2. Vendor's lien; waiver; burden and sufficiency
it in the hands of the payee, although he does not surrender the
note of his original debtor, the vendor. Linn v. Bass, 281.
proof.-On a sale
and conveyance of land, part of the purchase-money being paid in
cash, and the purchaser's individual note taken for the balance,
a vendor's lien is presumptively retained, in the absence of an
agreement to the contrary, or of attendant circumstances repel-
ling such presumption; if the note recites that it is given for
the unpaid balance of purchase-money, and the purchaser is in-
solvent, these facts strengthen the presumption, and it is not
overcome by the execution of the conveyance to his wife and chil-
dren; nor is the uncorroborated testimony of the purchaser's
wife, after his death, sufficient to establish an express agree-
ment to waive the vendor's lien, in the face of these and other
facts inconsistent with it. Chapman v. Peebles, 283.
3. Sale of real and personal property at gross price.-Where the con-
tract of sale embraces both real and personal property, and no
data are furnished by which to ascertain that a separate and
definite price was fixed for the land, there is an implied waiver
of a vendor's lien. Alexander v. Hooks, 605.
WAREHOUSEMAN. See PRINCIPAL AND AGENT, 4.
1. Revocation of will by marriage and birth of child.-The implied re-
vocation of a will by subsequent marriage and birth of issue, un-
der the statute of Alabama (Code of 1886, § 1953), is based on a
presumed alteration of intention, arising from changed circum-
stances, new relations and duties; and the presumption is made
conclusive, unless provision is made for the after-born child, or
an intention not to make provision is shown in the will; but the
presumption may be rebutted by a se:tlement providing for the
child, made after as well as before the execution of the will. Gay
v. Gay, 38.
2. Same; provision for child by ante-nuptial contract.-When provision
for the after-born child is made by gift or settlement, the nature
and extent thereof are left to the discretion of the testator as
when made by will, except that it must not be so grossly inade-
quate as to be the equivalent of no provision; and an ante-nuptial
contract, by which, in consideration of the marriage and the re-
linquishment by the wife of all interest in the estate of the hus-
band and testator, real and personal property is conveyed to her,
in trust to hold the same during life or widowhood, with remain-
der to the issue of the marriage living at his death, or at the time
of her second marriage, and, on the death of such issue unmar-
ried, then to the heirs at law of the testator, is prima facie a sub-
stantial provision for the after-born child, and rebuts the pre-
sumption of revocation. Ib.
3. Adopted child; statutory rights of.-Under statutory provisions reg-
ulating the adoption of children (Code of 1876, § 2745; Code of
1886, § 2367), an adopted child is declared "capable of inheriting"
the estate, real or personal, of the adopting parent; but the
statute is confined to cases of intestacy, or property left undisposed
of by will; and gives the adopted child no right to share with a
child of the testator under the provisions of a will, devising prop-
erty to the testator's "children," executed before the adoption,
and not afterwards changed. Russell v. Russell, 48.
4. Probate; death of subscribing witnesses; secondary evidence.-Two
of three subscribing witnesses to a will being shown to be dead,
the signatures of the deceased witnesses may be proved by per-
sons who knew their hand-writing. Snider v. Burks, 53.
5. Evidence; proof of handwriting.--For the purpose of determining
the genuineness of the signature of a deceased witness to a will,
it is improper to exhibit to a witness papers not in evidence in
the case, purporting to be signed by the deceased witness, for
comparison with the attesting signature on the will. Ib.
6. Evidence; probate of will; competency of devisee to prove execution;
Code of 1886, § 2765.--On the contested probate of a will, the pro-
ponent, who is a party and interested as a legatee, is a competent
witness under the statute (Code of 1886, § 2765), to prove the ex-
ecution of the paper; and this, although the proponent be the
sole devisee under the wil!. Ib.
7. Probate; proof of execution; evidence.-On contested probate of a
will, the question being the execution thereof by deceased, evi-
dence that deceased was a person of reticent habits; that he owed
debts to a larger amount than stated in the will, a note and mort-
gage held against deceased, and evidence as to money of de-
ceased's estate claimed by proponent of will, and which had come
into hands of witness, should all be excluded as irrelevant. Ib.
8. Validity of; partiality of testator.--A will, in other respects valid,
is not affected by any mere partiality, caprice, or unequal distri-
bution of property by the testator, or by his failure to provide
for the payment of his debts. Ib.
9. Probate of; sufficiency of evidence.--The amount of proof as to the
proper execution of a will, in the particulars required by statute,
need only be such as is reasonably sufficient to satisfy the minds
of the jury as to such fact. Ib.
10. Probate of; due execution; charge.-On the contested probate of a
will, a charge to the jury that if they believe from the circum-
stances that the will was executed, signed by the testator, and
subscribed by two witnesses, then they may find that the will
was duly executed, is defective in omitting to state that the wit-
nesses must have signed in the presence of the testator. Ib.
11. Probate of; execution in duplicate; loss of copy; presumption.—It
appearing on the contested probate of a will, that the testator ex
ecuted the will in duplicate, keeping one copy, and giving the
other to his wife, and it does not appear what the wife did with
her copy, and it is not shown that the wife's copy ever went back
into the possession of the testator, the inference is that the will
sought to be probated is the copy retained by the testator; and
no presumption of a revocation based upon the fact that he de-
stroyed the copy retained by him can arise. Ib.
12. Homestead; right of widow and children; disposition of property by
will.-The right of the widow and minor children to the exemp
tion of the homestead under § 2543, Code of 1886, providing for
the exemption from administration of the homestead of any resi-
dent of the State, is not barred by the attempted disposition of
the property by the decedent in his will. Bell v. Bell, 64.
1. Wills; evidence; probate of will; competency of devisee to prove exe-
cution; Code of 1886, § 2765.--On the contested probate of a will,
the proponent, who is a party and interested as a legatee, is a
competent witness under the statute (Code of 1886, § 2765), to
prove the execution of the paper; and this, although the propon-
ent be the sole devisee under the will. Snider v. Burks, 53.
2. Evidence; competency; conversation with deceased.-An administra-
tor brought detinue for a mule, introducing evidence of a conver-
sation between his intestate and one E. that the mule was sold
conditionally by his intestate to E., from whom defendant derived
title. Held, that E. was not a competent witness to deny the con-
versation (Code of 1886, § 2765). Miller v. Cannon, 59.
3. Criminating questions; adultery and fornication.-A witness can
not be compelled to answer any question, the answer to which
would tend to criminate him, or would constitute a necessary link
in the chain of testimony sufficient to convict him of a criminal
offense; and therefore, on the trial of a common prostitute as a
vagrant, a witness can not be required to answer whether he has
had sexual intercourse with her. E parte Boscowitz, 463.
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