sustaining the will, contestant appeals. Af- within too narrow limits the opportunities firmed. of which the appellant might avail herself in contesting the will."

Joseph L. Barbour and Salvator D'Esopo, both of Hartford, for appellant. Sidney E. Clark, of Hartford, for appellee.

THAYER, J. The application to correct the appeal is dismissed. What is sought by it is to have the court's finding corrected. Only the first of the corrections asked for would be proper in a finding by the court in a jury case. The others are findings of fact to be made from the evidence, which was for the jury. The first is only a fuller statement of the appellant's claim than that which the

court made. The latter was sufficient for the purposes of the appeal.

[1] If the appellee sustained his burden by showing that the testator, at the time he executed the will, was of sound mind, and that the will was duly executed by him, the presumption would be that it was a valid will. If it was not so, but had been improperly obtained, the burden was upon the contestant to show it. Rockwell's Appeal from Probate, 54 Coun. 119, 121, 6 Atl. 198.

[2] Paragraph 2 of the amended reasons of appeal states the only sufficient ground assigned for setting the will aside, and that

is that the testator did not understand the English language sufficiently to have understood the terms of the will, and did not understand its meaning. The jury were pre

The appellant's sole claim was "that the testator was so unfamiliar with the English viously told that the paper could not be his language, which was the language employed by the scrivener who drew the will, that he will, if it was signed by him under a misdid not understand or comprehend the al-visions of the will were not those which he apprehension of its meaning, and if the proleged provisions of said will, and did not have capacity to make said will in the sense of being able to intelligently and understandingly converse with the scrivener as to the provisions of said will, or to convey to the

the terms of the instrument when he signed it, and thus subscribed an instrument containing provisions which he did not intend to subscribe, it was open to the appellant, under the charge, to prove those facts, and the jury were told, in substance, that, if she established them, the instrument offered for probate was not the testator's will.

[3] It was not enough for her to prove that the testator was ignorant of the language. That might be so, and the instruHis wishes might ment still be his will.

intended to subscribe to. The charge did not restrict the appellant's opportunities in contesting the will; in other words, did not impose upon her any burden which the law did not impose upon her. If, through igscrivener his wishes concerning the disposition of the property." This, which is the norance of the English language, the testator did not express his testamentary wishes claim of the appellant, as stated in his application for correction of the appeal, is properly to the scrivener, so that the latter substantially his claim as stated in his rea- did not by the language used express the son of appeal, and the court has found that testator's intent, and he, through his ignoshe offered evidence tending to prove the tes-rance of the language, did not understand tator's ignorance of the English language and inability to converse in it intelligently. The court, after stating to the jury in the early part of the charge the appellant's reasons of appeal, instructed them that, if it should appear that the testator "was induced to sign the paper under some misapprehension as to its meaning or by the misrepresentation of some one else as to its meaning, and that the provisions of the will, as formulated in it, were not the provisions that he intended to subscribe to, and that he supposed that he was subscribing to, then the paper could not be regarded as his will. Later in the charge, the court told the jury that, if after investigation they were satisfied that the paper offered was the last will of Mr. Laraia, and was executed by him in conformity with the statutory requirements, they should "from that point take up the issue which at this point is imported into the case here and upon which issue the contestant bears the burden of proof. On this issue, unless you find that the paper was executed under an honest misapprehension as to its contents, or was secured from Mr. Laraia by deceit or misapprehension as to what it contained, and in either event did not express his own free wishes and intentions, I say, unless you find these essential facts proven by a fair preponderance of the evidence, you must sustain the will." Error is assigned

be imparted to the scrivener in other ways than by oral communication, and by another than the testator himself, as by an interpreter employed for the purpose. And the terms of the will in the same way might be communicated and explained to him through an interpreter or another than the scrivener, although the testator was incapable of understanding the terms of the will by which his testamentary intentions were expressed. The charge was well adapted to the case which was presented by the testimony and claims of the parties, and correct in its statement of the law.

In their fifth reason of appeal, the appellants allege as error that the court erred in not charging certain language therein indicated and contained within quotation marks. There was no request that the court should so charge, and this is an improper way of

CO.

(88 Conn. 1!

[4] As the court correctly charged upon the subject to which this assignment of er- WETOPSKY v. NEW HAVEN GAS LIGHT ror refers, it would have not been error to refuse to charge in the precise language indicated, had it been requested to do so.

(Supreme Court of Errors of Connecticut. March 5, 1914.)

1. VENDOR AND PURCHASER (§ 349*)—ACTION FOR BREACH-ALLEGATIONS OF COMPLAINT.

A complaint alleging that defendant, being the owner of a dwelling house situated at a certain street number, which it desired to dispose of, and have removed, sold the same to plaintiff, who owned the lot on the opposite side of the street to which he intended to remove it, for a valuable consideration then paid, and that defendant knew of plaintiff's purpose in purchasing the house, but afterwards refused to permit plaintiff to remove or take possession of it, sufficiently alleged a contract by defendant to sell the dwelling house and a breach, not alleging a contract for the purchase and sale of re

A motion was made to set aside the verdict, as against the evidence and denied, and this is assigned for error. The claim is that the evidence showed that the testator did not understand English sufficiently well to give instructions to the scrivener, nor to understand the terms and meaning of the will, and did not understand them. These were contested matters, and there was evidence from which the jury might have found that the testator understood English well enough to explain to the lawyer who drew it what his wishes were, and so that he could under-alty. stand the meaning of the will when it was read and explained to him. It was not necessary that he should fully understand the meaning of the legal terms used upon a mere reading. A foreigner who cannot read English or understand it when read or spoken may, through an interpreter's intervention, make a valid will or deed written in that language.

[5] The weight of the evidence was for the jury, and the court properly refused to

set their verdict aside.

[6] A witness, B. F. Newton, being called by the contestant to support her claim that the testator did not understand the English language, was asked, upon cross-examination, this question: "If he [meaning the testator] wanted to leave a couple of thousand dollars to his daughter, don't you think he could talk English well enough to tell his attorney he wanted to leave her $2,000?" The form of the question was objected to, because it did not follow the language of the will. The purpose of the question was to show that the testator had sufficient knowledge of English to make his testamentary wishes known to the attorney to whom he had applied to draft the instrument, and was proper cross-examination. It tended to give the jury an insight into the testator's ability to understand English. One of the bequests contained in the will was $2,000 to his daughter, the contestant. If he understood the language well enough to dictate the gift, it is presumable that he understood it sufficiently to enable him to comprehend the language of the will making the bequest when explained to him by the attorney, if not from the reading of the will.

For the reasons stated in refusing the motion to rectify the appeal, the motion to correct the finding was properly denied by the trial court. The finding properly states the facts pertaining to the trial and the claims of the appellant. There was no occasion for a change in it.

There is no error. All concur.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1033, 1039–1042; Dec. Dig. § 349.*] 2. FRAUDS, STATUTE OF (§ 72*)-SALE OF REALTY-"INTEREST IN REALTY."

A contract for the sale of a house to be is affixed, is a sale of personalty, and not of an immediately removed from the land, to which it "interest in realty," within the statute of frauds prohibiting an action on a contract for the sale of realty unless it is in writing.

[Ed. Note.-For other cases, see Frauds, Stat3. SALES (§ 200*)-CONSTRUCTION OF CONute of, Cent.Dig. §§ 116-118, 146; Dec.Dig. § 72.*]

TRACT-SALE OF BUILDING-TRANSFER OF
TITLE.

Where an intent to sell a building as a chattel is apparent from the contract and attending circumstances, the severance may be made by the purchaser; the fact that he is to remove the building only being important as bearing on the intention of the parties in determining whether title is to pass at once, or after severance.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 524-528; Dec. Dig. § 200.*] 4. LICENSES (§ 62*)-REVOCATION.

A purchaser's implied license to enter and sever from the realty a chattel sold, such as a building, would be revoked by the seller's conveyance of the land, leaving the purchaser to his remedy for breach of contract.

[Ed. Note. For other cases, see Licenses, Cent. Dig. § 125; Dec. Dig. § 62.*] 5. SALES (§ 199*)-CROPS-PASSING TITLE-SEVERANCE FROM REALTY.

The title to growing crops passes to the purchaser before severance from the soil, being an exception to the rule that a chattel sold, which is annexed to the soil, would remain a part of the realty until after severance.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 516-523; Dec. Dig. § 199.*] 6. FRAUDS, STATUTE OF (§ 103*)-MEMORAN

DUM-SUFFICIENCY.

A writing which stated the receipt from plaintiff of $5 "deposit on house No. 44 Mill street, balance of $35 to be paid on or before the date named," and signed by defendant, and another writing, signed by defendant, reciting the receipt from plaintiff of $35 "balance on house No. 44 Mill street," were insufficient as memoranda of any contract for the sale of land, not showing any sale.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 192-198, 200-208; Dec. Dig. § 103.*]

Appeal from Superior Court, New Haven | was excluded. The appeal assigns as error County; William L. Bennett, Judge.

Brown, in his first edition, after reviewing the early cases relating to this section of the statute as bearing upon sales of fixtures, "3:30 p. m., March 27, 1912. Received of buildings, standing trees, growing crops, etc., Sylvester Wetopsky thirty-five dollars, bal-attached to the soil, drew therefrom the genance on house No. 44 Mill St. $3500/100. eral rule that: "If the contract when executNew Haven Gas Light Company, J. B. ed is to convey to the purchaser a mere chatByrne." tel, though it may be in the interim a part He also offered to prove by parol evidence of the realty, it is not affected by the statthe terms of the contract between the par- ute." Brown, Statute of Frauds (1st Ed.) § ties. This evidence, upon objection that the 249. Benjamin, after quoting with approval

building to be severed and removed by the vendee. We see no difference in principle between the cases. The brick and materials of which a building is composed are, before the destruction of the building, a part of the realty as much as the entire building is before its severance; indeed, they constitute the building. If a vendor contracts to sell a building entire or to sell the materials of which it is composed and to sever the build. ing from the land or tear it down and de liver the materials, it will hardly be claimed that in either case a sale of land or any interest therein is contemplated, or that an ac tion could not be maintained for a breach of the contract, because the intent of the parties in either case to contract with respect to a mere chattel is apparent.

work on Sales, lays down the rule: "That the other, from a contract to sell an entire an agreement to transfer the property in anything attached to the soil at the time of the agreement, but which is to be severed from the soil and converted into goods before the property is transferred to the purchaser, is an agreement for the sale of goods, an executory agreement." Benjamin on Sales, vol. 1, § 133. Williston says: "If the contract is to sell and deliver a house, even though the house is, at the time, affixed to the realty, it is a contract for the sale of goods, for the parties contract to buy and sell a house separated from the realty and moved from its foundations. On the other hand, if the parties attempt to make a present transfer of a building or materials fixed in a building, it is evident that they are attempting to make a sale of realty, even though it is also agreed that the subject- [3] Where the intent to sell a building as matter of the sale shall be severed in a a chattel is thus apparent from the contract short time." Williston on Sales, § 66. The and circumstances attending it, the severance Supreme Court of Massachusetts, speaking may be made by the vendee. Mashall v. in a case where the contract related to Green, L. R. 1 C. P. Div. 35, 40. The fact growing trees, said: "It may be difficult in that the vendee is to remove the building is many cases to determine, from the terms important only as bearing upon the intent of the contract, whether the parties intend of the parties in determining whether the to grant a present estate in the trees while title to the building is to pass at once or only growing or only a right, either definite or un- after severance from the realty. When the limited as to time, to enter and cut with parties to the contract have in contemplation title to the property when it becomes a chat- the sale of a building or a tree as a chattel, tel. If the former be the true construction, when it shall be detached from the land, then it comes within the statute, and must there is no good reason why a court should be in writing; if the latter, then, though not give effect to the contract as the parties wholly oral, it may be enforced." White v. understood and intended it. In such a case Foster, 102 Mass. 375, 378. There is great neither party intends that any interest in conflict in the decisions, but this is the rule the real estate shall pass. The very purpose in England and in many of our sister states. of the contract may be to rid the land of such Shaw v. Carbrey, 95 Mass. (13 Allen) 462; tree or building. Until detached from the Douglass v. Shumway, 79 Mass. (13 Gray) 498, land, the thing contracted to be sold would 502; Claflin v. Carpenter, 45 Mass. (4 Metc.) remain a part of the realty, and a convey580, 583, 38 Am. Dec. 381; Erskine v. Plum-ance of the realty to a third party would mer, 7 Me. (7 Greenl.) 447, 451, 22 Am. Dec. carry it to the purchaser. 216; Davis v. Emery, 61 Me. 140, 142, 14 Am. Rep. 553; Banton v. Shorey, 77 Me. 48, 51; Fish v. Capwell, 18 R. I. 667, 670, 29 Atl. 840, 25 L. R. A. 159, 49 Am. St. Rep. 807; Sterling v. Baldwin, 42 Vt. 306, 311; Foster v. Mabe, 4 Ala. 402, 37 Am. Dec. 749; Byassee v. Reese, 4 Metc. (Ky.) 372, 83 Am. Dec. 481; Leonard v. Medford, 85 Md. 666, 37 Atl. 365, 37 L. R. A. 449; Long v. White, 42 Ohio St. 59, 60; Slocum v. Seymour, 36 N. J. Law, 139, 141, 13 Am. Rep. 432. This is the rule early adopted in this state. Bostwick v. Leach, 3 Day, 476, 484. We think, notwithstanding the numerous opposing authorities, that this is the better rule.

[4] The implied license to enter and sever the chattel, if this was to be done by the vendee, would be revoked by such conveyance of the land, and the vendee's remedy must be against the vendor for breach of the contract.

[5] Growing crops, fructus industriales, are an exception to the rule, and may be sold and the title pass to the purchaser before severance from the soil.

In the case before us the complaint alleges that the defendant owned the dwelling house in question which it desired to have removed from its lot, and that the plaintiff purchased it with the purpose of removing it Counsel for the defendant attempted to across the street to his own lot. The de distinguish cases of contract to sell millstones fendant denies this, and by the answer alor other fixtures attached to the realty and leges that the contract was that for the $40 belonging to the owner thereof, as was the paid the plaintiff was to have the materials case in Bostwick v. Leach, or a case of con- of which the house was constructed if he tract to sell the boards and brick of which would tear down the house and entirely rea building is composed, where the vendee move the materials. This is denied in the is to remove the millstones in the one case reply. As already intimated, we think that and to tear down the building and remove the allegations of the complaint are suth

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