upon such death the interest she would have | agricultural and are used by the owners for had should go to her children. If this is farming, grazing, and stock raising, and as the proper construction, not only the inter- rural residences, and no part is laid out into est of Rose Kline, but that of her mort-village blocks, or lots, and there are no gagee, was terminated by her decease.

streets, alleys, or thoroughfares except the

The decree of the district court is af public highway "on the section line dividing firmed.

MARSH et al. v. VILLAGE OF TRENTON. (No. 16,663.)

section 2, township 2, range 33 from section 35, township 3, range 33," and which road was laid out by the county commissioners and extends many miles east. (c) That the case was submitted on the petition of the plaintiffs Frank C. Marsh, John C. Stalter,

(Supreme Court of Nebraska. Sept. 28, 1912.) George Hirschfield, John H. Brown, Ralph

(Syllabus by the Court.)

1. MUNICIPAL CORPORATIONS (§ 33*)-DETACHMENT OF TERRITORY FROM VILLAGE PROCEEDINGS-APPEAL.

Upon an appeal from the judgment of the district court under section 8978, Ann. St. 1909, to detach territory from a village, the judgment of the district court will be affirmed, unless it is made to appear that the trial judge committed an important mistake of fact or made an erroneous inference of fact or of law. Bisenius v. City of Randolph, 82 Neb. 520, 118 N. W. 127; Gregory v. Village of Franklin, 77 Neb. 62, 108 N. W. 147: Michaelson v. Village of Tilden, 72 Neb. 744, 101 N. W. 1026.

S. Otis, Nannie Marsh, and Mattie Stalter, the amended answer of the defendant, the village of Trenton and the reply, and the evidence, and that the court found in favor of the said plaintiffs named (the name of the plaintiff Thornhill being omitted from the list), and the territory disconnected by the judgment of the district court includes only the tracts indicated on plat "Exhibit A" as the Hirschfield, Stalter, Marsh, and Brown tracts, leaving the Thornhill tract, including what had been a part of Wayne street and an unplatted tract west of it, between the Brown tract and the village, and also leaving between the Hirschfield tract and the village three small unplatted tracts and the park and a part of that territory formerly platted as "Wayne street of the [Ed. Note.-For other cases, see Municipal village of Trenton"-all the land east of the Corporations, Cent. Dig. 88 81-97; Dec. Dig. village and between the Brown tract and the 33.*]

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 81-97; Dec. Dig. 8 33.*]

2. MUNICIPAL CORPORATIONS (§ 33*)-VILLAG

ES-TERRITORY-DETACHMENT.

Evidence examined and found to sustain the judgment of the district court.

Rose, J., dissenting.

Appeal from District Court, Hitchcock County; Orr, Judge.

Petition by Frank C. Marsh and others against the Village of Trenton for the detachment of certain territory therefrom. Judgment for plaintiffs, and defendant village appeals. Affirmed.

W. S. Morlan, of McCook, for appellant. J. W. Cole, of Culberson, and C. E. Eldred, of McCook, for appellees.

Hirschfield tract being left out of the judgment detaching the territory, and Wayne street seems to have been vacated after the

proceedings were begun, and therefore an uncertain quantity of land approximating 40 acres more or less has been left unplatted between the village and the land sought to be retained in the village, and the east line of sections 35 and 2 are now the east boundary line of the corporate limits of the village of Trenton. (d) That the territory sought to be detached is no part of the village, does not conduce to the welfare of the village or its citizens, except that its retention in the village would enable the raising of more revenue, but that the assessment, levy, and collection thereof would be unjust and inequitable.

HAMER, J. The appellees, Frank C. Marsh, John C. Stalter, George Hirschfield, and five other persons, filed their petition in the office of the clerk of the district court of Hitchcock county, seeking to have certain territory therein described detached from the village of Trenton in said county. In addition to the allegations that they are legal voters, except as to a part, and the exclusive owners and in possession of said territory, they say in their petition: (a) That when the village was incorporated large tracts of wild, grazing, and purely agricultural lands "in all directions from and outside of the platted lots, blocks, streets, and alleys of said village," including the lands and territory sought to be detached, were incorporated in said village. (b) That the lands and territory sought to be detached are purely the record.

The plat filed with the petition shows the relative size of the several tracts sought to be detached. The amended answer admits the incorporation of the village and that the plaintiffs respectively reside on and own the lands described in their petition. Also alleges the lien of $6,000 in bonds upon all lands included in the village. The reply is a general denial. The land detached by the judgment of the court is as follows: Nannie Marsh's land, 5 acres ; John H. Brown's land, 8.75 acres; Mattie Stalter's land, 300 feet by 634 feet; George Hirschfield's land, 300 feet by 300 feet. The land in question is shown by the plat attached to

It is urged in the appellant's brief that | tuted for the annexation of territory to a these parties carry on business in the village municipality to consider and determine or perform their official duties at the court- whether that real estate would receive matehouse in Trenton as county officers; that rial benefits, and also whether justice and they and their families got their mail at the equity required such annexation. village post office; that they trade at the village stores and send their children to the village school and use the village streets and enjoy the convenience of having their purchases delivered by the merchants; and that they partake equally of all the benefits and advantages of village organization and government, along with the other inhabitants of the place. It is also said that the tracts are used chiefly as residences, but that they have small orchards, gardens, and alfalfa patches and keep domestic animals in the way of horses, hogs, and cows. The judgment of the district court granted the petition of the plaintiffs except as to the plaintiff Thornhill, whose name is dropped from the proceedings.

It is contended by the appellant, the village: (1) That the petition does not state facts sufficient to constitute a cause of action; (2) that the finding and decree of the court is not sustained by sufficient evidence, and that the testimony introduced by the applicants clearly establishes the fact that the village could "reach out and connect the territory," and for that reason that the dis

trict court should not have granted the peti

tion.

It is urged that the petitioners "should not be allowed to secede over the objections of their fellow villagers." Section 8978, Ann. St. 1909, provides, among other things, that "if the court find in favor of the petitioners, and that justice and equity require that such territory, or any part thereof, be disconnected from such city or village, it shall enter a decree accordingly." The case of Village of Hartington v. Luge, 33 Neb. 623, 50 N. W. 957, is cited in support of the appellant's contention that the land might be annexed to the village, and therefore that it should not be disconnected. In the opinion in that case it is said: "It will be seen that to justify the annexation of territory it must appear that such territory, or some part, would receive material benefit from the annexation, or that justice and equity require such annexation. Unless one of these conditions exist, there is no authority in a village board or the district court to annex territory"; but in the opinion it is said: "If this action could be sustained upon the facts pleaded and prayed, then a village might annex a whole township or county, as such annexation could be placed upon the same grounds as it is sought to predicate this action upon. This cannot be permitted." It may be a little difficult to determine exactly what "justice and equity" require in this sort of case. In City of Wahoo v. Dickinson, 23 Neb. 426, 36 N. W. 813, it was held that the court had power in a proceeding insti

In Bisenius v. City of Randolph, 82 Neb. 520, 118 N. W. 127, it is said by Mr. Justice Root, speaking for this court, that in State v. Dimond, 44 Neb. 154, 62 N. W. 498, “we adopted from the opinion of Mr. Justice Mitchell in State v. Village of Minnetonka, 57 Minn. 526, 59 N. W. 972, 25 L. R. A. 755, a definition of the conditions essential to vest county commissioners with power to incorporate territory within a municipality; that is, such lands must have some unity of interest with the platted portion, in the maintenance of a village government.'" Mr. Justice Post is quoted as saying in the opinion in State v. Dimond, supra, “that the rule applied is not only reasonable, but safe and logical."

[1] This court has said in the third paragraph of the syllabus in Bisenius v. City of Randolph, supra: "Upon an appeal in an ac tion under said statute (section 8978), the judgment of the district court will be affirmed, unless it is made to appear that the trial judge committed an important mistake of fact or made an erroneous inference of fact or of law." It would seem that the

foregoing rule disposes of this case. In that

case Judge Root in the body of the opinion says: "Plaintiff's realty forms two compact tracts of farm land aggregating over 200 acres, separated only by a road; that not only is this land not platted, but there intervenes between it and the platted portion of defendant unplatted real estate used for pasturage." In the instant case there is an unplatted tract between the village and the land sought to be detached; also, the land detached is not cut up into lots and blocks and streets and alleys. Judge Root in the case cited further says: "None of the munic ipal improvements extend to plaintiff's said property, and he devotes said real estate to farming purposes exclusively." All that is said in the case cited surrounding the failure of municipal improvements to extend to the plaintiff's property applies to the instant case. In the case cited it was alleged and proven that the village was ready to furnish the plaintiff with electric lights. Notwithstanding that fact, this court, through Judge Root, says: "Notwithstanding this evidence, we are of opinion that the land under consideration does not have a unity of interest with the platted part of said city in the maintenance of municipal government, and that the district court ruled correctly in so finding. We are bound by these findings unless it appears that the trial judge committed an important mistake of fact or an erroneous inference of fact or of law, and that he has not done." The opinion cites Michaelson v. Village of Tilden, 72 Neb. 744, 101 N. W. 1026, and Gregory v. Village of Franklin, 77

Neb. 62, 108 N. W. 147. The authorities cited upon appeal in the absence of a showing that sustain the position taken.

In Michaelson v. Village of Tilden, this court held that a judgment of the district court in a proceeding under the statute to detach territory from a municipal corporation would not be impeached upon appeal in the absence of a showing that the trial judge committed an important mistake of fact, or made an erroneous inference of fact or of law. The foregoing is substantially the syllabus adopted in that case. The cases seem to be on a parallel with the instant case. The action was a proceeding by the owners in severalty of contiguous tracts of land to procure their detachment from the village of Tilden. Commissioner Ames wrote in the body of the opinion: "In the absence of evidence of any specific fact or circumstances tending to impeach the justice of the decree, we do not see how we can intelligibly revise it." He says that the trial judge was probably personally familiar with the land and with the village and with the situation and surroundings, and that his judgment may have been influenced "by evidence of the most weighty character. *If the record disclosed anything from which it might be contended that the judge committed an important mistake of fact, or had made an erroneous inference of fact or of law, the case would be other than it now is, and might call for a review, and a reversal or affirmation of his findings." The learned commissioner concludes: "We do not see how his determination can be impeached for want of equity, in the absence of apparent error in some of the respects named."

*

the trial judge committed an important mistake of fact, or made an erroneous inference of fact or of law." He says: "There is certainly nothing before us in this record that shows either a mistake of law or fact by the trial judge. The right to have unplatted farm lands disconnected from the corporate limits of cities and villages has been asserted by this court in actions entirely independent of this section of the statute." He concludes with the statement that "there is nothing in the answer of the village which interposes an equitable objection to the prayer of the petition." The judgment of

the district court was affirmed.

In Village of Wakefield v. Utecht, 90 Neb. 252, 133 N. W. 240, section 8977, Ann. St. 1909, was construed and was "held broad enough to permit a village located upon the border of one county, in a paper case, to annex contiguous territory situated in an adjacent county"; but it was held that the burden of proof, "in an action to annex additional territory to a village, is upon the village to establish by sufficient averments and evidence that the territory sought to be annexed will be benefited by the annexation, or that justice and equity require that such territory be annexed." It was held that the evidence was insufficient to sustain the decree which annexed certain territory to the village of Wakefield.

In Winkler v. City of Hastings, 85 Neb. 212, 122 N. W. 858, it was held that, "where legislative power to detach territory from a city has been delegated by statute to the mayor and council, an appeal from the action of In Gregory v. Village of Franklin, 77 Neb. that body in refusing to disconnect particu62, 108 N. W. 147, it was held: "A judgment lar tracts cannot be made the means of transof the district court, in a proceeding under ferring such power to the district court." In the statute, *** to detach territory from that case the court cited City of Hastings a municipal corporation, will not be impeach- v. Hansen, 44 Neb. 704, 63 N. W. 34, where ed upon appeal in the absence of a showing it was held that "the power to create municithat the trial judge committed an important pal corporations and the power to enlarge mistake of fact or made an erroneous in- or restrict their boundaries are legislative ference of fact or of law." The former case powers; and it has been doubted if the Legof Michaelson v. Village of Tilden, 72 Neb. islature can pass a valid act giving courts 744, 101 N. W. 1026, was followed and ap- jurisdiction to disconnect by decree any part proved. In that case the village contended of the territory of a municipal corporation that at the time of its incorporation it had of the state merely at the suit of the owner a population of 290, and that its population thereof." Judge Rose, in delivering the opinhad increased until the village contained 900 ion of this court in Winkler v. City of Hastinhabitants; that the plaintiffs became sev-ings, said that the form in which the act erally owners of said land a long time after amending section 4 of the charter in that the incorporation with full knowledge that case was passed conferred upon the mayor the land was included within the corporate and council authority to detach territory limits of the village. It was admitted that the land was used for agricultural purposes, but alleged that it was adapted to being cut up into residence lots. Commissioner Oldham, in writing the opinion of this court in the case last cited, emphasizes the hold-detaching territory on demand of a landowning of the court in Michaelson v. Village of Tilden, 72 Neb. 744, 101 N. W. 1026, to the effect that a judgment in a proceeding under the statute, "to detach territory from a mu

by ordinance, and that the same was legislative; that, "in attempting to confer the same power upon the district court by direct appeal from the action of the mayor and council, if they refuse to pass an ordinance

er, the Legislature did not observe the following provisions of the Constitution: # 串 串 Const. art. 2, § 1. This section of the Constitution prohibits the judicial department

The judgment of the district court is affirmed.

SEDGWICK, J. I concur only in the re sult affirming the judgment of the district

court.

ROSE, J., dissents.

HEYWOOD et al. v. HEYWOOD et al
(No. 16,665.)

(Supreme Court of Nebraska. Sept. 28, 1912.)
(Syllabus by the Court.)
1. WILLS (§ 439*) — CONSTRUCTION — INTEN-
TION OF TESTATOR.

The provisions of a will, like all other con-
tracts, must be construed with a view of carry-
less there is something in it contrary to the
ing out the intention of the testator; and, un-
law of the state, or in contravention of public
policy, it will not be declared invalid. St.
84 N. W. 273, 83 Am. St. Rep. 553.
James Orphan Asylum v. Shelby, 60 Neb. 796,

ing to the legislative department, and the | the judgment of the district court seems to effort to confer upon the district court leg- be fully warranted. islative authority to sever agricultural and horticultural lands from the city of Hastings in the manner described invalidates the amendment to section 4 of the Hastings charter." In the opinion he distinguishes between the principle involved in the instant case and City of Hastings v. Hansen, and Winkler v. City of Hastings, supra. Section 1, art. 3, c. 13, Comp. St. 1901, provides that cities having more than 5,000 and less than 25,000 inhabitants shall be governed by the provisions of this act and be known as cities of the first class. Section 4 provides that the corporate limits of such city shall remain as heretofore, and the mayor and council may by ordinance include therein all the territory contiguous or adjacent which has been subdivided into parcels containing not more than five acres, and in the same way may compel the owners of lands so brought within the corporate limits to lay out streets, ways, and alleys, and may vacate any public road to secure regularity in the system. Section 5 provides that land shall be deemed contiguous to such city, though a stream, embankment, or strip of land not more than 200 feet in width lies between said land and the corporate limits of the city. Section 6 authorizes the proprietor of land within the corporate limits or contiguous to the same to lay out and plat into lots and blocks and streets and alleys and to acknowledge the instrument before an officer and to dedicate the streets and alleys to the use of the public, and to file and record the instrument in the office of the register of deeds when it shall have the effect of a deed in fee simple conveying the same from the proprietor to the city. Power is given the city through its mayor and council by ordinance to vacate any plat or addition as the city may deem for its best interests, the power to be exercised upon the petition of the owner. It was this power directly conferred by statute upon cities of the first class to which Hastings belongs that gives such cities exclusive jurisdiction to detach territory and to vacate platted parts of the city. This authority does not belong to towns and villages.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. § 439.*] 2. CONSTRUCTION OF WILL-DEVISE OF LAND -OMISSION IN DESCRIPTION.

The testator was the owner of a 240-acre farm "in Pleasant Valley township," otherwise described as the west half of the northwest quarter of section 13, and the south half of the northeast quarter, and the east half of the southeast quarter, of section 14, all in township 19 of range 5 east of the sixth principal meridian in Dodge county, on which resided his two sons, Joseph Heywood and Thomas J. Heywood, who were farming the same, and to whom he desired to devise the said farm, subject to the life estate of his wife, Katherine Heywood, and he so informed the witness who drafted the will, and who then made a rough draft of the proposed will from which he shortly afterwards prepared the will itself, leaving out of it one of the three 80's which constituted the farm. At the time the will was made, the testator only owned one farm "in Pleas ant Valley township," and he owned, in township 19 of range 5 east, the 240 acres of land above described, and no other land in that township, so that the land is identified with the particular farm intended to be devised to the two particular sons so named in the will. 3. WILLS (§ 487*) — CONSTRUCTION — INTENTION-EXTRINSIC EVIDENCE.

be gathered from the will itself and from the Where the intention of the testator is to extrinsic evidence of facts surrounding its execution, such extrinsic evidence is admissible for the purpose of ascertaining whether a state of facts existed at the time the will was written which corresponded with the words used and the aim of the testator. Such evidence may not be admitted to vary the terms of the will, or to add anything to it, so as to arrive at an intention not expressed in it, but to harmonize the language used by the testator with the facts referred to, and thus to arrive at the testator's intention as expressed in the will; and a ruling which makes the will and the facts inconsistent is not to be adopted.

[2] Under the rule laid down in Bisenius v. City of Randolph, supra, and the decisions of this court upon which the opinion in that case is based, the judgment of the district court was properly exercised, and there appears to be no reason for setting aside its judgment. As announced in Bisenius v. City of Randolph, Michaelson v. Village of Tilden, and Gregory v. Village of Franklin, supra, a judgment in a proceeding under the statute "to detach territory from a municipal corporation will not be impeached upon appeal in the absence of a showing that the trial judge committed an important mistake of fact, or made an erroneous inference of fact or of law." There is no such showing, and *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Wills. Cent. Dig. §§ 1023, 1026-1032; Dec. Dig. § 487.*]

4. WILLS (§ 487*) - CONSTRUCTION-DEVISE | Metschke, the sum of five hundred dollars OF REAL PROPERTY-DIRECTION.

To my son Edward Heywood, the east half of southwest quarter of section 10, and [1] "It is a rule, in construing deeds or the east half of the northwest quarter of wills, that the intention of the grantor or section 15, all in township 19, range 6, Dodge testator, as manifested by the words of the county, Neb. To my son Nick Heywood the writing in connection with surrounding cireast half of the northwest quarter section cumstances, must be carried into effect, pro10, township 19, range 6, and the south half vided in so doing no rule of law is violated of the southwest quarter of the southwest or sound policy disturbed." Pool v. Blakie, quarter of section 15, township 18, range 6, 53 Ill. 495. This rule was adopted by this Dodge county, Neb. Fourth. Each one of court in McCulloch v. Valentine, 24 Neb. 215, my sons is to pay whatever incumbrance 38 N. W. 854, and in Lesiur v. Sipherd, 84 there may be against the tract of land he is Neb. 296, 121 N. W. 104. The language used to receive. Fifth. To my daughter Annie in the syllabus in St. James Orphan Asylum