court, on appeal, both by a single justice and the full court. See Green v. Hogan, 153 Mass. 462, 27 N. E. 413.

HORTON v. EARLE et al. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 30, 1894.)

DEVISE TO BROTHER-IN-LAW-DEATH BEFORE TESTATOR-LApse.

1. A residuary devise to two persons, by name, "their heirs and assigns," being a devise of one-half of the residue to each, lapses on the death of one of them before testator, as to his share.

2. A brother-in-law is not a relation, within the meaning of Pub. St. c. 127, § 23, providing that, where a devise is made to a child or "other relation," his issue shall take his share in case he dies before testator, provided no different disposition is required by the will.

Appeal from supreme judicial court, Bristol county; Marcus P. Knowlton, Judge.

Petition by Nathaniel B. Horton, executor, against Emma P. Earle and others, for the construction of a will. From the decree, petitioner and others appeal. Affirmed.

Lincoln & Hood, for appellants. Jennings & Horton, for respondents.

FIELD, C. J. This is a petition to the probate court for the construction of a will, and, although the procedure in that court was not according to the rules of pleading and procedure in equity causes, it appears that all persons interested appeared and were

The particular clause in the will of Sarah B. Horton, to be construed, is as follows: "All the rest and residue of my property and estate, both real and personal, wherever and whatever the same may be, I give, devise, and bequeath to Hiram Horton and Nathanlel B. Horton, to be equally divided between them, share and share alike, to them and their heirs and assigns." Hiram Horton died before the testatrix, and he was the brother of the deceased husband of the testatrix, but not otherwise a relation of the testatrix. He was not, therefore, a relation of the testatrix, within the meaning of Pub. St. c. 127, § 23.1 Kimball v. Story, 108 Mass. 382.

This residuary legacy is not to a class, but to two persons by name, and the effect of it is that one-half of the residue is given to one person by name, and one-half to the other. Workman v. Workman, 2 Allen, 472; Claflin v. Tilton, 141 Mass. 343, 5 N. E. 649. The addition of the words, "and their heirs and assigns," only shows that the whole property in the residue was given absolutely, or, so far as it was real property, that it was given in fee, if the testatrix owned a fee. Hiram Horton having died before the testatrix, the legacy to him lapsed. Kimball v. Story, 108 Mass. 382; Wood v. Seaver, 158 Mass. 411, 33 N. E. 587; Bryson v. Holbrook, 159 Mass. 280, 34 N. E. 270. Decree affirmed.

ABDUCTION.

Admissibility of evidence as to the previously
chaste character of the female abducted.-Brad-
shaw v. People (Ill.) 652.

Evidence as to what the girl said when she
went away with defendant was rightly excluded
as hearsay.-Bradshaw v. People (Ill.) 652.

Presumption as to chastity of female abduct-
ed for purposes of concubinage.-Bradshaw v.
People (Ill.) 652.

ABORTION.

Admissions.

Advancement.

See "Descent and Distribution."

ADVERSE POSSESSION.

Right of purchaser from mortgagor to assert
title by adverse possession as against the mort-
gagee.-Norris v. Ile (Ill.) 762.

Where a man held actual possession until his
death, and a tenant of his wife took possession
three years thereafter, evidence that the widow
claimed the land during the three years is suf-
ficient to establish possession.-Horner v. Reu-
ter (Ill.) 747.

Entering on timber land, and cutting timber

ACCORD AND SATISFACTION.

One who agrees to a settlement of a claim
for damages while out of her mind may ratify
the settlement by acceptance of the amount
thereof after she becomes compos mentis.-
Drohan v. Lake Shore & M. S. Ry. Co. (Mass.)
1116.

An agreement to accept less than the amount
of a debt is not a good accord and satisfaction.
-Swope v. Bier (Ind. App.) 340.

Admissibility of evidence to show settlement,
accord and satisfaction, or payment, when such
defenses were not pleaded.-Dibble v. Dimick
(N. Y.) 724.

ACKNOWLEDGMENT.

An acknowledgment before a justice is not
defective because the seal precedes, instead of
follows, the justice's signature. - Gilbreath v.
Dilday (Ill.) 572.

Action.

land is not fenced.-Horner v. Reuter (II.) 747.

Evidence showing title by possession for 20
years adverse to a reservation in a certain deed,
ceived title expressly subject to the deed con-
though one claiming under such possession re-
taining such reservation.-McKinney v. Lan-
ning (Ind. Sup.) 601.

Adverse possession of uninclosed, unimproved,
and unoccupied land is not shown by evidence
that one had it surveyed, and its boundaries
occasionally cut trees on it for use on other
marked, paid taxes on it for a few years, and
land.-Mission of the Immaculate Virgin for
the Protection of Homeless and Destitute Chil-
dren in the City of New York v. Cronin (N.
Y.) 964.

Actual adverse possession for 20 years, under
claim of ownership, is sufficient without a deed.
-Horner v. Reuter (Ill.) 747.

Question whether one who had fenced and
improved land, and lived on it for several years,
lost his possession by leaving it vacant for two
years.-Downing v. Mayes (Ill.) 620.

Continuous, actual, and hostile possession for
20 years need not be under a rightful claim,
nor under a muniment of title.-Noyes v. Hef-
fernan (Ill.) 571.

Affidavit.

The question whether the evidence tends to
sunport the verdict cannot be raised for the
first time on appeal.-Ohio & M. Py. Co. v.

Record.

Upon appeal from the appellate to the su-
preme court, the opinion of the former court is
no part of the record.-Ohio & M. Ry. Co. v.
Wangelin (Ill.) 760.

In order that bill of exceptions, filed after
the term, may be considered, an order extend-
ing the time for filing it must appear of record.
-De Pauw University v. Smith (Ind. App.)
1093.

A bill of exceptions allowed by the judge can-
not be varied by the filing of a statement of
facts which is not passed on by the court.-Car-
roll v. Daly (Mass.) 1119.

Sufficiency of record to justify a review of a
refusal to strike out a special verdict.-Tague
▼. Owens (Ind. App.) 541.

A defendant in error, who has not supplied
an additional abstract of the record, cannot
complain that the abstract of plaintiff in error
is incomplete.-Wilson v. Dresser (Ill.) 888.

For a bill of exceptions to become part of the
record, its filing must be certified by the clerk
in the transcript.-Downey v. Head (Ind. Sup.)

169.

The stenographer's manuscript of the evi-
dence, which has not been filed with the clerk.
nor certified by him, nor incorporated in a bill
of exceptions, is not a part of the record.
Downey v. Head (Ind. Sup.) 169.

Where the bill of exception shows that maps

used in evidence were omitted from the tran-
script, the defect is not remedied by a statement
in the bill of exception that it contains all the
evidence.-Board of Com'rs of Parke County v.
Wagner (Ind. Sup.) 171.

The transcript need not show that the judg-
ment was signed by the trial judge.-Ferris v.
Udell (Ind. Sup.) 180.

Where the manuscript of the official reporter
is in the bill of exceptions, the evidence therein
is in the record.-Big Creek Stone Co. v. Wolf
(Ind. Sup.) 52.

Review.

After the court of appeals has decided that
no appeal lies to it from a certain report of
commissioners, it will not review an order de-
nying a motion to set aside such report for
error or irregularity, nothing not appearing on
the former appeal having been alleged in such
motion. In re Southern Boulevard R. Co. (N.
Y.) 276.

Where all the instructions are not given, the
-court will presume that those given covered er-
rors assigned to the charge.-Board of Com'rs
of Jackson County v. Nichols (Ind. Sup.) 526.

The sufficiency of the complaint will not be
determined on appeal when the same ques-
tions are raised by an assignment of error on
special findings and conclusions of law.-Dow-
ell v. Talbot Paving Co. (Ind. Sup.) 389.

Where an action at law is tried by the court
without a jury, and no propositions of law are
submitted to the court, there is no question of
law for review by the supreme court.-Streator
Reclining Car-Seat Co. v. Rose (Ill.) 910.

The amount of damages in a personal injury
case will not be reviewed by the supreme court.
-Goldie v. Werner (Ill.) 95.

Objections not made below.
The defendant who introduces testimony
waives error in denying his motion to instruct
the jury, when plaintiff rested his case, to find
for defendant.-Goldie v. Werner (Ill.) 95.

The objection that equity has no jurisdiction
because there is an adequate remedy at law
cannot be made for the first time on appeal.-
Hay v. Bennett (Ill.) 645.

To present to the supreme court the question
whether there is any evidence that plaintiff ex-
ercised due care, the question must be raised in
the trial court as a question of law. Chicago &
A. R. Co. v. Gomes (Ill.) 651.

An objection that a jury rendered a general
instead of a special verdict cannot be raised for
the first time on appeal. Tague v. Owens
(Ind. App.) 541.

Where the question was not raised at the
trial, the appellate court will not consider
whether the evidence received bore on the is-
sues.-Crist v. Jacoby (Ind. App.) 543.

In the absence of exceptions, permitting the
jury to view the premises will not be reviewed.
Chicago, P. & St. L. R. Co. v. Leah (Ill.)

556.

Right to object on appeal that the petition by
an intervener failed to make any person de
fendant.-City of Belleville v. Citizens' Horse
Ry. Co. (Ill.) 584.

Where a complaint in a justice court is de-
fective merely in a necessary fact being imper-
fectly stated, objection thereto cannot be raised
for the first time on appeal.-Mason v. Kempf
(Ind. App.) 230.

Issues not raised at the trial term will not

be considered.-Pellas v. Motley (N. Y.) 100.

Objection to the sufficiency of a declaration
cannot be made for the first time in the su-
preme court.-McLaughlin v. Hinds (Ill.) 136.

Only the specific objections to evidence urged
below will be considered.-Indiana Imp. Co. v.
Wagner (Ind. Sup.) 49.

The admission of evidence will not be review-
ed unless made ground of a motion for a new
trial.-Indiana Imp. Co. v. Wagner (Ind. Sup.)

49.

On appeal only those objections to the denial
of a new trial will be considered which are pre-
sented to the lower court.-Midland Ry. Co. v.
State (Ind. App.) 57.

Review of evidence.

Error in admitting evidence on one of several
distinct issues does not necessarily render a
judgment entered on the general verdict er-
roneous.-Beecher v. Dunlap (Ohio) 795.

A statement in the record that it contains
"all the testimony," instead of "all the evi-
dence," is sufficient to authorize a review of
the facts.-Dibble v. Dimick (N. Y.) 724.

Where an equity case is heard on oral evi-
dence in open court, and the evidence is con-
flicting, a decree will not be reversed, as unsup-
ported by the evidence, unless clearly errone-
ous.-Lofquist v. Errickson (Ill.) 908.

Where the evidence is conflicting, the judg-
ment will not be disturbed.-Bevelot v. Les-
trade (Ill.) 1056.

On review by the appellate court of the suffi-
ciency of the evidence, the rule that, if there
is a conflict in the testimony introduced by a
party, the testimony most unfavorable to him
must prevail, does not apply.-De Pauw Uni-
versity v. Smith (Ind. App.) 1093.

A verdict rendered on conflicting evidence
will not be disturbed on the ground that the
evidence was insufficient.-Froman v. Jenner
(Ind. App.) 1097

Where there is any evidence to sustain the
jury's verdict, and the trial court refuses to