The times. [volume] (Richmond, Va.) 1890-1903, 1897-12-03

| then. from the time tnlS statute was en-
| acted IN 1898 till its amendment IN iNs5.
there was a right without remedy for
| there would have been no mode by which
Il could be brought before court. Be
| fore II ceased 10 exist II could he brought
| into court by process ferNcd on its pres
ident ana A. bv virtue Of the statute. Il
/ may bo sued as before. the conclusion
seems FRI, aisiible that service upon its
| former president Is effectual TO give juris-
| diction. See Finrey etc, vs.. Bennett,
| q Graft 2c5. The method Of service by
| publication as provided by the statute in
| 1851, Is additional 10 that which thereto
| fore existed and which was properly en-
| ployei In this case.
! g Special pleas are properly rejected
| when the defence proposed In each Of
them can be presented under the general
issue. Campbell * Co., VS.. Angus g.
Co. u Va. i2S
CONSTRUCTION OF \ WILL.
| Thorn EX'c'r vs.. Thorn. &c. Affirm
ed. Opinion by Judge Harrison.
| Miss Them devised all her estate TO
her three Licces end the survivor Of them
with rem ainder To her nephew The lat
| ter agreed 10 sell his interest as romaind-
| erman % the life tenants for $3.50 and
| that they should institute suit IN his
name and theirs asking for a ratihcaticn
OF the contract. a settlement Of the ac-
| counts Of the executor. who held in trust
! for the requests Of the will. and asking
| Tor q sale Of so much Of the personal
estate passing under the will as might
| be necessary 20 pay the remainderman
| the sum agreed.
The executor contested the suit. deny
| ing the right Of the benefciaries to ter
inmate the trust created by the will in
| the manner proposed and contending that
| tho purpose of the tcstatrix would be
| thereby defeated.
| Held. The benefciaries being under no
| incaDacity legal or otherwise 70 prevent
| any ons OF them from managing their
| own property, had q right 10 make this
| contract. and IL is reasonable and just
that it should be carried out in conform
| ity 10 the desire in which they all unite.
| CONTRADICTORY NEGLIGENCE.
White Us. Newport News Shipbuiding
| and Dry Dock Company Affirmed.
/ Opinion by Judge Harrison.
| Plaintiff. an intelligent and experienced
| employe knowingly assisted in making
am improper adjustment OF appliances
when suitable appliances for a safe and
proper adjustment. furnished by the
master or employer. were within his easy
reach. lie retired 20 a place OF safety
| and az the command Of the foreman,
who was ignorant that unsuitable APP
| planes were being used. returned 10
| the place of danger without word OF
warning or protest 10 the foreman and
| lost his leg.
Held. ]. Granting that IL was thu
| f0rcman's duty 20 have known that pro-
per appliances were being used. yet plain
! tin knowing that such duty had not been
performed 10 was inexcusable negligence
| on his part 20 proceed 10 the work with
| ont informing the foreman OF the impro-
| per adjustments His own gross nogli-
| gence directly contributed 10 his misfor-
tune. ana there is no liability for dam
ages ON the defendant.
WILL CONSTRUED.
Walker VS.. webster. Reversed. Opinion
| by Judge Rely, President Keith dissent
| ing.
"All the rest and residue Of my estate,
real. personal and mixed. / desire shall
20 10 and be divided i'm equal parts among
| those who would be my heirs at law,
under the statute Of descents and dis
| trbutions ia Virginia, in case 1 had died
| intestatc."
The Chancery Court Of Richmond de-
cided that the heirs 40 law took per
stripes and not per capita.
Held The cardinal rule Of construction
Il
| In ascertaining that intention. effect must
| bc given TO every word of the will and
| words are not TO be changed or rejected
unless i'm manifest conflict with the plain
| intention. or are absurd, unintclligiblc or
unmeanng. WOOtton vs. Eedd's EXcr., u
Graft. 196. Here apt and precise words
| have been used 10 describe the object Of
mis- bounfy-his heirs at law under the
statute had ne died intestate. They are
81 rrsrH 90. %.
share IT equally. that is per capitay. The
reference 10 the statute was simply 70
designate the persons who were 10 take
not 10 prescribe also the manner or the
division. He does not say they were 20
take as II ne had died intestate. but those
persons should take who would be his
heirs in case he had died intestate. Who
shall take. not how they shall take.
how" Is otherwise prescribed; they are
70 take "in equal parts" IIoxton. &c,
VS.. Griffith. &C.. is Graft. so; Brow & TX.
VS.. Opie ! can. PIP. Crow VS.. Crow.
Leigh. "a: McMasters VS.. McMasters, 10
Graft. 2l5.
RESCIsSION.
Wren. Sc. IS. Moncure, &c. Reversed.
Opinion by Judge Rely.
An allegation OF false and fraudulent
representations by vendors 10 induce
purchase Of land at Buena Vista.
The utmost that the testimony proves is
that vendors and their agents represented
that twenty acres of the tract Of about
twenty-five were available for building
purposes, and susceptible Of subdivision
into building lots After rcstaung the
general rule as 10 Misrepresentation
which constitute ground for rescissiOn-
the positive statement of material fact
made to procure the contract as dstin-
guished from mere matter Of opinion. un-
less the parties are dealing upon unequal
terms. and one has means OF information
not equally open 20 the other-as held In
many recent decisions by the present
bench. IL is
Held: Where the representation Is not
of material fact. but the mere express
sion Of an opinion the vendor using no
artifce 20 dissuade or prevent the pur-
chaser from making Inquiry or examining
the lots. the latter Is without redress.
Tyroe vs.. Lake o. Va, no The vcndees
are not entitled 20 rely on II. and omit 10
make the inquiries and examination which
prudent men ought; the law not holding
one responsible for words OF commenda-
ton unless the parties deal on unequal
terms. or one has means or information
not equally open 10 the other or some
means or artihce has been employed 20
prevent inquiry or examination.
2. The charge that the agents who sold
the land concealed from the purchasers
that they were part owners, II true. would
constitute as fraud and avoid the pur-
chase, not having being made in the bill
and in no wise put tn issue I'm the plead
ings (but only in the dispositions and Wig
orousy denied by the agents in like
D.. r.NIa