WASTE. See TRESPASS, 1.

Action will lie against tenant from year to year for permissive. Newbold v. Brown, 152.

WATERS AND WATERCOURSES.

1. Person owning land abutting on river and through which creek flows and empties into river, may, as against proprietors on opposite side of river, change channel and mouth of creek upon his own land, if he exercises reasonable care and caution, and if increased danger of overflow might not reasonably be anticipated therefrom. Railroad v. Carr, 224.

2. Riparian owner cannot, except as against himself, confer on one who is not riparian owner any right to use water of stream. Ormerod v. Mill Co.,

757.

3. Owner of land not abutting on river, with license of riparian owner, took water from river and after use returned it undiminished and unpolluted. Held, that lower riparian owner could not obtain injunction. Kensit v. Railroad Co., 758.

WAY.

1. In absence of express grant, adverse, exclusive and uninterrupted enjoyment of right of way for twenty years is necessary: and when so established, same length of time is necessary to lose it by abandonment. Cox v. Forrest, 758. 2. Use of way over land of another, whenever one sees fit, and without asking leave, is prima facie adverse. Id.

3. By "exclusive," law does not mean that right of way must be used by one person only, but simply that right should not depend for its enjoyment upon similar right in others. Uninterrupted and continuous enjoyment" only means that party exercises the right more or less frequently, according to nature of use, and without objection on part of owner of land. Id.

WHARF AND WHARFAGE.

1. Power to erect wharves and charge wharfage not one of implied powers of municipality nor deducible from authority to regulate streets, lanes and alleys, and to make laws and regulations for good order and government. The Geneva, 584, and note.

2. Where municipal corporation is riparian proprietor it may charge wharfage, but not if wharf extends beyond low-water line, and is principally constructed on line of public street. Id.

3. Wharves, their construction and management. Id., note.

4. Where under port regulations of Savannah, two vessels were allowed to lie abreast at wharf, and, for sake of convenience, cargo was carried directly from one to other without being landed, it being unvarying interpretation that such transhipments included both landing and shipping, wharf owner would have right to charge rates allowed for landing and shipping in absence of contract to contrary. Robertson v. Wilder, 224.

WILL. See CONTRACT, 18. EXECUTORS AND ADMINISTRATORS, 1. REMOVAL OF CAUSES, 11.

1. Provision establishing fund for preservation, adornment and repair of private monumental structure is void, as creating perpetuity for use not charitable. Bates v. Bates, 695.

2. Right given by will, to sell property for object which cannot be accomplished, cannot be exercised. Id.

3. If will, duly executed and containing clause revoking former wills, is cancelled, it is question of intention, to be collected from all the circumstances, whether earlier will, not destroyed, is revived in absence of affirmative evidence that such was testator's intention, it will be held not to be. Pickens v. Davis, 695.

4. Oral declarations made after cancellation, admissible to show intention to revive former will. Id.

5. The rule in Shelley's case gives way to clear intention of testator or donor, when that intention can be ascertained from instrument in which words supposed to be words of limitation are used. Belslay v. Engle, 818.

6. Where language shows clear intent to devise fee to wife, words of recommendation or suggestion or advice as to management or occupation of the lands

WILL.

by family, contained in other clauses, will not limit her estate.
Horsey, 759.

Hoxsey v.

7. Where first taker in lands has absolute estate, limitation over, by way of executory devise, is bad. Id.

8. If testatrix has given instructions for will, and it is prepared in accordance with them, will is valid though at time of execution she merely recollects giving the instructions, but believes that will is in accordance with them. Purker v. Felgate, 758.

9. Where testator devises all his property to wife for life or widowhood, and directs that upon her death or marriage, same be equally divided between his children, their heirs and assigns forever, children take by purchase and not by descent. Donnelly v. Turner, 758.

10. Exclusive owner of property can enter into contract to execute will in favor of other contracting party. And if will so executed be cancelled, aid of court of equity can be invoked, Wilks v. Burns, 758.

11. But where power of disposition by will is given to person having no reversionary interest, attempted execution of power by will made in conformity with alleged contract, is invalid. The power is not thereby exhausted, and such will is revoked by subsequent will duly admitted to probate. Id.

12. Where devise was to trustees for use and benefit of testator's daughters, without any words of limitation or perpetuity, Held, 1. That it made no difference that property was left in hands of trustees. 2. That since Maryland act of 1825, a general devise in which words of limitation or perpetuity are omitted, will pass whole interest of testator, in absence of contrary intention. Fairfax v. Brown, 759.

13. Testator directed all his property to be sold. He bequeathed to T. B. H., as guardian of his son, $1500 of proceeds to be expended in son's education, as guardian might think proper. In will was following clause: "I will and direct that the balance of said proceeds, after deducting said several sums hereinbefore named, if any, be divided equally between my brothers." Held, that balance of said $1500 unexpended on arrival at age of son, belonged to son. Nyce v. Nyce, 351.

14. Probate of will in another state is judicial proceeding to record of which faith and credit is to be given, when authenticated as required by Act of Congress. Bradstreet v. Kinsella, 351.

15. Testator declared it to be his will and desire that his wife should have certain lands, "with a special request that at her death she give the said lands to be equally divided between her near relatives and mine." The wife having died without disposing of property, Held, that trust was created for benefit of "near relatives" of wife and testator in equal proportions, and that "near relatives" meant those who would take under statute of distributions. Handley v. Wrightson, 817.

WITNESS. See CRIMINAL LAW, 4, 7. EVIDENCE, 9-11. PROCESS, 1.

Where witness on cross examination, being asked questions, which answered affirmatively, would tend to degrade and disgrace him, avails himself of privilege accorded by court and declines to answer, he can not be asked "why?" Merluzzi v. Gleeson, 351.

END OF VOL. XXXI.