501). Code, §§ 103, 104, 1246, applied-probate by clerk of court. Trenwith v. Smallwood et al., 111 N. C. 132 (15 S. E. Rep. 1030). Battle's Revisal, ch. 35, § 2, subd. 1, applied. Shaffer v. Hahn, 111 N. C. 1 (15 S. E. Rep. 1033).

Sec. 196. Texas. (See Vol. I, § 98; Vol. 2, § 143.) A certificate of a tax deed signed, "B., Tax Collector of C. county," as "Personally appeared B., tax collector to said county, to me well known and acknowledged," etc., is sufficient. Schleicher et al. v. Gatlin, 85 Tex. 270 (20 S. W. Rep. 120). In 1847 the law of Texas did not authorize a notary to take acknowledgments. Birdseye v. Rogers,

Tex. Civ. App. (26 S. W. Rep. 841). A certificate of acknowledgment taken May 1, 1862, need not state that the grantor was known to the officer. Hill v. Smith, 6 Tex. Civ. App. 312 (25 S. W. Rep. 1079).

Sec. 197. Virginia. (See Vol. I, § 101; Vol. 2, § 144.) Under Code of 1873, a married woman's certificate of acknowledgment was defective if it did not state that she acknowledged the same to be her act, and that she had willingly executed the same. Clinch River Veneer Co. v. Kurth, Va. (19 S. E. Rep. 878).

DEFINITIONS.

Sec. 198.

EPITOME OF CASES.

"in

Definitions of terms. Born alive. Under a statute giving the husband a right, as tenant by the curtesy in his wife's lands, where there is issue of the marriage "born alive," a child is born alive which, after being delivered of its mother, makes a distinct effort to breathe while the umbilical cord is yet uncut, though no effort is made thereafter. Goff v. Anderson, 91 Ky. 303 (15 S. W. Rep. 866). The word continguous as used in describing real estate means actual contact," "touching." Holston Salt & Plaster Co. v. Campbell, 89 Va. 396 (16 S. E. Rep. 274). An estate tail is an estate of inheritance and descends to particular heirs, and an estate granted for life with remainder is not an estate tail. Bodine's Adm'r v. Arthur, 91 Ky. 53 (14 S. W. Rep. 904; 34 Am. St. Rep. 162). The word "executed" in reference to the execution of a deed, implies a delivery. Smith v.

James, 131 Ind. 131 (30 N. E. Rep. 902). word defined and construed as used in a will. Townsend, 156 Mass. 454 (31 N. E. Rep. 632).

Family. The
Townsend v.

Farming neighborhood within the meaning of Cal. Code Civ. Proc., § 1238, which provides that the right of eminent domain may be exercised to supply water to such neighborhoods, is a region in which there are several tracts of farming land, with a proximity of location, and which can be regarded as a whole with reference to some common interests, although they are distinct in boundaries, and held in individual proprietorship. Its extent need not be characterized by fixed boundaries, nor is its existence determined by any definite number of proprietors; and while a tract of land, though large in extent, might, if held in different proprietorships, constitute a neighborhood, yet it would not if it were held in single ownership." Lindsay Irrigation Co. v. Mehrtens, 97 Cal. 676 (32 Pac. Rep. 802). Good faith consists in an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the tranaction unconscientious. S. Dak. Comp. Laws, § 4739. Wood v. Conrad, 2 S. Dak. 334 (50 N. W. Rep. 95). In Missouri it is held that a widow is not an heir of her deceased husband either by statute or by common law. Jarboe v. Hay, 122 Mo. 341 (26 S. W. Rep. 968). Incumbrance defined. Forster v. Scott. 136 N. Y. 577 (32 N. E. Rep. 976; 18 L. R. A. 543). Judicial sale is one made under the order of a court having jurisdiction of the subject matter of the sale, and which it directs to be sold for the purposes of carrying its judgment into effect, or of directing a disposition of its proceeds. In re Pearsons' Estate, 98 Cal. 603 (33 Pac. Rep. 451). "Legal representatives" defined. Ewing v. Shannahan, 113 Mo. 188 (20 S. W. Rep. 1065). Citing and collating authorities. Mistake of fact has been defined to be a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in an unconscious ignorance or forgetfulness of a fact, past or present, material to the contract which does not exist, or in the past existence of a thing which has not existed. Purvines v. Harrison, Ill.

(37 N. E. Rep. 705). Mistake of law is an erroneous conclusion as to the legal effect of known facts. Purvines v. Harrison, Ill. (37 N. E. Rep. 705). "New roof" defined as used in a stipulation for repairs in a lease. Powers v. Cope, Ga. (18 S. E. Rep. 815). Owner includes any person having a claim or interest in real property, though less than an absolute fee. Larimer County Ditch Co v. Zimmerman, 4 Colo. App. 78 (34 Pac. Rep. 1111). "Purchase" defined. Bennett v. Hibbert, N. W. Rep. 93). Purchaser for a valuable consideration defined. Ten Eyck v. Witbeck et al., 135 N. Y. 40 (31 N. E. Rep. 994; 31 Am. St. Rep. 809). Tenement house defined. Rose v. King, 49 O. St. 213 (30 N. E. Rep. 267; 15 L. R. A. 160). Vacant and unoccupied land is land not in the actual possession of anyone. Walker v. Converse, 148 Ill. 622 (36 N. E. Rep. 202).

Ala.

Ia.

(55

(16 So.

Sec. 199. As to what is real estate. Growing timber is a part of the real estate and must be conveyed as such. McKenzie et al. v. Shows et al., 70 Miss. 388 (12 So. Rep. 336); Hirth v. Graham, 50 O. St. 57 (33 N. E. Rep. 90; 40 Am. St. Rep. 641; 19 L. R. A. 721); Williams v. Hyde et al., 98 Mich. 152 (57 N. W. Rep. 98); Mee v. Benedict, 98 Mich. 260 (57 N. W. Rep. 175; 39 Am. St. Rep. 543; 22 L. R. A. 641); Lowery v. Rowland, Rep. 88). In Illinois it is held that the water-mains and electric wires of a water and light company are personal property for the purposes of taxation. Shelbyville Water Co. v. People, 140 Ill. 545 (30 N. E. Rep. 678; 16 L. R. A. 505). But the contrary is held in Maine. Inhabitants of Paris v. Norway Water Co., 85 Me. 330 (27 Atl. Rep. 143; 35 Am. St. Rep. 371; 21 L. R. A. 525). Growing grass will be treated as realty. Matter of Chamberlain, 140 N. Y. 390 (35 N. E. Rep. 602; 37 Am. St. Rep. 568). Petroleum or mineral oil, so long as it remains in the ground or well, is as much a part of the real estate as timber, coal, iron ore, or salt water. Williamson v. Jones, W. Va. (19 S. E. Rep. 436;

25 L. R. A. 222).

Sec. 200. As to when money will be treated as real estate. When the real estate of an infant is converted into

money by the order of the court, and the infant dies before attaining its majority, the fund will be treated as real estate, and descend to the heirs at law of the infant. Where there is a compulsory conversion of real estate, as in the exercise of the right or power of eminent domain, and without the consent or against the will of the owner of the fee, the fund will be treated as real estate until the owner, being sui juris, or of disposable capacity, shall either recognize it, or manifest a willingness to accept it, as personal. Wetherill v. Hough, (29 Atl. Rep. 592). Where the result is

N. J. Eq.

to change a course of inheritance, the law does not favor conversion, and it will be presumed only so far as is necessary to effectuate the intention of the testator. Darlington v. Darlington, 160 Pa. St. 65 (28 Atl. Rep. 503).

DESCENT.

EPITOME OF CASES.

Sec. 201. Adopted children. A child jointly adopted during a former marriage by husband and wife, takes a fee simple in the real estate of the husband subject to the life estate of the childless widow by a second or other marriage, owned by the adopted father at any time during such subsequent marriage, in the conveyance of which she has not joined with him. Markover v. Kraus, 132 Ind. 294 (31 N. E. Rep. 1047; 17 L. R. A, 806). A court of equity will enforce a parol agreement of the adopting parent that the adopted child should not be deprived of his inheritance as an heir, such agreement having been made in consideration of the adoption, and performed on the part of the child. Quinn v. Quinn,

S. Dak. (58 N. W. Rep. 808). In Missouri, for the purpose of inheritance, an adopted child stands in the same relation to its adopting parent as a natural offspring. (Mo. Rev. Stat. 968, 4513, 4518, 4520, construed). Moran v. Stewart, 122 Mo. 295 (26 S. W. Rep. 962); Fosburgh v.

Rogers, 114 Mo. 122 (21 S. W. Rep. 82; 19 L. R. A. 201). Under Mass. Pub. Stat. ch. 148, § 7, an adopted child does not inherit from the adopted parents' ancestors. Meader v. Archer, 65 N. H. 214 (23 Atl. Rep. 521).

In a well considered case it is held that a decree of adop、 tion rendered in a state whose laws make an adopted child the heir of an adopting parent, entitles such child to inherit the parent's land situated in another state. Glos v. Sankey, 148 Ill. 536 (36 N. E. Rep. 628; 39 Am. St. Rep. 196). The court say: "This court in Keegan v. Geraghty, 101 Ill. 26, quoted with approval the language of Mr. Justice Gray, in Ross v. Ross, 129 Mass. 243 (37 Am. Rep. 321), as follows: 'It is a general principle that the status or condition of a person, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in that other's property, is fixed by the law of the domicile; and that status and capacity are to be recognized and upheld in every other state, so far as they are not inconsistent with its own laws and policy.' And the principle announced, with its limitations, was expressly approved. In the Keegan Case, Supra, the child, adopted under the laws of Wisconsin, sought, in this state, to take, not from the adopting parent, but from collaterals, and by representation. This court expressly recognized the status established in Wisconsin, so far as it related to the right to inherit from the parent by adoption, because consistent with the laws of this state relating to descent to adopted children, but denied the right to take by representation from collateral kindred of the parent, for the reason that such taking was prohibited by, and inconsistent with, the laws of this state." This doctrine is supported by Melvin v. Martin, R. I. (30 Atl. Rep. 467).

Sec. 202.

Per stirpes or per capita. Where a testator devised land to his wife for life with remainder to his heirs and her heirs and their heirs and assigns forever, share and share alike, and at the time of the wife's death there were three stocks of heirs, it is held that the heirs took as if there were but one class and per capita and not per stirpes, and that the devise was to the heirs of the testator living at the time of the death of the wife, and not at the time of the testa