STREET RAILROADS. II. REGULATION AND OPERATION. 16 (Mass.) Purchaser at execution sale of 117(24) (Mass.) Due care of truck driver SUBROGATION. (N.Y.) "Subrogation" defined.-Gerseta 902. 23 (1) (N.Y.) Buyer having set-off against See Principal and Surety. 981 For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER TAXATION. See Highways, 124-127. I. NATURE AND EXTENT OF POWER IN (D) Mode of Assessment of Corporate Stock, Property, or Receipts. 368 (Mass.) Affiliated corporations joining with corporations not subject to the statute, in filing consolidated return, must each file statement of net income (G. L. c. 63, § 39[2]).-A. C. Lawrence Leather Co. v. Commonwealth, 150 N. E. 851. 20 (Mass.) Permitting imposition of tax on one of group of foreign corporations conducting business at a loss not a taxing of property outside commonwealth (G. L. c. 63, § 39[2]).-A. C. Lawrence Leather Co. v. Com-438 (III.) Court can, on competent evidence, monwealth, 150 N. E. 851. 25 (Mass.) Power of Legislature to make distribution of tax burden, and finality of apportionment made, stated.-Essex County v. City of Newburyport, 150 N. E. 234. 28 (III.) Taxing power vested in Legislature, and may be delegated to municipalities. -People v. Chicago, M. & St. P. Ry. Co., 150 N. E. 247. II. CONSTITUTIONAL REQUIREMENTS (E) Assessment Rolls or Books. order record of proceedings in levying a tax amended so that it will speak the truth (SmithHurd Rev. St. 1925, c. 120, § 179).-People v. New York, C. & St. L. R. Co., 150 N. E. 707. (F) Equalization of Assessments. 4462 (Ind.) Though state board is instrumentality of state, its jurisdiction is circumscribed by legislative regulations.-Hasse v. Bielefeld, 150 N. E. 413. 4462 (Ind.App.) State Board of Tax Commissioners can exercise only powers conferred and in manner prescribed.-Doyle v. Lafayette Sav. Bank, 150 N. E. 619. 37 (Mass.) Classification of foreign corporations as one's doing business in the commonwealth only is not irrational (G. L. c. 63, 8450(2) (Ind.) In reassessment of real es39[2]).-A. C. Lawrence Leather Co. v. Com- tate in state oftener than every 4 years, statemonwealth, 150 N. E. 851. wide consideration of values only was intended; "maintain."-Hasse v. Bielefeld, 150 N. E. 413. 43 (Mass.) Equal benefits to all people not essential to validity of apportionment of taxes between subdivisions of state.-Essex County v. City of Newburyport, 150 N, E. 234. Subdivisions of commonwealth have not same rights as others to question legislative impositions of obligations.-Id. Rule as to apportionment of cost of public improvement against cities and towns affected stated.-Id. VIII. COLLECTION AND ENFORCEMENT (B) Summary Remedies and Actions. 593 (1) (Ohio) Treasurer's tax duplicate list held incompetent.-Etna Casualty & Surety Co. v. Ginder, 150 N. E. 359. Treasurer's delinquent personal book held incompetent.-Id. X. REDEMPTION FROM TAX SALE. 697(4) (Mass.) Record owner held not to have redeemed from tax sale.-Saftel v. Newton Sav. Bank, 150 N. E. 433. 145 (N.Y.) Conveyance to railroad company of rights of state to banks and prism of canal held to convey fee, so that company was not liable to franchise tax thereon.-People ex rel. Western New York & P. Ry. Co. v. Knapp, (A) Title and Rights of Purchaser at Tax 150 N. E. 145. XI. TAX TITLES. Sale. Easement granted to railroad company to op-732 (Mass.) Mortgage on premises not cut erate railroad on bridge over canal held not out by tax sale and failure of mortgagor as franchise subject to taxation.-Id. owner of equity to redeem from tax title.-Saftel v. Newton Sav. Bank, 150 N. E. 433. 168 (Mass.) Excess tax may be imposed on one or more of group of affiliated corpora-743 (Mass.) Finding that respondent held tions, which earned income, though group as a nothing under tax titles in locus held authorwhole conducted business at a loss (G. L. c. 63, ized.-Saftel v. Newton Sav. Bank, 150 N. E. § 39[2]; St. 1923, c. 254, § 2).-A. C. Law- 433. rence Leather Co. v. Commonwealth, 150 N. E. 851. (D) Exemptions. TORTS. See Assault and Battery, 43; Conspiracy, 6-20; Fraud, 9-64; Libel and Slander, 54-125; Malicious Prosecution, 1666; Municipal Corporations, 747-851; Negligence, 10-139; Nuisance, 6-72; Trover and Conversion. TOWNS. 213 (Ind.) Lessor's property, used for rental purposes, is not exempt merely because lessee devotes property to purpose Constitution exempts when owner so uses it (Const. art. 10, § 1 [Burns' Ann. St. 1926, § 2001; Acts 1921, c. 222, § 6 [Burns' Ann. St. Supp. 1921, § 10139f]).-Spohn v. Stark, 150 N. E. 787. Lessor's property, rented for armory pur- IV. FISCAL MANAGEMENT, PUBLIC DEBT, SECURITIES, AND TAXATION. poses by Indiana National Guard, is not exempt from taxation (Const. art. 10, § 1 [Burns' 56 (III.) Unitemized levies for miscellaneAnn. St. 1926, § 200]; Acts 1921, c. 222, § 6 ous expenses held invalid, as too large. Peo[Burns' Ann. St. Supp. 1921, § 10139f]).-Id. ple v. Chicago, M. & St. P. Ry. Co., 150 N. E. 247. to calendar (Smith-Hurd Rev. St. 1925, c. 110, §§ 28, 30; common-law rule 5 of the circuit court).-Loew v. Krauspe, 150 N. E. 683. IV. RECEPTION OF EVIDENCE. (C) Objections, Motions to Strike Out, and Exceptions. 89 (Ind.App.) Evidence offered to show that second annual premium of policy had been paid should have been stricken as being without probative force.-Equitable Life Assur. Soc. of the U. S. v. Campbell, 150 N. E. 31. 260(1) (Mass.) There was no error in refusal of requests, where jury were accurately instructed on questions raised therein.-Altman v. Goodman, 150 N. E. 834. 260(1) (Mass.) Refusal of requests was not error, where judge gave in substance so much of instructions as stated law applicable to the case.-Titcomb v. Bay State Grocery Co., 150 N. E. 874. (G) Construction and Operation. 296 (2) (Mass.) Charge relating to implied 91 (Ind.App.) Motion to strike out testi- contract not incorrect, in view of charge that mony, itself without probative force, on failure plaintiffs must show employment before being to adduce testimony of which it might be cor- entitled to recover.-Altman v. Goodman, 150 roborative, held sufficient objection thereto.-N. E. 834. Instruction as to right to recover on implied Equitable Life Assur. Soc. of the U. S. v. Camp-contract not confusing, in view of charge on right to recover on contract of employment. -Id. bell, 150 N. E. 31. VI. TAKING CASE OR QUESTION FROM JURY. (A) Questions of Law or of Fact in Gen eral. IX. VERDICT. (B) Special Interrogatories and Findings. 140(1) (Ind.App.) Peremptory instruction 350 (2)(.) Propriety of special interfor defendant in suit on life insurance policy rogatories stated.-Wicks v. Cuneo-Henneberry held properly denied, where evidence involved Co., 150 N. E. 276. credibility of witnesses, which was for jury.-359(1) (I.) When inconsistency between Equitable Life Assur. Soc. of the U. S. v. Camp- general verdict and special findings controls stated.-Wicks v. Cuneo-Henneberry Co., 150 bell, 150 N. E. 31. 140(1) (N.Y.) Verity of testimony is for N. E. 276. jury and not for court.-Schultze v. McGuire, 150 N. E. 516. (D) Direction of Verdict. 171 (Mass.) Trial court authorized to order verdict in absence of request therefor.Field v. Hamm, 150 N. E. 3. 174 (Mass.) Request for directed verdict was properly refused, where there was no motion in writing, as required by superior court rule 44.-Altman v. Goodman, 150 N. E. 834. VII. INSTRUCTIONS TO JURY. X. TRIAL BY COURT. (A) Hearing and Determination of Cause. 382 (111.) In case tried without jury, evidence is taken most favorably to adverse party on motion for finding for defendant at close of plaintiff's case.-Hoigard v. Yellow Cab Co., 150 N. E. 911. 386 (3) (Mass.) Requests for rulings, inconsistent with fact findings, are immaterial and properly refused.-Roche v. Brickley, 150 N. E. 866. (A) Province of Court and Jury in Gen- (B) Findings of Fact and Conclusions of eral. 194 (16) (N.Y.) Charge that it was duty of city as matter of law to maintain barriers between highway and reservoir held error.Bennett v. Town of Kent, 150 N. E. 302. (C) Form, Requisites, and Sufficiency. 235 (6) (Ind.App.) Instruction, cautioning jury to scrutinize admissions very closely, held error.-Reitemeier v. Linard, 150 N. E. 797. 242 (III.) Refusal of instructions likely to be misunderstood by jury and misleading held not error.-Brown v. Illinois Terminal Co., 150 N. E. 242. (D) Applicability to Pleadings and Evidence. 251(1) (Ohio) Admitting testimony of and charge imposing duty, facts creating it not having been alleged, held erroneous.-Cleveland, C., C. & St. L. Ry. Co. v. Potter, 150 N. E. 44. 252(8) (Mass.) Request held properly refused as immaterial.-Goldstein v. Slutsky, 150 N. E. 326. 252(16) (Mass.) Requested rulings in action between seller and broker of realty held properly refused.-Jacobs v. Brown, 150 N. E. 206. 253(4) (Ind.) Instruction not requiring that negligence be proximate cause of injury held erroneous.-Utterback v. Gootee, 150 N. E. 101. (E) Requests or Prayers. 260(1) (Mass.) Refusal of requests covered by charge given not erroneous.-National Shawmut Bank v. McGlinn, 150 N. E. 151. 260(1) (Mass.) Refusal of request given in substance not error.-Goldstein v. Slutsky, 150 N. E. 326. Law. to be held 395 (5) (Ind.App.) Findings clear statement of ultimate facts.-Sheehan Const. Co. v. Hurst, 150 N. E. 319. of 396(1) (Ind.App.) Court's findings drawing account agreement held immaterial variance from complaint alleging joint agreement to share profits.-Sheehan Const. Co. v. Hurst, 150 N. E. 319. 396 (1) (Mass.) General findings stand, if supported on either count of declaration.Zussman v. Goldberg, 150 N. E. 326. Finding that husband, executing sealed agreement declared on in one count, acted as agent for codefendant, wife, held warranted, and sustainable under count for money received.-Id. re 400(1) (Ind.App.) Requirement of a mittitur from prevailing party before final judgment constitutes an amendment to court's findings proper during term before final judgment.-Sheehan Const. Co. v. Hurst, 150 N. E. 319. 404 (2) (Ind.App.) Finding that depositor had received full value for certificate of deposit on surrender held finding of fact suthcient to sustain conclusion of law.-Amos v. American Trust Co., 150 N. E. 62. 983 For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER (B) Resulting Trusts. 329 (Mass.) Refusal of probate court to charge trustee with loss because of sale of property held sustained by evidence.-Wall v. Boston Safe Deposit & Trust Co., 150 N. E. 220. Supreme Judicial Court will assume that finding of probate court that trustee was not liable for loss included finding that trustee acted in good faith in making sale.-Id. Supreme Judicial Court will decide case on evidence, giving due weight to decision of trial judge after hearing oral testimony.-Id. VII. ESTABLISHMENT AND MENT OF TRUST. (C) Actions. ENFORCE 72 (Mass.) To secure conveyance of land purchased by another with agreement to convey portion, there must have been either constructive trust or resulting trust.-McDonald v.373 (Mass.) Ruling that finding must be for plaintiff in suit to apply trust funds to payConway, 150 N. E. 200. 78 (Mass.) No trust will result unless payment of debts held properly refused.-Roche v. Brickley, 150 N. E. 866. ment of purchase money for land, portion of which is to be conveyed to another, is made as loan to cestui at moment of payment.-McDonald v. Conway, 150 N. E. 200. USURY. I. USURIOUS CONTRACTS AND TRANSAC- 79 (Ind.App.) Agreement to invest money of another and hold such other's interest in trust held to create trust in property (Burns' Ann. St. 1914, §§ 4017, 4019).-Joyce v. Boc-55 (I.) Broker quin, 150 N. E. 816. 80 (Ind.App.) Where party, alleged to have furnished part of purchase price, was a mere volunteer, court properly denied his heirs a vendor's lien. Miller v. Miller, 150 N. E. 378. No resulting trust arises in favor of party, alleged to have furnished part of purchase price, where he acted as a mere vounteer.-Id. Facts held not inconsistent with a gift of money to purchaser and not to entitle heirs of party furnishing the money to a vendor's lien or trust in property.-Id. (C) Constructive Trusts. (A) Nature and Validity. negotiating loan may charge borrower commission without making loan at full rate of legal interest usurious.Council v. Bernard, 150 N. E. 272. Withholding commission for loan not usury, if interest together with commission does not exceed legal rate.-Id. Facts held not to show that mortgage loan transaction usurious.-Id. VENDOR AND PURCHASER. See Sales. 1. REQUISITES AND VALIDITY OF CONTRACT. 99 (Mass.) To secure conveyance of land purchased by another with agreement to con-44 (II.) Evidence held to sustain finding vey portion, there must have been either con- that no sale of real property was consummated. structive trust or resulting trust.-McDonald-Boden v. Swanson, 150 N. E. 641. v. Conway, 150 N. E. 200. II. CONSTRUCTION AND OPERATION. (A) In General. 124 (N.Y.) Trustee under will held to have duty to distribute income of trust estate among some or all of persons mentioned as possible beneficiaries.-Hamilton v. Drogo, 150 N. E. 496. III. APPOINTMENT, QUALIFICATION, AND II. CONSTRUCTION AND OPERATION OF 62 (Mass.) Contract held not to import warranty of ownership in property sold; "all right, title, and interest."-United Sugar Co. v. Guaranty Trust Co., 150 N. E. 95. IV. PERFORMANCE OF CONTRACT. (D) Payment of Purchase Money. 185 (III.) Rights of purchasers under contract for sale of property held not forfeited by 160(2) (III.) Cannot fail for want of trus- laches. Troyer v. Erdman, 150 N. E. 657. tee.-Olson v. Larson, 150 N. E. 337. TRUST PROPERTY. OF 211 (Mass.) Employment by trustee of broker in making sale of trust property held not unwarranted.-Wall v. Boston Safe Deposit & Trust Co., 150 N. E. 220. Ordinarily trustee would not be justified in paying more than usual commission for sales of trust property.-Id. Trustee held unwarranted in paying broker more than usual commission.-Id. 219(2) (N.Y.) Trustee, not guilty of bad faith, chargeable with 3 per cent. interest only. -Ellis v. Kelsey, 150 N. E. 148. 227 (N.Y.) Trustee, charged with bad faith, properly allowed commissions for counsel fees. -Ellis v. Kelsey, 150 N. E. 148. VI. ACCOUNTING AND COMPENSATION OF 321 (N.Y.) Trustee, acting in good faith in paying balance to wrong party, held entitled to commissions.-Ellis v. Kelsey, 150 N. E. 148. 325 (Mass.) Burden of proving that amount paid broker in procuring sale of trust property was fair and reasonable is on accountant.Wall v. Boston Safe Deposit & Trust Co., 150 N. E. 220. V. RIGHTS AND LIABILITIES OF PAR TIES. (B) As to Third Persons in General. 214(1) (III.) Assignee of contract to purchase land takes subject to any defenses against assignor in absence of estoppel.-Behrendt v. Acocella, 150 N. E. 913. (C) Bona Fide Purchasers. 232(5, 6) (Ind.App.) Continued possession of grantor held not notice of rights claimed in land contrary to warranty deed.-Bryan v. Reiff, 150 N. E. SOO. WILLS. 534 (Mass.) Testator's widow, although See Descent and Distribution; Executors and given estate for life, took remainder at his death.-Ball v. Hopkins, 150 N. E. 434. Administrators. IV. REQUISITES AND VALIDITY. (A) Nature and Essentials of Testamentary Dispositions. 88(1) (Mass.) Instrument of trust held not void as testamentary disposition.-Roche v. Brickley, 150 N. E. 866. (C) Execution. 116 (III.) Stockholder of bank named executor not credible witness.-Olson v. Larson, 150 N. E. 337. (E) Nature of Estates and Interests Created. 590 (Mass.) Life tenant may have vested contingent interest in remainder.-Porter v. Malloy, 150 N. E. 179. Stockholder of bank appointed executor of will may be compelled to testify as witness.-Id. 597(1) (III.) In absence of contrary intenDevise to bank as executor and trustee held tion, courts will construe will to give estate of not to fail because subscribing witnesses were inheritance to first donee, where language of stockholders of bank.-Id. will is sufficient.-Evans v. Van Meter, 150 N. E. 693. 123(4) (Ind.App.) Order of signing immaterial, if signed as one continuous transaction, in presence of each other.-Harmening v. Harmening, 150 N. E. 376. V. PROBATE, ESTABLISHMENT, AND AN- (G) Petitions, Objections, and Pleadings. 317 (Mass.) Directing issue for jury on petition for allowance of will is not warranted, unless statements of counsel indicate reasonable hope for favorable result.-Johnson v. Talbot, 150 N. E. 900. 324 (2) (Ind.App.) Peremptory instruction error, where there was evidence tending to establish unsoundness of mind.-Smith v. Kemerly, 150 N. E. 65. 324(2) (Mass.) Old age, mental peculiarities, and devise to society for prevention of cruelty to animals held not to warrant issue of testamentary capacity.-Johnson v. Talbot, 150 N. E. 900. 324(3) (Ind.App.) Peremptory instruction error, where there was evidence tending to establish undue influence.-Smith v. Kemerly, 150 N. E. 65. (K) Review. 601 (I) (IH.) Fee-simple estate, given by one clause of will, cannot be cut down by subsequent clause except by clear language.-Evans v. Van Meter, 150 N. E. 693. (H) Estates in Trust and Powers, 675 (III.) Provision's in will of wife, giving estate to nephew, and stating she believed that he would take care of her husband, held onforceable in court of equity.-Kirchner v. Morrison, 150 N. E. 690. 684 (9) (Mass.) Son held entitled to fivetwelfths of income, and daughter to seventwelfths of income of trust.-Hulbert v. Smith, 150 N. E. 193. VII. RIGHTS AND LIABILITIES OF Dev ISEES AND LEGATEES. (D) Election. 778 (III.) Devisee, having right of election between will and statutory rights, must accept benefits of will and surrender any other right or reject will.-Kirchner v. Morrison, 150 N. E. 690. 356 (Mass.) Probate practice according to equity, so far as practicable and applicable.-782(5) (III.) Will providing for widow in Boston Safe Deposit & Trust Co. v. Wickham, lieu of dower is mere offer to purchase her le150 N. E. 223. gal rights.-Schaffenacker v. Beil, 150 N. E. 333. 384 (Mass.) Order of probate judge, based on statements of counsel without proof, direct-792(5) (III.) Burden of proving that widing issue of testator's mental capacity to be sub- ow, renouncing will, accepted rents under will, mitted to jury, is entitled to weight and consid- is on defendants.-Schaffenacker v. Beil, 150 N. eration on appeal.-Johnson v. Talbot, 150 N. E. 333. E. 900. 370 (Mass.) Report of material facts found by judge should be printed in record on appeal. -Boston Safe Deposit & Trust Co. v. Wickham. 150 N. E. 223. 386 (Mass.) Probate judge's fact findings not set aside, unless plainly wrong.-Boston Safe Deposit & Trust Co. v. Wickham, 150 N. E. 223. VI. CONSTRUCTION. (A) General Rules. 794 (11.) Widow not estopped by accep tance of portion of rent from estate from renouncing will.-Schaffenacker v. Beil, 150 N. E. 333. 794 (III.) Where there is right of election between will and statutory rights, acceptance of provisions of will is ratification of it.-Kirchner v. Morrison, 150 N. E. 690. 800 (III.) One cannot accept benefit of will and claim statutory rights.-Kirchner v. Morrison, 150 N. E. 690. Devisee, by accepting terms of will, held not precluded from insisting upon postnuptial agreement between testatrix and husband.—Id. 461 (Mass.) Mistake by testator in using "and" for "or" must appear from context of will.-Porter v. Molloy, 150 N. E. 179. Death of remainderman after reaching speci-801 (III.) Devise of life estate to widow fied age held not to entitle substituted remaindermen.-Id. 488 (1.) Patent ambiguity in will cannot be explained by extrinsic evidence.-Evans v. Van Meter, 150 N. E. 693. passes by will on renunciation.-Schaffenacker v. Beil, 150 N. E. 333. Renunciation by widow of life estate does not create "estate per autre vie."-Id. Widow's rights on renunciation of life estate under will determined.-Id. (B) Designation of Devisees, and Lega-801 (III.) Renunciation by widow of hustees and Their Respective Shares. 524 (2) (Mass.) Heirs of testator determined as of date of his death.-Ball v. Hopkins, 150 N. E. 434. band's will entitles her only to dower interest in husband's estate (Smith-Hurd Rev. St. 1923, c. 41, § 10: chapter 29, § 1, cl. 4).—Fife v. Fife, 150 N. E. 630. |