inadequacy of consideration, and conflicting evi-
dence as to the mental incapacity of the grantor,
it is proper to refuse to give instructions extracted
from opinions in chancery cases, tried without
a jury, and which embody expressions as to the
weight of testimony in those particular suits.-
Berry v. Hall, (N. C.) 10 S. E. 903.
Verdict.

18. After a jury has returned a verdict, and
judgment thereon for plaintiff has been signed, it
is proper for the court, in the absence of plaintiff's
counsel, to permit the jury to correct their verdict
on the ground of mistake, where they have not yet
separated, and have not communicated with any
one.-Cole v. Laws, (N. C.) 10 S. E. 172.

19. A verdict is not challengeable for not allow
ing a sum for rent where the pleadings set up no
claim for rent, but only for a balance of purchase
money and interest thereon.-Belt v. Farrow, (Ga.)
10 S. E. 357.

20. The jury rendered a verdict for defendant
for the amount claimed by plaintiff, and when that
verdict was returned, this mistake was immedi-
ately discovered, and the attention of the jury
called to it, and they retired and corrected it, ren-
dering the verdict for plaintiff. Held, that this
irregularity was not fatal.-Blalock v. Waldrup,
(Ga.) 10 S. E. 622.

21. A special verdict, on a charge for peddling
without a license, which does not find whether or
not defendant had a license, nor that he was re-
quired to exhibit one by the proper authorities,
and failed to do so, is fatally defective.-State v.
Crump, (N. C.) 10 S. E. 468.

Rendered on Sunday.

22. The only standard of time recognized by
the law of Georgia is the meridian of the sun;
and the fact that a judge runs the court by rail-
road or "standard" time, which is 22 minutes be-
hind the sun time, will not make a verdict ren-
dered at 2 minutes before 12 on Saturday night by
railroad time, and 20 minutes after 12 by sun time,
other than a Sunday verdict.-Henderson v. Rey-
nolds, (Ga.) 10 S. E. 734.

23. A verdict rendered at 20 minutes past 12 on
Saturday night is valid.-Henderson v. Reynolds,
(Ga.) 10 S. E. 734.

Trial by court.

24. Under Const. N. C. art. 4, 18, providing
that where a jury is waived findings of the judge
on the facts shall have the force and effect of a
verdict, the ruling of a judge on the findings of a
referee will not be reviewed on appeal.-Nissen v.
Gennessee Gold Min. Co., (N. C.) 10 S. E. 512.

25. Where a case is submitted to the court with-

out the intervention of a jury, the finding of the
court will be treated in the supreme court as if it
were the verdict of a jury.-Johnston v. Smith,
(Ga.) 10 S. E. 354.

Waiver of defense.

26. A defense is waived by failure to insist upon
it until after a trial on the merits.-Montague v.
Brown, (N. C.) 10 S. E. 186.

TROVER AND CONVERSION.
When lies.

1. Where a horse is taken under a claim and
delivery, and delivered to the plaintiff in that ac-
tion, but on the trial before the justice it is ad-
judged to be the property of defendant, and a judg-
ment is given that the horse be returned, without
any inquiry as to its value, or giving judgment on
the undertaking of plaintiff and his sureties, as
provided by Code N. C. §§ 324, 431, regulating the
use of this provisional remedy, and plaintiff dis-
poses of the horse, the owner may bring an action
in the superior court for damages for the tortious
conversion.-Asher v. Reizenstein, (N. C.) 10 S.

E. 889.

What constitutes conversion.

lord until all the indebtedness of the tenant to him
should be fully paid, the tenant to prepare the cot-
ton for market, as rapidly as it can reasonably be
done, by picking it, and carrying it to any gin se
lected by the landlord, and thence to market, the
refusal of the tenant to stop his laborers in gather-
ing the remainder of the crop in the fields, in or-
der to comply with the landlord's request to gin,
pack, and send to market the portion already gath-
ered, is not such a conversion as to authorize a re-
covery in trover by the landlord.-Forehand v.
Jones, (Ga.) 10 S. E. 1090.

Pleading.

3. Where it appears that plaintiff had sold a
certain number of trees to defendant, and that his
action is for the unlawful removal of trees cut by
defendant in excess of the contract number, the
complaint need not allege that the legal title to the
trees was not conveyed to defendant.-Paalzow v.
North Carolina Estate Co., (N. C.) 10 S. E. 527.

4. In an action for the conversion of trees, it
appeared that after defendant had cut the trees,
and before he removed them, the trees were seized
under an attachment against defendant. The com-
plaint alleged that defendant unlawfully converted
said trees to his own use, and that "by said un-
lawful and willful removal and * trespass
the plaintiff has been damaged." Held, that the
complaint was sufficient, though it did not allege
that defendant procured the attachment to issue,
or the levy to be made. —Paalzow v. North Carolina
Estate Co., (N. C.) 10 S. E. 527.
Evidence.

5. In an action for conversion of brick there
was conflicting evidence as to the ownership there-
of, and the court instructed that if the jury believed
that one of the defendants said to plaintiff F. that
he did not care to whom he delivered plaintiff A.'s
brick or to whom he paid the money for his brick;
it was immaterial to him whether they were deliv-
ered or paid for to F. or A.,-then they should find
for plaintiffs. Held, that such evidence was not
conclusive evidence of the ownership of the brick.
and should have been submitted to the jury with
the other evidence.—Andrews v. Rigsbee, (N. C.)
10 S. E. 251.

Damages.

6. Where plaintiff in trover fails to state in his
affidavit for bail process the amount of hire claimed
for the use of the property, as he is required to do
by Code Ga. § 3418, he can still recover the hire
from the filing of his affidavit and declaration, but
not from the time of the conversion.-Phillips v.
Taber, (Ga.) 10 S. E. 270.

7. In such action, plaintiff's recovery against
defendant, the principal in the bail-bond, is st
limited to the amount of such bond.-Paillips v.
Taber, (Ga.) 10 S. E. 270.

8. Where defendant in his bond agrees to pro-
duce certain articles, and have them forthcoming
to answer the judgment of the court, he is liste
for their value, although he may have surrendered
them to the sheriff, who sold them, and applied the
proceeds to the costs of the suit; such surrender
being a new conversion of such property.-Philips
v. Taber, (Ga.) 10 S. E. 270.

Verdict and judgment.

9. Where it appears that the property sought
to be recovered in trover had been exempted from
levy and sale, and set apart to plaintiff as the bead
chased the property in good faith, at a judicial
of a family, an affidavit by defendant that he pur-
sale, and that plaintiff received the surplus of the
proceeds, in support of his motion to set aside s
verdict and judgment for plaintiff, on the ground
of defendant's providential absence from the tris
is not sufficient, as it does not show such facts as
render it improbable that plaintiff would be entitled
sale of such exempted property.-Phillips v. Taber,
to recover, no title passing to defendant by the
(Ga.) 10 S. E. 270.

Trustee Process.

TRUSTS.

Resulting trusts.

1. Plaintiff's husband bought and took title to
land sold by the sheriff, who was the husband of
defendant, but defendant testified that she paid
the purchase money. After the death of plaintiff's
and defendant's husbands, the land was levied on
under execution against a firm of which the hus-
bands of both plaintiff and defendant were mem-
bers, and a homestead in the land was laid off to
plaintiff, and the balance sold. Defendant re-
mained in possession of the portion laid off to
plaintiff as a homestead, and plaintiff made no de-
mand for rent for 10 years. Held, that a finding
that defendant paid the purchase money was jus-
tified, and that there was therefore a resulting
trust in her favor.-Farrington v. Duval, (S. C.)

10 S. E. 944.

2. Plaintiff sought to establish a resulting
trust, by parol evidence that he had paid for the
land, and directed its conveyance to the grantee
named in the deed. There was

no evidence
that he had the means with which to pay for the
land. The draughtsman testified that plaintiff
told him that the money had been paid by the
grantee. The grantee mortgaged it, and held it as
his own until his death. Held that, as the evidence
must be clear, strong, and without doubt as to
fact of payment by the alleged beneficiary, the
trust was not established.-Catoe v. Catoe, (S. C.)

10 S. E. 1078.

Termination of trust.

3. A judgment creditor conveyed her judg.
ments in trust for certain purposes, the residue to
be held on such trust as the judgment debtor might
appoint, and, in default of such appointment, then
in trust to pay the income to the judgment debtor,
free from liens thereon of any present creditor of
the judgment debtor. Power to revoke the trust
was reserved. The judgment creditor afterwards
assigned the judgments to the judgment debtor.
Held, that the trust had ceased to exist, and that
the judgments became his absolutely, and could
not be interposed as against his creditors and mort.
gagees.-Carter v. Hough, (Va.) 10 S. E. 1063.
4. Property was conveyed in trust for a mar-
ried woman during the joint lives of herself and
her husband, and in case she should survive, then

for the use of the wife and such children as she

might then have living by her said husband dur-
ing her life or widowhood, and on her death or
marriage to be equally divided among the said chil-
dren, and the issue of such as might then be dead.
Held, that on the death of the husband the duties
of the trustees terminated, and the legal estate
vested in the wife and the then living children,
and their deed of feoffment with livery of seisin
defeated the contingent remainders to the issue
of a daughter who afterwards died in the life-time
of the mother.-Snelling v. Lamar, (S. C.) 10 S. E.
825.

5. Where, by the terms of a trust, created by
marriage settlement in 1865, half the property is
to go to the "heirs of the body" of the wife of the
trustee, and both husband and wife are living, with
one minor child, the trust is still a valid subsisting
one, and did not become executed by the passage
of the act of 1866, (Code Ga. 1882, § 1754,) provid-
ing that property owned by a married woman at
the time of her marriage or acquired during cov-
erture shall be her separate property.-Bolles v.
Munnerlyn, (Ga.) 10 S. E. 365.

Liabilities of trustees.

6. Sixteen years after a sale under a trust-
deed given to secure a debt the sale was adjudged
invalid, and it was decreed that the trustees' rep-
resentatives should pay into court the value of the
land at the time of the sale, with interest. The
original debt was then satisfied from the estates of
the trustees, but the amount thus paid was con-
siderably less than the appraised value of the land,
with interest. Held, that the representatives of
the trustees must pay into court, for the benefit of
the estate of the original debtor, the amount of the
difference between the original debt and the ap-

praised value of the land.-Mosby's Ex'r v. John-
son's Adm'r, (Va.) 10 S. E. 425.

Powers of trustees.

7. A decree authorizing a trustee to mortgage
the estate to secure a loan for a term of years at 8
per cent. per annum, and to waive homestead in
the mortgaged property, does not give the trustee
power to stipulate in the mortgage for the payment
default of interest, taxes, or insurance, the whole
of semi-annual interest on the loan, and that, in
debt should become due, and 10 per cent. attor-
ney's fee be allowed for its collection by law.
Bolles v. Munnerlyn, (Ga.) 10 S. E. 365.
Compensation of trustees.

-

8. Commissions will not be allowed a trustee

who has failed to make annual settlements of his
accounts, and has not given any statement of his
receipts to the cestui que trust, as prescribed by
Code Va. 1887, §§ 2678, 2679, and whose only excuse
is that he did not think it necessary, as he had an-
nually paid the interest, but his right to future
Ward v. Funsten, (Va.) 10 S. E. 415.
commissions will depend on his future conduct.-
Rights of beneficiaries.

has converted the trust property into money, but
9. A trustee who, by leave of the proper court,
has made no returns, nor had any claims for expend-
not, according to strict law, entitled to withhold
itures, compensation, etc., audited and allowed, is
from a beneficiary, when the time arrives for set-
tlement, her due share of the corpus of the fund.
-Collins v. Covington, (Ga.) 10 S. E. 540.

10. By order of court, on the request of the don-
ors that the funds be invested and appiiod "in such
a way as will best promote the interest of the fam-
ily," money was invested for the use and benefit
of a widow and her children during her life, and
until the youngest child should reach the age of
21, and all the female children should marry and
be provided with homes. The widow died. All
the children reached the age of 21, and but one
daughter was unmarried, and she had a home with
her aunt. Held, that the trust was absolute, with-
out regard to the pecuniary circumstances of the
cestui que trust, and the unmarried daughter was
entitled to the whole income.-Ward v. Funsten,
(Va.) 10 S. E. 415.

11. Where property is conveyed to a trustee, to
the use of a person for life, with a power of ap-
pointment by will, and the cestui que trust exer-
cises the power, the property does not thereby be-
come subject to his debts, where the will was thus
made only to insure title to one who had previous-
ly, in good faith, purchased the property, when it
was sold under a decree of court.-Patterson v.
Lawrence, (Ga.) 10 S. E. 355.

12. Nor can the property be subjected to the
debts of the cestui que trust, unless it is shown
that he did not have sufficient assets to pay them.
-Patterson v. Lawrence, (Ga.) 10 S. E. 355.

13. The equitable assets of a debtor cannot be
made subject to his debts in an action at law; and
a case submitted on the interposition of a claim or
levy of an execution, with no other pleadings than
the execution, the sheriff's entry, and the claim in-
terposed, is not an equitable proceeding for such
purpose, though equitable jurisdiction is conferred
on courts of law.-Patterson v. Lawrence, (Ga.) 10
S. E. 355.

Practice-Parties.

14. Where money was given to be invested for
the benefit of certain female children until they
should marry, it was not necessary that the hus-
bands of the married daughters, or the donors of
the fund to whom it would ultimately revert,
should join in a petition to the court that the in-
come of the fund should be paid to the only un-
married daughter, as she was the only party in in-
terest.-Ward v. Funsten, (Va.) 10 S. E. 415.

15. The fact that the married daughters and the
donors of the fund did join in the petition, and
that an objection to it on that ground was not sus-
tained, is not reversible error, as they asked for
no personal relief, but united simply as evidence

missing the bill, without ordering an account be-
tween the parties, or rescinding the contracts or
bonds, was erroneous.-Nelson v. Phares, (W. Va.)
10 S. E. 398.

Action for price.

5. Where land is conveyed with covenants of
general warranty, and the vendee is compelled to
pay off trust liens executed by the vendor, in or-
der to obtain a clear title, the vendee is entitled to
substitution to the rights of the lienors, and, in a
suit by the vendor upon bonds given for the pur-
chase money, may set off the amounts so paid.-
Hoke v. Jones, (W. Va.) 10 S. E. 775.

6. Plaintiff alleged that he contracted to sell
to defendant a certain tract of land; that all the
purchase money had not been paid; that he had ob-
tained judgment for the balance thereof, which had
not been paid; and that he had offered to make de-
fendant a good title to the land on payment to him
of the balance of the purchase money. Defendant
admitted the contract to sell the land to him, and
the price to be paid therefor. He did not admit
the alleged judgment, or positively deny it, but al-
leged that he had fully paid the purchase money;
and that plaintiff had so incumbered the land that
he could not make a good title to the same; and
that defendant had placed valuable improvements
on the land, etc. Held, that the court erred in ad-
judging the answer frivolous, and giving judg-
ment for plaintiff. It should have required the an-
swer to be made definite and certain by amend-
ment.-Buie v. Brown, (N. C.) 10 S. E. 465.

Purchase money deposited with
third persons.

7. In a suit by a vendor against one to whom
the vendee has sent the purchase money to be paid
to the vendor on the execution of the deed, to re-
cover such consideration money, it is error to pass
on the rights of the vendee, he not being a party to
the suit.-Griffith v. Winborne, (N. C.) 10 S. E. 855.

8. In a suit by a vendor to recover money
which the vendee has intrusted to defendant to be
paid to the vendor on the execution of the deed, it
is error to direct the defendant to pay the costs out
of the trust fund in his hands, when the court finds
that the plaintiff cannot recover the money sued
for.-Griffith v. Winborne, (N. C.) 10 S. E. 855.

9. A vendee sent to a banker the consideration
money, and a form of deed, on the execution of
which the banker was authorized to pay the money
to the vendor, and send the deed to the vendee.
The vendor executed the deed, but directed the
banker not to deliver it until certain changes had
been agreed to. Before these changes had been
made, the bankers, while still holding the deed
and the money, became insolvent, and made an as-
signment. Held, that the vendor could not re-
cover the consideration money from the assignee,
the deed never having been delivered.-Griffith v.
Winborne, (N. C.) 10 S. E. 855.

Rights of vendee.

10. A vendee in possession under bond for title
may sue for the destruction of his crops, caused by
vendor's overflowing the land.-Connally v. Hall,
(Ga.) 10 S. E. 738.

11. Where a purchaser of land, pursuant to his
contract, pays a lien on the land, binding his ven-
dor's estate in it, and such contract is abandoned
by the parties, and the vendor becomes unable to
execute it, though the purchaser took no assign-
ment when he so paid the lien, yet he is entitled to
be substituted to such lien, and equity keeps it
alive for his indemnity.-James v. Burbridge, (W.
Va.) 10 S. E. 396.

Vendor's lien.

12. Where and onveying land reserves a lien
for purchase L
ut does not declare in whose
favor it is reserved, if the note or bond for the pur-
chase money is, at the time of the conveyance, ex-
ecuted by the purchaser payable to a third party,
he has a right to the debt, and the right to enforce
the lien; and the grantor is not a necessary party,
nor, after his death, his personal representative or
heirs. And if the note or bond were originally
payable to the grantor in the deed, but afterwards,
v.10s.E.-75

with his assent, the purchaser takes up that note or
bond, and, in place of it, executes one to such third
party, this does not extinguish the lien, but the third
party may enforce it, without joining the grantor,
or, after his death, his heirs or personal representa-
tive, as parties.-James v. Burbridge, (W. Va.) 10
S. E. 396.

13. On an administrator's sale of land, the price
of which the intestate had not fully paid, the in-
testate's vendor will not be preferred in the dis-
tribution of the proceeds, unless he has given pub-
lic notice that his interest also might be sold, or
shows that the land brought its full value.-Thomp-
son v. Atwater, (Ga.) 10 S. E. 718.

On crops.

14. Where a contract for the sale of land pro-
vides that it shall be void on failure of the vendees
to make payments thereon for two successive
years, and that the vendees shall then pay rent, the
vendors cannot claim a landlord's lien on crops be-
fore the expiration of two years.-Killebrew v.
Hines, (N. C.) 10 S. E. 159.

15. As vendees in possession of land under con-
tract of sale stand on the same footing as a mort-
gagor in possession, the vendor has no lien on crops
raised by them until they are sequestered, and can-
not maintain replevin for them against the vendees
or a third person, and, even after sequestration of
the crops, the vendor's lien is subject to agricult
ural liens for advances, under the North Carolina
laws, making agricultural liens superior to all oth-
ers except landlords' liens.-Killebrew v. Hines,
(N. C.) 10 S. E. 159.

16. A clause in the contract, that it is to "hold
everything made on the land, " is not a reservation
of subsequently made crops, so as to confer a lien;
and if it constitutes a valid mortgage on them, it is
subordinate to subsequent agricultural liens for
have actual notice thereof.-Killebrew v. Hines,
advances, even though the subsequent lienholders
(N. C.) 10 S. E. 159.

Bona fide purchaser.

17. Under Code Ga. § 2218, which declares that
real estate includes all things permanently at-
tached to land, growing trees are part of the realty,
and any sale, or contract for the sale thereof, is
void as against subsequent purchasers of the land
for value without notice.-Coody v. Gress Lumber
Co., (Ga.) 10 S. E. 218.

18. The title of a purchaser for value, without
notice, from the grantee of a lunatic, is good as
against the heirs of the lunatic.-Odom v. Riddick,
(N. C.) 10 S. E. 609.*

VENUE IN CIVIL CASES.
Waiver of objections.

1. An objection to the venue is waived by fil-
ing an answer to the merits of the action, though
the answer is filed before the time allowed defend-
ant to answer has expired. · Granville County
Board of Education v. State Board of Education,
(N. C.) 10 S. E. 1002.
Change of venue.

2. When, in North Carolina, an action is or-
dered removed to another county, it is error in
the judge presiding in the superior court of the
county from which the cause is removed, at the
next term thereof, and before the term of the
court in the county to which it was removed, to di-
rect that the action be dismissed, if the costs of
the transcript be not paid in a time specified, as
the party procuring the order of removal has un-
til the term of the court to which the cause is
removed to deposit his transcript.-Fisher v. Cid
Copper Min. Co., (N. C.) 10 S. E. 1055.

3. Where in a cause a petition is filed to obtain
relief as to part of a fund in the hands of a receiver,
under decrees in the cause, and that petition is re-
moved for decision to another county, though there
had been a final decree in the case, if it be doubtful
whether the circuit court intended to remove the
entire cause, or only the petition, it will be consid-
ered that the entire cause was removed, where
necessary to administer full justice.-Baltimore &
O. R. Co. v. Vanderwerker, (W. Va.) 10 S. E. 289.

Defendant altered a bridge constructed by
it across a stream so as to decrease the distance
between the abutments of the bridge to 92 feet,
while the width of the natural channel of the river
was about 150 feet. It also appeared that the dis-
tance from the top of the abutments to the surface
of the water was diminished, and that rock and
clay were deposited around the bases of the abut-
ments. All those acquainted with the stream tes-
tified that such changes greatly increased the re-
flow. Plaintiff, who operated a mill about a mile
above defendant's bridge, testified that such addi-
tions caused an increased height of water at his
mill-dam of 5 feet, and that but for the bridge he
would receive no damage from freshets. The wa-
ter at defendant's bridge was about 6 feet higher
than the water at another bridge about a quarter
of a mile further down, which had a span between
its abutments of 110 feet. Held, in an action by
plaintiff for damages caused by the overflow of
his premises in a freshet occurring subsequent to
such alterations, that a demurrer by defendant to
the evidence was properly overruled.-Taylor v.
Baltimore & O. R. Co., (W. Va.) 10 S. E. 29.

WAYS.

See, also, Easements; Highways.
Establishment.

1. Where, in a proceeding to acquire a cart-
way, it is alleged that plaintiff has no other outlet,
evidence that the way prayed for would be shorter
than others proposed is admissible to show that
the demand is reasonable and just.-Warlick v.
Lowman, (N. C.) 10 S. E. 474.

2. The right to a cartway being established,
on appeal to the superior court, by a trial de novo,
that court may retain the case, and issue a writ
for the laying off of the way.-Warlick v. Lowman,
(N. C.) 10 S. E. 474.

3. Code N. C. § 2056, provides that if a person
resides on or cultivates any land to which no pub-
lic road leads, a private way shall be laid out to a
public road if it appears necessary, reasonable, and
just. Held, that where the evidence showed that
the land was not on a public road, but the testimo-
ny as to the necessity of the cartway was conflict-
ing, the question as to whether it was necessary
was for the jury.-Burwell v. Sneed, (N. C.) 10 S.

E. 152.

Wife's Separate Estate.

See Husband and Wife, 3-20.

WILLS.

See, also, Executors and Administrators.
Uncertainty of beneficiaries in charitable devise,
see Charities, 1.

Validity-Requisites.

1. A will written wholly in the handwriting of
the testator, beginning, "I, A. W., of the county
of H., declare this to be my last will and testa-
ment, " but nowhere else containing testator's

name, and inclosed in a sealed envelope, on which
is written, in testator's handwriting, "My Will-
A. W.," is not signed by testator, within Code Va.
1887, § 2514, providing that "No will shall be valid
unless it be in writing, and signed by the testator,
or by some other person in his presence, and by
his direction, in such manner as to make it mani-
fest that the name is intended as his signature."-
Warwick v. Warwick, (Va.) 10 S. E. 843.

Nuncupative wills.

2. On proceedings to establish an alleged nun-
cupative will, made by deceased three days before
his death, whereby he gave nearly all his property
to his widow, to the exclusion of his children, it is
proper to charge the jury that the nuncupative
will must be strictly proved in all essential points;
that it must be made as a matter of necessity, and
not as a matter of choice; that it must appear
that the deceased was in extremis when he made
the will; and that the jury should find against the
nuncupative will if they believed from the evi-
dence that deceased had plenty of time and op-
portunity to execute a formal written will.-Scaife
v. Emmons, (Ga.) 10 S. E. 1097.
Probate and contest.

3. There was evidence that deceased was in-
sane when he made the alleged will. It was also
shown that a third person wrote a will, and sent it
to deceased, pursuant to directions received from
him. This person testified that the paper pro-
pounded was not the paper written by him, nor
was there any evidence that deceased knew the
contents of the paper propounded as his will, or
that it was ever read to him, or by him. Held, that
a finding by the jury that the paper propounded
was not the last will of deceased would not be set
aside.-Fuller v. Brakefield, (Ga.) 10 S. E. 1086.

4. On the issue devisavit vel non the propound-
ers of the will cannot, on the rejection of testimony
submitted by them, submit to a judgment of non-
suit, and appeal, as the action is of the nature of a
proceeding in rem to ascertain, for the benefit of
all interested, whether deceased died testate, and,
if so, to determine the validity of the will pro-
pounded; and the issue must proceed to final de-
termination.-Hutson v. Sawyer, (N. C.) 10 S. E

85.

5. Code Ga. § 2403, provides that a will execut-
ed under a mistake of fact as to the existence or
conduct of the heirs at law of the testator is inop-
erative, so far as such heir at law is concerned,
but the testator shall be deemed to have died in-
testate as to him. A caveat against the probate of
a will alleged that the testator had been declared
insane by a jury before signing the will, that un-
due influence had been exercised over her, and the
will had been procured by fraud, and did not express
her wishes. Held, that there was no error in refus-
ing to charge the jury as to a mistake made by tes.
tator concerning the conduct of one not a caveator
of the will or a party to the action, and not shown
to be an heir at law.-Lunceford v. West, (Ga.) 10
S. E. 450.

6. A sentence of probate made in another state
upon a will is not evidence in the courts of this
state of the validity and due execution of the will,
as to lands, situate in this state, devised by it, so
as to pass title to such land to the devisee.-Thrash-
er v. Ballard, (W. Va.) 10 S. E. 411.
Description of property.

7. A will provided as follows: "All the balance
of my personal estate I give and bequeath unto my
sisters;
* also my land and real estate I do
give" to them. The will was executed before the
passage of the statute (Gen. St. S. C. § 1850) pro-
viding that land acquired after the execution of a
will should pass under it in the same manner as per-
sonal property, but the testator died thereafter.
Held, that the will, speaking as at testator's death,
passed after-acquired land as well as that owned at
the time of its execution.-Welborn v. Townsend,
(S. C.) 10 S. E. 96.