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after the payment thereof a re-
siduary devise, for the estate is lia-
ble to pay such debts by force of

A devise of the whole of an estate
is not a residuary devise notwith-
standing a residuary devise might
dispose of nearly the whole of the
estate, inasmuch as a residuary de-
vise of the balance after certain de-
vises have been carved out of it.

A will must be construed with
reference to the words of the
whole will taken in connection with
the circumstances at the time of the
making of the will and not with
conditions at the time of testator's

If a devise is to a class, the sur-
vivor takes. If to individuals, the
devises lapse. Therefore, where a
devise was made to testator's two
brothers and a sister individually
and the brothers die before testator
dies, the devise lapses as to them
and the law directs the disposition
of the property.

A provision in a will directing a
sale of the real estate of testator by
the executors, and that "the pro-
ceeds arising therefrom with all
from any and all sources due to me
from mortgages, bank or bills un-
paid at my death to be used in pay-
ing all before specified as my in-
debtedness and to my legatees and
the charities," constitutes an equi-
table conversion of the real estate
into personalty. Davis, In re.

A will devising the landed estate
to testator's three sons, to one about
eighty acres, to another about sev-
enty-eight acres and to the third
about eighty acrés, with the haben-
dum clause creating estates tail, to
vest upon the death or marriage of
testator's wife, is not affected or the
estates changed to fee simple by a
provision following in another part
of the will, that: "It is my will and
desire and I wish to be distinctly
understood that the preceding items
contain my last will and testament
upon this express condition, that
my now wife shall continue to be a
widow, after my decease, during
her natural life, but in case my said
wife should afterward marry, then
and in that case it is my will and
desire that all my landed estate
shall be equally divided between my
three sons and all other property

divided as aforesaid as near as the
manner pointed out in the respec-
tive items as the circumstances will
admit." Darling v. Hippel.

Where the language of a will is
such that it creates an estate tail
in lands devised, a proviso that the
devisee "shall pay all taxes which
may accrue upon said lands after
he arrives at the age of twenty-one
years," is not sufficient to establish
an intention on the part of the tes-
tator to devise such lands in fee

Under a statute requiring the pro-
bate court to set out the testimony
and proof in admitting wills to pro-
bate, the failure to do so, while
irregular, does not make the pro-
ceeding a nullity; and where the
court had jurisdiction the proceed-
ing cannot be collaterally attacked.
Section 5915, Rev. Stat., providing
that if any testator die having issue
of his body, or an adopted child, liv-
ing, bequests to religious, educa-
tional or charitable purposes within
a year of testator's death shall be
void, extends to all whom the law
classes as issue and is not limited
to those who are issue in fact.
Therefore, as to children designated
as heirs at law, by proceedings in
the probate court, under Sec. 4182,
Rev. Stat., such bequests are void.
Fugmann v. Theobald.
A bequest to the pastor of
Roman Catholic church "for the say.
ing of masses for the repose of my
soul and the soul of my husband,"
are not within Sec. 5915, Rev. Stat.,
as being to benevolent, educational
or charitable purposes.



The mere repetition of questions
and answers asked and answered
in the cross-examination of the
plaintiff, in his re-examination, can
not be held prejudicial. Thompson
V. Ackerman.

Permitting a witness to be re-
called and to again testify is a mat-
ter within the discretion of the trial
judge, which, if not abused to the
prejudice of the defendant, is no
ground for reversal. C. & M. V. Ry.
Co. v. Thompson.

The right of counsel of a party,
called at the instance of an adverse
party under Sec. 5243, Rev. Stat.,
authorizing the examination of

Witnesses-Wrongful Death.

party as if under cross-examina-
tion, is only what it would be if the
party was being cross-examined in
the ordinary way, and gives him no
right to cross-examine and put
questions to the witness as if he were
the witness of the party calling him.
Simon v. Mooney.

In an action by a guardian to re-
cover the value of notes obtained
by defendant from a former guar-
dian, where the latter proves an
unwilling witness for plaintiff, and
states in his examination in chief
that he gave the notes to defendant
as collateral security for money that
he personally owed him, and on his
cross-examination testified that he
sold the notes as guardian to defend-
ant, it is competent for plaintiff on
re-examination of witness to prove
by him that he had made contra-
dictory statements before the trial.
Mustill v. Thornton.


In such case, it is competent for
plaintiff to ask such witness on re-

examination questions tending to
show that his testimony on cross-
examination, of having sold the
notes as guardian to defendant, was
not true, and a paper signed by wit-
ness tending to prove this, is admis-

Such examination afford valuable
aid in judicial investigations and is
competent for the purpose of prov-
ing the conscience of a witness, re-
freshing his recollection and giving
him an opportunity of correcting
his testimony and explaining his
apparent inconsistency. And in
case at bar the evidence is admis-
sible as substantive evidence of
facts in issue.


See also PLEADING.

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