cision of the highest court of one state upon the faith and credit to be allowed to a judgment rendered in another state, always takes notice of the laws of the latter state; and upon the consequent misapplication of the postulate that one rule must prevail in the court of original jurisdiction and in the court of last resort."

Again, in Chicago & A. R'y Co. v. Wiggins Ferry Co., 119 U. S. 616, the court, when considering the effect of the constitutional requirement that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state," say it implies that the public acts of every state shall be given the same effect by the courts of another state that they had by law and usage at home; and the learned chief justice says: "Whenever it becomes necessary under this requirement of the constitution for a court of one state, in order to give faith and credit to a public act of another state, to ascertain what effect it has in that state, the law of that state must be proved as a fact. No court of the state is charged with knowledge of the laws of another state, but such laws are in that court matters of fact which, like other facts, must be proved before they can be acted upon. This court and the other courts of the United States, when exercising their original jurisdiction, take notice, without proof, of the laws of the several states of the United States; but in this court, when acting under its appellate jurisdiction, whatever was matter of fact in the court whose judgment or decree is under review is matter of fact here."

In view of these excerpts, we think the learned counsel is mistaken in the assumption that the supreme court of the United States has laid down a rule in conflict with Rape v. Heaton, 9 Wis. 329; 76 Am. Dec. 269. But that the question may be reviewed by that court, at the request of counsel we will state the precise point we decide in the case, which is, that the trial court was not bound to take judicial notice of the law of Minnesota regulating the action of replevin; but in the absence of all proof on the subject, the presumption would be, that it was the same as the law of this state. This clause will be inserted in our judgment.

It follows from these views that the judgment of the circuit court is affirmed.

By the COURT. Judgment affirmed.

JUDGMENTS-LAWS OF ANOTHER STATE - JUDICIAL NOTICE. - Judicial notice will not be taken of the laws of another state. Its common law will

be presumed to be the same as that of this state: Harvey v. Merrill, 150 Mass. 1; 15 Am. St. Rep. 159, and note. Only common-law rights will be recognized by the courts of sister states: Buckles v. Ellers, 72 Ind. 220; 37 Ain. Rep. 156; Burns v. Grand Rapids etc. R. R. Co., 113 Ind. 169.

JUDICIAL NOTICE LAWS OF ANOTHER STATE. The law of another state, whether declared by judicial decision or otherwise, must be pleaded or proved, and will not be judicially noticed: Cincinnati etc. R. R. Co. v. McMullen, 117 Ind. 439; 10 Am. St. Rep. 67, and note. See Freeman on Judgments, 4th ed., sec. 571.

POWER TO DISPOSE OF THE FEE OF REALTY. A devise of land to the tes-tator's widow "to be for her sole use and benefit, so long as she shall live, with power to dispose of the same if necessary for her support and comfort in this life," vests in her the power to dispose of the fee if necessary for her support and comfort, though the will further declares that whatever remains after her death shall go to the heirs of the testator.

WITNESSES. A STATUTE PROHIBITING A PARTY FROM TESTIFYING as a witness to a contract or conversation between himself and a deceased person, when the opposite party derives his title from such decedent, does not render a donee under a power to sell incompetent to testify as a witness to a contract between himself and the holder of the power, resulting in the power being exercised for the purpose of giving him title when the opposing parties do not claim under the decedent or the power, but insist that it did not confer authority to make the convey. ance under which the witness claims.

CONTRACT IS NOT VOID, under section 2307 of the Revised Statutes of Wisconsin, because its consideration was the marriage of the parties, if the marriage is but an incident of the contract, and it is supported by a sufficiently valuable consideration aside from the marriage.

THOUGH AN AGREEMENT IS VOID BECAUSE NOT IN WRITING, its complete performance takes it out of the statute, and the fact that it was not in writing is no longer material.

Hand and Fleet, and Luse and Wait, for the appellants. T. M. Kearney and J. R. Dyer, for the respondent. ORTON, J. The testimony tends to prove, and the circuit court found, substantially, the following facts: One Austin Larsen died July 20, 1857, seised in fee-simple and in possession of eighty acres of land in the county of Racine, leaving no children, but leaving his widow, Susan Larsen, and a last will and testament, by which he gave and bequeathed to his beloved wife, the said Susan Larsen, all of said land by particular description, "to be for her sole use and benefit so long as she shall live, with power to dispose of the same if it shall

be necessary for her support and comfort in this life." He also devised to her certain kinds of personal property for life, and his goods and chattels generally to be hers forever. The residuary clause of the will is, that "whatever remains after her death shall go to the heirs of him and her in the manner provided by the laws of this state." His only heirs were his two brothers, the appellants, and the children of two deceased brothers. The said will was duly proven and admitted to probate in said county on the seventh day of September, 1857, and said Susan Larsen was appointed sole executrix, having been so named in the will.

About eleven acres of said land only was partially cultivated, and the buildings thereon were a small log-house and a log-shed covered with brush and straw, and of little value. The remainder of the land was covered with small and poor timber, and some marsh. The said Susan Larsen remained in possession of said land, and did all she could to derive her support therefrom, and the little personal property upon it, but was unable to do so, until about June, 1859. She had been compelled to contract debts for such purpose to the amount of over five hundred dollars, and was unable to rent the land for an amount sufficient for her support. It suffiently appeared from the testimony that the time had come when it was necessary to dispose of said land for her support and comfort, and for the payment of her debts. About that time the said Susan Larsen entered into a contract with the respondent that he should provide for her support and comfort during her life, pay her said debts, take care of, manage, and improve said land so as to make it productive for such purpose, and to that end it was agreed that they should become husband and wife, and live together on said land, and that, in consideration of the above provisions for her support and comfort, the said Susan should convey said land to the respondent in fee-simple. In execution of the said contract, having been married to the said Susan on the ninth day of June, 1859, the respondent at once entered into the possession of said land, provided for the support and comfort of the said Susan during all the time thereafter and until the twenty-third day of March, 1868; and he paid off said indebtedness, with interest, removed stumps, trees, and brushwood from said land, dug ditches for the drainage of the said marsh-land, built fences, erected a granary and other farm buildings, and labored diligently to improve said land, and rendered the

same sufficiently productive for their comfortable support, and he thereby gave said land its then principal market value. The respondent fully performed his part of said agreement, and he was therefore entitled to the conveyance of said land by the said Susan Larsen, according to her part of the agreement. In execution of said contract on her part, the said Susan Larsen, on the said twenty-third day of March, 1868, conveyed said land to one Charles Alby by warranty deed, and caused the said Alby and wife to convey the same to the respondent, Andrew Johnson, by a like warranty deed, and he thereby became entitled to said land in fee-simple. From that time until the fourteenth day of April, 1884, when the said Susan, then Susan Johnson, died, the respondent provided amply for her support and comfort. It appeared that the said Susan had always been in poor and feeble health, and unable to do much physical labor.

There are fifteen exceptions to the findings of the abovefacts, but only a few of them are contested in the brief of the learned counsel of the appellant.

It appears that the record of the will and of the proceedings of probate had been destroyed by fire, and copies thereof had been established by the county court according to the statute, and such restored records were offered in evidence. Exception was taken to their admission. They appear to have been restored according to law, and to be competent evidence to prove the contents and probate of the will. Exception was also taken to the testimony of the respondent to prove the contract between himself and the said Susan Larsen, because the said Susan Larsen was not living. We are cited to section 4069 of the Revised Statutes. The statute does not exclude such testimony, because in this action the plaintiffs, as the "opposite party, did not derive their title from such deceased person."

There are two objections made by the learned counsel of the appellants to the validity of the contract: 1. Because the consideration was the marriage of the parties: R. S., sec. 2307. 2. Because the contract was not in writing, as required by section 2302 of the Revised Statutes.

1. The marriage of the parties was not the consideration of the contract to convey the land, or any part of it. It was only incidental as the condition or relation in which the respondent should render to the said Susan Larsen, and she receive, her support and comfort as the consideration of the

conveyance. The agreement to marry may have been made at the same time, but not as any part of the consideration for the conveyance. It was for the benefit of the respondent as much as, if not more than, it was for her benefit. There was sufficient lawful and valuable consideration to support the contract, aside from any supposable consideration of marriage.

2. The agreement, although not in writing, was fully executed and performed. This, by all authority, takes it out of the statute. The said Susan Larsen, now deceased, received from the respondent her support and comfort as long as she lived, and the conveyance was made in full execution and performance of the contract on both sides.

The main question in this case is, What is the nature and extent of the power given in this will to the widow, Susan Larsen, in the words of the will, "with power to dispose of the. same [the land] if it shall be necessary for her comfort and support in this life"?

It is the contention of the learned counsel of the appellant, -1. That this power does not enlarge the life estate of the said widow to a fee; that is, it is a power to dispose of the life estate only. The authorities cited by the learned counsel are not applicable to this case. There may be similar language in a will, construed in the light of accompanying facts and circumstances, which will not bear a more extended construction to carry out the clear intention of the testator. But the language as well as the circumstances in such cases are entirely different from those of this will, as in Jones v. Jones, 66 Wis. 310, 57 Am. Rep. 266, and the other cases cited. The only question in which the respondent is interested is, whether the power may pass the fee. Whether it is conditional or absolute, restricted or unrestricted, is immaterial to him, if the contingency had happened upon which she had the power to dispose of the land in fee. It is claimed in his behalf that such was the case, and there was much testimony introduced to show that it was necessary to dispose of all this land, in its then condition, for her support and comfort, and that the proceeds of the sale were all consumed for such purpose; and so the circuit court found, and, we think, correctly. 2. By far the greater number of the authorities cited by the learned counsel of the appellants are in support of this construction of the will, and with much candor they say: "The cases are numerous that, where a power is given to the donee to sell for