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708 INDEX. VERDICT. See Appeal, 166, 532; Brokers, 549; Conversion, 528; Judgment, 113, 538; Motion, 70; Negligence, 544; Trial, 381.

In a suit on a promissory note, the defense urged in the answer was an alleged failure of consideration. At the conclusion of the trial a verdict in de- fendant’s favor was directed by the court. Held, error; there being no evidence to establish such defense. American Case & Register Co. v. Wal- ton & Davis, 187.

WAIVER. Scc Appeal, 166; Sales, 169. WATERS. See Surface Waters, 153.

WILLS.

1. The unexplained omission of children in a will does not necessarily invali- date the instrument, even though such will may be ineffectual as to such persons. Their remedy is to appear in the proceedings and demand a dis- tribution of the estate, which, as to them, shall be uninfluence.l by the pro- visions of the will. Lowery v. Hawker, 318.

2. On the probate of a will, the due execution and publishing of the will, the sound and disposing mind of the testator, and his freedom from -luress, menace, fraud, or undue influence, and the fact as to whether the instru- ment is in fact his last will and testament, are the only issues before the court. Lowery v. Hawker, 318.

3. The mere probating of a will is not final and conclusive as to the validity and construction of the instrument. Such matters may be discussed and adjudicated at any time before che final distribution of the estate. Lowery v. Hawker, 318.

WITNESSES. See Criminal Law, 358; Evidence, 133.

Where a witness has been called twice, and each time examined under direct, cross, and redirect examination, held, that it was within the discretion of the court, and therefore not error, to exclude his testimony upon being called back the day following and being asked questions which he had testified to fully theretofore, where it is not shown that his answers would have been different, or that he desired to change the same in any par- ticular. Gebus v. Minneapolis, St. P. & S. S. M. Ry. Co. 29.

WORDR AND PHRASES. See Constitution, 362.

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