Volume 127 — Virginia Reports

<p>Appeal from a decree of the Circuit Court of city of Newport News. Decree for complainant. Defendant appeals.</p>

<p>Error to a judgment of the Circuit Court of city of Norfolk, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.</p> <p>This is an action in tort by notice of motion by the defendant in error, Miss J. B. Carless, against the plaintiff in error to recover damages for injury occasioned her by a wrongful suspension of telephone service.</p>

<p>Error to a judgment of the Chancery Court, of city of Richmond, upon an application to have ascertained the names of the persons liable to an inheritance tax as devisees and distributees under the will, and to have the said tax assessed in proper amount against the proper parties. To an order of the court fixing the amount of taxes due, the Commonwealth assigns error.</p>

Decree for defendant. Complainant appeals. The original bill in this cause was exhibited by the wife, the appellant, against the husband, the appellee, for divorce on the statutory ground of wilful desertion. The husband filed his answer and cross-bill, and later, after more than three years had elapsed, filed his amended and supplemental answer and cross-bill, alleging cruelty on the part of his wife and praying that the divorce be awarded to him on that ground.

<p>Error to a judgment of the Circuit Court of Culpeper county, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Corcuit Court of city of Richmond, in an action of attachment in which the plaintiff in error intervened. Judgment for plaintiff. Intervener assigns error.</p>

<p>Appeal from a decree of the Chancery Court of city of Richmond. Decree for complainant. Defendant appeals.</p>

Judgment for. plaintiff. Defendant assigns error. This case involves the question of whether the defendant in error (the plaintiff in the court below), the sales agent of the vendor, under a certain contract in writing, has the right to demand payment by the vendor, out of certain collections of purchase money, of certain, compensation to the agent for making sale of certain land.

<p>Appeal from a decree of the Chancery Court of city of Richmond, on a petition for the probate of a will. From an order refusing to admit the paper to probate, petitioners appeal.</p>

<p>1. Fires—Damages—Evidence—Cost Price.—It has been held in fire damage cases that the plaintiff may prove the cost of the property destroyed as tending, at least, to show its market value.</p> <p>2. Fires—Damages—Evidence—Cost Price.—The reason that evidence of the cost of property is admissible in fire damage cases is that, while the amount which the property cost when purchased is not the absolute and possibly not an approximate criterion of its value at the time of the fire, it is nevertheless one element or circumstance relating to such value which can properly go to the jury to be considered along with other evidence in determining value.</p> <p>3. Fires—Damages—Evidence—Cost Price.—Of course, where evidence has been admitted as to the cost of property destroyed, evidence will also be admissible to show that it cost more than it is worth, or that since its purchase it had deteriorated in value; but notwithstanding this, the cost price, if not too remote in point of time, is a circumstance which may be proved to the jury, not as establishing value sufficiently to authorize a recovery, but as a pertinent fact relating thereto.</p> <p>4. Witnesses—Cross-Examination—Scope of Cross-Examination.— The cross-examiner has very great liberty, which the courts should be careful not to restrict improperly, for the right of cross-examination is invaluable in the search for truth. This liberty, however, is not entirely unrestricted, and in any given case its scope must be left chiefly to the discretion of the trial court.</p> <p>5. Witnesses—Scope of Cross-Examination—Discretion of Court.— It is a notorious fact that in many cases much-time is unnecessarily consumed by aimless, useless, and prolonged cross-examinations, so that unless the discretion of the trial courts to limit counsel is firmly maintained, the evil which is already serious will be magnified. There is a vast amount of evidence which, in a certain iegal sense, is relevant, but at the same time is so unimportant when compared with better evidence which is easily available as to be properly excluded. The admission or rejection of such evidence is not controlled by any inflexible rule, but by a sound, though undefined, judicial discretion, depending upon the circumstances of the particular case, and subject to review.</p> <p>6. Witnesses—Cross-Examination—Discretion of Court—Case at Bar.—In an action for damages from fire, plaintiff testified in detail as to the amount of his damages. Upon cross-examination he was asked how much did he pay the other heirs for their three-fourths interest in the property subject to his mother’s dower. His motive in purchasing from the other heirs was to provide his mother with a home.</p> <p>Held: That-even if there was a doubt as to whether the trial judge properly exercised his discretion in sustaining an objection to this question, the error was harmless.</p> <p>7. Witnesses—Fires—Striking Out Testimony as to Identity of Engine.—On trial of an action for damages from fire, the trial court refused to strike out the testimony of a witness who after testifying that he knew that the electric locomotive, which was alleged to have set out the fire, had on another occasion set fire to a trestle, testified that he guessed that the engine had been across fifteen or twenty minutes when he saw it, and that he did not see the engine when it went across. The ground of this exception was that the witness was guessing as to the identity of the engine.</p> <p>Held: That this was not a fair interpretation of the witness’ testimony, as his guess clearly referred to the timé which had elapsed since the engine had crossed.</p> <p>8. Judicial Notice—Matters of Common Knowledge—Electric Locomotives Safest for Preventing Fires.—In a fire damage case the court sustained the objection of the attorney for the plaintiff when the attorney for the company stated to the jury that, “It is a matter of common knowledge that electric locomotives are best and safest for preventing fires.” However well known this may be to some, it is not apparent that the common knowledge of the public has progressed as far as this, and if certainly true it can be certainly proved. Under the circumstances, the remark of counsel was objectionable, in the absence of testimony making the comparison which the attorney undertook to make in his argument to the jury. Its exclusion certainly did not constitute reversible error.</p> <p>9. Appeal and Error—Conflicting Evidence.—Where there is a conflict in the evidence and the! jury might have found a verdict in favor of the defendant, if the verdict and judgment for plaintiff are not plainly wrong or without supporting evidence, they will not be disturbed.</p> <p>10. Appeal and Error—Amendment of Judgment by Appellate Court.—An action for fire damage was brought in the names of one F. and K., trustee. The trustee, K., having died, his executrix was made a party to the proceeding on appeal. It not appearing that K.’s executrix had any interest whatever in the litigation, the judgment of the trial court was amended and entered on appeal in favor of F. alone.</p>

<p>Error to a judgment of the Law and Equity Court of city of Richmond, in an action of detinue. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Henrico county. Decree for defendant. Complainants appeal.</p>

<p>Error to a judgment of the Hustings Court,. Part II, of city of Richmond, on an application for a writ of mandamus. Mandamus granted. Respondent assigns error.</p>

<p>Error to a judgment of the Corporation Court of city of Danville, in an action of trespass on the case. Judgment for plaintiffs. Defendant assigns error.</p>

<p>Error to a judgment of the Law and Equity Court of city of Richmond, in. an action of assumpsit. Judgment for plaintiff. Defendant assigns. error.</p>

•Error to a judgment of the Circuit Court of city of Richmond, in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.

<p>Error to a judgment of the Circuit Court of Alexandria County, in an action of unlawful detainer. Judgment for defendant. Plaintiff assigns error.</p>

Original application for mandamus. This is a proceeding instituted by the petition of Randolph Harrison and others, citizens, taxpayers and qualified voters of the city of Lynchburg, praying of this court a writ of mandamus to compel the respondent, the Hon. Wm. R. Barksdale, to enter an order precisely contrary in its purport to the order which was in fact heretofore entered by him in the case.

<p>Appeal from a decree of the Circuit Court of Fairfax county. Decree for complainant. Defendants appeal.</p>

<p>Appeal from a decree of the Corporation Court of city of Hopewell. Decree for complainants. Defendants appeal.</p>

<p>Error to a judgment of the Law and Equity Court of city of Richmond, in a proceeding by motion for a judgment for money. Judgment for defendant. Plaintiff assigns error.</p>

<p>■Appeal from a decree of the Circuit Court of Botetourt county. Decree for defendants. Complainant appeals.</p>

<p>Error to a judgment of the Law and Equity Court of city .of Richmond, in an action of trespass oh the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Law and Equity Court of city of Richmond, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Loudoun county, on a motion to correct an erroneous assessment of an inheritance tax. Judgment for petitioners. Common-, wealth assigns error..</p>

<p>Error to a judgment of the Circuit Court of Lunenburg county, in a proceeding by motion for a judgment for money. Judgment for defendant. Plaintiff assigns error.</p>

<p>Error to a judgment of the Circuit Court of Culpeper county, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Hustings Court, Part II., of city of Richmond. Decree for defendants. Complainant appeals.</p>

<p>1. Legacies and Devises—Ademption—Intention of Testator.—In case of total loss or destruction of the thing bequeathed, the intention of the testator as to whether or hot this constitutes an ademption of the legacy is not material, for in such a case the ademption results because the testator does not have any power at his death to dispose of the subject. But, on the other hand, it would seem to be a sound rule that a mere change of the name and form of the thing bequeathed, or a mere change in the character of the security bequeathed, will not necessarily work an ademption, and the result may in such cases depend upon the intention of the testator.</p> <p>2. Legacies and Devises—Ademption—Collection of Specific Debt.— Where there is nothing else in a case except the mere fact .• that the testator gave a specific evidence of debt and after-wards collected the same, it presents the case of a specific legacy subsequently adeemed.</p> <p>3. Wills—Construction—Intention of Testator—General Purpose.— It is quite true that the intention of a testator must be gathered from the words actually used in the will, but it will not do to subordinate a plain general purpose or plan to an apparent particular intent, or to isolate the words of a single clause from the circumstances under which they were used, the relationship of the testator to the beneficiaries, and the general testamentary scheme as disclosed by a .view of the whole instrument.</p> <p>4. Wills—Construction—Uniform Justice.—Uniform justice is better than strict consistency, especially when dealing with the language of a will, because the testator necessarily confides his meaning to an instrument which courts of equity are sacredly enjoined to interpret justly as between him and those he leaves behind, should controversy arise, death having closed his own lips.</p> <p>5. Wills—Construction—General or Specific Legacy.—Courts will not construe legacies as specific unless they are clearly so intended. The courts are so desirous of construing -the bequest general that, if there be the least opening to imagine that the testator meant to give a sum of money, and referred to a particular fund only, as that out of which he meant it to be paid, it shall be construed pecuniary, so that the legacy may not be defeated by the destruction of the security.</p> <p>6. Wills—Construction—General or Specific Legacy.—The rule that legacies are not to be construed as specific unless such is the clear intention of the testator, is to be especially regarded where to hold a legacy specific would result in an inequality among those whom the testator 'would naturally be expected to treat with equality.</p> <p>7. Wills—Construction—General or Specific Legacy—Case at Bar. —In the instant case the testatrix plainly intended to divide her estate in four principal parts of substantially equal amounts for the benefit, respectively, of her three sons and the children of a deceased son. She made up the fund for the grandchildren from two amounts, first, $1,700, a debt due her and afterwards collected by her and invested in a certificate of deposit held by her at her death, and $300 from her general estate, but the subsequent directions as to the time-, manner, and amounts in which the total sum was to be paid to these grandchildren indicated that she had in mind a definite pecuniary provision for them, and this purpose on her part was as plainly indicated as if she had expressed it in so many words. The fact that she preserved the fund and the certificate of deposit was significant as throwing light upon her meaning in making the provision for the grandchildren.</p> <p>Held: That the legacy to the grandchildren was not specific, and ' that the collection of the debt and investment in. the certificate of deposit did not constitute an ademption, but that testatrix expected the debt, or its, proceeds, to furnish a convenient source for the payment of the greater part of the total legacy.</p> <p>8. Parol Evidence—Practical Subsequent Construction—Contracts, Conveyances and Wills.—In contracts and conveyances inter vivos, it is competent to introduce parol proof to show the practical subsequent construction which the parties themselves have placed upon the written instrument in question. There can be no good reason why the same rule should not apply with reference to the conduct of a testator subsequent to the making of the will. Indeed, it would seem that the rule ought to apply in the latter case with even more propriety and force than in the former.</p> <p>9. Wills—Construction—General or Specific Legacy—Parol Evidence—Case at Bar.—Parol evidence of the circumstances, situation and connection of the testator, and his transactions between making his will and his death, are admissible to throw light -on his intention. Applying this rule to the instant case, there can be no doubt that the testatrix, in the first instance, had in mind a general testamentary scheme under which the children of her deceased son would get $2,'000 of her estate. In this view the legacy to her grandchildren may very properly be treated*as general rather than specific.</p>

<p>Appeal from a, decree of the Circuit Court of Culpeper county. ' Decree for defendants. Complainants appeal.</p>

<p>Appeal from a decree of the Circuit Court of Southampton county. Decree for defendants. Complainant appeals.</p>

<p>Error- to a judgment of the Circuit Court of Prince William county, in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p> <p>This is an action of assumpsit by the vendor, the defendant in error, against the vendee, the plaintiff in error, seeking to recover a balance of purchase money for 149 cattle of the alleged weight of 157,257 lbs. at six and one-fourth cents per pound, aggregating $9,828.56, subject to a credit of $9,244.78, paid by the vendee on such account, leaving as such balance still due and unpaid the sum of $583.73.</p>

<p>Error to a judgment of the Circuit Court of city of Norfolk, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns, error.</p>

Judgment for plaintiff. Defendant assigns error. This is an action for damages for breach of a contract; of carriage by a common carrier. The plaintiff in error was the defendant and the defendant in error was the plaintiff in the court below. They will be hereinafter referred to in accordance with such positions.

<p>Error to a judgment of the Circuit Court of Botetourt county, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>1. Infants—Sale or Mortgage of Infant’s Lands—Substantial Compliance with Statute—Demurrer not Necessary on Part of Infant.—In a suit to sell or mortgage the lands of an infant, he is considered as objecting at every point, and no demurrer is needed on his part to protect him from defective allegations of the bill. Substantial compliance with the procedure prescribed by the statute is essential to the jurisdiction of the court to enter any decree in the cause.</p> <p>' 2. Infants—Sale or Mortgage of Infant’s Lands—Sufficiency of Bill—Allegation as to Infant’s Interest.—The bill in a suit to sell or mortgage the lands of an infant did not state that the interest of the infant in the lands therein mentioned was all of the estate, real and personal, belonging to the infant; but that was the fair inference, and this inference was confirmed by the finding of the commissioner to whom the cause was referred, which finding was confirmed without objection.</p> <p>: 3. Wills—Construction—Will Speaking as, of the Date of the Death of the Testator—Descent and Distribution—Inf amts.—A clause in testator’s will which declares that “in the event of the death of either my son or my wife, my entire estate shall go to the survivor of them,” referred to the death of the testator, and upon his death, both of them surviving, they took fee simple estates in the property devised to them respectively. Upon the death of the infant, therefore, his interest in the property devised would descend to his paternal heirs.</p> <p>- 4. Infants—Sale of Infant’s Lands—Parties.—Where under Code of 1904, section 2556, upon the death of an infant his property would descend to his paternal heirs, such heirs should be made parties to a suit to mortgage or sell the infant’s lands.</p> <p>• 5. Infants—Sale of Infant’s Lands—Jurisdiction of Court.—In a suit to sell or mortgage an infant’s lands brought by the infant’s mother in her own right and as guardian of her infant child, there was a failure to comply with the statute by making the heirs of the infant parties to the suit. It was insisted that if the court had jurisdiction on any ground, its decree was not void, but at most only voidable, and that the mother had the right to sue as creditor of her husband’s estate, having paid his debts and legacies. But as the bill made no charge that the mother was a creditor, and did not show that at the time it was filed she had paid any debt or legacy of her husband, there was nothing in it to show jurisdiction on this ground.</p> <p>6. Infants—Sale of Infant’s Lands—Jurisdiction of Court.—In a suit to sell or mortgage an infant’s lands brought by his mother in her own right and as guardian for the infant, it was insisted that the court had jurisdiction of the case to administer the real assets of the estate of the infant’s father, or that the suit might be maintained as a suit for contribution from the infant as his mother’s eotenant and devisee. But there were no allegations in the bill upon which the court, could found such jurisdiction.</p> <p>7. Partition—Infant’s Lands—Deed of Trust.—In a suit for partition brought by a mother in her own right and as guardian of her infant child, no deed of trust can be placed on the property on behalf of the infant.</p> <p>8. Infants—Sale or Mortgage of Infant’s Lands—Inherent Jurisdiction of Equity.—If courts of equity have an inherent jurisdiction to entertain suits for the mortgage of an infant’s lands for the purpose of preservation or repairs, the manner of its exercise is regulated and controlled by section 2609, Code of 1904 (section 5826, Code of 1919). It is there provided, amongst other things, that circuit and corporation courts in chancery may make any order for the management, preservation, and investment of the estate of an infant, and the method of obtaining an order for such preservation is plainly pointed out to be the same as under section 2616, Code 1904. Whether the jurisdiction to mortgage the estate of an infant for repairs and preservation be regarded as inherent or conferred by statute, in this State it can only be exercised in the manner pointed out by the statute. Code 1904, secs. 2609, 2616. (Code 1919, secs. 5326, 5335).</p> <p>9. Sale or Mortgage of Infant’s Lands—Section 2616, Code of 1901—Void Mortgage.—Where in a suit for the sale or mortgage of an infant’s lands, it was the purpose of the parties to proceed under section 2616 of the Code of 1904, and they endeavored to conform thereto, but the proceedings were substantially defective for want of proper parties, a mortgage made in pursuance thereof and a sale thereunder were void.</p> <p>10. Equity—Demurrer—Allegations in Bill.—The allegations in a bill must be accepted as true on a demurrer thereto.</p> <p>11. Equity—He Who Asks Equity Must Do Equity—Infants.— Where the situation is such that equity can be done between the parties, the infancy of a complainant does not exclude him from the operation of the maxim that he who asks equity must do equity.</p> <p>12. Infants—Suit by Infant to Set Aside Mortgage of His Lands— Rights of Purchaser Under Deed of Trust When Deed is Set Aside.—In a suit by an infant to have a deed of trust and sale made in pursuance thereof declared void and of no effect as to him, it appearing that the property had greatly increased in value, so the court had under its control the means of adjusting the equities of the parties, in decreeing that the deed and sale should be set aside so far as they affect the infant, the infant’s interest in the property should be charged in favor of defendant with the purchase money paid by defendant and received by the infant, with interest, and with permanent improvements, insurance premiums and taxes, and interest on premiums and taxes, and defendant should be charged with the infant’s share of the rents and profits of the property since he became purchaser, with interest.</p>

<p>Appeal from a decree of the Circuit Court of Lunenburgcounty. Decree for complainant. Defendants appeal.</p>

<p>Appeal from a decree of the Circuit Court of Sussex county. Decree for complainants. Defendant appeals.</p>

<p>Appeal from a decree of the Circuit Court of Charlotte county. Decree for complainants. Defendants appeal.</p> <p>This suit in equity involves the question of the existence of an express parol private trust, created by a gift. The subject of the trust, if it exists, is personal property. The donor was George E. Passmore, the father of appellees, who were plaintiffs in the court below. The trustee was George B. Russell, the testator of appellants, who were defendants in the court below.</p> <p>The donor had only four children, two boys, George E. Passmore, Jr., and Washington Passmore, and two girls, Marion Passmore and Ellen Passmore, all infants of tender years, the first named being the oldest, and being only five or six years of age at the time the original trust hereinafter mentioned was created, and only about thirteen or fourteen years of age when this suit was instituted.</p> <p>The suit was instituted in the early part of the year 1919. The plaintiffs, the said four infant children, sued by their guardian as their next friend. The bill alleges that certain bank stock (twenty shares as stated in the original bill) in the possession of the defendants, and which was held by their testator in his own name at the time of his death, was in truth the subject of an express trust which was created in the lifetime of both the said donor and trustee, to-wit, in the fall of 1910, for the benefit of one of said infant plaintiffs, to-wit, George E. Passmore, Jr., in the following manner namely: That “the said George E. Passmore, in company with one Charles Osborne, went to see the said George B. Russell, deceased, and placed in his custody for the benefit of your complainant, George Edward Passmore, Jr., twenty- shares of the bank stock of the State Bank of Charlotte County, Incorporated, subject to the express trust that said stock and the proceeds thereof should be used for the benefit of your complainant, George Edward Passmore, Jr.' That said George B. Russell, deceased, accepted said trust upon said conditions and expressly promised the said George E. Passmore that he would faithfully execute said trust; thereupon, said stock was caused to be transferred upon the books of the bank to the said George B. Russell, who thereafter held the same in his own name and collected all dividends thereon dedared” (in his lifetime) • “subsequent to the fall of 1910.” The bill also alleges the death of George E. Passmore in the spring of 1911; of George B. Russell in March, 1918, the latter leaving a will which merely directed that all of his “just debts and funeral expenses be paid as promptly as practicable;” and gave, devised and bequeathed “all” of his “property, both real and personal of every kind and description” to his wife, one of the executors named in the will, who qualified as such along with the other executor so named. The bill further alleges what dividends on the stock were collected by the said George B. Russell prior to his death, and prays that the executors aforesaid be required to transfer said stock to said George E. Passmore, Jr., or some one for him, and “to account for the dividends collected by their testator as aforesaid,” with interest, and for general relief.</p> <p>The bill states, “That the other children of George E. Passmore are made parties complainant to this bill in order that they may be before the court should it appear that they have any interest in said trust property or the proceeds thereof.”</p> <p>There was a demurrer to the bill on grounds which raise the questions which are made the basis of some of the assignments of error and which are disposed of in the opinion below.</p> <p>The demurrer was overruled.</p> <p>The executors answered, denying that the alleged trust or any trust whatsoever was at any time created by the said alleged donor or accepted by the said George B. Russell.</p> <p>There were depositions of witnesses taken and filed in behalf of the plaintiffs and defendants. The proof developed the fact that the bank stock aforesaid consisted of fifty, instead of twenty shares, and by leave of court the bill was amended so as to so allege. Of the proof in the cause it is deemed sufficient to make the following further statement: The evidence on which the plaintiffs rely as creating a trust is wholly parol testimony. The character of the testimony will appear from what is said below concerning it. . It must be especially noted that the proof discloses certain features of fact which make a case which is different from that alleged in the bill.</p>

<p>Error to a judgment of the Hustings Court of city of Richmond, in a proceeding to correct an erroneous assessment. Judgment for the Commonwealth. Plaintiff assigns error.</p>

<p>1. Streets and Highways—Surface Water—Liability of City for Flooding Abutting Lots.—Where a municipality raises the grade of a street above the level of an abutting lot, it is liable for damages for injury to the lot occasioned by the throwing of surface water upon the lot through the change of grade, without provision or with inadequate provision for its drainage.</p> <p>2. Streets and Highways—Surface Water—Liability of City for Flooding Afaitting Lots.—The liability of a municipality for damage to an abutting owner from surface water, occasioned by raising the grade of the street above the level of the abutting owner’s lot, is not based upon the change in the grade which the municipality is authorized by law to make, but upon the negligent and improper manner in which the work is done, in .not providing adequate means for carrying off surface water.</p> <p>3. Streets and Highways—Surface Water—Liability of City for Flooding Abutting Lots.—In an action for damages by an abutting owner against a municipality for injury to a lot, occasioned by a change of grade in the street throwing surface water back on the lot, the question whether in grading it was necessary to fill up the ditches and gutters, and, if necessary, whether it was practicable to substitute other sufficient ditches and gutters to take the water off, are matters of fact to be considered on the trial, in connection with the other circumstances of the case, in determining the question of the municipality’s negligence in the execution of the work.</p> <p>4. Continuances—Absence of Witness.—The absence of a witness who has not been summoned, where there was no assurance that his testimony could be had at another trial if the case were continued, and whose testimony was such as could have been given by any other expert in such matters, is not ground for a continuance.</p> <p>5. Continuances—Discretion of Trial Court—Appeal.—Trial courts are given a wide discretion in the matter of continuances; and, while their rulings on the question are subject to review, they will not be set aside unless plainly erroneous.</p>

<p>1. Rule in Shelley’s Case—Statement of the Rule.—Whenever the ancestor, by any will, gift, or conveyance, takes an estate of freehold in lands, or tenements, and in the same will, gift, or conveyance, an estate is afterwards limited by way of remainder, either mediately or immediately, to his heirs, or to the heirs of his body, the words “heirs,”" or “heirs of the body,” are words of limitation of the estate, carrying the inheritance to the ancestor, and not words of purchase creating a contingent remainder in the heirs.</p> <p>2. “Descendants”—Whether Technical Word.—While the word “descendants” is not a technical word to-the extent that tlie law has not impressed it with a different meaning from that accorded in common acceptation and general understanding, it is a word much used in law and of very clear and definite meaning.</p> <p>3. “Descendants”—Meaning of the Term—Distinguished from Child—Synonymous with Issue.—A descendant is an individual proceeding from an ancestor in any degree. It is synonymous with issue. It is offspring, near or remote. The word “child” is not synonymous with the word “descendant,” though a child is a descendant and a descendant may be a child; but a descendant may also proceed from an ancestor in the remotest as well as the nearest degree. Obviously, this is not true as to a child.</p> <p>4. Rule in Shelley’s Case—Class of Persons to Take Indefinitely in Succession.—It is a part of the rule in Shelley’s Case and essential to its operation, that the words used to indicate the persons to whom the estate is limited, by way of remainder, must import a class of persons to take indefinitely in succession. If they do import such a class, then the rule is of inflexible application; but if the words are used to designate particular individuals, the words so used are words of purchase and not of limitation, e. g., grant to A. for life, remainder to the heirs of A. now living, or remainder to the sons of A. and their heirs, or remainder to the children of A. In all of these instances, particular individuals are indicated by the words used; hence the rule does not apply.</p> <p>5. Rule in Shelley’s Case—“Descendants”—“Heirs of the Body”— Superadded Words.—The rule in Shelley’s Case applies when the limitation in remainder is to the “heirs of the body” of the tenant of the freehold. [The words “descendants” and “heirs of the body” are of equivalent meaning, f It is, of course, essential to the application of the rule that"the word or words used in the limitation over import a class of persons to take indefinitely in succession. Any words of superadded limitation, showing that the words used are intended to designate particular persons, will defeat the rule.</p> <p>6. Rule in Shelley’s Case—Rule of Law not a Construction.— The rule in Shelley’s Case, where the requisites concur, controls the intention of the testator, or grantor, and overrides his purpose, often very clearly expressed, to limit the ancestor to an estate of freehold. The rule is not a means to discover the intent of the grantor, or testator, but, supposing the intent ascertained, the rule controls it.</p> <p>7. Rule in Shelley’s Case—Descendants—Case at Bar.—Under a will which took efFect before the abolition of the rule in Shelley’s Case, a testator gave land to two of his sons during their lifetime to hold jointly and after the death of the last of the two to their descendants, if they have any; if not, to a third party or his descendants.</p> <p>Held: That by force of this rule in Shelley’s Case the two sons took an estate tail, which, by operation of the statute, then as now in' force, was converted into a joint fee.</p> <p>8. Wills—“Descendants”—“Children”—Case at Bar.—In the instant case the Supreme Court of Appeals was unable to find in the will any qualifying words, or sentences, or words of super-added limitation, justifying the conclusion that the testator used the word “descendants” with the meaning of children. The passages of the will cited in support of that conclusion were too vague, uncertain, and conjectural to justify the conclusion that a testator who used both words “descendants” and “children” in his will, used the former when he really meant the latter.</p> <p>9. Rule- in Shelley’s Case—Joint Limitation.—Where the joint limitation of the freehold to several is followed by a joint limitation to the heirs of the same parties, the rule applies—e. g., grant to A and B for their joint lives, remainder to C. for life, remainder to the heirs of A and B. Here both limitations being of the same quality, that is, both joint, the fee vests in the ancestors jointly.</p>

Judgment for plaintiff. Defendant assigns error. This is an action of assumpsit in which the defendant in error was plaintiff and the plaintiff in error was defendant in the court below. They will be hereinafter referred to in accordance with those positions.

<p>Error to a judgment of the Law and Equity Court of city of Richmond, in an action of detinue. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Corporation Court of city of Roanoke, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

Judgment for plaintiff. Defendant assigns error. This is a personal injury case in which the defendant in error was plaintiff in the court below, and recovered a verdict against the plaintiff in error, the defendant in the court below, for the sum of $1,200 for the loss of the end of the thumb of his left hand, which was crushed in a certain operation of a gathering motor and the car following it, in the coal mine of the plaintiff in error.

<p>Appeal from a decree of the Circuit Court of Buchanan county. Decree for defendant. Complainants appeal.</p>

<p>1. MUNICIPAL CoRPoRATIoNs-Authority froim Stat6 to Fi~ Rates' ~f Public Service Corporations.&emdash;A State can authorize one of its municipal corporations to establish by an inyiolable contract the rates to be charged by a telephone company, or other public service corporation, for a definite term, not unreasonable in point of time, and the effect of such a contract is to suspend during the term of the contract the governmental power of regulating rates.</p> <p>2. MUNICIPAL CoRPoRATIoNs-Ai~thor'ity f'rom Sta~te to Fi~ Rates of P'ithlie Service Corporations-Construction of Authority.-For the very reason that a contract between a municipal corporation and a public service corporation, fixing rates to be charged for a definite term, under authority from the State, has the effect of extinguishing for the time being an undoubted power of government, the contract and the authority to make it must clearly and unmistakably appear. All doubts must be resolved in fator of the continuance of the power of the State. It may be stated, as a general rule, that an ambiguous or doubtful contract between a telephone company and a municipal corporation as to the rights of the public, will be construed in favor of the public rights.</p> <p>3. MUNICIPAL CoRPORATIoNS-Fixing Ra~tes to be Charged by Tdephone Company-Corporatiort Co'iw,nission-Iinpairment of Ob~ ligation of Contracts~-Where express power to fix telephone rates is not given a municipality, it is subject to the general law passed pursuant to the Constitution, and a constitutionally created commission may be authorized by statute to revise rates established by a municipal franchise conferred on a telephone company. The State may direct the company to raise its rates above those fixed by the franchise, if it is necessary to secure effective service, and so far as the city is concerned there is no constitutional objection on the ground of impairment of a contract oblic~ation.</p> <p>4. Telegraphs and Telephones—Power of City of Richmond to Fix Rates.—Before the Constitution of 1902 the city of Richmond had never been vested with express power to prescribe telephone rates.</p> <p>5. Municipal Corporations—Power to Fix Telephone Rates.—Even though there may not be express words, giving a municipality the power to fix telephone rates, such power nevertheless exists if “clearly and by express intendment, though not by express words,” the State abandons to municipalities the control of rates for local service, and both the courts and the legislature itself are bound by such clear intendment. But the difference, if any, between “power expressly conferred” and “power conferred clearly and by express intendment” is so shadowy as to be indistinguishable.</p> <p>6. Corporation Commission—Jurisdiction of Commission.—The commission is the creation of the Constitution and has no inherent power. All of its jurisdiction is conferred either by the Constitution or is derived from statutes which do not contravene the Constitution. Such statutes are of two classes'—one, those which are either directed or authorized by the Constitution, and the other, those which have their sanction in the inherent reserved or police power of the State.</p> <p>7. Municipal Corporations—Power to Fix Telephone Rates—Proviso in Section 156-b of the Constitution of 1902.—The proviso in section 156-b, Constitution of 1902, does not purport either to confer any new power upon municipalities to fix rates of charge to be observed by public service corporations-, or to ratify any contract previously made between municipalities and public service corporations. It embodies and constitutes the sole restriction upon the powers of the corporation commission as to such rates, but this restriction is in terms limited to rights which have been or may thereafter be by law conferred on municipalities to prescribe rates of charge to be observed by any public service corporation.</p> <p>8. Corporation Commission—Section 156-b, Constitution of 1902 —Restriction Upon Power of Legislature.—Section 156-b, Constitution of 1902, was a grant of power to the commission, and was never intended to be and is not a limitation of any power of the legislature, except so far as such limitation is clearly and definitely expressed. In its essential features, the section is a grant and not a limitation of power. Among other powers thereby granted, it specifically provides that the authority of the commission (subject to review on appeal) to prescribe rates for transmission companies shall be paramount, while its authority to prescribe other rules, regulations or requirements shall be subject to the authority of the General Assembly to legislate thereon by general laws.</p> <p>9. Municipal Corporations—Fixing Rates of Public Service Corporations—Power to Prohibit Use of Streets.—Where a city has the statutory or constitutional right to prohibit the use of its streets by public service corporations, this is insufficient to confer express power upon the city to prescribe rates to be charged by such public service corporations.</p> <p>10. Telegraphs and Telephones—Rates—Power of the Legislature. —While the legislature may enact no law which contravenes the Constitution, it has unlimited power, through the corporation commission, to regulate telephone rates, except so far as precluded from doing so by constitutional inhibition.</p> <p>11. Statutes—Repeal.—Repeals by implication are not favored.</p> <p>12. Police Power—Scope of Police Power.—In the police power, which cannot be surrendered, or defined with circumstantial precision, but which, except as restrained by constitutional inhibition, is unlimited, is found the inexhaustible source of those new legislative regulations which in response to the needs of a progressive civilization are designed to promote thq ' public convenience and general prosperity.</p> <p>13. Telegraphs and Telephones—FVawc/use Granted Telephone Company by City Fixing Rates—Jurisdiction of Corporation Commission to Alter Rates Fixed by Franchise—Case at Bar.— The proviso in section 156-b, Constitution of 1902, did not prohibit the Corporation Commission from taking jurisdiction of a petition of the Chesapeake and Potomac Telephone Company of Virginia for the revision of the company’s rates for services performed within the city of Richmond, because the franchise relied upon by the city, adopted before the Constitution became effective, under which the company was given the right to occupy the city streets with its works for a certain period, and under which the company contracted not to charge for telephone service rates in excess of those set forth in a schedule, was not adopted pursuant to any right conferred by law upon the authorities of the city to prescribe rates ■ of charge to be observed by the telephone company, and hence, the jurisdiction of the commission conferred by section 156-b to prescribe the rates to be charged by transmission companies is plenary and paramount.</p> <p>14. Telegraphs and Telephones—Franchise Granted Telephone Company by City Fixing Rates—Jurisdiction of Corporation Commission to Alter Rates Fixed by Franchise—Case at Bar. —Even if the power of the commission to prescribe the rates to be charged by the telephone company was not plenary and paramount under section 156-b of the Constitution of 1902, the General Assembly, which is not restricted or controlled by the proviso of that section, has expressly conferred upon the commission, by Code of 1919, sections 4052 and 4054, the jurisdiction to prescribe and enforce just and reasonable telephone rates, charges and regulations, notwithstanding they may have been provided for by a municipal ordinance, franchise or other contract, which was adopted before the present Constitution became effective.</p>

<p>Error to a judgment of the Circuit Court of Russell county in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Grayson ■county on a motion to correct an erroneous assessment. Judgment for the Commonwealth. Plaintiff assigns error.</p>

Judgment for plaintiff. Defendant.assigns error. In this case the defendant in error obtained a verdict and judgment in the court below against the plaintiffs in error for the death of C. N. Bryant, an employee of the railway company, which occurred by drowning. The latter will be hereinafter referred to as the deceased. There is no conflict .in the testimony in the case which involves the credibility of witnesses.

<p>Error to !a judgment of the Circuit Court of Russell county in proceeding by motion for a judgment for money. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Washington county. Decree for complainants. Defendant appeals.</p>

<p>Error to a judgment of the Circuit Court of Wise county in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to* a judgment of the Hustings Court, Part II, of city of Richmond, in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p>

<p>Error to a judgment of the Law and Equity Court of city of Richmond, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Dickenson county in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.</p>

Judgment for plaintiff. Defendant assigns error. This is an action by the defendant in error, Marion S. Rose, against the city of Richmond, to recover damages for injury sustained by a fall alleged to have been caused by the defective condition of a sidewalk of the city. The defendant in error will be hereinafter referred to as plaintiff. There was a trial by jury.

<p>Error to a judgment of the Hustings Court of city of Richmond, on information by the Commonwealth to enforce the forfeiture of an automobile. Judgment of forfeiture. The owner of automobile assigns error.</p>

<p>Error to a judgment of the Hustings Court of city of Richmond, in a proceeding for forfeiture of an automobile. Judgment of forfeiture. Intervener assigns error.</p>

<p>Error to a judgment of the Hustings Court of city of Richmond, in a proceeding for forfeiture of an automobile. Judgment of forfeiture. Claimant assigns error.</p>

In this case the accused was convicted of murder in the first degree and sentenced to be confined in the State penitentiary for life. The deceased, George Nuckols, was a sergeant or policeman of the municipal corporation of the town of Coebum, in Wise county, Virginia.