« ΠροηγούμενηΣυνέχεια »
Court of Second Judicial Dist. in and for Sil- , but to arise by implication of law from acts
ver Bow County, 154 P. 200.
and conduct consistent, in honesty and fair deal-
ing, only with a trust.-O'Donnell v. McCool,
TRIAL DE NOVO.
154 P. 1090.
See Appeal and Error, Cw895.
Cm79 (Wash.). Trust held not to have resulted
in favor of plaintiff in whole of land in defend-
TROVER AND CONVERSION.
ant's name, defendant having paid part of pur-
chase price, but to have resulted as to interest,
See Chattel Mortgages, ww168–170.
which, without injustice, might be concluded to
be a half interest.-O'Donnell v. McCool, 154
Trust held to result in favor of party furnish-
(B) Jurisdiction, Parties, Preliminary
ing aliquot part of money for purchase of land
Proceedings, and Pleading.
for common account of himself and another,
Om32 (Okl.) The petition in an action for who, in violation of the agreement, takes exclu-
conversion of personalty must show that plain- sive title.-Id,
tiff has been deprived of possession of such per-
83 (Kan.) A parol agreement between an
sonalty.-McCracken v. Cline, 154 P. 1174.
optionee and another that the latter would buy
the land, taking title in his own name, and on
resale pay the optionee one-half the profit, held
em 36 (Okl.) Where merchandise is traded for not to create, in favor of the optionee, an im-
land and the difference paid in notes secured by plied trust under Gen. St. 1909, $ 9701.—Grant-
chattel mortgages, and where the mortgagor ham y. Conner, 154 P. 246.
sells the mortgaged property at public sale, and
the mortgagee acting as clerk of the sale re-
(C) Construotive Trusts.
tains the proceeds, held that, in an action for
conversion of such proceeds, evidence of the en- Om95 (Cal.App.) Where, by fraud, defendant
tire transaction is admissible.-Swain v. Arch- obtained money from plaintiff and therewith
er, 154 P. 644.
paid part of the purchase price of an automobile
for a contract of sale to him on the installment
plan, plaintiff could impress a constructive
trust, arising from defendant's fraud, upon such
contract.-Carter v. Holt, 154 P. 37.
100 (Mont.) An agreement by a bank to lend
money to a wife and to buy in property of her
husband, which was to be sold on mortgage fore-
closure, raises, under Rev. Codes, $ 4538, a re-
sulting trust in favor of the wife, where the
TRUST FUND DOCTRINE. bank acquired the property and refused to con-
vey it to the wife.-Marcellus v. Wright, 154
See Corporations, ww545.
II. CONSTRUCTION AND OPERA-
See Appeal and Error, Om150; Assignments
for Benefit of Creditors; Charities.
(B) Estate or Interest of Trustee and of
Cestai Que Trust.
I. CREATION, EXISTENCE, AND VA- 135 (Cal.) Trust in real and personal prop-
erty for benefit of trustor during life and on
(A) Express Trusts.
her death to nominees in her will, or to ber
Om 17, 18 (Kan.) A parol agreement between an heirs, held not a dry trust, but an active trust,
optionee and another that the latter would buy in the exercise of which the trustee, under Civ.
the land, taking title in his own name, and on re- Code, $ 863, took the whole legal title.--- Gray v.
sale pay the optionee one-half the profit, held Union Trust Co. of San Francisco, 154 P. 306.
not to create a valid express trust in favor of Cm140 (Cal.) Under Civ. Code, 88 769, 773,
the optionee.-Grantham v. Conner, 154 P. 246. 781, trust in real and personal property to pay
Om 17, 18 (Or.) As under L. 0. L. $ 804, a parol income to trustor for life, and to nominees in
trust of land is invalid, no trust in the proceeds her will, or to her heirs under law in force at
of land held under a parol trust agreement can its creation, held to create vested remainders
arise, unless after sale the trustee has made a in heirs subject to divestiture by trustor's nom-
declaration of trust.-Johnson v. McKenzie, 154 ination by will.-Gray v. Union Trust Co. of
San Francisco, 154 P. 306.
em 17, 18 (Wash.) An express trust in real es-
tate cannot be proven by parol.--Smith v. Im- III. APPOINTMENT, QUALIFICA-
hoff, 154 P. 793.
TION, AND TENURE OF
Om59 (Cal.) Under Civ. Code, $ 2280, trust in
real and personal property, created by instrum160 (Or.) If, there were no Churches of
ment not reservin; any power of revocation, Christ Scientist' in Portland qualified to take
held irrevocable by any act of the trustor.
Gray v. Union Trust Co. of San Francisco, 154 the reversion of the stock of a corporation as
provided by will of the donor, the courts would
not allow the trust to fail for want of a trustee.
m 61 (Cal.) When the parties interested in a -Carson v. Schulderman, 154 P. 903.
trust apply to a court of equity, the court if
a decree terminating, it is proper, is not re-
quired to terminate it, but has the discretion
IV. MANAGEMENT AND DISPOSAL
to do so, and, conversely, under Civ. Code, g
OF TRUST PROPERTY.
2280, if all the parties in interest are not be om 198 (Cal.) The inhibition upon a trustee
fore it, it has no power to terminate it.-Gray from purchasing at his own sale is removed by
V. Union Trust Co. of San Francisco, 154 P. the determination of a court of equity that he
may be such purchaser, and a sale to him is not
(B) Resulting Trusts.
a sale by the trustee, so that there is nothing
Om6334 (Wash.) Resulting trust held never to to prevent him from becoming a purchaser. -
arise out of enforceable contract or agreement, Plant v. Plant, 154 P. 1058.
For cases in Dec. Dig & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
VII. ESTABLISHMENT AND EN- I. REQUISITES AND VALIDITY OF
FORCEMENT OF TRUST.
(B) Right to Follow Trust Property or m3 (Or.) Where upon part payment of his
option to purchase land involving assumption
On 356 (Cal.App.) Where the assignee of a con- of mortgage, plaintiff obtained supplemental
tract of sale of an automobile on the installment agreement allowing him to anticipate the con-
plan took the same with knowledge that it had tract and obtain good and sufficient deed to such
been paid for with funds fraudulently procured portion of property as he might select upon pay,
from plaintiff, his position as to money loaned ment therefor, such agreement was a unilateral
or paid on the contract to the assignor was that option entitling plaintiff on compliance with its
of a second lienor subordinate to the rights of terms, to a deed to selected portion free from
the defrauded party.--Carter v. Holt, 154 P. 37. incumbrance of prior mortgage.-Lombard v.
Kies, 154 P. 757.
Om 16 (Utah) Where defendants agreed to sell
Eww371 (Cal.App.) In an action to impress a their lots, reserving the right to remove a trap
constructive trust upon a contract of sale of an therefrom, and the purchaser struck out the
automobile on the installment plan, the com- reservation clause, the contract as modified could
plaint, in the absence of special demurrer, held not be enforced, in the absence of ratification
sufficiently to allege that before defendant as- by the defendants, there being no meeting of the
signee acquired the automobile and contract minds.-Moon v. Bollwinkel, 154 P. 939.
from the defendant charged with fraud, he had in 33 (Wash.) Relative to right to rescind, the
knowledge of plaintiff's rights.-Carter v. Holt, purchaser of land several hundred miles distant
154 P. 37.
had a right to rely on the vendors' representa-
372 (Cal.App.) In an action to impress a tions.-Van Horn v. Chambers, 154 P. 1084.
constructive trust on a contract of sale of an
Such right was no less because his attorney
automobile as against the purchaser's assignee, warned him to examine it.-Id.
evidence held sufficient to show that a new deal em 37 (Okl.) False representations positively
between the seller, the original purchaser, and made, constituting an inducement to purchase
his assignee, purporting to cancel the assigned property, and relied on, vitiate the contract,
contract and to make a new contract of sale though innocently made, regardless of the rule
direct with the assignee, was a mere subter- of caveat emptor.-Chisum v. Huggins, 154 P.
fuce.-Carter v. Holt, 154 P. 37.
Omw 373 (Cal.App.) In an action to impress a m44 (Colo.) Evidence in a suit to quiet title
constructive trust upon an assigned contract of in a purchaser from the patentee held to sup-
sale of an automobile on the installment plan, port the finding that there had been no purchase
finding held sufficient to negative the issue ten- by plaintiff.--Šlack v. Anderson, 154 P. 89.
dered by the answer that the assignee purchas.m44 (Utah) In an action for breach of an
ed the car from the seller by an independent executory contract for the sale of land wherein
contract after it had repudiated the original con- the seller reserved certain rights, and the pro-
tract.-Carter v. Holt, 154 P. 37.
spective purchaser struck out the reservation
clause, plaintiff has the burden of showing by
clear and convincing evidence that the modifica-
tion was ratified by the seller.-Moon v. Boll-
See Corporations, m491.
winkel, 154 P. 939.
II. CONSTRUCTION AND OPERA.
TION OF CONTRAOT.
See Constitutional Law, Om 296; Escheat, Cum 54 (Or.) A bond for deed transfers equita-
2, 3, 8.
ble title, leaving in vendor the legal title as se-
curity.-Lyons v. Chaffee, 154 P. 688.
58 (Or.) Where a contract for the sale of
lands on installments required purchasers to
pay installments under penalty of forfeiture,
UNDISCLOSED AGENCY. and the vendors to deposit in escrow a deed
See Principal and Agent, w141.
and an abstract showing good title, the obliga-
tions are correlative, and neither party, having
failed in performance, can complain that the
other has failed. -Decker v. Jordan, 154 P. 431.
See Public Lands, 35–140; Removal of E76 (Or.) A contract for the sale of lands
upon deferred payments held to obligate the
vendors to execute a warranty deed and deposit
it in escrow with an abstract showing good title
See Banks and Banking, em 270.
in themselves before maturity of deferred pay-
ments.-Decker v, Jordan, 154 P. 431.
I. USURIOUS CONTRACTS AND ww80 (Utah) Receipt of party with whom
down payment on property was deposited,
(B) Rights and Remedies of Parties.
though not authorized or ratified by vendor, held
evidence of purchaser's understanding as to am-
119 (Okl.) Whether a collateral instrument biguity, with respect to size of lot and title to
or commissions were taken and reserved with be conveyed.-Tyng v. Constant-Loraine Iny.
intent to charge usury, and whether the trans- Co., 154 P. 767.
action was a device to evade the law against In action to recover down payment on land,
usury, held to be a question of fact, where the held that evidence would not justify finding
principal instruments were valid on their face. that defendant, by ambiguous contract, intended
-Garland v. Union Trust Co., 154 P. 676. to convey 55 feet by warranty deed, it having
only quitclaim deed to 116 feet thereof.-Id.
III. MODIFICATION OR RESCISSION
See Dismissal and Nonsuit, Om43; Judgment,
Gw344, 381; Judicial Sales, Cm38.
(C) Rescission by Purchaser.
VENDOR AND PURCHASER.
Om I 12 (Or.) Where plaintiff failed to specify
in writing portion of land he desired to purchase
See Assignments, en 20; Corporations, as provided for in a supplemental option to pur
426; Exchange of Property ; Sales; Specific chase land obtained upon part payment under
Performance; Taxation, m831.
a prior option, he was not entitled to a rescis-
sion of main contract on ground of defendant's that a default in any of the terms should work
refusal to furnish good title to portion specified. a forfeiture, judgment for the plaintiff for pos-
-Lombard v. Kies, 154 P. 757.
session of the property necessarily involved
Where, after plaintiff's partial payment under judgment of forfeiture by defendants.-Id.
option to purchase land, a new highway was
located through the tract within 50 feet of the
(B) Actions for Parchase Money.
dwelling desired for summer residence, the high-302 (Nev.) Under Rev. Laws, $ 5501, limit-
way was an incumbrance in breach of defending a mortgagee's remedy to an action in fore-
ant's contract, ling plaintiff to rescission. closure, a vendor of land which retained title
and reserved the right to sue for foreclosure of
the agreement and of the purchaser's equity of
IV. PERFORMANCE OF CONTRACT. redemption, the purchaser going into possession
pursuant to the contract, could maintain a per-
Sim 152 (Utah) If ambiguous contract was un--Southern Pac. Co. v. Miller, 154 P. 929.
sonal action for the unpaid balance of the price.
derstood by purchaser as agreement to convey
whatever property vendor owned, held, that ten- en 303 (Nev.) In an action by the agreed ven-
der by vendor of deed warranting title to 5342 dor of realty for the unpaid
balance of the price,
feet, and quitclaiming as to 142 feet, constituted the averment in the complaint that plaintiff was
performance.-Tyng V. Constant-Loraine Iny. and had been ready to convey, as agreed, upon
Co., 154 P. 767.
performance of the contract by defendants, with
an offer to deliver conveyance into court, was a
V. RIGHTS AND LIABILITIES OF
sufficient tender.-Southern Pac. Co. v. Miller,
154 P. 929.
(B) As to Third Persons in General. VII. REMEDIES OF PURCHASER.
mm 214 (Nev.) The assignee of purchasers of (A) Recovery of Purchase Money Paid.
land by contract providing that it should bind
their successors, heirs, and assigns, who was not em334 (Utah) If purchaser understood ambig-
a party to the contract, and did not execute or
uous contract as agreement to convey 55 feet
receive it, was not liable to the vendor for the by warranty deed, held, that there was no meet-
unpaid balance of the price.--Southern Pac. Co. ing of the minds, and down payment could
v. Butterfield, 154 P. 932.
recovered.-Tyng v. Constant-Loraine Inv. Co.,
154 P. 767.
(C) Bona Fide Purchasers.
Om 341 (Colo.) Allegations in purchaser's ac-
em 231 (Okl.) A will duly admitted to probate tion held to state a cause of action to recover
in the Western district of the Indian Territory from defendant the amount paid to defendant on
imparted constructive notice, though the land a contract to convey land.—Jones v. Ceres Inv.
devised was situated in another recording dis-
Co., 154 P. 745.
trict in such Western district, in which item34! (Utah) Evidence held not so conclusive
was not recorded.—Bruce v. Overton, 154 P. in action to recover down payment that pur-
chaser understood ambiguous contract in dif-
231 (Okl.) Under Comp. Laws 1909, $ 1195, of verdict.-Tyng v. Constant-Loraine Inv, Co.,
ferent sense from vendor to justify direction
held that, where the purchaser had actual
154 P. 767.
knowledge of the existence of a mortgage, the
fact that the mortgage as recorded did not show
the notary's seal, and that the original mort. See Jury, Cm70.
gage may not have contained the seal, did not
give him rights superior to the mortgage.-Rol-
low y. Frost & Saddler, 154 P. 542.
1. NATURE OR SUBJECT OF ACTION.
cm 240 (Okl.) One claiming as innocent pur-
chaser of land, without notice of outstanding On5 (Cal. App.) An action will not be consid-
title, must allege and prove facts making him ered a real action for the purpose of determin.
such purchaser.-Bruce v. Overton, 154 P. 340. ing its venue, unless title or interest in real
Cm 245 (Okl.) Under conflicting evidence in a
property is involved.-Terry v. Rivergarden
controversy between a purchaser and mortgagee,
Farms Co., 154 P. 476.
held, that the questions whether the original
Though plaintiff joined with a personal action
mortgage bore a seal, no seal being shown by under Code Civ. Proc., $ 392, should be tried in
an action involving title to real property, which,
the mortgage as recorded, and whether
the pur- the county where it was located, such joinder
chaser had actual knowledge of the mortgage, does not deprive defendant of its right to have
were for the jury.-Rollow v. Frost & Saddler, the personal action tried in the county of its
154 P. 542.
VI. REMEDIES OF VENDOR.
III. CHANGE OF VENUE OR PLACE
(A) Lien and Recovery of Land,
ww273 (Or.) It is unnecessary for vendor tom 36 (Cal.App.) The nature of the action on
tender deed and demand price as condition pre- a motion for change of venue is determined
cedent to suit for strict foreclosure of the equi- from the allegations of the complaint and char;
table title of vendee under bond for deed.-acter of the judgment which may be rendered
Lyons v. Chaffee, 154 P. 688.
on default.-Terry v. Rivergarden Farms Co.,
C285 (Or.) In suit by vendor for foreclosure 154 P. 476.
of bond for deed the court may require payment 40 (Cal. App.) An action to set aside a con-
of entire price as condition of avoiding fore-tract for the conveyance of land, wherein the
closure.-Lyons v. Chaffee, 154 P. 688.
principal relief sought was return of the pur-
299 (Cal. App.) The owner of realty had a chase money, held a personal action, and, de-
cause of action in ejectment whose contract to fendants entitled to have the venue changed to
sell provided that the buyer, by failure to com- the county of their residence.-Terry v. River-
ply with its terms, should forfeit all rights to garden Farms Co., 154 P. 476.
the property, which buyer's assignee failed to Where an action seeking a cancellation of a
make a payment of $600 due under the contract, contract for the purchase of land was purely
and refused to surrender possession.-Sweet v. personal as to one of defendants, the only re-
Richvale Land Co., 154 P. 608.
lief sought being a money judgment, such de-
In ejectment by the vendor of realty against fendant is entitled to have the venue changed
the assignee of the buyer and others upon de to the county of its residence, though the title
fault in payment, where the contract provided to real property be involved.–14.
ed to use the waters for 20 years, the failure for
such time of a junior appropriator to sue for a
See Appeal and Error, 1001-1005, 1070; judicial decree of abandonment was not laches,
Criminal Law, Om875-893, 1159, 1160; Li- barring such a suit, which need not be brought
bel and Slander, 160; Master and Serv. until some one again claims the abandoned wa.
ant, w297; New Trial,
'74, 143; Trial, ter right under the decree.-Id.
Om 169, 337–348.
In an action by a junior appropriator of ir-
rigating waters against senior appropriators to
decree an abandonment of their rights under a
former decree whereby they were entitled to
See Pleading, w290–304.
16.70 customary inches, an amount in excess of
the 16.70 cubic feet per second, which the ref-
eree concluded was all they had not abandoned,
it was unnecessary for him to determine the ex-
act amount in cubic feet of the original decree.
In an action by a Junior appropriator of irri.
See Constitutional Law, 106.
gating waters against senior appropriators to
decree an abandonment, evidence that the wa-
ter was at times run in sections did not over.
come the evidence of intent to abandon in the
See Trial, 375.
fact of nonuser by the seniors for many years
of water in excess of the carrying capacity of
the ditch, less than their adjudged rights.-Id.
Om 152 (Utah) In suit to quiet title to the use
of water, which plaintiff claimed he had de-
veloped, wbile defendants claimed that it was
See Appeal and Error, Emo22; Appearance, part of a natural stream, general affirmative
On 24; Chattel Mortgages, 136; Con-judgment for defendants was not too sweeping
tracts, m305; Equity, m42; Estoppel; | in that it denied plaintiff the right to use any
Exceptions, Bill of, 42; Executors and water at any time, even for culinary or other
Administrators, Ow185, 186; Insurance, Omo domestic purposes, though all the water was
371-400, 664; Jury, C110; Justices of the not used by defendants.-Mountain Lake Min-
Peace, w161; Limitation of Actions, com ing Co. v. Midway Irr. Co., 154 P. 584.
15; Pleading, 420; Process, cm166;
Trial, Ow419; Witnesses, Omw 305.
VII. CONVEYANCES AND CON
Om 156 (Colo.) Where defendant knew of the
See Covenants, 100, 102; Principal and maintenance of an irrigation ditch over lands
Agent, Cm104; Sales, 261, 285, 428 442. which he purchased, but erroneously deemed
that the license was revocable, he took the land
WATERS AND WATER COURSES. subject to the burden of the ditch.-Graybill v.
Corlett, 154 P. 730.
See Drains; Judgment, w518; Navigable m 157 (Colo.) License to maintain irrigation
Waters; Negligence, 39.
ditch held irrevocable, it having been maintain-
V. SURFACE WATERS.
ed with the consent of the owner of the land and
his predecessors for over 16 years.-Graybill v.
I 19 (Wash.) Where a railroad company con- Corlett, 154 P. 730.
structed a trestle in place of a solid roadbed to
allow flood waters to escape through bed of a VIII. ARTIFICIAL PONDS, RESER-
creek which was ordinarily dry, it was not liable VOIRS, AND CHANNELS, DAMS,
to adjacent landowners whose property was in-
jured by such waters, when the waters were potem 179 (Nev.) That persons not parties to the
deflected. --Bonthuis v. Great Northern Ry. Co., action contributed to the damage done to plain-
154 P. 789.
A landowner may hurry the outflow of surface tiff's lands, held not to render erroneous for
waters from his property.-Id.
want of necessary parties, a decree enjoining
w124 Nev.) That waste water from defend- from his land upon that of plaintiff.—Ramelli
defendant from permitting waste water to flow
ant's land flowed without interruption across
v. Sorgi, 154 P. 73.
the land of a third person to reach plaintiff's
land, did not deprive plaintiff of his right to
enjoin defendant from flowing such waste wa-
IX. PUBLIC WATER SUPPLY.
ter upon his lands.-Ramelli v. Sorgi, 154 P. 73. (B) Irrigation and Other Agricultural
Om 126 (Wash.) Evidence held insufficient to
show that a railroad company left saplings and w216 (Or.) L. O. L. 8 6186, relating to the
débris at a place where they could accumulate assessment of taxes for the payment of bonds
and dam a creek or that any such dam was form- issued for the construction of irrigation works,
ed causing flood waters to inundate plaintiff's is constitutional.--Cannon v. Hood River Irr.
property.--Bonthuis v. Great Northern Ry. Co., Dist., 154 P. 397.
154 P. 789.
231 (Or.) A complaint seeking to restrain
Where an adjacent landowner claimed that a the collection of an irrigation tax under L. 0.
railroad company unfairly turned surface waters L, $ 6186, held insufficient as not particulariz-
off of its premises onto his own, he has the buring the grounds upon which payment is resist-
den of proving such unfair diversion.-Id. ed.-Cannon v. Hood River Irr. Dist., 154 P.
VI. APPROPRIATION AND PRE-
Though an irrigation district, at the time
that its boundaries were fixed, included land
Oma 152 (Colo.) In an action by a junior appro- the title to which was in the United States, an
priator of irrigating waters for an adjudication assessment of an irrigation tax on such land
of priority, alleging abandonment of their prior after the title had passed to an individual is
rights by defendants, the owners of all junior valid.-Id.
priorities in the water district were not, in the In a suit to restrain the collection of an ir-
absence of statute, necessary parties.-Affolter rigation tax, legality of the organization of the
v. Rough & Ready Irrigating Ditch Co., 154 P. | irrigation district will be presumed, in the ab-
sence of any charge to the contrary.-Id.
Where senior appropriators of irrigating wa- Where land is not susceptible of irrigation,
ters, holding under decree, abandoned and fail. I the owner must petition the district board to
set it apart from the district, before equity will / since it affects no vested rights.-Barber V.
restrain the collection of a tax thereon.-Id. Brown, 154 P. 1156.
em 254 (Wash.) Where an irrigation company's Omo 25 (Okl.) A Chickasaw freedman's will
deed to lands clearly agreed to supply them with made August 4, 1904, and conveying her allot-
water, but fixed no time within which it was to ment, held to legally devise her property, where
be furnished, the company was under duty to she died in September, 1906, after she was given
furnish water within a reasonable time, con- authority by Act Cong. approved April 26, 1906,
sidering the facts contemplated by the parties to devise her allotment.-Barber v. Brown, 154
when the contract was made.-Huschke v. Ar- P. 1156.
cadia Orchards Co., 154 P. 800.
em 263 (Wash.) In an action for failure to fur.
V. PROBATE, ESTABLISHMENT,
nish water by the grantee of one whose lands
defendant had contracted to supply, where the
injury was destruction of and damage to fruit 302 (Wash.) That an alleged forged signa-
trees, the measure of damages was the difference ture is a fac simile of an admittedly genuine
betwen the value of the trees had water been signature, is strong and well-nigh conclusive
furnished as agreed and their value without evidence of forgery.-In re Connolly's Estate,
water.--Huschke y. Arcadia Orchards Co., 154 154 P. 155.
(1) Hearing or Trial.
See Easements; Highways.
em 318 (Okl.) The verdict of the jury to which
the superior court submits issues involved on
appeal in a will contest is merely advisory.-
Parker v. Hamilton, 154 P. 65.
On 17 (Okl.Cr. App.). Where the evidence in a
prosecution for pointing a pistol tended to show
self-defense and defense of habitation, it was
(A) General Rules.
error to refuse a requested instruction thereon. Om 437 (Okl.) A will must be construed by the
-Doud v. State, 154 P. 1008.
laws existing at testator's death, rather than
Omw 18 (Or.) Where the complaint of one who by the laws in force at execution of the will.--
claimed he was negligently shot averred that de Barber v. Brown, 154 P. 1156.
fendant carelessly cocked a shotgun in his em 487 (Cal.) In construing a will, a former
hands, defendant is entitled to rebut such claim will which was revoked cannot be considered.-
by testimony that when he received the gun In re Vanderhurst's Estate, 154 P. 5.
it was already cocked.--Gibson v. Payne, 154 P.
In an action for damages for injuries re-
VII. RIGHTS AND LIABILITIES OF
ceived when he was struck by shot from gun
DEVISEES AND LEGATEES.
discharged by defendant, the question of defend-(A) Nature of Title and Rights in Gen-
ant's negligence held for the jury.-Id.
Instructions, in an action for injuries receiv- m719 (Cal.) Opposition to a plea for distribu-
ed by plaintiff who was shot while out hunt- tion, on the ground that petitioners were not
ing, held not to impose upon plaintiff the bur- entitled to share under the will, held a proceed-
den of establishing his want of contributory ing for the construction of a will and not a
contest precluding opponents from taking un.
Instruction that a loaded shotgun was a dan- der the will.--In re Vanderhurst's Estate, 154
gerous weapon, and that the law charges each P. 5.
member of a hunting party with such knowl-
edge, and that it is the duty of each to use (C) Advancements, Ademption, Satisfac-
such degree of care as any reasonably prudent
tion, and Lapse.
man would use under the circumstances, cor- m759 (Cal.) Under Civ, Code, $8 1351, 1397,
rectly states law applicable to firearms.--Id.
payments by testator of monthly allowances to
In an action by one shot while out hunting, his daughters, which were not evidenced by
the question whether he was contributorily neg- promissory notes, cannot be treated as advance-
ligent in preceding the hunting party into a inents, where the testator declared that advance.
field held under the evidence for the jury.-Id. ments to his children were evidenced by notes.
-In re Vanderhurst's Estate, 154 P. 5.
Advancements made before a will was execut-
ed cannot be considered in distributing the es-
See Commerce, Om 14.
tate, unless specified in the will.-Id.
761 (Cal.) Under a will held testator's books
of account, showing payment of allowances to
his daughters to whom he gave credits, prac-
See Master and Servant, Om8742.
tically balancing their accounts, were not ad-
missible to charge the daughters with amount
of advances without credits.-In re Vander-
See Charities; Descent and Distribution ; Ex-hurst's Estate, 154 P. 5.
ecutors and Administrators; Jury, 19;
Trusts; Vendor and Purchaser, C231.
Cm781 (Cal.) A will may be drawn so as to put
I. NATURE AND EXTENT OF TESTA- the widow to her election between taking the
benefits given her by the testator and claiming
her right of family allowance.-In re Whitney's
Omw 6 (Cal.) A husband canot by his will dis- Estate, 154 P. 855.
pose of the wife's right to one-half of the com-m782 (Cal.) To put the widow to an election
munity property should she survive him.-In re between her legal estate and that granted by a
Whitney's Estate, 154 P. 855.
will, it must clearly and unequivocally appear
II. TESTAMENTARY CAPACITY.
that the provision made by the will was in-
tended to be in lieu of such rights as are given
On 23 (Okl.) A statute, passed after the making by law.-In re Whitney's Estate, 154 P. 855.
of a will but before testatrix's death, by which The mere fact that a legacy to the wife pro-
the law in force when the will was made was vides for payments at stated periods beginning
changed, will operate on the will; such con- from the testator's death does not deprive her
struction not making the statute retrospective,' of the right to a family allowance.-Id.