to certify that she has not executed the deed by compulsion of her husband, or in ignorance of its contents, but also to facilitate the conveyance of the estates of married women, and to secure and perpetuate evidence, upon which innocent grantees as well as subsequent purchasers may rely, that the requirements of the statute necessary to give validity to the deed have been complied with. Lawrence v. Heister, 3 Har. & J. 371, 377. The duty of examining the wife privily and apart from her husband, of explaining the deed to her fully, and of ascertaining that she executed it of her own free will, without coercion or under his influence, is a duty imposed by law upon the officer, involving the exercise of judgment and discretion, and thus a judicial, or quasi-judicial act. The magistrate is required to ascertain a particular state of facts, as having ascertained it, to certify it for record, for the benefit of the parties to the deed, and of all others who may thereafter acquire rights ander it. And the statute expressly provides, that upon the recording of the certificate, "the deed shall be as effectual in law as if she had been an unmarried woman. The reasonable, if not the necessary, conclusion is, that except in case of fraud, the certificate made and recorded as the statute requires, is the sole and conclusive evidence of the separate examination and acknowledgment of the wife. It has been decided by this court, in a case arising under a similar statute of Virginia, that if the certificate as recorded is silent as to these facts, the want cannot be supplied by parol evidence that the wife was duly examined; and this for the reason stated by Mr. Justice Trimble in delivering judgment, as follows: "What the law requires to be done, and appear of record, can only be done and made to appear by the record itself, or an exemplification of the record. It is perfectly immaterial whether there be an acknowledgment or privy examination in fact or not, if there be no record made of the privy examination; for by the express provisions of the law, it is not the fact of privy examination merely, but the recording of the fact, which makes the deed effectual to pass the estate of a feme covert." Elliott v. Peirsol, 1 Pet. 328, 340. That the magistrate's certificate, when made in the form required by the statute, and duly recorded, is conclusive evidence that he has performed his duty, has not been directly adjudged by this court, but the course of its decisions has tended to this conclusion. In Drury v. Foster Mr. Justice Nelson, in delivering judgment, observed: "There is authority for saying, that where a perfect deed has been signed and acknowledged before the proper officer, an inquiry into the examination of the feme covert, embracing the requisites of the statute as constituting the acknowledgment, with a view to contradict the writing, is inadmissible; that the acts of the officer for this purpose are judicial and conclusive." 2 Wall. 24, 34. And in Young v. Duvall the court said that if the officer's certificate "can be contradicted, to the injury of those who in good faith have acted upon it, the proof to that end must be such as will clearly and fully show the certificate to be false or fraudulent. The mischiefs that would ensue from a different rule could not well be overstated. The cases of hardship upon married women that might occur under the operation of such a rule are of less consequence than the general insecurity of titles to real estate, which would inevitably flow from one less rigorous." 109 U. S. 573, 577. It would be inconsistent with the reasons above stated, as well as with a great weight of authority, to hold that in the case of a deed actually executed by a married woman of full age and sound mind, a certificate of her separate examination and acknowledg. ment, in the form prescribed by the statute, and duly recorded with the deed, can afterward, except for

fraud, be controlled or avoided by extrinsic evidence of the manner in which the examination was couducted by the magistrate. Comegys v. Clarke, 44 Md. 108; Jamison v. Jamison, 3 Whart. 457; Williams v. Baker, 71 Penn. St. 476; Harkins v. Forsyth, 11 Leigh, Godfrey, 44 Me. 25; Baldwin v. Snow294; Greene v. den, 11 Obio St. 203; Graham v. Anderson, 42 Ill. 514; Dolph v. Barney, 5 Ore. 191; Johnston v. Wallace, 53 Miss. 331; Hartley v. Frosh, 6 Tex. 208. See also Bancks v. Ollerton, 10 Exch. 168, 182. As to such of the cases cited by the learned counsel for the appellant as have not been already referred to, it may be remarked, that in Rhea v. Rhenner, 1 Pet. 105, in Hepburn v. Dubois, 12 id. 345, in Dewey v. Campau, 4 Mich. 565, and in O'Ferrall v. Simplot, 4 Iowa, 381, the requisite certificate was either wanting or defective upon its face, and that Dodge v. Hollinshead, 6 Minn. 25 (Gil. 1), and Landers v. Bolton, 26 Cal. 393, were decided under statutes which expressly provided that the certificate should not be conclusive, but might be rebutted by other evidence. (3) A married woman and her husband conveyed her separate real estate to secure notes held by the bank for the debt of the husband. By his consent, the receiver of the bank, appointed by the comptroller of the currency, collected the rents and paid them into the United States treasury, subject to the order of the comptroller. The wife sought by bill to compel the receiver to account to her for the rents received by him. Held, that they were not to be accounted for in that action. (4) Plaintiff, a married woman, and her husband conveyed by deed her separate property to one who conveyed it to a third party to hold in trust to secure the payment of certain notes payable to the husbaud, and indorsed by him to a creditor. She filed a bill to set aside the deeds: pending the suit the court appointed a receiver to collect the rents and profits; the court held the deeds valid, and the land when sold was insufficient, by more than the rents and profits collected, to pay the debt secured by the deeds. Held, that she had no claim on the fund created by the rents during the pendency of the suit. Nov. 14, 1887. Hitz v. Jenks. Opinion by Gray, J.

PATENT-OF LAND-FRAUD-BONA FIDE PURCHASER. -We have had recent occasion to consider the question of the character and degree of proof necessary in such cases to invalidate titles held by purchasers in good faith for value, and without notice, under patents issued by the United States. In Maxwell LandGrant case, 121 U. S. 325, 379, it is said: "The deliberate action of the tribunals to which the law commits the determination of all preliminary questions, and the control of the process by which this evidence of title is issued to the grantee, demands that to annul such an instrument, and destroy the title claimed un. der it, the facts on which this action is asked for must be clearly established by evidence entirely satisfactory to the court, and that the case itself must be entirely within the class of causes for which such an instrument may be avoided. We take the general doctrine to be, that when in a court of equity it is proposed to set aside, to annul, or to correct a written instrument for fraud or mistake in the execution of the instrument itself, the testimony on which this is done must be clear, unequivocal and convincing, and that it cannot be done upon a bare preponderance of evidence which leaves the issue in doubt. If the proposition as thus laid down in the cases cited is sound in regard to the ordinary contracts of private individuals, how much more should it be observed where the attempt is to annul the grants, the patents, and other solemn evidences of title emanating from the government of the United States under its official seal? In this class of cases the respect due to a patent, the presumptions that all the preceding steps re

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quired by the law had been observed before its issue, the immense importance and necessity of the stability of titles dependent upon these official instruments demand that the effort to set them aside, to annul them, or to correct mistakes in them, should only be successful when the allegations on which this is attempted are clearly stated, and fully sustained by proof. It is not to be admitted that the titles by which so much property in this country and so many rights are held, purporting to emanate from the authoritative action of the officers of the government, and as in this case, under the seal and signature of the president of the United States himself, shall be dependent upon the hazard of successful resistance to the whims and caprices of every person who chooses to attack them in a court of justice; but it should be well understood that only that class of evidence which command's respect, and that amount of it which produces conviction, shall make such an attempt successful." It thus appears that the title of the defendants rests upon the strongest presumption of fact, which although they may be rebutted, nevertheless can be overthrown only by full proofs to the contrary, clear, convincing and unambiguous. The burden of producing these proofs, and establishing the conclusion to which they are directed, rests upon the government. Neither is it relieved of this obligation by the negative nature of the proposition it is bound to establish. It is indeed sometimes said that a negative is incapable of proof, but this is not a maxim of the law. In the language of an eminent text-writer: "When the negative ceases to be a simple one-when it is qualified by time, place or circumstance-much of this objection is removed, and proof of a negative may very reasonably be required when the qualifying circumstances are the direct matter in issue, or the affirmative is either probable in itself, or supported by a presumption, or peculiar means of proof are in the hands of the party asserting the negative." Best Ev. (Am. ed.), 1883, § 270. So also id., § 273: "When a presumption is in favor of the party who asserts the negative, it only affords an additional reason for casting the burden of proof on his adversary; it is when a presumption is in favor of the party who asserts the affirmative that its effect becomes visible, as the opposite side is then bound to prove his negative." Also id., § 276: "This appears from the case of Doe v. Whitehead, 8 Ad. & E. 571, which was an ejectment by a landlord against a tenant on an alleged forfeiture by breach of a covenant in his lease to insure against fire in some office in or near London, in which it was contended that it lay on the defendant to show that he had insured, that being a fact within his peculiar knowledge. The argument ab inconveniente was strongly urged, viz., that the plaintiff could not bring persons from every insurance office in or near London to show that no such insurance had been effected by the defendant, and Rex v. Turner, 5 Maule & S. 206; Apothecaries' Co. v. Bentley, Ryan & M. 159, and some other cases of that class, were cited. But Lord Denman, C. J., in delivering judgment, said: 'I do not dispute the cases on the game laws which have been cited; but there the defendant is in the first instance shown to have done an act which was unlawful unless he was qualified, and then the proof of qualification is thrown upon the defendant. Here the plaintiff relies on something done or permitted by the lessee, and takes upon himself the burden of proving that fact. The proof may be difficult where the matter is peculiarly within the defendant's knowledge, but that does not vary the rule of law.' And in the same case Littledale, J., said: 'In the cases cited as to game, the defendant had to bring himself within the protection of the statutes; and a like observation

applies to Apothecaries' Co. v. Bentley. But here, where a landlord brings an action to defeat the estate granted to the lessee, the onus of proof ought to lie on the plaintiff.' And this ruling has been upheld by subsequent cases. Toleman v. Portbury, L. R., 5 Q.B. 288; Wedgwood v. Hart, 2 Jur. (N. S.) 288; Price v. Worwood, 4 Hurl. & N. 512." Mr. Greenleaf states the rule in equivalent terms. He says (1 Greenl. Ev., §78): "To this general rule, that the burden of proof is on the party holding the affirmative, there are some exceptions, in which the proposition, though negative in its terms, must be proved by the party who states it. One class of these exceptions will be found to include those cases in which the plaintiff grounds his right of action upon a negative allegation, and where of course this negative is an essential element in his case. And in section 80: "So where the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it; for in these cases the presumption of law, which is always in favor of innocent and quiet possession, is in favor of the party charged." In the present case the facts shown are, in our opinion, not sufficient to overcome the presumption of innocence on the part of the register and receiver of the land-office. It is quite consistent with these facts that real persons, whether under their own or assumed names, did actually appear before them and make pre-emption claims. There is no testimony whatever tending to establish directly any complicity on their part with the fraud which may have been practiced upon them, and not through them. It is certain that there were real persons acting in the matter. The purchase price due on the entry of the lands was in fact paid. There is no proof of any actual fabrication of the papers, the genuineness of which is not negatived by any internal evidence. The allegations in the bill, that they were in fact manufactured by the register and receiver and Hunt, or by any one with their connivance, are entirely unsupported by direct evidence. Colorado Coal & Iron Co. v. United States.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

DAMAGES -MEASURE

TAKING MARBLE FROM

QUARRY. In a suit in equity for wrongfully taking marble from a quarry leased to complainant by the defendants' grautor, where it does not appear that the defendants acted in willful disregard of complainant's rights, and where many instruments similar to complainant's lease have been held void under the statute of frauds, the proper measure of damages for the marble taken is its value as it existed before quarrying. There are two rules of compensation of damages, in these cases of mining trespass, recognized by the courts, sometimes designated as the mild and the harsh rule. The mild rule is applied where the wrong was innocently done, by mistake or inadvertence; the harsh, where the facts show the trespass to have been malicious, or with full knowledge of the title of the injured party, and in willful disregard of his rights. The former rule charges the defendant with the value of the coal, ore or rock mined in situ, usually measured by the royalty charged in the particular locality; the latter charges him with the value of the same after severance, without compensation for mining and preparing for market. The same rules are applied by the modern decisions in cases of mines, etc., where as incident to the relief sought by a bill in equity, an ao

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count is asked, as obtains in an action at law for the same character of trespass. See Root v. Railway Co., 105 U. S. 189, where Mr. Justice Matthews discusses this question at length. We think, that under the facts of the case at bar, neither the mild nor the harsh rule should be applied, but that the rule which recog. nizes a modification of the two extremes furnishes the true measure of damages. To allow the mild rule, as insisted on by the defendants-that is, the value of the rock in its bed, to be ascertained by the royalty charged in that locality-would manifestly not reach the justice of the case. It would lead to this anomaly: the royalty that would be awarded complainant would be five cents per cubic foot for the stone quarried, together with the $20 per annum, and to become entitled to this, the complainant under the terms of the lease would have to pay the defendants, as the holders of the legal title to the soil, under their deed from Fudge, the same sum of five cents per cubic foot, and $20 rent, thus offsetting the damages with the rent reserved, and virtually allowing the owner of the soil to vacate and annul a lease of a mining or quarry-right at pleasure, and take to himself all the profits of operating the mine or the quarry, upon surrendering nothing but the rent or royalty reserved in the lease. This would be virtually to place a premium upon the breach of contract, and would tend to invite trespass. the other hand, to apply the harsh rule in the case at bar would be to place a punishment upon the defendant not warranted in cases except where the trespass has been without the slightest color of title, and in willful disregard of the rights of others, which we are not authorized to say is the case here. While we hold that the complainant has title to the right to quarry rock on the land in question, yet we are not prepared to say that the defendants have acted in willful disregard of his right. We cannot say that they have not acted under an honest, though erroneous opinion, as to the title to the rock. Of course ignorance of law as to the legal efficacy of complainant's lease would in no manner discharge defendants from legal liability for damages growing out of their trespass, but after their liability is adjudged and fixed, the fact of an honest mistake as to title can and should be looked to by a court of equity in fixing the measure of damages. As was said by this court in Ross v. Scott, 15 Lea, 479, "the question is not one of negligence or oversight, but of good faith." The weight of authority, both English and American, now is that where there is an honest dispute as to the title, the harsh rule contended for is not applied. In view of the many decisions of the courts under the statute of frauds, holding somewhat similar descriptions of the property void, who can say that there was no room for an "honest dispute as to title" in the case at bar? The rule of equity in such case is that which furnishes just compensation to the injured party. Applying this rule would be to award the complainant the value of the marble on the farm as quarried, cut and dressed, ready for market, less the usual and reasonable cost of quarrying, cutting and dressing. This prevents the defendants (who stand in this record in the position of lessors to the complainant) from taking profit or benefit by their action in the premises, and at the same time gives, as near as may be, the complainant the full benefit of his right to quarry marble on the "Rose Hill" farm, which is the only right that has been invaded by the defendants. It would not profit us to review in this opinion already longer than was intended - the many cases to which our attention has been called. To do so would be to present a conflict of authorities greater than that which marked the controversy between Mr. Sedgwick and Prof. Greenleaf as to exemplary damages, without a corresponding benefit. We content ourselves therefore with a reference to

Ensley v. Nashville, 2 Baxt. 144; Mining Co. v. Moses, 15 Lea, 300, and Ross v. Scott, id. 476, in the last of which cases will be found ample reference to the textbooks and reported cases as gathered by the learning of the distinguished judge who wrote the opinion of this court in that case. Tenn. Sup. Ct., Sept. 27, 1887. Dougherty v. Chesnutt, Opinion by Folkes, J.

DEED - STIPULATION AS TO QUANTITY OF LANDCOVENANT. A description in the deed of the land by metes and bounds, and also as containing a certain number of acres, does not constitute such a covenant, although words of estimation, as "more or less," are omitted. The only question that remains is whether a recovery can be had by the plaintiff upon the terms of the deed itself. There is no express covenant in the deed that the land conveyed contains any definite number of acres. The designation of the number of acres is in connection with and is a part of the descrip tion of the land conveyed. If at the execution of the deed the intention of the parties had been that a definite number of acres should be assured to the vendee, the proper way would have been and it would have been as easy as proper, to incorporate a covenant in the deed to that effect. It would have been as easy to do so as to covenant that it is free from incumbrances. No such covenant as to quantity having been inserted in the deed, no recovery can be had upon the deed itself for any deficiency in the number of acres in the tract conveyed by it. Powell v. Clark, 5 Mass. 355; Perkins v. Webster, 2 N. H. 287; Large v. Penn, 6 Serg. & R. 488; Williams v. Hathaway, 19 Pick. 387; Kreiter v. Bomberger, 82 Penn. St. 59; Beall v. Berkbalter, 26 Ga. 566. And it may be said in this case, as was said by Justice Sharswood in the case of Kreiter v. Bomberger: "The vendee threw out no anchor to windward as to quantity, as he did as to title, by his covenant of general warranty. If within the period of six years from the time of the transaction, a contract of purchase and sale, fully executed by delivery of the deed and payment of the purchase-money, can be overhauled and materially changed, very disastrous consequences will ensue, not only to vendors called upon to refund what they had every reason to believe was their own, and had a right to deal with accordingly, but to the public at large, by sowing the seeds of an abundant crop of lawsuits. Ohio Sup. Ct., Nov. 1, 1887. Brumbaugh v. Chapman. Opinion by Minshall, J.

INSURANCE-BENEFICIARY-EFFECT OF DIVORCE.The by-laws of a mutual benefit association, organized for the purpose of defraying the expenses of the sickness and burial of its members, and rendering pecuniary aid to their families or heirs, provided for the payment of the balance to the person or persons designated by the member, provided that they were heirs or members of his family, and that if the party designated were deceased, the money should be paid to the widow, children, or their guardian, or to the heirs, if neither widow nor children were living. Held, that the wife of a member who had been designated by him as a beneficiary had lost her rights as such by obtaining a divorce from him. Mass. Sup. Jud. Ct., Oct. 20, 1887. Tyler v. Odd Fellows' Mut. Relief Ass'n. Opinion by Knowlton, J.

PARTY WALL - LIABILITY OF GRANTEE TO PAY PROPORTION OF COST. The question presented by the case for our determination is this: When a partywall is built equally upon the lots of adjoiuing owners by one of them, and is afterward used for a building erected by his neighbor, who does not pay for the part of the value thereof as required by law, and conveys the lot to one having full notice of the facts, is such purchaser liable to his neighbor in an action to recover half the cost of the party-wall? We think he is. The

defendant's grantor, by using the party-wall, becomes liable for half of its cost. She had the right to make it a common wall by paying half its appraised value. Code, § 2020. It follows that when she used the wall, she assumed to pay half of its value, as required by law. Her obligation to pay is raised by the statute; aud plaintiffs' right to recover is based upon this obligation. Her grantee, having full knowledge of the facts, stands in her shoes. He will not be heard in a court of law to deny his obligation to pay for the wall, the full benefit of which he enjoys, having notice that it has not been paid for. The right to use a partywall is a right running with the land. Thomson v. Curtis, 28 Iowa, 229. That right is dependent upon payment of one-half of its value. But defendant acquired no such right from his grantor for the reason that she had not paid for the wall. But he uses the wall, and for himself becomes liable, by reason of that use, to pay for it just as his grantor was liable. This liability is based upon the benefit he receives from the use of the wall, which was erected with his neighbor's money, and the full notice he possesses, that his grantor had not paid for the wall. He having such notice, stands in the shoes of his grantor, and is liable just as she would be had she not conveyed the land. He is to be regarded as liable to plaintiff by reason of his appropriation of the wall, and his notice that it has not been paid for. Iowa Sup. Ct., Oct. 15, 1887. Pew v. Buchanan. Opinion by Beck, J.

RAILROAD COMPANIES ASSAULT UPON PASSENGER BY STRANGER.- Where it appears that the plaintiff, while standing upon the platform of one of the cars of a train, which he was about to enter as a passenger, was knocked off and robbed, just as the train started, by a person holding a lantern in one hand and a club in the other; and where it does not appear that the person committing the assault and robbery was an employee of the railroad company, otherwise than that he carried a lantern with letters on it, and wore a cap with a badge upon it; and where it does not appear that the assault was made in ejecting, or attempting to eject the plaintiff from the cars, by any one connected with the operation of the train, or having any charge of the depot, its ground, or the road; and where it further appears that the alleged assault was wholly disconnected from any service in which any employee of the railroad company was engaged; held, that the railroad company operating the train is not responsible for the wrongful acts committed upon the plaintiff, under a petition charging that the plaintiff was assaulted and injured by the servants and employees operating and controlling a train of the company. Kan. Sup. Ct., Oct. 8, 1887. Sachrowitz v. Atchison, T. & S. F. R. Co. Opinion by Horton, C. J.

September 21, 1886, and the subsequent action of the parties. The sending of the bill November 1 was not evidence of non-acceptance of Blaisdell's notice. Blaisdell cannot claim that their subsequent occupation was a continuation of their former relations with the company. They gained no new rights by such occupation. The defendant contends, that after the receipt of the notice of September 21, whatever goods plaintiff had in defendant's depot, by or for transportation, were in its hands as a common carrier upon the same terms as all other goods received by or for transportation. This action is not brought for any commonlaw liability as carrier. When parties see fit to stipulate what their relations shall be touching any matter, their stipulations fix their rights and liabilities, and exclude what is not fairly included in them. The statute referred to gives protection to owners of property who have made no arrangement with the railroad corporation about it. It was not intended to prevent property owners and railroad corporations making contracts determining their respective rights and duties relating to particular property, or to apply to cases where such contracts have been made. Nor is there any difference in this regard between express and implied contracts. If a railroad corporation and an owner of land or personal property make an arrangement about it, from which the law implies a contract broad enough to cover the subject of liability for loss or injury, this contract, implied from their voluntary act, fixes their rights, and excludes the provisions of a statute intended for cases not covered by a contract. The plaintiff had employed the defendant as a common carrier, to transport his goods to Chicopee. He voluntarily entered into an arrangement which involved the subject of the defendan's liability for loss of the property, or injury to it from any cause, and which determined his rights as definitely under the contract implied by law as if the parties had written out and sigued stipulations in detail. The defendant was bound to carry the goods, and was an insurer of them until the transit ended, and was then liable as a warehouseman for any want of ordinary care during such reasonable time as they should remain in its custody awaiting the call of the consignee. This was the extent of its liability. In the language of Chief Justice Shaw, such an arrangement "we consider to be one entire contract for hire; and although there is no separate charge for storage, yet the freight to be paid fixed by the company as a compensation for the whole service is paid as well for the temporary storage as for the carriage." Norway Plains Co. v. Railroad Co., 1 Gray, 272. The goods having been destroyed while in the possession of the defendant under the contract, the plaintiff must seek his remedy under it, and the statute referred to does not apply. Mass. Sup. Jud. Ct. Oct. 20, 1887. Bussett v. Connecticut River R. Co. Opinion by Knowlton, J.

TRADE-MARK

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daughter and her husband during their joint lives, and to the survivor of them during the life of such survivor; and if his daughter should die leaving issue, then such land to go to such issue and heirs after the termination of the life-estate; "but if my said daughter should die without leaving such issue, then my will is that *** the said land and plantation should pass and descend to my heirs according to the laws of descent in Virginia, and their heirs forever." The testator died in 1834, leaving his said daughter as his sole heir at law. Her husband died in 1854, and she died in 1884, without having had, and without leaving issue. Held, that the limitation over to the heirs of the testator according to the laws of descent in Virginia, and their heirs forever, referred to those who were his heirs at the time of his death, and not to those who might be his heirs at the time of his daughter's death, and that the daughter took a feesimple estate in the said land, which was determinable by her leaving issue at her death, and which became absolute upon her death without issue. If the daughter had no issue, then it would seem that he naturally would prefer her, his only child and right heir, to others not so near in blood and affection, and give the estate to her absolutely, without limitation or restriction, to do with as she pleased. Such would be the natural conclusion, in the absence of any thing in the will to the contrary, if we were driven to the ties of blood as they are known in the common experience of men, and were not confined to the will itself, to be read and interpreted in the light of well-settled legal principles. There is nothing in the language used by the testator inconsistent with this natural inclination of a father to send his property along with his affection for his daughter and only child. Not even once in his will did the testator allude to his brother and sister, or to their descendants. Why then should he be supposed to have intended the property ultimately for them, in the event his daughter should die without issue, when he failed to say so, and when they are not referred to in the will? There is no expression em. ployed in the will that indicates, in the least degree, any purpose to designate, as the class of persons who should take the estate at the death of the testator's daughter without issue, those who would be his heirs at law at her death. There are no words pointing to his heirs at a future period. The word "then" is not here used as an adverb of time. It evidently means "in that event;" that is, in the event his daughter died without issue. 3.Jarm. Wills, 683. There is nothing favorable to the plaintiffs in error in the testator's use of the plural word "heirs," nor can its use exclude the idea that the testatorial intent was to limit the estate to the daughter, who was the sole "heir." In Pilkington v. Spratt, 5 Barn. & Adol. 731, where a testator devised to his son A., and M., his wife, and B., and N., his wife, or the survivor of them, for their lives, with remainder to the male heir of the testator, the remainder was held to vest, at testator's death, in C., who was his male heir at that time. In Cholmondeley v. Maxey, 12 East, 589, devise to certain persons for life (one of whom was testator's heir at law at his death), with remainders successively to their heirs in tail male, with the ultimate remainder to the testator's right heirs, held that this ultimate remainder (or rather reversion) vested in the heir of the testator at his death, and not in the persons who would have been his heirs at the termination of the intervening limitations. See also Wrightson v. Macaulay, 14 Mees. & W. 214, 231. In Boydell v. Golightly, 14 Sim. 327, 345, 347, where there was a devise to trustees in trust for the support of testator's son John for his life, and then for his son John's first son and the heirs of his body, and then, successively to several other persons for life, with remainder in them to the sons of each, succes

sively, in tail, with remainder to testator's own right heirs forever, it was held, John having died without issue, and the intervening limitations having all failed, that the ultimate trust vested, on the testator's death in his son John as his heir at law, at his death. To the same effect are numerous other authorities, which need not be cited here. Redfield, in his work on Wills, after stating the rule as settled by the authorities, says: "So the law in England is now regarded as fully settled." 2 Redf. (2d ed.) 92, marg. p. 104. Against the overwhelming weight of authorities thus settling the rule in England, the learned counsel for the plaintiffs in error oppose seven or eight English decisions. Of these it is sufficient to say, that in most of them, the limitations contain words declarative of an intention that the estate should vest at a period subsequent to the death of the testator. Some of them have been disapproved by the courts in later cases. Two of them (Booth v. Vicars, 1 Colly. 6, and Godkin v. Murphy, 2 Younge & C. Ch. 351) were referred to in the later case of Bird v. Luckie, 8 Hare, 301, by the vice-chancellor who decided them, as unimportant and of doubtful correctness. Of two others, 2 Jarm. Wills, 679, says: "At the present day such decisions as Briden v. Hewlett, 2 Mylne & K. 90, and Butler v. Bushnell, 3 id. 232, would probably not be made.” While of Jones v. Colbeck, 8 Ves. 38, it was remarked by Stuart, V. C., in In re Barber, Smale & G. 122: That case has the singular property of being often cited as authority, always considered as open to objection, and never followed." Va. Sup. Ct. App., Sept. 22, 1887. Stokes v. Van Wyck. Opinion by Richardson, J.

DEVISE ERRONEOUS DESCRIPTION.- A will contained a devise of "a small farm in Wayne county, Iowa, near the Missouri line." The testator owned a forty-acre farm in Lucas county, but no land in Wayne county, except a ten-acre timber lot intended to be used in connection with the farm. Held, that this was not a case of latent ambiguity, and that parol evidence was inadmissible to show that the testator intended to devise the farm in Lucas county. The fact that the ten-acre tract is appurtenant to the forty-acre farm is not sufficient to identify the farm in controversy, there being nothing in the will showing the connection of the two tracts as constituting one farm. We think it cannot be doubted that parol evidence, or evidence dehors the will, is not admissible to supply omissions therein, or to vary or control its terms, nor can it be denied that such evidence may be used to explain a latent ambiguity, and in such case to direct the application of the description to the subject. The cases bearing upon the question before us are numerous, and to some extent difficult to harmonize. They are extensively cited in Fitzpatrick v. Fitzpatrick, 36 Iowa, 674, which in our opinion sustains the conclusion that the devise before us cannot be applied to the land in controversy by evidence dehors the will. A few other cases than those cited in Fitzpatrick v. Fitzpatrick could be referred to, but we think it unnecessary, in view of the fact, that in our opinion they are not in conflict with the rule which we think is taught by all the authorities. That rule may be stated in the following language: If after the false description is discarded, there remains in the devise language sufficient to direct to the identification of the subject with sufficient certainty, an estate will pass thereby. But when the false language is eliminated, and nothing remains directing inquiry which may result in discovering the true subject of the devise, it is void. Thus if the description by metes and bounds, or by congressional subdivision is false, but it is aided by language declaring the ownership or possession of the land by the devisor or other, or the like, it is good. The devise under con