The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-12-21

contingency. unless such contingency is
stated in the will as a condition of the will
becoming operative, either expressly or by
necessary construction. ?. Where all the
provisions OF a Will except the residuaTy
clause and a specific bequest 10 the wife
had become nugatory by the death of spe-
cific legatees before the testator's death,
and his failure TO have issue, his will is
not rendered void by the fact that he lived
beyond the time that some specific legacies
were 10 take effect under its provisions. in
case he should have no issue living when
that time arrived. and that such requests
were to be paid out Of a fund which he
expected to arise at such time. A will
speaks from the date of the testator's death
and governs his estate as it then exists.
3. The fact that a Will provided for the
creation of a perpetuity in case certain cir
cumstances should exist at testator's death
or at some future time does not make his
Will void where he lived until after that
time. and no such conditions existed when
ne died. and the disposition made of his
property under actual conditions was legal.
l. Where the sole surviving heir of A de-
cedent was his wife, but he left a will
~disposing Of his property, the fact that the
wife elected TO take under the law only
gave her a right TO one-third of his property
and the remainder passed TO the legatees
under the will. 5. The fact that a ~testator
was Of unsOund mind when he executed a
codicil TO his will, or that the same was
unduly executed, is ground for contesting
such cOdicil.
-New Case
1857. William Drew VS.. Town of Geneva.
Jay G.. G.. Record. Assignment of errors.
APPELLATE COURT.
1892. Morgan VS.. Street. Jay c. c. AZ
frmed. Robinson, il. Where all of a
series of notes had been paid, part by the
principal and part by one of two s%ureties,
the other surety was not a necessary party
TO an action by such surety who paid TO
enforce payment by the principal. 2. Where
a wife bought land and her husband gave
his personal notes for unpaid purchase
money, with sureties thereon, and the wife
Joined her husband in a mortgage on such
land to secure the sureties, she cannot de-
feat a foreclosure of the mortgage In favor
of a surety who paid one of such notes by
pleading that she was only a surety for her
husbands debt.
S245. Citizens Street-railway Company
VS.. Shepherd. Hamilton G.. G. Affirmed.
Henley, j. Judges Henley and Wiley dis
sent. Concurring opinions by Judges Rob
inson and Roby.-1. Staying proceedings for
the nOnpayment of costs in a prior action
that has been dismissed where plaintiff
sues for personal injuries is so much within
the discretion of the trial court that very
slight evidence will overcome the presump-
ton of Vexation where such a stay was
refused. 2. The overruling of a motion 10
remand a case from the county to which
the venue has been enormously changed
must be questioned by a motion for a new
trial and cannot be directly assigned as
error. [Sidner VS.. Davis, 81 Ind, S2 fol
lowed.1 3. A party who has exhausted his
right to change the venue cannot, by dis
missing his action and refling the COM
plant, indirectly obtain the right to another
change of venue in that case.
1913. McCabe ct al. VS.. Browder, ADMIN
istrator. Marion g. c. Affirmed. wiley, ).
i. Where the praecipe given by appellant
TO the clerk specifically named all that ne
should include in the transcript, and did
not mention the original bill or exceptions
containing the evidence, such evidence ala
not be- become NEE a part pa in 0l rpe afiogo it In such
transcript. 2. When the evidence Is not IN
the record questions depending upon II VIII
252i. Marchal VS.. indianapolis Street-rail-
way Company. Marion S. c. Reversed:
Comstock. G. il. The question whether IL
was negligence under given conditions TO
run one street car within a hundred feet
behind another along a city street at the
rate of twenty-five miles an hour without
sounding the gong in approaching a cross
fng was a question for the jury. 2. A trav-
eler is not held to the same high degree or
care in looking and listening before driving
across q street-car track at a street cross
ing as I'm crossing the track of a steam
railroad. 3. The question whether a traveller
who drove upon a track Immediately after
two street cars had passed in opposite
directions and was struck by a second car
on the farther track, which he could not
see for the car on the near track which had
just passed, is one for the jury.
1851. Vending VS.. Snyder ct al. Cass
c. c. Appellees' petition for extension of
time overruled.
1855. Fried ct al. VS.. Nelson. Kosciusko
G. C. Appellee's petition for leave to file
brief Overruled.
4i5l. Branstrator VS.. Branstrator. Allen
- - ADDtlLdHl = IlOllOi LOI III AlA5 vi
motion TO dismiss appeal.
Minutes
1882. VIII Nichols VS.. State of Indiana.
Marion G. G. Appellee's petition for leave
10 file brief. Petition granted. Appellees
brief 81
$751;. Mary j. Wagner VS.. Rebecca S. Car
skaddon Marion s. c. Appellants petition
to transfer to Supreme Court.
4OSS. c., C., c. & St. L. Railway Company
VS.. John T. Stewart. Appellants with
drawal of request for oral argument.
414S. John Baut ct al. VS.. William II.
Stanley. Laporte S. G. DeclinatiOn of
Martin Baut to join in appeal.
4153. Observation-Disclosures Stone Com
pany VS.. Walter a. Wilson. Monroe G. G.
Appellants brief C)
4f4. Andrew Branstrator ct al. VS.. Cath
crime Branstrator. Allen G. G. Appellants
petition and brief on rehearing on motion
to dismiss.
New Cases
1855. Chicago e. Southeastern Railway
Company VS.. Solomon Witt. Upton c.. G.
Record. Assignment of errors. Notice to
Boone county.
42S6. state of Indiana ex rel. Sarah Holli-
day VS.. George B. King ct al. Tippecanoe
C. C. Record. Assignment of errors. No
tees ~ below.
1887. Harry Thomas VS.. Ellen Mccoy ct
al. Jay c. c.. Record. Assignment of err
rors.