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LAWFUL CHASTISEMENT

being sufficiently broad to include gold and Where the punishment inflicted by a par- silver, as well as paper money. Brittain v. ent on a child is so excessive and cruel as State, 105 S. W. 817, 819, 820, 52 Tex. Cr. R. to show that the parent was not acting in 169. good faith for the benefit of the child, the Under a statute providing that in an inparent is guilty of an unlawful assault, and dictment for the larceny of money it is sufcannot justify his act by claiming that the ticient to allege the larceny of the same, withpunishment inflicted was a “lawful chastise-out specifying the denomination or kind therement"; but so long as a parent acts in good of, an indictment, charging accused with stealfaith, honestly thinking that what he does is ing money “lawful currency of the realm” for the benefit of the child, he is within his (i. e., of the United States), to the amount prerogative, and the law will not interfere. and value of $20 or more, sufficiently deState v. Koonse, 101 S. W. 139, 141, 123 Mo. scribes the money, to constitute larceny, App. 655.

within Ky. St. 1903, 8 1194, punishing lar

ceny of money of the value of $20 or more. LAWFUL CHILD

Todd v. Com. (Ky.) 93 S. W. 631, 632 (citing Where a will provided that the property

Commonwealth v. Mann (Ky.) 14 S. W. 685 ; given to one of the devisees should, if heJones v. Commonwealth, 13 Bush [76 Ky.) died without lawful children, go to the heirs 356; Travis y. Commonwealth, 27 S. W. 863, of another devisee, an adopted child of the 96 Ky. 77). devisee first mentioned was not a "lawful child,” within the meaning of the will. Coch

Where a theft is charged, and the alleran v. Cochran, 95 S. W. 731, 732, 43 Tex. gation is general that the money taken was Civ. App. 259.

lawful current money of the United States,

the evidence must show that it was legal LAWFUL CLAIM

tender coin or legal tender currency of the A good faith claim, appearing to be for

United States, and the nickel is legal tender midable and founded on grounds having the under the provisions of U. S. Comp. St. 1901, appearance, though false, of a paramount p. 2349. Black v. State, 79 S. W. 311, 46 title, is not covered by a warranty against Tex. Cr. R. 107. lawful claims, but such a warranty is intended to cover real claims and not claims LAWFUL DEBT only appearing real. An outstanding legal "A 'debt is defined as 'that which is due title is within a covenant of warranty against from one person to another, whether money, "lawful claims,” and if asserted, is a "law- goods, or services; that which one person ful claim," though an eviction may be avoid is bound to pay to or to perform for another, ed by showing a superior equity. Mackenzie that which one is obliged to do, or suffer.' v. Clement, 129 S. W. 730, 731, 144 Mo. App. Plaintiff's husband gave his bond for the pay114,

ment of money, secured by a mortgage on

his farm, in which plaintiff joined. The LAWFUL COURSE

husband died, devising the farm to plaintiff, A bond recited that plaintiff lumber and who deeded it to her son, who assumed and oil company had a claim on certain timber agreed to pay the mortgage, but failed to in litigation which had been attached in a do so.' On the death of the son, without iscertain suit against the S. Lumber Company, sue, his widow, having a dower in trust in and provided that in consideration of the re- the farm, executed a quitclaim deed of it to lease of the attachments, and that plaintiff plaintiff and the other heirs, subject to dewould not litigate its rights in such suit, the cedent's "lawful debts,” which plaintiff asobligors bound themselves to pay any inter- sumed and agreed to pay. Held that, since est which plaintiff might have in the timber plaintiff did not sign the bond and was not to be determined by any lawful course. personally liable for the mortgage debt, the Held, that a lawful course for determining covenant of her son to pay it was not enplaintiff's interest was by suit on the bond; forceable against him, and hence the coveplaintiff not being required to establish first nant in the deed from his widow to plaintiff its interest in the timber by suit against the did not obligate plaintiff to pay the debt; a S. Lumber Company. Camp v. Capital Min-claim not enforceable at law not being a ing, Lumber & Oil Co. (Ky.) 128 S. W. 323, "lawful debt.” Bonhoff v. Wiehorst, 108 N. 324.

Y. Supp. 437, 441, 57 Misc. Rep. 456 (quoting

and adopting definition in Imp. Dict.; citing LAWFUL CURRENCY

Latimer v. Veader, 46 N. Y. Supp. 823, 20 See Lawful Money.

App. Div. 426). An indictment charging theft from the

lars person of "two

LAWFUL DEFENSE

money, lawful currency of the United States of America and By the words “lawful defense of the perof the value of two dollars,” was sustained son" is meant what is sometimes termed by proof of the theft of two dollars in silver; self-defense. Robinson v. Territory, 85 Pac. the term "currency," or "lawful currency," 451, 455, 16 Okl. 241.

LAWFUL DUTY

LAWFUL FENCE In Rev. St. § 5451, which makes it a See, also, Legal and Sufficient Fence. criminal offense to give or offer bribes, etc., A fence, posts of which are rotted off, is to induce any officer of, or person acting for not a lawful fence within Rev. St. 1899, $ or on behalf of, the United States in any offi- 3295, providing that in a county where swine cial function to do or omit to do any act in are restrained from running at large a fence violation of his lawful duty, the phrase "law- composed of three barbed wires, stretched ful duty" is not restricted to a duty imposed on posts, firmly set in the ground, not more by statute, but is broad enough to cover a than 16 feet apart, shall be a lawful fence. duty imposed by a lawful superior; and an Smith v. Chicago & A. Ry. Co., 105 S. W. 10, indictment charging a conspiracy to induce 12, 127 Mo. App. 160. an assistant statistician in the Department

Under Rev. St. 1899, Š 1105, requiring of Agriculture to furnish to the accused ad- a railroad company to construct and mainvance news of crop conditions, and to cause tain fences sufficient to prevent stock getting to be published false reports as to such conditions in violation of the rules of the depart- under such section for injuries to stock,

on the track, an instruction, in an action ment, to aid defendants in market specula- which defined a lawful fence as one sufficient tions, by promising such employé a percent. "to resist horses, cattle, swine, and like age of the profits of such speculations, charg- stock,” was not erroneous for using the es a conspiracy to commit an offense against phrase "to resist”; such phrase not being as the United States under Rev. St. $ 5440. strong as the phrase "to prevent” in the United States v. Haas, 163 Fed. 908, 910.

statute. Hax v. Quincy, O. & K. C. R. Co., Regulations of the Agricultural Depart-100 S. W. 693, 695, 123 Mo. App. 172. ment having forbidden the giving out of any

Rev. St. 1899, § 3295, providing for the statement relating to the business of the de- construction of fences sufficient to prevent partment without the approval of the chief swine from running at large, composed of of the bureau, and secrecy having been im- wire 4 feet high and posts 16 feet apart, reposed on all employés by the established us ferred to outside fences other than those reage and practice, indictments charging bri- quired of railroads, so that a fence conformbery of an associate statistician of the Bureau ing to such specifications, constructed by an of Statistics of the Department of Agricul adjoining landowner along a railroad right ture to divulge the contents of the current of way, did not constitute a "lawful fence," cotton crop report in advance of its official for the building of which the landowner publication stated an offense under Rev. St. could recover from the railroad under Rev. $ 5451, making it a crime to bribe any per- St. 1899, 1105 (Ann. St. 1906, p. 945). Sharp son acting for the United States in any offi- v. Quincy, 0. & K. C. Ry. Co., 123 S. W. cial function to do or commit any act in vio- 507, 508, 139 Mo. App. 525. lation of his lawful duty. Haas v. Henkel,

The petition in an action for damages to 166 Fed. 621, 627.

growing crops from trespassing stock alleged

that the premises were situated in a subdiviLAWFUL ENTRY

sion where hogs, etc., were prohibited from The expression that the "entry must be running at large, and were inclosed by a law. lawful” means, not that it must have been ful fence under the statute when the treseffected under a formal right capable of en- passes occurred, and described the stock law forcement by legal proceedings, but that it district by metes and bounds, and further almust not be through any unlawful or wrong-leged that, in the event that plaintiff's fence ful act, upon which the mortgagee would be was not in strict compliance with the statute, estopped to found a right. Stouffer v. Har- nevertheless it was sufficient to keep out all lan, 74 Pac. 610, 613, 68 Kan. 135, 64 L. R. stock sought to be excluded of an ordinary A. 320, 104 Am. St. Rep. 396.

disposition, and not of a fence-breaking na

ture. Held, that the petition alleged a comLAWFUL EXCUSE

mon-law liability based on the stock owner's That provision for alimony made by a negligence in knowingly permitting vicious Nevada court is not enforceable against the animals to run at large, as well as the statuhusband, a resident of California, because no tory liability based upon plaintiff's mainjurisdiction of his person was acquired, does tenance of a “lawful fence,” within the statnot constitute a lawful excuse within Pen. ute. Posey v. Coleman (Tex.) 133 S. W. 937,

939. Code, $ 270, which makes it an offense for

Sayles' Ann. Civ. St. 1897, art. 2496, rea parent to willfully omit without lawful excuse to furnish necessary food, etc., for his fence at least five feet high, which shall be

quires every farmer, etc., to make a sufficient child. Ex parte McMullin, 126 Pac. 368, 370, hog-tight, around his cleared land. Article 19 Cal. App. 481.

2497 permits one injured by the trespass of

cattle or other stock to complain to a justice LAW EXPENSES

of the peace, who shall appoint two freeOther lawful expenses, see Other. holders to ascertain the sufficiency of the fence and the damages, and, if it appears that, descriptive of the whole line of lawful heirs.
the fence was sufficient, the owner of the Reilly v. Bristow, 66 Atl. 262, 264, 105 Md.
stock shall be liable for the damages. Article 326.
2498 authorizes the impounding of trespass-

The word “lawful," qualifying the word

ing stock for a second offense when the owner "heirs," is not sufficient per se to show an

of the premises deems it necessary for his intention not to use the word "heirs” in its

protection. . Article 2499 exempts the stock ordinary legal sense as a word of inheritance

owner from liability if the fence be insuf-

or of limitation. Wool V. Fleetwood, 48

ficient. Sayles' Ann. Civ. St. 1897, art. 4998, S. E. 785, 789, 136 N. C. 460, 67 L. R. A. 444.
as amended by Acts 1901, c. 123, provides
that any fence in a locality which has stat-

The words “lawful heirs," as used in a

utory restrictions upon the running at large will whereby the testator bequeathed his

of stock which is sufficient to keep out or residuary estate to his lawful heirs, without

dinary stock permitted to run at large under other or further designation as to who are in-

the chapter shall be deemed a lawful fence, tended as his beneficiaries, and directed that

and requires all such fences to be four feet the same should be equally divided among

high. Held, that the statutes were enacted to his lawful heirs, share and share alike, de-

give lanaowners complying with their re- scribed all the persons who, at the time of

quirements as to fences a special remedy for the death of the testator, answered the de-

damages by trespassing stock, irrespective scription of lawful heirs and were entitled

of negligence. Posey v. Coleman (Tex.) 133 to share in the residuary estate, regardless

S. W. 937, 939.

of the degree of their relationship to the tes-

Under Code Civ. Proc. c. 44, providing in order to determine who were the legal

tator, and resort must be had to the statute

that a corral fence exclusively for the pur- heirs of the testator. Mooney v. Purpus, 70

pose of inclosing stacks, if outside of any N. E. 894, 895, 70 Ohio St. 57.

lawful inclosure, shall be sufficient and law-

ful if it is not less than 15 feet distant from In construing a will using the words

the stacks, is substantially built with posts “legal heirs" and "lawful heirs,” the words

not more than 8 feet distant from each other "legal" and "lawful" do not modify or change

and with not less than 5 strands of barbed the legal effect of the word “heirs." Stisser

fence wire and not less than 5 feet high, and v. Stisser, 85 N. E. 240, 242, 235 Ill. 207.

that any other kind of fence which is as

In common parlance, the terms “heirs at

effective for the purpose of a fence as that law” and “lawful heirs” are used indiscrim-

above prescribed is lawful and sufficient, a inately as synonymous and convertible terms,

fence the posts of which were 17 or 18 feet and, whenever either is used, they invariably

apart, which approached the stacks in places refer to the heirs on whom descent is cast by

within 6 feet, consisted of but 4 strands of law, and not to an heir by adoption. The

barbed wire, and was only 46 inches high, relation of an heir by adoption is an excep-

was not a “awful fence.” Johnson v. Rick- tional and unusual one, and does not come

ford, 122 N. W. 386, 389, 18 N. D. 268.

within the ordinary and usual meaning of the

Rev. St. 1899, § 1973, defining a lawful words “lawful heirs,' and those words ought

fence, and providing that un ss the fence not to be held ex vi termini to include an

comes up to the requirements any person adopted heir. Hockaday v. Lynn, 98 S. W.

may have a right of action for damages re- 585, 589, 200 Mo. 456, 8 L. R. A. (N. S.) 117,

sulting from injuries to his live stock from 118 Am. St. Rep. 672, 9 Ann. Cas. 775 (citing

such illegal fence, refers to what is termed a Reinders v. Koppelman, 7 S. W. 288, 94 Mo.

"lawful inclosure,” and does not create a 338).

liability on the railroad company for the kill-
ing of live stock in collision with a train,

A devise to the testator's "lawful heirs"

where such stock strayed onto the right of should be construed as referring to those who

way because of a defect in the railroad's are such at the testator's death, unless a dif.

right of way fence. Martin v. Chicago, B. ferent intent is plainly manifested by the

& Q. Ry. Co., 89 Pac. 1025, 15 Wyo. 493.

will. Hill v. Hill, 132 N. W. 738, 739, 90

Neb, 43, 38 L. R. A. (N. S., 198.

LAWFUL HEIRS

A devise of land to testator's children,

See Personal and Lawful Heir.

Devise to lawful heirs as devise to class, subject to the provision that the share of

any child dying without issue of his body

see Class.

shall descend to the survivors of the chil-
The word “lawful” before the word dren, or the lawful heirs surviving any of
"heir" in a devise does not, in the absence of the children, gives to the children an estate
a contrary intent clearly indicated in the in fee, defeasible as to each on his dying
will, mean “legitimate." but means simply without leaving lawful issue, and on the
the person designated by law to take by de death of a child, without issue surviving, his
scent. Harrell v. Hagan, 60 S. E. 909-911, | interest passes to the surviving children or
147 N. C. 111, 125 Am. St. Rep. 539.

grandchildren surviving any of the children;
"Children" are embraced within the term the words "lawful heirs” meaning surviving
"lawful heirs,” but the word is not per se children and grandchildren of the devisees,

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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 S. 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 “awful heirs born of his wife," the son

should comprise the class known as the grandid 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. 437, 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, tbat defendant is not entitled to share

As children born in wedlock under the residuary clause. Warden Overman, 135 N. W. 649, 652, 155 Iowa, 1.

After death of testator and probate of Where a testator devises a parcel of real life, and on his death to his “lawful issue,"

his will, devising land in New York to B. for 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 death of the son, the wife takes as heir, subsequent marriage of the parents shall

legitimatize their children previously born, where there is nothing in the will tending to show that the testator used the words “law. B. had a lawful wife, M., by whom he had

were passed. Prior to either act, and while 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, 454.

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 granddaugbter 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. C. 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. 588, 131 N. C. 148, reaffirmed in 45 S. E. 904, 585. 134 N. C. 24; criticising Bird v. Gilliam, 28

Under the rule that, where statutes can 8. E. 489, 121 N. C. 328; Dawson v. Quid reasonably be construed to avoid conflict, Derly, 24 S. E. 483, 118 N. C. 188; Thompson that construction must be adopted.

Civ. v. Crump, 50 S. E. 457, 138 N. C. 32, 107 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 pur

Under a will, establishing a trust fund poses of inheritance, the illegitimate child 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 thereafter, in Michigan, obtained a divorce N. Y. 11, 76 Am. St. Rep. 238).

ance & Trust Co. v. Viele, 55 N. E, 311, 161 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 his 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 1872, gave property in trust for the testator's capita, it was the intent of the testator to son, with remainder to his “lawful issue." Clause to the lawful issue of his children, or

limit the phrase "lawful issue” in the first 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 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".

or

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