Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-12-03


passing under the will as might be neces
sary to pay the remainderman the sun
agreed.
The executor contested the suit, de-
nying the right OF the benefciaries &c
terminate the trust created by the will
In The manner proposed. inc contendinl
that the purpose OF the testatrix would be
thereby defeated.
Held: The benefciaries being under no
incapacity. legal, or otherwise. TO prevent
any one OF them from managing their
W property, had a right to make this
contract, and 1t Is reasonable and just
mat IL should be carried out in con-
formity to the desire In which they all
unite.
CONTRADICTORY NEGLIGENCE.
and Dry-Dock Company. Affirmed.
Opinion by Harrison. j.
Ilaintin, an intelligent and experienced
employee. knowingly assisted in making
an improper adjustment of appliances,
when suitable appliances for a safe and
proper adjustment, furnished by the mas
ter, or employer, were within his easy
reach. He retired to a place of safety,
and at the command Of the foreman. who
was ignorant that unsuitable appliances
were being used. returned to the place
'sAIC u " VI ~ VI
protest TO the foreman. and lost his leg.
Held: i. Granting that 1t was the fore
mans duty to have known that proper
appliances were being used. yet plaintiff,
knowing that u duty had not been per-
formed, 1t was inexcusable negligence on
his part to proceed to the work without
informing the foreman of the improper
adjustments. His own gross negligence
directly contributed to his misfortune,
mud fhara 10 no lf,IsIg... o. -,
the defendant.
WILL CONSTRUED.
Walker VS.. Webster. Reversed. Opinion
by Rely, j. Dissenting, Keith, r..
"All the rest and residue Of my estate.
real. personal. and mixed, / desire shall
30 to and be divided in equal parts among
those who would be my heirs at law
under the statute of descents and dis
tributions in Virginia in case l had died
intestate."
The Chancery Court OF Richmond de-
cided that the heirs at law took per
stripes and not per capita. Held: The
cardinal rulo Of construction is to
follow the intention OF the testator.
In ascertaining that intention, effect
must be given to every word Of the will,
and words are not to be changed or re-
jected unless in manifest conflict with
NEt 81 iiAAfiAAuis vi dAt dDsulhs uU-
Ineligible, or unmeaning. Woolton VS..
Redd's Executor. ~ Graft, 196. Here apt
and precise words have been used TO de-
scribe the object OF his bounty-his heirs
at law under the statute had he died
intestate. They are TO take the estate
in equal parts"-to share it equally
is, per capita. The reference to the
was simply to designate the per-
who were to take, not to prescribe
also the manner Of the division. He does
not say they were to take as IL he had
died intestate. but that those persons
should take who would be his heirs i'm
case he had died intestate: Who shall
take, not how they shall take. How is
prescribed. They are to axe
'in equal parts" Hoxton, etc, VS.. Crit
18th, etc. 1S Graft. 57; Brew and TX.
rs. Opie., Call PIP; Crow VS.. Crow,
leigh. a; McMasters VS.. McMasters, 10
iratt.. 275. z
REsCIssION. s
etc. VS.. Moncure, etc. Reversed. :
Opinion by Rely, j.. = '
An allegation OF false and fraudulent |
representations by vendors to induce pur- !
base OF land at Buena Vista. The ut !
most that the testimony proves is !
vendors and their agents repre- J
ented that twenty acres of the tract p
I about twenty-five were available for "
purposes and susceptible of sub }
vision into building lots. After re- -.
tating the general rule as to misrepre- u
which constitute ground for v
ac~ission-the positive statement of a "
lateral fact made to procure the con- II
'act as distinguished from mere matter V
| opinion, unless the parties are dealing U
pom unequal terms and one has means o.
{ information not equally open to the CT
Their, as held in many recent decisions al
y the present bnch-it is W
Held: Where the representation is not is
a material fact, but the mere express W
OF an opinion. the vendor using no 10
TO dissuade or prevent the pur- W
laser from making inquiry or examining as
lie lots, the latter is without redress. of
yree vs.. Lake. 20 Va, 719. The vendees
o not entitled to rely on 1t, and omit as
make the inquiries and examinations m
hich prudent men ought; the law not or
'lding one responsible for words OF ma
mmendation unless the parties deal on tr
lequal terms, or one has means Of in bu
rmation not equally open TO the other OF
some means of artihce has been en- W.
TO prevent inquiry or examination. pl'
!. The charge that the agents who solo m'
e land concealed from the purchasers tn
at they were part owners, if true. br
'uld constitute a fraud and avoid the in
rchase. Not having been made i'm the SCI
! and I'm no wise put in issue in the tn
,adings (but only in the dispositions and hi:
denied by the agents I'm like th'
lnner), no recovery can be allowed. ito
equity. as at law, the allegations ana du
)ofs must agree, and a recovery will pei
/ be allowed upon a case. although no
wed. which differs essentially from un
1t alleged in the bill. Smith VS.. Mich gol
s. s Leigh, S5l; Potomac NJ. Co. VS.. no
ans. 81 Va. III. hin
he charge, II true, constitutes a ground See
relief separate and distinct from the s.
reservations charged I'm the bill. and dut
opinion is expressed in regard TO the gui
timony upon this point. 3.
CHANGE OF VENUE. &c. be
antic and Danville Railroad Company anC
Rieger. Reversed. opinion by tI
uchanan. J. vs..
ED: Prejudice CT ill-feeling existing mel
a community, though sufficient TO tie'
W the difficulty, if not the improba-
ty, of getting an impartial jury from 7.
ong its citizens to try a cause involv- Cir
the conduct which produced the feel Re,
II
Cor