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TRUSTS-Continued.

2. Conveyance of remainder in trust.-A deed from a remainder-

man, by which, in consideration of past care and support and
that the grantee will care and provide for the grantor during
her natural life, the remainder is conveyed to the grantee, as
trustee, “to manage and control, and collect and use the rents,
income and profits as he may deem best for the use and benefit
of the grantor," fastens a trust in favor of the remainderman
upon the rents, income and profits accruing after the termi-
nation of the intervening life estate, which trust, faithfully
executed, would be extinguished on the death of the remain-
derman, leaving the absolute title in the grantee. Gandy v.

Fortner, 303.
3. A widow's right to receive exemption, impressed with a trust in

favor of children; title held in common.-When the exemp-
tion is set apart, if there be a widow, the exemption must be
delivered to her, and to her only; but she takes and holds it,
impressed with the trust, that she will “employ or use it in
maintenance of herself and minor children;" she cannot use
or appropriate it exclusively to her own benefit; she has in it
no exclusive title or interest; her title and interest is in
common with the title or interest of the minor child or

children. Lanford v. Lee, 248.
4. Set-off against trustee in general assignment.-A bill averring

that the trustee in a general assignment has in his hands
property of complainant more than sufficient to satisfy his
indebtedness to the trust estate, and that said trust estate is
in equity primarily bound for an indebtedness for which com-
plainant is bound as surety, and seeking to have the proceeds
of such property applied to the latter indebtedness and set.
off against the debt of complainant to the trust estate, the
equity of the bill being conceded, and the averments thereof
established by proof, the trustee in assignment cannot com-
plain of a decree directing the surplus proceeds of such prop-
erty to be applied according to the prayer of the bill. Cheney,
Trustee, v. Davidson. 210.

See also GENERAL ASSIGNMENTS.

USURY.

1. Contract of corporation, organized under general law, to pay

usurious interest, ultra vires and void.-A bond and mort.
gage, given by a corporation organized under the general
statute, to secure a loan of money at a greater rate of interest
than eight per cent. per annum, payable semi-annually, is
ultra vires and void. (Code of 1886, $1664, subd. 7.) Southern

B. d L. Asso. v. Casa Grande Stable Co., 175.
2. Sale in payment of usurious debt.—The mere fact that at the

time the debt was contracted the debtor agreed to pay
usurious interest, does not vitiate a subsequent sale of prop-
erty in payment of the debt, when the debt, without any
usurious interest, is greater than the value of the property
sold. It is only when usurious interest is included and
allowed in order to swell the amount of the debt so that it
will equal or approximate the value of the property that the
transaction will be declared fraudulent on account of the
usury. McLendon v. Grice, 513.

VENDOR AND PURCHASER.

1. Notice to mortgagees and judgment creditors of infirmity of title

VENDOR AND PURCHASER_Continued.

by probate proceedings.-Mortgagees and judgment creditors
of the purchaser of lands at a sale by order of the probate
court are chargeable with notice of the infirmity of the title
by reason of illegality of the proceedings to convey title, and
can assert no lien to such lands as against the prior rights

of the heirs. Washington v. Bogart, 377.
2. Notice of final settlement not sufficient to authorize conveyance of

title.—The fact that the heirs of the estate are before the pro-
bate court on a final settlement of the estate, in which the ad-
ministrator accounts for, and is charged with the purchase
money of lands of the estate purchased by him, and decrees
are rendered in their favor for their distributive intersts in
the estate including such purchase money, cannot be con-
strued as notice of an application to convey title to such
lands, made on the same day and on the heels of such
settlement, nor cut off the right of the heirs to enforce their
legal title held as security for the purchase money entering

into such decrees. Ib. 377.
3. Vendor's lien superior to contemporaneous mortgage by agree-

ment.—The owner of lands, on which he had given a mort.
gage, sold the same for an amount exceeding the mortgage
debt, the mortgagee cancelling the mortgage of the vendor,
and a cepting a new one from the vendee, who gave the ven-
dor at the same time a note for the balance of purchase
money: Held, on reviewing the entire evidence, that the
vendor had the superior lien by agreement of parties. Wilks

V. Appling, 287.
4. Grantee of lands held by the grantor under executory contract,

succeeds only to the grantor's rights; and acquires no higher
right to seek the aid of a court of equity to perfect his title to,
or to obtain possession of the property, unless the original
vendor has recognized, or in some way estopped himself to
deny the rights of the grantee under the agreement. S. & N.
Ala, R. R. Co. v. H. A. & B. R. R. CO., 105.

WAIVER.

1. Waiver of breach.-Where there is evidence tending to show that

the employer retained the employee in his service after knowl
edge of the acts and omissions of the mploye justifying his
discharge, and, without objection. paid the full salary to the
time of his discharge, it is a question for the jury to deter-

mine whether there was a waiver of the employe's breach of
contract. Drennen v. Satterfield, 84.
2. Oral examination, matter of right; not waived by failure to con-

test written answer.- The plaintiff has the right to require
an oral examination of the garnishee, and this right is not
lost or awived, by the mere fact that he does not controvert
the written answer of the garnishee at the term at which it
is made. Roman v. Baldwin, 257.

WILLS

1. General demurrer.--On the contest of a will, a demurrer to one

of the grounds of contest, “because it presents no issue of
fact or law which avoids said will,” is too general to be con-

sidered. Moore v. Heineke, 627.
2. Grounds of contest; any number mly be alleged; proof of one

sufficient; specification of more than one in same plea, not
demurrable.—The statute (Code, $1989), contemplates the alle-
gation of any number of objections to the validity of a will,

WILLS—Continued.

proof of any one of which is sufficient to defeat the will;
the fact that these various grounds of contest are subdivided
and numbered, and that one subdivision contains two or more
objections, does not render it necessary to prove all or those
contained in the subdivision, nor make it subject to de-

murrer, Ib. 627.
3. Pleading fraud and undue influence; facts must be shown.-In

the statement of the grounds of contest of a will, when fraud
or undue influence is set up, the facts constituting the fraud
or undue influence must be averred with the same particu-
larity required by the general rules of pleading when such

issues are sought to be raised. Ib. 627.
4. Averments of fraud must show that testatrix was deceived.-An

averment, as a ground of contest, that the will was procured
by the sole beneficiary, “representing himself to testatrix as
her lawful husband, when he was not in fact her lawful hus-
band," is insufficient, in failing to show that the testatrix

was deceived by the reperesentation. Ib. 627.
5. Depositions on written interrogatories in contest of will; notice

of time and place of taking not required.—Depositions on the
contest of a will, taken on written interrogatories, are gov-
erned by section 1835, Code of 1896, and cannot be suppressed
because of a failure to give notice of the time and place of

taking them on written demand for such notice. Ib. 627.
6. Undue influence defined; not every fraud is.—While undue influ-

ence is a species of fraud, yet there are many kinds of fraud
which do not constitute undue influence; the latter must be
tantamount to coercion, and, in a measure at least, destroy the
free agency of the testator, and constrain him to do that
which, if there had been no constraint, he would not have
done; it involves the substitution of the will of another for

that of the testator. Ib. 627.
7. Deception, when such a fraud as will vitiate a will.Deception

and misrepresentation deliberately practiced on the testator
for the purpose of procuring the execution of a will, if in fact
he is deceived thereby, is such a fraud as will vitiate the will

thus procured. 10. 627.
8. Testatrix must be deceived. Where testatrix devised all her

property to her husband, and the evidence tends to show that
at the time of the marriage, he had a living wife, but there is
a total lack of evidence tending to show that, at the time tes-
tatrix executed the will, she was deceived as to the past life
of her husband, and hence that the execution of the will was
induced by any deception and fraud, such evidence will not
support a plea of fraud on the contest of the will and it is

error to refuse to so instruct the jury. Ib. 627.
9. Testamentary capacity; when a question for the jury.-Evidence

which tends to show that the testatrix was of unsound mind
a short time prior to and after the execution of the will, and
that she died from acute mania about three weeks thereafter,
although it is not shown that the unsoundness of mind was
of a permanent character, such as, when once shown the law
presumes to continue, is sufficient to submit the issue of tes.

tamentary capacity to the jury. 1b. 627.
10. Burden of proof.-A charge placing the burden on the proponent

to disprove undue influence, misplaces the burden of proof.

Ib. 627.
11. Confidential relations defined; burden of proof.-The rule that

the existence of confidential relations between a testator and
a principal or large beneficiary, coupled with activity on the
part of the latter in the preparation and execution of the will,

WILLS—Continued.

casts upon him the burden of showing that the will was not
induced by coercion or fraud, embraces both technical fidu-
ciary relations and those informal relations which exist
whenever one man trusts in and relies upon another; it may
be stated generally that the relation exists whenever confi-
dence is reposed and accepted, and the one has it in his
power, in a secret manner, for his own advantage, to sacrifice
those interests of the other which he is bound in honor and

good conscience to protect. Coghill v. Kennedy, 641.
12. Undue influence a question for the jury. when any evidence of

confidential relations, etc.—If there is any evidence tending
to show the existence of confidential relations toward the de
ceased on the part of a large beneficiary, and activity on his
part in and about the preparation and execution of the will,
it is the duty of the court to submit to the jury the question
of their existence as a fact, which involves the submission of
the question of undue influence, since, if such relations and
activity be found to exist in fact, the law presumes undue
influence, and casts upon the beneficiary the burden of re-

butting the presumption. Ib. 641.
13. Confidential relations between nurse and patient.-Confidential

relations may exist between a patient, who is confined to her
bed with a fatal disease, and her nurse, who has entire charge
of her sick room and person, as they may exist between a

medical adviser and patient. 16. 641.
14. Active participation by one, and confidential relations by an-

other, having a common purpose, raises presumption.-If the
members of a family have a common scheme or purpose to in-
duce a person to execute a will in favor of any members of
the family, one of whom occupies confidential relations to the
deceased, and another, in the execution of the common pur-
pose, actively participates in the preparation and execution
of the will, the legal presumption arising from these facts will
cast upon each beneficiary the burden of showing the absence

of undue influence. Ib. 641.
15. Undue influence, by whom may be exercised, when entire will in-

valid.-The undue influence which will invalidate a will need
not be exercised by all the beneficiaries, nor by any of them;
if fraud or undue influence affects the whole will, though exer-
cised by one only of the beneficiaries, or by one not named

therein, no part of it can stand. Coghill v. Kennedy, 641.
16. Plea of undue influence, when sufficient.-A plea averring that

the deceased at the time of the making of the will was under
the domination and control of certain named persons, or some
of them, and that the will is the result and product of the
undue influence exercised by them, or some of them, over the
mind of deceased, and was not the result of the exercise of her
free volition, is sufficient, without stating the means by which
the influence was acquired, and the manner in which it was
exercised, since these facts are usually within the knowledge
alone of those who are most interested in withholding them.

Ib. 641.
17. Confidential relations may be proved under plea of undue influ-

ence.-Proof of the existence of confidential relations between
a testator and beneficiaries under the will may be made under
a proper plea of undue influence, although there is no aver-

ment in the plea of the existence of such relations. Ib. 6.11.
18. Fraud or deceit and undue influence distinguished.-Undue in-

fluence is itself fraud, or a species of fraud, and any plea
which shows the exercise of undue influence necessarily

WILLS-Continued.

shows fraud; a plea of undue influence need not aver fraud

or deceit. Ib. 641.
19. Facts tending to show undue influence.-Where the evidence

tended to show the feeble physical condition of testatrix, her
previous intention, expressed two or three weeks before the
will was signed, to make a disposition of her property differ-
ent from that made by the will, that three days before the
execution of the will, the proponent persuaded and induced
the deceased's husband, who was of weak mind, to convey
valuable property to the deceased, although she was at the
time confined to her bed with a disease known to be fatal, the
execution of the will without the knowledge of the husband
and near relatives, the keeping of its execution secret, and
subsequent denial and withholding of its contents, the ex-
clusion of the friends and relatives of deceased from her bed-
side, while the beneficiaries, strangers to her blood, were
freely admitted, the previous dislike entertained by de-
ceased towards the executor named in the will, and his activ.
ity in and about the preparation and execution of the will-
all of which facts are admissible-it was sufficient to author.
ize the submission of the question of undue influence to the
jury, whether confidential relations between the deceased and
those participating in the preparation and execution of the

will are shown or not. Ib. 641.
20. Declarations of deceased, prior and subsequent, for what purpose

admissible.-Inasmuch as the mental condition of a person
can be determined only by his acts and declarations these
are admissible on the issue of undue influence, whether made
a reasonable time before or after the execution of the will,
to establish everything relating to the testator, himself, his
memory, intentions, idiosyncrasies, prejudices, affections, re-
lations with and feelings towards the beneficiaries and all
those who, if he died intestate, would have shared in the
estate, and towards those charged with undue influence; but
subsequent declarations, not part of the res gesta, are not ad-

missible to establish acts of undue influence. Ib. 641.
21. Declarations of conspirator.-Where there is evidence to show

a common purpose to procure the execution of the will, the
declarations of one of the parties, after its execution, but be.
fore probate, are admissible when tending to show an effort
to carry out the common purpose, including the probate of

the will. Ib. 641.
22. Legal presumption of undue influence does not arise in the ab-

sence of confidence and trust.—The existence of a relation
which merely gives one the power to unduly influence another
in the execution of his will, unaccompanied by any element
of confidence or trust reposed, even though there is the neces-
sary activity in and about the preparation and execution of
the will, does not raise the legal presumption of undue in-

fluence. Ib. 6.41.
23. Facts which authorize the inference of confidential relations,

etc., do not raise a legal presumption.-A charge instructing
the jury that “the presumption of undue influence does
arise" if there existed "certain relations between the testator
and the beneficiaries well calculated to give them an undue
influence over him," together with certain acts of participa-
tion in the preparation and execution of the will, and other
acts from which the jury might infer confidential relations,
does not sufficiently state the existence of confidential rela-

tions, and is erroneous. IV. 611.
24. Undue influcence over weak mind.-Although the influence ex-

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