Omaha daily bee., 1911-02-14

NtIAN nN Nno ming OF the Transcript.
3. n a testator bequeaths a sum Of money
TO his executors to be held in trust by
them for q lawful purpose and the county
court declares that bequest invalid and
directs the money thus bequeathed TO be
paid 20 the testator's heirs. the executors
have such an interest in the order that
they may appeal therefrom.
Petersen against Petersen. Appeal from
Douglas. Judgment OF district court dis
allowing alimony reversed and in all other
things affirmed and cause remanded with
directions to enter decree for alimoTnX
costs taxed 70 plaintiff. Sedgwick, J.
1. An accusation made by a wife against
her husband in which she charges him
with the crime Of incest with his daughter
may not in all casee constitute such ex-
treme cruelty as will alone furnish him
with ground for divorce. but when such
accusation IL made maliciouely and often
repeated. together with other conduct
showing a fixed purpose on her part TO
make II impossible for them 70 live to-
gether as husband and wife II may amount
TO extreme cruelty.
2 When a divorce is granted to the hus-
band on any ground except adultery com
mltted by the wife the court may allow
permanent alimonv 70 the wife out OF the
property OF the husband
3. For the reasons stated in the opinion
the decree Is modified SO as to allow the
wife permanent alimony.
Hanika against State. Error from Thurs
ton. FaWcett, ]. Affirmed.
l. The right of appeal did not exist at
tory one, and unless expressly conferred
does not exist" state against Bethea, 4S
Ncb., 4bl
2. There being no provision in our
statute for an appeal in a contempt pro-
ceeding, a conviction under such a pro-
trict court by the filing in said court of a
petition in error as provided In chapter 2
stuefer against The West Point Milling
company. Appeal from Cunning Az
firmed. Letton, j.. Reese c. j., and Faw-
l. In order to Justify the issuance OF an
Injunction TO restrain the owners of a mill
dam from maintaining the dam and from
increasing It's height and thus permitting
water to overflow the plaintiffs land, the
evidence OF wrongful acts on the part of
the n defendant dH must clearly Preponderate.
dam has been the cause OF the injury or
whether the damage has resulted from
some other cause an Injunction will be de-
2. Evidence examined and held that the
allegauons OF the petition have not been
sustained by a preponderance of the proof.
Brown against Webster. Appeal from
Lancaster. Affirmed, Letton, j.
l. The title to real estate at the death
or the owner descents go Instant to his
heirs, subject to administration. ana the
contingency Of the probate OF a will dis
title Of the devisees relates back TO the
ume or death. Until probate of such a
Will, the title is prima facie in the heirst
an action to enforce contract made by
the deceased by declaring a trust in the
party inherited or devised
2 The district court has no power in an
original action, either directly or indi-
rectly, TO determine whether an instrument
proposed Tor probate Is the last will Of
deceased person Original jurisdiction in
such matters is conferred by the constitu-
ton upon the county court alone.
An action to declare trust and 10
require the devisees and legatees named
IN g Will to convey the property devised
to the plaintiff is premature II brought
DeIOT0 the Will Ia al b.r
the county court in proper proceedings for
that purpose.
Wade against Belmont Irrigating Canal
ana Water Power company. Appeal from
G. J.
In an action for damages for the breach
or contract to supply water for irrigat-
ing the plaintiffs lands where il appears
that the land Is unbroken and practically
unproductive prairie, II the plaintiff pre-
vans ne can only recover the difference be-
tween the rental value of said land with
water according to the terms of the con
tract ana the rental value without such
water. The supposed value of what the
land might have produced had the water
been furnished is too remote speculative
and conjecturaI.
McCague Savings Bank against Croft
Appeal from Douglas. Affirmed. Barnes j.
Where at the commencement of a suit
the original petition contains two causes
OF action which are improperly Joined, and
afterwards one of such causes is eliminated
by the filing of an amended and substi-
tuted petition, and trial is had upon the
remaining cause OF action as set forth In
both petitions, the filing of the original
petition and the service of summons thereon
arrests the running OF the statute Of linn
itations as to the remaining cause of
action
Blair against Kingman Implement COM
Pany. Appeal from Douglas. Affirmed,
1. Where an action was instituted in the
district court for the reformation of a
memorandum OF contract, and the trial re-
suited in decree reforming the instru-
ment. the decree being subsequently az
urmed on appeal TO the supreme court,
the memorandum as thus reformed will
IN an action thereon, be taken as the true
elusive.
2. In such case. where the admissions OF
the answer as to the fact of the reforma-
ton Of the written agreement are indef-
mite II is competent for the plaintiff 10 in
troduce, and the court to receive, the de-
cree Of reformation as the evidence OF the
fact. And the findings of the court in 40
Tar as they are necessary to sustain the
decree and which are contained In one jour
nal entry may also be read TO the jury.
3. Where defendant in its answer al
leges as defensive matter that an appeal
TO the supreme court was taken from the
decree reforming a contract but contained
nothing as to the action of that court on
such appeal, and the plaintiff replied adj
hitting the appeal. but alleged that the de-
cree OF the district court had been af-
firmed by the supreme court there was
no error In permitting the introduction Of
the mandate OF the supreme court, during
the presentation of plaintiffs evidence IN
chief showing such affirmance. the fact
OF the appeal having been admitted and
thereby conclusively established by the
pleadings.
(. Ordinarily when a party TO the action
on trial takes the stand as a witness in
his own behalf he is entitled to no less
and no greater rights than any other wit
ness. II the design on summation
is to lay a foundation for impeachment by
proof that he has previously made other or
different statements, material to the case
his attention should be called to the state
ments by which his testimony Is sought 10
be contradicted Practically the same rule
should be applied II II Is sought to prove
bv him on such cross-eXaminatiOn. admis-
SONS against his interest. There is no
error in sustaining an objection to a uues-
ton asking II II is not a fact that during
the litigation the witness has given under
oath four different versions OF the contract
which he claims he has made with defend
ant on date prior to It's reformation with
out specifying any Of the different vers-
ions" The rule will be applied with the
greater force since all questions as to the
terms and conditions Of the contract are
foreclosed by the final decree OF reforma-
ton
8. Where instructions TO the trial jury
Eiven by the court on its own motion, and
those requested by defendant, are COM
pared. and IL Is found that those given BY
Ha Incl Ina IN nh1Na