They deny that he executed a will as alleged, deny that he was at that time of sound mind or competent to make a will, and allege that Baum was caused to execute said pretended will by undue influence. They admit that Baum burned said pretended will, and allege that he did so with the intent thereby to cancel and revoke the same and the said pretended will became thereby absolutely null and void and of no force or effect. Decree was rendered dismissing plaintiff's petition and for costs. Plaintiff appeals.-Affirmed.

J. H. Powers and T. C. Clarey for appellant.

J. R. Bane and Clements & Clements for appellees.

GIVEN, J.-There is no question but that about the twenty-eighth day of August, 1891, John D. Baum, now deceased, executed a will, a copy of which is set out in the petition. We think Baum was at that time capable of making a will, but whether he was induced to make this will by undue influence is a more doubtful question, but one that, in the view we take of the case, need not be determined. We are in no doubt but that at the time John D. Baum destroyed that will, though under guardianship, he was, under the ruling in Meeker v. Meeker, 74 Iowa, 353, capable of either making or canceling his will; that he was not influenced by his guardian, or any other person, to destroy the will; and that he acted voluntarily, understandingly, and with the intention of canceling that will. Appellant cites authorities to the effect that unsoundness of mind must be presumed from the appointment of the guardian, and that it continues throughout the guardianship. In re Fenton's Will, 97 Iowa, 193. Let this be conceded, still we think these presumptions are fully overcome by the evidence as to the condition and acts of the deceased at the time he burned the will. We conclude that the decree is correct, and it is therefore AFFIRMED.

ABATEMENT

INDEX

ΤΟ

ADVERSE POSSESSION

ABATEMENT- See PLEADING, 1; PRACT. SUP. CT., 1.

ACCEPTANCE-See SALES, 1,

3

ACCIDENTS-See INSURANCE, 1.

ACCOUNTING-See AGIST.; EVID., 2; PLEAD., 3.

ACCOUNTS-See ASSIGN.

ACKNOWLEDGMENTS-See DEEDS, 1.
ACTIONS--See PRACT. 1, 2; RECEIVERS, 1, 2.

12.

ADJUDICATION-See JUDGMENTS, 1, 2.

1. Demurrer-Where plaintiff failed to amend his petition, to
which a demurrer had been sustained but appealed to the
supreme court where the judgment was affirmed, such judg-
ment constitutes a final adjudication.-Gregory v. Woodworth,

151.

2. Following Federal Court Decision—Where a mortgagee has
on account of interest in the subject-matter of the action, been
permitted to attack rights of mechanic's lienors on the same
property, and the validity of the mortgage is denied, the court
will determine that question, as between the mechanic's lienor,
said mortgagee and junior mortgagee, notwithstanding it has
already been adjudicated in a foreclosure suit brought by said
mortgagee in the federal court, where the latter is still pending
on appeal.-Beach & Weld v. Wakefield, 567.

3. Legatees-Where a legatee asked that her share in the deced-
ent's estate be ascertained and paid, and alleged that no deduc-
tions for advancements should be made, and the executors
asked that so much of her share as was necessary be used to
pay notes of the decedent secured by mortgage against her,
and the validity of the notes and mortgage was fairly presented
for determination without her objection, the judgment was
res judicata against her in a subsequent foreclosure of the
mortgage.-Prouty v. Matheson, 259.

ADMISSIONS-See EVID., 1; PRACT., 7.
ADULTERY-See CRIM. LAW, 2.

ADVANCEMENTS-See TRUSTS, 3, 4.

ADVERSE POSSESSION-See Co-TEN.,

Where parties occupied under a mistaken belief that the line
located between them by them was correct, and neither intended

Small figures refer to subdivisions of Index. The others to page of report.

VOL. 106 Ia-48

(753)

AFFIDAVITS

TO

ATTORNEY FEES

to claim more than the true amount, plaintiff did not hold
excess adversely.-Kahl v. Schmidt, 550.

AFFIDAVITS-See MECH, LIENS, 1,2.

AGENCY-See BANKS, ; CONTRACTS, 1, ; EVID, ; LIENS; MUN.
CORP., ; PLEAD., 18; PRACT, 31; RAIL., 13, 14; SALES, 6; Teleg.
Co., 1.

AGISTMENT-See EVID., "; INSTR.,, ; PLEA AND PROOF, .
In an action on a contract of agistment, whereby defendants
undertook to deliver at the close of the season the cattle
received thereunder, and to pay for all lost, stolen, etc., the
burden of accounting for such as were not so delivered was on
defendants. -Cattle Co. v. Anderson, 231.

ALIBI-See CRIM. LAW, 13.

ALTERATION-See NOTES AND BILLS, ', o,

AMENDMENT-See PLEAD., 2, 3, '; PRACT, 8, 36; RAIL., 30,
APPEAL-See PRACT. SUP. Cт.; SCHOOLS, ‘.

APPROVAL-See SALES, 2.

ARBITRATION-See SCHOOLS, 1.

ARREST OF JUDGMENT-See PRACT., '.
ARTICLES-CHANGE IN-See CORPOR, 1.

ASSIGNMENTS.-See NOTES AND BILLS, 2; WILLS, '.

POSSESSION-Books of Account-An oral assignment of books of
account is valid where the possession of the books was de-
livered, though the assignor afterwards took them temporarily,
in order to post them; no claim being made that the manner
of possession failed to impart notice.-Preston v. Peterson,
244.

ATTACHMENTS-See LAND. AND TEN., 1.

1.

Future Rent-There may be an attachment for future rent pro-
vided by a lease, though the lessor reserved the right to sell
off part of the property reducing the future rental sixty cents
an acre for such reduction, or to sell the entire property, sub-
ject to the lease, or to a forfeiture to the lessee's of one year's
rent, being the rent for last years' occupancy.-Brown v.
Cairns; Bolton v. Joster, 727.

2

ATTORNEY FEES.-See COUNTY ATTY.,, ; MORTGAGES, ', '.

Where an attorney is appointed to defend two jointly indicted
and tried he may recover the statutory fee for each defendant.
--Clark v. Osceola County, 502.

Small figures refer to subdivisions of Index. The others to page of report.

BANKS

то

BONDS.

BANKS.

1.

2.

NEGLIGENCE OF ASSISTANT CASHIER ACTING AS NOTARY-The
negligence of a notary public in failing to learn the residence
of an endorser of an inland draft and give him proper notice
of its dishonor is not chargeable to a bank of which he is
assistant cashier, and which placed the draft, which it held
only for collection, in his hands for protest, although no pro-
test of the draft was required by law, but the law recognized
the giving of notices, in case of protest, as part of the official
duty of a notary.-First Nat. Bank v. German Bank, 543.
Same-As, under the statutes of Iowa, a notary public is
authorized to give notice of protest, the selection by a bank
to whom a draft is sent for collection of a notary to serve
protest on the drawee, shows such prudence and diligence
as would exempt it from liability on failure of notary to
properly perform his duty.-Idem.

3. Acts Ultra Vires—A savings bank is not liable where its clerk
who clerks at a sale takes a note with a forged indorsement.-
Willet v. Bank, 69.

BASTARDS—See INSUR., "o.

1. Recognition-A letter by a father of illeg timate children to
their mother, with whom he was living, requesting her to "kiss
our boys for me," is a sufficient recognition in writing.—
Brown v. Legion of Honor, 439.

2. SAME-It is immaterial that recognition of a bastard was in a
state which did not permit bastards to inherit from the father.
-Van Horn v. Van Horn, 247.

3. SAME-The evidence is held sufficient to show such general and
notorious recognition of a child as entitles him to inherit from
his father.-Idem.

BIIL OF EXCEPTIONS-See PRACT. SUP. CT., 12.

SHORTHAND NOTES-Certification-Notes of the official stenog-
rapher certified by the trial judge, constitute a sufficient bill
of exceptions, though no certificate of the reporter is attached.
-Sigler v. Murphy, 128.

BONA FIDES-See EVID., '.

BONDS-See ESTATES OF DECED., '; PRACT., 3,

1. City bonds are not invalidated by a misrecital therein respect-
ing the particular act of Assembly under which the ordinance
authorizing the issuance of the bonds is passed.-Allen v,
City, 90.

Small figures refer to subdivisions of Index. The others to page of report.