mind until her death twenty-two years thereafter, when the rest of her heirs disaffirmed the deed, and brought suit for partition and to quiet title. Held, that the action was not barred by the statute of limitations. Downham v. Holloway, 626. 4. By Person of Unsound Mind.-The deed of a person of unsound mind not under guardianship is not void, but only voidable, and vests the title to the real estate in the grantee the same as an unimpeachable deed until disaffirmed by the grantor on becoming sane, or by his heirs after death. Downham v. Holloway, 626.
5. Voidable Deed.-Disaffirmance.-An action to give force to the disaffirmance of a voidable deed does not accrue until after a dis- affirmance. Downham v. Holloway, 626.
DESCENT AND DISTRIBUTION—See EXECUTORS AND ADMIN- ISTRATORS; WILLS.
1. Executors and Administrators.-Wills.-Where a husband by the terms of his will gave all of his property to his wife for life and the portion remaining at her death to certain residuary legatees, the portion remaining at the death of the widow remained a part of the estate of testator, and the widow's administrator had no authority or control over the same. Jester v. Gustin, 287. 2. Action for Debt Due Ancestor.-Wills.-A complaint for the bal- ance of purchase money of real estate, payable at the death of grantor, bequeathed to plaintiff, which shows that there were no debts against the estate of the testator, nor any administrator, executor, creditor, legatee, widow, or other person, except plain- tiff, entitled to recover the same, is sufficient.
Jester v. Gustin, 287. DIVORCE-Support and custody of children, see PARENT AND CHILD; Leibold v. Liebold, 60.
Custody of Minor Children.-Modification of Decree.-In divorce cases, the court has continuing jurisdiction with respect to children, and may modify its decree at any time during the minority of the children, without a specific reservation in the decree of such authority. Sullivan v. Learned, 49 Ind. 252, overruled. Stone v. Stone, 628. DRAINS—Appeal from judgment ordering an allotment for re- pairs, see APPEAL AND ERROR, 1; Pittsburgh, etc., R. Co. v. Gil- lespie, 454.
1. Appeal.-Transcript.-Record.-Where the transcript of the pro- ceedings on appeal from an order of the board of county com- missioners establishing a drain contains only the proceedings of the board had after the cause was remanded from a former ap- peal, and does not show that any petition for drainage, or remonstrance against the same, was ever filed, or that any viewers were ever appointed or made any report, a transcript of the former appeal showing the petition, remonstrance, appoint- ment of viewers, and their report, is improperly included in the record in an appeal to the Supreme Court from a judgment of the circuit court dismissing the last appeal, and the same cannot be considered by the Supreme Court in determining whether the court below erred in dismissing the last appeal.
Toy v. Craig, 444. 2. Railroads.-Benefits.-Evidence.-Evidence by an expert civil en- gineer, experienced in railroad construction and maintenance
in swamp land, in a proceeding to establish a drain, as against the remonstrance of a railroad company, relative to the cost of the maintenance of a railroad bed made of muck soil when satu- rated by seepage from standing water and when dry and free from standing water and the relative value of the property under the two conditions was competent as tending to establish benefits.
Pittsburgh, etc., R. Co. v. Machler, 159. 3. Railroads.-Benefits.-Evidence.-Evidence in the trial of a pro- ceeding to establish a drain, over the remonstrance of a rail- road company, that the drain would carry off the water from the side ditches of the railroad company that had no outlet, and as to the general sufficiency of the drain to convey the water away from the vicinity of the railroad, and thus make unnecessary the construction of another bridge in the neighborhood, was compe- tent as tending to show benefits to the railroad company by the construction of the drain. Pittsburgh, etc., R. Co. v. Machler, 159. 4. Railroads.-Constitutional Law.-The State has the right to author- ize the improving of a drain across the right of way of a rail- road company by deepening and widening a natural channel, and such an act is not in violation of the State or federal Con- stitution. Pittsburgh, etc., R. Co. v. Machler, 159. 5. Notice.-Waiver.-Remonstrance.-Where a railroad company af- fected by the construction of a drain was served with notice twenty days before the petition was docketed, and within the time prescribed by the statute, and appeared, and filed a re- monstrance challenging the assessment against its right of way, without making any objection to the sufficiency of the notice, or the regularity in filing the petition, such act will be held to con- stitute a waiver of all questions pertaining to the jurisdiction of Pittsburgh, etc., R. Co. v. Machler, 159.
Primary Election Law.-The act of 1901 (Acts 1901, p. 495) known as the primary election law does not govern nominations for office which are required to be filled by the voters of a district composed of more than a single county.
State, ex rel., v. Elliott, 168.
1. Sewers.-Assessments.-An assessment for a sewer is against the property, and not against the owner of the property, and it does not follow that plaintiff was not compensated for land taken for the construction of a sewer because the assessment for the con- struction thereof was made in the wrong name.
Gas Light, etc., Co. v. City of New Albany, 268. 2. Public Improvements.—Assessment of Benefits and Damages.-Mu- nicipal Corporations.-Where a public improvement, such as usually conveys with it both benefits and damages, is laid upon land under the right of eminent domain, the compensation of the owner is determined, in the absence of a statute forbidding it, by taking into account both the benefits and damages; and where in such case benefits have been assessed against property it will be conclusively presumed, as against a collateral attack, that the damages, if any, have been estimated and deducted from the aggregate amount of benefits.
Gas Light, etc., Co. v. City of New Albany, 268. EMPLOYERS LIABILITY ACT-See MASTER AND SERVANT. EQUITY-Suit for support of child, see COURTS, 4; Leibold v. Lei- bold, 60.
Proof of contributory negligence in personal injury cases, see TRIAL, 3; Indianapolis Street R. Co. v. Taylor, 274.
Reversal of cause on the evidence, see APPEAL AND ERROR, 34; Carver v. Forry, 76.
1. Testimony of Witness at Former Trial.-Stenographer.-Where a witness at a former trial remains competent and qualified, a resident of an adjoining county, temporarily absent from the State, and no diligence has been shown to procure his depo- sition or secure his personal attendance, it is not proper to permit a stenographer to testify in the trial of the cause as to what the absent witness swore to at the former trial.
Wabash R. Co. v. Miller, 174.
2. Death of Party to Contract. -Testimony by Survivor.-No error was committed in permitting defendant to testify in an action for the redemption of real estate from execution sale concerning an agreement between him and the execution defendants, one of the execution defendants having died, where the testimony of the deceased, given upon a former occasion, was introduced in evi- dence. Turpie v. Lowe, 314.
EXECUTORS AND ADMINISTRATORS-See DESCENT AND DIS- TRIBUTION.
1. Action by Administrator.-Complaint.-Demurrer.-In an action by an administrator on a note made payable to decedent, a demurrer for want of facts raises the question as to whether it sufficiently appears from the complaint that the plaintiff is suing in his rep- resentative capacity. Toner v. Wagner, 447.
2. Action by Administrator.-Complaint.—In an action by an admin- istrator on a note made payable to his decedent, a complaint is sufficient, as against a demurrer for want of facts, which com- plaint in its title and the body thereof designates plaintiff as administrator of decedent, though the complaint contains no alle- gation of decedent's death and the issuing of letters to plaintiff. Toner v. Wagner, 447.
3. Claims Against Decedent's Estate.-Pleading and Proof.- Variance. -The rule that where the complaint is based upon an implied con- tract a recovery cannot be had on an express contract does not apply to a mere statement of a claim filed against a decedent's estate. Masters v. Jones, 647.
4. Claims Against Decedent's Estate.-Guardian of Insane Person.- One who renders services for an insane person, under guardian- ship, at the instance of the guardian, may, at the death of the ward, enforce his claim against the estate of the deceased in the hands of his executor or administrator. Masters v. Jones, 647.
5. Claim Against Decedent's Estate.-Care of Decedent by Member of Family.-Adult daughters who took care of their father while he was insane, at the instance of his guardian, are not precluded from recovering from his estate compensation for such services by reason of the fact that prior to his insanity they resided with him as members of his family. Masters v. Jones, 647.
6. Guardian of Insane Person.-Care of Ward.-The guardian of an insane person may by direction of the court, or subject to the subsequent approval of the court, employ a suitable person to
EXECUTORS AND ADMINISTRATORS—Continued.
care for his ward and furnish him with necessaries at the expense of the ward's estate. Masters v. Jones, 647.
7. Funeral Expenses of Decedent.-Tombstone.-The reasonable and necessary cost of a tombstone or monument placed at the grave of a deceased person may be classed as a part of the funeral expenses, and paid for by the administrator out of the funds of the estate. Pease v. Christman, 642. EXEMPTION-From taxation of property devoted to charitable purposes, see TAXATION, 4; Vink v. Work, 638.
EXPERT TESTIMONY-As to benefits of drain, see DRAINS, 2; Pittsburgh, etc., R. Co. v. Machler, 159.
1. Constitutional Law.-The fee and salary law of 1891 by the amend- ment of 1893 was freed from the constitutional invalidity as to auditors, treasurers, and recorders held to exist against it as originally enacted. Shilling v. State, ex rel., 185.
2. Erroneous Decision of Supreme Court, Effect on Salary of Officers Until Reversed.-The decision in State, ex rel., v. Boice, 140 Ind. 506, holding the county fee and salary act of 1891 unconstitu- tional, which was afterwards overruled by Walsh v. State, ex rel., 142 Ind. 357, did not operate to give county officers a right to charge and collect fees under the fee and salary act of 1879 during the time it remained unreversed; since the rule that contract rights acquired under an interpretation of the law made by the Supreme Court are not devested by a subsequent decision to the contrary does not apply to the claims of public officers to fees or salaries established by law. Gross v. Board, etc., 531. FRATERNAL INSURANCE-See INSURANCE, 5, 6; Modern Wood- men v. Noyes, 503.
1. Parol Contract to Convey Land.-Enforcement.-Where a parent makes a parol promise to a child to convey a tract of land if the child will take possession of, reside upon and improve the same, and in reliance upon the promise the child takes pos- session and makes improvements of a permanent and valuable character, such promise rests upon a valuable consideration; and performance on the part of the child takes the oral contract out of the operation of the statute of frauds, and a court of equity will decree a specific performance of the contract.
Horner v. McConnell, 280. 2. Sale of Corn.-Oral Contract.—Damages for Failure to Perform.- Complaint. In an action to recover damages for failure to com- ply with an oral contract for the sale of corn, for a price in excess of $50, an allegation in the complaint that "defend- ant delivered to plaintiff" a part of the corn, "but has failed, refused, and neglected to deliver any more of the same," is not suffcient to render such oral contract enforceable under the statute of frauds, without a further allegation that the property delivered was received. Goodwine v. Cadwallader, 202.
FREE GRAVEL ROADS-See HIGHWAYS.
FT. WAYNE CHARTER-Appointment of municipal judge, see MUNICIPAL CORPORATIONS, 1, 2; State, ex rel., v. Berghoff, 349. GAS-Discrimination in rates, see CONSTITUTIONAL LAW, 9; Indiana, etc., Gas Co. v. State, ex rel., 516.
GRAVEL ROADS-See HIGHWAYS.
GUARDIAN AND WARD—Appointment of guardian for insane person, see INSANE PERSONS, 1, 2; Soules v. Robinson, 97. Custody of Orphan Minor Child.-Wishes of Ward.-The guardian of an orphan minor child is entitled to the custody and control of such child, and the desire of the ward is not controlling..
Palin v. Voliva, 380. HIGHWAYS-Railroad and highway crossings, see RAILROADS, 2, 3, 4; Chicago, etc., R. Co. v. State, ex rel., 189.
1. Free Gravel Roads.-Construction.-Notice of Petition.-Notice of the presentation of a petition for the construction of a free gravel road stating that the petition would be presented on the first day of the next term of the board of commissioners, "which will be held on the first day of May," instead of stating that it would be held on the first Monday of May, as provided by stat- ute, is not so defective as to render the notice invalid, since all persons were required to take notice of the time fixed by statute. Gifford v. Baker, 339.
Free Gravel Roads.-Construction.-Notice of Petition.-An objec- tion to the form of a notice of the presentation of a petition for the construction of a free gravel road, not presented until after the board acted on the petition, is too late.
Gifford v. Baker, 339. 3. Petitions.-Consolidation.-Two petitions for the construction of a free gravel road, presented to the board at the same time, may be treated as one petition. Gifford v. Baker, 339. 4. Free Gravel Roads.-Assessments.-Duty of Auditor.-Where assess- ments for the construction of free gravel roads have been con- firmed by the county commissioners, it is the duty of the county auditor to spread the report upon the record, and to place such assessments, not stayed by judicial process, upon a duplicate for collection, leaving the question of the validity of the assessments to the landowners. Smyth v. State, ex rel., 332. 5. Assessments for Gravel Road.― Appeal. — Presumption.-Where a part of the landowners assessed for a free gravel road successfully appeal from the confirmation of the assessment, but it appeared that more than half of the total estimated cost had been expended before the appeal was decided, it will be presumed that those not appealing received adequate benefit. Smyth v. State, ex rel., 332. 6. Gravel Road.-Assessments. - Conclusiveness. Where the original petition for a free gravel road is sufficient on its face, and the board of commissioners, after notice to landowners, and without remonstrance by them, adjudges the petition sufficient, such land- owners are bound thereby. Smyth v. State, ex rel., 332. 7. Free Gravel Roads.-Remonstrance.-Trial.-Burden of Proof.-The burden of proof is on the remonstrants in the trial of a proceeding for the construction of a free gravel road, since the statute makes the report of the viewers prima facie evidence of the facts therein contained. Gifford v. Baker, 339.
8. Free Gravel Roads.-Assessments. — Appeal from Commissioners.— Assessments made by the board of commissioners for free gravel
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