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DEEDS—Continued.

mind until her death twenty-two years thereafter, when the rest
of her heirs disaffirmed the deed, and brought suit for partition
and to quiet title. Held, that the action was not barred by the
statute of limitations.

Downham v. Holloway, 626.
4. By Person of Unsound Mind.—The deed of a person of unsound

mind not under guardianship is not void, but only voidable,
and vests the title to the real estate in the grantee the same as an
unimpeachable deed until disaffirmed by the grantor on becoming

sane, or by his heirs after death. Downham v. Holloway, 626.
5. Voidable Deed.Disaffirmance. -An action to give force to the

disaffirmance of a voidable deed does not accrue until after a dis-
affirmance.

Downham v. Holloway, 626.
DESCENT AND DISTRIBUTION-See EXECUTORS AND ADMIN-

ISTRATORS; WILLS.
1. Executors and Administrators.-Wills.—Where a husband by the

terms of his will gave all of his property to his wife for life and
the portion remaining at her death to certain residuary legatees,
the portion remaining at the death of the widow remained a part
of the estate of testator, and the widow's administrator had no
authority or control over the same.

Jester v. Gustin, 287.
2. Action for Debt Due Ancestor.Wills.-A complaint for the bal-

ance of purchase money of real estate, payable at the death of
grantor, bequeathed to plaintiff, which shows that there were no
debts against the estate of the testator, nor any administrator,
executor, creditor, legatee, widow, or other person, except plain-
tiff, entitled to recover the same, is sufficient.

Jester v. Gustin, 287.
DIVORCE_Support and custody of children, see PARENT AND

CHILD; Leibold v. Liebold, 60.
Custody of Minor Children.-— Modification of Decree.-In divorce cases,

the court has continuing jurisdiction with respect to children,
and may modify its decree at any time during the minority of
the children, without a specific reservation in the decree of such
authority. Sullivan v. Learned, 49 Ind. 252, overruled.

Stone v. Stone, 628.
DRAINS—Appeal from judgment ordering an allotment for re-

pairs, see APPEAL AND ERROR, 1; Pittsburgh, etc., R. Co. v. Gil-

lespie, 454.
1. Appeal.-- Transcript.-— Record.-

Where the transcript of the pro-
ceedings on appeal from an order of the board of county com-
missioners establishing a drain contains only the proceedings of
the board had after the cause was remanded from a former ap-
peal, and does not show that any petition for drainage, or
remonstrance against the same, was ever filed, or that any
viewers were ever appointed or made any report, a transcript
of the former appeal showing the petition, remonstrance, appoint-
ment of viewers, and their report, is improperly included in the
record in an appeal to the Supreme Court from a judgment of the
circuit court dismissing the last appeal, and the same cannot be
considered by the Supreme Court in determining whether the
court below erred in dismissing the last appeal.

Toy v. Craig, 444.
2. Railroads.-Benefits.-Evidence. -Evidence by an expert civil en.

gineer, experienced in railroad construction and maintenance

DRAINS_Continued.

in swamp land, in a proceeding to establish a drain, as against
the remonstrance of a railroad company, relative to the cost of
the maintenance of a railroad bed made of muck soil when satu-
rated by seepage from standing water and when dry and free from
standing water and the relative value of the property ander the two
conditions was competent as tending to establish benefits.

Pittsburgh, etc., R. Co. v. Machler, 159.
3. Railroads.Benefits.Evidence. -Evidence in the trial of a pro-

ceeding to establish a drain, over the remonstrance of a rail-
road company, that the drain would carry off the water from the
side ditches of the railroad company that had no outlet, and as
to the general sufficiency of the drain to convey the water away
from the vicinity of the railroad, and thus make unnecessary the
construction of another bridge in the neighborhood, was compe-
tent as tending to show benefits to the railroad company by the

construction of the drain. Pittsburgh, etc., R. Co. v. Machler, 159.
4. Railroads.Constitutional Law.—The State has the right to author-

ize the improving of a drain across the right of way of a rail.
road company by deepening and widening a natural channel,
and such an act is not in violation of the State or federal Con-
stitution.

Pittsburgh, etc., R. Co. v. Machler, 159.
6. Notice.- Waiver.-Remonstrance.-

Where a railroad company af-
fected by the construction of a drain was served with notice
twenty days before the petition was docketed, and within the
time prescribed by the statute, and appeared, and filed a re-
monstrance challenging the assessment against its right of way,
without making any objection to the sufficiency of the notice, or
the regularity in filing the petition, such act will be held to con-
stitute a waiver of all questions pertaining to the jurisdiction of
the court.

Pittsburgh, etc., R. Co. y. Machler, 159.
ELECTIONS-
Primary Election Law.-The act of 1901 (Acts 1901, p. 495) known

as the primary election law does not govern nominations for
office which are required to be filled by the voters of a district
composed of more than a single county.

State, ex rel., v. Elliott, 168.
EMINENT DOMAIN-
1. Sewers.- Assessments.-An assessment for a sewer is against the

property, and not against the owner of the property, and it does
not follow that plaintiff was not compensated for land taken for
the construction of a sewer because the assessment for the con-
struction thereof was made in the wrong name.

Gas Light, etc., Co. v. City of New Albany, 268.
2. Public Improvements. — Assessment of Benefits and Damages.-Mu-

nicipal Corporations.- Where a public improvement, such as usually
conveys with it both benefits and damages, is laid upon land
under the right of eminent domain, the compensation of the
owner is determined, in the absence of a statute forbidding it,
by taking into account both the benefits and damages; and where
in such case benefits have been assessed against property it
will be conclusively presumed, as against a collateral attack, that
the damages, if any, have been estimated and deducted from the
aggregate amount of benefits.

Gas Light, etc., Co. v. City of New Albany, 268.
EMPLOYERS LIABILITY ACT–See MASTER AND SERVANT.
EQUITY_Suit for support of child, see COURTS, 4; Leibold v. Lei-

bold, 60.

ESTATES-See LIFE ESTATE.

EVIDENCE-See WITNESSES.
Proof of contributory negligence in personal injury cases, see

TRIAL, 3; Indianapolis Street R. Co. v. Taylor, 274.
Reversal of cause on the evidence, see APPEAL AND ERROR, 34;

Carver v. Forry, 76.
1. Testimony of Witness at Former Trial. -Stenographer.- Where a

witness at å former trial remains competent and qualified, a
resident of an adjoining county, temporarily absent from the
State, and no diligence has been shown to procure his depo-
sition or secure his personal attendance, it is not proper to permit
a stenographer to testify in the trial of the cause as to what the
absent witness swore to at the former trial.

Wabash R. Co. v. Miller, 174.
2. Death of Party to Contract. Testimony by Survivor.– No error was

committed in permitting defendant to testify in an action for
the redemption of real estate from execution sale concerning an
agreement between him and the execution defendants, one of the
execution defendants having died, where the testimony of the
deceased, given apon a former occasion, was introduced in evi.
dence.

Turpie v. Lowe, 314.

EXECUTORS AND ADMINISTRATORS-See DESCENT AND DIS-

TRIBUTION.
1. Action by Administrator.-Complaint.-- Demurrer.-In an action by an

administrator on a note made payable to decedent, a demurrer
for want of facts raises the question as to whether it sufficiently
appears from the complaint that the plaintiff is suing in his rep-
resentative capacity.

Toner v. Wagner, 447.
2. Action by Administrator.-Complaint.--In an action by an admin-

istrator on a note made payable to his decedent, a complaint
is sufficient, as against a demurrer for want of facts, which com-
plaint in its title and the body thereof designates plaintiff as
administrator of decedent, though the complaint contains no alle-
gation of decedent's death and the issuing of letters to plaintiff.

Toner v. Wagner, 447.
3. Claims Against Decedent's Estate.Pleading and Proof.- Variance.

-The rule that where the complaint is based upon an implied con-
tract a recovery cannot be had on an express contract does not
apply to a mere statement of a claim filed against a decedent's
estate.

Masters v. Jones, 647.
4. Claims Against Decedent's Estate. -Guardian of Insane Person.-

One who renders services for an insane person, under guardian.
ship, at the instance of the guardian, may, at the death of the
ward, enforce his claim against the estate of the deceased in the

hands of his executor or administrator. Masters v. Jones, 647.
5. _Claim Against Decedent's Estate.-Care of Decedent by Member of

Family.--Adult daughters who took care of their father while
he was insane, at the instance of his guardian, are not precluded
from recovering from his estate compensation for such services
by reason of the fact that prior to his insanity they resided with
him as members of his family.

Masters v. Jones, 647.
6. Guardian of Insane Person.Care of Ward.—The guardian of an

insane person may by direction of the court, or subject to the
subsequent approval of the court, employ a suitable person to

EXECUTORS AND ADMINISTRATORS—Continued.

care for his ward and furnish him with necessaries at the expense
of the ward's estate.

Masters v. Jones, 647.
7. Funeral Expenses of Decedent.— Tombstone. --The reasonable and

necessary cost of a tombstone or monument placed at the grave of
a deceased person may be classed as a part of the funeral expenses,
and paid for by the administrator out of the funds of the estate.

Pease v. Christman, 642.
EXEMPTION-From taxation of property devoted to charitable

purposes, see TAXATION, 4; Vink v. Work, 638.
EXHIBITS–See PLEADING.
EXPERT TESTIMONY-As to benefits of drain, see DRAINS, 2;

Pittsburgh, etc., R. Co. v. Machler, 159.
FEES AND SALARIES-
1. Constitutional Law. The fee and salary law of 1891 by the amend.

ment of 1893 was freed from the constitutional invalidity as to
auditors, treasurers, and recorders held to exist against it as
originally enacted.

Shilling v. State, ex rel., 185.
2. Erroneous Decision of Supreme Court, Effect on Salary of Officers

Until Reversed.—The decision in State, ex rel., v. Boice, 140 Ind.
506, holding the county fee and salary act of 1891 unconstitu-
tional, which was afterwards overruled by Walsh v. State, ex
rel., 142 Ind. 357, did not operate to give county officers a right
to charge and collect fees under the fee and salary act of 1879
during the time it remained anreversed; since the rule that
contract rights acquired under an interpretation of the law made
by the Supreme Court are not devested by a subsequent decision
to the contrary does not apply to the claims of public officers to
fees or salaries established by law.

Board, etc., 531.
FRATERNAL INSURANCE-See INSURANCE, 5, 6; Modern Wood-

men v. Noyes, 503.
FRAUDS, STATUTE OF-
1. Parol Contract to Convey Land.-Enforcement.-Where a parent

makes a parol promise to a child to convey a tract of land
if the child will take possession of, reside upon and improve
the same, and in reliance upon the promise the child takes pos-
session and makes improvements of a permanent and valuable
character, such promise rests upon a valuable consideration; and
performance on the part of the child takes the oral contract out of
the operation of the statute of frauds, and a court of equity will
decree a specific performance of the contract.

Horner v. McConnell, 280.
2. Sale of Corn.Oral Contract. -- Damages for Failure to Perform.

Complaint.--In an action to recover damages for failure to com.
ply with an oral contract for the sale of corn, for a price in
excess of $50, an allegation in the complaint that “defend-
ant delivered to plaintiff" a part of the corn, “but has failed,
refused, and neglected to deliver any more of the same,” is
not suffcient to render such oral contract enforceable under the
statute of frauds, without a further allegation that the property
delivered was received.

Goodwine v. Cadwallader, 202.
FREE GRAVEL ROADS_See HIGHWAYS.

Gross V.

FT. WAYNE CHARTER–Appointment of municipal judge, see

MUNICIPAL CORPORATIONS, 1, 2; State, ex rel., v. Berghof, 349.
GAS-Discrimination in rates, see CONSTITUTIONAL LAW, 9; Indiana,

etc., Gas Co. v. State, ex rel., 516.
GRAVEL ROADS See HIGHWAYS.
GUARDIAN AND WARD—Appointment of guardian for insane

person, see INSANE PERSONS, 1, 2; Soules v. Robinson, 97.
Custody of Orphan Minor Child.-Wishes of Ward.—The guardian of an

orphan minor child is entitled to the custody and control of such
child, and the desire of the ward is not controlling..

Palin v. Voliva, 380.
HIGHWAYS—Railroad and highway crossings, see RAILROADS,

2, 3, 4; Chicago, etc., R. Co. v. State, ex rel., 189.
1. Free Gravel Roads.-Construction.Notice of Petition.--Notice of

the presentation of a petition for the construction of a free gravel
road stating that the petition would be presented on the first
day of the next term of the board of commissioners, “which
will be held on the first day of May," instead of stating that it
would be held on the first Monday of May, as provided by stat-
ute, is not so defective as to render the notice invalid, since all
persons were required to take notice of the time fixed by statute.

Gifford v. Baker, 339.
2. Free Gravel Roads.Construction.Notice of Petition. -An objec-

tion to the form of a notice of the presentation of a petition
for the construction of a free gravel road, not presented until
after the board acted on the petition, is too late.

Gifford v. Baker, 339.
3. Petitions.- Consolidation.-Two petitions for the construction of a

free gravel road, presented to the board at the same time, may
be treated as one petition.

Gifford v. Baker, 339.
4. Free Gravel Roads. - Assessments.-Duty of Auditor.–Where assess-

ments for the construction of free gravel roads have been con-
firmed by the county commissioners, it is the duty of the county
auditor to spread the report upon the record, and to place such
assessments, not stayed by judicial process, upon a duplicate for
collection, leaving the question of the validity of the assessments
to the landowners.

Smyth v. State, ex rel., 332.
6. Assessments for Gravel Road.- Appeal. Presumption.—Where a

part of the landowners assessed for a free gravel road successfully
appeal from the confirmation of the assessment, but it appeared
that more than half of the total estimated cost had been expended
before the appeal was decided, it will be presumed that those not

appealing received adequate benefit. Smyth v. State, ex rel., 332.
6. Gravel Road.-Assessments. - Conclusiveness. — Where the original

petition for a free gravel road is sufficient on its face, and the
board of commissioners, after notice to landowners, and without
remonstrance by them, adjudges the petition sufficient, such land-
owners are bound thereby.

Smyth v. State, ex rel., 332.
7. Free Gravel Roads.Remonstrance.Trial.-Burden of Proof.—The

burden of proof is on the remonstrants in the trial of a proceeding
for the construction of a free gravel road, since the statute makes
the report of the viewers prima facie evidence of the facts therein
contained.

Gifford v. Baker, 339.
8. Free Gravel Roads.- Assessments. — Appeal from Commissioners.-

Assessments made by the board of commissioners for free gravel

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