127. An instruction which is accurate and complete on one part of the law of a case is not erroneous because not coupled with an instruction equally as accurate and complete on another phase of the case. Stull v. Stull, 1 Unoff. 380, 389, 399; 96 N. W. R. 196.

4786

40. A county judge has jurisdiction to try causes arising under ordinances of a village in which a county seat is situated. Opinions Atty. Genl. 1902-3, 238.

41. A county judge has the same power in the taking of depositions as a notary public, and may punish a witness for refusing to answer or to be sworn. Olmstead v. Edson, Neb. -; 98 .N. W. R. 415.

42. A county court has jurisdiction, within the statutory limit of amount, in actions to recover damages for breach of covenant against incumbrances. Brass v. Vandecar, Neb.; 96 N. W. R. 1035.

43. An action against a notary for malicious prosecution in punishing a witness for refusing to answer must show that the officer was without jurisdiction, or that the evidence sought to be elicited from the witness was of such a nature as to justify his refusal to testify. Olmstead v. Edson, Neb.; 98 N. W. R. 415.

44. A probate court is without jurisdiction to try and determine the title to real estate. Best v. Gralapp, Neb.; 99 N. W. R. 837.

4787

12. The county court has jurisdiction to assign dower only when the right is not disputed by the heirs and devisees, or any person claiming under them, in either case the district court has jurisdiction. Swobe v. Marsh, Neb. -; 102 N. W. R. 619.

13. Where an administrator, without leave of the court, transfers a note, receiving the full value therefor, and such transfer is afterwards approved by the county court, the purchaser takes a good title. Holt v. Rust Owen Lum. Co., 2 Unoff. 170; 96 N. W. R. 613.

25. Where, after appeal in an action for conversion, the plaintiff pleads facts affecting his title, inconsistent with those pleaded in the lower court, but the same conversion of the same property is alleged, the cause of action stated is the same, though there is a departure as to the issues presented. Epply v. Lovell, Unoff. -; 97 N. W. R. 1027.

26. A judgment of the district court dismissing an appeal from the county court approved. Miller v. Walker, Neb.; 101 N. W. R. 332.

27. Every probate order is not equitable in its nature and appealable. Peard v. O'Niell, Neb. -; 97 N. W. R. 22. 28. Where, in the county court, defendant interposed a defense of an account stated, and on appeal to the district court attempted to amend his answer by including the defense of accord and satisfaction, held, the latter plea to be a new ground of defense not pleaded in the court below. Bankers Union v. Favalora, Neb.; 102 N. W. R. 1013.

29. Petition in district court on appeal from disallowance of a claim held to be merely a more complete statement, and not to state a different cause of action. Devries v. Devries, Unoff. -; 97 N. W. R. 590.

4817

2. The signature of the county judge is not essential to the validity of a judgment admitting a will to probate. Beer v. Plant, 1 Unoff. 372; 96 N. W. R. 348.

4823

16. Judgments of the district court on appeal from the probate side of the county court can cnly be reviewed in error. Consent can not give the supreme court jurisdiction by appeal. Boales v. Ferguson, 2 Unoff. 172; 96 N. W. R. 337.

17. An order denying the right to file a claim against an estate is a final order and appealable. In a hearing upon such appeal

11. Where a testator devised lands in fee to his wife, in lieu of dower and of her distributive share, which at the time were free from incumbrances, but were afterwards encumbered by him, and the mortgagee did not prove his claim against the estate, but the executor paid such incumbrance, held that his action was proper. Patrick v. Patrick, Neb. -; 100 N. W. R. 939.

12. Right to foreclose against dower interest not used in the foreclosure suit can not be enforced after many years. Dubois v. Martin, Neb.; 99 N. W. R. 267.

13. When the facts upon which the dower right depends are not in dispute, the county court has jurisdiction to assign the dower. Tyson v. Tyson, Neb. -; 98 N. W. R. 1076.

14. An unassigned dower interest in land is not the subject of a leasehold contract conveying an interest in land. Jackson v. O'Rorke, Neb.; 98 N. W. R. 1068.

4908

2. To constitute an advancement it is necessary either that the ancestor express in the gift or grant that it be an advancement, or that he charge it in writing as an advancement, or that the recipient acknowledge it in writing as an advancement. Lodge v. Fitch, Neb. -; 101 N. W.

R. 338.

4946

2. An application by an administrator to sell real estate is not an action in equity but a special proceeding, and where no motion for a new trial was filed the supreme court will in error examine the sufficiency of the pleadings to sustain the judgment. Bixby v. Jewell, Neb. -; 101 N. W. R. 1026.

4948

-

2. A homestead of less value than $2,000 can not be disposed of at administrator's sale either for the discharge of incumbrances thereon, or for the payment of debts against the estate of the decedent. A license granted for that purpose is

3. Dealings of an administrator with an heir of his intestate will be scrutinized carefully. If the transaction is in good faith, and wholly without fraud it may be treated as similar transactions between strangers. Shelby v. Creighton, 2 Unoff. 264-267; 96 N. W. R. 382.

4. A sale of land to one who purchases for the guardian and at once conveys to him for the same consideration, is absolutely void except as to innocent purchasers. The fact that the proceeds of the sale are used for the support of the wards does not make the purchase one for their benefit within the meaning of this section. Cooper v. Burns, 133 Fed. R. 398.

4989

13. Incorporation of estates by testators, trustees, executors, or heirs. 57 C. L. J. 61.

14. Can a gift causa mortes be made in contemplation of suicide? 57 C. L. J. 41. 15. A remainder in fee may be limited to the heirs at law of one to whom by the same instrument is given the precedent freehold. Albin v. Parmele, Neb. -; 98 N. W. R. 29.

16. Where a testator devises land to his daughter in fee simple, a subsequent clause in his will by which he attempts to devise over to others so much of the land as his daughter has not alienated during her lifetime, if she dies without living issue, is void. Spencer v. Scovil, - Neb. -; 96 N. W. R. 1016; 98 N. W. R. 843.

17. Where a testator devised lands in fee to his wife, in lieu of dower and of her distributive share, which at the time were free from incumbrances, but afterwards were encumbered by him, and the mortgagee did not prove his claim against the estate, but the executor paid such encumbrance, held that his action was proper. Patrick v. Patrick, Neb.

100 N. W. R. 939.

18. The mere misnomer of a legatee or devisee does not render the gift void, if from the context of the will or proof outside the instrument it can be ascertained who was actually intended. If a devisee is not designated in the will by his proper name he may also show that he is known by the name used in the will. Where there are two devisees of the same name as that used in the will, evidence will be heard to determine which one was intended. Second Pres. Church v. First Pres. Church, Neb. -; 99 N. W. R. 252.

Neb.

4991

1. Married woman may dispose of real estate by will. 10243.

2. Revocation of will of unmarried woman by her marriage. Paper by D. R. N. Blackburn, 52 C. L. J. 145.

the purpose of administration and settlement of estates only, and does not affect controversics between adverse claimants under the devise. Andersen v. Andersen, Neb. -; 96 N. W. R. 276.

8. Mere declarations of a testator subsequently to the execution of a will are not evidence, in a contest of the will on the sole ground of undue influence, of any fact as to the existence of such influence stated in them. In the absence of independent proof of undue influence, where the sole issue is as to its existence, such declarations are not admissible for any purpose. Davidson v. Davidson, 2 Unoff. 510; 96 N. W. R. 409.

9. Declarations of the testator are competent evidence on an issue whether a will was made, but will not suffice, of themselves, to prove its contents. Williams v. Miles, Neb.; 96 N. W. R. 151.

10. Declarations and admissions of a want of legal capacity of the testator can only be shown when made by a sole legatee under the will; but the declaration of one who is an executor, and not a sole legatee, are not admissible as against the rights of the other legatees. Stull v. Stull, 1 Unoff. 380, 389, 399; 96 N. W. R. 196.

11. No belief that has any evidence for its basis is in law an insane delusion. Stull v. Stull, 1 Unoff. 380, 389, 399; 96 N. W. R. 196.

12. The prima facie showing of mental capacity of a testator, made by the testimony of the witnesses to the will, is not overcome by proof that the testator' was old, feeble in health, and almost blind, and that his mind was not SO strong as formerly. Stull v. Stull, 1 Unoff. 380-389, 399; 96 N. W. R. 196.

13. It is not error for the court to refuse to instruct that the mere fact that the proponent had a chance to influence the testator raises a presumption of undue influence. Stull v. Stull, 1 Unoff. 380, 389, 399; 96 N. W. R. 196.

14. An instruction in effect to find for contestants if the testator made the will only to keep peace in the family is prejudicial error, the only issue being as to undue influence. Davidson v. Davidson, 2 Unoff. 510; 96 N. W. R. 409.

15. Influence, to vitiate a will, must be such as to amount to force and coercion, destroying the free agency of the testator, and there must be proof that the will was obtained by this coercion; and it must be shown that the circumstances of its execution are inconsistent with any hypothesis but undue influence, which can not be presumed, but must be proved, and in connection with the will, and not with the other things. Stull v. Stull, 1 Unoff. 380, 389, 399; 96 N. W. R. 196.

16. Where no trust is created, neither the executor nor the heirs or devisees, who claim only a legal title in the estate, will be permitted to come into a court of equity for the purpose of obtaining a judicial construction of the provisions of a will. Where only purely legal titles are involved, equity will not assume jurisdiction to declare such legal titles, but wili remit the parties to their remedies at law. Andersen v. Andersen, Neb.; 96 N. W. R. 276.

17. When a subsequent will is lost or can not be produced it is competent to prove by parol that it contained a clause revoking the former will. If a prior will is produced for probate by a beneficiary thereof whose testimony is that he found it among the effects of the deceased, but did not find a later one which the evidence shows it would plainly be to his interest to destroy, it will not be presumed that the testator himself destroyed the later will. Williams v. Miles, Neb. ; 102 N. W. R. 482.

18. Recent cases construing wills involving disinheritance of heirs or children, collated. 52 C. L. J. 231.

9. The essential averments in a petition for administration are that the person died intestate, and was at the time of his death a resident or inhabitant of the county where the petition is filed, or if a non-resident that he left an estate in such county. Larson v. U. Pac. R. Co., - Neb. -; 97 N. W. R. 313.

10. Administration can not be granted upon the estate of a non-resident merely to enforce a claim for taxes levied against a partnership in which he was a member in a county other than the one where the administration proceedings were begun. Taxes are not debts in the ordinary acceptance of the term. Board of Comrs. v. Furay, - Unoff.; 99 N. W. R. 271.

5043

11. If the note when executed is by agreement of the parties delivered to a third person, to be by him delivered to the payee upon the performance of a condition precedent, and the condition is performed after the death of the maker of the note, the delivery becomes complete by the performance of the condition. Gandy v. Bissell's Estate, - Neb.; 100 N. W. R. 803. 12. The heirs of an insolvent estate can not prosecute an action in their individual capacity to recover newly discovered assets of the estate until the debts and costs of administration have been paid. The allowance of a claim against an insolvent estate is not a judgment which becomes dormant by lapse of time as against newly discovered assets of such estate. Newly discovered assets of an insolvent estate are a trust fund in the hands of an administrator for the payment of debts and costs of administration, and do not descend to the heirs and distributees until such claims are paid. Sharp v. Citizens' Bank, - Neb. ; 98 N. W. R. 50.

5083

2. The discretionary power of the county court to extend time for filing claims can not be exercised arbitrarily, but leave should be granted in a proper case. An order refusing an extension of time is a final order and appealable. Ribble v. Furmin, Neb. ; 98 N. W. R. 420.

5125

1. A contingent claim does not become absolute within the meaning of the decedent's act until it becomes a claim proper to be presented to the county court for final adjudication as a claim against the estate. Hazlett v. Blakely, Neb.; 97 N. W. R. 808.

5142

1. The fact that a stock of hardware belonging to an estate is alleged to have been traded by the plaintiffs, as executors, for real estate, does not prevent the vendees getting title to the hardware stock delivered to them by the executors. The vendees of the hardware, having got title to the goods, are liable to an action for damages by reason of fraud used in getting the goods, if the executors elect to affirm the contract and sue for such damages. Edney v. Baum, Neb. -; 97 N. W. R. 252.

5144

---

1. Where an executor in good faith expends money in an honest effort to prosecute a claim in the favor of his estate he is entitled to recover for such expenses,