See Negligence, 134, 135.
See Deeds, 177; Descent and Distribution: Executors and Administrators; Guardian and Ward, 58; Limitation of Actions, 72; Public Lands, 174; Trial, 350; Trusts, 97, 110; Witnesses, 149.
proof sufficient to induce conviction, trial court properly refused to submit such questions to jury. Spradlin v. Adams, 207 S. W. 471.
324(1) (Mo.) Whether there is any sub- stantial evidence tending to prove grounds of contest is question of law.-Sanford v. Holland, 207 S. W. 818.
324(2) (Ky.) In probate proceedings, due execution of testator's fourth will having been satisfactorily proved, and evidence on question of testamentary incapacity being conflicting, question of his sanity or insanity was for jury. -Spradlin v. Adams, 207 S. W. 471.
324(2) (Tex.Civ.App.) Evidence relied upon by contestant held insufficient to raise issue for jury as to testatrix's want of capacity to make will in question.--Daley v. Whitacre, 207 S. W. 350.
II. TESTAMENTARY CAPACITY. 50 (Mo.) Testator, with mind enough to understand ordinary affairs and kind and ex- tent of his property, the natural objects of his bounty, and that he is giving property to devi- sees mentioned in manner stated, is capable of making a will.-Sanford v. Holland, 207 S. W. 324(3) (Tex.Civ.App.) Evidence relied upon 818. by contestant held insufficient to raise issue for jury as to undue influence.-Daley v. Whit- acre, 207 S. W. 350.
52(1) (Ky.) Where due execution of paper offered for probate as will is proved, and paper is not irrational in its provisions, or inconsist-327 (Mo.) On will contest, where only ent in its structure, language, or details, with conclusion from evidence is that testator pos- sanity of testator, burden of showing his in- sessed every qualification to enable him to sanity shifts to contestants.-Spradlin v. Ad- make valid disposition of his property, trial ams, 207 S. W. 471. court properly directed verdict upholding the will.-Sanford v. Holland, 207 S. W. 818.
52(1) (Mo.) After formal proof of execu- tion and of testator's sanity contestant has burden of adducing substantial evidence to sup- port allegation of testamentary incapacity.— Sanford v. Holland, 207 S. W. 818.
55(1) (Mo.) Evidence held insufficient to afford an inference that testator did not pos- sess testamentary capacity.-Sanford v. Hol- land, 207 S. W. 818.
IV. REQUISITES AND VALIDITY. (A) Nature and Essentials of Testmentary Dispositions.
88(4) (Tex. Civ.App.) When the grantor in a deed reserves control of the deed or right to dispose of the property during his life, or a deed is deposited with a third party, but un- der control of the grantor, and not to take ef- fect until after his death, such control renders the instrument testamentary in character, with the right of revocation in the grantor.-Eckert v. Stewart, 207 S. W. 317.
(F) Mistake, Undue Influence, and Fraud. 163(1) (Mo.) On contest of a will for un- due influence, contestant is required, in first instance, to assume full burden of proof of allegation.-Sanford v. Holland, 207 S. W.
440 (Ky.) The written language of a will is the best evidence of its meaning, and testa- tor's intention must be gathered from the will. -Williams v. Williams, 207 S. W. 468.
481 (Tenn.) Will does not take effect un- til death of testator.-Ford v. Cottrell, 207 S. W. 734.
488 (Ky.) Extrinsic evidence may be em- ployed to ascertain a testator's intention only where there are ambiguous terms or clauses in the will.-Williams v. Williams, 207 S. W. 468.
Where a will contains ambiguous terms, tes- tator's motives, the purpose of the will, the na- ture and extent of the property, and the rela- tions between testator and devisees, may be looked to in construing testator's intention.-Id.
490 (Ky.) In construing a will devising a hallway, the facts and circumstances of the property as to its extent, use, and manner of use, its necessity, and appurtenancy to build- ings, may be proven to identify the property devised.-Williams v. Williams, 207 S. W. 468. (D) Description of Property.
163(7) (Mo.) Offices of affection and inter- est or business services rendered testator by his wife held not predicates of undue influ- ence, casting on her and others, upholding will, on contest by grandson, any burden to show will was not result of undue influence.-San-561(1) (Ky.) Where two buildings owned by ford v. Holland, 207 S. W. 818.
(G) Revocation and Revival.
183 (Ky.) Testator's third will, executed after divorce from his wife, marriage to whom had revoked first will, revived by second will, held to revoke second will only in so far as making provision for divorced wife, not in so far as reviving first will.-Spradlin v. Adams, 207 S. W. 471.
199 (Ky.) Testator's second will, properly executed, which not only recognized, but de- clared the validity of, a former will, revoked by marriage, and then devised other property not mentioned in such former will, held a "cod- icil," reviving former will, under Ky. St. § 4834.-Spradlin v. Adams, 207 S. W. 471.
V. PROBATE, ESTABLISHMENT, AND ANNULMENT.
(I) Hearing or Trial. 324(1) (Ky.) In probate proceedings, where evidence on questions of undue influence and in- sane aversion was sufficient merely to excite suspicion, and did not carry with it quality of
testator had a common hallway between them, and testator had erected a board fence dividing the property and rented the buildings in ac- cordance therewith for many years, under a de- vise of one building to each son, the hallway to be used jointly, or if both buildings were de- stroyed the ground covered thereby to be di- vided equally, the line established by testator controlled as to the property devised to each of the sons.-Williams v. Williams, 207 S. W. 468.
VII. RIGHTS AND LIABILITIES OF DEVISEES AND LEGATEES. (A) Nature of Title and Rights in Gen-
732 (2) (Tenn.) A general legacy of a cer- tain amount of money cannot be paid out of proceeds from undevised real estate, unless there is an intention to do so expressly de- clared or clearly inferred from the language of the will.-Ford v. Cottrell, 207 S. W. 734.
Under will providing for payment of debts and personal expenses and of several general pecuniary legacies, held, that there was no in- tention plainly expressed and reasonably im-
For cases in Dec.Dig. & Am. Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER plied that legacies should be provided for oth-154 (Mo.App.) In action on contract enter- erwise than from personal estate, so that court ed into by plaintiff and an attorney on behalf erred in holding that realty as to which tes- of railroad, plaintiff's testimony as to making tatrix died intestate was subject to payment of contract with such attorney was inadmissi- of such legacies.-Id. ble, where attorney had died prior to commence- ment of action; he being the agent of the cor- poration, and his death disqualifying the surviv- ing party.-Wilson v. Schaff, 207 S. W. 845. 159(7) (Mo.) In a son's suit against the executor of his father's estate to recover street railway bonds, testimony of a daughter as to explanations made by her father when, in her presence, he opened his safety deposit box, tore up the envelope indorsed as the property of the son containing the bonds and threw it away, held incompetent.-Harding v. St. Louis Union Trust Co., 207 S. W. 68.
732(6) (Tenn.) Where specific legacies are consumed by payment of debts, legatees are en- titled by way of subrogation to the rights of creditors to go upon the undevised real estate for reimbursement to the extent that the person- alty specifically bequeathed was encroached up- on or consumed.-Ford v. Cottrell, 207 S. W.
(B) Specific, Demonstrative, and General Devises and Bequests.
755 (Tenn.) Under will bequeathing to a sister the rents of a house and lot during her natural life, house and lot to be sold at sister's death and proceeds given to an orphans' home, the legacy to the home was not "demonstrative,' but "specific."-Ford v. Cottrell, 207 S. W. 734.255(9) (Ark.) Under Kirby's Dig. §§ 2195,
(C) Advancements, Ademption, Satisfac-
771 (Tenn.) There being an ademption of legacies by testatrix's sale of house and lot in her lifetime, the proceeds constitute a part of general personal estate, and should, along with other personalty, be applied to payment of debts and general legacies under the terms of the will. -Ford v. Cottrell, 207 S. W. 734.
(H) Vold, Lapsed, and Forfeited Devises and Bequests, and Property and Interests Undisposed of.
852 (Tenn.) Since, under will bequeathing to a sister rents of a house and lot during her natural life, house and lot to be sold at sister's death and proceeds given to an orphan's home, a sale of the house and lot during testatrix's lifetime worked an "ademption" as to sister, it also worked an ademption as to the home; the legacy to the sister taking precedence and prior- ity in time and right to that of the home.-Ford v. Cottrell, 207 S. W. 734.
(A) Taking Testimony in General.
2196, minutes of the testimony before the grand jury cannot be used as original evidence to show witness' contradictory statements made before the grand jury, but can only be us- ed to refresh the memory of members of the grand jury who might be called as witnesses on the issue.-Lind v. State, 207 S. W. 47. (B) Cross-Examination and Re-examina-
268(1) (Mo.) Cross-examination should be in conformity with well-recognized rules of evi- dence, have a reasonable limit as to nature of inquiry, and tend to throw light upon witness' attitude upon the subject under investigation.-- State v. Stegner, 207 S. W. 826.
270(2) (Mo.App.) In action for the purchase price of a boiler, defendant contractor setting up breach of warranty, there was no error in sustaining an objection to the question on cross- examination of plaintiff as to what the owner of the building had said to him about it.-Wil- liam Wurdack Electric Mfg. Co. v. Elliott & Barry Engineering Co., 207 S. W. 877.
866 (Tenn.) Where will providing for pay-275(5) (Ark.) In action involving damage ment of debts and for a number of general pe- to rice crop, where defendant had testified to cuniary legacies contained no residuary clause improper cultivation by plaintiff, it was proper and made no mention of real estate in question, to cross-examine him as to crops on similar testator died intestate as to such realty and it lands similarly cultivated.-Prange v. Young, descended to her sole heir at law.-Ford v. Cott- 207 S. W. 445. rell, 207 S. W. 734.
See Appeal and Error, 205, 837, 1048, 1058; Continuance, 26; Criminal Law, 393, 486, 491, 597, 742, 785, 1043, 1044, 1153, 1166, 1170; Depositions; Evidence; Grand Jury, 37; Insurance, 574; Jury, 34; Perjury, 37; Process, 149; Trial, 140.
277(4) (Mo.) In a prosecution for man- slaughter under Rev. St. 1909, § 4458, where witness for state testified that he paid accused for performing the illegal operation, an inquiry, on cross-examination of accused, as to why she had received the money, was a material matter and prejudicial under Rev. St. 1909, § 5243; there being nothing in accused's examination in chief to authorize the inquiry.-State v. Dinkel- kamp, 207 S. W. 770.
IV. CREDIBILITY, IMPEACHMENT, CONTRADICTION, AND COR-
ROBORATION.
(A) In General.
(C) Testimony of Parties or Persons In- terested, for or against Representa- tives, Survivors, or Successors in Title or Interest of Persons Deceased or In-318 (Ark.) In prosecution for assault with competent.
149(2) (Mo.App.) In suit by administrator to recover for breach of written contract, whereby defendant guaranteed to repurchase from deceased certain shares of capital stock, court properly ruled, in view of Rev. St. 1909, § 6354, relating to cases where administrator is a party, that defendant was incompetent to testify that deceased made no demand.-Grass- muck v. Ehrler, 207 S. W. 287.
149(2) (Tex.Com.App.) In trespass to try title by the heirs of the owner against the widow's devisees, plaintiff's testimony as to conversations with widow were not inadmissible under Rev. St. 1911, art. 3690; her executors not being necessary parties to the suit, and the inhibition of the statute merely applying to per- sonal representatives or heirs.-Stiles v. Haw- kins, 207 S. W. 89.
intent to rape, it was not competent for de- fendant to introduce testimony of specific in- stances of immoral conduct for the purpose of impeaching the character of prosecutrix or her general reputation for truth and morality, and such testimony could not be made the basis for the introduction of testimony supporting her general reputation, in view of Kirby's Dig. § 3140, making evidence of a witness' good char- acter inadmissible until his general reputation has been impeached.-Lockett v. State, 207 S. W. 55.
While credibility of a witness may be im- peached by proof on cross-examination of specific instances of immorality, or by proof of contradictory statements, such evidence does not justify the introduction of proof of good character in support of the witness, in view of Kirby's Dig. § 3140, declaring that such proof
is inadmissible until general reputation has been impeached.-Id.
318 (Tex.Civ.App.) In absence of evidence impeaching credibility of a witness, testimony of former declarations of the witness in sup- port of his testimony is never admissible. Providence-Washington Ins. Co. v. Owens, 207 S. W. 666.
319 (Mo.) Testimony, to affect the credibil- ity of a witness in a criminal case, is admissible only as to matters material and relevant to the issue.-State v. Dinkelkamp, 207 S. W. 770.
321 (Tex.Civ.App.) Party offering deposi- tions in evidence vouches for credibility of the witness. Providence-Washington Ins. Co. v. Owens, 207 S. W. 666.
(B) Character and Conduct of Witness. 344 (2) (Ark.) In prosecution for assault with intent to rape, it was not competent for defendant to introduce testimony of specific in- stances of immoral conduct for the purpose of impeaching the character of prosecutrix or her general reputation for truth and morality.
Lockett v. State, 207 S. W. 55.
Credibility of a witness may be impeached by proof on cross-examination of specific instanc- es of immorality.-Id.
grand jury who might be called as witnesses on the issue.-Lind v. State, 207 S. W. 47.
395 (Tex.Civ.App.) That testimony of plain- tiff's witness as to defendant's defamatory state- ments was impeached by cross-examination as to inconsistent testimony given in former depo- sition did not justify admission of testimony by plaintiff and other witnesses that witness had told them that defendant had made such state- ments.-Providence-Washington Ins. Co. v. Ow. ens. 207 S. W. 666.
Where effort is made to impeach witness by evidence of declarations inconsistent with his testimony tending to prove testimony a fabrica- tion by reason of some influence existing at time of trial, evidence of declarations of witness cor- roborative of testimony made at a time when no such influence existed is admissible.-Id.
396(1) (Tex.Civ.App.) Plaintiff, after hav- ing offered in evidence both first and second deposition of same witness, could not explain the conflict between testimony contained in first with that contained in second by evidence as Providence-Washington Ins. Co. v. Owens, 207 to prior unsworn statements of the witness.-- S. W. 666.
(E) Contradiction and Corroboration of Witness.
361(1) (Mo.) In prosecution for having car- nal knowledge of a female between the ages of 15 and 18 years, contrary to Rev. St. 1909, $398(3) (Mo.App.) Where, on cross-examina- 4472, as amended by Laws 1913, p. 219, evi- dence offered by defendant of specified acts of prior intercourse on the part of prosecutrix, having effect of impeaching prosecutrix as a witness, the state's evidence of her general repu- tation for chastity was admissible for purpose of rehabilitation.-State v. Cook, 207 S. W. 831.
(C) Interest and Bias of Witness. 363(1) (Ark.) It is permissible on cross-ex- amination to inquire whether witness has any bias for one of the parties or prejudice against the other, or interest in the subject-matter of the litigation which might affect his credibility. -Prange v. Young, 207 S. W. 445.
372(2) (Mo.) Cross-examination of state's witness by asking him to recite a poem he was alleged to have written derogatory to defendant, for purpose of affecting his credibility, was im- proper, despite the great latitude allowed in cross-examination, since the animus of the wit- ness could have been better shown by direct in- quiry. State v. Stegner, 207 S. W. 826.
(D) Inconsistent Statements by Witness.
379(1) (Ark.) Credibility of a witness may be impeached by proof of contradictory state- ments.-Lockett v. State, 207 S. W. 55.
379(2) (Tex.Civ.App.) In a purchaser's ac- tion against the seller of land for removing fix- tures, evidence that the seller's agent, after the contract and deed had been executed, stated that the fixtures did not belong to the land, etc., could not affect the deed and contract and was not admissible as impeaching the agent's testimony that there was no reservation by the owner when the land was listed.-Alexander v. Anderson, 207 S. W. 205.
379(9) (Ark.) A state's witness may be impeached by showing that he made state- ments in his testimony before the grand jury contradicting those made on the trial.-Lind v. State, 207 S. W. 47.
388(8) (Ark.) To impeach a witness by showing contradictory testimony before the grand jury a proper foundation should be laid by asking the witness sought to be impeached whether he had made the alleged statement be- fore the grand jury.-Lind v. State, 207 S. W. 47.
393 (3) (Ark.) Under Kirby's Dig. §§ 2195, 2196, minutes of the testimony before the grand jury cannot be used as original evidence to show a witness' contradictory statements made before the grand jury, but can only be used to refresh the memory of members of the
tion of plaintiff, defendant had elicited plain- tiff's reasons for going onto defendant's farm, the defendant was bound thereby, and could not contradict plaintiff's answers; the only issue in the case being as to whether defendant had agreed to buy plaintiff's interest in the crop.- Sexton v. Lockwood, 207 S. W. 856.
414(2) (Tex.Civ.App.) That defendant's agent denied making alleged defamatory state- ments to plaintiff's witness, who had testified thereto, did not render admissible testimony by plaintiff and other witnesses that witness had told them that the agent had made such state- ments. Providence-Washington Ins. Co. v. Ow- ens, 207 S. W. 666.
WORDS AND PHRASES.
"Accord and satisfaction."-G. M. H. Wagner & Sons v. Harris (Tex. Civ. App.) 207 S. W. 632. "Actionable negligence."-Heinemann v. Bar- field (Ark.) 207 S. W. 58.
"Active service."-Redd v. American Cent. Life Ins. Co. (Mo. App.) 207 S. W. 74. "Actual notice."-Citizens' State Bank of Greenup v. Johnson County (Ky.) 207 S. W. 8.
"Ademption."-Ford v. Cottrell (Tenn.) 207 S. W. 734.
"Any property."-Webb v. Reynolds (Tex. Com. App.) 207 S. W. 914. "Character."-State v. Cook (Mo.) 207 S. W.
"Conduct of spectators."-State v. Jones (Mo.) 207 S. W. 793.
"County."-Breathitt County v. Hagins (Ky.) 207 S. W. 713.
"Creditor."-Diltz v. Dodson (Tex. Civ. App. 207 S. W. 356; Warren v. Parlin-Orendorff Implement Co., Id. 586.
"Criminal proceeding."-Kansas City v. Proud- fit (Mo. App.) 207 S. W. 845. "Cruelty."-McNabb v. McNabb (Tex. Civ. App.) 207 S. W. 129. "Defeasible fee."-Murphy v. Murphy (Ky.) 207 S. W. 491. "Demonstrative
legacy."-Ford V. Cottrell (Tenn.) 207 S. W. 734. "Dormant judgment."-Burlington State Bank v. Marlin Nat. Bank (Tex. Civ. App.) 207 S. W. 954. "Entered service of army."-Redd v. American Cent. Life Ins. Co. (Mo. App.) 207 S. W. 74.
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
"Setting forth."-State ex rel. and to use of Mosberg v. Owens (Mo. App.) 207 S. W. 241.
"Equitable lien."-Luse v. Rea (Tex. Civ. App.) | "Sale."-Webb v. Reynolds (Tex. Com. App.) 207 S. W. 942. "Equitable mortgages."-Luse v. Rea (Tex. Civ. App.) 207 S. W. 942. "Exception."-Thomas v. Derrick (Tex. Civ. App.) 207 S. W. 140. "Exclusive agents."-Harris & White v. Stone (Ark.) 207 S. W. 443. "Expectation."-Shock v. Price (Mo. App.) 207 S. W. 834.
"Family."-St. Louis Police Relief Ass'n v. Houlehin (Mo. App.) 207 S. W. 880. "Fill."-Texas & P. Ry. Co. v. West Bros. (Tex. Com. App.) 207 S. W. 918.
"F. o. b."-Harris v. Moller (Tex. Civ. App.) 207 S. W. 961.
"Future suffering."-Colby v. Thompson (Mo. App.) 207 S. W. 73.
"Growing grain."-St. Paul Fire & Marine Ins. Co. v. Pipkin (Tex. Civ. App.) 207 S. W. 360. "Incidental expenses."-State ex rel. and to Use of Birmingham v. Hackmann (Mo.) 207 S. W. 498.
"Injured party."-Wehrenbrecht v. Wehren- brecht (Mo. App.) 207 S. W. 290. "Insolvent."-Luse v. Rea (Tex. Civ. App.) 207 S. W. 942.
"Interstate commerce."-Texas & P. Ry. Co. v. Lester (Tex. Civ. App.) 207 S. W. 555. "Joint trespass."-Stephens v. Schadler (Ky.) 207 S. W. 704.
"Judicial admissions."-Probst v. St. Louis Bas- ket & Box Co. (Mo. App.) 207 S. W. 891. "Land."-Redus v. Blucher (Tex. Civ. App.) 207 S. W. 613. "Legislative act."-Lotspeich v. Town of Mor- ristown (Tenn.) 207 S. W. 719. "Libelous per se."-Providence-Washington Ins. Co. v. Owens (Tex. Civ. App.) 207 S. W.
"Material alteration."-Commercial Credit Co. v. Giles (Tex. Civ. App.) 207 S. W. 596. "Ministerial act."-Lotspeich v. Town of Mor- ristown (Tenn.) 207 S. W. 719. "Murder in first degree."-State v. Solan (Mo.) 207 S. W. 782.
"Specific legacy."-Ford v. Cottrell (Tenn.) 207 S. W. 734.
"Stenographer."-State ex rel. Nolen v. Hack- mann (Mo.) 207 S. W. 494. "Subrogation."-Sanger Bros. v. Ely & Walk- er Dry Goods Co. (Tex. Civ. App.) 207 S. W. 348.
"Through bill of lading."-Ft. Worth & D. C. Ry. Co. v. Kemp (Tex. Civ. App.) 207 S. W. 605.
"Title to real property."-Phelps v. Johnson (Ky.) 207 S. W. 453.
"Transferred."-Webb v. Reynolds (Tex. Com. App.) 207 S. W. 914.
"Trial."-Gulf, C. & S. F. Ry. Co. v. Muse (Tex.) 207 S. W. 897.
"Under arrest."-Clark v. State (Tex. Cr. App.) 207 S. W. 98.
"Vice principal."-San Antonio Portland Ce- ment Co. v. Gschwender (Tex. Civ. App.) 207 S. W. 967.
"Volunteer."-Miller V. Guaranty Trust & Banking Co. (Tex. Civ. App.) 207 S. W. 642. "Voter."-Trammell v. Griffin (Tenn.) 207 S. W. 726.
"Waiver."-Weeks v. First State Bank of De Kalb (Tex. Civ. App.) 207 S. W. 973.
WORK AND LABOR.
See Executors and Administrators, 451; Trial, 29, 145.
24(1) (Mo.App.) In an action for services, licitor in investigating claims against defendant not based on contract, rendered by plaintiff so- of such services is fatal to a recovery.--Cheek v. insurance company, failure to prove the value National Life Ins. Co. of United States of America, 207 S. W. 882.
"Mutuality of obligation."-Warren V. Ray County Coal Co. (Mo. App.) 207 S. W. 883.29(1) (Tex.Civ.App.) Recovery on a quan- "Negligence."-Heinemann V. Barfield (Ark.) tum meruit does not necessarily depend upon 207 S. W. 58. a specific value, and if it be only shown that "Negotiable-instrument."-Citizens' State Bank services were rendered, plaintiff is at least en- of Greenup v. Johnson County (Ky.) 207 S. titled to nominal damages.-Guyer v. Chapman, W. 8. 207 S. W. 428.
"On a basis."-J. C. Lysle Milling Co. v. Sharp (Mo. App.) 207 S. W. 72.
"Permanent injury." Colby v. Thompson (Mo. WORKMEN'S COMPENSATION ACTS.
"Previous chaste character."-State v. Cook See Contracts,
'Principal offender."-Lockett v. State (Ark.)
"Property in the custody of the court."-Fra- See Appeal and Error. zier v. Frazier (Ark.) 207 S. W. 215. "Proximate cause."-Haney v. Texas & Pacific Coal Co. (Tex. Civ. App.) 207 S. W. 375. "Quasi public corporation."-Van Valkenburgh v. Ford (Tex. Civ. App.) 207 S. W. 405. "Reputation."-State v. Cook (Mo.) 207 S. W.
"Res gestæ."-Panhandle & S. F. Ry. Co. v. Huckabee (Tex. Civ. App.) 207 S. W. 329. 207 S.W.-69
See Attachment; Garnishment; Injunction; Mandamus; Process; Prohibition; Replevin.
See Appeal and Error, 1050.
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