N. J.)

he shall not take any part of the estate. There must be a legal devise to cut off the right of the heir to inherit. Mere words of disinheritance are insufficient to effect that purpose." The rule so announced seems to prevail in New Hampshire. Wells v. Anderson, 69 N. H. 561, 44 Atl. 103. The two leading English cases above referred to (Creswell v. Cheslyn and Sykes v. Sykes) were approved of by this court in Burnet v. Burnet (1879) 30 N. J. Eq. 595, in an opinion by Vice Chancellor Van Fleet. In that case a legacy was void, for the reason that the legatee was a witness to the execution of the will; and the question was whether that share fell into the residuary estate, or whether as to it the will was not entirely inoperative. The vice chancellor held to the broad principle that the will was inoperative; and that therefore as to that share the testator died intestate.

Finally, our Court of Errors and Appeals, in Graydon v. Graydon, 25 N. J. Eq. 561, decided the point in a case arising under a will which provided that, if the testator's son John should marry a certain person prior to a certain date, then, to use his words: "My will is and I order that he take no part or share of my estate either of principal or interest, and the provision heretofore made for him is upon condition that he do not marry," etc.

"If he do I hereby declare such provision void and revoked." And, in case he did so marry, then his executors should dispose of his estate as if John were dead in his

847

the intestate property, as tenants in common, with the other interested parties. However, no directions can now be given in the suit for the construction of the will as to the eventual distribution of the residuary property so undisposed of. It is a well-settled rule that this court will not give directions concerning the distribution of a fund until the time for distribution arrives. The only directions which can be included in the decree will relate to the disposition of the income and the interest thereon and the accumulation thereof, as directed by the will. Hoagland v. Cooper, 65 N. J. Eq. 407, 56 Atl. 705. Indeed, the point would not have been considered at this time, if it had not been deemed necessary in the foreclosure suit. This view makes it unnecessary to determine presently whether the conveyance to the complainant of the homestead is or is not an advancement under our statute of descents.

The decree in the foreclosure suit may provide for a sale of the life estate of Jeppe Sondergaard, but for reasons hereinabove stated, the sale will not affect the remainder. Whatever moneys may be raised by a sale of the life estate will be credited upon the mortgage, and eventually it will be satisfied in the manner provided for by the will.

RIVA V. JERSEY CITY, H. & P. ST. RY. CO.

son violated the provision by contracting the forbidden marriage, and the question was whether his widow and children, he having died, took any portion of the residuary estate. The chancellor held that they did not, but the Court of Errors and Appeals declared that they were entitled to share in the residue, upon the principle that the heir at law would not be disinherited, except up

on words free from doubt. No allusion was made to the principle of decision of the English cases, which is not only that the heir will not be disinherited, except upon the clearest statement, but also that the failure to make a devise over of the forfeited share is sufficient in itself to show that the testator did not intend to debar the persons whose shares were forfeited from participating in the undisposed-of residue. The rule was followed in Canfield v. Canfield, 62 N. J. Eq. 578, 50 Atl. 471. No cases are cited in the Graydon Case as authorities for the conclusion to which the court arrived. It appears, however, from the cases hereinabove cited that the judgment of Judge Dalrimple, who wrote the opinion, is founded on well-established principles.

Nov. 20, 1911.)

(Syllabus by the Court.)

APPEAL AND ERROR (§ 635*)-RECORD-OMIS

ed

SIONS-PRINTED BOOK.

Writ of error dismissed because the printbook does not show that return has been made to the writ of error.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 635.*]

Error to Supreme Court.

Action by Felice Riva against the Jersey City, Hoboken & Paterson Street Railway Company. Judgment for defendant, and plaintiff brings error. Writ of error dismissed.

Randolph Perkins, for plaintiff in error. William D. Edwards and Edwin F. Smith, for defendant in error.

PER CURIAM. So far as the printed book discloses, no return has been made to the writ of error herein. Under the established practice of this court, we are not called upon to look beyond the printed book. McLaughlin v. Davis, 64 N. J. Law, 360, 45 Atl. 967; Davis v. Littel, 64 N. J. Law, 595, 46 Atl. 631; Conrad v. Brocker, 70 N. J. Law, 823, 58 Atl. 1019; Negley v. New York Life Ins. Co., 70 Atl. 129.

The writ of error should be dismissed.

(79 N. J. E. 220)

HUSTON v. ROE.

countant credit for this expenditure. This disposition of the case being a substantial af

EXECUTORS AND ADMINISTRATORS (§ 109*)ACCOUNTING-CREDITS.

(82 N. J. L. 450)

GOODMAN v. LEHIGH VALLEY R. CO. OF
NEW JERSEY (two cases).
MAYS v. SAME.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 435-447; Dec. Dig. § 109.*]

Appeal from Prerogative Court.

Henry Huston, as administrator of the estate of Catherine A. Roe, deceased, appealed from a decree sustaining exceptions by Minnie Roe to his final accounting, and, from a decree of the Prerogative Court (78 Atl. 162) affirming the original decree, he appeals. Decree reversed, and record remitted for modification of decree.

Henry Huston and Theodore Simonson, for appellant. Charles M. Woodruff, for respondent.

PER CURIAM. We agree with the result reached in this case by the orphans' court and with the decree of affirmance by the ordinary (78 Atl. 162), except in a single particular. The disallowance of the accountant of the item of $114.23 we think was wrong. This amount represents one-third of the milk receipt for which the accountant claimed allowance. The accountant's intestate had 35 head of cattle which came to the hands of her administrator at her death, which had to be fed and cared for, and his only means to this end was the farm. A receiver for the farm premises was appointed by an order providing that he "should take charge of the mortgaged premises, manage the same and cut and gather and harvest the corn, buckwheat and hops now (then) growing and to take charge and possession of the crops therein mentioned and sell the same under direction of this court." This amount, onethird of the milk receipts, the accountant claims to have paid to the receiver as rent for the pasture of decedent's cows. By the terms of a lease, the tenant was entitled to another third and to have the cows remain as against Mrs. Roe until the following April. We therefore deem this a reasonable and proper arrangement for the accountant to make, in order to sustain and care for the cattle, and it resulted in a benefit to the estate. The item should be allowed to the appellant as a credit in his account.

The decree will therefore be reversed, and the record and proceedings be remitted to the Prerogative Court to the end that the decree may be modified, by allowing to the ac

Nov. 20, 1911.)

(Syllabus by the Court.)

1. RAILROADS (§ 484*)-OPERATION-INJURIES BY FIRES-QUESTIONS FOR JURY.

The differences in the evidence taken in these cases and that taken at a former trial of the same cases (see 78 N. J. Law, 318, 74 Atl. 519) held not sufficient to have required the trial court to nonsuit or to direct a verdict for defendant.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. § 484.*] 2. DISCOVERY (8 79*)-STATUTORY PROCEEDINGS-EFFECT OF ANSWERS AS EVIDENCE.

The introduction in evidence of an answer to an interrogatory under section 140 of the Practice Act of 1903 (P. L. p. 575) is not conclusive on plaintiff as to the matters of fact covered by such answer.

[Ed. Note. For other cases, see Discovery, Cent. Dig. §§ 99-102; Dec. Dig. § 79.*] 3. RAILROADS (§ 482*)-OPERATION-ACTIONS FOR FIRES-SUFFICIENCY OF EVIDENCE.

ed, a jury was justified in finding the communiUnder the conditions shown to have existcation of fire from the burning farm buildings of plaintiff Goodman's testator to those of plaintiff Mays over a distance of 1,180 feet.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1730-1736; Dec. Dig. § 482.*] 4. WITNESSES (§ 255*) - EXAMINATION-RE

FRESHING MEMORY.

A witness may refresh his memory from a written memorandum made by him or under his direction, even if such memorandum contains statements of fact other than those within the personal knowledge of the witness, so long as he does not undertake to give testimony therefrom that is beyond the limits of his own knowledge.

Cent. Dig. $$ 874-890; Dec. Dig. § 255.*] [Ed. Note. For other cases, see Witnesses, 5. EVIDENCE (§ 113*)-RELEVANCY-VALUE.

In an action for damages to real estate by fire set by a railroad locomotive, evidence of the cost of the buildings burned is relevant to the inquiry as to the damage sustained.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.*]

(Additional Syllabus by Editorial Staff.) 6. RAILROADS (§ 481*)-OPERATION-ACTIONS FOR FIRES-ADMISSIBILITY OF EVIDENCE.

In an action for fire caused by the operation of a railroad, evidence as to the effect of use of screens in engines on another railroad was proper as tending to show the tendency of screens to deteriorate under conditions substantially similar.

[Ed. Note. For other cases, see Railroads, Dec. Dig. § 481.*]

7. RAILROADS (§ 485*)-OPERATION-ACTIONS FOR FIRES-INSTRUCTIONS.

In an action for fire caused by the operation of a railroad, the refusal to charge the jury to disregard all evidence as to the existence of

cape and were of sufficient size to travel over 150 feet, and that such sparks would not escape from a screen that was in good order. It is true that this last point does not rest upon the admission of one of defendant's witnesses, as at the former trial; but there was evidence to that effect that the jury were warranted in considering, and with the weight of which, if of probative force, we are not here concerned. So it would have been error to control the verdict on this point.

[3] The next point argued relates to the Mays Case alone, and it is that, assuming the jury were entitled to find a verdict for plaintiffs in the Goodman Cases, there was no evidence to show that the setting of the Goodman fire was the direct and proximate cause of the Mays fire. We have no difficulty whatever on this score. The Mays buildings were directly to leeward of the Goodman buildings and about 1,180 feet away. The Goodman fire consumed in less

than an hour the house, barns, and outbuildings; vast volumes of smoke and sparks being blown toward the Mays property by the strong wind. There is no suggestion of another cause for the Mays fire, and that

fire was first discovered on the roof of the

ice house. So far from there being no evidence to justify a jury that the Mays fire resulted from the Goodman fire, we consid

er that there was ample evidence, and that the jury was fully justified in so finding. Such a finding being warranted, the chain of causation is as complete as if the fire had spread over the ground, as in D., L. & W. R. R. v. Salmon, 39 N. J. Law, 299, 23 Am. Rep. 214, or as if it had been communicated by burning oil floating down stream, as in Kuhn v. Jewett, 32 N. J. Eq. 647.

We pass to certain questions raised on the admission and rejection of evidence, and relating to the charge.

[6] The evidence of plaintiff's witness Pease about the effect of use of screens in engines of another railroad company was proper as tending to show the general tendency of screens to deteriorate under conditions substantially similar, and thus raise an inference that screens retained as long as defendant's screens had been retained would probably have become unreliable.

[4] The next point relates to the testimony of James E. Goodman, who had died before the third trial, and whose testimony on the first trial was read. It is based on the twentieth and twenty-first assignments of error. The twentieth is that witness was allowed to use a memorandum to refresh his recollection; the twenty-first, that he was allowed to use a memorandum to which were appended values of the articles mentioned therein, in giving his testimony. The objection to the memorandum was that it had been made up by the witness and his wife and son in concert, each contributing some

property destroyed, and the values, with which he or she was particularly acquainted; and it is now urged that this resulted in Mr. Goodman testifying to articles and values of which at first hand he knew nothing. But we find no such point raised by the exceptions. He was allowed to use it "to refresh his recollection," but for no other purpose. For that purpose it was entirely proper, although of course his testimony should have been restricted to items of which he had personal knowledge. He was then examined and cross-examined on various items without any question being raised whether he had such knowledge or not; and hence the court was not called upon to rule further than as above noted. Such ruling was correct.

[7] The evidence as to existence of dia

phragms on engines of the Central Railroad other conditions obtaining in those engines was proper as tending to throw light on with respect to appliances for preventing

that the court should have charged the jury, the escape of sparks. But it is complained as requested, to disregard all the diaphragm evidence as immaterial to the issue.

We

are not sure that it was immaterial to the is

sue; but it is a sufficient answer to say that defendant was fully protected by a charge

that defendant was not required to install from its failure to do so.

diaphragms, and that no liability resulted

The other matters brought up need not be discussed at length. The fourth request, so far as defendant was entitled to have it charged, was covered by the second, which was charged. The same may be said of the fifth.

[8] The court charged the seventh, and in commenting on it said that due care in inspecting the screens meant a high degree of care. This was fully justified by the language of the statute that all practicable means to prevent the escape of fire shall be used. used. P. L. 1903, p. 674, § 57. The eighteenth request was substantially covered by other portions of the charge so far as it did not consist of comment on the evidence.

No error was committed by the admission of the question to witness McDonald. The objection came too late, and the grounds urged were unintelligible. The question to the witness Goodman as to who would have occasion to go into the barn was manifestly proper as bearing on the course of business at the barn. The witnesses Turner, Maxfield, and Rehrig, if experts on screens, as is conceded, were obviously qualified to give testimony on the life of sparks.

[9] The fact that the mnemorandum from which the witness Shannon testified was not offered in evidence was no bar to his being cross-examined on it; whether it was a means of refreshing present recollection (Wigmore, Ev. § 762) or a record of past