after ner death directed that the land be sold, and
the proceeds divided equally among all his chil-
dren. Held, that this created a vested remainder
in the testator's children.-De Vaughn v. McLe-
roy, (Ga.) 10 S. E. 211.

9. Testator, after bequeathing all his property
to his wife for life, provided as follows: "Should
my wife at any time marry, then all my property,
real and personal, I bequeath and give to my daugh-
ter, in fee-simple; and should they both live, and
my daughter form an alliance, or marry, then my
estate to be equally divided, both real and personal,
share and share alike." Held, that when the moth-
er married, she then forfeited whatever interest
she took under the will whether the daughter re-
mained single or married.-Martin v. Seigler, (S.
C.) 10 S. E. 1073.

10. A devise of an estate "for the use, benefit,
and behoof of my daughter * ** during her
natural life, and for the use of the heirs of my said
daughter after the death of my said daughter,"
creates a contingent remainder in the heirs of the
daughter, which does not become vested until her
death; it appearing that the will was drawn by
one who clearly understood the meaning of the
terms employed, and there being nothing to indi-
cate that the word "heirs" was not used in its tech-
nical sense.-Wallace v. Minor, (Va.) 10 S. E. 423.
Duration of estate.

11. A testator's bequest of all his funds to his
wife for life, for the benefit of herself and chil-
dren, "to be used as she may think proper, " means
only such use as is consistent with the life-estate
given, and an investment of such funds in land
gives testator's wife only a life-estate therein, re-
mainder over to testator's heirs in fee, free from
her debts.-Johns' Adm'r v. Johns' Adm'r, (Va.)

10 S. E. 2.

12. A testator gave to his wife a life-estate in
all his lands and personalty, a remainder over in
the real estate being given to the grandchildren
of testator. Held that, although there was no
limitation in remainder as to the personalty, the
wife did not take an absolute estate therein.-
Bartlett v. Patton, (W. Va.) 10 S. E. 21.

13. Under a devise to testator's son, reserving
a life-estate to testator's wife, and after the death
of the son to vest in the son's children, the son
takes a life-estate, subject to the life-estate of tes-
tator's widow, with a remainder to the son's chil-
dren; nor does it make any difference that the
children were born after testator's death.-Good-
rich v. Pierce, (Ga.) 10 S. E. 451.

Rights of devisees and legatees.

14. A legacy given to a trustee for the support
of the family of one of the testator's children, and
made payable out of the proceeds of the sale of real
estate, bears interest from the death of the testa-
tor.-Dunn's Ex'rs v. Renick, (W. Va.) 10 S. E. 810.
15. Where a will, after giving a life-estate to
testator's widow, provides that after her death,
the land shall remain with testator's daughters
'as long as they wish to keep house together,
and that "if they should marry, or when they
wish to quit keeping house," the land shall be
sold, it cannot be sold so long as one of the daugh-
ters remains on the land unmarried, and "keeping
house, and without wishing to "quit_keeping
house."-Hayes v. Davis, (N. C.) 10 S. E. 912.

16. Testator devised to defendant 80 acres of
a certain tract of land, and afterwards by deed con-
veyed to him 30 acres of the same tract. Held,
that under the will defendant took only so much
of the 80 acres as was not included in the deed, and
not 80 acres besides what he took under the deed.
-Pickett v. Leonard, (N. C.) 10 S. E. 466.

Contract to make wills.

17. An agreement by intestate that his son-in-
law should have certain land if he and his wife
would live on his place and take care of him is in
effect a contract to devise the land, on breach of
which the son-in-law may recover the reasonable
value of his services.-Whetstine v. Wilson, (N.
C.) 10 S. E. 471.

WITNESS.

See, also, Deposition.

Transactions with decedents.

1. A party to a suit, although he have no inter-
est in its result, is incompetent to give evidence
of a personal transaction or communication be-
tween him and a decedent against a devisee of
such deceased person.-Patterson v. Martin, (W.
Va.) 10 S. E. 817.

2. Under Code Va. 1887, 3346, which makes
an adverse party incompetent to testify as to a
transaction with a decedent unless, inter alia, it
was personally had with his agent, who is alive
and capable of testifying, the examination must
be restricted to such portion of the transaction as
was had personally with the agent. Reherd's
Adm'r v. Člem, (Va.) 10 S. E. 504.

3. Under Code Ga. § 3854, providing that where
one party to the contract or cause of action is dead
the other shall not be a witness, a surety to whom
an execution against his principal was assigned on
payment of the debt cannot testify that the con-
veyance to him of the land, on the purchase of
which the debt arose, was not to be in satisfaction
of his claim, where his principal is dead, and the
other parties to the action are administrators of ex-
ecution creditors of his deceased principal.-Nes-
bitt v. Parrott, (Ga.) 10 S. E. 589.

4. The administrator is not competent to testi-
fy in his own behalf as to a debt due himself by
his intestate and his wife.-Fulcher v. Mandell,
(Ga.) 10 S. E. 582.

5. Code W. Va. c. 130, § 23, provides that a par-
ty shall not be examined as a witness in his own
behalf in regard to any personal transaction or
communication between such witness and a de-
ceased person, or against the personal representa-
tive, heir at law, next of kin, assignee, legatee, dev-
isee, or survivor of such deceased person. Held,
that a party is a competent witness to testify in his
own behalf, in respect to a transaction or communi-
cation had personally between him and the agent of
a deceased person, against the personal represent-
ative, heir, or assignee of such deceased person,
notwithstanding such agent is dead.-Voss v. King,
(W. Va.) 10 S. E. 402.

6. An attorney of one of the parties to an agree-
ment is not precluded from testifying for his client
concerning the agreement, under Code N. C. § 590,
providing that a party in interest, or a party from
whom such party derives his interest, shall not
testify in his own behalf, or that of the party suc-
ceeding to his title, concerning a personal transac-
tion or communication between the witness and a

party who has since become a lunatic, in an action
against the representative of the lunatic.-Propst
v. Fisher, (N. C.) 10 S. E. 295.

7. Decedent's widow, who is also a defendant,
is not incompetent to testify for plaintiff that the
latter paid part of the price of the land, where it
does not appear that decedent was present at such
payment, or knew anything of it.-Carey v. Carey,
(N. C.) 10 S. E. 156.

8. A witness is incompetent to testify that de
fendant's decedent borrowed money from him,
mortgaging the land to secure it, and that plain-
tiff paid part of such borrowed money.-Carey v.
Carey, (N. C.) 10 S. E. 156.

or a per-

9. Code N. C. § 590, renders incompetent a
party or interested person, "or a person from,
through, or under whom such party or interested
person derives his interest," to testify as a wit-
ness "in his own behalf or interest, or in be-
half of the party succeeding to his title or in-
terest, against the executor, administrator, or
survivor of a deceased person, * * *
son deriving his title or interest from, through,
or under a deceased person," concerning a per-
sonal transaction between the witness and de-
cedent. Held, in an action to establish a trust in
land against the heirs of a decedent, where plain-
tiff claims by virtue of paying part of the purchase
money, and that the deed was made to defendant's
decedent, a witness is not competent to testify for
plaintiff that the latter and defendant's decedent
purchased from witness the land in controversy,

in the absence of evidence that defendant's dece-
dent was not present at such purchase, as plaintiff
derives his interest from such witness.-Ĉarey v.
Carey, (N. C.) 10 S. E. 156.

10. The testimony of plaintiff's assignor as to
payments made him, before the assignment of the
claims, by a deceased person, is not admissible
for plaintiff in an action against the heirs of such
deceased person, under Code N. C. § 590, pro-
viding that upon the trial of an action a person
from whom a party derives his interest by assign-
ment shall not be examined as a witness in behalf
of the assignee against a person deriving title
through a deceased person concerning a personal
transaction between the witness and the deceased
person.-Shields v. Smith, (N. C.) 10 S. E. 76.

11. In North Carolina a witness is not incom-
petent on account of interest; and, where a gen-
eral objection to the witness' competency was
overruled, and afterwards no objection was made
to his testimony as to transactions with dece.
dents, which testimony is incompetent under Code,
$590, the objection will be deemed waived.-Nor-
ris v. Stewart's Heirs, (N. C.) 10 S. E. 912.
12. In an action by the creditors of a deceased
grantor to set aside a fraudulent conveyance, the
testimony of the grantee as to conversations and
transactions between the grantor and himself is
admissible, since it is not against any of the classes
mentioned in Code Civil Proc. S. C. § 400, prohibit-
ing testimony relating to transactions or communi-
cations with decedents.-Jackson v. Lewis, (S. C.)
10 S. E. 1074.

Examination.

13. Only in an extreme case, if at all, will a re-
viewing court order a new trial because leading
questions were propounded to a witness.-Parker
v. Georgia Pac. Ry. Co., (Ga.) 10 S. E. 233.
Credibility.

14. Where plaintiff in an action for personal
injuries is asked, on cross-examination, if he was
not arrested for stealing from his employer some
years before, and his employer testifies that he was
so arrested, he may put in evidence of his general
good character; it having been subjected to such
an attack as might discredit his testimony, if it
were not sustained by such evidence. Central
Railroad & Banking Co. v. Dodd, (Ga.) 10 S. E. 206.
Impeachment.

15. When, on cross-examination, a witness is in-
terrogated as to a conversation with a view to lay-
ing the foundation for impeaching him, he has a
right to give the whole conversation so far as it is
pertinent.-Savannah, F. & W. Ry. Co. v. Holland,
(Ga.) 10 S. E. 200.
Fees.

16. Const. N. C. art. 1, § 11, which provides that
a defendant in a criminal case shall not be com-
pelled to pay necessary witness fees unless found
guilty, does not, in the absence of legislative enact
ment, require the public to pay defendant's neces-
sary witnesses on his acquittal, but merely de-
prives them of their common-law right to look to
defendant for payment.-State v. Massey, (N. C.)

10 S. E. 608.

17. Where an indictment is quashed, defend-
ant's necessary witness fees cannot be taxed
against the county as Code N. C. § 747, authorizes

1. Code Ga. $$ 3332-3334, provide that the peti-
tion in an action shall be filed with the clerk of the
court to which it is directed, and that the clerk
shall issue process thereto, signed by the clerk, and
bearing teste in the name of the judge. Plaintiff
filed his petition with the clerk of the city court of
Atlanta, praying process thereto, as provided by
sections 3389-3396. The clerk of the superior court
of Fulton county, who is also ex officio clerk of the
city court of Atlanta, issued process to an impos-
sible term of the superior court. Held, that such
process was void, and the action was properly dis-
missed for want of sufficient process; section 3490
providing that "void process
cannot be
amended. "-Lowrey v. Richmond & D. R. Co.,
(Ga.) 10 S. E. 123.

Service of process.

2. When the summons was served on defend-
ants by the sheriff, they were outside his jurisdic-
tion. He told them this, and said he would
send it to the proper sheriff to serve. They told
him not to do that, but to mark it "Served" and
that this was not a "written admission of" serv-
they would accept service in that way. Held,
ice, within Code N. C. § 228.-Godwin v. Monds,
(N. C.) 10 S. E. 1044.

3. Summons was issued against defendant, and
"legal service" thereof was accepted by his son,
who was not a member of his family, and who had
neither was defendant informed of nor did he con-
no authority to accept service of process for him;
sent to said acceptance. Held, that there was no
legal service on defendant, and the judgment had
thereon was void.-Finney v. Clark, (Va.) 10 S. E.
569.

4. In an action to recover land lying partly in
one county and partly in another, defendant resid-
ing in one of those counties, and no one on whom
service could be made residing in the other, the
process is properly directed to and served by the
sheriff of the latter county, under Code Ga. § 3355,
providing that, in the case of land lying partly in
two counties, and no one residing in one of them
directed to and served by the sheriff of the county
on whom service can be made, the process may be
wherein such land may lie.-Polhill v. Brown,
(Ga.) 10 S. E. 921.
Return.

5. The return of the sheriff that he had served
the summons is not conclusive, but defendants in
the writ may show that they were not legally
served.-Godwin v. Monds, (N. C.) 10 S. E. 104.

Speight v. Staton (State v. Kellebrew, 10 S. E. 86).

State v. Anderson (10 S. E. 475)
State v. Barefoot (10 S. E. 170).
State v. Boyle (10 S. E. 696, 1023)
State v. Bradburn (10 S. E. 526)
State v. Braddy (10 S. E. 261).
State v. Calley (10 S. E. 455).
State v. Chastain (10 S. E. 519)
State v. Connelly (10 S. E. 469)
State v. Cooper (10 S. E. 510)
State v. Crump (10 S. E. 468).
State v. Dixon (10 S. E. 74)
State v. Eller (10 S. E. 313).
State v. Farmer (10 S. E. 563)
State v. Farrar (10 S. E. 159)