The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
LEGAL.

No. 1907
hm 9ha ne. D. D. Poole, as Administratrix of
and for herself the surviving widow
and and, heir at law of said William D.
Poole, Appellee,
John Poole, William Poole, Bryant Poole
and G, G. Poole, Appellants.
REVERSED
SYLLABUS. BY the Court Porter J.
placed no restrictions or limitation on the
n M pa right to make such disposition
I'll ti,nn nis PERSONAL property during ais life
= Where the. transfer gift is color.
conveyance by which the husband re-
serves to himself an interest in or a power
20 dispose of the property, it may be de-
may participate in its distribution upon
the theory that the title still remained in
the husband at his death.
j. A widow sued as an heir of her de-
ceased husband to set aside gifts and
transfers tc ts Of personal property made by, him
former marriage The transfers were
made without the wife's knowledge, when
the husband was 50 years of age aud pos
sesSed OF no other property, and iinmedi-
ately following the dismissal of an action
brought by her for a separate mainte-
nance, that action having been settled upon
his conveying to her certain real estate
and agreeing to.pay her a monthly allow
ance The &court found that he made the
gifts and transfers to his sons in anticipa-
ton that he would not live long and to
share in the property as his widow, and
In the further anticipation of the PROBABLE
relation with plaintiff would not last long
or be permanent and that she might sep
arate from him and bring another action
f foil YIN ;, Small vs., Small (5e Kan l, y
5SD, that the gifts to the sons not being
colorado but absolute transfers OF The
title to to the the property binding nP,n the
can not be attacked by the widow az
thereby to deprive her of interest in
the property either as wife or widow.
4. Where person takes a note payable
himself of the right to dispose of it JAR
ing his lifetime.
5. The incompetency of witness to
testify concerning COMMUNICATIONS or
transactions had with a person since de-
ceased is waived by the objecting party,
showing on cross examination the fact that
such a communication or transaction Oc-
CURED.
Johnston, c. J., West. j. Marshall, J.,
and Dawson, J., concurring.
Burch, j. and Mason, j., dissenting
A true copy.
Attest: D. A. VALENTINE,
No 1886.
Sadie Pullin, Administrative, Appellee,
The Missouri Kansas and Texas Railway
Company, Appellant.
Appeal from Labette County.
REVERSED AND REMANDED.
Syllabus. BY the Court Porter, };
L. In an alton to recover for wrongful
death the findings and evidence show that
deceased was a switchman and was killed
by the movement of a string of cars under
which he was working in the night time
assisting in claiming up defective draw
bar. The track upon which the cars stood
either end with lead track It was used
for storing bad order cars and it was Gus
tomary. for either the north or south
occasion r pg Whiie the e paintiff,
member of the south crew, was at work
in at the north end against the string
causing the cars to move distance of
feet The jury found that it was
switch cars upon the track if occasion
arose unless warned not to do so by a
rules of the company requiring a blue
flag by day and a blue light by night to
be displayed at one or both ends of such
train had been abrogated and were not in
force at the time of the accident. HELD,
that there was evidence sufficient to sup
port the finding and that therefore the de-
PENDANT could not rely as a defense upon
the existence of the rules and the violation
2. The jury further found that the de-
ceased placed no signals and took no pre-
which he was working from being struck
or moved by cars from the north and that
the defende e negligence when l., -, caused
man of the north crew giving hard back
up signal causing the car to be pushed
against the string with force and violence
HELD, that the specific finding of the
negligence of the defendant is an express
finding that the verdict is not based upon
any other character of negligence. and the
finding being unsupported by any evil
dence, and this ground of negligence not
having been submitted to the jury, it is
with the general verdict and
must control, and therefore defendant is
entitled upon the findings to a judgment
for costs.
Burch, J., Mason, J., West, J., Marshall
J., Dawson, J., concurring.
Johnston, c. J., concurs in the reversal
but dissents from the direction to enter
judgment for the defendant.
A true copy.
Attest: D. A. VALENTINE,
ISeall Clerk Supreme Court.
No. 1862.
Helen F. Ryan and Docatah S. Ryan, APP
pellee,