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who take and hold as purchasers directly , constituted heirs. Held, that the term “lawfrom testator. Smith v. Ellington-Guy Tim fully constituted heirs” was merely a tautober Co., 71 $. E. 445, 446, 155 N. C. 389. logical way of referring to his lawful heirs Under a will giving all the testator's
at his death; and that the grantee took a land to his son for life with remainder to
life estate, with remainder to those who his "lawful heirs born of his wife," the son
the son should comprise the class known as the gran. did not take a fee under the rule in Shel- tee's heirs at his death. Bradley V. Goff, ley's Case so as to give his widow a dower | 147 S. W. 1012, 1014, 243 Mo. 95. therein. The words "born of his wife," qual A testator gave his wife, for life, all of ifying and explaining his “lawful heirs," his estate, and provided that after her death confining the remainder to the children of his it should go to his eldest daughter for life. wife, and preventing the operation of the He then declared that after the daughter's rule. The superadded words show that the death such portion of his estate as might devisor intended to make the words "law- remain should be equally divided between ful heirs" designatio personarum; that is, his lawful heirs. Held, that the testator they show an intention on his part to limit meant by the term "lawful heirs" those perthe remainder over to a particular class of sons who at his death were entitled to inheirs. Thompson v. Crump, 50 S. E. 457, 138 herit his intestate real estate. In re CowN. C. 32, 107 Am. St. Rep. 514.
ley's Will, 97 N. W. 930, 931, 120 Wis. 263. Testatrix adopted defendant in 1890, but,
LAWFUL ISSUE aside from recording of the deed, no public recognition of the relationship appears, testa
See Die Without Lawful Issue Survivtrix having assumed no authority over de
ing. fendant who continued to reside with her The term “lawful issue" is not a techninatural parents and other relatives until her cal term, and when used in a deed does not marriage. In 1905 testatrix made a will giv- necessarily bring the deed under the rule in ing defendant, who was designated "my Shelley's Case, like the word "heirs," which young friend," $100. After various other is always a technical word, necessarily bringdispositions, the will provided that the resi- ing the deed under the rule regardless of indue of the estate should go to testatrix's tention. Hopkins v. Hopkins, 114 S. W. 673, "lawful heirs,” excepting specified nephews. 676. Held, that defendant is not entitled to share under the residuary clause. Warden vil
As children born in wedlock Overman, 135 N. W. 649, 652, 155 Iowa, 1.
After death of testator and probate of
his will, devising land in New York to B. for Where a testator devises a parcel of real
life, and on his death to his “lawful issue," estate to his son for life with remainder to
Acts Mich. 1881, p. 48, No. 55, and Laws N. his lawful heirs, and the son marries after
Y. 1895, p. 313, c. 531, declaring that the the death of the testator, held, that upon the
subsequent marriage of the parents shall death of the son, the wife takes as heir,
legitimatize their children previously born, where there is nothing in the will tending to
were passed. Prior to either act, and while show that the testator used the words "law
B. had a lawful wife, M., by whom he had ful heirs" in a different sense from their strict technical import. Miller v. Miller, 29
children, he had children by another woman,
S., and, after enactment of the Michigan Ohio Cir. Ct. R. 451, 451.
act, he, in an action in that state in which In a devise to the testator's grandson of jurisdiction was not acquired of M., a resia tract of land, and if he should die without dent of New York, and on grounds not recog"lawful heirs of his body" then to the tes-nized by the laws of New York for divorce, tator's granddaughter, does not limit the es obtained a decree of divorce; and theretate of the grandson to a life estate where after in Michigan there was a marriage cerehe had heirs of his body, but merely creates / mony between him and S. Subsequently, in a conditional estate in the granddaughter an action in New York by M. against B, for by way of executory devise or shifting use. separation, there was a decree establishing Sessoms v. Sessoms, 56 S. E. 687, 688, 144 the fact that M. was still the wife of B., notN. O. 121 (citing Smith v. Brisson, 90 N. C. withstanding the Michigan decree. Held, 284; Morrisett v. Stevens, 48 S. E. 661, 136 that B.'s children by S. were not entitled to N. C. 160; Jones v. Ragsdale, 53 S. E. 842, take under the will. Olmsted v. Olmsted, 141 N. C. 200; Whitfield v. Garris, 42 S. E. 83 N. E. 569, 190 N. Y. 458, 128 Am. St. Rep. 568, 131 N. C. 148, reaffirmed in 45 S. E. 904, 585. 134 N. C. 24; criticising Bird v. Gilliam, 28 8. E. 489, 121 N. C. 328; Da Son v. Quin
Under the rule that, where statutes can
reasonably be construed to avoid conflict, nerly, 24 S. E. 483, 118 N. C. 188; Thompson V. Crump, 50 S. E. 457, 138 N. C. 32, 107
that construction must be adopted. Civ.
Code Cal. § 1388, providing that when an illeAm. St. Rep. 514).
gitimate child, who has not been acknowlA grantor executed a deed to his son, edged or adopted by his father, dies intestate granting the property to him during his natu- without lawful issue, his estate goes to his ral life, and at his death, then to his lawfully mother, or in case of her decease to her heirs
at law, and section 1387, providing that every | The primary meaning of "lawful issue illegitimate child is an heir to the person is descendants, and, in the absence of the use who, in writing signed in the presence of a of the words in a will in another sense, it competent witness, acknowledges himself to will be so construed. Under a residuary be be the father of such child, and in all cases quest to testator's stepmother and half-sister, is an heir of his mother, and inherits his or in equal portions, and, in the event of either her estate, in whole or in part, as the case dying without issue, the share of the one so may be, in the same manner as if he had dying to the survivor, the stepmother dying been born in lawful wedlock, will be held before testator, he does not die intestate as not to be in conflict in the case, where both to the share given, but there is an implied the mother and child are illegitimate, on the bequest of it to her issue. In re Disney's ground that section 1387 makes the child the Will, 103 N. Y. Supp. 391, 392, 118 App. Div: heir of his mother, while section 1388, takeit 378 (quoting and adopting definition in New alone, excludes him, but section 1387, which York Life Ins. & Trust Co. v. Viele, 55 N. has to do solely with the right of illegiti. E. 311, 161 N. Y, 11, 76 Am. St. Rep. 238: mates to inherit, will be construed as appli- Chwatal v. Schreiner, 43 N. E. 166, 148 N. Y. cable only to inheritance by an illegitimate 683). from a parent who is legitimate, or, for purposes of inheritance, the illegitimate child
Under a will, establishing a trust fund by reason of section 1387 is to be held to be
for the benefit of a daughter of the testawithin the terms "lawful issue," as that term
trix during her life, and directing that on is used in section 1388. In re De Cigaran's
her death the principal be paid to her then Estate, 89 Pac. 833, 835, 150 Cal. 682.
"lawful living issue,” the term "lawful living
issue" does not include an adopted daughter. Where the father of defendants at the
In re Hopkins, 89 N. Y. Supp. 467, 468, 43 time of their birth was the lawful husband
Misc. Rep. 464 (citing New York Life Insurof another woman than their mother, but
ance & Trust Co. v. Viele, 55 N. E. 311, 161 thereafter, in Michigan, obtained a divorce
vorce N. Y. 11, 76 Am. St. Rep. 238). legal in that state, though not in the state of New York, and married their mother there Where testator by will devised his propby establishing their legitimacy in that state, erty in trust for his wife, on her death to be under Act Mich. March 28, 1881 (Pub. Acts divided among his lawful issue, and gave 1881, p. 48. No. 55), they are entitled in New the same to the persons entitled to the other York to take under a devise to "the lawful half of bis residuary estate, and by a clause issue" of their father. Olmsted v. Olmsted, disposing of such half testator provided that 102 N. Y. Supp. 1019, 1020, 118 App. Div. 69. it should go to the lawful issue of his children
or to his lawful issue per stirpes and not per A will, dated and which took effect in
capita, it was the intent of the testator to 1872, gave property in trust for the testator's
limit the phrase "lawful issue” in the first son, with remainder to his "lawful issue.”
* clause to the lawful issue of his children, or The son was then married and had children.
to his lawful issue. Inglis V. McCook, 59 After the death of his then wife, he married
| Atl. 630, 633, 68 N. J. Eq. 27. the mother of certain illegitimate children. Laws 1895, c. 531, providing that illegitimate "The words 'lawful issue,' when used in children whose parents had thevetofore inter- a domestic will, primarily and generally married or should thereafter intermarry mean descendants. Where there is nothing should thereby become legitimatized. Held, to the contrary to be found in the context of that the illegitimate children were not enti- the instrument, or in extraneous facts proper tled to share in the remainder, since, while to be considered, that is the sense in which all children, whether legitimate or not, are they are presumed to be used. The real questhe “issue" of their parents, that word, when tion * * * is whether the testatrix used qualified by the adjective "lawful,” which is them in that sense or in some other sense. the antithesis of unlawful or illegitimate, is in giving construction to the words used by ordinarily understood to mean those only be- the testatrix in a domestic will, we cannot gotten and born in lawful wedlock, and it assume, without the clearest evidence, that cannot be assumed that the testator consid- she used the words 'lawful issue' in the sense ered the contingencies of the birth of illegiti- they might possibly bear under the laws of mate children, the enactment of a statute by a foreign country in which she died." In re which they might be legitimatized, and the Tenney, 93 N. Y. Supp. 811, 818, 104 App. marriage of their parents. Central Trust Co. Div. 290 (quoting and adopting definition in of New York v. Skillin, 138 N. Y. Supp. 884, New York Life Ins. & Trust Co. v. Viele, 55 886, 154 App. Div. 227.
N. E. 311, 161 N. Y. 19, 20, 76 Am. St. Rep. As descendants
238) The words "lawful issue, if any, of the
Testator's will directed that his estate be body,” mean lineal descendants, taking by divided into as many parts as he had chilright of representation per stirpes. Union dren, the income of each part to go to a Safe Deposit & Trust Co. v. Dudley, 72 Atl. child for life, and upon the child's death the 166, 169, 104 Me. 297.
part to be divided among the “lawful issue". of the child. At the time the will was exe-, carrying "lawful merchandise.” Dene Shipcuted several of the testator's children were ping Co. v. Tweedie Trading Co., 143 Fed. married and had children. Held, that the 854, 855, 74 C. O. A. 606. daughters of a deceased daughter and a grandchild of such daughter took equally un
laughter took equally un- LAWFUL MONEY der the clause "lawful issue"; that phrase See Lawful Currency. being equivalent to "descendants." Phelps v.
The term "lawful money," in an indictCameron, 96 N. Y. Supp. 1014, 1016, 109 App.
APP: ment charging “larceny" of certain money Div. 798.
being "lawful money" of the United States, Testator gave one half of his residuary means money as commonly understood and estate to trustees for the use of his wife for includes bank notes. State v. Finnegean, 103 life, and on her death to divide the same N. W. 155, 157, 127 Iowa, 286, 4 Ann. Cas. 628. among his lawful issue, or to trustees for
“Lawful money" means money which their use as his wife should direct by will.
passes from hand to hand and from person In default of such will, he gave the same to
to person and circulates through the compersons then entitled to the other half of his
munity, and is synonymous with "current residuary estate, to be distributed and held
money.” Lawful money is that which is usuon the same trusts and in the same propor
ally used as a medium of exchange. State v. tions as were mentioned in another clause of
Quackenbush, 108 N. W. 953, 955, 98 Minn. his will. Held, that the term “lawful issue"
515. includes not only children but descendants. Inglis v. McCook, 59 Atl. 630, 635, 68 N. J.
LAWFUL OBSTRUCTIONS Eq. 27.
Although the grass plats and shade Where the phrase "lawful issue" is used trees along the sidewalk may be "obstrucIn a will, if it clearly appears that it was tions,” yet when ample width is left to anused in a particular meaning, the phrase may swer the demands of travel they are obstrucbe restricted to children then living, or to tions that serve a useful purpose and are not children then living and to the representa-inconsistent with the object for which streets tives of any deceased child. Inglis V. Mc-lare made and maintained. Like a fence Cook, 59 Atl. 630, 635, 68 N. J. Eq. 27. hydrant, a hitching post, telephone or tele
Testator gave property to trustees in graph poles, they are “lawful obstructions." trust, with directions to pay the net income and a wire stretched around a grass and tree to his three children for life; the trust to plat in a street for the protection of the plat continue as long as any of the children lived. is not such an obstruction as to render the He provided that, if any of his children should city liable for injuries received by one who die without lawful issue, the surviving chil. tripped and fell over such wire; the wire dren should have his share, and if any of
being in plain sight of pedestrians passing the children should die, leaving lawful issue,
along the street. Teague v. City of Bloomthe child so surviving should take the share ington, 81 N. E. 103, 104, 40 Ind. App. 68 of the income which the deceased parent (citing Lostutter v. City of Aurora, 26 N. E. would have taken, had he survived, and on | 184, 126 Ind. 436, 12 L. R. A. 259; City of the termination of the trust the property Vincennes v. Spees, 74 N. E. 277, 35 Ind. App. should vest in the surviving lawful issue of 389; Weinstein v. City of Terre Haute, 46 testator's children. Held, that words "lawful N. D. 1004, 147 Ind. 556). issue" meant children, and included only the lawful children of testator's children in be- LAWFUL ORDER ing at the time of their death. Brisbin v. Interstate Commerce Act, 8 16, relating Huntington, 103 N. W. 144, 147, 128 Iowa, to the authority of a commerce commission, 166, 5 Ann. Cas. 931.
I provides with respect to proceedings at law
in a Circuit Court of the United States in As words of purchase
case of the disregard of a "lawful order” of The words "lawful issue" in a deed are the com
the commission, the finding of facts of the words of purchase and not of limitation. La
commission shall be prima facie evidence of cey v. Floyd, 87 S. W. 665, 667, 99 Tex. 112.
the matters therein stated. The court says Where a deed conveyed land to the gran. that the phrase "lawful order" implies more tee and his wife and to the legitimate heirs than the exercise of mere jurisdictional powof the grantee, and in case of no "lawful er or authority. "The words 'lawful order issue" then over, the words "lawful issue" mean an order the commission has jurisdicmean legitimate heirs and are words of pur- tion to make. An order may be lawful and chase. Lamb v. Medsker, 74 N. E. 1012, 1013, at the same time erroneous, so that if the 35 Ind. App. 662.
commission made an order in a matter over
which they had judisdiction, which was LAWFUL MERCHANDISE
merely an error of judgment as to precisely Asphalt is "lawful merchandise" in as the degree of reparation, for instance, the charter for West Indian trade, which pro- carrier ought to make, the order would still vides that the vessel shall be employed in'be lawful.” Western New York & P. R. Co.
v. Penn Refining Co., Limited, of Oil City, | Under County Government Act Cal. 1897 Pa., 137 Fed. 343, 352, 70 C. C. A. 23.
(St. 1897, p. 458) $ 25, subd. 35, authorizing
a board of supervisors to grant franchises LAWFUL POSSESSION :
along and over the public roads and highIn St. 1907, p. 999, c. 538, § 2, providing
ways for all “lawful purposes," upon such that the owner or other person in the lawful
terms and conditions as in their judgment possession of land may recover damages by
may be necessary and proper, the authority trespassing animals from the owner or per
of the board has relation to the purposes for son chargeable with the care of such ani
which a highway is dedicated, and is limited mals, the words "lawful possession" mean
by the uses, primary and incidental, to only peaceable or quiet possession, contradis
which under the law a highway is devoted; tinguished from possession which is not
the "lawful purpose" must be consistent merely constructively tortious, but actually
with the character and in furtherance of SO. Fisch v. Nice, 106 Pac. 598, 599, 12 Cal.
the design of the easement which the public
has in and to the highways. The only right App. 60.
which the public has in and to the highways LAWFUL PURPOSE
is to use it for the purpose of traveling over
it without obstruction or interference; and County Government Act 1897 (St. 1897, the control which the board of supervisors p. 466) § 25, subd. 35, authorizes county su
can lawfully exercise must have in view the pervisors to grant franchises over the public promotion of that use, and cannot extend be. roads and highways for all “lawful pur- yond whatever is necessary to facilitate poses" on such terms and conditions as, in
travel. A grant by a county board of supertheir judgment, may be necessary and prop- visors of a franchise to erect poles and string er, and in such manner as to present the
electric wires thereon, along and over the least possible obstruction and inconvenience
| public highway of a county for the purpose to the traveling public. Held, that the words of lighting the highway, is an incident to "lawful purposes," as so used, should be con- ' the contemplated use of such highway. strued as limited to purposes in aid of the is for a "lawful purpose," and it is immatepublic's easement of travel, something which rial that the lighting was in part used for would promote the public comfort and con- | private purposes. Gurnsey V. Northern Cal. venience in the use of the highway; and lifornia Power Co..
ifornia Power Co., 94 Pac. 858, 860, 7 Cal. hence such act did not authorize a county | App. 534. board of supervisors to grant a franchise to
The words “lawful purposes," in the an electric power company to erect its power line along a highway, the title to the soil of
New York statute providing that no corpowhich is not in the abutting property owners,
ration shall issue either stock or bonds exfor the primary purpose of furnishing light
cept for money, labor, or property actually and power to private individuals, without
received for the use and lawful purposes of rendering compensation to such abutting
such corporation, are general in character, owners. Gurnsey v. Northern California
but would seem to mean such property as Power Co., 117 Pac. 906, 909, 160 Cal. 699,
would be germane to, or connected with, the
business purposes of the corporation, as de36 L. R. A. (N. S.) 185.
fined in its charter or articles of incorpora. The payment of a debt by a county tion. Corporate bonds cannot be issued for which the Legislature has authorized is a the consideration of a note which is never "lawful purpose,” for the issuing of bonds collected. In re Waterloo Organ Co., 134 as authorized by County Law, § 12 (Laws Fed. 341, 343, 67 C. C. A. 255. 1892, p. 1746, c. 686), giving to boards of supervisors the power to borrow money on | LAWFUL REASONS the credit of the county. County of Ontario See Good and Lawful Reasons. v. Shepard, 91 N. Y. Supp. 611, 614, 100 App. Div. 200.
LAWFUL RESTRAINT A “awful purpose" which will excuse
Where a bank which paid money into one for carrying a concealed weapon is "a
the state treasury as taxes, supposing that it
had the right to do so, in lieu of county and lawful purpose that was specific, and, in a sense, temporary. For example, if a person
city taxes, delayed for more than two years should buy a deadly weapon at a store, and
to make application to the auditor to issue.
his warrant for the repayment of the money, put it in his pocket for the purpose of taking
relying upon a decision of the Court of Apit home; or if a person should find a deadly
peals to the effect that such payments by weapon, and place it in his pocket for the
other banks similarly situated were proper, purpose of keeping it only till he could re
it lost the right to demand such a warrant, store it to the owner, or make some other though that decision was overruled after the disposition of it--such person would not be lapse of the two years, as the decision was carrying a deadly weapon concealed within not a' "awful restraint,” within Ky. St. $ the meaning of said act." State v. Iannucci 2544, providing that, in all cases where the (Del.) 55 Atl. 336, 337, 4 Pennewill, 193. doing of an act necessary to saye any right
or benefit is restrained or superseded by in- , forceable as a contract to lease; the words junction or other "lawful restraint," the “lawfully authorized" in paragraph 2696 not time covered by the injunction or restraint meaning an authorization in writing. Murshall not be estimated in the application of phey v. Brown, 100 Pac. 801, 804, 12 Ariz, any statute of limitations. Bank of Com- 268. merce of Louisville v. Stone, 56 S. W. 683, 684, 108 Ky. 427.
See Heirs Lawfully Begotten. LAWFUL RESTRICTIONS
The “awful restrictions" authorized by LAWFULLY CLAIMING POSSESSION P. L. 1893, p. 302 (Gen. St. p. 3235), providing Civ. Code, & 1927, provides that agree for the granting of a location for street rail- ments of letting upon hire bind the letter to way tracks subject to restrictions, refer to secure to the hirer the quiet possession of restrictions that are to be made in the inter- the thing hired during the term of the hiring est of the public and indicate a legislative against all persons lawfully claiming the act in granting a location. An ordinance same. Defendant on August 29, 1906, leased granting a location may contain restrictions to plaintiff for 22 months, to commence Janin the form of covenants requiring the street uary 21, 1907, certain land. P. A. was in railway company to pave the streets in which possession of the land under lawful lease the tracks are laid, and such restrictions are from the owners, and it was determined in obligatory on any subsequent purchaser of litigation to oust him that he was entitled to the street railway tracks and franchises, possession until March 6, 1907. Plaintiff had even without an express assumption. Bor- been a tenant of P. A. but his lease expired ough of Rutherford v. Hudson River Trac- | in November, 1906, but he was permitted by tion Co., 63 Atl. 84, 88, 73 N. J. Law, 227. P. A. to occupy a house but instructed by P.
| A. not to farm the land. He did farm the LAWFUL USE
land and gave defendant his share of the An instruction, in an action for the crops as rental under the lease commencing death of an automobilist struck by a car, January 1, 1907. During January and Febthat the street railway company must use ruary, 1907, P. A.'s cattle got upon the land reasonable care to operate its cars on public and did damage to the plaintiff's crop. Held, streets with regard to "the lawful and custo- | that plaintiff was entitled to damages from mary use" of the streets by others, and that defendant as for breach of the implied coveif, at the time decedent was killed, the com nant for quiet enjoyment, as P. A.'s act was pany was not operating the car with regard the act of one lawfully claiming possession. to "the lawful and customary use" of the Agoure v. Lewis, 113 Pac. 882, 884, 15 Cal. streets, but negligently operated the car, it | App. 71. was liable, is not erroneous as referring to the extent of travel, of which there was no LAWFULLY NATURALIZED evidence, but refers to the use of the street In Rev. St. & 1994, providing that any by the public; the word “lawful" meaning | woman married to a citizen of the United according to law as distinguished from an States, and who might herself be lawfulunlawful use and the word "customary" ly naturalized, shall be deemed a citizen, the meaning according to usage and referring to clause "who might herself be lawfully natthe mode of using the streets. Smiley v. uralized" limits the section to a woman East St. Louis & S. Ry. Co., 100 N. E. 157, lawfully within the country, her own capac158, 256 III. 482.
ity independent of her marital status, being
essential to citizenship; so that where an LAWFUL WEDLOCK
alien married woman was not entitled to See Same as Lawful Wedlock.
enter the country under the immigration reg
ulations, because of a contagious disease, the LAWFULLY AUTHORIZED
naturalization of her husband would not Under Civ. Code 1901. pars. 721. 725. make her a citizen entitled to enter, under 732, 2696, providing that no estate in land
the statute. In re Rustigian, 165 Fed. 980, for a term of more than one year shall be conveyed, except by an instrument in writing
LAWYER subscribed by the party, “or by his agent thereunto authorized in writing," prohibiting
As laborer, see Laborer. actions on any lease for more than one year,
As learned in the law, see Learned in unless in writing and signed by the party to
the Law. be charged, “or by some person by him
As member of learned profession, see thereunto lawfully authorized," a lease for
Learned Profession. more than a year, signed by one of the par A "lawyer" is one skilled in the law, ties and by a person verbally authorized by while an "attorney” is an officer in a court of the other party, but not acknowledged by justice who is employed by a party in a either, is not a valid lease, but is not within cause to manage it for him. A law student the prohibition in paragraph 2696, and is en-'fresh from his school and not a licensed of
3 Wps.& P.2D SER.-4