after the payment thereof a re- siduary devise, for the estate is lia- ble to pay such debts by force of law. Ib.
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. Ib.
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 death.
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 acres, 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 during widow, after my decease,
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
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 754 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 simple. Ib.
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. 720 Fugmann v. Theobald.
A bequest to the pastor of a 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.
See also DoWER; ESTATES TAIL. WITNESSES-
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. 456
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. 326 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. 73
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- sible. Ib.
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. Ib.
WORDS AND PHRASES- See WILLS.
WRONGFUL DEATH-
See also PLEADING.
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