ducing wells upon the premises, and a fourth well was being drilled. This last well was producing at the date of the first meeting of the auditor. The oil in the pipe-lines to the credit of the testator at the time of his death was sold by his executors for $697.57. No question arises as to this money. It was clearly a part of the corpus of the estate. The oil run into the pipe-lines since testator's death was sold by the executors for $2,463.77. We are of opinion that this was a part of the income of the estate. It was so held by the auditor and the court below, and we think correctly. The right of a life tenant to operate previously opened mines, and work the same even to exhaustion, cannot be questioned: Eley's Appeal, 103 Pa. St. 303, and cases there cited.

The decree is affirmed, and the appeal dismissed, at the costs of the appellants.

WIDOW, ELECTION OF, TO TAKE UNDER THE PROVISIONS OF HUSBAND'S WILL. A widow who has elected to take under the provisions of her husband's will is estopped to assert claims against the estate inconsistent there. with: Note to Shivers v. Simmons, 28 Am. Rep. 376, 377. But when she makes such election in ignorance of her rights, she is not bound thereby: Note to Black v. Ward, 15 Am. Rep. 176, 177; Adsit v. Adsit, 2 Johns. Ch. 448; 7 Am. Dec. 539. But an election once made, and affirmed by bringing suit, will not be set aside on the ground of mistake, except upon strong and clear proof: Hall's Case, 11 Bland Ch. 203; 17 Am. Dec. 275.

INCOME, TO WHOM BELONGS. As to who is entitled to the income and profits of corporate stock as between the life tenant and remainderman, see Kuntzleman's Extate, 136 Pa. St. 142; 20 Am. St. Rep. 909, and note; Gibbons v. Mahon, 4 Mackey, 130; 54 Am. Rep. 262, and note 264-269. The tenant for life has the right to the profits obtained from working mines already opened on the land before the commencement of his life estate: Lynn's Ap peal, 31 Pa. St. 44; 72 Am. Dec. 721. See also Stonebraker v. Zollickoffer, 59 Md. 154; 36 Am. Rep. 364.

INDEX TO THE
THE NOTES.

ADVANCEMENT, what is, and how proved, 296.

AFFINITY defined, 797.

AMENDMENT of proof of service of process, 57.
ASSIGNMENT, equitable, what is, 899.

ATTORNEYS, Contract of, to share fees is void, 26.

undue influence over client, presumption of, 95.

CHATTEL MORTGAGES, delay in filing for record, 283,
recording, actual notice is equivalent to, 283,
recording, effect of, 282, 283.
recording, necessity of, 282.

recording, when complete, 282.

CIVIL RIGHTS, discrimination against persons because of color, 584.
CONSTITUTIONAL LAW, classification of subjects of legislation is permissi
ble, 782.

general and special laws, what are, within meaning of constitutional
prohibition, 780-789.

general law is one operating in all parts of the state under the same cir.
cumstances, 781.

general law may classify subjects of, 782.

general law, statute which embraces all of a class of persons in like cir-
cumstances is, 781.

municipal corporations, statute applicable to one only, when valid, 785-
789.

municipal corporation, statutes applying to one class of, when valid, 784.
provision declaring that laws of general nature shall have uniform
operation, construction of, 781.

provisions forbidding special legislation are mandatory, 780.

provisions forbidding special legislation, whether statute violates, when
a judicial question, 780.

special law, statute relating to particular things and persons out of a
class is, 781, 782.

special legislation, instances of invalid, 788, 789.

statutes classifying municipal corporations, 783, 784.

statutes general in form, but which can never apply to but one county
or municipality, 782.

substance, and not mere form, of the statute must be considered, 781.
uniform operation of laws distinguished from universal, 781.
CORPORATION, deed executed by president, when his personal act, 341.
ultra vires, estoppel against urging defense of, 913.

repeal or modification of charter and franchises of, 148.

CO-TENANTS, Conveyance by one in severalty, effect of, 474.

grant by one, of the right to take water from the common lands is void,
594, 595.

935

COVENANTS RESTRICTING USE OF LAND, absence of statement that restriction

is for the benefit of land retained, 489.

changes in condition of property when justifies refusal to enforce, 498.
condition of forfeiture, equity will enforce, notwithstanding condition,
485.

damage for violation not essential to right to enforce, 501.

equity will enforce in favor of original owner, 485.

equity will enforce in favor of owner of any lot into which the tract is
divided, 485.

equity will enforce, notwithstanding condition of forfeiture, 485.

estoppel to enforce, 495-498.

forfeiture for breach of condition, equity will not enforce, 485.

form of, is immaterial, 487.

injunction, mandatory, to compel destruction of buildings erected in vio-
lation of, 500.

injunction to restrain breach of, 486.

intended for benefit of land retained cannot be released by original
covenantee, 495.

intent in making, whether inferable from other conveyances, 499.
intent in making, whether inferable from situation of land, 499.

intent of parties in making, whether must be inferred solely from the
deed, 499.

joinder of parties in bill to enforce, 500.

made by vendor are taken most strongly against him, 493.

need not run with the land, to entitle successor in interest to enforce,
487.

not made for benefit of land are enforceable only by parties thereto, 492.
not to build within certain distance of the street, erection of bay-win-
dows, whether violates, 494.

not to erect building on rear of lot, construction of, 494, 495.
notice of fact of covenant and of effect of, distinction between, 491.

notice of restriction, from what inferred, 491.

perpetual servitude, when created by, 484, 485.

personal agreement is enforceable against purchasers with notice, 487.
presumption that covenant is for benefit of land, 489, 491.

refusal of equity to enforce because of changes in condition of lands, 498.
refusal to enforce because not intended for benefit of land, 502–508.
release of, by original covenantee, when inoperative, 495.
restriction upon use of land, right to make and enforce, 485.

restriction upon use of land may be by condition, covenant, reservation,
or exception, 485.

restriction, when presumed to be for benefit of land retained, 489, 491.
restrictive agreement not inserted in deed, whether enforceable, 489.
statement that restriction is for the benefit of land retained, whether
essential, 489.

separate grantees of covenantee, each is entitled to benefit of, 500.
specific performance of, when may be decreed, 485.

successors in title, when bound by, 486.

CRIMINAL LAW, arrest, homicide in resisting, 187.

assault with intent to murder, essentials of crime of, 155.

false pretenses, obtaining money or goods by, 265.

intent to kill, from what inferred, 399.

intent or motive of accused, when he may testify to, 318.

CRIMINAL LAW, malice is essential to murder, 399.
malice presumed from use of deadly weapon, 399.
murder, instructions as to different degrees of, 187.

murder, instructions to jury upon trial for, what are necessary, 355.
murder, threats of deceased against defendant, when admissible, 355.
DAMAGES, measure of, agreements, whether may control, 122.

measure of, for breach of contract, 121.

DEFINITION of affinity, 797.

of consanguinity, 797.

of general and special laws, 780, 781.
of malice, 546.

of probable cause, 546.

of res gesta, 178.

DENTISTS, statutes regulating, 310.

DIVORCE, adultery of plaintiff as a defense, 286.

adultery, proof of, 286.

void because parties are non-residents, 219.

EASEMENT, tenant in common cannot create, 594, 595

EVIDENCE, belief of a party may be proved by himself, 314.

declarations of deceased persons, when admissible, 433.

declarations, when admissible, 178.

good faith or understanding of a party may be testified to by himself,
314.

motive or intent, party may testify to, 314.

of good faith of purchaser, 316.

of intent of party in doing act claimed to be criminal, 318.

of intent of party in making a contract, 317.

of intent of party in making or accepting a transfer, 316.

of intent of party in prosecuting another, 316.

of intent respecting dedication of land, 317.

of intent with which act was done, 317.

of previous accidents, whether admissible to show negligence, 332
res gesta, what are, 178.

EXECUTION, exemption of property of citizens of another state, 152.

garnishment of debt in one state exempt by the laws of another, 152
See REDEMPTION.

FENCES, malicious erection of high, whether may be enjoined, 512

FIDUCIARY RELATIONS, undue influence presumed from, 101.

GUARDIAN, undue influence over ward, when presumed, 101.

HOMESTEAD, excess over amount allowed, execution sale of, 30.

partition of, will not be ordered, 29.

survivor's right in, 29.

HUSBAND, undue influence over wife, whether presumed, 102.

INSURANCE, bailee has an insurable interest, 720.

oral agreement for, 883.

premium, payment of, not essential to, 883.

INTENT, party may testify to his, 314-319.

party's testimony as to his, not conclusive, 315.

prosecution, party may testify to his intent in, 316.

JOINT DEBTORS, release of one, when releases the other, 715.

JUDGMENTS, jurisdiction, whether depends on fact of service of process or
upon the proof of such service, 56.

service of process, proof of, whether may be amended, 56, 57.
JURISDICTION, ad damnum clause, amendments of, 621, 622.

ad damnum clause in complaint, whether determines, 618.
allegation of complaint, whether controls, 618.

amount in controversy being in excess of jurisdiction, case must be dis-
missed, 620.

amount in controversy, error respecting, will not divest jurisdiction,
620.

amount in controversy, fraudulent statement of, 619.

amount in controversy, how determined, 618-621.

amount in controversy in action on bond is the sum claimed, not the
penalty of the bond, 619.

amount in controversy in attachment proceedings not determined by
value of property attached, 619.

amount in controversy is deemed to be the principal sum, exclusive of
interest, 620.

amount in controversy is the aggregate of several distinct items, 619.
amount in controversy is the damages claimed, not those suffered, 619.
amount in controversy, reducing, to bring the claim within jurisdiction,
620.

set-off in excess of, 621.

splitting entire transaction or account to give, 621.

voluntarily remitting part of claim to bring case within, 621.

LANDLORD AND TENANT, covenant against assigning, partial waiver of, 588.
covenant against assigning, waiver of, removes restriction forever, 588.
covenant restricting use of premises to specified purposes, 588.
LIBEL, commercial agencies, publications of, when not privileged, 524.

MALICIOUS PROSECUTION, what essential to maintain action for, 546.

MARRIED WOMEN, executory contracts of, are void, 83.

MERGER, change in form of action does not avoid, 216.

MORTGAGE to secure payment of several notes, proceeds of sale, how to be
applied, 604.

MUNICIPAL CORPORATIONS, delegation of powers to, by the legislature, 373.
gift of a fund for support of the poor of, is invalid, 758–758.
liability of, for neglects of their officers, servants, or agents, 469.
power of, to borrow money, 373.

NEGOTIABLE INSTRUMENTS, recital of consideration, whether affects indorsee

with notice of its failure, 516.

NOTARY PUBLIC, sureties on bond of, when answerable for his negligence,
413.

NUISANCE, cause of action for, when accrues, 426.

lapse of time will not legalize, 426.

PERPETUITY, bequest of a fund to be kept for the support of the poor of a
town is, 754.

PRESUMPTION of undue influence against one made a legatee to the exclusion
of heirs, 95, 96.

of undue influence against priests, attorneys, and religious advisers, 95.
of undue influence arising from confidential relation of testator and
legatee, 94.