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of the same stroke or poison in another county, within one year thereafter, the offender shall be tried in the court within whose jurisdiction such county lies where the stroke or poison was given." Held, that where the blow was struck in Maryland, and death ensued in Pennsylvania, the venue in an indictment for murder was properly laid in the county where the blow was struck. Where a sick juror had been separated from his fellow jurors during a recess of the court, before verdict, and it appeared that he had not been tampered with, a motion to discharge the jury was rightly overruled.

presented on demurrer to the third and fourth counts of the indictment is one in regard to which some doubts, it would appear, were entertained in the early days of the English common law. These doubts seem to have had their foundation in certain maxims and practice that originally obtained in respect to the venue for the trial of facts, the reason for which has long since ceased to exist; it being supposed, in the early periods of the English law, that it was necessary that the jury should come from the vicinage where the matters of fact occurred, and therefore be better qualified to investigate and discover the truth of the transaction than persons living at a distance from the scene could be. Hence the venue was always regarded as a matter of substance, and where, at the common law, the commission of an offense was commenced in one county and consummated in another, the venue could be laid in neither, and the offender went altogether unpunished. And even in the case of murder, if the mortal wound was inflicted or poison administered in one county, and the party died in consequence of the wound or poison in another, it was doubted by some whether the murder could be punished in either county, for it was supposed that a jury of the first could not take cognizance of the death in the second, and a jury of the second could not inquire of the wounding or poisoning in the first, and so the felon would escape punishment altogether. 1 Chit. Crim. Law, 177. This doubt was founded in a mere techniin-cality, and savored so much of a senseless nicety that it was deemed a reproach to the law, and to remove all doubt, and to fix a certain venue for the trial of the crime, the statute of 2 and 3 Edward VI was passed, and after reciting in a long preamble the great failures of justice which arose from such extreme nicety, that statute enacted that in cases of striking or poisoning in one county and death ensuing in another the offender could be indicted, tried and punished in the district of county where the death happened, as if the whole crime had been perpetrated within the boundary of such district or county. And by the subsequent statute of 2 George II, chapter 21, it was enacted that, where any person feloniously stricken or poisoned at any place out of England shall die of the same in England, or being feloniously stricken or poisoned in England, shall die of such stroke or poisoning out of England, an indictment thereof, found by the jurors of the county in which either the death or the cause of death shall respectively happen, shall be as good and effectual in law, as well against principals and accessories, as if the offense had been committed in the county where such indictment may be found. The principles or provisions of these two English statutes are not exactly consistent the one with the other, but the statutes of 2 and 3 Edward VI, chapter 24, is not now applicable or in force in this State, whatever may have been the case prior to our own act of 1809 (chap. 138, § 17), and the statute of 2 George II, chapter 21, was never applicable here, as found by Chancellor Kilty in his Report on the English Statutes published in 1811.

ARGUED before Alvey, C. J., and Bryan, McSherry,

Fowler, Briscoe and Page, JJ.

C. C. Crothers, Rob. C. Thackery and G. Y. Maynadier, for appellant.

John P. Poe, Atty.-Gen., for the State.

ALVEY, C. J. This appeal, taken under the act of 1892 (cbap. 506), enacted as section 77, article 5, of the Code, is from the final judgment of the court below, sentencing the appellant to death on a verdict of murder in the first degree. There are two questions raised. The first is on demurrer to the indictment, in respect to the jurisdiction of the court to try the prisoner because of supposed defect of venue as to the commission of the crime, and the second is presented by bill of exception, as to the supposed illegal separation of the jury during the progress of the trial.

(1) As to the demurrer to the indictment. The dictment contains four counts. There is no question made upon either the first or second count, but the third and fourth counts are supposed to be obnoxious to the objection taken to them by demurrer. The demurrer was overruled, and the prisoner then pleaded not guilty, upon which he was tried and convicted. The third count of the indictment charges that the mortal blow was inflicted by the prisoner on the deceased in Cecil county, Md., but that death, in consequence of the wound, subsequently ensued in the city of Philadelphia in the State of Pennsylvania. In the language of the indictment it is charged that the accused, "on the 1st day of February, 1891, with force and arms, at Cecil county aforesaid, in and upon one George Ditmar, in," etc., "then and there being, feloniously, willfully and of his malice aforethought, did make an assault," etc., "and, with a certain stick," etc., "him, the said Ditmar, did then and there, one fatal wound; and of which said mortal wound the said Ditmar, on and from the said 1st day of February, in the year aforesaid, until and upon the 4th day of March, in the year aforesaid, at the county and city of Philadelphia, in the State of Pennsylvania, then and there did languish, and, languishing, did live; on which said 4th day of March, in the year aforesaid, at the county and city last aforesaid, he, the said Ditmar, of the mortal wound aforesaid, died." The fourth count, charging the felonious assault and wounding as in the third, differs from that count in this: that in the fourth count it is charged that the mortal blow was inflicted on the deceased by the accused at Cecil county, Md., with a club, "and that of this mortal wound said Ditmar, on and from the said 1st of February, in the year aforesaid, to the 4th day of March, in the year aforesaid, languished, and languishing, did live, as well at and in the county aforesaid as at and in the county and city of Philadelphia, in the State of Pennsylvania, then and there did languish, and, languishing, did live, on which said 4th day of March, in the year aforesaid, at and in the county and city of Philadelphia aforesaid, to-wit, at and in Cecil county aforesaid, the said Ditmar, of the mortal wound aforesaid, died."

The death occurring in Philadelphia as the result of the mortal wound inflicted in Maryland, the question |

By section 278 of article 27 of the Code, codified from section 17 of the act of 1809 (chap. 138), it is provided that, "if any person be feloniously stricken or poisoned in one county, and die of the same stroke or poison in another county, within one year thereafter, the offender shall be tried in the court within whose jurisdiction such county lies where the stroke or poison was given, and in like manner an accessory to murder or felony committed shall be tried by the court within whose jurisdiction such person became accessory." This statute, as will be observed, conforms neither to the Statutes of 2 and 3 Edward VI nor to that of 2 George II; but it is, as we think is manifest, simply in confirmation or declaratory of the common

law. This, we think, is made clear upon examination of text-writers of high authority, and by judicial decision of courts entitled to great weight in the determination of such a question, and if this provision of our Code be simply declaratory of the common law, as we suppose it to be, the same reason and principle equally apply to the case where the mortal blow or poison is given in any county in this State, and the party so stricken or poisoned shall, in consequence of the blow or poison, die out of the State, within the year and a day after the blow given or poison administered, as to the case provided for by the terms of the statute.

In such case it is the law of Maryland that is violated, and not the law of the State where death may happen to occur. By the felonious act of the accused not only is there a great personal wrong inflicted upon the party assaulted or mortally wounded while under the protection of the law of the State, but the peace and dignity of the State where the act is perpetrated is outraged, and though death may not immediately follow, yet if it does follow as the consequence of the felonious act within the year, the crime of murder is complete. In inflicting the mortal wound then and there the accused expends his active agency in producing the crime, no matter where the injured party may languish, or where he may die, if death ensues within the time and as a consequence of the stroke or poison given. The grade and characteristics of the crime are determined immediately that death ensues, and that result relates back to the original felonious wounding or poisoning. The giving the blow that caused the death constitutes the crime.

Lord Coke seems to have been responsible to a considerable extent for the maintenance of the doubt that was formerly entertained upon this subject. In 3 Inst., at page 48, founding his text on the preamble to the Statutes of 2 and 3 Edward VI, he says: "And before the making of the Statutes of 2 Edward VI if a man had been feloniously stricken or poisoned in one county, and after had died in another county, no sufficient indictment could thereof have been taken in either of said counties, because by the law of the realm the jurors of one county could not inquire of that which was done in another county. It is provided in that act that the indictment may be taken in that county where the death doth happen." The reason assigned for this passage from the Institutes can hardly be accepted as sound at this day; that is, that the jurors of one county cannot inquire of that which is done in another county. But we have the authority of the great Sir Matthew Hale to the contrary of this doctrine of Coke. In 1 Hale's Pleas of the Crown, 426, the author says: "At common law if a man had been stricken in one county and died in another, it was doubtful whether he were indictable or triable in either, but the common opinion was that he might be indicted where the stroke was given, for the death is but a consequence, and might be found in another county," and he cites for this the Year Books 9 Edward IV, page 48, and 7 Henry VII, page 8. And he then proceeds to say that "if the party died in another county, the body was removed into the county where the stroke was given for the coroner to take an inquest super visum corporis." But now," "says the author, "by the Statutes of 2 and 3 Edward VI, chapter 24, the justices or coroner of the county where the party died shall inquire and proceed as if the stroke had been in the same county where the party died," thus showing that the common law was changed by the Statutes of 2 and 3 Edward VI, but that our statute of 1809 (chap. 138, § 17) is simply declaratory of the common law, and according to that law, and to what was plainly Sir Matthew Hale's conclusion from the history of the law, the crime in this case was committed

66

where the fatal stroke was given, and the place of the consequent death was quite immaterial. The authority of the opinion of Lord Hale so plainly indicated in the passage from his work just quoted has been fully recognized by subsequent writers of high repute. Thus in 2 Hawkins' Pleas of the Crown, page 120, section 13, the author says: "It is said by some that the death of one who died in one county of the wound given in another was not indictable at all at common law, because the offense was not complete in either county, and the jury could inquire only of what happened in their own county. But it hath been holden by others that, if the corpse were carried into the county where the stroke was given, the whole might be inquired of by a jury of the same county." And so in 1 East's Pleas of the Crown, page 361, that very learned and accurate writer says: "Where the stroke and death are in different counties, it was doubtful at common law whether the offender could be tried at all, the offense not being complete in either, though the more common opinion was that he might be indicted where the stroke was given, for that alone is the act of the party, and the death is but a consequence, and might be found, though in another county, and the body was removed into the county where the stroke was given." It is not necessary that we should cite other text-writers upon this subject; those we have cited sufficiently indicating the state of the English common law in regard to the question here involved, though expressed with the doubts formerly entertained by some.

The question however does not rest on the authority of text-writers alone; judicial decisions are not wanting upon the subject. In the case of Rex v. Hargrave, 5 Car. & P. 170, tried before Mr. Justice Patteson in 1831, an indictment for manslaughter charged that A. gave the deceased divers mortal blows at P., in the county of M., and that the deceased languished and died at D., in the county of K., and that the prisoner was then and there aiding in the commission of the felony. Upon objection to the sufficiency of the indictment, the learned justice, in overruling the objection, said: "The giving of the blows which caused the death constituted the felony. The languishing alone, which is not any part of the offense, is laid in Kent. The indictment states that the prisoner was then and there present, aiding and abetting in the commission of the felony. That must of course apply to the parish of All Saints, where the blows which constitute the felony were given." And there are many cases in this country which hold that, upon the definition of murder, and the elements that enter into and constitute the crime, the place of the death is wholly immaterial in the prosecution of the offender, except in those cases specially provided for by positive statute; in other words, that the giving of the mortal blow that caused the death constitutes the felony, and the removal of the corpse to the county in which the mortal stroke was inflicted is not required for any purpose connected with the jurisdiction of the court over the crime or the offender. And without stating the facts of each case, wherein these principles have been considered and maintained, we may refer to the cases of Riley v. State, 9 Humph. 646; People v. Gill, 6 Cal. 637: Minnesota v. Gessert, 21 Minn. 369; State v. Bowen, 16 Kans. 476: Green v. State, 66 Ala. 40. In the very cel ebrated case of U. S. v. Guiteau, tried in the District of Columbia in 1881-82, and reported in 1 Mackey, 498, this question of jurisdiction was extensively discussed by counsel, and elaborately considered by the court.

The accused was indicted under section 5339 of the Revised Statutes of the United States, for the murder, by shooting in the District of Columbia, of the then president of the United States, James A. Garfield, who, after receiving the mortal wound, languished for

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more than two months and died in the State of New
Jersey, where he had been taken in the hope of relief.
The contention there was on the part of the prisoner
that the murder was committed only partly within the
District of Columbia and partly within the State of
New Jersey, and therefore there was no jurisdiction |
in the court in the District of Columbia to try aud con-
vict the prisoner for his crime. But this contention
was overruled. It was first considered and overruled
in the Criminal Court, in a very learned and able opin-
ion by Mr. Justice Cox, before whom the case was tried,
and after conviction the case was taken to a session in
General Term of the Supreme Court of the District,
where the decision of the trial court was fully re-
viewed, and the conclusion of Mr. Justice Cox con-
curred in, though for reasons somewhat variant from
those employed by the trial judge. In the opinion of
Judge Cox the common-law authorities sustained the
jurisdiction, but he was further of opinion that the
statute of 2 George II, chapter 21, was in force in
Maryland at the date of the cession of the District by
this State, and consequently was still in force in the
District, and that that statute fully applied to the
case; and while the court of review, sitting in General
Term, agreed in the conclusion arrived at by Judge
Cox, and also in the proposition that the common law
was sufficient for the case, it held that, by the terms of
the statute of the United States applicable to the Dis-
trict of Columbia, which provides that in all places or
districts under the sole and exclusive jurisdiction of
the United States, if a party shall commit the crime of
murder, such person, on being convicted, shall suffer
death, the party inflicting the mortal wound in the
District is guilty of murder, though the death of the
victim subsequently occurs, in consequence of the
wound, in any of the States of the Union; that in such
case the crime of murder becomes complete in the dis-
trict where the mortal wound was given, in the con-
templation of the statute, irrespective of the place of
the death, thus holding that the mortal stroke which
caused the death constituted the felony, and that the
place of death was immaterial to the jurisdiction of
the court to try and convict the offender. But that
was not all that occurred. After the conviction and
review had at the General Term an application was
made to the late Mr. Justice Bradley of the Supreme
Court of the United States for a habeas corpus, on the
ground that the Criminal Court of the District of Col-
umbia had no jurisdiction of the offense, and there-
fore the conviction was void. But that learned jus-
tice, upon consideration of the case, concurred with
the courts of the District of Columbia in holding that
there was jurisdiction of the offense, and that the party
had been properly tried, and therefore dismissed the
petition. And thus ended that memorable case. Both
upon reason and authority therefore this court is of
opinion that the court below was entirely correct in
overruling the demurrer to each and all of the counts
of the indictment, and as there is no cause assigned in
support of the motion in arrest of judgment, that
could be considered on such motion, the court was
also correct in overruling that motion.

(2) The second question presented is one of practice. It arose upon a motion by the prisoner to discharge the jury during the course of trial, because of alleged separation of the jury in the recess of the court. It appears that the entire panel of twelve were placed in charge of the sheriff during a recess of the court from 4:30 P. M. to 7:30 P. M., and were taken to quarters provided at an hotel in the town. Upon reaching the hotel one of the jurors was suffering so much from illness that he had to be allowed to go to bed, but he was alone and was locked in the room by the sheriff. At the hour of reassembling of the court, the other eleven jurors were taken unto the court, but in consequence

of the inability of the sick juror to be present the court adjourned until 10 o'clock A. M. the next day, at which time the whole panel attended. It is not pretended or suggested that the sick juror was approached by any one, or tampered with in any manner. The motion to discharge the panel was founded upon the simple fact that the sick juror had been separated from his fellow jurors before verdict rendered. In overruling this motion the court below certainly committed no error. In the trial of capital cases even there are many occasions when in reason, and a proper regard to the needs of humanity, it may become necessary to allow a temporary separation of the jury, without necessarily breaking up the trial, and that, even after the jury have retired to consider of their verdict; otherwise protracted trials could seldom be brought to a final conclusion. Of course the separation should only be allowed when attended with those precautions and safeguards necessary to secure entire freedom from approach or external influence of any kind. Neal v. State, 64 Ga. 272; State v. Payton, 90 Mo. 220; Coleman v. State, 59 Miss. 484; State v. O'Brien, 7 R. I. 337: Goersen v. Com., 106 Penn. St. 477; People v. Bonney, 19 Cal. 426; 1 Bish. Crim. Proc., §§ 993, 994; 12 Am. & Eng. Enc. Law, 371. But each case rests upon its own peculiar circumstances, and is within the sound discretion of the trial court, and is therefore not the subject of appellate review, except where it is affirmatively shown that the party has been prejudiced by the action of the court.

It follows that the judgment below must be affirmed.

WILLS-CONSTRUCTION-POWER OF SALE

PAYMENT OF DEBTS.

NEW YORK COURT OF APPEALS, NOV. 29, 1892.
IN RE GANTERT.

IN RE JUCH'S ESTATE.

Testator directed his executors to pay all his just debts, and
gave them all his property, both real and personal, under
a common trust, in which all the beneficiaries were to
share equally. The executors were given full power to
sell and convey all the real estate, and there was nothing
in the will restricting the exercise of the power to trust
purposes. Held, that the power of sale was imperative,
and could be compelled in favor of a creditor whose debt
was directed by the will to be paid, and for the satisfac-
tion of which the personal estate is insufficient.
17 N. Y. Supp. 910, affirmed.

APPEAL from Supreme Court, General Term, First

Department.

Petition by Paul Gantert, a creditor, to obtain a sale of the real estate of William A. Juch, deceased, for the payment of debts.

William Langdon (Abner C. Thomas, of counsel), for appellant.

Thomas Allison, for respondents.

MAYNARD, J. The testator made his will November 28, 1887, and died July 1, 1888. He owed unsecured debts to the amount of $30,000, and the net value of his personal property, after the payment of the expenses of administration, did not exceed $1,025. It is to be inferred that this was the condition of his property at the time of the execution of the will, as it does not appear that any change had occurred intermediate that date and his death. He owned real estate of the estimated value of $73,500, exclusive of the incumbrances upon it. He appointed his wife, one of his sons and a friend the executors and trustees of his will, and he first orders and directs them to pay all his just debts and funeral expenses as soon after his decease as may

be convenient. He then gives all his property, both real and personal, to his executors and trustees, upon certain specified trusts for the benefit of his wife and three minor children, and in the concluding paragraph of the instrument appoints the executors and trustees, and couples the appointment with a power in these words: "Giving and granting unto my said execu tors and trustees full power and authority to sell and convey any and all my real estate, either at private sale or public auction, and to make, execute and deliver good and sufficient conveyances therefor." The paragraph closes with a specific authority to mortgage the real estate for certain purposes, which it is not important to consider here. The petitioner is a general creditor to the amount of $3,750, who has been unsuccessful in his efforts to secure the payment of his debt out of the personal estate, because of the deficiency of assets, and has brought this proceeding under the provisions of the Code (§§ 2749-2801) to obtain a liquidation of his demand by the sale of the real estate of the decedent. It is conceded that he is entitled to the relief sought, unless the testator's real property is, by the terms of his will, subject to a valid power of sale for the payment of debts and funeral expenses. § 2759, subd. 4. It is true, as the learned counsel for the petitioner contends, that a power of sale to pay debts, sufficient to defeat the creditor's application under the statute, must be one the exercise of which is imperative, and not simply discretionary. The creditor cannot be deprived of his statutory remedy unless the debtor has, by his testamentary act, provided him with another, which is equally prompt and effective in its operation. But we think the authority conferred by this will is adequate to secure to the petitioner the accomplishment of the ultimate design of this proceeding. When read in connection with its other provisious, we cannot regard the direction to the executors and trustees to pay all just debts as an idle and meaningless formula. The testator well knew that his will in this respect could not be obeyed without a sale of some part of his real estate, and it is to be presumed that he intended to clothe them with a power commensurate with the duties and obligations imposed upon them. He evidently had in view a complete adjustment of the affairs of his estate by the agents of his own choice, in whom he reposed especial confi. dence.

Whenever a power or authority to sell is given without limitation, and is not in terms made discretionary, and its exercise is rendered necessary by the scope of the will and its declared purposes, the authority is to be deemed imperative, and a direction to sell will be implied, provided the design and purpose of the testator is unequivocal, and the implication so strong as to leave no substantial doubt, and his intention cannot otherwise be carried out. Scholle v. Scholle, 113 N. Y. 261; Chamberlain v. Taylor, 105 id. 194; Hobson v. Hale, 95 id. 598. We are referred to many other cases where it has been held that a power of sale is not available for the payment of debts, but they are all cases where the power was either discretionary, or limited to some other specific purpose, or where it could not be exercised without breaking up and destroying the scheme of the will, and frustrating the intention of the testator. Kinnier v. Rogers, 42 N. Y. 531; Scholle v. Scholle, supra; In re McComb, 117 N. Y. 378; In re Bingham, 127 id. 296 If the testator has specifically devised designated portions of his realty, or imposed them with separate trusts, the presumption is very strong, and usually controlling, that he did not intend that these dispositions of his property should be overturned by the exercise of a general power of sale. A direction to sell for the payment of debts cannot be implied in such cases, because, in order to sustain the structure of the will, there must be implied a direction not to sell for

such a purpose.

No difficulty of this kind is in the way here. The real and personal property is blended in one gift to the executors for a common trust, in which all the beneficiaries share equally. In such cases the exercise of a general and unlimited power of sale is imperative, and may be compelled in favor of any party who is lawfully entitled under the provis ions of the will to the proceeds of the real property when sold. A creditor whose debt is directed by the will to be paid, and for the satisfaction of which the personal estate proves insufficient, belongs in this class. He is beneficially interested in the exercise of the power, and as to him it becomes a power in trust, and under the statute every such power, unless its execution or non-execution is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled in equity, for the benefit of the parties interested. 4 Rev. Stat. (8th ed.), p. 2448, § 96. Such a power does not interfere with the order in which the assets of a decedent's estate must be marshalled for

the payment of debts. The personalty must first be exhausted; and if that fails, the execution of the power may be resorted to and compelled so far as necessary to meet the deficiency.

In a case like the present the debts are not made a charge upon the real estate. It is a naked power to sell for the payment of debts, and the decisions which prescribe the rule to be observed in determining whether there is a charge upon the realty have no application. In re City of Rochester, 110 N. Y. 159; Clift v. Moses, 116 id. 144; In re Powers, 124 id. 361; In re Bingham, 127 id. 296. If the debts were so charged there would be no occasion for the exercise of the

power of sale. They would then be a lien upon the realty, enforceable in equity by a sale of the property, without the intervention of the authority of the executors. At common law a devise of real estate, after a direction by the testator that his debts be first paid, was deemed equivalent to a charge of the debts upon the real property devised. Trott v. Vernon, Prec. Ch. 430; Williams v. Chitty, 3 Ves. 545. This liberal rule of interpretation was undoubtedly adopted for the reason that in England there was no statute until 1833 which rendered the real estate of all decedents liable for the payment of their simple contract debts. But in this State there have been statutes in force for over a century (Laws 1786, chap. 27) authorizing the sale of a decedent's real estate to pay debts, and it has been uniformly held that, because of the existence of this remedy, an intent to charge debts upon real estate must appear from express direction, or be clearly gathered from the provisions of the will. It cannot be inferred or implied. In this respect the rule is different as to legacies. Clift v. Moses, supra. It is of some significance that the testator directs his debts to be paid by his executors and trustees, and that the power of sale is given to them in the same dual capacity. The suggestion of a trust seems to pervade the entire instrument, and to characterize the duties imposed and powers created by it.

There has been some discussion by counsel and in the opinions of the referee and surrogate as to the validity of the trusts created for the benefit of the testator's wife and minor children, but we are unable to perceive how a determination of that question becomes material upon this appeal. If the power of sale is limited to the purposes of the trust it is not imperative but discretionary. There is no discretion, express or implied, in the will to sell the real estate, and convert it into personalty for the purposes of the trust, until the youngest child becomes of age, or until his death, if he does not survive his minority. In fact the terms of the will are such that the testator seems to have contemplated that his executors and trustees

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might deem it expedient to hold the real estate meanwhile, or some portions of it, for he has authorized them to pay the interest on the mortgages, and to execute new mortgages for the purpose of retiring those which become due and demandable. They might sell at any time for the advantage of the trust, if in their judgment it was thought advisable; but they could not be compelled to do so until the expiration of the trust term, and hence the existence of a power limited to such purposes could not be invoked to defeat this proceeding. If the power had been effectually exercised in part, the proceeds could be treated as assets available for the payment of debts, and until exhausted there could be no recourse against the other lands of the decedent. Erwin v. Loper, 43 N. Y. 521; Hood v. Hood, 85 id. 561; Glacius v. Fogel, 88 id. 434; In re Powers, 124 id. 361. But we think that the power is not limited to the trust scheme, but was bestowed for the purpose of enabling the executors to faithfully discharge all the obligations of the will, and that the petitioner, as a beneficiary of the power, can compel its execution.

North Missouri Railroad Company, their successors and assigns, as long as the same shall be required and used for the purposes of a railroad, and no longer, the said right of way to be confined to that part of said land south of the farm on the same.' The plaintiff never joined her husband in the execution of said conveyance, and has not siuce released or relinquished her right of dower in said land. The North Missouri Railroad Company was at the time and prior to the execution of said deed a railroad corporation, duly organized and chartered under the laws of the State of Missouri, and as such then had lawful authority to construct a railroad from St. Louis to Kansas City, through Chariton county. The North Missouri Railroad Company had a right to acquire a right of way for its railroad either by voluntary conveyance or by condemnation. The conveyance above described was the only one executed by plaintiff's husband, and no condemuation proceedings were ever instituted for acquiring a right of way over the said lands. Immediately after the execution and delivery of said deed, the North Missouri railroad took possession of the strip of land described in the petition, and constructed and operated thereon a line of railway. The defendant has succeeded to all the right, title, interest and estate of the said North Missouri Railroad Company in said lands, as fully and completely as the same was originally conveyed by plain

TO PUBLIC USE-OPINION OF LEGAL PRO- tiff's husband to said North Missouri Railroad Com

FESSION.

pany. The defendant is a railroad corporation, organized under the laws of Missouri on the 30th day of September, 1887, and has since that date been in the exclusive possession of a strip of land described in the petition, and has maintained thereon the roadbed and embaukments constructed by said North Missouri Railroad Company, and operated its trains thereon. The consideration of one dollar recited in the deed was never paid, nor were any damages ever paid to plaintiff's husband for the injury, if any, doue the remainder of said lands by the construction and maintenance of its said line of railway. Plaintiff's husband was seised in fee and was in possession of all of said lands described in the petition at the time of his death, except the strip now held and used by defendant, as aforesaid. Said lands constitute one farm or plantation, whereon his dwelling-house was situated, and where he resided with his family at the time of his death. Plaintiff, his widow, by herself and her tenants, has ever since remained in possession of said dwelling-house and farm. No dower has ever been assigned said widow in any of the lands described in the petition. The embankment complained of in the second count of plaintiff's petition was constructed by the North Missouri Railroad Company in the early part of 1868, more than twenty years before the institution of this suit. Said embankment was, when so first constructed, and has ever since remained, a permanent structure, and no change has ever been made in said embankment since its first construction aforesaid. This action was instituted by the widow in 1888."

The order appealed from must therefore be affirmed, with costs.

All concur.

MARRIAGE - DOWER-LAND DEDICATED

MISSOURI SUPREME COURT, NOV. 14, 1892.

VENABLE V. WABASH WESTERN RY. Co.

A conveyance to a railroad company of a right of way through
the grantor's land, and of as much land adjacent to such
right of way as may be necessary for the construction of
the railroad, is a dedication to the public use, and the
grantor's widow is not entitled to dower in the land so
conveyed, though she did not join in the deed.
The opinion of the legal profession on a question, given and
acted on for a great many years, without litigation, is evi-
dence of what the law on such question is.

THE
THE plaintiff by her petition herein claims dower in
a strip of ground one hundred feet wide and two
hundred and seventy-five rods long, which the defend-
ant company occupies as a right of way, and as inci-
dent to such claim she asks damages because of being
deforced of her dower; this is, in substance, the first
count of her petition. The second count of the peti-
tion seeks to recover damages by reason of the railroad
of the defendant dividing the farm into irregular par-
cels, thereby impairing its value, and by reason of em-
bankments thrown up in the building of the railroad,
whereby about fifty acres of said land were rendered
wholly untillable and worthless. The cause was tried
on the following agreed statement of facts: "The
plaintiff is the widow of Jacob M. Venable, to whom
she was lawfully married in 1846, and with whom she
lived as his wife until his death, in 1882. During the
coverture of plaintiff, on the 19th day of October, 1865,
her husband, then lawfully seised in fee of the lands
described in the petition, executed, acknowledged and
delivered to the North Missouri Railroad Company a
deed, now duly recorded, conveying to said company
'the right of way for the construction, operation and
use of the west branch of the North Missouri railroad
over and through any land owned by him in the county
of Chariton, in said State, the same being situ-
ate in sections 10, 11, 14 and 15, township 53,
range 19, the said right of way to have the extent
of one hundred feet in width through said lands,
or as much more as may be necessary for the actual
construction and operation of said railroad, according
to the nature of the ground,' upon the following condi-
tion: "To have and to hold the same unto the said

A. W. Mullens, Thomas Elliott and Crawley & Son, for appellant.

F. W. Lehmann and George S. Grover, for respoud

ent.

SHERWOOD, J. 1. The first and the controlling question the record presents is whether the plaintiff is entitled to demand dower in the defendant company's right of way. Touching the validity of such a demand in circumstances similar to those here related, an author of recognized authority says: "(1) In the time of Henry III, the Great Charter of King John was so amended as to withhold from the widow the privilege of quarantine in the castle of her husband. "This,'

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