maintained, then the defendant is to appear be-13. WILLS fore the superior court for sentence; if not, then DENCE. the case is to be dismissed."

[1] The respondent's liability arises under the provisions of chapter 99, R. S. 1903, under which he was tried, convicted, and imprisoned. He was released from imprisonment by taking the poor debtor's oath as provided by statute, and he is exempt from further prosecution or arrest, except upon an execution procured in the same suit for noncompliance with the order of court therein. McLaughlin v. Whitten, 32 Me. 21. He is under no other act liable to prosecution or arrest for or on account of the nonsupport of the illegitimate child in question. The duty to support such child is imposed by statute, and the same act provides for its enforcement. Liability follows the breach of a duty. The duty in this case was imposed by chapter 99, R. S. 1903, supra, and became a fixed | liability only after full compliance with the requirements of that chapter. The former action, though criminal in form, was a civil action. Smith v. Lint, 37 Me. 546.

[2] The respondent is now charged in a criminal complaint with desertion of his minor child under the age of 16 years. We think the action may not be maintained. The child in question is not respondent's minor child within the meaning of Public Laws of 1907, chapter 42. The "child or children" contemplated by the provisions of chapter 42, supra, mean legitimate children, and do not include illegitimate children. Hall V. Cressey, 92 Me. 514, 43 Atl. 118; 7 C. J. 957, § 38; Hiram v. Pierce, 45 Me. 367, 71 Am. Dec. 555, citing Curtis v. Hewins, 11 Metc.

294.

[3] The support of illegitimate children is provided for under the bastardy act, which makes adequate and exclusive provision for the enforcement of that duty. Chapter 99, R. S. 1903; McKenzie v. Lombard, 85 Me. 224, 27 Atl. 110; Hammond v. L., A. & W. St. Railway, 106 Me. 213, 76 Atl. 672, 30 L. R. A. (N. S.) 78.

166(1)—UNDUE INFLUENCE-EVI

The fact that testatrix's last will diminished amount left for care of a cemetery lot, had no a legacy made by a previous will, or changed the tendency to prove undue influence in the absence of other evidence sufficient to overcome the volition and free agency of testatrix. 4. WILLS 166(1)-UNDUE INFLUENCE-EVIDENCE. That testatrix selected her physician as her residuary legatee is not evidence of undue influence exercised by him.

5. WILLS 166(1)—UNDUE INFLUENCE-SUFFICIENCY OF EVIDENCE.

held to show that the will and residuary proviIn proceedings to probate a will, evidence sion in favor of testatrix' physician were not procured by undue influence exercised by him or by others for him upon testatrix.

Report from Supreme Judicial Court, Cumberland County.

Proceedings for probate of will of Susan York, contested by Almira C. Norton and others. Decree admitting the will to probate, case reported, and decree of the judge of probate affirmed.

Argued before CORNISH, C. J., and KING, BIRD, HANSON, and MADIGAN, JJ.

A. M. Spear, of Gardiner, and Clarence E. Sawyer, of Portland, for appellants. Joseph H. Rousseau, of Brunswick, and Frederic J. Laughlin, of Portland, for proponents.

HANSON, J. This is an appeal from a decree of the judge of probate for the county of Cumberland admitting to probate the last will and testament of Susan York, late of Brunswick, in the county of Cumberland, and is before the court on report. The contestants filed the following reasons of appeal:

(1) That the alleged will was not duly executed.

(2) That said deceased was not of testamentary capacity at the time of executing said will.

(3) That the execution of said will was procured by undue influence.

(4) That said execution of said will was induced and procured by misleading state

In accordance with the stipulation the en-ments and a misunderstanding of the facts. try must be:

Complaint dismissed.

(116 Me. 370)

Appeal of NORTON et al.

(5) That said instrument does not express the last will of the deceased.

The testatrix, after making provision for a lot in Pine Grove Cemetery, made several bequests in money and jewelry to friends and lodges, and $1 each to the contestants,

(Supreme Judicial Court of Maine. Oct. 23, bequeathed $500 to her executor, and the

1917.)

PROBATE

1. WILLS 52(1)
BURDEN TO
SHOW CAPACITY.
In the Supreme Judicial Court, as in the
probate court, the burden is on proponent to
show testatrix's mental capacity.
2. WILLS 163(1)

UNDUE INFLUENCE

BURDEN OF PROOF. The law casts upon contestants of the probate of a will the burden to prove the allegation in their reasons of appeal from the decree of the judge of probate admitting the will to probate that the execution of the will was procured by undue influence.

residue of her estate, about $8,000, to Dr. Clarence W. P. Foss, an acquaintance of many years, who was her attending physician.

The record discloses that the testatrix since 1911 had made three wills, the will under consideration having been made in September, 1915, two months prior to her death. In the first will the testatrix made similar provision for the care of the cemetery lot, and after making various small bequests bequeathed to one of the attorneys for the contestants, who was not related to her, the resi

For other cases see sam, topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

L

due of her estate in amount substantially | residuary legatee is not evidence of undue the same as in the last will. In her second influence. She nad made a similar will three will, after making substantially the same years before, naming a friend and not a relasmaller bequests,. the testatrix gave the resi- tive as principal legatee; she had made andue of her estate in trust to her executor, other will, and again a codicil thereto, in who was also named a trustee, the income of each instance withholding from her relatives said residue to be paid semiannually to her the property which she did not intend they heirs at law. This will was made January should have, and no suggestion enters the 29, 1915. Mr. Hall, the executor named in case that in all those acts she was of unsound the second will, was named executor in the mind or unduly influenced. She had a realast will, and it appears that Mr. Hall met son, which the case shows to be good and suffi. Dr. Foss for the first time on or about the cient, for diverting her property into other date of the last will. channels. That she had a legal right to do

1. The contestants do not now contend as she did in each case in the absence of unthat the will was not duly executed.

[1] 2. Here, as in the probate court, the burden is on the proponent to show mental capacity, and we are of the opinion that the proponent has sustained the burden.

[2-4] 3. The contestants rely largely upon the ground taken by them that the execution of the will was procured by undue influence, and the law casts upon them the burden of proving that allegation in their reasons of appeal.

due influence is not denied.

Reasons 4 and 5, so far as they are supported, are comprehended in the foregoing. [5] From all the evidence we are of the opinion that the will and the provision in favor of Dr. Foss were not procured by undue influence exercised by him, or by others for him, upon the testatrix.

The entry will be:

Appeal dismissed, with costs for proponent.

Decree of the judge of probate affirmed.

(116 Me. 374)

CHASE v. SCOLNIK.

1917.)

COURTS 160-MUNICIPAL COURTS JUBIS

DICTION-STATUTORY PROVISIONS.

The record contains nearly 600 pages, the larger portion of which, on the part of the contestants, is devoted to testimony tending to sustain their theory that Dr. Foss, during his visits at the house of the testatrix from June to September, 1915, unduly influenced (Supreme Judicial Court of Maine. Oct. 24, Mrs. York to execute a will in his favor. We bave examined the record carefully and find that the contestants have failed to sustain the proposition asserted by them by a preponderance of all the evidence. The testimony discloses that during the progress of the disease for which he was treating the testatrix he brought to her sickroom on one or more occasions delicacies demanded by her condition, that his bearing in the sickroom was friendly and courteous, that his visits were always of short duration, and that the final disposition of her property was as much a surprise to him as to others. But acts of kindness and courteous attention are not undue influence. Diminishing another legacy, or changing the amount for care of the lot in the cemetery, has no tendency to prove undue influence in the absence of other evidence, sufficient, in connection with that named, to overcome the volition and free agency of the testatrix. The case does not show any opportunity on the part of Dr. Foss to carry out the purpose unduly to influence Mrs. York. He was seldom if ever alone with her. Her illness required the presence of a nurse, and during his attendance three different nurses were employed, all of whom testify in the case to a course of conduct on the part of Dr. Foss characterized by uniform kindness and entirely in keeping with the highest professional ethics. From their testimony it not only appears that he had no opportunity unduly to influence the testatrix, but that he made no attempt to do so. That the testatrix selected the proponent as her

Priv. & Sp. Laws 1871, c. 636, as amended by Priv. & Sp. Laws 1874, c. 626, and by Priv. & Sp. Laws 1887, c. 88, provides that the Lewiston municipal court shall have exclusive jurisdiction in all civil actions in which the debt or damages demanded do not exceed $20, and concurrent jurisdiction in all civil actions where the debt or damages do not exceed $300. Pub. Laws 1917, c. 260, § 3, provides that the superior court of Androscoggin county thereby created shall have exclusive original jurisdiction of certain actions and all other civil actions at law not exclusively cognizable by municipal and police courts where the damages demanded do not exceed $500. Section 7 provides that all acts and parts of acts relating to courts and judicial proceedings shall be modified so as to give full effect to that act, and that all acts and parts of acts inconsistent therewith are thereby repealed. Held, that the Laws of 1871, 1874, and 1887, so far as they give the municipal court concurrent jurisdiction where the debt or damages demanded exceeds $20, are repealed by the act of 1917, as the language of that act meets the requirements of the rule that general acts do not repeal the provisions of municipal charters unless their words are so strong and imperative as to render it manifest that the intention of the Legislature cannot otherwise be satisfied, and moreover, the act of 1917 is not a general law within that rule, but a local act. Exceptions from Lewiston Municipal Court. Action by Frank A. Chase against Samuel Scolnik. A motion to dismiss was overruled, and defendant brings exceptions. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR, KING, BIRD, HALEY, and HANSON, JJ.

Louis J. Brann, of Lewiston, for plaintiff. Į Benjamin L. Berman, of Lewiston, for defendant.

The interpretation of this section admits of no doubt. The language is unambiguous. The superior court is given exclusive jurisdiction up to an ad damnum of $500 of all actions which are not within the exclusive jurisdiction of municipal and police courts and trial justices. The Lewiston municipal court had exclusive jurisdiction in civil ac

CORNISH, C. J. This action of assumpsit was begun on August 2, 1917, and made returnable on the first Tuesday of September, 1917, in the municipal court for the city of Lewiston. The amount claimed in the actions only up to $20. Therefore when the act count annexed is $22.75, and the ad damnum is $50. The defendant seasonably filed a motion to dismiss on the ground that the municipal court had no jurisdiction of the cause; the defendant claiming that the superior court for Androscoggin county created by the Legislature of 1917 is exclusively cognizable thereof. This motion was overruled by the court, and the defendant's exceptions to this ruling were certified at once to the Chief Justice, as provided by the act creating the

court.

The jurisdiction of the Lewiston municipal court in civil matters as provided in the act creating the court (Priv. & Spec. Laws 1871,

c. 636, and as amended by Priv. & Spec. Laws 1874, c. 626, and of 1887, c. 88) was as follows: "Said municipal court shall have exclusive jurisdiction in all civil actions in which the debt or damages demanded do not exceed twenty dollars, and both parties, or one of the parties and a person summoned as trustee, reside in the city of Lewiston, and shall also have original concurrent jurisdiction with the Supreme Judicial Court in all civil actions where the debt or damages demanded, exclusive of costs, do not exceed three hundred dollars, and the defendant resides in the county of Androscoggin."

Under these provisions the exclusive original jurisdiction of the municipal court in civil actions was limited to an ad damnum of $20. It also had concurrent jurisdiction with the Supreme Judicial Court where the specific demand set forth in the writ, exclusive of costs, did not exceed $300. This difference in language limiting the amount is explained in National Pub. Soc. v. Raye, 115

Me. 147, 98 Atl. 300.

This was the situation when the superior court was created by chapter 260 of Pub. L. 1917. Section 3 of that act, so far as material to the point under consideration, is as fol

lows:

"Within said county, said superior court shall have exclusive jurisdiction of civil appeals from municipal and police courts, and trial justices, exclusive original jurisdiction of actions of scire facias on judgments and recognizances not exceeding five hundred dollars; of bastardy trials, and all other civil actions at law not exclusively cognizable by municipal and police courts, and trial justices, where the damages demanded do not exceed five hundred dollars, and concurrent original jurisdiction of all other civil actions at law where the damages exceed five hundred dollars," etc. The particular clause under consideration

here is:

"Exclusive original jurisdiction of all other

actions at law not exclusively cognizable by municipal and police courts, and trial justices, ** * where the damages demanded do not exceed five hundred dollars."

creating the superior court took effect, on July 7, 1917, all those actions over which the Lewiston municipal court had previously taken concurrent jurisdiction with the Supreme Judicial Court, that is between $20 and $300, fell at once into the exclusive jurisdiction of the newly established superior court, and the concurrent jurisdiction of the municipal court ceased. There is no escape from this conclusion. It is expressly stated in unmistakable

terms.

worked an amendment of the municipal court When the superior court act was passed it act ipso facto. The two acts in so far as they apply to the jurisdiction over cases where the ad damnum exceeds $20 and the specific de

mand set forth in the writ does not exceed $300 are antagonistic. They are so repugnant that they cannot stand together. Therefore the old statute must be regarded as amended by the new so as to become conformable thereto. Starbird v. Brown, 84 Me. 238, 24 Atl. 824; Jumper v. Moore, 110 Me. 159, 85 Atl. 485.

The plaintiff invokes the rule that general acts are held not to repeal the provisions of charters granted to municipal corporations, though conflicting with the general provisions, unless the words of the general statute are so strong and imperative as to render it manifest that the intention of the Legislature cannot otherwise be satisfied, citing State v. Cleland, 68 Me. 258, and Bass v. Bangor, 111 Me. 390, 89 Atl. 309. The words of the superior court act, even if considered to be a general law, are so strong and imperative that they meet the requirements of this rigid rule. But the superior court act, although printed in the general laws, is, in essence, a local act and applies to Androscoggin county alone, the same county in which the Lewiston municipal court has jurisdiction. Both courts are virtually local, the superior court having the broader jurisdiction. Hence the rule as to general laws amending or repealing by implication the charters of a single municipal corporation is hardly applicable. But as was said by this court in Starbird v. Brown, 84 Me. 238, 24 Atl. 824, where the application of that rule was contended for by counsel, and State v. Cleland was relied upon as supporting that position:

"There is this marked difference between that case and this: In that, the question was whether a general act should have general or only partial application. In this, the ques tion is whether a general act shall have any application or not."

The same comment is pertinent in the cover the value of certain personal property pending case. alleged to have been converted by the defendants.

(Supreme Judicial Court of Maine. Oct. 24, the usual customs of business men, and be

Fraud is never to be presumed, but must be ants reply that the transactions were reaproved. 2. BANKRUPTCY 303(1) CONVERSION PROPERTY-BURDEN OF PROOF.

Exceptions from Supreme Judicial Court, ment. Penobscot County, at Law.

Trover by Lawrence V. Jones, trustee in bankruptcy, against Abraham M. Shiro and others.

On plaintiff's exceptions to verdict for defendants. Exceptions overruled. Argued before CORNISH, C. J., and SPEAR, BIRD, HANSON, and MADIGAN,

The court did not abuse its discretion in allowing plaintiff, after the jury had been impaneled, to amend his original declaration for fraud and deceit in a transaction relating to the mortgage of a cow by adding an additional count for conversion, such amendment not working a misjoinder, as case and trover could always be joined at common law, and their joinder does not depend on statute.

Exceptions from Hartford Court; A. G. Whitham, Judge.

Allegation in indictment of sale of "intoxiMunicipal cating liquor, to wit, beer," is sufficient. 3. CRIMINAL LAW 304(20)-JUDICIAL NO

Action by Fred Fowler against Robert T. Rogers. Judgment for plaintiff, and defendant brings exceptions. Judgment affirmed. Upon the trial and after the jury had been impaneled, the plaintiff asked leave to file an amended count to his declaration. The orig

inal declaration was for fraud and deceit alleged to have been practiced by the defendant in a certain transaction relating to the mortgage of a cow. The additional count sought to recover damages for the conversion of the cow. Subject to the exception of defendant, the court allowed the amended additional count to be filed. After verdict and before judgment, the defendant moved in arrest of judgment on the ground that the plaintiff had joined two separate and distinct causes of action in the declaration, inconsistent with each other. The motion was overruled, and the defendant excepted.

Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ.

John J. Wilson, of Bethel, for plaintiff. Charles Batchelder, of Bethel, for defendant.

MILES, J. This case comes to this court on exceptions of the defendant to the rulings and judgment of the Hartford municipal court, on the defendant's motion in arrest of judgment.

TICE "BEER." The court will take judicial notice that "beer" is the usual name for a malt liquor, and that it is intoxicating.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Beer.] 4. INTOXICATING LIQUORS 223(3)—ILLEGAL

SALE-PROOF-BEER.

A charge of illegal sale of intoxicating liquor is sustained by proof of sale of "beer" without any further description or testimony that it was intoxicating.

Argued before CONRAD and HEISEL, JJ.

David J. Reinhardt, Atty. Gen., and P. Warren Green, Deputy Atty. Gen., for the State. Alexander B. Cooper, of Wilmington,

for accused.

Giuseppe Li Fieri, alias Joseph Li Fieri, was indicted for unlawfully selling "intoxicating liquor, to wit, beer, to one Ernest C. Greenley, he the said Giuseppe Li Fieri, alias Joseph Li Fieri, then and there not having a proper license to sell intoxicating liquor according to law," etc.

On demurrer to the indictment. Overruled. The causes of demurrer appear in the opinion of the court.

CONRAD, J., delivering the opinion of the court:

[1] The contention of defendant's counsel is that the allegation that the sale was had in "the store or warehouse" of defendant is in the alternative and implies that he sold in two places. The court is of opinion that to charge a sale in more than one place in a single count would be fatally defective, but it appears by the language used that it was

We think and so hold that there is no merit in defendant's exception. Case and trover could always be joined at common law, and their joinder does not depend upon any statute. In Ayer v. Bartlett, 9 Pick. (Mass.) 156; Googins v. Gilmore, 47 Me. 9, 74 Am. Dec. 472, a declaration containing a count in tro-intended to charge the defendant with a sale ver was allowed to be amended by adding a count in case. It is stated in 23 Cyc. 391: Trover and case may be joined, trover being originally an action on the case. So when an action is originally trover, new counts in case may be added by way of amendment."

at a single place, known as the store or warehouse, and if there is any repugnancy in the indictment it can only show as a variance after the trial of the case.

[2-4] The second contention is that the al

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes