VENDOR AND PURCHASER.

1. Where the securing of the release of liens by the vendee
in a land contract was a condition precedent to the giving
of the deed to it by the vendor, who had secured title
to the premises from the owner, who was indebted to
it and to others, failure by the vendee to secure, within
the time limited, the release of said liens amounted to
a breach of the contract excusing performance by the
vendor, and the vendee was properly denied specific
performance. Boone v. Perrigo, 47.

2. On a bill to enjoin summary proceedings, for the rescis-
sion of a land contract on the ground of fraud, and to
declare a lien upon the premises for the amount paid
on such contract, representations by defendants' agent,
upon inquiry, that a nearby uncompleted house had been
purchased by a negro but that he had sold it to white
people, when in fact he had not sold it but continued
in ownership, and, when completed, went into occupancy
thereof, held, sufficient to justify a decree for plaintiff.
Munro v. Steinhauser, 137.

3. The vendee in a land contract may consent that title be
conveyed to a third party. Atkinson v. St. Matthias
Church, 204.

See EVIDENCE (4-6); QUIETING TITLE (1); SPECIFIC PERFORM-
ANCE (1).

VERIFICATION-See CRIMINAL LAW (41).

VIOLATION OF STATUTE WILFUL MISCONDUCT-See MASTER
AND SERVANT (30).

WAIVER-See APPEAL AND ERROR (6); WITNESSES (4, 5).

WAREHOUSEMAN-See CARRIERS (2).

WARNING AND INSTRUCTING SERVANT See MASTER AND
SERVANT (32, 33).

WARRANTY-See SALES (1, 2).

WASTE.

1. The action of waste under the old English practice, in-
volving a recovery of the premises injured, does not pre-
vail in this State, but the remedy is by action on the case
(3 Comp. Laws 1915, § 14940). Schuman v. Schuman, 184.
2. However, a court of equity has power to restrain waste
and allow damages for waste already committed, but the
satisfaction for waste committed cannot by decree be made
to extend to forfeiture of the estate unless the parties have
so agreed. Id. 185.

See EQUITY (1); LIFE ESTATES.

WATERS AND WATERCOURSES.

1. In the absence of peculiar circumstances sufficient to con-
stitute an estoppel upon the owner of the prescriptive
right, or to give the adverse party himself an adverse
right, the mere acquisition of a prescriptive right to an
artificial condition of water will impose no obligation to
maintain such condition; the reason being that adverse use
is necessary to establish prescriptive rights. Goodrich v.
McMillan, 630.

2. In a suit by cottage owners on a lake to compel defend-
ant to restore a dam at a mill site in such manner
as to restore the artificial level of the lake maintained
for nearly 70 years, where it appears that the flowage
rights were acquired by defendant and his grantor by
prescription, the bill was properly dismissed, plaintiffs
having acquired no prescriptive rights to flow the lands or
maintain the dam.

Id.

WEIGHT OF EVIDENCE-See APPEAL AND ERROR (2, 6, 7, 9-11,
14); CRIMINAL LAW (34); GIFTS (4); NEW TRIAL (2).

WIDOW AS ADMINISTRATRIX-See EXECUTORS AND ADMINIS-
TRATORS (3-7).

WIFE LIVING APART FROM HUSBAND FOR JUSTIFIABLE
CAUSE-See MASTER AND SERVANT (4-6, 21).

WILFUL MISCONDUCT-See MASTER and Servant (30).
WILFUL NEGLIGENCE-See MASTER `AND SERVANT (32).
WILLS.

1. In proceedings for the probate of a will, contested solely
on the ground of undue influence, evidence that at the
time of the execution of the will testatrix was suffering
from Bright's disease, probably in its last stages, which
weakened her resistance to influence and suggestion, that
the disposition under the terms of the will was unnatural,
that proponent participated in the preparation of the will
and was unusually solicitous about testatrix at that time,
that testatrix subsequently accused proponent of com-
pelling and coercing her into executing the same, under
which accusation he remained silent, and that he denied,
just before testatrix's death, that a will had been made,
held, sufficient to sustain a verdict for contestants. In
re Hillman's Estate, 142.

2. It was not error to permit a physician who attended
testatrix on the day the will was made, and subsequently,
and who found her suffering from Bright's disease, prob-
ably in the last stages, weakened mentally and physically,
to testify that a person in her condition was more sus-
ceptible to influence and suggestion than one in normal
condition. Id. 143.

3. Where a husband and wife owned a house and lot by the
entireties, that part of the husband's will giving the wife
a life estate only in said property was void, and the
statute (3 Comp. Laws 1915, § 13805) permitting the

WILLS-Continued.

widow to elect to take under the will or under the statute
has no applicability, since it has nothing to do with
property beyond the power of testator to devise; and the
widow, by accepting under the will, was not estopped
from asserting her title to said property. Webber v.
Webber, 178.

4. It is the cardinal principle of interpretation of wills to
carry out the intention of the testator if it is lawful and
can be discovered. Rozell v. Rozell, 325.

5. It will be presumed that the testatrix intended to make a
valid will. Id.

6. As a general rule, where, under a will, a gift is to a
class, the class is to be determined as of the time the
gift is to take effect. Id.

7. "Children in being" at the time of testatrix's death in-
cluded a grandchild born four months thereafter. Id.
8. Where the plain language of a will provided that the
devise of a life estate was to children in being at the
time the estate took effect, viz., on the death of testatrix's
son, which would render the devise void under the statute
against perpetuities (3 Comp. Laws 1915, § 11535), the
court will not indulge the presumption, for the purpose
of finding it valid, that testatrix intended the gift to be
to children in being at the time of her death. Id.
9. Although the life estates to the son's children with re-
mainder over to his grandchildren must be held void
under the statute against perpetuities, the life estates to
the daughter and son will be sustained, and upon their
termination the real estate will descend to the heirs at
law of testatrix as intestate property, since to so hold
does not greatly violate or overturn testatrix's general
plan of distribution; the son being the only child of testa-
trix who had issue. Id.

10. In proceedings to contest a will on the sole ground of un-
due influence, a recitation in the will of testatrix that
"I give, devise, and bequeath to my respected friend and
attorney," was not such presumptive evidence of undue
influence arising from the fiducial relation between the
parties as to require a directed verdict for contestant, a
half sister from whom testatrix had been estranged, where
there was evidence that in the making and preparation of
the will testatrix had the benefit of independent legal
advice, and said beneficiary was not present at its making
and had no part in its preparation. In re Browne's Es-
tate, 621.

11. An assignment of error that the court unduly restricted
the scope of inquiry respecting the general relations of the
parties, held, not sustained by the record. Id. 622.
12. Refusal of requests to charge, held, not reversible error
where the charge as given, though brief and concise, was
comprehensive and gave the issue fairly to the jury. Id.

WITNESSES.

1. In bastardy proceedings, where defendant was called as a
witness in his own behalf, he was subject to the same
rules of cross-examination as any other witness, and ques-
tions as to his frequenting houses of prostitution, asked
for the purpose of affecting his credibility as a witness,
did not exceed reasonable limits. People v. Fenner, 240.
2. The husband of claimant who filed a claim against an
estate for services performed was not a party in interest
barred under 3 Comp. Laws 1915, § 12553, from testifying
as to the terms of the contract between his wife and de-
cedent, where the services to be performed, and to which
he gave his consent, were of the character usually per-
formed by nurses, and not such as are usually performed
by a wife in the household of the husband and for his
benefit. In re Turner's Estate, 359.

3. In a prosecution for robbery while armed, where a wit-
ness for the prosecution, while testifying, used memo-
randa with which to refresh his memory, the trial court
was in error in denying defendant's request to examine
said memoranda, irrespective of the question as to
whether such examination would have been of any assist-
ance to defendant or not. People v. Schepps, 406.

4. In a prosecution for homicide, where defendant called his
wife as a witness and she elected to testify, they thereby
waived their statutory privilege, and she was subject to
cross-examination the same as any other witness. People
v. Toner, 640.

5. Neither the husband nor the wife alone can waive the
privilege, but to do so requires the consent of both. Id.
6. In a prosecution for murder, where a witness for the
prosecution had told conflicting stories upon the stand,
it was proper for the trial court to permit him to ex-
plain why he had done so; the weight of his testimony
being for the jury. People v. Davis, 661.

See BASTARDS (5); CRIMINAL LAW (3, 10, 22, 38, 43); EVI-
DENCE (1); EXECUTORS AND ADMINISTRATORS (9).

WORDS AND PHRASES-See ASSAULT (1); CONSTITUTIONAL
LAW (2); CRIMINAL LAW (5, 16, 36); HOMICIDE (2); INTOXICAT-
ING LIQUORS (2, 6, 7); LANDLORD AND TENANT (7, 8); MASTER
AND SERVANT (4-6); ROBBERY (1); STATUTES; WILLS (7).
WORK AND LABOR-See MASTER AND SERVANT (1).
WORKMEN'S COMPENSATION ACT-See MASTER AND SERVANT
(2-36).

WRIT OF ERROR USELESS WHERE NO JUDGMENT-See
APPEAL AND ERROR (21).

WRITTEN CONTRACTS—See CONTRACTS (3); EVIDENCE (2, 4).