Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-05-16
The COURT DECIDES
Supreme Court Afirms the District
Court in Two Decisions Handed
Down Today.
Adair vs.. Adair from Ransom and
Mahon VS.. Leech from Cass
County are Affirmed.

The supreme court has affirmed the
decision of the district court of Ran
som county, Judge W. S. Lauder, in
the case of Lillian Adair, respondent,
VS.. Amanda M. Adair, ct al, appellant.
The. proceedings were instituted in the
county court of Ransom county, where
the petitioner prayed the court to Or
der the executors Of the will of her
father, James Adair, to pay her the
sum of $500, bequeathed to her in a
codicil sto the will. The syllabus of
the decision is as follows:
"a ~testator executed a will and at
forwards a codicil thereto. In the
codicil the following clause was used:
Should l alone die on this trip or in
consequence of it, then of the n
thousand dollars before willed to my
wife, five hundred dollars of this
money are to be deducted from her
and given to my daughter Lille or
Lillian before mentioned The tes-
tator had not willed the specific sum
of $1,000 to his wife, but had willed
her and another daughter than Lillian
the residue of his estate in value more
than $1,000. Held, that the legacy
was not a specific one.
The intention Of a testator is to be
ascertained from the language Of the
will and codicil construed together. If
the intention expressed in these in
struments is clear. t~ransposition of
words will not be resorted to.
(Syllabus by the COURT
Appeal from the district court Of
Ransom county, w. S. Lauder. judge.
P. H. Rourke and Alfred M. Kvello,
for appellants.
Ball, Watson & McClay, for respond
ent.
The court also affirms the decision
of the district court in the case of
George Mahan, as trustee, appellant,
VS.. w. F. Leech ct al, respondents.
The plaintiff in his capacity of trus-
tee and for the benefit Of certain cred
itors of one G.. A. Grover. an insolvent,
sought the specific performance of
three certain contracts constituted a
part of these assets of the trust estate
of said %insolvent. The trial court
found that all of the rights Of Grover
and all other persons in the contracts
in question were wholly released and
surrendered by a former trustee.
Judgment was accordingly entered dis
missing the action. Plaintiff appealed
from the Judgment and in a settled
statement of case, containing all the
asked a review of the entire case in
the supreme court.
The syllabus of the decision is ais
follows:
The mutual rights and obligations
of the parties to a written contract
for the purchase and sale of real estate
may be waived and the contract an
nuled and extinguished by parol.
A court Of equity will not extend
the ordinary relief afforded by specific
performance to a purchaser Of real es-
tate who has been grossly negligent OF
his rights Or has abandoned his CON-
tract, where the vendor induced by his
action has entered into obligations in
consistent with the performance of the
contract, or where the application fol
relief is plainly induced by an increase
in value of the premises accruing sub.
sequent to a voluntary abandonment
of the contract.
Upon a retrial in this court of an
action for the specific performance Of