STREET RAILROADS—Continued.
plaintiff for all the injury received by him after the car could
have been stopped, but was not, is erroneous, as it cannot be said
that the facts stated in the instruction show, as a matter of law,
a willingness to inflict the injury.
Indianapolis St. R. Co. v. Taylor, 274.
9. Wilful Injury.—Evidence.—A judgment for defendant in an action
against a street railroad company for wilfully injuring a deaf
mute thirteen years of age, at a street crossing, will not be
reversed on the evidence, where the motorman testified that
there were trees between the sidewalk and curb which ren-
dered it difficult to see a person at the side of the street; that he
sounded the gong at some distance from the crossing; that he first
saw the boy "hopping along towards the track" when the car
was fifteen or twenty feet from the crossing and sounded the gong
and reversed his car as quickly as he could, and that he did not know
the boy was deaf, and had no intention of hurting him.
Bonham v. Citizens St. R. Co., 106.
STREETS-Improvement of, see MUNICIPAL CORPORATIONS.
SUPREME COURT-Transfer of cause from Appellate Court, see
APPEAL AND ERROR, 6; Craig v. Bennett, 9.
Rules of court, see APPEAL AND ERROR, 21, 22, 23, 24; Indiana,
etc., R. Co. v. Ditto, 669; State, ex rel., v. Lankford, 34; Dixon v.
Poe, 54; Malott v. State, ex rel., 678.
SURETYSHIP-Wife as surety for husband, see HUSBAND AND
WIFE, 1; International, etc., Assn. v. Watson, 508.
1. Examination of Bank Account.-A county assessor is not entitled
under §8444 Burns 1894 to examine the accounts of any bank
depositor regardless of the question whether the depositor is
required to pay taxes in this State. Applegate v. State, ex rel., 119.
2. Examination of Bank Account.-Mandamus.-Sufficiency of Petition.
-A petition by the State on the relation of the county assessor
for a writ of mandate, under $8444 Burns 1894, to compel a bank
to permit relator to examine its books for the purpose of obtain-
ing information to enable him properly to discharge his duty
as such officer must allege that some taxpayer who was a deposi-
tor in the bank at such time had failed to make a proper return
for taxation of all of his money so on deposit, or that the relator
had just cause to believe that he had not done so.
Applegate v. State, ex rel., 119.
Real Estate.-Mortgage Deduction.-Constitutional Law.-The act
of 1899 (Acts 1899, p. 422, §8417a et seq. Burns 1901), authorizing
the deduction, for the purpose of taxation, of mortgage indebted-
ness, not exceeding $700, from the assessed valuation of real estate,
such deduction not to be greater than one-half of the assessed
valuation thereof, is not violative of the provisions of the State
Constitution requiring equality and uniformity in taxation (§1,
article 10, and §22, article 4, State Constitution), nor of the
fourteenth amendment to the United States Constitution relative
to the right to the equal protection of the laws.
State, ex rel., v. Smith, 543.
4. Exemption.-Charities.-Private Institution.-The fact that a home
for the care and education of orphan and homeless children, main-
tained by contributions from the counties and townships of the
State, and by private donations, is conducted on private account,
and the earnings applied to the personal benefit of the individual
proprietor, does not deprive the owner of the right of exemption
of the property from taxation as provided for in §8412 Burns 1901.
Vink v. Work, 638.
TAX DEEDS—Invalidity of, see DEEDS, 2; Wine v. Woods, 388.
TOMBSTONE-For decedent part of funeral expenses, see Ex-
ECUTORS AND ADMINISTRATORS, 7; Pease v. Christman, 642.
TRANSFER OF CAUSE-To Supreme Court, see APPEAL AND
ERROR, 6; Craig v. Bennett, 9.
TRANSIENT MERCHANTS-Selling without license, see LICEN-
SES; State v. Carpenter, 368.
TRIAL-Of cause on appeal from commissioners' court, see APPEAL
AND ERROR, 37; Smyth v. State, ex rel., 332.
1. Evidence.-Objection.-Offer to Prove.-Available error cannot be
predicated upon the action of the court in excluding offered
testimony, where the offer to prove was not made until after the
court had ruled on the objection to the question. Pittsburgh, etc.,
R. Co. v. Machler, 159; Brown v. Cox, 364; Hoover v. Patton, 524;
Board, etc., v. Gibson, 471.
2. Offer to Prove.-Incompetency of Witness.-An offer to prove after
an objection to the witness' competency to testify has been
sustained, comes too late.
Toner v. Wagner, 447.
3. Contributory Negligence.-Personal Injuries.—Evidence.-While under
$359a Burns 1901 the burden of proving contributory negli
gence of plaintiff is upon the defendant, yet, if such negligence
is shown by the evidence given on behalf of the plaintiff, it is as
effective as if proved by the defendant.
Indianapolis St. R. Co. v. Taylor, 274.
4. Special Finding.-Motion to Make More Specific.-New Trial.—
If a special finding omits material facts, the remedy is by motion
for a new trial, not by motion to make the special finding more
specific.
Gas Light, etc., Co. v. City of New Albany, 268.
5. Interrogatories to Jury.-In an action against a tenant for pos-
session, the court submitted the following interrogatories to
the jury: "If defendant's tenancy did not expire at the end of
March, 1898, when did it expire by his agreement with the plain-
tiffs?"
"If you answer the previous question 'yes,' when and
how did they make such agreement?"—Held, that the questions
did not ask for statements of evidence, but for facts.
Lautman v. Miller, 382.
6. Special Finding.-In an action by an agent against an in-
surance company to recover renewal commissions under a contract
between the parties, an answer to an interrogatory, "Did the
plaintiff forfeit his contract with the defendant?" "No,"-was
a mere conclusion, and not the finding of a fact.
Frankel v. Michigan Mut. Life Ins. Co., 304.
7. Verdict.-Special Findings.-Presumption.-Every reasonable pre-
sumption will be indulged in favor of a general verdict, but
nothing will be inferred in aid of special findings of fact made in
answer to interrogatories. Morford v. Chicago, etc., R. Co., 494.
Contradictory Findings. — Contradictory answers to interroga-
tories cancel or neutralize each other, but in no way impair the
general verdict.
McCoy v. Kokomo R., etc., Co., 662.
Verdict.-Special Findings.-To enable a party successfully to in-
terpose the special findings of the jury upon particular ques-
tions of fact as a reason for judgment in his favor, notwithstand-
ing a general verdict against him, he must, at least, have special
findings that stand in such clear antagonism to the general verdict
that the two can not coexist. McCoy v. Kokomo R., etc., Co., 662.
10. Judgment on Special Findings.-A judgment can not be ren-
dered on answers to interrogatories, in opposition to a general
verdict, unless the findings are sufficient, when strictly construed,
to warrant a judgment within the issues in favor of the moving
party.
McCoy v. Kokomo R., etc., Co., 662.
11. Interrogatory.—Conclusion of Law.—Harmless Error.—In an action
against a tenant for possession, an interrogatory submitted to
the jury and the answer thereto were as follows: "If the de-
fendant's tenancy expired at the end of March, 1898, was it nec-
essary to give him any notice to quit?" Answer: "No." Held,
that, although the question called for a conclusion of law, the
error was harmless.
Lautman v. Miller, 382.
12. Motion for New Trial.-Argument of Motion.-The fixing of the
time and limit of the argument on a motion for a new trial is a
matter within the discretion of the trial court.
Wheeler v. State, 687.
TRUSTS—Application of partnership funds to payment of indi-
vidual debt of partner, see PARTNERSHIP, 2; Hanna v. Mc-
Laughlin, 292.
Wills.-Testatrix devised certain real estate to her three sons and
their wives, jointly, to be held by them as a jointure "for
the use, benefit and support of said legatees and their chil-
dren now in life, and such as may hereafter be born to them, or
each of them." Held, that a trust was thereby created in favor
of the grandchildren, which is capable of being enforced by the
court.
Allen v. McGee, 465.
ULTRA VIRES-Contract by county commissioners, see Counties,
11; Board, etc., v. Gibson, 471.
VENDOR AND PURCHASER-See SALES.
VERDICT-See TRIAL.
WAGES-Minimum wage rate, see WORK AND LABOR; Bell v. Town
of Sullivan, 199.
WARRANTY-Breach, see SALES, 4, 5; Kenney v. Bevilheimer, 653.
WILFUL INJURY-Complaint against street railroad company,
see STREET RAILROADS, 7; Indianapolis St. R. Co. v. Taylor, 274.
Evidence in action against street railroad company, see STREET
RAILROADS, 9; Bonham v. Citizens St. R. Co., 106.
Action for wilful injury of passenger after leaving train, see
RAILROADS, 9; Brooks v. Pittsburgh, etc., R. Co., 62.
Instructions, see STREET RAILROADS, 8; Indianapolis St. R. Co. v.
Taylor, 274.
WILLS-Creation of trust, see TRUSTS; Allen v. McGee, 465.
Construction, see DESCENT AND DISTRIBUTION; Jester v. Gustin, 287.
1. Election by Widow.-The right given a widow to elect to take
under the law or under the provisions of her husband's will
(§§2648, 2666 Burns 1901) is purely statutory, and can only be en-
joyed by a compliance with the statute conferring it.
Miller v. Stephens, 438.
2. Husband and Wife.-Election by Widow.-Personal Property.- Real
Estate.-Section 2648 Burns 1901 providing that where a hus-
band dies testate his will shall have no effect upon his widow's
right to one-third of his personal property remaining after the
payment of his debts, unless she elects to take thereunder within
ninety days after the will has been admitted to probate, and
§2666 Burns 1901 which provides that if the widow does not elect
within a year to take under the law instead of under her husband's
will she shall be confined to her rights under the will as to the
real estate, are independent, substantive provisions.
Miller v. Stephens, 438.
B. Election by Widow.-Statute as to Personal Property.-The pro-
vision of §2648 Burns 1901 that if a widow elect to take under the
provisions of her husband's will instead of one-third of his per-
sonal property given to her by law, she shall make her election
within ninety days after the will has been admitted to probate,
and, "in the same manner as widows are now required by law to
elect," has the same force and effect as if the words of §2666
Burns 1901 requiring the election to be in writing, signed by the
widow, and acknowledged before some officer authorized to take
the acknowledgment of deeds appeared in its stead.
4. Election by Widow. - Right of Personal Representative to Question
Validity of Election.-Although the right of election is personal to
the widow, and can be exercised by no other person, her personal
representative may question the validity of an alleged election by
his decedent.
Miller v. Stephens, 438.
5. Election by Widow.-Action to Annul.—Where the executor of the
will of the husband proceeded to settle his decedent's estate
on the theory that his widow had elected to take under the will,
the administrator of the deceased widow's estate may maintain
an action to have the alleged election of the widow judicially de-
clared void and expunged from the will record.
6. Construction.-The purpose in construing a will is to ascertain
the intention of the testator, and when that intention is ascer-
tained, it must be given effect, unless in violation of some rule
of law.
Fenstermaker v. Holman, 71.
7. Construction.-To ascertain the intention of a testator, the whole
will must be considered, and no word or clause in the will is to
be rejected to which a reasonable effect can be given, and that
effect must be given to every part of the will if possible.
Fenstermaker v. Holman, 71.
8. Construction.-Devise.-Life Estate.-Only a life estate in land
will pass to a devisee, unless it affirmatively appears from the
will that a greater estate was intended.
Fenstermaker v. Holman, 71.
9. Construction.-Devise.-Life Estate.-A will provided that tes-
tator's wife "shall have all my real and personal property," de-
scribing the realty. By a subsequent clause of the will he devised
the same real estate to his daughter. Held, that the wife took
only a life estate in the land.
Fenstermaker v. Holman, 71.
10. Contest.-Complaint.-Jurisdiction.-Presumption.-Where a com-
plaint, in an action to contest a will, is filed in a circuit
court of any county of this State, and the court proceeds to hear
and determine the cause, it will be presumed, in the absence of
any showing to the contrary, that the court found either that the
testator died in the county in which the suit was brought, or that
some part of his estate was situated therein, whether the com-
plaint contains such averments or not.
Whittenberger v. Bower, 673.
WITNESSES-Testimony of at former trial, see EVIDENCE, 1;
Wabash R. Co. v. Miller, 174.
Incompetency in Action by Administrator. — Assignments.-In an action
by an administrator on a note made payable to decedent, the son
of the deceased was incompetent, under $510 Burns 1901, to testify
that decedent had transferred the note to him, and he had assigned
it to defendants to apply on his indebtedness to them.
WORK AND LABOR—
On Public Work.-Minimum Wage Rate.-Act of 1899.-The act of
March 6, 1899, providing a minimum wage rate on public work
of the State, being for the benefit of labor, and no public
interest being impressed upon the subject, and no rule of public
policy being violated, a laborer, by contract, may waive the bene-
fit of the statute, and accept a lower rate of wages, and such
waiver and acceptance would be binding on him.
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