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mortgage. Held, that she should be rolioved from the consequences of
her default in the payment of the assessment. Noyes v. Anderson, 657.
Seo HUSBAND AND WIFE, 12; INJUNCTIONS; JUDGMENTY, 18, 18. .

ERROR,
See APPEAL AND ERROR

ESTATES OF DECEDENTS.
Seo EXBOUTORS AND ADMINISTRATORS.

ESTOPPEL
Boe HOMESTEAD, B; PARTITION, 3; RAILROAD COMPANIES, &

EVIDENCE
1. EVIDENCE, ADMISSIBILITY OF, FOR PURPOSE OF IMPEACHMENT OR TO Eg.

TABLISH NEGLIGENCE. – In an action against a railroad company to re-
cover for personal injury to a boy fourteen years of age, not a trespasser,
and conclusively shown to have been injured because of a defective rail.
road platform, by means of which he was thrown under a moving train
and crushed, evidence on the part of the defense that such boy was in
the habit of jumping on moving trains at that place, and had been warned
of the danger, is incompetent to contradict his testimony as to the man.
ner in which he received the injury, or to show that it was caused through
to recover the note on the ground that it was procured by fraud and
undue influence, to prove declarations of the donor, in the months of
September and November, after making the alleged gift, inconsistent
with his having made the gift, and denouncing defendant as a rascal,
where the purpose for which the declarations are claimed to be offered
is to show the mental condition of the donor at the time of the alleged

his negligence. Louisville etc. R. R. Co. v. Berry, 329.
2. NEGLIGENCE. – In an action to recover damages against a railroad com.

pany for personal injury received through its negligence, evidence
that plaintiff 's nervous prostration in consequence of the injury had
a weakening effect upon her system, and required the administration
of opiates, from which she was acquiring the opiuin habit; that she
did not now and never will take the pleasure previously taken by her in
her household duties; and that from the effects of the nervous prostra.
tion, she has no energy to work or to enjoy society, - is admissible, not
as an element of damages, but as an index to the pain and suffering of

the plaintiff. Chattanooga etc. R. R. Co. v. Liddell, 169.
3. DECLARATIONS OF A TESTATOR OR A DONOR are admissible in evidence,

not for the purpose of establishing the truth of his statements, but
merely to show the condition of his mind; and they are admissible
for this latter purpose only when they are sufficiently near in point of
time to be of some value in determining his mental condition when he
did some act which is assailed for his want of capacity. Lane v. Moore,

430.
4. WHETHER DECLARATIONS MADE BY A DONOR OR TESTATOR are suffi-

ciently near in point of time to warrant their being submitted to a
jury, as tending to show his mental condition when he did some act
which is questioned on the ground of his incapacity, rests chiefly in the
discretion of the presiding judge. Generally, his determination of this
preliminary question must be accepted as conclusive, where it is not

shown that he has misapplied any principle of law. Id.
6. DECLARATIONS. Where defendant claimed that a note was given him

in the month of August by the holiler, who was then nearly eighty.
four years of age, and whose business adviser and manager defendant
way, it is competeut, in an action by an administrator of the donor

gift Id.
& DECLARATIONS AS PART OF RES GESTE. - In an action against a rail.

road company to recover for personal injury, the declarations of the
president of a construction company which was building and equip-
ping the road, made two or three hours after the accident, and at
another place, to a newspaper reporter, that it would be to his interest
not to publish too much, that the road had been laid teinporarily, that
he had not had time to put the broad-gauge ties upon it, and that
he did not want public opinion too strong against him, are not ad.

missible. Chattanooga etc. R. R. Co. v. Liddell, 169.
7. JURY AND JORORS — EVIDENCE TO ESTABLISH SICKNESS OF JUROR. — A letter

purporting to have been written by a sick juror to the trial judge is not
admissible in evidence to establish the sickness, in the absence of any

preliminary proof of the genuineness of such letter. State v. Smith, 266.
& SECONDARY EVIDENCE, WHEN ADMISSIBLE TO Show CONTENTS OF WRIT.

ING. — If a replevin bond which forms the basis of a suit on a judgment
is not within the jurisdiction of the courts of the state, secondary evi.

dence of its contents is admissible. Knickerbocker v. Wilcor, 595.
9. MORTGAGES — ASSIGNMENT OF PART INTEREST IN MORTGAGE CANNOT BE

VARIED BY PAROL. — A sale and assignment of two of three mortgage
notes and of a corresponding interest in the mortgage, containing no men.
tion of priority of lien, cannot be varied by parol evidence to show an
oral agreement that the assignee was to have a prior lien under the morte

gage as security for the payment of his notes. Jennings v. Moore, 601.
10. CONTRACTS, PAROL EVIDENCE TO VARY. – Where a contract is in writ-

ing, and specially exempts one of the parties from the performance of
certain duties, parol evidence is inadmissible to show a parol agreement
inconsistent with the written one. Stanton v. New York etc. Ry Co.,

110.
11. CONTRACTS, EVIDENCE TO REBUT. – An unsigned memorandum of an

agreement drawn previous to the contract sued on is not admissible

as rebutting evidence. Wilbur v. Stoepel, 568.
12 PROMISSORY NOTE — PAROL EVIDENCE TO EXPLAIN. – Where a note

reads, “We promise to pay to the order of myself,” and is signed by
two obligors, parol evidence is admissible to show which of the two obo

ligors was intended as the payee. Jenkins v. Bass, 344.
13. Evidence To Show NOTE TO BE MERELY ADVANCEMENT BETWEEN PARENT

AND Child. An alısolute promise in the form of a note to pay a cer.
tain sum of money, given by a child to a parent, may be shown by parol
evidence to be inten led between the parties to it as a mere receipt or
memorandum to show that the parent has made an advancement of that
amount to his child, and that it was the intention of the parent that it

should never be collected. Brook v. Latimer, 292.
14. PAROL EVIDENCE TO EXPLAIN WRITING. — The admission of parol evidence

tending to show that a promissory note absolute in terms, and given by
a child to its parent, is merely intended as between the parties as an ad.
vancement by the parent to the child, is not a violation of the rule of

-

ovidenco which forbids a written instrument to be varied or contradicted

by parol. Id. 18. CONTRACTS - PAROL EVIDENCE TO Show EXECUTION.- Conversations and

negotiations preliminary to a written agreement, although merged in it, may still be admissible, not to explain its terms, but to throw light upon the question of its execution, or other questions connected therewith.

Wilbur v. Stoepel, 568. 800 APPBAL AND ERROR, 3, 4; CONTRACTS, 2, 8; CORPORATIONS, 28; CRIM.

INAL LAW; Gifts, 1; INSURANCE, 18; LIBEL AND SLANDER, 17-22 ;
MARRIAGE AND DIVORCE, 1-4; PARTNERSHIP, 1; PLKADING, 2, 3;
WILLS.

EXECUTIONS, 1. PROPERTY SUBJECT TO. — AFTER THE DEFAULT OF A MORTGAGOR OF

CHATTELS, he has no interest in the mortgaged property subject to exe.

cution against him. Leadbelter v. Leadbetter, 738. 2. Trust PROPERTY, WHEN NOT SUBJECT TO. — If the income of a fund is

vested in A, provided that B shall be entitled to support therefrom as long as she shall remain a widow, the interest of B cannot be reached by a bill in equity and applied to the payment of her creditors. Her in. terest is not alienable, because if any part of her interest were given to her alienee, it would not be applied to her supporte Sluttery v.

Wason, 448. 3. TERMINATION OF TIME FOR ISSUING EXECUTION IN FORECLOSURE Suits.

If a statute limits the time within which execution may issue in cases for the recovery of money to five years after the entry of judgment, no execution can issue after that time under a decree foreclosing a mort. gage, though it specially provides that no judgment shall be docketed for any deficiency should the proceeds of the sale be insufficient to pay

the amount found due. Jacks v. Johnston, 50. 4. TIME WITHIN WHICH EXECUTION MAY ISSUE IS NOT EXTENDED by an order

staying proceedings. Cortez v. Superior Court, 37. 6. ORDER DIRECTING EXECUTION TO ISSUE AFTER THE LAPSE OF THE TIME

within which the statute declares it may be issued is in excess of the

jurisdiction of the court. Id. See ASSIGNMENT FOR BENEFIT OF CREDITORS, 1; HOMESTEAD, 7; RECEIVERS;

TAXATION. .

EXECUTORS AND ADMINISTRATORS.

1. CONFLICT OF LAWS - ESTATES OF DECEDENTS - LIABILITY OF EXECUTOR

FOR ASSETS IN A FOREIGN COUNTRY. – If an executor in this state is also ancillary administrator in a foreign country, and, as such, has within his control personal assets in such country, which he refuses or willfully neglects to bring into this, he may be charged therewith in the

settlement of his accounts in this state. In re Ortiz, 44. 2. ID. — IT IS THE DUTY OF A DOMICILIARY EXECUTOR to gather in and

account for foreign assets of his testator, to the extent of his ability to do so, and the court of the domicile may compel him to account for his

willful neglect to perform such duty. Id. 3. ID. IF THE ESTATE OF A DECEDENT IS SITUATE IN TWO OR MORE

COUNTRIES, and his executor incurs expenses of administration, they should be paid out of that part of the estate in the administration of which they were incurred, and not out of the part of the estata sita

ated in another country. Id. 4. DECEASED CONTRACTOR — Right to SHARE IN PROFITS. - If several persons

secure and enter into a contract for the doing of work, and commence its performance, and then one of them dies, and the others perform the contract, they must account to the representatives of their deceased

fellow.contractor for his share of the profits. Jepson v. Killian, 508. 6. ELECTION BY WIDOW IN IGNORANCE OF Facts NOT BINDING. — Under

a statute allowing the widow to take under her husband's will, or to elect to repudiate it and take under the intestate law, an election by her to take under the will, made in ignorance of the facts, and of her rights and of the relative values of the properties between which she may choose, is not binding upon her, especially if made shortly after her

husband's death. Estate of Woodburn, 932. 6. INCOME, WHEN PASSES TO TENANT FOR LIFE. — Where a testator has

made a lease of his land for oil purposes prior to his death, under a lease providing that he shall receive a definite portion of the oil produced, and in his will has bequeathed the income of his estate to ten. ants for life, his share of the oil produced after his death is income, to

which the tenants for life are entitled as such. Id. 7. ELECTION BY Widow, allowed by statute, is a right to choose between

abiding by her husband's disposition of his property or the right to disregard it and claim under the intestate law. These rights are inconsistent with each other, and cannot co-exist. She must choose one or the other, and cannot choose both; nor does her right of choice depend in any degree on the mention or omission of her in her husband's will, or on the quantum of benefit she receives or renounces under it. Estate

Q Cunningham, 901. 8. ELECTION BY WIDOW. – Where the husband's will directs a conversion

of his real estate into personalty, and the wife elects to take under the intestate law, her rights are fixed irrespective of the will, and she can. not claim that the conversion operates so as to entitle her to one half of the fund absolutely; for, as to her, the fund must be regarded as real

estate, and she is only entitled to a half-interest therein for life. Id. 9. Widow's right of election, given by statute, is paramount to her huse

band's power of disposition by will, and if she elects to disregard the latter, she can claim her statutory estate in the land itself, and at law it is that only to which she is entitled; but in equity, if she has acquiesced in a sale made under the will, and made claim to the proceeds, she thereby relinquishes her dower, and the land passes to the pur. chaser discharged of her estate in it. The fund, however, arising from the sale is still treated as realty as to her, and she is entitled to a half.

interest therein for life. Id. 10. ELECTION BY WIDOW. – The question whether a widow filed a formal

paper, electing to take against the will, voluntarily or under stress of an order of court, is entirely immaterial to her rights. Such writing is un

important, except as evidence. Id. 11. ESTATES OF DECEDENTS - CONFIRMATION OF, IS INDISPENSABLE. - A sale,

by the orphans' court, of the estate of a decedent for the payment of debts, does not divest the title of the heirs until after confirmation thereof, and the execution and delivery of a deed by order of the court; and until such deed is delivered, an heir or his vendee may maintain ejectment against the purchaser at such sale, even though the latter has paid the

purchase-money and has gone into possession. Greenough v. Small,

859. See APPEAL AND ERROR, 1; HOMESTEAD, 8; JUDGMENT8, 19; PERSONAL

PROPERTY.

EXEMPTIONS.
See ATTACHMENT AND GARNISHMENT; EXECUTION; HOXESTEAD.

FALSE PRETENSES.
See CRIMINAL LAW, 6.

FENCES.
See NUISANCES, 1.

FIXTURES. FACTORY AND ITS EQUIPMENTS MAY BE PERSONAL PROPERTY WHEN. - A

factory with its equipments, though it is affixed to the soil, may have impressed upon it the character of personal property by the acts and conduct of parties dealing with it as mortgagees and owners, and this character, when once impressed upon it, will be retained, unless by decree it is transformed into real property. Horn v. Indianapolis Nato Bank, 231.

FORECLOSURE.
See MORTGAGES.

FORFEITURES.
See EQUITY; INSURANCE, 7, 8; LANDLORD AND TENANT, 1-3.

FORGED CHECKS.
See BANKS AND BANKING, 1-4.

FORMER ACTION.
See ABATEMENT, 1.

FRAUD. JUDGMENTS, PROCUREMENT OF, BY FRAUD, IS QUESTION OF Fact. - A claim

that a judgment rendered in another state was procured by fraud and collusion presents a question of fact to be determined by the jury, un.

der proper instruction. Knickerbocker v. Wilcox, 595. See AGENCY, 2; ASSIGNMENT FOR BENEFIT OF CREDITORS, 1-3; CORPORATIONS,

23; CRIMINAL LAW; SALES, 16.

FRAUDULENT CONVEYANCES. EVIDENCE OF INTENT. – Where a sale of personal property is attacked as hav.

ing been made with intent to hinder, delay, and defraud creditors, the seller may testify as to whether or not such was his intent in making the

sale. Gardom v. Woodwird, 310. See ASSIGNMENT FOR BENEFIT OF CREDITORS, 2, 3; CHATTEL MORTGAGES,

1-4; HUSBAND AND WIFE, 2-12; SALES.

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