"this is all left after paying all due by the store to Mrs. J. R. S. as per second will, and not to have any claim against L. M. S. or S. R. what is on the books and notes you may find and if you find that C. has reformed you may give him a small amount," was held to have been intended to supplement the "second will" as a codicil and was ordered admitted as such. Simon v. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441.

Also an instrument providing that if the maker's wife should survive him, she is to have the net income and revenue from his estate during her life, is a sufficient disposition of property to constitute a will, so that an application for its probate is good as against demurrer. Lindemann v. Dobossy, Tex. Civ. App., 107 S. W.

111.

And an instrument reading: "This is to certify that the notes held by me against A. B. shall be null and void after my death and noncollectable," is testamentary, so as to be revoked by a subsequent will. Templeton v. Butler, 117 Wis. 455, 94 N. W. 306. And in a holographic will already admitted to probate, a clause stating that the testatrix wished to record the wishes of her husband as explained to her in his last illness, and explaining what those wishes were, is a valid testamentary disposition of the property. Kerr v. Girdwood, 138 N. C. 473, 107 Am. St. Rep. 551, 50 S. E. 852.

Likewise, in Rees v. Rees, 11 Rich. Eq. 86, it is said that an instrument reading: "I wish all I possess in this world to belong to my dear son W., and his heirs forever, both personal and real," and disposing of a few specified articles to others, fulfils all the requisites of a last will and testament, wanting only the attestation of witnesses to give it effect as such.

And it seems that an instrument written by another at the request of deceased, beginning, "the request of" deceased, and going on "I want" certain persons to have certain properties, might, if properly executed, be given effect as a will. Camp v. Stark, 10 Phila. 528.

But under the same tests, the following instruments have been refused probate because insufficient as wills:

-the writing on the front page of a book, "Everything is Lous," dated and signed, the court saying that there are no words of gift, and no indication of an intention to dispose of property after death. Smith v. Smith, 112 Va. 205, 33 L.R.A. (N.S.) 1018, 70 S. E. 491;

-an instrument reciting that the maker has determined to offer another, as a tribute to her talents and virtues, a certain annuity, and that he will immediately order the one who drew his will to make this as a codicil (no evidence of testamentary intent). Coventry v. Williams, 3 Curt. Eccl. Rep. 787.

So, an instrument reading: "I wish to make A. B. a gift of $500," dated, signed, and witnessed, in the absence of any showing of testamentary intent, cannot be held

to constitute a will; its terms are more compatible with an intention to make a gift inter vivos. Re Scott, 128 Cal. 57, 60 Pac. 527.

Likewise, an instrument reading (barring misspellings): "Hagerstown, August 11th 1875-what I owen is as follows:" adding a list of properties and then the following memoranda: "To F. S. H. $2,000 out of the proceeds of the sale of house on the public square; S. S. $1,000 or perhaps $2,000 after the sale of property on the square; perhaps J. W. if he quits drinking liquor," and appointing administrators, in the absence of any showing that the maker intended this paper as it stood to be his will, is not entitled to probate; so far as it refers to any intended testamentary disposition of property, it indicates a mind in as hesitating and undecided a state as well could be imagined. Lungren v. Swartzwelder, 44 Md. 482.

And the written statement, "Want Sarah relatives have all property," signed, was held not to be a will, the court saying that there was nothing in the instrument nor in the extrinsic evidence to show that it was intended as a disposition of property after death. Young v. Wark, 76 Miss. 829, 25 So. 660.

Also, where a box was marked, "In case of my death I want this box given to my attorney," naming him, the writing being signed by the deceased, the box containing envelops, some with securities and some with worthless papers, some marked with names of other persons, some marked with the name of the deceased, and some not marked at all, the writing upon the box was held not to be testamentary, and therefore not entitled to probate; in this case, deceased left a valid will and codicil, the terms of which were inconsistent with the direction on the envelops. Re Jacoby, 190 Pa. 382, 42 Atl. 1026.

After making a will the testatrix executed an instrument beginning, "this is not meant as a legal will, but as Guide," and indicating certain dispositions of property, and it was held not to be testamentary, and probate as a codicil was refused. Ferguson-Davie v. Ferguson-Davie, L. R. 15 Prob. Div. 109, 59 L. J. Prob. N. S. 70, 62 L. T. N. S. 703.

"A plan of a will" was rejected by the probate court, in Matthews v. Warner, 5 Ves. Jr. 23, on a commission of review granted in 4 Ves. Jr. 186.

Disconnected items written in a memorandum book, naming different persons and giving amounts of money, but containing no words of gift, except "to be paid," do not amount to a testamentary bequest, nor show that the sums are to be paid after the writer's death; and such items should not be allowed to go to the jury on the question as to whether they constitute a valid will. Patterson v. English, 71 Pa. 454.

An instrument written and signed by others for the deceased, purporting to set forth his wishes regarding the disposition of his property, is insufficient under the

Kansas statute of 1901 to convey real estate to the beneficiaries named therein. Osborne v. Atkinson, 77 Kan. 435, 94 Pac. 796.

Orders on administrators, executors, or estates.

Miscellaneous.

-a paper written by deceased giving a brief account of the writer's life, and closing with the words, "I have requested my executors to give a clear deed of the property after my death to" certain persons named. Webster v. Lowe, 107 Ky. 293, 53 S. W. 1030;

--an instrument reading, "Four years from and after my death, I hereby authorize and direct my executors to pay unto" a certain person a specified amount. Pena v. New Orleans, 13 La. Ann. 86, 71 Am. Dec. 506;

-an order directing one's administrators or executors in case of death to pay another a certain sum. Frew v. Clarke, 80 Pa. 170; -an instrument reading, "I desire and so affirm that my said step-daughter shall receive as compensation for said services out of my estate a sum of money or its equivalent that shall aggregate $2,000," adding that this compensation should not affect any right the beneficiary may have under any will. Megary's Estate, 206 Pa.

260, 55 Atl. 963.

Also, an instrument reading, "State of Michigan, County of Bay, ss. To whom it may concern: This is good to R. F. for eight hundred dollars, as payment for care and attendance rendered by her to me in my last sickness; this eight hundred dollars is to be collected out of my estate after my death, providing however, I die a bachelor," is a will, and not an acknowledgment of a debt nor a duebill, and is entitled to probate. Ferris v. Neville, 127 Mich. 444, 54 L.R.A. 464, 89 Am. St. Rep. 480, 86 N. W. 960.

In Knott v. Hogan, 4 Met. (Ky.) 99, it is said that an instrument reciting that the maker had loaned a sum of money to another, and had received his note for the same, and directing her executor or administrator, in the event she should not collect the note during her lifetime, to surrender the same to the debtor, might, without doubt, if established according to the requirements of the statute of wills, take effect as a testamentary disposition.

[1903] P. 12, 72 L. J. Prob. N. S. 2, 51 Week. Rep. 302, 87 L. T. N. S. 748.

And it seems that an arrangement between testator and his heirs, to determine how much of the estate should go to each account, might be given testamentary effect, child, entered in a book in the form of an if affecting only personalty and executed according to law. Williams v. Pope, Wright (Ohio) 406.

Memoranda of advancements made by deceased and written by him may indicate how his estate should be distributed, so as to be testamentary in character and to require execution in the form provided for wills. Sims v. Sims, 39 Ga. 108, 99 Am. Dec. 450.

But where it appears that a writing signed in the hand of the deceased, found among his valuable papers, does not purport to be a will, is not executed, is in the nature of an inventory of property, and an the wishes of the writer in regard to its informal and unsubscribed statement of disposition, there is ample proof to support acter, and probate is properly refused. verdict against its testamentary char. Crutcher v. Crutcher, 11 Humph. 377.

H. C. Sh.

NEW HAMPSHIRE SUPREME COURT.

WILLIAM J. CLARK, Admr.,

V.

ANNIE J. SHARPE.

(76 N. H. 446, 83 Atl. 1090.)

Landlord and tenant defect in preminjury liability.

ises A landlord is not liable for the death of the tenant's child which fell through the cover of a vault on the premises, because its hinges had rusted and its supports decayed, where the defect was not discoverable by ordinary observation, and the landlord is not shown to have had actual knowledge of it or to have made such an investigation Note. As to liability of landlord for injury to tenants from defects in premises, see notes to Hines v. Willcox, 34 L.R.A. 824, and Walsh v. Schmidt, 34 L.R.A. (N.S.) 798.

dence was that the condition was not disco verable by ordinary observation. The trap was not discovered until an attempt was made to lift the cover, when it tilted down cornerwise, returning to its ordinary position when released. There was no evidence that the defendant had attempted to raise the cover, or had ever seen it done. The defendant testified that she did not know of the condition. The only evidence claimed to support the verdict came from the defendant upon cross-examination, in which she admitted that she had been in the habit of exam

needed. From this it is argued that, examining for that purpose, it is probable she no

The premises were in the possession of the plaintiff as tenant of the defendant. The right of his child, occupying by his permission, to recover of the owner for injuries received through defects in the premises, is no greater than his. In the ordinary contract of letting there is no warranty that the premises are reasonably safe or suitable for the uses intended; and in the absence of any warranty, or of deceit or fraud on the part of the landlord, the lessee takes the risk of the condition of the premises, and cannot make the landlord responsible for injuries sustained by him during his occupancy by reason of defects therein. Towne v. Thompson, 68 N. H. 317, 46 L.R.A. 748, 44 Atl. 492. The landlord is not liable unless there is such a concealment of defects not open to ordinary observation, which cause the injury, as to amount to fraud or deceit. Cate v. Blodgett, 70 N. H. 316, 48 Atl. 281; Dustin v. Curtis, 74 N. H. 266, 268, 11 L.R.A. (N.S.) 504, 67 Atl. 220, 13 Ann. Cas. 169.

To go to the jury, the plaintiff was required to offer evidence that the injury was due to a secret defect in the premises, concealed from ordinary observation, known to the defendant, and not disclosed to and unknown by the plaintiff. Cowen v. Sunderland, 145 Mass. 363, 1 Am. St. Rep. 469, 14 N. E. 117. The sole question presented by the defendant's motion is whether there was evidence from which it could be found that she knew of the defect which caused the injury. The child lost her life, it could be found, because the cover of the vault tilted

downward from lack of sufficient support when the child went upon it, thereby allowing the child to fall into the vault below. The question therefore is: Did the defendant know of this trap?

There was evidence that the condition was caused by the rusting away of the hinges and the decay of a support intended to hold

ing that, it is probable she made further examination and discovered the danger.

The question is not what the defendant ought to have done, or what she ought to have known, but what did she in fact do and know. There was no evidence that she had done what was necessary to learn the danger, and the conclusion that she knew what she could not know without such action is a mere surmise or guess, which is not the legal proof the law requires. There is no open, visible connection between the fact proved― that the defendant was accustomed to examine the premises to see if repairs were needed-and the conclusion that she discovered, and therefore knew, the secret danger causing the injury. These principles have been so often relied upon that it is sufficient to cite without discussing the recent cases in which they have been elaborated. Deschenes v. Concord & M. R. Co. 69 N. H. 285, 290, 46 Atl. 467; Carr v. Manchester Electric Co. 70 N. H. 308, 310, 48 Atl. 286; Dame v. Laconia Car Co. Works, 71 N. H. 407, 52 Atl. 864; Cohn v. Saidel, 71 N. H. 558, 568, 569, 53 Atl. 800; Reynolds v. Burgess Sulphite Fibre Co. 73 N. H. 126, 131, 59 Atl. 615. The absence of all evidence that in making the examination of the premises the defendant made such an investigation as must have disclosed to her the condition of the cover cannot be supplied by guess or conjecture. Wright v. Boston & M. R. Co. 74 N. H. 128, 133, 8 L.R.A. (N.S.) 832, 124 Am. St. Rep. 949, 65 Atl. 687; Gibson v. Maine C. R. Co. 75 N. H. 342, 344, 74 Atl. 589. Especially must this be true when no inquiry was made of the defendant whether she had ever seen the cover tilt from an attempt to lift it or a weight placed on it, which the case discloses to have been the only means by which the secret defect could be discovered. The question is not as to the weight to be given to the defendant's denial of a fact the plaintiff was bound to prove,