The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-12-20

Under a devise to F. w. and in the
event of his death leaving no heirs of
his own body, the land to descend to the
three sons of l.. S. W." the devisee
takes an estate in fee determinable upon
his dying without issue, and while a deed
by him did not convey an indefeasible
title at the time of it's execution, the
title hereunder became absolute upon
his death, if he left children surviving
him.
SUTTON, appellant v. BEssENT. From
Forsyth Affirmed.
Where a preferred debt in a deed of
assignment is also secured by a prior
deed of trust for the same property cou-
veyed in the deed of assignment, such
debt is not a preferred debt In the
proper sense of the term, and therefore
is not invalidated by failure to schedule
it as required by Chapter 453 Acts 1898.
A deed of assignment may be valid as
to one or more debts secured thereby,
and invalid as to others. Morris V. Pear
son, 70 N. c. 253.
HARTNESS V. PHARR, appellant. From
Mecklenburg. Affirmed.
plaintiffs son, recovered damages of Il
railroad company for neghgently killing
the intestate in this State and prior to
the defendants qualifying as, adminstra-
tor, the plaintiff qualified as administra-
tor of his son in South Carolina, where
the plaintiff resides; Held
% That the distribution Of the fund
must be to the persons designated as the
vii ha 1oI of
this State, and the plaintiff is therefore
kin or the intestate.
(2) That the administration of the de-
PENDANT is not anciliary to that of the
administration in South Carolina, so far
as the fund recovered by the defendant
is concerned. AS the action in which
the fund was recovered did not accrue
till the death of the intestate, the fund
cannot be regarede as part OF the as
sets of his estate.
BRYAN, petitioner Wv. U. TEL. co.
From Iredell. Petition allowed and new
trial granted.
Where the sendee Of Geographic mes
sage lived outside the free delivery limits
and the evidence was that the telepra-
phic operator knew where she lived, It
was held that the rule of the company
which provides that beyond free delivery
limits ''only the actual cost of the deliv-
cry service will be collected does not
restrict the duty of the company to de-
liver the message within those limits.
The defendant could have sent the mes
sage to the plaintiff and collected the
charges for the special delivery, or if
not willing to take that risk, it was neg
ligence not to wire back to the sending
office demanding payment for delivery to
the sendee beyond the free delivery linn
its.
The contention of the defendant that
the claim for damages was not presented
within sixty days is answered by the fact
that the summons was issued and served
upon the defendant within that time.
vaIent to a demand.
Where a message is delivered to telc-
graph company in one State to be trans
mtted by it to a place in another State,
the laws of the former State control in
the Interpretation OF the contract and
liability hereunder.
DAVIS V. FARMERS MUTUAL FIRE
INSURANCE ASSOCIATION, appellant
From Wilkes. No error.
A fire insurance policy was issued to
two persons who were equal owners of
the property insured. One of them aftel-
wards sold his interest to the other and
sent the policy to the agent of the COM
pany (who was also its president) to
have a transfer of his interests made
and the same was made by the president
though not IN the manner indicated in
the blank form on the back of the policy.
The property was afterwards destroyed
by fire and the company contended it
was released from liability by the conduct
Of its own president. Thereafter the
company ratified the transfer by making
an assessment on the plaintiff as sole
owner of the policy, which assessment
was paid.
Held that, even if the printed blank
on the back of the policy was stipula-
ton that transfers could only be made
in that mode, general agent can waIvc
any stipulation in the policy, notwith
standing clause forbidding it. The
president Of the company did not release
it by his action, and the fact that the
agent who issued the policy was also the
president and this a mutual insurance
company, docs not affect the right of the
plaintiff to recover.
OLMSTED, appellant v. SMITH EFT AL.
From Burke. Reversed.
In an action under Chapter Acts 1898
to determine adverse claim to land, the