WILLS-INOPERATIVE TRUST VESTS BENEFICIAL INTEREST IN Heir at
LAW.-When a bequest is declared upon its face to be upon such
trusts as the testator has otherwise signified to the devisee, he takes no
beneficial interest; and if the trusts are not sufficiently defined by the
will, or other writing identified as part of it, the equitable interest goes
to the heirs, or next of kin, as property of the deceased not disposed of
by the will. Heidenheimer v. Bauman, 29.
See EXECUTORS AND ADMINISTRATORS, 1; TRUSTS, 4.
DIRECTORS.
See CORPORATIONS, 3.
See ATTORNEY AND CLIENT, 4-7.
DISCRIMINATION.
See ELECTIONS, 1; STATUTES, 9.
See INJUNCTIONS, 5, 6; PARTNERSHIP, 2
DISTRIBUTION.
See PARTITION, 2.
See DRAINS; Waters, 3, 12–19.
DIVERSION.
See WATERS, 4–10, 18, 19.
See MUNICIPAL CORPORATIONS, 4.
See EXECUTORS AND ADMINISTRATORS, 2; TAXES, 1.
1. INCHOATE RIGHT OF, DEFEATED BY PARTITION SALE. —The seisin of
a husband who acquires title to land as a tenant in common with
others is subject to the paramount right of his co-tenants to demand
partition. His wife's right of dower therein is therefore subordinate to
that paramount right, which, when enforced by a sale made under
decree of the court, defeats her inchoate right of dower in the land,
although she was not a party to the action for partition. Holley v.
Glover, 883.
2. EFFECT OF CONVEYANCE BY HUSBAND TO THIRD PERSON BEFORE PAR
TITION. - Where a husband holding land as a tenant in common, in
which his wife has an inchoate right of dower, conveys his interest
to another person, and the land is thereafter sold under a decree of
court in an action for partition to which the husband is a party, but
not the wife, such right to dower is defeated, not because the husband
was not the wife's representative, but by the exercise of the right of
partition, which was paramount to it. The wife was not a necessary
party to such action. Holley v. Glover, 883.
See HIGHWAYS; License, 5; MUNICIPAL CORPORATIONS, 9.
DUE PROCESS OF LAW.
See CRIMINAL Law, 2; Statutes, 11.
See EJECTMENT, 1; LICENSE, 1; RAILROADS, 5.
1. EJECTMENT WILL LIE ONLY FOR THINGS whereof possession may be de-
livered, and it will not lie for a mere license, an incorporeal heredita-
ment, right of way, or an easement. Hancock v. McAvoy, 774.
2. EJECTMENT FOR RIGHT OF INTERMENT IN BURIAL LOTS. — The exclusive
right of sepulture in the burying-ground of a cemetery corporation sub-
ject to its regulations is a mere license, and will not support an action of
ejectment. Hancock v. McAvoy, 774.
1. CONSTITUTIONAL LAW-PARTY HEADINGS. - A statute prescribing the
form and contents of ballots to be voted at an election, and provid.
ing that a cross shall be stamped opposite the name of every candidate
intended to be voted for, except that the names of political parties
which have filed certificates of nominations made by them may be
printed at the head of all ballots, and a person intending to vote for all
the candidates of any of such parties may stamp a cross opposite the
name of such party, and shall then be deemed to have voted for all its
nominees, is unconstitutional in so far as it permits the names of politi.
cal parties to be so printed and their candidates to be so voted for,
because it is an attempt to discriminate against classes of voters not
belonging to any of such parties, by subjecting them to the alternative
of disfranchisement, or of casting their votes upon more burdensome
conditions than are imposed upon others no better entitled to the free
and untrammeled exercise of the right of suffrage. Eaton v. Brown, 225.
2 AUSTRALIAN BALLOT LAW IRREGULARITY IN BALLOTS, WHEN WAIVED.
-When, under election laws, public officers are intrusted with the prep-
aration and form of ballots to be used, and ample provision is made
for the correction of errors therein, either by a candidate or other elec-
tor before the election is held, any objection to irregularities in the
form of the ballot, or to the presence thereon of a name not entitled to
be there, must be regarded as waived by a candidate, after the election
has been held and such ballots have been voted. Allen v. Glynn, 304.
AUSTRALIAN BALLOT LAW-BALLOTS WITH CROSS AT HEAD, HOW
COUNTED-ERRONEOUS PLACING OF CANDIDATE. When, under the
Australian system of voting, the name of an opposing candidate is
erroneously placed upon a ballot prepared by public officers, all such
ballots cast with a cross at the head thereof will be counted for such
candidate, and it will not be presumed that the elector casting such bal.
lot does not wish nor intend to vote for any candidate for that particular
office. Allen v. Glynn, 304.
4 METHOD OF VOTING UNDER "Australian" SYSTEM. — Under the "Aus-
tralian ballot system," an elector desiring to vote an entire ticket need
only put a cross at the head of the ballot; but if there is a single candi.
date on the ticket whom he does not wish to vote for, he must omit the
cross at the top, and place it opposite the name of every candidate voted
for, in order that his ballot may not be counted for the candidate falling
under his displeasure. Allen v. Glynn, 304.
ERRORS OF PUBLIC OFFICERS IN PRINTING BALLOTS WILL NOT INVALI
DATE. When the election laws provide severe penalties against public
officers for violations thereof, a failure of such officers to publish the
names of candidates as required, or error in printing their names under
the wrong party title, will not necessarily invalidate the ballots so
printed and voted at an election. Allen v. Glynn, 304.
ERRORS OF PUBLIC OFFICERS WILL NOT INVALIDATE. - While election
laws are mandatory in the sense that they impose a duty upon those who
come within their terms, yet, when public officers are intrusted with
the preparation of the ballots voted, the election will not be invalidated
because of every departure on the part of such officers from the term-
of such laws. Allen v. Glynn, 304.
7. ELECTION CONTEST-RIGHT TO HOLD over. - On the trial of an election
contest, pure and simple, the right of the contestor to hold over under
an appointment to the office in dispute will not be considered. Allen v.
Glynn, 304.
See CONSTITUTIONS, 4-6; REWARDS, 1, 2; STATES, 1; Statutes, 18–20.
See RAILROADS, 29, 30; TELEPHONES, 1.
A SERVANT RECEIVES MONEY FROM THE SALE OF GOODS OF HIS MAS-
TER and drops it into a money-drawer of a cash register, having an
intent to appropriate it, and slips it into the drawer for his own con-
venience in keeping it for himself, his subsequently taking it from
the drawer and appropriating it to his own use is not larceny, but
embezzlement; nor is the fact that the money had been furnished by
the master to a detective for the purpose of making the purchase, and
thereby fastening the crime on the servant, make his offense any less an
embezzlement. Commonwealth v. Ryan, 560.
HIGHWAYS-PRIVATE PROPERTY CANNOT BE TAKEN FOR PRIVATE ROAD,
— A constitutional provision authorizing the taking of private property for
public use prohibits, by implication, the taking of private property for
any private use whatever without the consent of the owner. The es-
tablishment of a highway over the land of one person for the mere con-
venience of an adjoining owner is, therefore, prohibited by implication
by such constitutional provision. Richards v. Wolf, 501.
& LAND OWNED BY RAILROAD OR GAS COMPANY MAY BE TAKEN FOR WHARI
PURPOSES UNDER NEW YORK CONSOLIDATION ACT.-Although prop
erty devoted to one public use will not be regarded as subject to the
right of condemnation for another public use, unless the statute plainly
grants such right, it is not necessary that the statute should, in terms,
so enact, but it is sufficient if the right is conferred by necessary impli
cation from the language used. The New York consolidation act con-
tains a sufficient grant of power to include in condemnation proceedings
property of the nature therein described, even when owned by a rail-
road or gas company, and used by it for landing freight or other prop-
erty; and it is not necessary, in such proceedings, to show that the
property to be taken is needed for the purpose of building any particu-
lar pier, dock, or bulkhead, if it be required to carry out the general
plan. In re Mayor of New York etc., 825.
& DAMAGES. DISTINCT TRACTS OF LAND connected only by means of a
way, either private or public, cannot be treated as one for the assess-
ment of damages inflicted under the exercise of the right of eminent
domain. Pennsylvania Co. v. Pennsylvania etc. R. R. Co., 762.
4 DAMAGES-ABUTTING PROPERTY. - A parcel of land some distance re-
moved from a street, and connected with property abutting thereon only
by means of a private way, cannot be treated as abutting property for
the purpose of claiming damages inflicted by the exercise of the right
of eminent domain. Pennsylvania Co. v. Pennsylvania etc. R. R. Co., 762
DAMAGES-ABUTTING OWNERS. - Property must be actually invaded,
or it must abut upon a highway that is invaded in the exercise of the
right of eminent domain, to entitle the owner thereof to recover dam.
ages. Pennsylvania Co. v. Pennsylvania etc. R. R. Co., 762.
See CORPORATIONS, 1; RAILROADS, 1, 2; WATERS, 13; WHARVES.
See HUSBAND And Wife, 2; MECHANIC'S LIEN, 5.
1. PRACTICE IN CHANCERY.-THE RELIEF WHICH MAY BE GRANTED in a suit
in chancery must be restricted to the issues formed by the pleadings.
Hence if the suit is to restrain the prosecution, by defendant, of actions
of ejectment or for specific performance, and if that is refused, for the
allowance of the value of complainant's improvements on the property,
the court cannot, in the absence of affirmative pleadings on behalf of
the defendant, decree, after the cause has been submitted for decision,
that the defendant be allowed to file a cross-bill, and upon the filing of
such cross-bill on the same day, enter a decree against complainant for
the possession of the property, and for a sum specified for the use, en-
joyment, rents, and profits thereof. Metcalf v. Hart, 122.
2 JURY IN EQUITY CASES-INSTRUCTIONS. In cases of equitable cogni
zance, triable with or without a jury, the court may call a jury to try
such specific questions of fact as may be presented to it, reserving to
itself the power to make its own findings upon consideration of the evi-
dence and the verdict of the jury, and in such cases the court may re-
fuse to give the jury any instructions. Saint v. Guerrerio, 32.
& LICENSE-PROTECTION OF, IN EQUITY.-When, by authority of a parol
license, the licensee has been put in possession and induced to place
valuable improvements on the land, of which he would be defrauded
and robbed by the revocation of the license, equity will interpose, and
either forbid the licensor to revoke the license, or impose such terms as
will avoid fraud and acomplish what justice and good conscience de-
mand. Metcalf v. Hart, 122.
See CORPORATIons, 6; Fraudulent Conveyances, 2; Husband and Wife,
5; INJUNCTIONS; JUSTICES OF THE PEACE; MORTGAGES, 5, 11; Parties,
1; PARTITION, 2; TRIAL, 3, 6; Trusts, 6.
See APPEAL, 3; TRIAL, 12.
LIFE ESTATE CANNOT BE ENLARGED INTO FEE By Warranty CLAUSE IN
DEED. - Where a deed, owing to the absence of words of inheritance in
the conveying part, creates only a life estate in the grantee, such estate
cannot be enlarged into a fee by the use of the word "heirs" in the war-
ranty clause. Jordan v. Neece, 869.
See DEEDS, 1; PARTITION, 1.
ACTUAL OWNERS OF LAND NOT ESTOPPED FROM ASSERTING THEIR RIGHTS
WHEN. - Although a declaration of trust made and recorded by
the members of a syndicate formed for the purchase of lands declares
that a certain interest in such lands belongs to a party who has
made false representations to them, yet where such declaration was
made in ignorance, which was not chargeable to neglect, and the person
to whom the party who made the false representations mortgaged the
lands had no knowledge of the execution of the declaration, the actual
owners of the lands are not estopped from asserting their rights thereto.
Shoufe v. Griffiths, 910.
80e Banks, 4; Husband and Wife, 5; Insurance, 4; Judgments, 10, 11.
1. WILLS · EVIDENCE OF TESTATOR'S INTENT. — Parol evidence is admissi
ble to give effect to an intention expressed in a will, but such evidence
is never admissible for the purpose of showing a testator's intention by
proof of his oral declarations of intent, either as to the persons who shall
take his estate, or as to what particular part of his estate any one person
was intended to receive. Heidenheimer v. Bauman, 29.
2 CONSIDERATION OF A DEED may be proved by parol to be wholly differ
ent from that expressed therein. Moffatt v. Bulson, 192.
& LETTERS FORMING PART OF SAME CORRESPONDENCE, ADMISSIBLE IN EVI.
- When, in action on an insurance policy, the defendant
has introduced in evidence its letters to the plaintiff in relation to the
loss in question, the plaintiff has the right to put in evidence letters
written by him to the defendant, which form a part of the same corre
spondence, although they contain declarations prejudicial to the defend.
Graves v. Merchants' etc. Ins. Co., 507.
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