Bartlett vs. Chicago & Northwestern R. Co. complaint, which the court sustained, and the plaintiff appeals. The cause was submitted for the appellant on the briefs of John Brennan, and for the respondent on that of Fish & Cary. NEWMAN, J. The real ground on which the plaintiff bases his claim to recover is not entirely clear. It is certainly not among the general duties of a railroad company to furnish and operate spur tracks to the warehouses of its patrons. While it is its duty to carry, without discrimination, every man's goods, when delivered for carriage at its depots or warehouses, it is under no obligation to receive them for carriage elsewhere. If any patron wishes special accommodations, he must buy them. He can compel them only by force of some contract or in pursuance of the statute. doubt the burden is on the plaintiff to show affirmatively that the defendant, on one or the other ground, owed to him the duty to maintain and operate the spur track. Unless his complaint state facts which show that the defendant owed him such duty, it is demurrable, and the demurrer was properly sustained. Νο The statute referred to (sec. 1802, R. S.) is as follows: "The owner of any elevator, warehouse or mill, at or near any station or terminus of any railroad, may, at his own expense, construct a railroad track from such elevator, warehouse or mill, to such railroad, and connect with the same by a switch at a point within a reasonable distance from such station or terminus, and the railroad corporation shall allow such connection. Such side track and switch shall at all times be under the control and management of, and be kept in repair and operated for the benefit of, such owner or his assigns by such corporation; but the actual cost of so maintaining and operating the same shall be paid monthly by the owner thereof; and in case of his neglect to so pay VOL. 96-22 Bartlett vs. Chicago & Northwestern R. Co. the same upon demand, the obligation of this section upon any such corporation shall cease until such payment be made in full." The statute contemplates that the owner of the warehouse to be accommodated shall provide his own track, and requires the railroad corporation to operate, for his benefit, the track which he has so provided. If the corporation constructs its own track to its patron's warehouse, to serve its own interest, that case is not within the terms of the statute. The statute does not require the corporation to operate its own tracks for the special or exclusive benefit of any one of its patrons; but it may operate its own track for its own benefit, and may change its use to better accommodate its own business and occasions. The evident purpose of the statute was to provide for the compulsory operation, by the corporation, of the warehouseman's own track, for the benefit of his business. It does not seek to regulate the manner in which the corporation shall maintain or operate its own tracks. It does not appear by the complaint who constructed nor who owns this track. No facts are alleged from which such facts can be inferred. The only facts which might seem to bear on that question are that the track is in the street on which the plaintiff's warehouse fronts, and was constructed for the benefit of the owner of the warehouse. But the de fendant's other tracks are in the same street, in front of the same warehouse, and were constructed for the benefit of its patrons. And, even if the defendant should have constructed this track especially for the benefit of the owner of the warehouse, that does not bring the case within the conditions of the statute, and does not establish a perpetual duty on the defendant to operate it for the benefit of that property. The improving and grading done by the plaintiff, after the track had fallen into disrepair, is of little significance; and, unless the plaintiff owned this track, there was no consideration for the defendant's alleged promise to continue to operate it In re Will of Lyon. for his benefit. It could do what it would with its own, without consulting the plaintiff or asking his consent. So it is considered that, because the complaint does not show either who constructed this track or who owns it, it fails to show a case within the statute; and, for the same reason, it fails to show a consideration which would support an agreement to continue to operate the track for the plaintiff's benefit. By the Court. The order of the circuit court is affirmed, and the cause is remanded for further proceedings according to law. IN RE WILL OF LYON. May 5-May 21, 1897. Wills: Witnesses: Wife of executor: Revocation: Marriage of testatrix. 1. The wife of the executor of a will is a competent witness thereto, since the executor, as such, takes no beneficial interest under the will. 2. The marriage of a woman does not revoke a will previously made by her, the common-law rule in that regard having been changed by the statutory removal of her disabilities in respect to the disposition of her property. APPEAL from a judgment of the circuit court for Sheboygan county: N. S. GILSON, Circuit Judge. Affirmed. Gertrude S. Cole, a widow, of Sheboygan, Wisconsin, made her will, devising her estate to Alice A. Sully and Clara A. Sully. She appointed George C. Cole executor. His wife signed as one of the two attesting witnesses. She afterwards married Charles E. P. Lyon, and thereafter died without issue, leaving the aforesaid will as her only testamentary disposition of her property. Such proceedings were duly had between the proponent of the will on the one side, and Charles E. P. Lyon as contestant on the other, that a 96 339 102 55 In re Will of Lyon. judgment was entered, on findings covering the aforesaid facts, in the circuit court for Sheboygan county, establishing such will. From such judgment the contestant appealed. Paul T. Krez, for the appellant. For the respondent there was a brief by Willard C. Cole, attorney, and Francis Williams, of counsel, and oral argument by Mr. Williams. MARSHALL, J. It is assigned as error for a reversal of the judgment that the trial court should have held the wife of the executor not a competent attesting witness and the will void on that account. The executor was not beneficially interested so as to affect the competency of the wife to testify either by common law or by statute. See Redf. Wills, 257, 259; Millay v. Wiley, 46 Me. 230; Cassoday, Wills, §§ 190, 192; Bettison v. Bromley, 12 East, 250. She was competent to testify to the facts at the time the will was executed, and that satisfies the universal test. Cassoday, Wills, § 177; Schouler, Wills, § 351; In re Holt's Will, 56 Minn. 33. The question is one that has been so long settled that no extensive discussion of the subject seems to be warranted. It is further assigned as error that the court should have decided that the subsequent marriage of the testatrix revoked the will by operation of law. Sec. 2290, R. S., provides, in effect, that wills may be revoked, by implication of law, by subsequent changes in the condition or circumstances of the testator. That merely preserves the common-law rule on the subject, except as abrogated by implication in the manner hereafter stated. At common law the marriage of a woman revoked her will previously made, but such rule is generally (there are exceptions) held to have been changed by the statutory removal of her disabilities in respect to the disposition of her property. Noyes v. Southworth, 55 Mich. 173; Roane v. Hollingshead, 76 Md. 369; In re Hunt, Emery, Appellant, 81 Me. 275; Morton v. Onion, 45 Vt. 152,— cited In re Will of Lyon. by respondent's counsel. Also, In re Tuller's Will, 79 Ill. 99; Fellows v. Allen, 60 N. H. 439; Hoitt v. Hoitt, 63 N. H. 475. Formerly, the marriage of a man after the making of a will, and the birth of issue, by operation of law revoked the will. The inequality between the sexes in this regard grew wholly out of the change that marriage worked in the capacity of the woman to dispose of her property. Upon that being removed by statute in this and many other states, the inequality in the rule, as a necessary and natural result, ceased. Though the authorities are not all one way, they greatly preponderate in favor of the views above expressed. Moreover, the subject is not open to discussion here, the point having been decided in Ward's Will, 70 Wis. 251, where it is said, in effect, that, the statutes of this state having conferred upon married women the absolute power of disposing of their property by last will and testament without the consent of their husbands (secs. 2277, 2281, R. S.), that removed every reason upon which the common-law rule of revocation by marriage subsequent to the making of a will was based; hence such rule was, by implication, removed by the same statute. To be sure, in the case of Ward's Will, the fact was that the testatrix had children by a former husband, and the court reserved the question of whether, in the absence of children, the common-law rule would not prevail, inasmuch as the husband is, under our statutes, heir of his wife, as well as the wife of the husband; but we do not think the statute in relation to inheritance makes any difference. The inequality formerly existing grew out, as stated, of the inequality in the capacity of the sexes to dispose of their property after marriage. That has been removed by a change in the capacity of the wife; hence the common-law rule as to the husband remains, and that of the wife has been changed by implication to conform to it. In England and many of the states this whole subject is now regulated expressly by statute to the effect that marriage subsequent to the execution of a will revokes it, whether |