3

Stark v. Parker, 56 N. H. 481; Wallace v. Wallace, 3 N. J. Eq. 618 [but compare Matter of Howell, 29 N. J. L. 399]; In re Clayson, 24 Oregon 542; lves v. Salisbury, 56 Vt. 565.

It might be, and we think it probable," that an appeal would lie from the judgment of the court on the application, said the court in Williams v. Saunders, 5 Coldw. (Tenn.) 82. Contra in Ohio. -Barr v. Closterman, 3 Ohio Cir. Ct. Rep. 441, 2 Ohio Cir. Dec. 251; 2 Ohio Čir. Ct. Rep. 387, I Ohio Cir. Dec. 546, both cases holding that no appeal lies from a dismissal of the application; but the last case held that the ruling was reviewable on petition in error.

1. Besancon v. Brownson, 39 Mich. 388.

2. Goodman v. Winter, 64 Ala. 410; Dickey v. Vann, 81 Ala. 432; Winslow v. Donnelly, 119 Ind. 565, holding that the order cannot be collaterally attacked on the ground that the will was procured by fraud; Ewing v. Sneed, 5 J. J. Marsh. (Ky.) 459; Whalen v. Nisbet, 95 Ky. 464; Parker v. Parker, II Cush. (Mass.) 519; Dublin v. Chadbourn, 16 Mass. 433: Stackhouse v. Berryhill, 47 Minn. 20; Lyon v. Gleason, 40 Minn. 434; Crusoe v. Butler, 36 Miss. 150; Roberts v. Flanagan, 21 Neb. 503; Caulfield v. Sullivan, 85 N. Y. 153: Bailey v. Bailey, 8 Ohio 239: Shoenberger's Estate, 139 Pa. St. 132: Townsend v. Downer, 32 Vt. 183. See also Gaven v. Allen, 100 Mo. 300. Compare Robert v. Allier, 17 La. 14.

Failure to Give Notice of the proceedings as required by statute is not an available objection on collateral attack. Dickey v. Vann, 81 Ala. 425. Insufficiency of Evidence.. A contention on collateral attack that there was insufficient evidence that the will had been duly proved and allowed" in the foreign tribunal, was overruled in Goldtree v. McAlister, 86 Cal. 101.

No Estate in the County. The decision of the probate judge admitting the will to record that the principal part of the testator's goods are within his county, where that fact is a statutory requisite to his jurisdiction, is not

open to collateral attack. Shoenberger's Estate, 139 Pa. St. 132, distinguishing Frick's Appeal, 114 Pa. St. 29, and Wall v. Wall, 123 Pa. St. 545. See also Goodman v. Winter, 64 Ala. 410, holding that the proceeding need not affirmatively show that the will "touched or concerned estate in this state," the words quoted being the language of the statute allowing such wills to be recorded. But compare McClaskey v. Barr, 47 Fed. Rep. 170, which seems to hold that if there was no estate within the county the proceeding is void.

The Due Execution of the Will is conclusively established by its admission to record. Vance v. Anderson, 39 Iowa 426.

3. Whalen v. Nisbet, 95 Ky. 464.

Copy of Will Indispensable. In Mower v. Verplanke, 101 Mich. 210, 105 Mich. 398, the record of the probate court in Michigan admitting an exemplified copy of a will probated in another state was excluded as evidence because no copy of the foreign probate was filed in the probate court. To the same point see Pope v. Cutler, 34 Mich. 150.

Will Invalid on Its Face. The record is open to collateral attack on the ground that the will shows upon its face that it was not executed with the formalities required by law. Nelson v. Potter, 50 N. J. L. 324.

Foreign Probate Insufficient. If the record of the foreign probate does not show that the will was duly proved, as to a devise of real estate, according to the requirement of the law of the state where it is sought to be recorded, its allowance by the domestic court may be collaterally impeached. Bate . Incisa, 59 Miss. 513.

Decedent Having Domestic Domicil. In Mississippi and perhaps in a majority of the states (see supra, p. 1067, note 3), the statute authorizing the recording of foreign probated wills is construed not to apply to wills executed in a foreign jurisdiction by a person who died there, but who was domiciled in Mississippi, though the will was admitted to probate in the foreign jurisdiction, and operated partly upon

property there situated. Therefore, if a duly authenticated copy of such a will and its foreign probate are admitted to record in Mississippi the proceeding may be collaterally attacked for want of jurisdiction. Bate v. Incisa, 59 Miss. 513; Sturdivant v. Neill, 27 Miss. 157; Morris v. Morris, 27 Miss. 847.

1. Goldtree v. McAlister, 86 Cal. 93; Stanley v. Morse, 26 Iowa 454; Calloway 7. Cooley, 50 Kan. 743; Brown v. Landon, 30 Hun (N. Y.) 57; Townsend v. Downer, 32 Vt. 183.

Contra. Beatty v. Mason, 30 Md. 413, as to wills of realty where the statute makes the record only prima facie evidence.

In Wilt v. Cutler, 38 Mich. 189, a case of collateral attack, the sufficiency of the authentication was considered and decided as if the question was properly raised in that proceeding. See also Pope v. Cutler, 34 Mich. 150; Smith v. Redden, 5 Harr. (Del.) 321; Morris v. Morris, 27 Miss. 847, where the question was not discussed but appears to have been clearly decided in favor of collateral attack.

2. As to statutory suits to establish wills already offered for probate, and rejected, see supra, p. 1065. The cases to be discussed in the article WILLS are those where the will has not been offered for probate in the probate

court.

Volume XVI.

Words Used. words used.2

Where Done.

in a sense importing an imprecation of future divine vengeance it is profane whether the name of the Deity be called or not. Foster v. State, 99 Ga. 56.

The use of the word " damn is profanity without being used in connection with the name of the Deity. State v. Wiley, (Miss. 1898) 24 So. Rep. 194.

1. Goree v. State, 71 Ala. 7.

In the Presence of Others. If the indictment be in other respects good, it is not a fatal defect to omit the allegation that the words were uttered in the presence of divers citizens, the omission being supplied by other averments. Gaines v. State, 7 Lea (Tenn.) 410.

2. State v. Jones, 9 Ired. L. (N. Car.) 38; State v. Pepper, 68 N. Car. 259.

3. Goree v. State, 71 Ala. 7; Com. v. Linn, 158 Pa. St. 22.

Insufficient Averments. — An averment that the swearing was done publicly is insufficient, for such may have been true if the act was done openly or without concealment, and in a proper place. Where the indictment charged that defendant, in the public streets of a town, "with force and arms, and to the great displeasure of Almighty God, and the common nuisance of all the good citizens of the state then and there being assembled, did, for a long time, to wit, for the space of twelve seconds, profanely curse and swear and take the name of Almighty God in vain, to the common nuisance as aforesaid," etc., it was held defective in this particular. State v. Pepper, 68 N. Car. 259.

4. State v. Graham, 3 Sneed (Tenn.) 134; State v. Ellar, 1 Dev. L. (N. Car.) 267; State v. Kirby, 1 Murph. (N. Car.) 254; State v. Waller, 3 Murph. (N. Car.) 229: State v. Powell, 70 N. Car. 67; Goree v. State, 71 Ala. 7.

Insufficient Averments. Where it was proved that the defendant used profane language so loudly that he

could be heard at the distance of two or three hundred yards, and from dark until eleven o'clock at night, and that persons in the street and houses heard him, the court said that profane swearing in public might be so used as to be a nuisance, as, for instance, if it be loud and continued, but the fact must be so charged in the indictment. The probata cannot supply the want of the allegata. State v. Powell, 70 N. Car. 67.

And where the indictment charged that the defendants did, on the public streets and highways, profanely curse and swear and take the name of God in vain, to the evil example and to the common nuisance of good citizens, but did not aver the facts and circumstances necessary to make it a common nuisance, the court held that the manner and occasion of the utterance should be of the offensive and annoying character which is necessary to make it a public and common nuisance as distinguished from a mere private nuisance, and should be so charged. Com. v. Linn, 158 Pa. St. 22.

It is not sufficient to the conviction of the defendant that the state should show by its evidence that the defendant has been guilty of a nuisance; the indictment must charge it. It must set forth specially the whole fact with such certainty that the court may be able to see judicially that it rests on sufficient grounds. Nor will it be sufficient if the indictment charges that the acts were done to the common nuisance of all the good citizens of the state, unless the acts so charged in law amount to a nuisance. State v. Jones, 9 Ired. L. (N. Car.) 38.

Single Acts. Where the indictment alleges single acts of profane swearing it is not good, for it must be charged that the repetition of the acts has caused public annoyance. Goree v. State, 71 Ala. 7; State v. Pepper, 68 N.

Car. 259; State v. Waller, 3 Murph. (N. Car.) 229; Ex p. Delaney, 43 Cal. 478.

1. State v. Moser, 33 Ark. 140; Bodenhamer v. State, 60 Ark. 10; Taney v. State, 9 Ind. App. 46; Steuer v. State, 59 Wis. 472. But see Walton v. State, 64 Miss. 207; Hearn v. State, 34 Ark. 550; State . Hutson, 40 Ark. 361; Moore v. State, 50 Ark. 25. The indictment in the last named case alleged that the defendant unlawfully did make use of violent, abusive, and insulting language towards and about one A. W., and in his presence and hearing, which language was calculated to arouse to anger him the said A. W., and cause a breach of the peace. The court held that though, on principle, an indictment for this offense should set forth the language used by the defendant, in order that the court might be enabled at the outset to judge whether any offense had been committed, yet that the mention of the persons to whom the offensive language was addressed sufficiently individuates the offense for all practical purposes,

especially since the question whether the language was in its nature likely to provoke a breach of the peace must be left to the jury, depending as it does upon the manner of the speaker, the relation of the parties, and the circumstances under which it was spoken.

Omission of "Unlawfully." Where a statute, in describing the offense, does not use the word " unlawfully," and the act charged in the indictment appears to be unlawful, it is unnecessary to allege it to have been unlawfully done. State v. Murphy, 43 Ark. 178. Disturbance of Individual. Where a statute prohibits the use of profane language at or near the dwelling or premises of another and in the presence or hearing of the family of the occupant or any member thereof, a complaint charging a wilful disturbance merely of an individual by such language charges no offense. Brooks v. State, 67 Miss. 577.

2. Nor can two defendants be jointly charged in the same count for uttering the same words. State v. Lancaster, 36 Ark. 55.