trains was not calculated to call his attention to the danger to be apprehended from mail cranes, inasmuch as the arms were swung away from the track when not in use and would not endanger an employee riding in the cab of an engine.

The jury awarded the plaintiff $8,700 damages, and it is contended that the verdict is excessive. The plaintiff was about twentyeight years of age and earning $125 a month at the time of the injury. The injury itself was serious. The outer table of the skull was fractured for a length of four and onehalf inches. Plaintiff testified that he was wholly incapacitated for labor during the year that elapsed between the time of the injury and the time of the trial. [58] There was medical testimony tending to show that the injury was permanent, at least unless relief could be secured by an operation, and it was a matter of conjecture whether an operation would afford anything more than temporary relief. The case is one where the award of the jury should not be disturbed.

It is said that the verdict is informal and insufficient because all of the material issues in the case were not submitted to the jury. No question was requested which would tend to cure the omissions complained of. Such being the case, we must presume that the court found in plaintiff's favor on any material issue not passed on by the jury. BY THE COURT.-Judgment affirmed.

NOTE.

Location of Mail Crane near Railroad Track as Actionable Negligence.

In Denver, etc. R. Co. v. Burchard, 35 Colo. 539, 9 Ann. Cas. 994, the court, in view of the fact that the use of mail cranes increases the dangers of railroading, recognized the rule that it constitutes negligence on the part of a railroad company to maintain such an appliance in closer proximity to its tracks than its efficient use properly demands. That rule is supported by the holding in the recent case of Missouri, etc. R. Co. v. Williams, 103 Tex. 228, 125 S. W. 881. In that case it appeared that an engineer was killed by striking his head against one of the beams of a mail crane while gazing ahead from the window of his engine cab. The defendant was charged with negligence "in locating the crane too near the track." The court held that there was sufficient evidence to take the case to the jury on that issue, it being shown that the crane would have performed its function equally well if located at a greater distance from the track. Apparently, it was the view of the court that the rule res ipsa loquitur is applicable to cases of this class, for while in that case the plaintiffs went further in their proof than merely to show the occurrence of

the accident and introduced evidence of the railroad company's negligence, the court said obiter: "The occurrence itself is sufficiently indicative of negligence on defendant's part to call for an explanation from it, freeing it from such an imputation. The killing of one of its employees, while in the proper performance of his duty, by contact with a structure of its own contrivance near the track, strongly indicates a lack of proper care and foresight in the location of the structure, in view of the reasonable presumption that it could have been made consistent with the safety of employees while rendering the ordinary service. The mere adoption of such an expedient for handling the mails would imply that its proper use would not endanger employees so engaged on passing trains, and that a collision would not likely happen, when proper care is used in constructing it to make it safe."

The question whether the defendant railroad company was negligent in having located the mail crane which caused the injuries complained of too close to its track was not raised in the reported case. Therein the negligence alleged was that the crane had been permitted to become out of repair and as a result to come in slightly closer proximity to the track than when properly maintained. All the cranes used by the defendant railroad were supposed to be at a prescribed distance and to give a standard clearance space, which could apparently be changed only with the consent of the federal government. It is held that the question was for the jury and that they might properly find that the defendant was negligent.

In Chesapeake, etc. R. Co. v. Jesse, 159 Ky. 450, 167 S. W. 407, it appeared that the plaintiff was working as a member of the crew of a work train on defendant's road, and that he sustained the injuries complained of by striking a mail crane while endeavoring to board one of the cars of the work train which had started up suddenly and without giving him time to get aboard safely before the crane was reached. The negligence charged was the starting of the train without giving the plaintiff proper notice to enable him to get aboard safely. The jury found for the plaintiff and the court held that there was sufficient evidence to take the case to the jury.

In Wolf v. East Tennessee, etc. R. Co. 88 Ga. 210, 14 S. E. 199, the evidence showed that the injured person was a front brakeman on one of the defendant's trains and that his place of duty was on the top of the train when it was in motion; that the train having stopped at a certain station, he went to a store some sixty feet distant on his own business; that when the train started he ran from the store and caught the first car he came to, putting his foot in the "stirrup" and

Under the Statute of Wills (Hurd's Rev. St. 1913, c. 148, § 17) providing that no will shall be revoked otherwise than by destroying it, or by other will, testament or codicil in writing declaring the same, signed by testator in the presence of two or more witnesses, and attested by them in his presence, a former will and codicil are not revoked by an instrument intended as a subsequent will which expressly revoked them, but was invalid because of the incompetency of one of the subscribing witnesses.

[See Ann. Cas. 1912D 235.] Wills Revival Destruction of Revoking Will.

The destruction by the testator of a will whereby a former will was revoked operates to revive the former will.

[See note at end of this case.]

Appeal from Circuit Court, Cook county: WINDES, Judge.

Action to contest will. William H. Moore et al., plaintiffs, and Susan Ann Rowlett et al., defendants. Judgment for plaintiffs. Defendants appeal. The facts are stated in the opinion. REVERSED.

Robert E. Pendarvis and Robert N. Holt for appellants.

Eastman & White and C. Van Alen Smith for appellees.

[89] CRAIG, J.-Appellees filed their bill in the circuit court of Cook county against appellants to contest the validity of an instrument admitted to probate in the probate court of that county as the last will and testament

of Levi Moore, deceased. The grounds for the contest alleged in the bill were that the testator was not of sound and disposing mind and memory and that the will was the result of undue influence exercised over him by appellants. By a subsequent amended bill the further charge was made that by a later instrument in writing, executed by the testator as his last will and testament in the presence of two witnesses, he revoked the will in question. Appellants answered, admitting the death of Moore, the making of the will and codici in question, their admission to probate and the appointment of John J. Lovett as executor, but denied the testator was of unsound mind and memory, that any undue influence was exercised over him by appellants or that the will and codicil in question were revoked by the later instrument. The answer further alleged that appellees were estopped from now raising this question by reason of their having had notice of the application to probate the will and codicil in question and their participation in such proceedings without raising the question now raised, and that a court of chancery had no jurisdiction of the question involved. The cause was tried before the court without a jury on a stipulation of facts, by which all questions of fraud, undue influence and incapacity to make a will were eliminated. It was agreed that the testator executed an instrument on March 20, 1900, as his last will and testament (the will in question), and on August 21, 1902, added thereto a codicil, and later, on December 12, 1903, executed another instrument in writing, in the presence of two witnesses, as his last will and testament, containing a clause expressly revoking all prior wills; that this later instrument was admitted to probate as his last will and testament, and that the order admitting [90] it to probate was subsequently vacated for want of statutory notice to all the heirs; that upon the second application probate was denied by reason of its defective execution, one of the witnesses not being a credible witness; that upon appeal to this court the order so denying probate was affirmed in Rowlett v Moore, 252 Ill. 436, Ann. Cas. 1912D 346, 96 N. E. 835; that thereupon the will of March 20, 1900, and codicil of August 21, 1902, were admitted to probate as the last will and testament of Levi Moore, deceased, and Lovett was appointed executor thereof, the parties saving to themselves all questions as to the competency, relevancy and admissibility of such evidence. At the conclusion of the hearing the court held the instrument of December 12, 1903, admissible and competent evidence as a revocatory instrument, and held that it worked a revocation of the former will of March 20, 1900, and codicil thereto, and entered a decree setting aside the order admit

ting the will of March 20, 1900, to probate as the last will and testament of the deceased. From this decree appellants have prosecuted their appeal to this court.

The principal question involved, and the only one we deem it necessary to consider, is the sufficiency of the later instrument to operate as a revocation of the former will and codicil. Appellants contend that under our statute a will can be revoked only by a later will duly executed and admitted to probate in the manner provided by law, while appellees contend that a former will may be revoked by any instrument in writing declaring such intention, executed in the presence of two witnesses, whether the same be in the form of another will defectively executed, or otherwise.

The manner in which a will may be revoked by the act of the testator is provided in section 17 of the Statute of Wills (Hurd's Stat. 1913, p. 2491), which is as follows: "No will, testament or codicil shall be revoked, otherwise than by burning, canceling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testament or codicil in [91] writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence; and no words spoken shall revoke or annul any will, testament or codicil in writing, executed as aforesaid, in due form of law." This section was before this court in Stetson v. Stetson, 200 Ill. 601, 66 N. E. 262, 61 L.R.A. 258, where it was held that a former will could only be revoked by a subsequent will declaring a revocation of all former wills, and not by a subsequent instrument in writing not testamentary in character declaring such revocation, and that as a will was ambulatory, inoperative, ineffectual and without legal existence until the death of the testator, the destruction of a subsequent duly executed will containing a revocatory clause expressly revoking all former wills would revive such former will.

Appellees attempt to distinguish this case from the Stetson case because in that case the later will was not found and no explanation was made of its loss from which it might be presumed that it was destroyed by the testator with the intention of reviving his former will, while in this case both instruments were preserved by the testator until his death, thus negativing any presumption of intention to revive the former will by the destruction of the later will. The decision, however, in the Stetson case was not based upon any presumption as to the intention of the testator, but, on the contrary, it was there expressly held that the common law rule was in force in this State, by which a

former will is revived and restored by the destruction of the later one, wholly independent of the intention of the testator in destroying such later instrument, although a different rule prevailed in the ecclesiastical courts, which followed the civil law, under which it was held that the question of revivor by a destruction of a later will is a matter of intention, to be determined from a consideration of all of the facts and circumstances attending the destruction of the later instrument. The decision in the Stetson case was [92] not based upon the question of the testator's intention, but, on the contrary, was based solely upon the positive rules of the common law and the language of section 17 of our Statute of Wills.

In the Stetson case it was admitted that the second will contained a clause revoking all former wills, and the court stated the propositions presented to it for decision as follows: "If the second will made by Jesse Stetson contained an express clause of revocation, did such clause operate at once and of its own force to immediately revoke and annul the first will, made on December 3, 1897, and did the loss or destruction of the second will containing such clause of revocation, even though such loss or destruction was the act of the testator himself, operate to revive the former will dated December 3, 1897 ?" In disposing of the two propositions presented for decision it was necessary for the court to first determine the effect of the execution of the later will with the clause revoking all former wills before proceeding to a determination of the effect of the destruction of such instrument on the former will executed by the testator, for if the mere execution of the subsequent instrument ipso facto worked a revocation and cancellation of all former wills, its destruction could not have been effective to revive such former will, as the act of revocation would have been completed and consummated when the instrument was executed and would have operated instantaneously to absolutely revoke such former will. In re Noon, 115 Wis. 299, 91 N. W. 670, 95 Am. St. Rep. 944; Bates v. Hacking, 28 R. I. 523, 68 Atl. 622, 125 Am. St. Rep. 759, 14 L.R.A. (N.S.) 934; Blackett v. Zeigler, 153 Ia. 344, Ann. Cas. 1913E 115, 133 N. W. 901, 37 L.R.A. (N.S.) 291. And in determining the effect of the execution of such subsequent will under our statute the court said, on page 612: "It being established, then, that under section 17 of the Illinois Statute of Wills a former will can only be revoked by a subsequent will declaring the revocation of all former wills, and not by a subsequent instrument in writing not testamentary in character which declares the [93] revocation of the former will, it cannot be said that in this State the destruction of a duly executed will containing an

express revocation of a former will does not have the effect of reviving the former will.” The rule announced in the Stetson case has been followed in several, if not all, of the jurisdictions where the common law rule is in force. Bates v. Hacking, supra.

In 40 Cyc. 1177, the author says: "If the instrument propounded as a revocation be in form a will, it must be perfect as such and be subscribed and attested as is required by the statute. An instrument intended to be a will, but failing of its effect as such on account of some imperfection in its structure or for want of due execution, cannot be set up for the purpose of revoking a former will." The reason for this is that the instrument is executed as a whole and is not to be operative until the death of the testator, and the revocation clause, like every other declaration of the testator's will and intent therein, is ambulatory, and must stand or fall with the other provisions of the instrument. Laughton v. Atkins, 1 Pick. (Mass.) 535; Eccleston v. Petty, Carth (Eng.) 79. In Bates v. Hacking, supra, the court said: "The statutory provisions for revocation by will properly executed or by some writing declaring an intention to revoke, executed like a will, are neither identical nor interchangeable. They differ

materially, in that the former relates to a will while the latter does not. One looks toward the future while the other regards the present. The writing declaratory of an intention to revoke is evidence of a present intention, and when executed becomes, of itself, a complete revocation, but the revocation by will takes effect only when the will of which it forms a part becomes effective, and that can never be in the lifetime of the testator."

In this State the legislature has provided several ways by which a former will may be revoked by the act of the testator, and in such provision has provided that when the revocation is attempted by another instrument it must be [94] "by some other will, testament or codicil in writing, declaring the same," etc. This language is clear, plain and unambiguous, and in the Stetson case, supra, was held to mean what it plainly says. A further reconsideration of the matter leads us but to re-affirm what we there said.

For the reasons given, the decree of the circuit court will be reversed and the cause remanded, with directions to dismiss the bill. Reversed and remanded, with directions. Rehearing denied October 7, 1915.

NOTE.

The reported case, in passing on the disputed question whether the destruction of a will whereby a former will is revoked works

ipso facto a revival of the earlier testament, aligns itself with the minority of American jurisdictions which hold that a revival results under those circumstances. The cases discussing the revival of a will by the destruction of a revoking will are reviewed in the notes to Williams v. Miles, 4 Ann. Cas. 306; Danley v. Jefferson, 13 Ann. Cas. 242; Blackett v. Ziegler, Ann. Cas. 1913E 115; Graham v. Burch, 28 Am. St. Rep. 339, 354; and Matter of Stickney, 76 Am. St. Rep. 246.

WAGNER ET AL.

V.

CITY OF SEATTLE.

Washington Supreme Court-March 5, 1915.

84 Wash. 275; 146 Pac. 621.

Injury from Amend

Notice of Claim

Streets and Highways Defect ment. Under the Seattle charter providing that all claims against the city for damages shall contain all items of damage claimed, where a claim for personal injuries made no claim for damages on account of the employment of a nurse, though such damage was known when the claim was filed, it is error to permit an amendment of the claim at the trial by including such damages, as the provision requiring the filing of a claim is statutory in its nature and there can be no amendment without statutory authority.

Cure of Error by Remittitur.

Where, in an action against a city for personal injuries, the court erroneously permitted an amendment of the claim filed with the city to include $65 expended in the employment of a nurse, the error can be remedied on appeal without a reversal, if plaintiff will file a remittitur of $65. Scope of Notice

Injuries Provable. While a claim against a city for personal injuries cannot be amended at the trial to include items of damage known at the time of the filing of the claim, but not included therein, injuries not specifically mentioned in the claim, but which naturally and proximately flow from the injuries described in the claim, are provable.

Amendment of Notice.

Under Rem. & Bal. Code, § 7995, requiring claims for damages against any city of the first class to contain a statement of the actual residence of the claimant by street and number at the date of filing the claim and for six months immediately prior thereto, in an action for personal injuries the court has no power to permit an amendment of the

Address of

Under Rem. & Bal. Code, § 7995, a claim against a city of the first class for injuries to a person who had resided at 208 Twentyfirst avenue for six years was not defective, though it stated her street address as 218 Twenty-first avenue, where she was well known to the residents of 218 Twenty-first avenue and proper inquiry there would have disclosed her residence, as the purpose of provisions requiring the filing of claims is to insure such notice to the city as will enable it to investigate the cause and character of the injury; and where there is a bona fide attempt to comply with the law and the notice filed actually accomplishes its purpose of notice, it is sufficient, though defective in some particulars.

Appeal from Superior Court, King county: TALLMAN, Judge.

Action for damages. Esther Wagner et al., plaintiffs, and City of Seattle, defendant. Judgment for plaintiffs. Defendant appeals. The facts are stated in the opinion. MODIFIED.

James E. Bradford and Melvin S. Good for appellant.

Rosenthal & Aaron and Philip Tworoger for respondents.

[275] MORRIS, C. J.-Action for personal injuries claimed to have been sustained from a fall upon a defective sidewalk. Verdict and judgment for $325 in plaintiff's favor, the injuries being slight, from which the city appeals.

[276] The error urged against the judg ment is that the trial court permitted respondents to amend the claim filed with the city so as to embrace items of damage known to respondents at the time the claim was filed, but not included therein. The injury occurred on November 19, 1911. The claim was filed December 16, 1911. It sets forth the particulars as to the place and character of the injury and the damage sustained, but makes no reference to the employment of nurses, nor any claim of damages caused by such employment. On the trial, respondents offered testimony to the effect that they had expended $65 in the employment of a nurse. The city objected as not being within the claim filed. The lower court overruled the objection, and permitted respondents to Ann. Cas. 1916E.-46.

amend the claim so as to include this item. The amendment also included a change in respondents' address from 218, 21st avenue, as given in the claim filed, to 208, 21st avenue.

The charter of the city of Seattle provides that, all claims for damages shall "contain all items of damage claimed." Rem. & Bal. Code, § 7995 (P. C. 77, § 133), provides that, such claims shall state the residence of the claimant at the date of the filing and for six months immediately prior thereto. Provisions of this character have uniformly been sustained, and must be complied with when, as here, the items are known at the time of the filing of the claim. Horton v. Seattle, 53 Wash. 316, 101 Pac. 1091; Casassa v. Seattle, 75 Wash. 367, 134 Pac. 1080; Collins v. Spokane, 64 Wash. 153, 116 Pac. 663, 35 L.R.A. (N.S.) 840. The provision requiring the filing of a claim being statutory in its nature, there can be no amendment without statutory authority. There is no such authority in this state, and we must hold that such claims cannot be amended at the trial so as to include items of damage known at the time of the filing of the claim but not included therein. It was, therefore, error for the lower court to permit the amendment, but it does not follow that the judgment must be reversed, since the error can be remedied by deducting from the judgment the sum of $65, the amount paid [277] for nursing. We do not mean to be understood in so holding, that claims of this character must be construed with such exactness as to preclude evidence of those injuries not specifically mentioned in the claim, but which naturally and proximately flow from the injuries described in the claim. Evidence of such proximate results is admissible without reference to the claim. Durham v. Spokane, 27 Wash. 615, 68 Pac. 383.

While the lower court was not justified in allowing the amendment of the claim as to respondents' street address, it does not follow that this was error so prejudicial as to call for a reversal, since the evidence of the correct address was admissible without the amendment. The obvious purpose of these charter and statutory provisions is to insure such notice to the city as to enable it to investigate the cause and character of the injury, and where there is a bona fide attempt to comply with the law, and the notice filed actually accomplishes its purpose of notice, it is sufficient though defective in some particulars. Lindquist v. Seattle, 67 Wash. 230, 121 Pac. 449.

In Frasier v. Cowlitz County, 67 Wash. 312, 121 Pac. 459, it was said:

"The purpose of these provisions, as applied to a claim arising from a tort is to enable the municipality to investigate both the claim and the claimant."

It is sufficient, therefore, if the notice or claim is not calculated to mislead, but con