Volume 105 — Mississippi Reports

Hon. G. G. Lyell, Chancellor. Suit by the Keystone Lumber Company against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Appellee was complainant in the court below, and appellant was defendant.

Hon. W. A. Henry, Judge. Suit by S. A. Miller against the Phenix Insurance Company of Brooklyn, New York. Prom a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. No brief of counsel on either side found in the record.

Hour. D. M. Kimbrough, Chancellor. Petition by J. B. Roach, administrator of the estate of Simon McKie, deceased, for allowance of cost of admim istration proper, counsel fees, court costs and commissions as administrator, contested by Ella J. Young. From a decree allowing same, she appeals. The facts are fully stated in the opinion of the court.

Hon. C. L. Dobbs, Judge. Suit by H. F. Sivley against N. A. Cramer. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. No brief of counsel on either side found in the record.

Hon. C. L. Dobbs, Judge. Suit by B. P. Harrison and others against the New Orleans, Mobile & Chicago Railroad Company. Prom a judgment for plaintiffs, defendant appeals. The facts are fully stated in the opinion of the court. No brief of counsel on either side found in the record.

Petition by R. E. Dodd to the Mississippi Railroad Commission for the establishment of a crossing over the right of way of the Illinois… Held: that the rate making power was legislative and administrative in its nature, and that the statute of Kansas, session laws of 1898, chapter 28, creating the court of visitation, and undertaking to confer upon such court the power of making rates and other orders of this kind for the government of railroads and other common carriers,…

D. M. Miller, Judge. J. E. Simmons .was convicted of rape and appeals. Appelant was convicted of rape, and appeals. Among other errors assigned is the granting of the following instructions at the request of the state: ■ “1.

Hon. W. A. HeNey, Judge. H. C. Lawrence was convicted of violating the automobile law in a justice of the peace court and on appeal to the circuit court was acquitted and the state appeals. The appellee was arrested upon a warrant made by a constable of Hinds county, charging a violation of chapter 108 of the Laws of 1912.

HoN. J. F. McCool, Chancellor. • Bill by Nora Brooks against F. H. Nelms and others. Prom a decree overruling a demurrer, defendant appeals. The facts are fully stated in the opinion of the court. This case is a companion case to the case of F. li.

HoN. H. Gr. Lyell, Chancellor. Suit by Wise Brothers and others against the Yazoo Building & Loan Association. From a decree for plaintiff, defendant appeals. Held: what is her attitude with respect to the association. Is she a creditor or a member? Her relationship must be fixed as of August 5, 1905. If the stock is void now, it was void when issued. She withdrew on August 5, 1905, and her withdrawal was recognized by the association and so entered on the books.

Hon. Claud ClaytoN, Judge. . Mandamus by Floyd Robinson, and others, against the Board of Supervisors of Ittawamba county. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court The contention by appellee will be that, in all that the board did, only matters of discretion were involved, and that the discretion of the board cannot be controlled by mandamus.

Hon. J. H. Mitchell, Judge.. Suit by Mrs. Vina Hardin and others against the City of Corinth. From a judgment for defendant, plaintiff appeals. It is not disputed in this case that W. A. Hardin, deceased, was injured on one of the public streets of the city of Corinth, and that the injury caused his • death. The bridge which broke through and caused his injury and death was one which leads from the street across a ditch to the sidewalk in front of the house of James Carter.

Hon. J. H. Mitchell, Judge. Suit by J. Solomon Coplin against the Woodmen of the World. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. Any misstatement of the age of the deceased, W. E. Coplin, will not avoid the beneficiary- certificate, and the peremptory instruction, for that reason, should not have been given. Code 1906, section 2676.

How. T. B. Watkins, Judge. Levi Pope was convicted of manslaughter and appeals. The facts are fully stated in the opinion of the court. By the assignment of errors in this cause, there are but two questions presented for review and adjudication by this court. They are as follows: First.

IioN. M. E. DeNTON, Chancellor. Suit by Clara Y. Greegan against M. A. Brown, State Land Commissioner. From a judgment for plaintiff, defendant appeals. The appellee and her vendors, through whom she claims, obtained by patents from the state title to certain lands in Leflore county, Mississippi. Finding other parties in possession of said lands, appellee filed ejectment suits, which were consolidated and tried in the circuit court.

HoN. G-. Gr. Lyell, Chancellor. Bill in chancery by B. J. & H. B. Davis against E. S. Middleton, sheriff, as administrator of the estate of Lu-cina G-. Bellows, deceased. From order of the court refusing to permit the filing of an amended answer and cross-hill, defendant appeals. The facts are fully stated in the opinion of the court. It would be an outrageous situation if this court could not consider the whole case regardless of previous proceedings.

HoN. J. Q. Robihs, Chancellor. Suit by the Mobile & Ohio Railroad Company against J. H. Webb. Prom a decree for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The chancellor seems to have narrowed this case down to just one issue, to wit: Whether it was competent, by parol proof, to cure a purely clerical error in the tax collector’s deed.

Hon. Sam C. Cook, Judge. Suit by the Riverside Development Company against the Hartford Fire Insurance Company. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. Our contention is that with the overruling of this demurrer the plaintiff should have had judgment. That the affidavit and plea with notice are not a compliance with section 755, Code 1906.

Hon. John H. Mitchell, Judge. Suit by the Woodruff Mills against the St. Louis & San Francisco Bailroad Company. From a judgment for plaintiff, defendant appeals.

Hon. D. M. Kimbrough, Chancellor. Suit by Joseph Jassen against John H. Shay and all others claiming interest in land. After decree for.complainants W. H. Smith and others had the case opened. And from a decree sustaining a demurrer to cross complainant’s hill they appeal.

<p>Injunction. Wrongful issuance. Solicitor's fees. Discretion of court.</p> <p>The question of determining the amount of fees for solicitors to be allowed on the dissolution of an injunction is addressed to the sound discretion of the Chancellor. -</p>

HoN. D. M. Kimbrough, Chancellor. R M. Adams as administrator of T. B. Weir, deceased, filed his final account, to which Mrs. Mamie Young and others excepted. From a decree for exceptants, the administrator appealed. T. B. Weir died intestate in Tippah county, Miss., leaving as his heirs at law his four. daughters and the six children of a son, R A. Weir, who had died about two years before.

Appear from the circuit court of Harrison county. Hon. Geo. S. Dodds,, Special Judge. Suit by W. E. Rodgers against the Ingram-Lumber Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated, in the opinion of the court. There is one question in the case which in our judgment is sufficient for the purposes of this appeal. This question was saved at the trial in every manner that this court requires of an appellant.

Hon. M. E. Denton, Chancellor. Suit for partition by Russel B. Shelby against W. L. Rhodes and others. From a decree dismissing the bill, plaintiff appeals. The facts are fully stated in the opinion of the court. We contend, first, that upon the death of Mary E. Shelby, Russel B. Shelby and W. W. Shelby became tenants in common in the property in controversy, regardless of whether the title of Mrs. Shelby was good or not.

Hon. Bam; Whitman, Chancellor. Suit by R. E. Halsell against the Merchants Union Insurance Company. From a decree sustaining a demurrer to the bill of complaint, plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. D. M. Millee, Judge. Suit by tbe United States Fidelity and Surety Company against A. D. Felder. From a judgment for defendant, plaintiff appeals. Tbe facts are fully stated in tbe opinion of tbe court. The sole question in the case is, whether the ex parte order of the chancery court, certified copy of which is exhibited with the declaration, discharged the surety company from Felder’s bond.

Horn D. M. Milleb, Judge. ■ Suit by D. J. Williams against Grrafton-Stamps Drug Company. From a judgment for plaintiff, defendant appeals. Appellee, who was plaintiff in the lower court, is a truck farmer, and appellant a mercantile establishment dealing in garden seed. Appellee purchased of appellant certain tomato seed for the purpose of raising tomatoes for the market.

Hon. E. E. Brown, Judge. Suit in ejectment by William Ii. Brown against the Methodist Episcopal Camp Ground Association. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. In deciding this case the learned court could not have been familiar with the case of A. G. Welzbrooh v. Alexander Bloch which decided every point in the present controversy.

Hon. E. V. Hughston, Special Judge. Suit by Barney & Hines against the Delta & Pine Land Company. From a decree for defendant, complainant appeals. Appellants were complainants in the court below, and appellee was defendant. The opinion states the facts.

Hon. W. A. Henet, Judge. Maggie Cage was convicted of the unlawful sale of liquors and appeals. This is an appeal from a conviction of a violation of the liquor laws of the state. Section 1762 of the Code of 1906, referred to in the opinion, is as follows: “1762.

Hon. Claud Clayton, Judge. Charley Horton was convicted of the unlawful sale of liquors and appeals. The facts are fully stated in the opinion of the court. Appellant was indicted for the unlawful sale of intoxicating liquors. He was not indicted under section 1771 Code of 1906 for acting as agent, or assistant, of the seller or purchaser, in effecting the sale of intoxicating liquors.

<p>Appeal from the chancery court of Monroe county.</p> <p>Hon. J. Q. Eobins, Chancellor.</p> <p>Suit by Harriet Armstrong Walton and others against Mary Lou Armstrong. From a judgment for plaintiffs, defendant appeals.</p> <p>The facts are fully stated in the opinion of the court.</p> <p>We contend that the will on the hack of the certificate is such a will as entitled it to probation under the laws of this state. The court has this original will here-for inspection and we respectfully request the court to examine the same. Your Honors will see that the will is complete and regular in every respect with the exception that the deceased’s name is signed at the beginning of the will and not at the end of said will. The certificate of the witnesses is in accord with the requirements of our law. The court will further observe from an inspection of this will that in the beginning of the will there is a blank space as follows, “I-,” etc. It was in this blank space that the name of John Armstrong was signed by one of the attesting witnesses. The testimony shows that the deceased John Armstrong was nnable to read or write. The testimony further shows that the signature was placed in the blank space in the beginning of the will by one of the witnesses who thought it was the correct'place to sign deceased’s name. The testimony further shows that the testator came to the two subscribing witnesses who were officers in the Masonic Benefit Association and requested them to make out his will so that the proceeds of this certificate would go to the appellant. The testimony further shows that the deceased and the two subscribing witnesses sat down at a table and the will was “made out” payable to the appellant and that the witnesses signed their names thereon in the presence of the deceased and in the presence of each other; the deceased having previously requested one of the witnesses to make out his will and assenting to the manner in which the will was made out and assenting to the signing of the same by the witness. We respectfully submit that all the requirements of the law were therefore complied with by these negroes.</p> <p>The court must bear in mind the fact that the deceased was an ignorant, illiterate negro; that the negroes who made out his will substantially complied with the law in every respect. It cannot be urged that the mere fact that the deceased’s name was not signed at the bottom of the will invalidates the will; because of the fact that the deceased’s name was signed at the top of the will with the intention of making his signature to the will. In this state the place of signature to a will is immaterial; it may be signed at the top, bottom or at the side of the will. Our law merely says it must be signed; not subscribed. Section 5078, Code of 1906; section 4488, Code of 1892.</p> <p>Of course a holographic will must be subscribed as provided for in the above sections. But the will before this court in the case at bar is not a holographic will; it has been held throughout the United States that a ydll may be signed at any place on the will provided there is no' statute to the contrary. In the states where the place of signature is not designated by statute the rule established is substantially that adopted under the English Statutes of Fraud; upon which such acts are based and the place of signature is of secondary consequence provided where ever the testator may have chosen to place-his name he meant it to stand for his final signature and thereby authenticates the entire instrument as propounded. ’ ’ 29 Am. & Eng. Ency. of Law, 160-161. See,, also, the following authorities, to-wit: Schouler on Wills (2 Ed.), par. 312; Hall v. Hall, 17 Pick. (Mass.) 373; Ramsey v. Ramsey, 3 Grat. (Ya.) 664; 70 Am. Dec. 438; Upchurch v. Upchurch, 16 B. Mont. (Ky.) 102; Kirkpatrick's Will, 22 N. J. Eq. 463; Armstrong v. Armstrong, 29 Ala. 538.</p> <p>In this latter case it is also held that the testator’s name at the beginning of a will dictated by himself, is to be regarded as a sufficient signing by another at his request. In our own state there has been no direct decision on this point but it has been held, and it is an analogous case that it didn’t matter where the signature of the subscribing witnesses of a will appeared just so the signatures were upon the paper and made in the presence of the testator. See Elisabeth J. Murray v. J. Murphy, 39 Miss. 214; Fatheree v. Lawrence, 33 Miss. 585.</p> <p>So we respectfully submit that this will did not have to be signed at the physical end to comply with our law.</p> <p>Here we have then this will signed by the witness for the testator With the signature in the blank space at the beginning of the will; we have the attention of the subscribing witnesses in the presence of the testator and of each other; what else then could be urged against the validity of this will? Counsel for appellee contend that the mere fact that the testator failed to use the words “sign my name” and the mere fact that the testator failed to request the witnesses to sign the same, that this. invalidates this will. What were the attending eircum-.stances, we ask? Here is a negro, unable to read or write, unlearned, but filled with the desire to will the pro-needs of the certificate to his wife, the appellant; he goes to the officers of his lodge and requests them to make ont his will so that his wife, the appellant, would be the beneficiary. This negro did not know he had to request them in so many words to sign his name and witness the will; lint he told them to do all that was necessary and when the will was signed and attested he adopted it as his will.</p> <p>There is abundant proof before this court that he adopted this as his last will. What more could the testator have done to have complied with the law? The words used by the testator on this occasion, “Fill ont my will to my wife” embraces all the requests required by the law. Especially in view of the fact that he adopted the signature as his signature and accepted and acknowledged the will as his will and ratified the acts of the subscribing witnesses who “made out this will.” Galvin Miller, et al., v. E. B. Miller, et al., 96 Miss. 526.</p> <p>We, therefore, submit that the will is a valid will under our laws and as such is subject to probation and that,</p> <p>1. The mere fact that the testator’s name was signed at the top instead of being subscribed does not vitiate the will; 2. That the request by testator “To fill out my will” coupled with the adoption and ratification of the completed will, is a substantial and a sufficient compliance with the laws of our state.</p> <p>And therefore the court erred in refusing to allow this will to be used by appellant in sustaining her contention for this money and erred in revoking the letters testamentary issued to appellant on the probated will; and in refusing to give appellant a decree for the amount of the certificate.</p> <p>We submit, that, even under tbe authorities cited by counsel themselves, that the testimony, not only does not show that this paper was a completed will; but on the Contrary, the testimony shows that it was an incomplete will or a futile attempt to execute a will. The first edition of 29 Am. & Eng. Ency. Law, page 160, quoted by counsel after saying that: “In states where the place of signing is not- designated by statute, — the place of signing is of secondary consequence,” proceeds immediately to limit and restrict this statement by a proviso, which is like “the postscript to a lady’s letter,” to-wit: “provided wherever the testator may have chosen to-place his name, he meant it to stand for his final signature, and thereby authenticates the entire instrument as propounded. ’ ’</p> <p>Later on in this same authority, note page 168, when it proceeds to discuss more particularly the question of what is a valid signature, and under the subhead, ‘ ‘ requisites of a valid signature,” it says: “The first essential of a valid signature is that the name or mark be put upon the paper, or subsequently adopted, with the intent of authenticating the instrument, so that no further signature on the maker’s part is contemplated,” and under the note to this it says:</p> <p>“The name of a testator at the commencement of a holograph will is an equivocal act, and unless it appears-affirmatively from something on the face of the paper that it was intended as his signature, it is not a sufficient signing under the statute.” Citing Ramsey v. Ramsey, 13 G-ratt (Va.), 664; 70 Am. Dec. 438; and Matter of Booth’s Will, 127 ÍT. T. 109.</p> <p>“In Everhard v. Everhard, 34 Fed. 85, the testimony showed that M. Everhard requested one of the witnesses-to write his will, which he did, as dictated by said Ever-hard ; that when it was written said Everhard attempted to sign it, but from physical debility was unable to do-so, though, in the attempt made a small mark or scratch on the paper, and failed to do more; that he said he made and published the paper as his last will and testament. It was held insufficient. The court said: “The paper writing shows a small mark or scratch on the left hand corner, but no name attached to it. There are also two small marks or dots on another part of the paper, very dim, and look as though made with the point of a pencil, and not at the usual place for signing such a paper, by the party executing it. The name of M. Ever-hard only appears in the commencement of the paper, which it is evident was not intended as a signature of the testator. The draughtsman was not requested to ‘sign the testator’s name’ and the testator’s effort to sign the paper himself shows he did not recognize the signature made in the commencement of the writing by the draughtsman as his signature. The place where made, and the character of the small marks, and dots, furnish no evidence that they were made as a substitute for the signature of the testator. It is true that a testator may sign his will by making his mark, but he must intend the mark as a substitute for his name; and when there is no name written, or anything indicating who made the mark, and especially when the mark is made at an unusual place for the signature, it ought to require very satisfactory evidence that the mark was intended by the testator as his signature, or as a substitute for it.” Cited on p. 169, 29 Cyc. (1 Ed.), under note 1.</p> <p>It will be noted in this last case, although Everhard, not only requested one of the witnesses to “write his will” (just as John Armstrong requested F. N. B. Ward here) but he went further and dictated to the witness how to write it, that the court specifically says that the draughtsman or said witness was not requested to “sign the testator’s name;” and, although Everhard there said that he made and published the paper as his last will and testament (which was not done at all by John Armstrong, or anything else -said by him), the court held that insufficient and no will. Again, on page 174 of this same authority, it says: “The signature of another, to be valid, must be final; and in the second edition of this same 30 Am. & Eng. Ency., 586, the same language is used.</p> <p>Now, in this case, of course, John Armstrong did not sign at all, and made no mark whatever upon the paper, and P. N. B. Ward is the only one that counsel contend signed for him by his “express direction;” and, P. B. N. Ward, not only swears that he did not sign by Armstrong’s express direction, or even authority or request, but that the only thing that he did was to fill up the blank spaces left in this printed form; and that he did not intend, when he wrote the name of John Armstrong at the beginning of the paper, for it to be his final and completed signature; but that, on the contrary, that he knew the place where the name ought to have been signed was at the end on the dotted lines below the body of this writing, but that he did not sign that, but failed to do so by mistake and because John Armstrong did not either direct, authorize or request him to do so.</p> <p>The fact that P. N. B. Ward happened to be an officer in a mere local lodge of this order at the time, we submit, cuts no figure whatever in the determination of this question. The point is that, according to our statutes (which had been adopted by this lodge as the only method and manner by which any other person the one to whom the policy was originally payable could in any way get or take the money under said policy) that the proof must show (and it fails to show same) that either the maker of the instrument must himself sign same, as and for his completed and final signature, or that some other person must so sign the same by his express direction.</p> <p>And we go further and say that, even though the scrivener on this occasion had actually written the name of John Armstrong at the physical end of the body of the instrument, we submit, that under the testimony in this case, this still would not be a valid will, because it would lack the essential element of the express direction on the part of John Armstrong, and also because it would not have been “signed as and for his completed signature, and acknowledged and adopted by him as such Ut the time, ’ ’ which is the rule laid down in the case of Sheehan v. Kearney, 82 Miss. 688, from the language of which, as the court will see that in such a case “the signature when signed by another for the testator must not only be at the express direction of the testator as and for his completed signature;” but further and also the same “must be acknowledged and adopted by him as such, at the time. ’ ’</p> <p>It will be noted that in that case, the court used the conjunction “and” and not the disjunctive “or.”</p> <p>Counsel urge that this signing is all right, because John Armstrong assented to the manner in which the will was made out and assented to the signing of his name by the witnesses claiming that the filling in the blank after the word “I” at the very beginning, constituted a signing of the will. In answer to this, we.call the court’s attention to the language of 30 Am. & Eng. Ency. Law (2 Ed.), 585, and the note 13 thereto, under the head of “signature by party other than testator,” to-wit: “In numerous jurisdictions, the statutes provide that a will may be signed by some person other than the testator in his presence and by his express direction;” and the note to this is as follows: “Mere assent or acquiescence to another’s signing, or knowledge of the testator that his name is being signed, does not meet the requirements of the statute.”</p> <p>As stated also in note 1 on page 1103 of 40 Cyc., under the subhead: “What is not a sufficient compliance”— ‘ ‘ The fact that the testator knows that his name is signed by another does not satisfy the statutory requirements as to signing. The signing must be in pursuance of the previously expressed direction of the testator.” Citing many authorities.</p> <p>Again in the same note on the same page, we call the attention of the court to the following: “A refusal by others present to sign for testator at his request leaves the execution ineffective, as his request is not ~a substitute for the subscription,” so here, even if the mere request of John Armstrong that F. N. B. Ward “make out his will to his wife,” could be construed, as an express direction to F. N. B. Ward to “sign John Armstrong’s name to his will (which we submit cannot be done) still such a request would not be a substitute for the subscription or signing of his name; and the failure or refusal of F. N. B. Ward to actually sign his name, would still leave the execution of this will ineffective and incomplete. The same-Cyc. 40, page 1105, in speaking of the location of signatures says: “It is essential, however, that the signature, whatever its local position, must have been made with the design of authenticating the instrument, and (further and also) that he should have contemplated no further signature.” Both from the face of the instrument and from the testimony of F. N. B. Ward, such a design is wholly absent; and a further signing and action is shown to have been contemplated and necessary.</p> <p>Another thing, which is wholly lacking in this case to make this a will; and that is, that it is not shown affirmatively that John Armstrong was made acquainted with the contents of this so-called will, either by having it read over to him or by having it explained to him before he signed it, or authorized or directed any one else to sign the same for him. It is, however, affirmatively shown that he could not read, and that it was not read or explained to him. We quote the following from 30 Am. & Eng. Ency. Law (2 Ed.), 586:</p> <p>“Knowledge of contents before signature. — It is, of course, essential that the- testator should have knowledge of the contents of his will before he signs the same, and, as a general rule, this knowledge is presumed. But the presumption does not arise where the testator is blind, or illiterate, or for any canse is unable to read, and in snch case it must be shown affirmatively that he was made acquainted with the contents of the will by reading it over or explaining it to him before he signed it.”</p> <p>See to the same effect: 29 Am. & Eng. Ency. Law (1 Ed.), 176; 40 .Cyc. 1100.</p> <p>Counsel all the way through their brief allude to the fact that John Armstrong undoubtedly intended and attempted to make a will to his wife, and seem to argue that this attempt or intention, although not carried out and completed by acts, and, notwithstanding he did not do those acts which are necessary to carry out the intention or attempt to make it a will, that a court of equity will complete and make the will for him by adding the essential elements that he had left out, or reform the will for him.</p> <p>It would seem hardly necessary to cite authorities that no court will do this; but we will only refer the court to two authorities which are annotated under this section 5078 of the Code of 1906, to-wit: Schlottman v. Hoffman, 73 Miss. 188, which holds that no court can decree the reformation and correction of a will; and Johnson v. De-Lome, 77 Miss. 15, which holds that courts can no more ■supply defects in the execution of a will or codicil-than that they can add to or substract from its words.</p> <p>Another thing, to use the language of the court in the ■case of Sears v. Sears, 11 Am. & Eng. Ann. Cases, 1012, when considering a will: ‘ ‘ The question is not what did the testatrix intend to do, but what did she do.” "VVe also refer to this case to show that the name of John Armstrong written at the beginning and in the body of the instrument was merely descriptio personae.</p> <p>We also quote the following from said case on page 1013: “The statute enacts that the order of probate shall be prima facie evidence, and so it is; but it also enacts that the defendant shall offer the will, which he did; and it appearing from tlie will itself that it was not signed at the end thereof, the prima facie ease made by the order of probate is overcome. > But, if it be said that this is technical, and that what the legislature manifestly intended was that the will and order of probate should make a prima facie case, then we have only to say that the legislature could not have intended that it ever should be left to a jury to determine that a will not signed as required by the statute was valid because they found that the testator intended to comply with the statute.” We also quote the following from the case of Baker v. Brown,. 83 Miss. 797: “We were at first much impressed with the clear proof made, that the deceased intended this paper to be her testament. But there is no more doubt that she intended the invalid nuncupative codicil to be her testament. Yet as the latter was attested by women who are incompetent testamentary witnesses, no one claims its validity. And so if the holographic will is not signed as required by law, her intentions cannot save it. The question is not whether she intended this paper to be her will, but whether it is a will clothed with the forms of law. An holographic like every other testament, is a solemn act. It matters not how clearly it conveys the last wishes of the decedent, if it is not clothed with the forms prescribed, it is null. We cite also as illustrative of this strictness Estate of A. G. Rand, 63 Cal. 468; War-wicke v. Warwicke, 86 Va. 602.” We call the court’s attention to the fact that this case of Warwicke v. War-wicke, 86 Va., cited above by our court approvingly, hold that it must appear affirmatively on the face of the instrument that the name was intended as a signature. One other thing to show that this was not a valid will. Both R. E. Ward on page 41 and F. N. B. Ward on page 60 of the record state that F. N. B. Ward requested R. E. Ward to sign his name to this instrument and that John Armstrong did not request him to do so at all, or make any request of him or say anything about it and that John Armstrong said nothing whatever after the form had been filled ont.</p> <p>In the ease of Miller v. Miller, 96 Miss. 526 and 532, cited by counsel, the court will see that in that case the court said: “The testimony in this case shows clearly that the testator exhibited his will to Cox and Phillips, two of the subscribing witnesses, stating to them that this was his will, that the signature to it was his signature, and that he had signed it. The testimony also •clearly shows that M. E. Davis, another subscribing witness, wrote the signature of Calvin Miller for him, and .at his direction, and that this was the signature adopted .and acknowledged by Calvin Miller when he stated the .above facts to Cox and Phillips. This was a good attestation of his signature.”</p> <p>The testimony in this case not only shows no such facts, but, on the contrary, shows that F. N. B. Ward did not sign Jno. Armstrong’s name at his direction, and that, after the blanks were filled out, and his name written in one of the blanks, John Armstrong did not exhibit this paper as his will to the two subscribing’ witnesses and state to them that it was his will, or that his name written in same by F. N. B. Ward was his signature, and that he had signed it. In fact, hé said and did nothing whatever.</p> <p>, In conclusion on this point, we submit, that, if this in■strument is a completed, executed will and valid under ■our statutes, and that these mere words of John Armstrong to F. N. B. Ward “to make out my will to my wife,” is sufficient to constitute a valid will, then all that would ever be necessary for any one to do hereafter is to simply say to some lawyer or other person “make out my will to my wife” (or to whomsoever such person wanted his property to go at his death). Simply this, and nothing more, would the testator have to do; and then all that the lawyer or other person would have to <lo would be simply to fill in the blank spaces, if he had a printed form, or if lie liad no printed form, to simply write, “I,--” (giving the name of the party), “do give and bequeath to my wife all of my property,”' without signing the name of the testator or having the testator to sign same, and this lawyer or other person simply to sign his name as a subscribing witness and request another party to sign his name, and hand this incomplete paper to the testator; and, although he told testator that something else was necessary to be done; and although, testator did not do this, or anything else, or say a single, solitary word, “this would meet all of the requirements prescribed by the statutes and the law; and would be a perfectly valid, legal will. And this, although it was proved that the testator could not read, and that the instrument was not read to him, and that it was not proved that he was acquainted with, and understood, the contents of the paper.</p> <p>To establish such a doctrine, would not only dq away with all of the formalities and essential requisites required by law to make a will; but would open wide the doors for the commission of any and all kinds of frauds.</p>

HoN. T. A. Wood, Chancellor. Snit by Mary M. Lee against M. M. Wilkinson. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The decision should be reversed. 1.

Hon. E. E. Beown, Judge. Junius Brown was convicted of unlawfully carrying a concealed deadly weapon and appeals. The facts are fully stated in the opinion of the court.

Horn T. H. Barrett, Judge. Petition by W. R. Langford against F. 'S. Hewes, Clerk of the Board of Supervisors for mandamus to compel respondent, as clerk of the board, to issue a warrant for the payment of certain teachers’ certificates. A demurrer having been interposed to defendant’s answer, and sustained, the writ was ordered and respondent appeals. The facts are fully stated in the opinion of the court.

HoN. J. L. Buckley, Judge. M. N. Barber was indicted for forgery, a demurrer was sustained to the indictment and the state appeals. The facts are fully stated in the opinion of the court. I respectfully submit to the court that every element constituting the crime of forgery is fully stated in this indictment. The indictment is most clearly and specifically charged. This is a case where the whole instrument is forged.

líoN. T. II. Barrett, Judge. Marion McArthur was convicted of rape and appeals. The facts are fully stated in the opinion of the court.

HoN. D. M. Miller, Judge. Jesse Rials was convicted of incest and appeals. The facts are fully stated in the opinion of the court. Counsel on both sides filed elaborate briefs on the-facts of the case.

HoN. E. E. BrowN, Judge. M. V. Aarons, was adjudged guilty of contempt of court and fined from which be appeals. Tbe facts are fully stated in tbe opinion of tbe court.

HoN. W. A. HeNey, Judge. Mannie Bawls was convicted of rape and appeals. The facts are fully stated in the opinion of the court.

IIoN. J. A. Teat, Judge. Will Burnside was convicted of carrying concealed weapons and appeals. The facts are fully stated in the opinion of the court.

t ' HoN. H. K. MahoN, Judge. Floyd Huston was convicted of manslaughter and appeals. The facts are fully stated in the opinion of the court. •Appellant is guilty of murder or nothing.

HoN. D. M. Kimbrough, Chancellor. Suit by James Ivy against the Odd Fellows Benefit Association. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. The peremptory instruction for defendants should have been granted. a. For the reason that each and every witness stated that deceased, Millie Scott, was both “non-financial” and “not in good standing.” Complainant called all the witnesses, defendant none. 1.

<p>1. Fike Insurance. Property covered "by policy. Concurrent insurance. Stipulations. Enforcement. Agency. Cancellation of policy.</p> <p>A policy of fire insurance covering a hotel building “and addition thereto attached” is voided by the insured procuring concurrent insurance greater than the amount authorized by the terms of the policy, and insurance upon a sample room used in connection with the hotel connected with the hotel building by a covered board walk or gallery, the walk' and roof thereof both being connected with both buildings, is insurance on such hotel “and additions thereto attached” under the terms of the policy.</p> <p>2. Insurance. Agency. Power to cancel policy.</p> <p>As a general rule an agency to procure insurance does not necessarily confer the power to cancel insurance. Such an agency terminates when the insurance is procured and the policy delivered to the principal.</p>

Hon. D. M. Miller, Judge. Clarence Temple was convicted of manslaughter and appeals. The facts are fully stated in. the opinion of the court.

Host. Claude Clayton, Judge. From an order admitting relator, W. A. Gordon, to bail in a babeas corpus proceeding, the state and sheriff appeals. The facts are fully tsated in the opinion of the court. Has either the state, or the sheriff and jailor, or both the right to prosecute an appeal in this easel?

Hon. J. H. Mitchell, Judge. Suit by Steve Henry Turner against the Supreme Ruling of the Fraternal Mystic Circle. From a judgment for plaintiff, defendant appeals. See 60 So. 75. Held: that the policy was forfeited. Bloom v. Franldin Life Ins.

<p>1. Appbax, Aim Erkob. Review. Findings of Chancellor. Partition. Submission of issue to jury. Right of defendants. Remainder-men. Code 1906, sections 558 and 3525.</p> <p>Where on appeal the record does not show the chancellor was wrong in his findings on the facts, they will not he disturbed.</p> <p>2. Submission of Issue to Jurt. Right of defendant. Code 1906, section 558.</p> <p>Under Code, 1906, section 558 providing for jury trials in chancery courts, a trial by jury is not a matter of right and is allowed only in the discretion of the court.</p> <p>3. Partition. Parties. Defendants. Remaindermen. Code 1906, section 3525.</p> <p>Since under Code 1906, section 3525, so providing, in a proceeding for partition of land where the title of complainants is controverted, the chancery court is given authority and power to try and determine all questions of title and remove clouds from the same. In such a suit where the life tenant and re-maindermen joined as defendants, and filed a cross bill denying complainants’ title, it was not error for the chancellor to refuse to dismiss the bill as to the remaindermen and after determining the question of title in favor of complainant as against all the defendants, to award partition only against the life tenant.</p>

HoN. J. M. Mitchell, Judge. . Suit by H. J. Orumbaugh and others against the Mobile & Ohio Bailroad Company. From a judgment overruling a demurrer to its plea the plaintiff appeals. The facts are fully stated in the opinion of the court. The record in this case has been lost.

HoN. B. S. Hall, Special Judge. Suit by Mrs. Alice Myers, administratrix, against C. L. Woodward. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

How. Patjl B. Johnson, Judge. Suit by Anderson Mercantile Company against the McLeod Lumber Company. From a judgment for plaintiff, defendant appeals. Held: supports a count for money had and received, although it is said that the earlier authorities are against such a doctrine.

<p>Bills and Notes. Accommodation endorser. Consideration.</p> <p>Where the maker of a promissory note delivers it to the payee who afterwards without the maker’s knowledge procures another party without a new consideration to sign the note by telling him it will help the payee at the bank and the note is never presented to the bank, on a suit by the payee against both the signers of the note, the second signer cannot be held liable, as in effect he is simply an accommodation endorser without separate consideration.</p>

Hon. D. C. Enochs, Special Judge. Gus Husbands was convicted of a misdemeanor and appeals. • The facts are fully stated in the opinion of the court.

HoN. GK Q. McLean, Judge. S. K. Journey was indicted for embezzlement and from a judgment sustaining a demurrer to the indictment the state appeals. The facts are fully stated in the opinion of the court. So far as this general objection is concerned, it is not well taken. The general averments of the indictment are full and clear and explicit and' being of this character, they were not subject to any general and comprehensive objection of insufficiency.

HoN. T. H. Barrett, Judge. Bertha Lawson was convicted of illegally keeping intoxicating liquors for sale and appeals. The facts are fully stated in the opinion of the court. The record in this case has been lost.

Hon. IT. C. MouNGee, Judge. Robert Page was convicted of acting as agent for the sale of intoxicating liquors and appeals. The facts were fully stated in the opinion of the court. The court declined to require the state to elect upon which transaction it would prosecute, time and again.

HoN. T. B. WatkiNS, Judge. Rosa Lee was convicted of perjury and appeals. The facts are fully stated in the opinion of the court. One instruction was asked and given for the state, and it is respectfully submitted that this instruction was erroneous.

Appeal, from the circuit court of Forest county. Paul B. JOHNSON, Judge. F. Y. Wall was convicted of failing to perform his duty as an officer in the enforcement of the liquor laws, and appeals. The facts are fully stated in the opinion of .the court. We submit that the court below erred in sustaining the state’s demurrer to the defendant’s special plea.

-Appeal from tbe circuit court of Jasper county. Hon. D. C. Enochs, Special Judge. Hus Husbands was convicted of petty larceny and appeals. Tbe facts are fully stated in tbe opinion of tbe court. I do not care .to burden tbe court with a lengthy argument in this cause, because I believe that tbe entire proceedings before tbe circuit court were void, and I have no fear that this court will disagree with me. First.

HoN. W. H. Hughes, Judge. Joe Monasco was convicted of selling mortgaged cotton and appeals. The facts are fully stated in the opinion of the court. This was a very weak case against the defendant, and the verdict of guilty must undoubtedly have been caused by either prejudice or undue influence. Defendant was convicted, evidently on the testimony of W. J. Morris, agent for the prosecuting corporation who attested that he bought the cotton straight out.

Hon. H. K. Mahan, Judge. Lizzie Randle was convicted of mingling poison with food with intent to kill and appeals. The facts are fully stated in the opinion of the court. The indictment is clearly bad for duplicity. It charges two separate and distinct felonies with different penalties in the same count. It is based upon sections 1330 and 1331 of the Revised- Code of 1906, and contains every element necessary to constitute the offense defined in each.

Hon. T. H. Baeeett, Judge. Suit between T. C. Ruble and Robert Daniel. From a judgment in favor of Daniel, Ruble appeals. The facts are fully stated in the opinion of the court. No brief of counsel on either side found in the record.

Hon. J. M. Casein, Judge. Suit by Frank Jefferson and another against the Southern Railway in Mississippi. From a judgment for defendant, plaintiffs appeal. The facts are fully stated in the opinion of the court.

. Hon. R. E. Sheely, Chancellor. Suit by J. J. Bradford against Charles Glattli and others. Prom a decree for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. T. A. Wood, Chancellor. Suit by H. B. Dickson against J. H. Howard. From a decree for complainant, defendant appeals. The facts are fully stated in the opinion of the court.

Host. T. H. BaReett, Judge. J. E. Bills was convicted of selling intoxicating liquors and appeals. The facts are fully stated in the opinion of the court. With the exception of evidence as to the possession of an internal revenue license, in this case, the evidence is insufficient to sustain a conviction, and the case is in the same category with Stanberry v. State, 53 South.. 783.

Hon. John J. Buckley, Judge. ’ Suit by D. L. Britton against the E. W. Gates Lumber Company. From a 'judgment for plaintiff, defendant appeals. Appellee was plaintiff in the court below, and appellant was defendant. This was an action in replevin, begun by plaintiff in the court of a justice of the peace for possession of four hundred and fifty saw logs cut from a certain tract of land.

HoN. Jo UN L. Buckley, Judge. Suit by Wm. Foerster & Company against the Faulk-Christian Lumber Company. From a judgment for defendant plaintiff appeals. Appellants were plaintiffs in the court below and ap-pellee was defendant. Suit was brought for breach of a contract between the parties, evidenced by a letter from plaintiffs to defendant, and marked “Accepted” by defendant.

HoN. D. M. Miller, Judge. Suit for damages by J. C. Cosnahan and others against the Cumberland Telephone & Telegraph Company and the city of Brookhaven. Prom a judgment for plaintiff against the telephone company and a judgment in favor of the city, both sides appeal. The opinion states the facts in this case. The instructions referred to are as follows: “ (2) The court instructs the jury, for the defendant city of Brookhaven, that if you believe from the evidence that Win.

HoN. T. L. Lamb, Special Chancellor. Suit by W. P. Waugh against the Board of Trustees of the University of Mississippi. From a judgment overruling a demurrer to the bill, defendants appeal. The facts are fully stated in the opinion of the court. Counsel on both sides filed able 'and elaborate briefs-too long for publication.

Hon. D. M. Milleb,, Judge. Suit by Sallie Thompson against the Illinois Central Railroad Company. Prom a judgment sustaining a demurrer to plaintiff’s declaration she appeals. The facts are fully stated in the opinion of the court. We respectfully submit that nothing is necessary to secure a reversal of this judgment, except to fully apprehend the facts.

Appear from the chancery court of Calhoun county. Hon. I. T. Blount, Chancellor. Bill by Mrs. Mollie G-ore against W. J. Ligón and others to set aside the will of Mrs. Louisa S. Ligón. From a decree denying the relief sought, complainant appeals.

Hon. J. S. Hicks, Chancellor. Appeal by Keiffer Brothers & Company and others against the Bank of Commerce, from a decree disallowing the claim of appellants and allowing the claim of ap-pellee against the estate of C. Holloman, deceased. The facts are fully stated in the opinion of the court. As to the first ground of appeal.

J. S. Hicics, Chancellor. Suit by Adams county against the United States Fidelity & Guaranty Company. From a decree for complainants,- defendant appeals. The facts are fully stated in the opinion of the court.

Hon. J. S. Hicks, Chancellor. Suit by J. J. Newman Lumber Company against the Northern Assurance Company and others. From a judgment for plaintiff, defendants appeal. The facts are fully stated in the opinion of the court. Counsel on both sides filed elaborate briefs, too long* for publication.

Hon. J. I. Ballenger, Special Judge. Suit by Camille Bourgeois against the Phoenix Insurance Company of Hartford. Held: that the iron safe clause was a warranty, and that the loss could not be proven by any ■other evidence than the books and inventories that were required to be kept by this iron safe clause; that no mere proof of there being some merchandise or a large stock of merchandise in situ at the time of the fire, can be substituted for an…

Hon. C. L. Dobbs, Judge. Suit by Sam Wh.iteb.ead, against the Newton Oil and Manufacturing Company. From a judgment for plaintiff for one hundred and seventy-five dollars he appeals. The facts are fully stated in the opinion of the court.

Hon. J. M. Cashih, Judge. Suit by M. Cohn, as executor against M. A. Woods. Prom an order overruling a motion to reta'x cost this appeal is taken. The facts are fully stated in the opinion of the court'. As in the court below, we of course, make no objection to any item of cost as originally taxed by the clerk, except the several items allowed as witness fees, to the several witnesses who appeared at tlie trial of this cause.

Hon. J. F. McCool, Chancellor. Suit in chancery by the Austin Clothing Company against J. L. Posey. From a decree for defendants, complainants appeal. The facts are fully stated in the opinion of the court.

HoN. JohN H. Mitchell, Judge. Suit by Reeves Grocery Company against Andrew J. Thompson in which Harris Bros, were garnished, and Young Thompson and another intervened as claimants. From a judgment for claimants, plaintiff appeals. . Andrew J. Thompson was engaged in the mercantile business, carrying a small stock of goods valued at between seven hundred and fifty and twelve hundred and fifty dollars.

Hok. C. L. Dobbs, Judge. Suit by Mrs. Pearl McCoy and others against the Alabama and Vicksburg Railway Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. G-. A. McLean, Judge. Suit in ejectment by W. N. Lindsey and wife against John Holly and another. From a judgment for defendants, plaintiffs appeal. The facts are fully stated in the opinion of the court, The main feature o‘f this case, as disclosed by this record is as to abandonment, and the fatal instructions granted the defendants by the trial court.

Hon. D. M. Miller, Judge. Suit by Meyer Bros. Drug Company against Anthony Fly. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. Under section 2157, Code of 1906, abandonment having, been made of the lot without casualty or necessity, the same became liable to indebtedness.

Hon. E. N. Thomas, Chancellor. Snit by the Mississippi Electric Company against the Hartford Fire Insurance Company. From a decree for defendant, complainant appeals. The facts are fully stated in the opinion of the court. Counsel on both sides filed elaborate briefs too long for publication.

. Host. Sam Whitman, Je., Chancellor. Suit by Dora Howell as executrix against Alice L. Myer as administratrix. From a judgment sustaining a demurrer to the petition, petitioner appeals. The facts are fully stated in the opinion of the court.

Hon. J. A. Teat, Judge. Jim Miller was convicted of the unlawful sale of cocaine and appeals. The facts are sufficiently stated in the opinion of the court.

HoN. D. M. Miller, Judge. Fannie Jackson was convicted of an unlawful sale of intoxicating liquor and appeals. Appellant was convicted of the unlawful sale of intoxicating liquor. The testimony in the lower court was conflicting, and the defendant introduced evidence tending to show that the state’s witness, when testifying in the circuit court, had contradicted the testimony in the magistrate’s court.

Petition by Illinois Central Eailroad Company to tbe judges of tbe supreme court, at chambers, for tbe issuance of a writ of prohibition. Tbe facts are fully stated in tbe opinion of tbe court.

■Petition by tbe Illinois Central Railroad Company, to tbe judges-of tbe supreme court ;at chambers, for,¡the.issuance of a writ'.of supersedeas. The facts are fully stated in tbei.;opinion of the: court.

IíoN. Sam C. Cook, Judge. Suit by Joseph Friedman against the Georgia Life Insurance Company. From a judgment for plaintiff defendant appeals. The facts' are fully stated in the opinion of the court.

HoN. T. A. Wood, Chancellor. Suit by Joseph E. Reinecke against Mrs. M. L. K. Reinecke and others. Prom a judgment overruling a demurrer to the bill, defendant appeals. The facts are fully stated in the opinion of the court. In the demurrer filed by appellants it is urged, in effect that appellee has no right in this case because he was bound by decree rendered in cause 1976.

Hon. J. S. Hicks, Chancellor. J. W. Liles was proponent of a will which was contested by Mrs. W. J. May and others. Prom a decree for contestants, proponent appeals. The facts are fully stated in the opinion of the court.

Hon. J. F. McCool, Chancellor. Bill in equity by H. 0. Zeigler and wife against the-Lexington Compress & Manufacturing Company. Held: in case of G. é S. I. B. B. Co. v. Singleterry, 78 Miss. 72, to be an absolute nullity. ” In that case it was held that the husband himself was not concluded, as to his own interest even, from bringing the action of trespass to recover damages from the railroad company, for laying its right of way over the land to which the husband…

Hon. J. L. Buckley, Judge. Suit by Matilda Eubanks against Sarab McLeod and •others. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The main point is on the validness vel non of the chancery proceedings on account of the service of the minors. This case comes squarely within the case of Mclvoy v. Alsop, 45 Miss. 365, 373.

Hon. John L. Buckley, Judge. Annie Peebles was convicted of the unlawful sale of liquor and appeals: The facts are fully stated in the opinion of the court. The only reason assigned by the court, in its opinion rendered in this canse, for the affirmance 6f same, is that appellant “waived any right (to prove an alibi) by not calling the court’s attention to it at the earliest possible moment, after making the discovery” that she could so prove same.

Hon. T. A. Wood, Chancellor. Suit by Boch Du Sauzay and others against Joseph Du Sauzay and others to have a will declared void and for a division of the property among the heirs. From a decree denying the prayer of the bill, complainants appeal. The facts are fully stated in the opinion of the court.

How. John L. Buckley, Judge. Mary McWilliams was convicted of the unlawful sale of intoxicating liquor upon a plea of guilty. From a judgment denying her the right to withdraw her plea and defend she appeals. The facts are fully stated in the opinion of the court.

court of Simpson county. HoN. W. H. Hughes, Judge.. Cooper Stringer was indicted-for arson. Held: of course, to have the common law foirce and signification, but it is made even clearer by the-statute because it provides that the house must be one-in which some human being-was usually staying, or lodging or residing.

HoN. W. A. HeNRy, Judge. Suit by the Delta Table & Chair Company against the Yazoo & Mississippi Valley Railroad Company. From a judgment for defendant, plaintiff appeals. The facts are- fully stated in the opinion of the court.

‘ HoN. J. P. McCool, Chancellor. Bill by N. C. Jackson- against' E. P. Jackson to set aside a deed made by a minor. From- a judgment sustaining a demurrer to the bill, complainant- appeals. The facts are fully stated in the opinion- of- the court. The power of the chancery court to remove the- disability of minority of minors in its county is strictly statutory and the statute authorizing the same must he strictly followed or the proceedings are void.

the circuit court of Warren county. How. Ií. C. MouNGER, Judge. Suit by A. Bose & Company against Mrs. J. Schles-singer. From a judgment for defendant, plaintiff appeals. Tbe facts are fully stated in the opinion of the court.

HoN. W. A. HeNRY, Judge. Suit by H. J. & W. McGraw against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Held: and the laws construed by that decision to have granted the power have not been repealed or modified. It seems that it must be conceded that the power was granted.

HoN. H. K. MahoN, Judge. Stanton Boroum was convicted of unlawful retailing and appeals. The facts are fully stated in the opinion of the court. The seven jurors selected from the bystanders should have been sworn before passing upon the guilt or innocence of defendant and this error was not cured by the court calling them back and swearing them before verdict was rendered.

Hon. J. F. McCool,n Chancellor. Suit by E. R. Monk against E. D. Quarles and others. From a decree overruling a demurrer, complainant appeals. The facts are fully stated in the opinion of the court.

Hon. H. K. Mahon, Judge. George Galloway was convicted of larceny and appeals. The facts are fully stated in the opinion of the court. There was an entire absence of a larcenous intent in this case. The proof is undisputed that appellant openly and in the daytime took the mule from the lot and pasture where McCool and McQuary had it confined, and that in the presence of several parties, part of whom were the wife and family of Mr. McCool himself.