It also may be fairly concluded from the evidence that in making the sale to the Crawford sisters, and later when plaintiff contemplated purchase from them, appellant Beck pointed out to them the traveled road as the east boundary of the lot, there being no visible evidence of the platted road. Under such a state of facts it would be inequitable to hold that plaintiff, the appellee, should be held to the limits of the original plat as claimed by appellant to mark his eastern boundary, where, as the record shows, the land thus occupied and used, with its valuable improvements, barring possible claims of the public, would be his if not found to be long to his grantees. Rowell v. Weinemann, 119 Iowa, 256-260, 93 N. W. 279, 97 Am. St. Rep. 310; Anderson v. Buchanan, 139 Iowa, 678, 116 N. W. 694.

We do not lose sight of the fact that this conclusion makes the base line of plaintiff's lot longer than is shown in feet measurement on the recorded plat; but a title which arises from acquiescence or estoppel is not necessarily limited by fixed and platted boundaries. This acquiescence extended over a period of about 14 years. Appellant cannot now be heard to deny, as between himself and appellee, that the true boundary on the east is the traveled road. Miller v. Mills County, 111 Iowa, 654, 82 N. W. 1038; Lawrence v. Washburn, 119 Iowa, 109, 93 N. W. 73; O'Callaghan v. Whisenand, 119 Iowa, 566, 93 N. W. 579; Quinn v. Baage, 138 Iowa, 426, 114 N. W. 205. The claim of appellant that a public highway, once legally dedicated, cannot be vacated by the act of the dedicator presents a question not necessary to be now considered. No public rights in the disputed land are presented in this case. It is a determination between the parties to the action alone, and the decree of the lower court properly so limited its finding.

of more than ten years, and thereby acquired title by adverse possession. The lower court evidently found against this contention, and in so holding we think it was right. While the evidence shows that there were acts done in relation to the property which were entirely consistent with ownership or claim of right, they were equally consistent with the idea of those harmless encroachments upon unoccupied property which are often committed without thought of thereby securing a right in the property itself, and we think do not show such possession as would ripen into title. Neither can we hold from the evidence that appellant, in pointing out the property to his grantees, represented that it included all between the north line of lot 66, the west line of the traveled road, and the lake.

While it is clear that lot 67 as platted and as sold by him was represented to have the highway as its eastern boundary, we think it is not established that the purchasers understood or that he intended that the shore boundary should extend to an intersection with the road. The Crawford sisters did not so understand him, but, on the contrary, that there was a portion to the north, not conveyed, owned by the state, to which they might ultimately acquire title by adverse possession.

It was an indefinite description, and, being so, the parties would take according to the plat measurement as to the shore line. The finding and decree of the lower court has that support in the evidence that leads us to approve it, with this exception: By its decree the north line of the lot is fixed to commence at the point which by the recorded plat was the north end of the lot, from thence due east to the west line of the traveled road, etc. The line thus fixed leaves plaintiff's barn upon that part of the property awarded to appellant, and authorizes its removal within a time fixed. As we have stated, the barn was built with the knowledge of appellant, without objection by him, and in the belief by plaintiff (appellee) that he was building on his own land, all of which appellant knew. Plaintiff should not now be disturbed in the possession thus had. The north line should be so run from its starting point, as fixed in the decree, as to include appellee's barn within that found to be his property; the line so run to be projected directly from the starting point to the west line of the traveled road, and making the north line of the barn as resting upon the north line of the property. From the plat filed we conclude this may be done without injury to any permanent improvements.

STANLEY v. TAYLOR. (Supreme Court of Iowa.

June 7, 1913.) 1. TRIAL ( 243*)-INSTRUCTIONS-MISLEADING INSTRUCTIONS.

In an action against a physician for malpractice, where the jury were charged, in instructions setting out the particular grounds of negligence relied upon, that to entitle plaintiff to recover he must establish, by the preponderance of the evidence, the material allegations of his petition, which would be explained, and a subsequent instruction charged that plaintiff must show that defendant did not use ordinary care in treating him, there is no conflict between the instructions, and the latter instruction must be taken as given with reference to the acts of negligence alleged.

Wade, Dutcher & Davis, of Iowa City, and D. W. Hamilton, of Sigourney, for appellant. Ely & Bush, of Davenport, and H. F. Wagner, of Sigourney, for appellee.

WITHROW, J. Defendant (appellant) as a practicing surgeon was called upon to treat the appellee for injuries to his limb, resulting in an oblique fracture of the bone of his right leg above the knee. Appellee charges that in the treatment of such injury appellant was negligent in undertaking to set the limb without assistance; in failing to place the broken ends of the bone in proper position; in failing to put appellee in a proper bed, or in a proper position in bed, or to properly support his weight, so that the broken bone could remain in proper position, but placed him in a bed with springs, which sagged, preventing the broken ends of the bone

from remaining in proper position; in fail

The materiality of expert evidence elicited by hypothetical questions is to be determined by the court, although its weight and credibility is for the jury, and therefore it is improper to instruct the jury that they may determine the materiality of the facts detailed in a hypothetical question.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2395-2398; Dec. Dig. § 571.*] 3. APPEAL AND ERROR (§ 1031*)-REVIEW

HARMLESS ERROR.

Where error is shown, it is presumed to be prejudicial unless the contrary appears; therefore the giving of an instruction, in an action against a physican for malpractice, that it is a question for the jury to determine whether the facts detailed in a hypothetical question were material is prejudicial error, regardless in whose favor the questions were answered.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. 1031.*]

4. PHYSICIANS AND SURGEONS (8 18*)-MAL

PRACTICE-DAMAGES.

In an action against a physician for malpractice damages for unnecessary pain suffered because of the unskillful treatment may be recovered.

[Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. §§ 34-41, 43-46, 48; Dec. Dig. § 18.*]

5. PHYSICIANS AND SURGEONS (§ 18*)-MALPRACTICE-DAMAGES-EVIDENCE.

In an action against a physician for negligence in setting plaintiff's leg, evidence tending to show that plaintiff's ability to attend to his business was impaired because of the imperfect healing of the fracture may be considered only as a circumstance bearing on the lessening of his earning capacity and not as a basis for computing damages.

[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. §§ 34-41, 43-46, 48; Dec. Dig. 18.*]

extension; in failing to use appliances to prevent the upper part of the limb from being drawn by the extension applied to the lower part; in failing to properly examine the limb while treating it, or to take necessary steps to determine if it was properly set, and allowed the ends of the broken bone to over

lap about three inches, and there unite; and in putting plaintiff's foot in such a position in the splint as to cause it to blister and become painful. Plaintiff says that no negligence of his contributed to the results of which complaint is made.

1. Error is charged in submitting to the jury in instruction No. 1 claims of negligence which there is no evidence to support. The record discloses evidence tending to support every ground of negligence pleaded. True, as to some one or more it may not have been strong, but it was evidence upon which plaintiff had the right to go to the jury, and upon which it was the duty of the trial court to instruct. The instructions as to the various grounds of negligence charged were presented by a substantial reproduction of the petition. In this there was no error.

[1] 2. Instructions Nos. 1, 2, and 5 are claimed to be in conflict. No. 1 has been noted. In instruction No. 2 the jury were told that, under the issues raised by the petition and answer, to entitle him to recover "the plaintiff must establish by the preponderance of the evidence the material allegations of his petition, which will be hereinafter explained to you." The only explanation afterwards made was in instruction No. 5, which in a general way advised the jury that to recover plaintiff must show that

skill reduce the fracture, nor so treat him. While perhaps a better practice would be, after stating the claims of the parties, to def

will of her husband, unless she consents thereto, which consent shall be entered of record in court, the mere acceptance of a life estate devised by her husband's will will not preclude a widow from claiming her dower and distributive share.

[Ed. Note.-For other cases, see Wills, Cent. Dig. $ 2056-2059; Dec. Dig. § 794.*]

ER.

3. WILLS (§ 792*)—ELECTION-BAR OF DOWThe fact that a widow named as executrix accepted the trust of settling the estate will not preclude a recovery of her dower and distributive share in addition to a devise given by the will; the will not showing that the devise was given in lieu of such distributive share.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 2049-2052, 2061-2063; Dec. Dig. § 792.*]

4. WILLS (8 792*)-ELECTION-BAR OF Dow

ER.

Under Code 1873, § 2452, providing that the widow's share cannot be affected by any will of her husband, unless she consents thereto after notice of the provisions of the will which consent shall be recorded in court, no act of the widow short of statutory election can deprive her of her distributive share and dower.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 2049-2052, 2061-2063; Dec. Dig. 792.*]

5. WILLS (8 782*)-ELECTION FOR SURVIVING WIFE.

PROVISIONS

Where a husband devised to his wife a life estate only in certain land, such devise cannot under Code 1873, § 2452, providing that the widow's share cannot be affected by any will of her husband unless she consents, be construed in lieu of her statutory rights unless so expressed in the will.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 2018-2033; Dec. Dig. § 782.*] 6. WILLS (§ 792*)-ELECTION-BAR OF Dow

ER. Where a husband devised to his wife a life estate in certain land and provisions for money and support for six months, and the widow qualified as executrix, charging herself with a sum for support for six months, those facts coupled with her occupancy as a life tenant will not under Code 1873, § 2452, providing that no will of her husband can effect the widow's share unless she consents thereto, which consent shall be entered of record in court, deprive the widow of her dower or distributive right to part of the land in fee, and the rights may be asserted by her heirs.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2049-2052, 2061-2063; Dec. Dig. § 792.*]

Appeal from District Court, Greene County; M. E. Hutchinson, Judge.

Action in partition involving the construction of a will giving to the wife a life estate in her husband's property, and involving her right to take both the life estate and her distributive share, and involving also the question whether or not the wife elected to take the life estate bequeathed her, in lieu of her statutory rights, the rights of the parties accruing under statutes enacted prior to the statutes now in force. Affirmed.

Church & McCully and Wilson & Albert, all of Jefferson, for appellants. Howard & Sayers and A. D. Howard, all of Jefferson, for appellees Mary McDowell and Samuel McDowell.

It

GAYNOR, J. It appears from the record in this case that one Joseph Ridle died testate in the year 1890; that his will was duly admitted to probate in the same year. appears that he was twice married; that his first wife predeceased him; that his second wife, Mary Ridle, died in the year 1909; that as a result of the first marriage, there were born six children, five of whom were living at the time of the death of his first wife. As a result of the second marriage there were born two children, Mary Ridle, who intermarried with one Sam McDowell, and Olive Ridle, who intermarried with Allen Oakes; that the said Olive Oakes, née Ridle, died in the year 1900, leaving surviving her her husband, Allen B. Oakes, and the following children: Blanche, John C., Jennie M., who intermarried with one Lawrence, It appears: Olive, Ina, Allen, and Enolia. That at the time of his death the said Joseph Ridle was the owner of 160 acres of land, being the N. E. 4 of section 10, 82-89, in Greene county, Iowa. That in his will hereinbefore referred to he bequeathed to Mary Ridle, his second wife, the south 80 of said land and all pertaining thereto, including the dwelling house, one horse, a carriage, one cow, all furniture, all beds and bedding and library, and provisions for six months for herself and stock, all poultry on the farm, and one brood sow. That the bequest in the will to Mary Ridle, his second wife, was in the following language: "I give to my wife, Mary Ridle, as long as she bears my name, the south 80 acres of the N. E quarter of section 10, 82-89, in Greene county, Iowa." It appears that the said Mary Ridle continued in possession of the property so bequeathed, and occupied the same from the time of the death of her husband until her death in 1909.

This action is brought by one of the heirs of Joseph Ridle for partition of the real estate in controversy, and in this action all the living children of Joseph Ridle were made parties, and the heirs of all the dead children were joined as defendants, including the cross-petitioners herein.

This controversy involves only the south 80 of the land, hereinbefore described, which was by the will bequeathed to the second wife, Mary Ridle, so long as she bore the testator's name.

In this action for partition so brought, the defendant Mary McDowell, daughter of Joseph Ridle's second wife, and her husband, Samuel McDowell, filed an answer and crosspetition in which they claim: That by the terms of the last will and testament of the said Joseph Ridle he devised to his second

wife, Mary Ridle, mother of this cross-petitioner, so long as she should remain his widow, the S. 1⁄2 of the N. E. 4 of section 10, 82-89. That said will contained no provision that the said Mary Ridle should accept the devise in lieu of her dower interest, or distributive share in, and to the land of the deceased. "That thereafter the said Mary Ridle, widow of Joseph Ridle, continued to remain in possession and occupancy of said real estate so devised, and every part thereof, down to the time of her decease. That the said Mary Ridle, widow of Joseph Ridle, departed this life in Greene county day of month, 1909, intestate, leaving surviving her as her sole and only heirs at law this cross-petitioner, Mary McDowell, and the children of said Olive Oakes. That under the provisions of the will of the said Joseph H. Ridle the said Mary Ridle, his second wife and widow, and mother of Mary McDowell and Olive Oakes, became the owner, during widowhood, of the right to use, possess, and control the real estate so bequeathed to her, and she also became, in addition thereto, the owner of her statutory right, or distributive share, in said real estate, to wit, an undivided one-third thereof, and that she continued the owner of said one-third interest therein in fee simple down to the time of her decease, and that she died seised of one-third interest in fee simple, and that these her children, Mary McDowell and Olive Oakes, or the heirs of Olive Oakes, became entitled upon her death to the interest so held by her in the property in controversy."

cepted appointment under the will as executrix, and in one of her reports, duly signed and executed by her, now on file in the probate court of the county, she charged said estate as follows: By an amount paid Mary Ridle for first six months, as provided in the will of decedent, $61.78, and that at the close of the estate she distributed the proceeds of the balance of the personal property on hand among the children of Joseph H. Ridle, deceased. We presume that the case below was tried upon the same theory as that upon which it is tried here, and that the same contentions were made before the trial court that are now urged before us. The trial court in its decree and judgment found in favor of the cross-petitioners Mary McDowell and Samuel McDowell, and the case comes to us on appeal from this finding.

The court in its decree found as follows: "The widow (meaning Mary Ridle, second wife of Joseph H. Ridle) by the terms of the will became the owner of a life estate in the entire premises, and also, said will not having provided otherwise, she became and was the owner and entitled to an undivided onethird of said real estate in fee simple, and that upon her decease one-third passed to Mary McDowell, plaintiff in the cross-petition and to the children of Olive Oakes, deceased, they being the sole and only children of the deceased Mary Ridle. That the said Mary Ridle never at any time or by any act waived or forfeited her one-third interest in said real estate so owned by her in fee simple in addition to said life estate."

In support of said decree, counsel for appellee urged the following propositions: (1) That the acceptance of the life estate by the widow did not preclude her from claim

distributive share, and in support of this proposition cite the following cases: Howard v. Watson, 76 Iowa, 229, 41 N. W. 45; Herr v. Herr, 90 Iowa, 538, 58 N. W. 897; Richards v. Richards, 90 Iowa, 606, 58 N. W. 926; Bare v. Bare, 91 Iowa, 143, 59 N. W. 20; Hunter v. Hunter, 95 Iowa, 728, 64 N. W. 656, 58 Am. St. Rep. 455; In re Franke, 97 Iowa, 704, 66 N. W. 918; In re Proctor, 103 Iowa, 232, 72 N. W. 516; Warner v. Hamill, 134 Iowa, 279, 111 N. W. 939; Archer v. Barnes, 149 Iowa, 658, 128 N. W. 969;

It is stated in the stipulation of facts upon which this case was submitted "that after the death of Joseph H. Ridle she (meaning Mary Ridle, second wife mentioned in the will) continued in possession and occupancy of the land in controversy up to the time of her death in 1909, and that she did not take possession of or use the north 80 of said quarter after the death of said Joseph H. Ridle." It is also agreed that no formal election was filed by Mary Ridle, widow, but that upon the death of Joseph H. Ridle she ac

Wilson, 57 Iowa, 177, 10 N. W. 327; Daugherty v. Daugherty, 69 Iowa, 677, 29 N. W. 778. It will be noticed that the testator, Joseph H. Ridle, died in 1890, and prior to the enactment of the present statute, and the rights of the parties to this suit are to be determined by the law in existence at the time of his death. At the time of the death of Joseph H. Ridle, section 2452 of the Code of 1873 was in force, which provides: "The widow's share cannot be affected by any will of her husband, unless she consents thereto within six months after notice to her of the provisions of the will by the other parties in