v. H. N. Leighton Co. 113 Minn. 373, 129 N. W. 767,) unless he knew, or was chargeable with knowledge that his employer had not performed this duty. Anderson v. C. N. Nelson Lumber Co. 67 Minn. 79, 82, 69 N. W. 630.

5. The damages are not excessive. There was a compound dislocation at the left ankle joint, with a slight fracture of the lower end of the tibia, the bones of the leg protruded through the skin, and the foot turned to the inner side of the leg. Three operations were necessary, all under an anesthetic. The leg and foot were in a cast for about two months. Plaintiff was in bed six weeks or two months. At the time of the trial, five and one-half months after the accident, he was not able to bear weight upon the leg except in a very slight degree. The ankle joint is probably permanently stiff, and the bones of the foot and the bone of the tibia are fused. He may eventually be able to bear his weight upon the foot with some support about the ankle. He is partially incapacitated from such work as climbing ladders. The leg is apparently shortened about an inch, and the foot is drawn up at the heel. Plaintiff was 44 years old and earning 45 cents an hour when injured.

Numerous exceptions are taken to the charge of the court and to the refusal of the court to charge in accordance with certain requests of defendant. It is not necessary to review them in detail. We have examined these with care and have concluded that they present no reversible error. The charge fully and fairly submitted the case to the jury.

Order affirmed.

HENRY RUDOLPHI and Another v. JOSEPH A. WRIGHT

and Another.1

December 12, 1913.

Nos. 18,311-(133).

Fraudulent representations - evidence.

1. The evidence is examined and held to justify a finding of the trial

1 Reported in 144 N. W. 430.

court that the plaintiff was induced by the fraudulent representations of the defendant to execute a deed upon an exchange of lands.

Same.

2. The fact that the plaintiff saw the lands before he traded is not conclusive against him on the issue of fraud.

New trial.

3. Certain irrelevant evidence offered by the plaintiff held not to be prejudicial so as to require a new trial.

Action in the district court for Brown county to cancel a deed and to adjudge plaintiffs to be the owners in fee simple of the land described therein. The answer set up that the transaction between the parties was completed by the execution and delivery of the deeds by each to the other; that plaintiffs acquiesced in the transaction for more than six months before beginning the action and that they are concluded from prosecuting it by their laches. The answer also alleged that at the time of the exchange plaintiffs had full knowledge of the land conveyed to them. The case was tried before Olsen, J., who made findings and ordered judgment in favor of plaintiffs and against defendant Wright. The separate motions of defendants for judgment notwithstanding the findings or for a new trial were denied. From the judgment entered pursuant to the order for judgment, defendants appealed. Affirmed.

Reed & Swift and Charles B. Elliott, for appellant.
Somsen, Dempsey & Mueller, for respondents.

DIBELL, C.

This action is brought to cancel a deed conveying certain property in the city of New Ulm, made by the plaintiffs to the defendant Joseph A. Wright, upon the ground of fraud. The deed was given upon an exchange of New Ulm city property for Wisconsin lands. The court found for the plaintiffs and the defendants appeal from the judgment. Henry Rudolphi and Joseph A. Wright are the two active parties, the other two being their respective wives.

1. The evidence sufficiently supports the finding of the trial court that the deed made by the plaintiffs was procured by fraud. The New Ulm property was the homestead of the plaintiffs, was worth $6,000, and was income bearing. It was traded for 621 acres of unimproved, cut-over, sandy and swampy lands in Wisconsin. The

court found that the Wisconsin lands were not worth more than three dollars per acre. Some of the witnesses put the value much higher, as high as $10 or $12 per acre. The court was justified in finding that they were substantially worthless except for trading purposes. The defendant had traded gold stock for them. The court was justified in finding that the defendant fraudulently misrepresented the value, character and quality of the lands, and that he fraudulently pointed out the boundaries of the lands and that the plaintiff relied upon the misrepresentations made.

2. The plaintiff went to the lands and made some examination of them. With him was the defendant, and Henry A. Rudolphi, the plaintiff's nephew, who was instrumental in bringing the plaintiff and the defendant together and who was to have a commission from the defendant. Young Rudolphi rather discouraged a thorough examination. The fact that a purchaser of land makes an examination of it before purchase does not necessarily preclude him from claiming fraud and a reliance upon it. His making of an examination is a circumstance to be weighed carefully by the trial court in determining whether fraud was practiced, and, if so, whether the purchaser relied upon fraudulent representations; but it does not, of itself, prevent a finding of fraud. Brown v. Andrews, 116 Minn. 150, 133 N. W. 568; Schmeisser v. Albinson, 119 Minn. 428, 138 N. W. 775.

3. The plaintiffs at one time in the trial digressed from the real issues in the case and engaged in a useless investigation of some transactions which the plaintiff and young Rudolphi had relative to the exchange of the New Ulm property for lands in the Canby country, and for what special purpose is not plain. In the course of the investigation the testimony of what the plaintiff and young Rudolphi said and did was received. After a serious consideration we reach the conclusion that their digression did not result in reversible error.

The record contains more than 900 pages of printed matter. We have all given it a patient and thorough examination, as well as the briefs of counsel, and we find nothing justifying us in disturbing the conclusions of the trial court. A review of the evidence would extend the opinion beyond endurable length without profit. Order affirmed.

LELAH MCALLISTER and Others v. ARTHUR H. ROWLAND.1

December 12, 1913.

Nos. 18,323-(127).

Will evidence of incapacity.

1. Where the issue is the mental capacity of a testator at the time of making a will, evidence of incapacity within a reasonable time before and after is relevant and admissible.

2. A judgment in proceedings for the appointment of a guardian of an incompetent person is admissible in evidence, but not conclusive, in any litigation, to prove the mental condition of the person at the time the judgment is rendered, or at any past time during which the judgment finds the person incompetent.

Same.

3. When such a judgment is rendered in proceedings instituted after the will is made, and does not find the testator incompetent at such prior time, it is competent evidence, and whether it should be admitted depends upon its probative value as tending to prove the fact at issue. It stands on the same basis as would other evidence of the mental condition of the testator at a subsequent time. Whether it has probative value, or is too remote, is largely for the trial court to determine. In this case, the decision of the trial court that the exclusion of such judgment was prejudicial error is sustained.

4. That the application was not to have the testatrix declared insane, but only to have a guardian appointed because of the impairment of her mental faculties by reason of old age, and her consequent inability to manage her affairs, did not render the adjudication inadmissible.

5. The petition for such an adjudication is not admissible on the ground that it was made by one of the devisees, and therefore an admission against interest, when there are others financially interested in sustaining the will.

1 Reported in 144 N. W. 412.

Note. The authorities on the general question as to what constitutes testamentary capacity are collated in an extensive note in 27 L.R.A. (N.S.) 2.

Arthur H. Rowland petitioned the probate court for Lyon county for the allowance of the last will and testament of Margaret Bullard, deceased. Lelah McAllister, Beth Bullard, Zoe Bullard and Alma Bullard filed objections to the allowance of the will. From the order of the probate court admitting the will to probate, they appealed to the district court for that county. The appeal was heard before Olsen, J., and a jury which answered in the affirmative the question whether the testator was of sound and disposing mind at the time of making the will and in the negative the question whether the will was the result of undue influence exercised upon the testator by her sister, Mrs. Thomas, or by Mrs. Cardwell or by either of them. From the order granting contestants' motion for a new trial, Arthur H. Rowland appealed. Affirmed.

Fremont S. Brown, Knox & Faber and Charles M. Start, for appellants.

Albert R. Allen and O'Brien, Young & Stone, for respondent.

BUNN, J.

April 12, 1912, Margaret Bullard, then a widow 76 years of age, made her will. She died June 9, 1912. On June 24 the will was. filed for probate in Lyon county. Four granddaughters of the testatrix, the respondents here, contested the will on the ground that the testatrix was of unsound mind at the time the will was made, and on the ground of undue influence. The probate court admitted the will, and the contestants appealed to the district court of Lyon county. The issues were there tried and submitted to a jury, which, in answer to special questions, found that the testatrix was of sound and disposing mind at the time she made the will, and that there was. no undue influence. The contestants made a motion for a new trial on the ground that the verdict was not justified by the evidence, and on the further ground that the court erred in excluding certain evidence. The trial court granted the motion, upon the ground, as expressly stated in its order, of "error occurring at the trial, as mentioned in the attached memorandum, and not on acount of any insufficiency of the evidence to sustain the verdict." The executor appealed from this order.