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, 154 P. 1090.
79 (Wash.) Trust held not to have resulted in favor of plaintiff in whole of land in defend- ant's name, defendant having paid part of pur- chase price, but to have resulted as to interest, which, without injustice, might be concluded to be a half interest.-O'Donnell v. McCool, 154 P. 1090.
Trust held to result in favor of party furnish- ing aliquot part of money for purchase of land for common account of himself and another, who, in violation of the agreement, takes exclu- sive title.-Id.
83 (Kan.) A parol agreement between an 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 not to create, in favor of the optionee, an im- plied trust under Gen. St. 1909, § 9701.-Grant- ham v. Conner, 154 P. 246.
36 (Okl.) Where merchandise is traded for land and the difference paid in notes secured by chattel mortgages, and where the mortgagor sells the mortgaged property at public sale, and the mortgagee acting as clerk of the sale re- tains the proceeds, held that, in an action for conversion of such proceeds, evidence of the en-95 (Cal.App.) Where, by fraud, defendant tire transaction is admissible.-Swain v. Arch- er, 154 P. 644.
See Garnishment.
TRUST FUND DOCTRINE.
See Corporations, 545.
See Appeal and Error, 150; Assignments for Benefit of Creditors; Charities.
I. CREATION, EXISTENCE, AND LIDITY.
(A) Express Trusts.
obtained money from plaintiff and therewith 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 bank acquired the property and refused to con- vey it to the wife.-Marcellus v. Wright, 154 P. 714.
II. CONSTRUCTION AND OPERA-
(B) Estate or Interest of Trustee and of Cestui Que Trust.
VA-135 (Cal.) Trust in real and personal prop- erty for benefit of trustor during life and on her death to nominees in her will, or to her heirs, held not a dry trust, but an active trust, in the exercise of which the trustee, under Civ. Code, § 863, took the whole legal title.-Gray v. Union Trust Co. of San Francisco, 154 P. 306.
17, 18 (Kan.) A parol agreement between an optionee and another that the latter would buy the land, taking title in his own name, and on re- sale pay the optionee one-half the profit, held not to create a valid express trust in favor of the optionee.-Grantham v. Conner, 154 P. 246. 17, 18 (Or.) As under L. O. L. § 804, a parol trust of land is invalid, no trust in the proceeds of land held under a parol trust agreement can arise, unless after sale the trustee has made a declaration of trust.-Johnson v. McKenzie, 154 P. 885.
17, 18 (Wash.) An express trust in real es- tate cannot be proven by parol.-Smith v. Im- hoff, 154 P. 793.
140 (Cal.) Under Civ. Code, §§ 769, 773, 781, trust in real and personal property to pay income to trustor for life, and to nominees in her will, or to her heirs under law in force at its creation, held to create vested remainders in heirs subject to divestiture by trustor's nom- ination by will.-Gray v. Union Trust Co. of San Francisco, 154 P. 306.
III. APPOINTMENT,
QUALIFICA- TION, AND TENURE OF TRUSTEE.
59 (Cal.) Under Civ. Code, § 2280, trust in real and personal property, created by instru-160 (Or.) If, there were no Churches of ment not reserving any power of revocation, held irrevocable by any act of the trustor.- Gray v. Union Trust Co. of San Francisco, 154
61 (Cal.) When the parties interested in a 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 to do so, and, conversely, under Civ. Code, § 2280, if all the parties in interest are not be- fore it, it has no power to terminate it.-Gray v. Union Trust Co. of San Francisco, 154 P. 306. (B) Resulting Trusts.
6334 (Wash.) Resulting trust held never to arise out of enforceable contract or agreement,
Christ Scientist in Portland qualified to take 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. Carson v. Schulderman, 154 P. 903.
IV. MANAGEMENT AND DISPOSAL OF TRUST PROPERTY.
198 (Cal.) The inhibition upon a trustee from purchasing at his own sale is removed by the determination of a court of equity that he may be such purchaser, and a sale to him is not a sale by the trustee, so that there is nothing to prevent him from becoming a purchaser.- 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- FORCEMENT OF TRUST.
(B) Right to Follow Trust Property or Proceeds Thereof.
356 (Cal.App.) Where the assignee of a con- tract of sale of an automobile on the installment plan took the same with knowledge that it had been paid for with funds fraudulently procured from plaintiff, his position as to money loaned or paid on the contract to the assignor was that of a second lienor subordinate to the rights of the defrauded party.-Carter v. Holt, 154 P. 37.
371 (Cal.App.) In an action to impress a constructive trust upon a contract of sale of an automobile on the installment plan, the com- plaint, in the absence of special demurrer, held sufficiently to allege that before defendant as- signee acquired the automobile and contract from the defendant charged with fraud, he had knowledge of plaintiff's rights.-Carter v. Holt, 154 P. 37.
372 (Cal.App.) In an action to impress a constructive trust on a contract of sale of an automobile as against the purchaser's assignee, evidence held sufficient to show that a new deal between the seller, the original purchaser, and his assignee, purporting to cancel the assigned contract and to make a new contract of sale direct with the assignee, was a mere subter- fuge.-Carter v. Holt, 154 P. 37.
I. REQUISITES AND VALIDITY OF CONTRACT.
3 (Or.) Where upon part payment of his option to purchase land involving assumption of mortgage plaintiff obtained supplemental agreement allowing him to anticipate the con- tract and obtain good and sufficient deed to such portion of property as he might select upon pay- ment therefor, such agreement was a unilateral option entitling plaintiff on compliance with its terms, to a deed to selected portion free from incumbrance of prior mortgage.-Lombard v. Kies, 154 P. 757.
16 (Utah) Where defendants agreed to sell their lots, reserving the right to remove a trap therefrom, and the purchaser struck out the reservation clause, the contract as modified could not be enforced, in the absence of ratification by the defendants, there being no meeting of the minds.-Moon v. Bollwinkel, 154 P. 939.
33 (Wash.) Relative to right to rescind, the purchaser of land several hundred miles distant had a right to rely on the vendors' representa- tions.-Van Horn v. Chambers, 154 P. 1084. Such right was no less because his attorney warned him to examine it.—Id.
37 (Okl.) False representations positively made, constituting an inducement to purchase property, and relied on, vitiate the contract, though innocently made, regardless of the rule of caveat emptor.-Chisum v. Huggins, 154 P. 1146.
373 (Cal.App.) In an action to impress a 44 (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.-Slack v. Anderson, 154 P. 89. dered by the answer that the assignee purchas-44 (Utah) In an action for breach of an ed the car from the seller by an independent contract after it had repudiated the original con- tract.-Carter v. Holt, 154 P. 37.
executory contract for the sale of land wherein the seller reserved certain rights, and the pro- 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- winkel, 154 P. 939.
II. CONSTRUCTION AND OPERA- TION OF CONTRACT.
54 (Or.) A bond for deed transfers equita- ble title, leaving in vendor the legal title as se- curity.-Lyons v. Chaffee, 154 P. GSS.
58 (Or.) Where a contract for the sale of lands on installments required purchasers to pay installments under penalty of forfeiture, and the vendors to deposit in escrow a deed 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 76 (Or.) A contract for the sale of lands Causes.
See Banks and Banking, 270.
I. USURIOUS CONTRACTS AND
TRANSACTIONS.
(B) Rights and Remedies of Parties. 119 (Okl.) Whether a collateral instrument or commissions were taken and reserved with intent to charge usury, and whether the trans- action was a device to evade the law against usury, held to be a question of fact, where the principal instruments were valid on their face. -Garland v. Union Trust Co., 154 P. 676.
See Dismissal and Nonsuit, 43; Judgment, 344, 381; Judicial Sales, 38. VENDOR AND PURCHASER. See Assignments, 20; Corporations, 426 Exchange of Property; Sales; Specific Performance; Taxation, 831.
upon deferred payments held to obligate the vendors to execute a warranty deed and deposit it in escrow with an abstract showing good title in themselves before maturity of deferred pay- ments. Decker v. Jordan, 154 P. 431.
80 (Utah) Receipt of party with whom down payment on property was deposited. though not authorized or ratified by vendor, held evidence of purchaser's understanding as to am- biguity, with respect to size of lot and title to be conveyed.-Tyng v. Constant-Loraine Inv. Co., 154 P. 767.
In action to recover down payment on land, held that evidence would not justify finding that defendant, by ambiguous contract, intended to convey 55 feet by warranty deed, it having only quitclaim deed to 12 feet thereof.-Id. III. MODIFICATION OR RESCISSION OF CONTRACT.
(C) Rescission by Purchaser. 112 (Or.) Where plaintiff failed to specify in writing portion of land he desired to purchase as provided for in a supplemental option to pur- chase land obtained upon part payment under a prior option, he was not entitled to a rescis-
sion of main contract on ground of defendant's refusal to furnish good title to portion specified. -Lombard v. Kies, 154 P. 757.
that a default in any of the terms should work a forfeiture, judgment for the plaintiff for pos- session of the property necessarily involved judgment of forfeiture by defendants.-Id.
(B) Actions for Purchase Money.
Where, after plaintiff's partial payment under option to purchase land, a new highway was located through the tract within 50 feet of the dwelling desired for summer residence, the high-302 (Nev.) Under Rev. Laws, § 5501, limit- way was an incumbrance in breach of defend- ant's contract, entitling plaintiff to rescission. -Id.
IV. PERFORMANCE OF CONTRACT. (B) Conveyance.
ing a mortgagee's remedy to an action in fore- 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 redemption, the purchaser going into possession pursuant to the contract, could maintain a per- 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- der by vendor of deed warranting title to 53% feet, and quitclaiming as to 12 feet, constituted performance.-Tyng v. Constant-Loraine Inv. Co., 154 P. 767.
V. RIGHTS AND LIABILITIES OF PARTIES.
303 (Nev.) In an action by the agreed ven- dor of realty for the unpaid balance of the price, the averment in the complaint that plaintiff was and had been ready to convey, as agreed, upon performance of the contract by defendants, with an offer to deliver conveyance into court, was a sufficient tender.-Southern Pac. Co. v. Miller, 154 P. 929.
VII. REMEDIES OF PURCHASER. (A) Recovery of Purchase Money Paid.
(B) As to Third Persons in General. 214 (Nev.) The assignee of purchasers of land by contract providing that it should bind334 (Utah) If purchaser understood ambig their successors, heirs, and assigns, who was not a party to the contract, and did not execute or receive it, was not liable to the vendor for the unpaid balance of the price.-Southern Pac. Co. v. Butterfield, 154 P. 932.
231 (Okl.) Under Comp. Laws 1909, § 1195, held that, where the purchaser had actual 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- gage may not have contained the seal, did not give him rights superior to the mortgage.-Rol- low v. Frost & Saddler, 154 P. 542.
uous contract as agreement to convey 55 feet by warranty deed, held, that there was no meet- ing of the minds, and down payment could be recovered.-Tyng v. Constant-Loraine Inv. Co., 154 P. 767.
341 (Colo.) Allegations in purchaser's ac- from defendant the amount paid to defendant on tion held to state a cause of action to recover a contract to convey land.-Jones v. Ceres Inv. Co., 154 P. 745.
34! (Utah) Evidence held not so conclusive in action to recover down payment that pur- chaser understood ambiguous contract in dif- of verdict.-Tyng v. Constant-Loraine Inv. Co., ferent sense from vendor to justify direction 154 P. 767.
I. NATURE OR SUBJECT OF ACTION. 240 (Okl.) One claiming as innocent pur- chaser of land, without notice of outstanding 5 (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 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 mortgage bore a seal, no seal being shown by the mortgage as recorded, and whether the pur- chaser had actual knowledge of the mortgage, were for the jury.-Rollow v. Frost & Saddler,
VI. REMEDIES OF VENDOR. (A) Lien and Recovery of Land. 273 (Or.) It is unnecessary for vendor to tender deed and demand price as condition pre- cedent to suit for strict foreclosure of the equi- table title of vendee under bond for deed. Lyons v. Chaffee, 154 P. 688.
285 (Or.) In suit by vendor for foreclosure of bond for deed the court may require payment of entire price as condition of avoiding fore- closure.-Lyons v. Chaffee, 154 P. 688.
299 (Cal.App.) The owner of realty had a cause of action in ejectment whose contract to sell provided that the buyer, by failure to com- ply with its terms, should forfeit all rights to the property, which buyer's assignee failed to make a payment of $600 due under the contract, and refused to surrender possession.-Sweet v. Richvale Land Co., 154 P. 608.
In ejectment by the vendor of realty against the assignee of the buyer and others upon de- fault in payment, where the contract provided
Though plaintiff joined with a personal action under Code Civ. Proc., § 392, should be tried in an action involving title to real property, which, the county where it was located, such joinder does not deprive defendant of its right to have the personal action tried in the county of its
III. CHANGE OF VENUE OR PLACE OF TRIAL.
36 (Cal.App.) The nature of the action on a motion for change of venue is determined from the allegations of the complaint and char- acter of the judgment which may be rendered on default.-Terry v. Rivergarden Farms Co., 154 P. 476.
40 (Cal.App.) An action to set aside a con- tract for the conveyance of land, wherein the principal relief sought was return of the pur- chase money, held a personal action, and de- fendants entitled to have the venue changed to the county of their residence. Terry v. River- garden Farms Co., 154 P. 476.
Where an action seeking a cancellation of a contract for the purchase of land was purely personal as to one of defendants, the only re- lief sought being a money judgment, such de- fendant is entitled to have the venue changed to the county of its residence, though the title to real property be involved.-Ia.
See Covenants, 100, 102; Principal and Agent, 104; Sales, 261, 285, 428-442. WATERS AND WATER COURSES. See Drains; Judgment, 518; Navigable Waters; Negligence, 39.
V. SURFACE WATERS.
119 (Wash.) Where a railroad company con- structed a trestle in place of a solid roadbed to allow flood waters to escape through bed of a creek which was ordinarily dry, it was not liable to adjacent landowners whose property was in- jured by such waters, when the waters were not deflected.-Bonthuis v. Great Northern Ry. Co.,
A landowner may hurry the outflow of surface waters from his property.-Id.
124 Nev.) That waste water from defend- ant's land flowed without interruption across 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- ter upon his lands.-Ramelli v. Sorgi, 154 P. 73.
126 (Wash.) Evidence held insufficient to show that a railroad company left saplings and débris at a place where they could accumulate and dam a creek or that any such dam was form- ed causing flood waters to inundate plaintiff's property.-Bonthuis v. Great Northern Ry. Co., 154 P. 789.
Where an adjacent landowner claimed that a railroad company unfairly turned surface waters off of its premises onto his own, he has the bur- den of proving such unfair diversion.-Id.
VI. APPROPRIATION AND PRE-
152 (Colo.) In an action by a junior appro- priator of irrigating waters for an adjudication of priority, alleging abandonment of their prior rights by defendants, the owners of all junior priorities in the water district were not, in the absence of statute, necessary parties.-Affolter v. Rough & Ready Irrigating Ditch Co., 154 P. 738.
Where senior appropriators of irrigating wa- ters, holding under decree, abandoned and fail-
ed to use the waters for 29 years, the failure for such time of a junior appropriator to sue for a judicial decree of abandonment was not laches, barring such a suit, which need not be brought until some one again claims the abandoned wa- ter right under the decree.-Id.
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 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. -Id.
In an action by a junior appropriator of irri- 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 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.
152 (Utah) In suit to quiet title to the use of water, which plaintiff claimed he had de- veloped, while defendants claimed that it was part of a natural stream, general affirmative judgment for defendants was not too sweeping in that it denied plaintiff the right to use any water at any time, even for culinary or other domestic purposes, though all the water was not used by defendants.-Mountain Lake Min- ing Co. v. Midway Irr. Co., 154 P. 584.
156 (Colo.) Where defendant knew of the maintenance of an irrigation ditch over lands which he purchased, but erroneously deemed that the license was revocable, he took the land subject to the burden of the ditch.-Graybill v. Corlett, 154 P. 730.
157 (Colo.) License to maintain irrigation ditch held irrevocable, it having been maintain- ed with the consent of the owner of the land and his predecessors for over 16 years.-Graybill v. Corlett, 154 P. 730.
VIII. ARTIFICIAL PONDS, RESER- VOIRS, AND CHANNELS, DAMS, AND FLOWAGE.
179 (Nev.) That persons not parties to the action contributed to the damage done to plain- tiff's lands, held not to render erroneous for want of necessary parties, a decree enjoining defendant from permitting waste water to flow from his land upon that of plaintiff.-Ramelli v. Sorgi, 154 P. 73.
IX. PUBLIC WATER SUPPLY. (B) Irrigation and Other Agricultural Purposes.
216 (Or.) L. O. L. § 6186, relating to the assessment of taxes for the payment of bonds issued for the construction of irrigation works, is constitutional.-Cannon v. Hood River Irr. Dist., 154 P. 397.
231 (Or.) A complaint seeking to restrain the collection of an irrigation tax under L. O. L. § 6186, held insufficient as not particulariz- ing the grounds upon which payment is resist- ed.-Cannon v. Hood River Irr. Dist., 154 P. 397.
Though an irrigation district, at the time that its boundaries were fixed, included land the title to which was in the United States, an assessment of an irrigation tax on such land after the title had passed to an individual is valid.-Id..
In a suit to restrain the collection of an ir- rigation tax, legality of the organization of the irrigation district will be presumed, in the ab- sence of any charge to the contrary.-Id.
Where land is not susceptible of irrigation, the owner must petition the district board to
since it affects no vested rights.-Barber v. Brown, 154 P. 1156.
set it apart from the district, before equity will restrain the collection of a tax thereon.-Id. 254 (Wash.) Where an irrigation company's 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.
263 (Wash.) In an action for failure to fur- nish water by the grantee of one whose lands defendant had contracted to supply, where the injury was destruction of and damage to fruit trees, the measure of damages was the difference betwen the value of the trees had water been furnished as agreed and their value without water.--Huschke v. Arcadia Orchards Co., 154 P. 800.
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 error to refuse a requested instruction thereon. -Doud v. State, 154 P. 1008.
18 (Or.) Where the complaint of one who claimed he was negligently shot averred that de- fendant carelessly cocked a shotgun in his hands, defendant is entitled to rebut such claim by testimony that when he received the gun it was already cocked.-Gibson v. Payne, 154 P. 422.
V. PROBATE, ESTABLISHMENT, AND ANNULMENT.
302 (Wash.) That an alleged forged signa- ture is a fac simile of an admittedly genuine signature, is strong and well-nigh conclusive evidence of forgery.-In re Connolly's Estate, 154 P. 155.
(I) Hearing or Trial.
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.
VI. CONSTRUCTION.
(A) General Rules.
437 (Okl.) A will must be construed by the laws existing at testator's death, rather than by the laws in force at execution of the will.- Barber v. Brown, 154 P. 1156.
487 (Cal.) In construing a will, a former will which was revoked cannot be considered.- In re Vanderhurst's Estate, 154 P. 5.
VII. RIGHTS AND LIABILITIES OF DEVISEES AND LEGATEES.
In an action for damages for injuries re- ceived when he was struck by shot from gun 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-719 (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 negligence.--Id. contest precluding opponents from taking un- der the will.--In re Vanderhurst's Estate, 154 P. 5.
Instruction that a loaded shotgun was a dan- gerous weapon, and that the law charges each member of a hunting party with such knowl- edge, and that it is the duty of each to use such degree of care as any reasonably prudent man would use under the circumstances, cor- rectly states law applicable to firearms.-Id.
In an action by one shot while out hunting, the question whether he was contributorily neg- ligent in preceding the hunting party into a field held under the evidence for the jury.-Id.
WEBB-KENYON ACT.
See Commerce, 14.
WILLFUL MISCONDUCT. See Master and Servant, 872.
(C) Advancements, Ademption, Satisfac- tion, and Lapse.
759 (Cal.) Under Civ. Code, §§ 1351, 1397, payments by testator of monthly allowances to his daughters, which were not evidenced by promissory notes, cannot be treated as advance- ments, where the testator declared that advance- 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- 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- tically balancing their accounts, were not ad- missible to charge the daughters with amount of advances without credits.-In re Vander- Ex-hurst's Estate, 154 P. 5.
See Charities; Descent and Distribution; ecutors and Administrators; Jury, 19; Trusts; Vendor and Purchaser, 231. I. NATURE AND EXTENT OF TESTA- MENTARY POWER.
6 (Cal.) A husband canot by his will dis- pose of the wife's right to one-half of the com- munity property should she survive him.-In re Whitney's Estate, 154 P. 855.
781 (Cal.) A will may be drawn so as to put 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 Estate, 154 P. 855.
782 (Cal.) To put the widow to an election between her legal estate and that granted by a will, it must clearly and unequivocally appear that the provision made by the will was in- tended to be in lieu of such rights as are given by law. In re Whitney's Estate, 154 P. 855.
II. TESTAMENTARY CAPACITY. 23 (Okl.) A statute, passed after the making 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.
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