover and hay growing on real estate are not emblements, and do not vest in the personal representatives as personal property, inasmuch as they are not the offspring of annual labor and cultivation: Evans v. Iglehart, 6 Gill & J. 171; Kain v. Fisher, 6 N. Y. 597; In re Chamberlain, 140 N. Y. 390, 37 Am. St. Rep. 568, 35 N. E. 602. An administrator has no right to the proceeds of the crops made upon the land of his intestate, previous to the grant of his administration: Upchurch v. Norsworthy, 12 Ala. 532. Where an administrator asserts no authority over a crop, and does nothing toward cultivating or gathering it, but that is all done by the son and only heir of the decedent at his own expense, such crop does not become assets of the decedent's estate, but is the property of the heir by reason of the administrator's laches: Wright v. Watson, 96 Ala. 536, 11 South. 634.

The executor of a tenant for life, dying between the planting and severance of a crop, is entitled to the emblements: Thornton v. Burch, 20 Ga. 791.

Under 5 Statutes at Large, page 111, section 23, South Carolina, the executor was entitled to the crop severed before the last day of December of the year of the testator's death, charged with the maintenance and education of the daughter as required by the will: Gage v. Rogers, 1 Strob. Eq. 370.

Under 1 Revised Statutes, section 2049, South Carolina, declaring that if any person shall die after the first day of March in any year, the crop on the lands which were in the occupation of the deceased shall be assets in the executor's or administrator's hands, subject to debts, legacies, and distribution, the taxes and cultivation of such crop being first paid, the proceeds of the crop are Am. St. Rep., Vol. 131-40

assets in the administrator's hands, to pay for the expenses of the cultivation of such crop and the taxes and obligations contracted in the production of it: Berry v. Berry, 55 S. C. 303, 33 S. E. 363.

But the words "emblements and annual crops," as used in 2 Revised Statutes of Indiana, 1876, page 505, section 34, requiring the administrator to take possession of and inventory "emblements and annual crops, whether severed or not from the land, raised by labor," do not include uncut grass growing in the field. That descends with the land to the heir: Evans v. Hardy, 76 Ind. 527. And as the title to land is in the heirs, all the crops planted and growing after decedent's death belong to them. The administrator is only entitled to those growing at the death of the ancestor: Gregory v. Wilson, 52 Ind. 233; Rodman v. Rodman, 54 Ind. 444; Kidwell v. Kidwell, 84 Ind. 224.

By 2 Revised Statutes of New York, page 82, section 6, subdivision 5, crops growing on the lands of the decedent at the time of his death are assets, and go to the executor or administrator, to be applied and distributed as part of the personal estate of the testator o intestate, and must be included in the inventory. Such crops go primarily to the executor, to be used, if necessary, for the payment of debts and legacies, or, if not necessary for that purpose, they go to the beneficiary under the will: Bradner v. Faulkner, 34 N. Y. 347; Sherman v. Willett, 42 N. Y. 146; Stall v. Wilbur, 77 N. Y. 158. In Ohio crops in the ground go to the administrator, if the intestate die after the 1st of March, and they are gathered before the 1st of December. All other crops go to the heir: Green v. Cutright, Wright, Ohio, 738.

Where a crop was growing at the death of the intestate and harvested afterward, the tenant taking his share, the remainder (the landlord's share) was properly delivered to the heir. It was a rent, payable in kind, and passed with the inheritance, and belonged to the heir rather than the administrator: McDowell v. Addams, 45 Pa. 430.

GREENE v. STATE.

[83 Neb. 84, 119 N. W. 6.]

CONSTITUTIONAL LAW-Penal Statutes Making Acts Criminal When Committed Against Citizens and Residents of the State. Section 3 of the act of March 30, 1901 (Laws 1901, c. 93), contravenes section 15, article 3 of the constitution of the state of Nebraska, which forbids special legislation, as well as section 1 of the fourteenth amendment to the constitution of the United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws, in that the acts thereby prohibited are made criminal only when committed against citizens or residents of the state of Nebraska. (p. 628.)

CONSTITUTIONAL LAW-Party Whose Rights are not Affected, When may Question the Constitutionality of a Statute.-The rule that a court will not listen to an objection made to the constitutionality of a law by a party whose rights it does not affect is inapplicable to a case where the vice of the law consists in an unwarranted discrimination between the individuals, against whom the aggression thereby forbidden is committed. (p. 628.)

(Syllabi by the court.)

Greene & Greene, L. C. Burr, H. F. Rose and T. J. Doyle, for the plaintiff in error.

William T. Thompson, attorney general, Grant G. Martin and Frank M. Tyrrell, contra.

85 CALKINS, C. The plaintiff in error, hereinafter called the defendant, was indicted with his alleged partner for a violation of the provisions of section 3 of the act of 1901: Laws 1901, c. 93; Criminal Code, sec. 46d. It was charged that the defendants, who were alleged to be attorneys at law, conspired together to sue a large number of saloonkeepers just prior to the time of issuing of licenses; that the defendants would then threaten to file remonstrances against the issuing of such licenses, and by means of such threats obtain money from such saloon-keepers. This defendant demanded a separate trial, which was granted; and the state elected to proceed against him upon the charge of extorting one hundred and fifty dollars from one Clyde Lester. There was a verdict of guilty, and a judgment that the defendant pay a fine of two hundred dollars, from which he prosecutes error to this court.

1. Section 3 of the act of 1901 is as follows: "Any person or persons who shall by threats, intimidation, coercion, extortion, injunction, conspiracy, deception or subterfuge, obtain, or seek to obtain, money or other valuable consideration, or shall cause the same to be done directly or indirectly, from any citizen or resident of this state, or compel them to perform any act not consistent with common law or equity, or who shall by such threats, coercion, intimidation, extortion, injunction, conspiracy, deception or subterfuge, induce any citizen or resident of the state of Nebraska to surrender anything of value or relinquish any right, guaranteed by the laws of Nebraska, in consideration of the withdrawal of said threats, coercion, intimidation, extortion, injunction, conspiracy, deception or subterfuge, shall be deemed guilty of blackmail, and upon conviction thereof shall be confined in the penitentiary for not more than three years nor less than one year, 'or be fined not less than two hundred ($200)