were made of cement blocks. Plaintiff intended to put the wall of the building out to the boundary line of their lot on the side next to defendant's lot, but it was afterward found that the wall failed to precisely follow the line. At the east end, the edge of the foundation underground is on the line, and the wall proper drops back about an inch inside the line on plaintiff's side of the lot; but at the west end the wall is eight or ten inches back from the line of plaintiff's lot. The whole of the wall is therefore on plaintiff's lot, and most of it is a few inches back from the line. It is alleged by the plaintiffs that in January or February, 1908, after the completion of their said building, defendant, desiring to erect a building on his own lot, entered into an agreement with them to the effect that they were to allow him, in erecting his building, to join to the wall of plaintiff's' building so as to use the wall as a part of his own building, and that in consideration he, defendant, would pay plaintiff's onehalf the original cost of the said wall. They alleged that pursuant to said agreement defendant proceeded to erect his building, and in doing so joined to their wall, and entered upon and occupied a strip of their land, but that he has refused to pay one-half of the cost of the wall as agreed. They instituted this action to recover the amount alleged to be due, and offered in their complaint to execute a deed or written agreement granting to defendant the right to use said wall in accordance with the terms of said oral agreement. Defendant answered, presenting an issue as to the allegations of the complaint. The chancellor heard the case on the pleadings and oral testimony, and rendered a decree in favor of plaintiffs for the amount sued for, and directed plaintiffs to "execute and deliver to the defendant a good and sufficient deed conveying to the defendant a one-half interest in that portion of the wall and foundation used by defendant as long as the same shall stand." Defendant appealed from the decree. The evidence sustains the finding of the chancellor that the wall in question is situated wholly on plaintiff's lot, and that defendant 60s entered into an agreement to join to it in the construction of his building and use it as a part thereof, and to pay to plaintiffs one-half the cost of said wall. Defendant denies that he agreed to use plaintiffs' wall or to pay a part of the cost. He admits that before he began the construction of the building he had a conversation with plaintiffs, in which they proposed to let him use the wall if he would pay one-half of its original cost, but he says that afterward he found that the wall was defective, and could not be used with safety in the construction of his building. He built his side walls up to plaintiffs' wall, and joined it with mortar, but did not cut into the wall, or tie his wall onto it except with the mortar joints. He put the tin roof close to the wall and supported it with posts, but did not actually join it to the wall. Defendant's conduct is nothing short of an ingenious attempt to make use of plaintiffs' wall without paying for it, and he now attempts to evade liability by pleading the statute of frauds. According to the testimony accredited by the chancellor, he agreed to use the wall and pay for it. In order to do so, he invaded plaintiffs' premises, with their permission, by making use of the strip of land between the wall and the boundary line of the lot. Unfortunately for his contention, this amounted to performance of the contract, which took the case out of the statute of frauds and gave plaintiffs a right of action for the agreed price: Walker v. Shackelford, 49 Ark. 503, 4 Am. St. Rep. 61, 5 S. W. 887; Rudisill v. Cross, 54 Ark. 519, 26 Am. St. Rep. 57, 10 S. W. 575. It is unimportant that the wall was not built as a party-wall. It became a partywall by force of this agreement (Dorsey v. Habersack, 84 Md. 117, 35 Atl. 96) and its use as such by defendant took the agreement out of the operation of the statute. The evidence shows that there is a mortgage on plaintiffs' lot; but this does not absolve defendant from his obligation to pay one-half of the cost of the wall. He has enjoyed the rights acquired under the contract, and must pay according to his obligation. A different question might be presented if the premises were sold under the mortgage; but defendant cannot plead an outstanding mortgage lien in bar of plaintiffs' right to recover on the contract. Decree affirmed. The Law Concerning Party-walls is the subject of a note to Dunscomb v. Randolph, 89 Am. St. Rep. 924. The term "party-wall" is usually applied to such walls as are built on the land of another for the common benefit of both in supporting timbers used in the construction of contiguous buildings. And a division wall may become a partywall by agreement, either actual or presumed: Coggins & Owens v. Carey, 106 Md. 204, 124 Am. St. Rep. 468. One Who Uses a Wall Erected on the Dividing Line by the Owner of an adjacent lot should pay a reasonable price for the use estimated as of the time the user takes place, and this although neither he nor his vendor was a party to the erection of the wall, and made no agreement, express or implied, concerning it: Spaulding v. Grundy, 126 Ky. 510, 128 Am. St. Rep. 328. CASES IN THE SUPREME COURT OF CALIFORNIA. ESTATE OF MURPHY. WILL-Gift to Class.-The Death of One of the class to which a testamentary devise is made, prior to the death of the testator, does not cause the legacy to lapse, but those of the class who survive the testator take the whole devise. (p. 113.) WILL.-A Gift to a Class is a Gift of an Aggregate Sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the ultimate number. (p. 113.) WILL-Gift to Class.-In Determining Whether a devise is to a class or to individuals, importance is attached to the fact that the gift is to the devisees nominatim, and that the particular share they shall each receive is mentioned. When this appears the bequest constitutes a gift and devise, individually as tenants in common, and not as a devise to a class. (p. 114.) WILL-Gift to Class.-If Words Which, Standing Alone, would be effectual to create a class, are followed by equally operative words of devise to devisees by name and in definite proportions, the law infers from the designation by name and mention of the share each is to take that the devisees are to take individually and as tenants in common, and that the descriptive statement is intended merely as matter of identification. (p. 114.) WILL-Gift to Class.-The Rules of Construction for determining whether a gift is to a class are not absolute, but give way to the intention of the testator as gathered from the consideration of all the provisions of the will, or, if they are not clear, by a consideration of the circumstances surrounding the making of it. (p. 115.) WILL Gift to Class-Circumstances Showing Intention.Where a testator gives the residue of his estate equally to four named children of his sister, the fact that he lived with her from the childhood of the children up to her death, had a deep affection for the children, took great interest in their welfare, and had other nieces and nephews whom he did not mention in his will, does not aid the construction of the will as to whether the gift is to the individuals or the class. (pp. 115, 116.) WILL-Gift to Class-Prevention of Intestacy.-The canon of interpretation applicable to prevent intestacy cannot be invoked to establish a gift to a class against the rules of law declaring the legal meaning of the language in a will. (p. 116.) WILL-Gift to Class, What is not.-A Residuary Clause, "all the rest of my property both real estate and personal property shall go to, and be equally divided among the four children of my late sister Catherine F. Flynn, deceased; that is to say: I give, devise and bequeath all the rest of my personal property and all my real estate of whatsoever kind and wheresoever situate, share and share alike, to Timothy J. Flynn, William D. Flynn, Mary Jane Logan and Kate I. Prendergast"-does not constitute a gift to a class, and upon the death of one of the children without lineal descendants before the testator, the share devised to him lapses and goes to the heirs of the testator. (pp. 117, 118.) Sullivan & Sullivan and Theo. J. Roche, for the appellants. Mastick & Partridge and E. J. Mize, for the respondents. 64 LORIGAN, J. The will of Denis B. Murphy contained, among other provisions, the following residuary clause: "Fourth. It is my will and desire that all the rest of my property both real estate and personal property shall go to, and be equally divided among the four children of my late sister Catherine F. Flynn, deceased; that is to say: I give, devise and bequeath all the rest of my personal property and all my real estate of whatsoever kind and wheresoever situate, share and share alike, to Timothy J. Flynn, William D. Flynn, Mary Jane Logan and Kate I. Prendergast." The will was admitted to probate and in due time the executors thereof petitioned for a distribution of the estate. The petition set forth the will of deceased and referring to 65 the clause thereof above quoted alleged that William D. Flynn, named therein as one of the residuary legatees of the estate of decedent, had died prior to the death of the testator, and then with reference to said clause in the will it was alleged: "That the intention of said decedent in said will was to devise and bequeath the residue of his estate to the said Timothy J. Flynn, William D. Flynn, Mary Jane Logan and Kate I. Prendergast as a class, namely, as the children of his said sister, and to those of said class only who should be living at the death of the said decedent, and upon the death of the said William D. Flynn during the life of the said decedent, the said Timothy J. Flynn, Mary Jane Logan and Kate I. Prendergast became and are the sole survivors of said class, and are entitled to the whole of said residue." Certain nieces and nephews of the deceased, claiming to be among his heirs at law, answered the petition for distribution denying all the foregoing allegations as to the intent of the testator to devise the residue of his estate to the devisees named in said fourth clause as a class, and averring that on the contrary said William D. Flynn, named in said will, as a devisee, died prior to the death of the testator without issue; that as to the portion of his estate devised to said William D. Flynn the testator died intestate, and that they, with other heirs at law of the testator, were entitled to participate in the distribution thereof. A hearing was had on the petition and the court made findings of fact wherein it found, as alleged in the petition for distribution, that the intention of the decedent was to devise the residue of his estate to the devisees named in said fourth clause of his will as a class, namely, to the children of his said sister and to those of said class who would be living at the death of said decedent. In accordance with this finding the court distributed the property to the survivors of those mentioned in the residuary clause of the will, namely, Timothy J. Flynn, Mary J. Hyde (formerly Logan), and Kate I. Prendergast, share and share alike. This appeal is by those heirs at law of decedent-the nieces and nephews-who contested the distribution of the estate to the devisees named in the residuary clause as a class and is taken from the decree of distribution accompanied by a bill of exceptions. 66 It must be conceded upon this appeal that under the testamentary clause in question the devise to William D. Flynn lapsed upon his death, without leaving lineal descendants, before the testator (Civil Code, section 1343), and that as to the portion of the estate devised to him the testator died intestate, unless from the clause in the will creating the devise in which he was to participate, considered by itself, it is apparent that the testator intended the devise of the residue of his estate to go to the children of his sister Catherine as a class, or that such intention appears from extraneous evidence properly admissible to disclose it. While the lower court reached the conclusion that the devise in question was to a class consisting of the children of the deceased sister of testator who might survive him, we are of the opinion, in the light of the established rules of construction and authorities, that this conclusion was not justified either from the express terms of the devise itself or aided by extrinsic evidence. It is declared by section 683 of the Civil Code that a joint interest created by a will exists only "when expressly declared in the will. . . . to be a joint tenancy," and by section 685 of the same code it is declared that every interest created in favor of several persons (except acquired under certain conditions not involved here) is an interest in common unless declared in its creation to be a joint interest. It is quite apparent from an examination of the testamentary clause in question that this devise does not expressly declare a joint tenancy with its accompanying right of survivorship in the devisees named therein, and unless there is some rule capable of application so as to prevent it, the interest which each devisee took under the devise was an interest in common. |