entitled to an interest in their mother's half of community land.-Id. $231 (Mo.) Under Rev. St. 1909, § 2810, relating to notice by record, a purchaser is charged with constructive notice of everything, in prior recorded deeds, which go to make up the chain of title under which he holds.-Garrett v. Wiltse, 161 S. W. 694. $ 239 (Tex.Civ App.) The legal title of the purchaser for value not shown to have notice of an outstanding equitable title held superior to the equity.-Le Blanc v. Jackson, 161 S. W. 60. $242 (Tex.Civ.App.) Parties asserting an equitable title as against a purchaser for value have the burden of showing that he had notice of all the facts constituting their title.-Le Blanc v. Jackson, 161 S. W. 60. § 243 (Mo.) As against a subsequent bona fide purchaser without notice of such declarations, evidence as to a prior grantor's declarations as to the estate intended to be conveyed was not admissible if not actually brought to such subsequent purchaser's notice.-Garrett v. Wiltse, 161 S. W. 694. VI. REMEDIES OF VENDOR. (A) Lien and Recovery of Land. 8258 (Ky.) A deed providing that in consideration of $500, secured to be paid by part of a note of $500 executed to grantee by C. for $500. "$240 of which was part of the above consideration," the balance being evidenced by notes of grantee, and retaining a lien for "the unpaid purchase money herein before named," only secured the balance of the price, the $240, even if the lien was intended to apply to the C. note of $500.-Arnett v. Howard, 161 S. W. 531. VENUE. See Appeal and Error, § 916; Criminal Law, §§ 111-137, 564, 1144, 1150; Trial, § 217. II. DOMICILE OR RESIDENCE OF PARTIES. $21 (Tex.Civ.App.) Under Rev. St. 1895, art. 1194, prescribing the venue of actions upon contracts to be performed in any particular county, a consignor of cotton shipped to and paid for by drafts in H. county, could not in the consignee's action to recover an overpayment, plead privilege to be sued in T. county, where he resided. Theodore Keller Co. v. Mangum, 161 S. W. 19. Where a written contract between a consignor of cotton and a consignee was to be performed in H. county, so that the consignor could not plead the privilege of being sued in another county, the venue for the consignee's recovin H. county, in order to avoid a multiplicity of ery of overpaid freight charges might also lie suits.-Id. III. CHANGE OF VENUE OR PLACE OF TRIAL. § 36 (Ark.) Acts 1909, p. 751, providing that the venue of civil actions shall not be changed unless the court finds that the same is necessary to obtain a fair trial, applies to all civil actions.-St. Louis, I. M. & S. Ry. Co. v. Reilly, 161 S. W. 1052. § 42 (Ark.) Under Acts 1909, p. 751 providing that the venue of civil actions shall not be changed unless the judge finds that the same is necessary to secure a fair trial, upon finding that a fair trial may be had in the county of the venue, the judge has no discretion to order a change.-St. Louis, I. M. & S. Ry. Co. v. Reil § 265 (Tex.Civ.App.) Plaintiff, claiming un-ly, 161 S. W. 1052. der a purchaser from a vendee with notice of the vendor's lien and superior title, held not entitled to recover against those claiming under the vendor.-Vinson v. W. T. Carter & Bro., 161 S. W. 49. (B) Actions for Purchase Money. 8315 (Tex.Civ.App.) A deed and a bill of sale of personalty with the grantee's simultaneously executed mortgage and notes to secure the payment of the purchase price held proof that the purchase money was not fully paid at the time of the conveyance.-Vinson v. W. T. Carter & Bro., 161 S. W. 49. $315 (Tex.Civ.App.) In an action by a vendor for the price, evidence held to show performance by the vendor, and that out of the payment to be made by the purchaser to the escrow holder taxes on the land and incumbrances were to be paid, so that the purchaser would acquire a good title.-Fahey v. Benedetti, 161 S. W. 896. VII. REMEDIES OF PURCHASER. (B) Actions for Breach of Contract. $343 (Ky.) Where a tract of land was represented by the vendor to contain 200 acres, and the sale was not in gross of a body of land, but by the acre, the vendee could recover the value of any deficit in quantity.-Moreland v. Henry, 161 S. W. 1105. $ 72 (Ark.) While the court has a certain discretion in weighing the evidence on a motion to change the venue because of local prejudice, it cannot arbitrarily refuse a change if the evidence shows that a fair trial cannot be had. St. Louis, I. M. & S. Ry. Co. v. Reilly, 161 S. W. 1052. A statement by the judge, when defendant offered to produce 20 or more persons to sign an affidavit supporting the change of venue, that it would do no good, as a request of 200 persons would not compel him to make an order he did not think was correct, was not a refusal to hear more testimony on the question.-Id. The court has some discretion in determining how many witnesses he will hear on a motion to change the venue because of local prejudice. -Id. See Account, Action on, § 4; Appeal and Error, $194 Criminal Law, § 1178; Highways, For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER 38; Insurance, §§ 755, 819, 825; Justices of the Peace, § 174; Parties, § 75; Pleading, §§ 403-433; Sales, § 176; Trial, § 418. WARDS. See Guardian and Ward. WAREHOUSEMEN. See Pledges, § 29. conducting himself, held not justified in carrying a pistol, though he had reason to believe from assaults made on others that he was likely to be assaulted.-Tafolla v. State, 161 S. W. 1091. WILLS. See Conversion; Descent and Distribution; Executors and Administrators; Powers; Taxation, §§ 867, 893. I. NATURE AND EXTENT OF TESTAMENTARY POWER. § 28 (Mo.App.) A cold storage company, to whom produce stored with it was pledged for advancements, having refused to sell it to customers produced by the pledgor at prices suffi-sulting trust, would pass under the beneficiary's §6 (Mo.) An equitable interest, such as a recient to pay it, and then sold it for less, is will if its terms were sufficient to pass such inliable for conversion.-Union Cold Storage & terest.-Boothe v. Cheek, 161 S. W. 791. Warehouse Co. v. Pitts, 161 S. W. 1182. WARNING. See Master and Servant, §§ 150, 155. WARRANT. See Searches and Seizures. WARRANTY. See Sales, §§ 279, 284, 425-446. WATERS AND WATER COURSES. See Levees; Municipal Corporations, $$ 70, 73, 266, 772; Navigable Waters; Pleading, § 8; Railroads, §§ 108, 114; Trial, § 219. II. NATURAL WATER COURSES. (A) Riparian Rights in General. § 38 (Tex.Civ.App.) A depression of the ground in a flat marshy country filled with rank vegetation from a quarter of a mile to a mile in width, with no defined banks and no channel, and through which water only oozes, is not a watercourse.-Wilborn v. Terry, 161 S. W. 33. V. SURFACE WATERS. § 118 (Tex. Civ.App.) Where a lower landowner prevents surface waters from flowing over his land, thus obstructing natural drainage, though not interfering with the watercourse, he is not liable for injuries caused to the lands of other proprietors upon which the surface waters are thrown back.-Wilborn v. Terry, 161 S. W. 33. A landowner who erected a dam, thus collecting surface waters in a lake upon his own property and retaining them so that they were thrown back on the land of higher proprietors, is liable for the injury.-Id. 8126 (Tex.Civ.App.) In an action for damages for damming a lake so that surface waters were collected and thrown back on plaintiff's land, evidence held insufficient to show that the dam cast water upon plaintiff's land, at most only showing that it prevented the surface water from flowing off as rapidly as before.-Wilborn v. Terry, 161 S. W. 33. IX. PUBLIC WATER SUPPLY. (A) Domestic and Municipal Purposes. § 183 (Ky.) An offer by a city to purchase the property of a water company at a fixed price held not an exercise by it of its option to purchase under a contract with the water company but an offer to make a new contract.-Kenton Water Co. v. City of Covington, 161 S. W. 988. WAYS. II. TESTAMENTARY CAPACITY. § 47 (Mo.) That testator was old and greatly weakened in mind and body did not justify the court in confining him more closely to conventional methods in distribution.-Turner v. Butler, 161 S. W. 745. § 52 (Mo.) The burden is upon the proponent of a will to establish testamentary capacity of the testator by a preponderance of all the evidence.-Turner v. Butler, 161 S. W. 745. § 53 (Mo.) Where the issue was as to the testamentary capacity of testator, the court properly excluded questions asked an attorney, with whom testator had advised shortly before executing his will, as to the attorney's reasons for refusing to write the will at that time.Turner v. Butler, 161 S. W. 745. IV. REQUISITES AND VALIDITY. (B) Form and Contents of Instruments. § 104 (Mo.) A will which is so vague that the court cannot by reasonable rules of construction determine testator's intent is void.-Griffith v. Witten, 161 S. W. 708. A will, though ungrammatical in its construction and showing that testator was illiterate, held not so uncertain or incapable of construction as to be void.-Id. (F) Mistake, Undue Influence, and Fraud. § 156 (Mo.) That testator was old and greatly weakened in mind and body should make the court more careful in its scrutiny of the influences which surrounded him.-Turner v. Butler, 161 S. W. 745. $158 (Mo.) The law does not denounce the influence which a son-in-law may have over his father-in-law, but only the improper use of it.Turner v. Butler, 161 S. W. 745. § 163 (Mo.) When proponents have shown that a will was executed with all the prescribed formalities while the testator was of sound mind, it will then be presumed that it was his free and voluntary act.-Turner v. Butler, 161 S. W. 745. § 163 (Mo.) The confidential relation between son and father held to impose on him the burden of overcoming the prima facie case that the will was executed through his undue influence.-Wendling v. Bowden, 161 S. W. 774. § 166 (Mo.) That influence of a son-in-law is shown to exist, and that testator gave a large part of his estate to the daughter, the wife of the son-in-law, held not sufficient to establish undue influence.-Turner v. Butler, 161 S. W. 745. § 166 (Mo.) Evidence held to sustain a finding that a will was procured through undue influence.-Wendling v. Bowden, 161 S. W. 774. See Municipal Corporations, §§ 648, 663, 766- V. PROBATE, ESTABLISHMENT, AND 821. WEAPONS. See Robbery, §§ 28, 30. $13 (Tex.Cr.App.) A person who was electioneering on election day, and not properly ANNULMENT. (B) Actions to Establish or Determine Validity in General. $229 (Ky.) Where testatrix devised life estates in her property and the remainder over to a church, a question raised by her heirs, that the remainder to the church was void, was not academic, since, if it were void, the heirs would inherit.-Compton v. Moore, 161 S. W. 540. Under Ky. St. § 319, prohibiting any church from taking or holding exceeding 50 acres of land, heirs of testatrix, who had devised to a church 300 acres, held entitled to raise the question, as they, and not the state, were the parties in interest.-Id. (I) Hearing or Trial. § 324 (Mo.) Evidence, in a will contest, held not sufficient to take to the jury the question whether testator's son-in-law exercised undue influence over testator, respecting the execution of the will.-Turner v. Butler, 161 S. W. 745. § 329 (Mo.) Where the proponent depended upon the witnesses offered by contestant to prove testamentary capacity, it was not error to refuse to charge that, unless the proponents had proved such capacity by a preponderance of the evidence, the verdict should be against the will. -Turner v. Butler, 161 S. W. 745. VI. CONSTRUCTION. (A) General Rules. 839 (Mo.) At common law a devisee or legatee was not liable to the amount of the devised legacy by reason of the testator's liability on a covenant of warranty.-Armor v. Frey, 161 S. W. 829. Where a resident of Georgia conveyed land located in Missouri with covenants of warranty, the Missouri statute, making devisees and legatees liable to the amount of their gifts by reason of a breach of the covenant of warranty, has no effect and cannot be applied against devisees and legatees in the former state. Id. WITNESSES. See Appeal and Error, § 1048; Contempt, § 66; Continuance, § 33; Criminal Law, §§ 308564, 594-600, 676, 706, 742, 11702; Depositions; Evidence; Perjury; Trial, § 236, 252; Venue, § 72. II. COMPETENCY. § 440 (Mo.) The principal rule in construing wills is to ascertain testator's intent from the (C) Testimony of Parties or Persons Inwhole instrument.-Griffith v. Witten, 161 S. W. 708. § 449 (Mo.) It is presumed that testator intended to dispose of his entire estate.-Griffith v. Witten, 161 S. W. 708. § 470 (Mo.) Testator's intention must be ascertained from the four corners of the will.Griffith v. Witten, 161 S. W. 708. $488 (Mo.) If a will is so ambiguous as to make it difficult to ascertain testator's intent from its language, evidence aliunde may be considered.-Grillith v. Witten, 161 S. W. 708. (E) Nature of Estates and Interests Cre ated. (F) Vested or Contingent Estates and Interests. § 634 (Ky.) Will held to create contingent remainders: First, in the son of the life tenant, provided he outlived his father; second, if he did not, then to the father's three living brothers; and, third, to the children or descendants of such brothers, who would take if, at the time of the death of the life tenant, his son and the three brothers were dead.-Goff v. Renick, 161 S. W. 983. (H) Estates in Trust and Powers. § 693 (Mo.) Under will giving a wife a life estate with power to sell as she might think best and to her best interest, a conveyance to two of the remaindermen for no consideration paid at the time and upon an inadequate consideration, if any, held beyond her power and void.-Tallent v. Fitzpatrick, 161 S. W. 689. VII. RIGHTS AND LIABILITIES OF DEVISEES AND LEGATEES. (A) Nature of Title and Rights in General. terested, for or against Representatives, Survivors, or Successors in Title or Interest of Persons Deceased or Incompetent. $143 (Ky.) Under Civ. Code Prac. § 606, and subsection 7, a creditor who claimed that a debtor had acknowledged his debt and made a new promise is incompetent to testify in an action between his assignee and the debtor's administrator.-Davis v. Strange, 161 S. W. 217. § 144 (Mo.App.) Under Rev. St. 1909, § 6354, the agent of the living party, who made the contract for such party, is disqualified from testifying in an action to enforce the contract. -Taylor v. George, 161 S. W. 1187. Rev. St. 1909, § 6354, providing that, in actions where one of the original parties to the contract in issue is dead, the other party shall not testify for himself, is both an enabling and disabling statute; the proviso disabling one from testifying on account of the other's death. -Id. complish its evident purpose of preventing by law one party to a contract from testifying where death has prevented the other from testifying.-Id. The statute should be construed to ac (D) Confidential Relations and Privileged Communications. §193 (Tex.Cr.App.) In a prosecution for bigamy, evidence that the mother of the first alheld admissible, if she saw them without the leged wife saw letters to her from defendant connivance of the wife, but not as to letters sent by the first wife to the district attorney.Harris v. State, 161 S. W. 125. III. EXAMINATION. (A) Taking Testimony in General. § 257 (Ark.) Where a witness cross-examined by defendant's counsel as to the width of the counter, shelving, etc., in the saloon, refreshed his memory by referring to a memorandum of measurements he had himself made of his own accord, the refusal to permit defendant to have such memorandum submitted to the jury's inspection was not error.-Bruder v. State, 161 S. W. 1067. (B) Cross-Examination and Re-Examina tion. § 742 (Mo.) A conveyance of an interest in land by the sole devisee thereof before probate § 2662 (Mo.) Where a party who testifies of the will would take effect upon the subse- for himself is cross-examined on the details of quent probate, after contest, by relation back, his lite affecting his character, the answers, For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER unless material to the issues, are conclusive.― Wendling v. Bowden, 161 S. W. 774. § 268 (Mo.) A question to the prosecuting witness on cross-examination, who had testified that he did not go into the alley where he was robbed with some negro girls, whether he would not deny it, even if it were true, was properly excluded.-State v. Sydnor, 161 S. W. 692. § 268 (Tex.Cr.App.) Great latitude is permitted in cross-examining witnesses.-Christian v. State, 161 S. W. 101. § 268 (Tex.Cr.App.) In a prosecution for bigamy, where letters from defendant to the first alleged wife were not introduced, but where her mother was permitted to testify that she had received them, defendant had the right to cross-examine her as to how she knew the letters were written by him.-Harris v. State, 161 S. W. 125. § 380 (Ark.) Where a witness at trial gives different testimony from that before the grand jury, the prosecutor, being surprised, may examine the witness as to his testimony taken before the grand jury and question him concerning its correctness.-Carlton v. State, 161 S. W. 145. (E) Contradiction and Corroboration of Witness. 8410 (Tex.Civ.App.) Where a physician, who testified to examining plaintiff at the time of an injury while working for another railroad company, was contradicted by plaintiff, the contradiction was not such an impeachment as to authorize the introduction of the report by the physician as corroborative evidence.-Ft. Worth Belt Ry. Co. v. Cabell, 161 S. W. 1083. WOMEN. § 286 (Tex.Cr.App.) Where, in a perjury case, defendant, in questioning a state's witness as to having appeared against a relative of his in See Elections, §§ 60, 65. the commissioners' court, elicited the fact that other citizens had also appeared for the same purpose, it was not error to permit the state's attorney on redirect to ask about these other citizens.-Poulter v. State, 161 S. W. 475. §317 (Ark.) It was error to instruct that, if the jury believed any witness to have sworn falsely to any material fact, they might disregard the whole or any part of his testimony it being necessary that it be willfully done.Bruder v. State, 161 S. W. 1067. (B) Character and Conduct of Witness. WORDS AND PHRASES. "Adverse possession."-Frazier v. Houston Oil 522. "Commerce."-Interstate Amusement Co. v. Albert (Tenn.) 161 S. W. 488. § 336 (Mo.) A party who testifies for himself "Confiscated."-Skelley v. St. Louis & S. F. R. Co. (Mo. App.) 161 S. W. 877. may be cross-examined on the details of his "Conspiracy."-Clarkson v. Laiblan (Mo. App.) life affecting his character.-Wendling v. Bowden, 161 S. W. 774. § 337 (Mo.) It was improper for the prosecuting attorney to ask defendant on cross-examination as to his having been arrested several years before on a similar charge.-State v. Duff, 161 S. W. 683. § 338 (Ark.) A witness may be impeached by the party against whom he is produced by evidence that his general reputation for truth and morality renders him unworthy of belief.—Bruder v. State, 161 S. W. 1067. § 349 (Ark.) Where a witness for defendant testified that on the day prior to the killing defendant had no gun and wanted to borrow one because he was afraid to travel from the car line to his house, it was proper to cross-examine him as to whether he had married the keeper of a house of prostitution and had been divorced from her, and as to whether a scar on his face was the result of a fight in her house.Bruder v. State, 161 S. W. 1067. § 358 (Tex.Civ.App.) Where a witness is offered attacking the reputation of one of the parties, the party assailed is entitled, on crossexamination, to compel the witness to state the source of the reports upon which he bases his testimony.-Ft. Worth Belt Ry. Co. v. Cabell, 161 S. W. 1083. § 361 (Tex.Civ.App.) Where plaintiff's character was impeached by testimony as to his bad reputation for integrity and truth owing to his failure to pay his debts, plaintiff was entitled to testify as to the reason for his failure. -Ft. Worth Belt Ry. Co. v. Cabell, 161 S. W. 1083. (D) Inconsistent Statements by Witness. § 379 (Ark.) A witness may be impeached by the party against whom he is produced by contradictory evidence by showing that he has made statements differing from his present testimony.-Bruder v. State, 161 S. W. 1067. 161 S. W. 660. "Contiguous."-International & G. N. R. Co. v. "Doing business."-Interstate Amusement Co. V. Springfield Traction Co. (Mo. App.) 161 S. "F. o. b."-Burton & Beard v. Nacogdoches "Good breeder."-Perry v. Van Matre (Mo. App.) 161 S. W. 643. "Grant, bargain, and sell."-Laclede Laundry Co. v. Freudenstein (Mo. App.) 161 S. W. 593. "Great breeder."-Perry v. Van Matre (Mo. "Indecent."-Darnell v. State (Tex. Cr. App.) App.) 161 S. W. 643. 161 S. W. 971. "Information."-State v. Williams (Ark.) 161 S. W. 159. "Innuendo."-Skelley v. St. Louis & S. F. R. "Maintain."-State v. Woollen (Tenn.) 161 S. "Memory."-Key v. State (Tex. Cr. App.) 161] "Trust."-Crandall v. Scott (Tex. Civ. App.) S. W. 121. "Municipal corporation."-Board of Com'rs of Tuberculosis Hospital Dist. of Buchanan County v. Peter (Mo.) 161 S. W. 1155. "Negligence."-Featherstone V. Kansas City Terminal Ry. Co. (Mo. App.) 161 S. W. 284. "Nondelegable."-American Zinc Co. v. Smith (Tenn.) 161 S. W. 494. "Novation.""-Citizens' Bank of Senath V. Douglass (Mo. App.) 161 S. W. 601. "Obscene."-Darnell v. State (Tex. Cr. App.) 161 S. W. 971. "Office."-Day v. Sharp (Tenn.) 161 S. W. 994. "Pandering."-Boyle v. State (Ark.) 161 S. W. 1049. "Passenger."-Farmer v. St. Louis, I. M. & S. Ry. Co. (Mo. App.) 161 S. W. 327. "Pertinent hypothesis."-Belcher v. State (Tex. Cr. App.) 161 S. W. 459. "Printed brief."-Waterman Lumber & Supply Co. v. Holmes (Tex. Civ. App.) 161 S. W. 70. "Proximate cause."-International & G. N. R. Co. v. Walters (Tex. Civ. App.) 161 S. W. 916. "Public purpose."-Board of Com'rs of Tuberculosis Hospital Dist. of Buchanan County v. Peter (Mo.) 161 S. W. 1155. "Reasonably safe."-Marquez v. Koch (Mo. App.) 161 S. W. 648. "Regular address."-Bange v. Supreme Council Legion of Honor of Missouri (Mo. App.) 161 S. W. 652. "Relevancy."-Belcher v. State (Tex. Cr. App.) 161 S. W. 459. "School district election."-Stuessy v. City of Louisville (Ky.) 161 S. W. 564. "School measure or question."-Stuessy v. City of Louisville (Ky.) 161 S. W. 564. "Sovereignty of the soil."-Campbell v. Gibbs (Tex. Civ. App.) 161 S. W. 430. "Stare decisis."-Oliver Co. v. Louisville Realty Co. (Ky.), 161 S. W. 570. "State officer."-Ex parte Preston (Tex. Cr. App.) 161 S. W. 115. 161 S. W. 925. "Undue influence."-Wing v. Havelik (Mo.) 161 S. W. 732. "Value."-Greer v. Orchard (Mo. App.) 161 S. W. 875. "Vigilant watch."-Johnson v. Springfield Traction Co. (Mo. App.) 161 S. W. 1193. "Vulgar."-Darnell v. State (Tex. Cr. App.) 161 S. W. 971. "Water course."-Wilborn v. Terry (Tex. Civ. App.) 161 S. W. 33. "Willful."--Key v. State (Tex. Cr. App.) 161 S. W. 121. "Withhold."-Fitzpatrick v. Garver (Mo.) 161 S. W. 714. V. Wiltsé "Words of limitation."-Garrett (Mo.) 161 S. W. 694. "Written brief."-Waterman Lumber & Supply Co. v. Holmes (Tex. Civ. App.) 161 S. W. 70. WORK AND LABOR. See Highways, § 118; Mechanics' Liens; Trial, §§ 11, 191, 370. $7 (Mo.App.) There is no presumption that services rendered by a daughter to her aged mother are to be paid for.-Taylor v. George, 161 S. W. 1187. WRITS. See Attachment, Execution; Certiorari; Garnishment; Habeas Corpus; Injunction; Mandamus; Process; Replevin; Searches and Seizures; Sequestration. Of error, see Appeal and Error; Criminal Law, §§ 1017-1186. See Death. "Suit to quiet title."-Armor v. Frey (Mo.) 161 See Torts. S. W. 829. "Trade."-Hammond v. McFarland (Tex. Civ. App.) 161 S. W. 47. WRONGFUL DEATH. WRONGS. YEAR. See Landlord and Tenant. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER L 8205 |