For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER 17, 18(3) (Ind.App.) Resulting trust in land in favor of decedent held not to have been created by parol agreement.-Joyce v. Bocquin, 149 N. E. 360. (B) Resulting Trusts. 632 (III.) Existence of trust not required to be evidenced by writing.-Frewin v. Stark, 149 N. E. 588. 633/4 (III.) Resulting trust arises from original transaction at instant deed is taken. -Frewin v. Stark, 149 N. E. 588. Trust may be defeated by proof of understanding between parties that no trust should result.-Id. 6334 (Ind.App.) Trust in land in favor of decedent held not to have been created.-Joyce v. Bocquin, 149 N. E. 360. ~81 (2) (III.) Husband held legal title to property purchased with wife's money as trustee. Frewin v. Stark, 149 N. E. 588. VENDOR AND PURCHASER. See Sales. 1. REQUISITES AND VALIDITY OF CONTRACT. 29 (N.Y.) Implied promise to pay what land worth not read into conveyance reciting consideration to be $1, and other good and valuable considerations.-Moller v. Paulivico, 149 N. E. 829. II. CONSTRUCTION AND OPERATION OF CONTRACT. 54 (1.) Vendee has no title to property. covered by executory contract of sale.-Capps v. National Union Fire Ins. Co., 149 N. E. 247. IV. PERFORMANCE OF CONTRACT. (D) Payment of Purchase Money. 187 (III.) Acceptance of default payments from purchaser under contract of purchase held waiver of such default.-Neil v. Kennedy, 149 N. E. 775. V. RIGHTS AND LIABILITIES OF PAR TIES. 86 (III.) No presumption of gift to husband where he took title to land purchased with his wife's money; intention of parties to create trust need not be proven.-Frewin v. Stark, 191 (III.) Purchaser in possession under 149 N. E. 588. 88 (III.) Conditions necessary to create resulting trust provable by parol.-Frewin v. Stark, 149 N. Ē. 588. 89(5) (11.) Evidence beyond reasonable doubt required.-Frewin v. Stark, 149 N. E. 588. (C) Constructive Trusts. (A) As to Each Other. contract of purchase, and not in default, has complete defense to ejectment by vendor.-Neil v. Kennedy, 149 N. E. 775. 198 (N.Y.) Assessments for local improvements held "levied and imposed" on purchaser's property within meaning of sales agreement.-Lewis v. Petersen, 149 N. E. 853. VI. REMEDIES OF VENDOR. 95 (III.) Equity will create constructive trust in favor of person entitled to property, where party has obtained title fraudulently.-299(3) (11.) Proof of conveyance of premDuncan v. Dazey, 149 N. E. 495. 103(1) (III.) Fiduciary relationship may exist when person gains undue influence or superiority over first.-Duncan v. Dazey, 149 N. E. 495. ~110 (111.) Evidence held to show that sale to another, of property which defendant had obtained control of by fraud, was colorable merely and for defendant's benefit.-Duncan v. Dazey, 149 N. E. 495. Evidence held to show fiduciary relationship existed between defendant and complainant. -Id. ises by quitclaim deed to plaintiff casts burden on defendant to show her possession lawful.Neil v. Kennedy, 149 N. E. 775. 299 (4) (I.) Instruction that substantial compliance with contract of purchase sufficient held error in view of the evidence.-Neil v. Kennedy, 149 N. E. 775. VII. REMEDIES OF PURCHASER. (A) Recovery of Purchase Money Paid. 334(4) (III.) One in possession under contract of purchase may regard contract as abandoned on vendor quitclaiming premises to another.-Neil v. Kennedy, 149 N. E. 775. VENUE. See Criminal Law, 121. VERDICT. See Criminal Law, 878; Trial, 341–359. VESTED RIGHTS. See Constitutional Law, 101. WATERS AND WATER COURSES. See Drains; Navigable Waters. VII. CONVEYANCES AND CONTRACTS. 156 (2) (Mass.) No additional rights acquired under oral agreement.-Willard v. Stone, 149 N. E. 681. 156(5) (Mass.) Grant held to include right to perform acts reasonably necessary to make it effective.-Willard v. Stone, 149 N. E. 681. Under deed, grantee held to have primary right to take waters of spring for necessary purposes.-Id. Grantee, having laid pipe to one spring, held not without right thereafter to take water from other spring.-Id. Rule that conduct of parties as to location and use of easement determines extent of in- 163 (2) (II.) When presumption that will terest granted held inapplicable.-Id. in favor of fiduciary was executed as result of undue influence arises stated.-Jones v. Worth, 149 N. E. 793. 156(9) (Mass.) Right to use waters from springs on defendants' land held not abandoned. -Willard v. Stone, 149 N. E. 681. WILLS. To create presumption that will in favor of fiduciary was procured through undue influence, evidence must show confidential relation used See Descent and Distribution; Executors and to procure will.-Id. 1. NATURE AND EXTENT OF TESTA- (III.) Statute of Descent applies only to intestate estates.-Shoup v. Shoup, 149 N. E. 746. II. TESTAMENTARY CAPACITY. (G) Revocation and Revival. 191 (111.) Marriage revokes will under statute.-Campbell v. McLain, 149 N. E. 481. Common-law rule as to presumptive revocation of will by marriage does not obtain in Illinois.-Id. NULMENT. ~21 (III.) Absolute soundness of mind is not V. PROBATE, ESTABLISHMENT, and ANessential to testamentary capacity.-Down v. Comstock, 149 N. E. 507. to (I) Hearing or Trial. 31 (11.) One possessing mental capacity 322 (Mass.) Evidence as to truth or falsity transact ordinary business has sufficient of statements to testator by sisters of con"testamentary capacity."-Belz v. Piepenbrink, testant rightly excluded.-Brady v. Doherty, 149 N. E. 483. 149 N. E. 198. 32 (III.) Capacity of testator to remember natural objects of his bounty, and not actual remembrance, essential to testamentary capacity. -Down v. Comstock, 149 N. E. 507. 35 (.) Record of former adjudication of insanity is not conclusive evidence of mental condition of testator at time of making will. -Belz v. Piepenbrink, 149 N. E. 483. 40 (II.) Belief of a person upon religious or political questions cannot be made a test of his sanity.-Belz v. Piepenbrink, 149 N. E. 483. 52(1) (III.) Law presumes every person to be of sound mind and evidence of incapacity must clearly preponderate to authorize setting aside of will.-Down v. Comstock, 149 N. E. 507. 54 (3) (III.) Testimony as to testator's showing witness pencil draft of will in question before death admissible.-Belz v. Piepenbrink, 149 N. E. 483. Declarations of testator, made before or after execution of will, as to testamentary intentions, competent on question of testamentary capacity.-Id. 55(1) (III.) Evidence of incapacity must clearly preponderate to authorize setting_aside of will.-Down v. Comstock, 149 N. E. 507. ~~55(1) (III.) Evidence held to justify finding of jury that testator was of sound mind and memory.-Jones v. Worth, 149 N. E. 793. 55 (7) (III.) Evidence held to sustain finding of testamentary capacity.-Down v. Comstock, 149 N. E. 507. 55(10) (III.) Unequal distribution of property is not evidence of unsoundness of mind, but may be considered with other facts tending to show unsoundness.-Down v. Comstock, 149 N. E. 507. III. CONTRACTS TO DEVISE OR BE- 64 (III.) No rescission of contract to will property, where plaintiff accepted benefits thereof. Downing v. Harris Trust & Savings Bank, 149 N. E. 256. 68 (III.) Measure of damages for breach of contract to give property by will stated.-Downing v. Harris Trust & Savings Bank, 149 N. E. 256. IV. REQUISITES AND VALIDITY. (B) Form and Contents of Instruments. 100 (II.) Joint will of husband and wife held invalid as to both, where invalid as to wife because not properly executed by her.-Martin v. Helms, 149 N. E. 770. (F) Mistake, Undue Influence, and Fraud. 155(1) (Ind.App.) "Undue influence" which will invalidate will defined.-Beaver v. Emry, 149 N. E. 730. 163(1) (Ind.App.) Kindly assistance of aged man of itself raises no presumption of undue influence.-Beaver v. Emry, 149 N. E. Excluding evidence as to what contestant's mother told her of conversation between sisters and testator held without error.-Id. Offer to prove that attitude of sisters to testator was nagging and domineering rightly excluded.-Id. Limiting testimony of contestant as to scope and effect of declarations by testator held without error. Id. 324 (2) (III.) Question of whether testator had sufficient mental capacity one for jury.Belz v. Piepenbrink, 149 N. E. 483. 324 (2) (III.) Weight to be given testimony of witnesses testifying as to testator's mental capacity held for jury.-Jones v. Worth, 149 N. E. 793. 324 (3) (Ill.) Instruction to find for contestees upon issue of undue influence held proper.-Jones v. Worth, 149 N. E. 793. 330(1) (III.) Instruction as to testator's mental capacity to understand "business" at hand held not erroneous as relating to farming rather than making of will.-Down v. Comstock, 149 N. E. 507. Instruction that ability to recall to mind his property, was essential to mental capacity of testator held not erroneous.-Id. Instruction that sound and disposing mind need not be one unshattered by disease held not erroneous. Id. Instruction as to effect of mental weakness or impairment of mental faculties on testamentary capacity held not erroneous.-Id. Instruction held not erroneous for failure to state time as of which testamentary capacity was to be determined.-Id. Instruction that mental capacity at time of execution of will only was material held not erroneous. Id. 330(3) (III.) Instruction held not objectionable as withdrawing fact of unequal disposition of property from jury's consideration, affecting testator's mental capacity.-Down v. Comstock, 149 N. E. 507. 331(1) (III.) Instruction that certificate of oaths of subscribing witnesses made prima facie proof of validity of instrument held not misleading.-Down v. Comstock, 149 N. E. 507. 331(2) (Ill.) Instruction that question of alteration of will had been withdrawn from case held not misleading in use of word "will" instead of "purported will."-Down v. Comstock, 149 N. E. 507. (K) Review. 400 (11.) Finding that testator had sufficient mental capacity to make will sustained. -Belz v. Piepenbrink, 149 N. E. 483. Admission of affidavits of subscribing witnesses using word "believe" instead of "believed" not prejudicial, even if defective.-Id. 400 (11.) That instruction referred to instrument as will rather than purported will, or similar designation, held not grounds for re 989 INDEX-DIGEST For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER 400 (Ind.App.) Exclusion of testimony of witnesses as to their observations of and relations with testator held not error in absence of production of other evidence.-Beaver v. Emry, 149 N. E. 730. (D) Description of Property. 561 (3) (Ind.App.) Right to occupy "residence property" held to include all of tract, where it amounted to only 10 acres.-Jones v. Jones, 149 N. E. 108. 400 (Mass.) Excluding testimony that tes-566 (Ind.App.) "Money on hand," as used tator said he was going to make another will in will, included testatrix's promissory notes or held harmless to contestant.-Brady v. Doherty, proceeds thereof.-Hall v. Bledsoe, 149 N. E. 448. 149 N. E. 198. VI. CONSTRUCTION. (A) General Rules. 439 (1.) Intent of testator to be given fect, unless contrary to public policy or rule of law.-Wells v. Dalies, 149 N. E. 279. (E) Nature of Estates and Interests Created. ef-590 (II.) Will should be construed to give discloses intent to limit or qualify estate granted.-Brittain v. Farrington, 149 N. E. 486. estate of inheritance to first devisee, unless will 439 (III.) All rules in construction of wills yield to intention of testator clearly expressed. -Brittain v. Farrington, 149 N. E. 486. 440 (III.) Intention of testator to be as-601 (1) (III.) Testator's intention certained from language of will.-McCormick v. Sanford, 149 N. E. 476. Estate given by will cannot be cut down or taken away by later clause, except by clear and unambiguous language.-Id. Object of construction is to ascertain testator's intention as expressed in language of will. -Id. 441 (II.) In ascertaining intent of testator, whole scope of will will be considered in light of circumstances surrounding testator at time of making will.-Wells v. Dalies, 149 N. E. 279. 449 (I.) Testator presumed not to have intended to die partially intestate.-Wells v. Dalies, 149 N. E. 279. to cut down in later clause fee simple given in prior clause held not shown by clear and unambiguous language.-Brittain v. Farrington, 149 N. E. 486. 607(1)(III.) Devise of realty held to create life estate with contingent remainder, and reversion in fee to heirs at law of testator, such that merger of life estate and reversion destroyed contingent remainders.-Danberg v. Langman, 149 N. E. 245. (F) Vested or Contingent Estates and Interests. 449 (III.) Testator presumed to have made will for purpose of disposing of all his proper-629 (III.) Law favors the vesting of estates. ty.-McClure v. McClure, 149 N. E. 748. 450 (III.) All words and clauses must be considered as having been used with intent to have some meaning.-Brittain v. Farrington, 149 N. E. 486. 450 (Ind.App.) Construed so as to give all parts effect if possible.-First Nat. Bank v. Hessong, 149 N. E. 190. 463 (III.) No clauses or words can be rejected, except from absolute necessity.-Brittain v. Farrington, 149 N. E. 486. -Martin v. McCune, 149 N. E. 489. 630 (2) (I.) Mere fact that distribution of estate is postponed does not render estate of beneficiary contingent.-Martin v. McCune, 149. N. E. 489. 630 (13) (III.) Immediate enjoyment of income of trust estate held to indicate that bequest should vest at once in beneficiaries.-Martin v. McCune, 149 N. E. 489. Gift in will vested at death of testator, where time for distribution of estate had arrived, and 466 (Ill.) Will construed; "bequest."-Brit-only reason for postponement of distribution tain v. Farrington, 149 N. E. 486. was convenience of estate.-Id. 470 (II.) Intent of testator ascertained634 (6) (III.) The time for distribution of from will as whole, viewed in light of circum- trust estate having arrived at testator's death, stances surrounding its execution.-Wells V. the interest of each beneficiary was vested.Dalies, 149 N. E. 279. Martin v. McCune, 149 N. E. 489. 470 (III.) Whole scope of will to be construed in ascertaining testator's intention.-Me-634(7) (II.) Devise of realty construed.Wells v. Dalies, 149 N. E. 279. Cormick v. Sanford, 149 N. E. 476. 470 (11.) Intention of testator determined by entire will and given effect unless contrary to public policy.—McClure v. McClure, 149 N. E. 748. 470 (Ind.App.) Construed so as to express testatrix's intention as shown by whole instrument. First Nat. Bank v. Hessong, 149 N. E. 545(2) (III.) Will construed; "bequest."Brittain v. Farrington, 149 N. E. 486. General rule as to meaning of words "die without issue" not applicable when will requires different construction.-Id. When words "die without issue" are taken to mean death during the life of testator, stated. -Id. 634(13) (II.) Will held to manifest intention that on death of testator's daughter his real estate was to go to persons who would then be his next of kin, and that fee should thereupon immediately vest in them.-McCormick v. Sanford, 149 N. E. 476. Testator's intention carried out by courts where not contrary to public policy.-Id. (H) Estates in Trust and Powers, 684 (7) (N.Y.) Apportionment of extraordinary dividends between life tenants and remaindermen made as of time of creation of trust.-In re Bird's Will, 149 N. E. S27. Trust held created from time of testator's death.-Id. 686(3) (III.) Where will devised property in trust until daughter was 18, sale and distribution to be made thereafter, the time for distribution had arrived when daughter was 18 at testator's death.-Martin v. McCune, 149 N. E. 489. (I) Actions to Construe Wills. 702 (Ind.App.) Complaint in action to construe will held sufficient.-Hall v. Bledsoe, 149 N. E. 448. VII. RIGHTS AND LIABILITIES OF DEV ISEES AND LEGATEES. (A) Nature of Title and Rights in General, 713 (11.) Wills held not to undertake to give to devisees same estate that would pass under statute of descent.-McCormick v. Sanford, 149 N. E. 476. (D) Election. 785 (Mass.) Right of surviving spouse to waive provisions of will is personal privilege and not property right.-Dolbeare v. Bowser, 149 N. E. 626. Guardian waiving provisions of will of wife of insane ward solely to increase estate received under will of ward held to have violated duty.-Id. Welfare of ward is first consideration of guardian in deciding whether provisions of will of ward's wife should be waived.-Id. 797 (Mass.) Executor not debarred from suing to have waiver of will declared void. Dolbeare v. Bowser, 149 N. E. 626. 801 (111) Widow's renunciation of will and election to take under law does not render es tate intestate estate.-Kilgore v. Kilgore, 149 N. E. 754. 267 (Mass.) Manner and extent of crossexamination discretionary.-Ripley v. Taft, 149 N. E. 311. 268(12) (Ind.) Sustaining objection to question on cross-examination as to where prosecuting witness got money to purchase liquor held not abuse of discretion.-Robinson v. State, 149 N. E. 888. 269(2) (III.) Refusal to permit cross-examination of witnesses, as to signatures not testified to in direct examination, held not ground for complaint.-Danaher v. Phillips, 149 N. E. 302. 275(2) (Mass.) Exceptions to exclusion of questions as to whether answers to interrogatories were true properly overruled.-Vaughn v. Robbins, 149 N. E. 677. Widow renouncing will held not entitled to absolute estate in one-third of real estate.-Id. 802 (1) (Ind.App.) Election by husband to take under law, instead of will, does not ren-277 (2) (III.) Cross-examination of accused der it inoperative as to remaining beneficiaas to her illicit relations with another man held ries, so as to permit partition.-Jones v. Jones, proper on issue of motive for desiring husband's death.-People v. Zalimas, 149 N. E. 759. 149 N. E. 108. Taking of one-third of realty by father in lieu of grant in will, which gave realty to son 277(2) (Mass.) Evidence as to whether defor life, does not deprive son of right to oc- fendant had given residence and was listed as cupy remaining two-thirds.-Id. poll tax payer held competent on cross-examination.-Commonwealth v. Patalano, 149 N. (E) Abatement. E. 689. 2822 (Ind.) No error in sustaining objection to question as to price paid for liquor, where it had already, been testified to directly and on cross-examination.-Robinson v. State, 149 N. E. 888. 286 (2) (Mass.) Court in discretion may permit district attorney to put in further evidence in redirect examination.-Commonwealth v. Patalano, 149 N. E. 689. IV. CREDIBILITY, IMPEACHMENT, CONTRADICTION, AND CORROBORATION. (B) Character and Conduct of Witness. 344(1) (Mass.) Credibility of witness not Commonwealth v. Patalano, 149 N. E. 689. I. ATTENDANCE, PRODUCTION OF DOCU- attacked by proof of his misrepresentations. MENTS, AND COMPENSATION. 4 (Mass.) Every competent citizen under obligation to further justice by responding to lawful summons to give evidence.-Keown & McEvoy v. Verlin, 149 N. E. 115. II. COMPETENCY. (C) Testimony of Parties or Persons Interested, for or against Representatives, Survivors, or Successors in Title or Interest of Persons Deceased or Incompetent. 349 (Ind.) Any fact tending to impair credibility, by showing that he is depraved in character, may be shown on cross-examination, but extent within court's discretion.-Grose v. State, 149 N. E. 722. 349 (Ind.) Question calling for single answer as to whether witness was court-martialed, tried and sentenced, objectionable as multifarious.-Robinson v. State, 149 N. E. 888. 350 (Ind.) Sustaining objection to question on cross-examination as to whether witness had been court-martialed, not abuse of court's 140(1) (Ind.App.) Parties in interest in- discretion in controlling of cross-examination. competent to testify with respect to any facts-Robinson v. State, 149 N. E. SSS. prior to death of testator except those bearing on issue of his sanity.-Beaver v. Emry, 149 N. E. 730. (A) Taking Testimony in General. 246(1) (Ind.) Defendant taking witness stand cannot complain of court questioning him. -Grose v. State, 149 N. E. 722. 255(2)(II.) Druggist's memorandum of sale may be used to refresh memory.-People v. Zalimas, 149 N. E. 759. 257 (III.) Druggist's memorandum of sale may be used to refresh memory but not as original evidence, if memory not refreshed.-People V. Zalimas, 149 N. E. 759. (C) Interest and Bias of Witness. 372(1) (Ind.) Any fact tending to impair credibility, by showing interest may be shown on cross-examination, but extent within court's discretion.-Grose v. State, 149 N. E. 722. receive 374(1) (Mass.) Evidence of amount which commonwealth witness expected to properly excluded in court's discretion.-Commonwealth v. Patalano, 149 N. E. 689. (D) Inconsistent Statements by Witness. 380 (5) (Ind.) Where witness denies truth of material fact to which he was expected to testify evidence may be admissible to contradict or impeach witness.-Parker v. State, 149 N. E. 59. 386 (Mass.) Testimony of defendant's husband's statements in her presence held competent to contradict her.-Commonwealth v. Cantor, 149 N. E. 205. Testimony of court stenographer properly excluded, as not contradicting state witness.-Id. 397 (Ind.) Other evidence and prior writ 991 INDEX-DIGEST For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER dict or impeach witness, though not as proof "Employment by same employer."-Valier Coal Co. v. Industrial Commission (Ill.) 149 N. of facts stated.-Parker v. State, 149 N. E. 59. E. 805. "Estate."-Samuels v. Worst (Ill.) 149 N. E. (E) Contradiction and Corroboration Witness. of 228. "Estoppel."-Sherer-Gillett Co. v. Long (Ill.) 149 N. E. 225. 400(1) (Ind.) Other evidence and prior written statements may be admissible to con- "Extension."-Marion & E. R. Co. v. Missouri tradict or impeach witness.-Parker v. State, 149 N. E. 59. contradicting m405(1) (Mass.) witness on collateral matter properly excluded in discretion.-Commonwealth v. Patalano, 149 N. E. 689. Evidence WORDS AND PHRASES. "Accidental injury."-Lerner v. Rump Bros. (N. "Adverse possession."-Swanson v. New York "Alteration."-Union St. Ry. v. City of New 815. "Assistant."-Saxby v. Sonnemann (Ill.) 149.N. "As soon as may be."-Silverstein v. Daniel "Banking business."-Fidelity Inv. Ass'n v. N. E. 486. "Betterment."-Union St. Ry. v. City of New N. E. 16. "Business."-Down v. Comstock (Ill.) 149 N. on trade."-State V. Deckebach (Ohio) 149 N. E. 194. "Chief of police."-Moloney v. Selectmen of Town of Milford (Mass.) 149 N. E. 317. "Clerk."-Crawford v. Roloson (Mass.) 149 N. E. 707. "Colloquium."-People v. Spielman (Ill.) 149 N. E. 466. Pac. R. Co. (Ill.) 149 N. E. 492. "Extrahazardous business."-H. Roy Berry Co. "Farm employé."-Dowery v. State (Ind. App.) "Farm or agricultural employee."-Fleckles v. "Final order."-Central Gas Co. v. Hope Oil Co. "Forthwith."-Gamwell v. Bigley (Mass.) 149 N. E. 155; Mazzuchelli v. Seretto (Mass.) 149 N. E. 707. "Freehold is involved."-Bennett v. Bennett "Frontage."-Standard Oil Co. of Indiana` v. "Common carriers."-Denny v. City of Muncie "Innuendo."-People v. Spielman (Ill.) 149 N. "Confidence game."-People v. Heinsius (Ill.) "Definite."-Luff v. State (Ohio) 149 N. E. 384. "Dependents."-Western Indiana Gravel Co. v. E. 466. "Interstate commerce."-Wheelock v. Industrial "Jitney bus."-Denny v. City of Muncie (Ind.) "Junk dealer."-Peisner v. City of Chicago "Last clear chance."-Southern Ry. Co. v. Wahl "Levied and imposed."-Lewis v. Petersen (N. "Lives."-Holt v. Holt (Mass.) 149 N. E. 40. "Mandamus."-State v. Leathers (Ind.) 149 306. |