longer than two lives in being, and hence does not create a perpe- tuity. (Defreese v. Lake, 584.)
DEVISE-WHEN VOID AS CREATING A PERPETUITY.- A devise in trust, providing how the proceeds of any lands sold shall be disposed of, but which makes no provision for the vesting of the fee in any one, at any time, and which does not fix any time when such proceeds shall be paid to any one, is void, as creating a perpetuity. (Bigelow v. Cady, 230.)
4. DEVISE-WHEN VOID AS CREATING A PERPETUITY.- A devise is void if there is a possibility that a violation of the rule against perpetuities can happen, whether it creates a legal or a trust estate. (Bigelow v. Cady, 230.)
5. DEVISE, ASSENT TO OR ACCEPTANCE OF.-If the ac- ceptance of a devise may be presumed, the presumption is not con. clusive, and such acceptance is necessary to vest title in the devisee. (Defreese v. Lake, 584.)
6. DEVISE, RENUNCIATION OF, HOW MAY BE PROVED.- Evidence that a devisee of a life estate in expectancy, before he became entitled to possession, purchased the property, at a tax sale, and thereafter claimed and conveyed in fee, is admissible as tend- ing to show that he never accepted the devise, but, on the contrary, renounced it. (Defreese v. Lake, 584.)
7. ESTATES OF DECEDENTS, SALE OF, WHEN CANNOT BE RESISTED.-One who is devised real property in considera- tion of services to be rendered by him as guardian of the minor child of a decedent, and who is appointed and renders services as such guardian, cannot resist an application by creditors of the decedent for the sale of lands so devised to pay debts. (Pearson v. Gillenwaters, 844.)
1. ESTATES OF DECEDENTS.-A DECREE OF DISTRIBU- TION by virtue of which property is distributed to trustees is con- clusive respecting their powers and duties. Though the decree purports to distribute the property in accordance with the terms of the will, the rights of the parties must thereafter be measured by the terms of the decree and not by those of the will. The will can no more be used as evidence to impeach the decree than can any other evidence upon which a judgment is rendered. (Goad v. Montgomery, 145.)
2. ESTATES OF DECEDENTS — CONFLICT BETWEEN WILL AND DECREE OF DISTRIBUTION.-In granting a decree of distribution the court must give construction as to the terms of the will. The decree, when entered, supersedes the will and prevails over any provision therein which may be thought inconsistent with the decree. (Goad v. Montgomery, 145.)
See Marriage and Divorce, 10.
DOWER-WHEN WIFE'S ACCEPTANCE OF DEVISE IS NO BAR.-If a husband devises a life estate to his wife without any express provision in the will that such estate shall be in lieu of dower, her acceptance of the devise does not bar her right to a dis- tributive share of his estate owned by him at the time of his death. (Sutherland v. Sutherland, 477.)
EJECTMENT.-EQUITABLE ESTOPPELS are proper de- fenses in ejectment and are admissible under the plea of not guilty. (Hagan v. Ellis, 167.)
1. EQUITY-WHICH ONE OF TWO INNOCENT PARTIES MUST SUFFER.-If one of two innocent parties must suffer, he through whose agency the loss occurred must bear it. (Day v. Bren-. ton, 460.)
EQUITY-DISMISSAL REMEDY AT LAW.-Under a stat- ute which provides, in effect, that an error as to the kind of pro- ceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a trans- fer to the proper docket, the fact that an action at law is the proper remedy upon a certain contract is no ground for the dismissal of a suit, in equity, upon such contract. (Swift v. Calnan, 443)
1. LIFE ESTATE, WHEN CREATED.-A devise of property to testator's son and after his decease to belong to his heirs, gives him an estate for life only. (Defreese v. Lake, 584.)
2. REMAINDERS ARE descendible devises and alienable in the same manner as estates in possession. (Defreese v. Lake, 584.)
3. TAXES, ANNUAL-LIFE TENANT MUST PAY.-A life tenant of lands must pay the annual taxes upon the property, as the benefits for which they are exacted are realized from year to year, and it is just that the owner of the life estate should pay them. (Huston, v. Tribbetts, 275.)
4. TAXES-SPECIAL ASSESSMENT FOR PERMANENT IM- PROVEMENT-WHO MUST PAY.-A special assessment for a local and permanent improvement, such as the construction of a large ditch for drainage purposes, should be borne ratably by the life tenant and remainderman in proportion to the benefit accruing to each, where such improvement increases the value of the re- mainder; but a special assessment for an improvement of the tem- porary character should be borne by the life tenant. (Huston v. Tribbetts, 275.)
6. A LIFE TENANT OF REAL PROPERTY owes both the es- tate and the remainderman the duty of paying taxes thereon, and therefore cannot acquire title in fee by letting the premises be sold for taxes and then bidding them in. (Defreese v. Lake, 584.)
6. LIFE TENANTS AND REMAINDERMEN.-If there is an encumbrance upon land, either the life tenant or the remainderman may purchase it, but cannot hold it to the exclusion of the other, who is willing to contribute his share of the amount paid for the purchase. This rule is applicable to a life estate in expectancy. (Defreese v. Lake, 584.)
7. LIFE TENANT AND REMAINDERMAN-ENCUMBRANCE. As between a life tenant in possession and the remainderman, the former is bound to pay the interest and the latter the principal of any encumbrance to which the estate of both is subject. (Damm v. Damm, 601.)
8. LIFE TENANT IN EXPECTANCY AND REMAINDER- · MAN-ENCUMBRANCE.-If an encumbrance exists to which the interest of a life tenant in expectancy, and also that of the remain- derman, is subject, but which does not affect the life tenant in pos- session, and such encumbrance is discharged by the remainderman.
the life tenant in expectancy is liable to contribute his proportion of the amount so paid, to be computed on the basis of the relative value of the estates. In making this computation the owner of the expectant life estate should be charged his share of the interest according to his expectancy up to the time when his estate becomes one in possession, and all the interest which will accrue after that time, and during the continuance of his estate, but in estimating such interest, consideration must be given the fact that it is to ac- crue and become payable at a future time. The expectancy of the life of the parties is involved, and that is to be determined from evidence of their age, health, and habits, aided by life tables. (Damm v. Damm, 601.)
See Conveyances, 1; Taxes, 4.
ESTATES OF DECEDENTS.
See Devise, 7; Distribution, 12; Executors and Administrators, 7.
EQUITABLE ESTOPPEL-FORCE OF.-Where plaintiff held equitable title for thirty years without asserting his claim and then his equitable title is converted into a legal title, he being estopped from asserting his equitable title is also estopped from asserting his legal title. (Hagan v. Ellis, 167.)
See Checks, 2; Ejectment; Insurance, 15; Warehousemen, 10.
1. EVIDENCE.-LIFE TABLES ARE NOT CONCLUSIVE evidence of the expectancy of life of any given person, but are con- sidered in the light of, and subject to, variation by proof concerning, the health and habits of the person whose expectancy is in question. (Damm v. Damm, 601.)
2. EVIDENCE.-One who has taken notes of evidence is com- petent to testify therefrom, though he retains no recollection of the matter testified to, if he knows that the notes, when taken, were correct. (O'Brien v. Stambach, 368.)
EVIDENCE TAKEN BEFORE A REFEREE, ADMISSIBIL- ITY OF.-One who acts as referee is competent to testify to tes- timony of the parties taken before him, whether he was regularly appointed or not, in so far as their testimony consisted of admis- sions, because such admissions, if otherwise relevant, are admissible whether made under oath or not. (O'Brien v. Stambach, 368.)
4. EVIDENCE, TELEPHONE MESSAGE.-Where a witness claims that he had a conversation over the telephone with a repre- sentative of the plaintiff, he cannot, in support of his statement of such conversation, prove what he repeated at the time to a third person as the answers received over the telephone. (German Sav. Bank v. Citizens' Nat. Bank, 399.)
5. EVIDENCE. VARYING OR CONTRADICTING WRITING, WHAT IS NOT.-Though a promissory note is made in favor of one person, parol evidence is admissible to prove that he was merely a trustee for another, and that the note was given in consideration of medical services rendered by the latter, and was accompanied by a parol agreement that it should be paid out of the proceeds of certain life or endowment policies to which the maker might be- come entitled. (Murdy v. Skyles, 411.)
See Agency, 1; Banks and Banking, 23; Criminal Law, 3, 4; De- vise, 6; Landlord and Tenant; Marriage and Divorce, 6; Master and Servant, 10; Trial, 10, 11; Wills.
1 EXECUTIONS - SHERIFF'S SALES
The setting aside, or refusal to set aside, a sheriff's sale, is in the Bound discretion of the lower court, and unless there is a manifest and gross abuse of that discretion, the appellate court will not dis- turb the decree. (Stroup v. Raymond, 758.)
JUDICIAL SALES.-SHERIFF'S SALES cannot be set aside for mere inadequacy of price. (Stroup v. Raymond, 758.)
3. EXECUTIONS-SHERIFF'S SALES-AGREEMENT AS TO BIDDING-FRAUD.-An agreement among a portion of the cred- itors to buy their debtor's property at sheriff's sale, and to manu-* facture and sell it, dividing the proceeds, is not fraudulent, if it does not prevent competition at such sale, nor depress the price. (Braden v. O'Neil, 761.)
4. EXECUTIONS SHERIFF'S SALES-SETTING ASIDE FOR MUTUAL MISTAKE.-A sheriff's sale is properly set aside when it appears that all of the parties interested mistakenly sup- posed that the purchase was subject to a mortgage, which belief caused the property to be sold for a grossly inadequate price. (Stroup v. Raymond, 758.)
5. EXEMPTION LAWS ARE TO BE LIBERALLY CON- STRUED to carry into effect the purposes for which they were en- acted, among which is the protection in the hands of any debtor of the means of earning a livelihood. (Equitable Life etc. Soc. v. Goode, 378.)
EXECUTION, WHAT NOT SUBJECT TO.-THE RIGHT to place and keep in a college one pupil, who shall have the right to board, tuition, and all other advantages of a college free of charge, is not subject to be seized for debt. (Bank v. Morrow, 853.)
7. EXEMPTIONS.-A lawyer may hold his law library and his ordinary office furniture exempt from execution, though he does not habitually earn his living by their use. (Equitable Life etc. Soc. v. Goode, 378.)
8. EXEMPTIONS IN FAVOR OF LAWYER, WHO ENTITLED TO.-One who has been duly admitted to the practice of the law, and does law business for certain corporations with which he is connected, and draws agreements and other legal papers, is entitled to retain his law library, office furniture, and supplies, though he is engaged in other business, tries no cases, and does not have out a sign, nor otherwise advertise as a lawyer. (Equitable Life etc. Soc. v. Goode, 378.)
EXEMPTION-COMBINED HARVESTER.-Under a stat- ute exempting farming utensils and implements of husbandry of the judgment debtor, he may hold as exempt a combined harvester costing fifteen hundred dollars, though comparatively few farmers own such a harvester. Under this statute the value of the prop- erty claimed as exempt is not material. (Estate of Klemp, 69.)
10. EXEMPTION OF LIFE INSURANCE, WAIVER OF IN AD- VANCE.-An agreement at the time of incurring indebtedness to pay it out of the proceeds of life or endowment insurance is a waiver of the statutory right to hold the proceeds of such insurance exempt from execution. (Murdy v. Skyles, 411.)
11. EXEMPTION OF PROCEEDS OF LIFE INSURANCE AGAINST DEBTS OF BENEFICIARY OR ASSIGNEE.-Though the constitution provides that policies of insurance on the life of an individual shall inure to the separate use of the husband or wife or children of such individual, independently of his or her credit- ors, and an endowment policy payable to the assured on his at- taining a certain age shall be exempt from liability for any of his or her debts. such exemption applies only against debts of the assured. Hence, if he turns over such moneys to his wife, they
are subject to execution issued on a judgment against her. emption rights are personal, and cannot ordinarily be transmitted by sale or gift. (Murdy v. Skyles, 411.)
12. EXECUTIONS-LEVY UPON PROPERTY IN THE CUS- TODY OF THE LAW.-When an officer of the law, acting under pol- ce rules or without them, takes from his prisoner personal prop- erty either for safekeeping or to remove from his control that which he might use in effecting his escape, it is not subject to seizure under civil process. It is not necessary to the application of the rule that the property in question should be connected with a criminal charge. (Hill v. Hatch, 822.)
See Creditor's Bill, 1; Insurance, 12, 13.
EXECUTORS AND ADMINISTRATORS.
1. ADMINISTRATORS, LIABILITY OF.-An administrator is not chargeable with the loss resulting from his keeping, without sale, bank stock, when he acted in good faith, under the advice of counsel, and with a sincere desire to properly discharge the duties of his office. (Pearson v. Gillenwaters, 844.)
2. AN ADMINISTRATOR ACTING UNDER THE ADVICE OF COUNSEL is protected, particularly when such advice is as to the advisability of bringing or defending suits. (Pearson v. Gillen- waters, 844.)
3. ADMINISTRATORS. LOSS RESULTING FROM FOLLOW- ING ADVICE OF PERSONS INTERESTED IN THE ESTATE.― If an administrator, at the request of persons beneficially inter- ested, or under their advice, delays the sale of personal property, in consequence of which loss is suffered, he cannot, at the in- stance, or for the benefit, of such interested parties, be charged with such loss. (Pearson v. Gillenwaters, 844.)
EXECUTORS OR TRUSTEES-POWERS OF SURVIVORS. When a will confers a power on the testator's executors or their successors, the survivor of them may execute the power. (Murphy's Estate, 802.)
5. POWERS-EXERCISE OF, BY AN ADMINISTRATOR SUCCEEDING AN EXECUTRIX WHO RESIGNS.-If an execu- trix resigns, she no longer has a right to exercise a discretionary power, conferred by the will, to sell land, and the appointment of an administrator, with the will annexed, does not confer upon him the right to exercise the power to sell that which was given by the provisions of the will to the executrix named therein. (Bigelow v. Cady, 230.)
6. ESTATES OF DECEDENTS--TITLE OF THE ADMINIS- TRATOR TO CHOSES IN ACTION-SETOFF.-Upon the appoint- ment of an administrator, all choses in action in favor of his in- testate pass to him immediately, but subject to any right of set off or counterclaim existing in favor of the debtor. (Ainsworth v. Bank of California. 135.)
7. ESTATES OF DECEDENTS-SALE OF PROPERTY. WHEN SHOULD BE ORDERED.-When a deficiency in the as- sets necessary to pay the debts of a decedent exists, a sale of his real property will be directed. (Pearson v. Gillenwaters, 844.)
8. EXECUTORS AND ADMINISTRATORS-TERM "DEBTS" INCLUDES WHAT.-The term "debts," as used in statutes relat- ing to the estates of deceased persons, is not limited to such as are strictly legal debts, but manifestly includes every claim and de- mand by a creditor, whether recoverable at law or in equity. (Sny der v. State. 60.)
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