We fully agree with appellants' counsel that a complaint must proceed upon a definite theory, and be sufficient upon the theory adopted, but we cannot agree that the rule stated condemns the appellee's complaint. The theory of the complaint is, that the appellee is entitled to an injunction, and to that theory the facts stated are fitted. It is true that the complaint characterizes the culvert as a nuisance, and it may possibly be true that it is not a nuisance (a question it is not necessary to decide); but granting that it is not, still the facts stated show a right to the relief prayed, and sustain the general theory of the pleading. Against facts, epithets are of little force, and here there are substantive facts showing a clear right and its wrongful invasion. It may be true that the appellee is not entitled to all the relief prayed, but if it were conceded that he is not, it would not warrant the conclusion that the complaint is bad, for the law is, that if the complaint shows the plaintiff entitled to a part of the relief demanded it will repel a demurrer: Bayless v. Glenn, 72 Ind. 5.

We cannot disturb the finding upon the evidence.

The appellee has assigned as cross-error the refusal of the court to embody in the decree an order abating the culvert as a nuisance. As the court awarded an injunction against the maintenance of the culvert, we cannot perceive that the appellee was harmed by the refusal of the court to modify the decree in the particular indicated.

The appellee also asked the court to modify the decree by striking out one of its provisions. The motion and the part of the decree objected to are properly brought into the record by a bill of exceptions, so that it is our duty to decide the question presented. It is a mistake to suppose that an ap pellee who properly saves a question, and duly presents it by the assignment of cross-errors, is not entitled to affirmative relief. An appellee may do more than save costs or prevent a reversal by appropriately assigning cross-errors. He may in many instances accomplish as much by the assignment of cross-errors in a case appealed by his adversary as by himself prosecuting an appeal: Johnson v. Culver, 116 Ind. 278; Feder v. Field, 117 Ind. 386; Shinkle v. First Nat. Bank, 22 Ohio St. 516; Collins v. Davis, 32 Ohio St. 76.

The part of the decree which we deem subject to the objections urged by the appellee is that indicated in the first

specification of the appellee's motion to modify. That part should be eliminated. The part of the decree indicated assumes to declare what the township officers shall do in the way of constructing drains for the highway. We regard it as quite clear that the court cannot direct how or when drains shall be constructed by highway officers, inasmuch as the control of that matter is committed to those officers, and not to the courts: Weaver v. Templin, 113 Ind. 298, and cases cited; City of Fort Wayne v. Cody, 43 Ind. 197, and cases cited. We should hold that the error in directing the highway officers where and how to construct the drains was one of which the appellee could not successfully complain if it were not for the fact that the order provides that they shall be constructed, in part, at least, on his land. As all the parts of the decree affecting this particular matter are inseparably blended, the whole clause must be struck out, and the decree be so remodeled as to award an unconditional injunction.

The judgment is reversed upon the appellee's assignment of cross-errors, and affirmed upon the appellants' assignment of errors. The trial court is instructed to modify the decree as herein indicated, and to proceed in accordance with this opinion.

SURFACE WATERS, RIGHTS OF ADJACENT LAND-OWNERS AS TO. - Owner of higher land has no right to collect surface water and discharge it on the land of another, and if he does so, he will be liable for the damage sustained: Rychlicki v. City of St. Louis, 98 Mo. 497; 14 Am. St. Rep. 651; Fremont etc. R. R. Co. v. Marley, 25 Neb. 138; 13 Am. St. Rep. 482; Illinois Central R. R. Co. v. Miller, 68 Miss. 760; Beach v. Gaylord, 43 Minn. 476 (a case in which the water was collected into gutters from a house roof, and discharged then by a pipe). As regards the drainage or diversion of surface water, a railroad company enjoys the same (but no greater) privileges as any other landowner: Jenkins v. Wilmington etc. R'y Co., 110 N. C. 438. To prevent the wrongful diversion of surface water, injunction is the proper remedy: Dayton v. Drainage Comm'rs, 128 Ill. 271.

SURFACE WATERS, LIABILITY OF MUNICIPAL CORPORATIONS FOR DIVERBION OF. This subject was discussed in the note to Goddard v. Harpswell, 30 Am. St. Rep. 390, and the cases in the series supporting the gener ally admitted principle, that no responsibility attaches where the diversion is merely incidental to and occasioned by the making or alteration of street grades, collected. Miller v. Morristown, 47 N. J. Eq. 62, is another recent authority for the same view. On the other hand, a municipal corporation is liable for collecting surface water by artificial means, and casting it upon the premises of another, in increased and injurious quantities. See extended note to Chalkley v. Richmond, 29 Am. St. Rep. 742, 743; Field v. West Orange Tp., 46 N. J. Eq. 183; Haus v. Borough of Bethlehem, 134 Pa. 8t. 12.

PLEADING. The demand in the complaint is no part of the cause of action, and does not give it character. The facts alleged do this, and plaintiff is entitled to such relief as they warrant: Strain v. Babb, 30 S. C. 342; 14 Am. St. Rep. 905.

HARRISON V. BISHOP.

[181 INDIANA, 161]

WILLS MADE BY PERSONS Under GuardiANSHIP. — One who has been adjudged to be of unsound mind and placed under guardianship is not necessarily incompetent to make a will, though such adjudication has never been set aside.

WILLS-CAPACITY TO MAKE. One's mental powers may be so far impaired as to incapacitate him from the active conduct of his estat^, and to justify the appointment of a guardian for that purpose, and yet have such capacity as will enable him to direct a just and fair disposition of his property by will.

WILLS-BURDEN OF PROOF. IF A TESTATOR, AFTER BEING ADJUDGED MEN

TALLY UNSOUND and placed under guardianship, executes a will, the burden is upon those who seek to uphold it to show by clear and satisfactory evidence that at the time of its execution he had the requisite degree of mental capacity.

R. N. Lamb and R. Hill, for the appellants.

J. S. Duncan and C. W. Smith, for the appellees.

MCBRIDE, J. Counsel agree that the only question involved in this case is, "Whether a person who has been adjudged to be a person of unsound mind, at any time, and for whom a guardian has been appointed, and as to whom such adjudication of mental unsoundness has never been set aside in the manner provided by statute, can, while such adjudication and guardianship exist, make a valid will devising real estate."

In view of this agreement, a very brief statement of the facts will suffice.

In the year 1868, Thomas Harrison was, by the common pleas court of Marion County, duly adjudged of unsound mind, and incapable of managing his estate. Thereupon the court appointed a guardian of his person and estate, who duly qualified and entered upon the discharge of the duties of his trust. Harrison was never thereafter in any proceeding had adjudged to have regained soundness of mind, and continued under guardianship up to the time of his death, March 21, 1888. While thus under guardianship, he executed a paper

purporting to be his last will and testament. He died in Marion County, March 17, 1890, and the will was offered for and admitted to probate in the office of the clerk of the Marion circuit court, and an administrator with will annexed was duly qualified as such, and is engaged in discharging the du ties of his trust. If the will is valid, its effect is to devise certain real estate in Marion County.

The question thus presented was considered, and at least inferentially decided, in the case of Stevens v. Stevens, 127 Ind. 560. We see no reason to change our opinion as indicated in that case. However, the question as now presented to us requires an express adjudication of the question, and it is therefore proper, and perhaps necessary, that we briefly review the ground.

Section 2556 of the Revised Statutes of 1881 provides that "all persons, except infants and persons of unsound mind, may devise, by last will and testament, any interest, descendible to their heirs, which they may have in any land," etc.

Section 2544 of the Revised Statutes of 1881 provides that "the words 'persons of unsound mind,' as used in this act, or any other statute of this state, shall be taken to mean any idiot, non compos, lunatic, monomaniac, or distracted person."

Section 2545 of the Revised Statutes of 1881, and the sev eral sections immediately following, provide for the appointment of a guardian for a person who is of "unsound mind, and incapable of managing his own estate."

The guardian thus appointed has the custody both of the person and of the estate of his ward.

The guardianship terminates with the restoration to reason or the death of the ward: Rev. Stats. 1881, sec. 2552.

Provision is made for trying the question of restoration to reason of such person: Rev. Stats. 1881, sec. 2553.

Section 2551 of the Revised Statutes of 1881 provides that every contract, sale, or conveyance of any person while of unsound mind shall be void."

The contention of the appellee is substantially as follows: That after one has been adjudged of unsound mind, and incapable of managing his estate, and placed under guardianship, there is an absolute incapacity on his part to contract, or in any other manner to transact any business relating to the management of his estate; that the adjudication in such case is conclusive as to his entire want of capacity in that respect; that his status is thereby not only definitely fixed, but

that it thereafter continues unchanged during the existence of the guardianship; that although he may, in fact, recover his reason, until that fact has been formally and judicially determined, his entire disability continues; that a person of unsound mind cannot make a valid will, and that a will is a form of conveyance, and therefore embraced within the terms of section 2554 of the Revised Statutes of 1881, and void also for that reason.

Assuming that the appellee is entirely right in so far as relates to the disability of one of unsound mind, under guardianship, to transact any business whatever relating to the management of his estate, does it necessarily follow that he may not have both the power and the requisite capacity to make a valid testamentary disposition of it? Does the adjudication as to his capacity to manage his estate necessarily involve an adjudication that he has not the capacity to dispose of it by will?

The right to make testamentary disposition of property, while, perhaps, uniformly regulated by statute, is by no means created by statute, but is a right common to civilized people in all ages. Our statute, therefore, while regulating the manner of exercising that right, cannot be said to confer it. No statute in this state, in terms, deprives those of unsound mind of the right to make a will. Nevertheless, a person of unsound mind cannot make a valid will. The disability, while not directly declared, is a legitimate and necessary inference from the language of the statute, which declares that all persons, except infants and persons of unsound mind, may make wills. The intention of the legislature to deny that right to those of unsound mind is plain. The disability thus inferentially declared does not depend upon or arise out of an adjudication of mental unsoundness, but rests upon the fact of mental unsoundness, regardless of any adjudication whatever upon the subject. One in fact of unsound mind cannot make a valid will, whether he has ever been so adjudged or not.

ness.

The law, however, recognizes degrees of mental unsoundNot every degree of mental unsoundness is sufficient to destroy testamentary capacity: Lowder v. Lowder, 58 Ind. 538; Burkhart v. Gladish, 123 Ind. 337.

What degree of mental capacity will suffice to empower one to make a valid will has been frequently considered by the courts. In Lowder v. Lowder, 58 Ind. 538, this court approved an instruction to the jury in the following terms: "In