(113 A.) In Appeal of Reaver's Executors, 96 Md. 736, 54 Atl. 875, 94 Am. St. Rep. 610, it is said: No objections were made to the probate | else they shall be utterly void, and of no efof the will, although notice appears to have fect. been given to the proper parties in interest and the orphans' court on the 17th day of February, 1920, after hearing evidence as to the validity of the will, ordered and decreed that it be admitted to probate as the true and genuine last will and testament of Catherine Shane, deceased. The paper writing was not dated nor witnessed on the paper itself, but, as stated in the record, "the aforegoing paper writing was brought into this court in an envelope, which had been opened, and on which was written" the attestation clause set out herein, and signed by the three named witnesses. The petition to revoke and vacate the probate of the will was filed on behalf of the daughter, Frances L. Wooley, and a son, William A. Shane, of the testatrix, and alleges that the probate of the will and the letters of administration with the will annexed granted thereon were improperly issued: First, that the paper writing was not valid as a will because it was not executed in accordance with the law of the state of Maryland providing for the execution of wills; second, that the paper writing was null and void on its face as a will, because it had not been subscribed by two or more witnesses, as required by law. The defendants, George A. Shane, Sr., the husband, and a son, George A. Shane, Jr., answered the petition, denying the allegations set forth therein, and asked that the petition be dismissed upon the ground that the will was valid and executed as required by the laws of the state. The case was heard upon petition, answer and testimony taken in open court, and the orphans' court of Caroline county held that the petitioners were entitled to a decree revoking the order admitting the will to probate, and also the letters of administration c. t. a. which had been granted to George A. Shane. And from an order passed on the 9th day of March, 1920, so declaring, the present appeal has been taken. The controlling facts upon which the decision of the case must turn are undisputed, and the record presents for consideration the single question whether the proof as to the execution and attestation of the will in this case is sufficient, under the statute, to justify its admission to probate. [1] By section 323 of article 93 of the Code (Bagby's), it is provided that all devises and bequests of any lands or tenements, or interest therein, and all bequests of any goods, chattels, or personal property of any kind, as described in section 319, shall be in writing, and signed by the party so devising or bequeathing the same, or by some other person for him, in his presence and by his express direction, and shall be attested and subscribed in the presence of the said devi "The provision of the statute of this state that a will must be attested and subscribed by the witnesses," etc., "had its origin in the statute of frauds, and is substantially the same as that in force in most of the states and in England." Dec. 666; Gross v. Burneston, 91 Md. 383, See Higgins v. Carlton, 28 Md. 140, 92 Am. 46 Atl. 993. While there is no provision of the statute of this state, which requires, in terms, that the attestation clause and the signatures of the witnesses shall be at the end of the will, or at any particular place of the will, as in some of the states of the Union, the weight of authority, however, appears to be that the witnesses must sign, either upon the same sheet as the signature of the testator, or on some sheet physically connected with it, to constitute a valid will. In the recent case of Brengle v. Tucker, 114 Md. 602, 80 Atl. 226, this court, said: "To subscribe means that the witnesses shall sign their names to the same paper for the purpose of identification, and implies that attestation has been performed." The statute was passed to remove uncertainty in the making of wills, and to prevent the practice of imposition and fraud upon testators. In re Baldwin, 146 N. C. 25, 59 S. E. 163, 125 Am. St. Rep. 466, the Supreme Court of that state said: "The authorities hold that the attestation or subscription by witnesses must be on the same sheet of paper as that which contains the testator's signature, or else upon some paper physically connected with that sheet." In the Goods of Braddock, 1 Law Reports Pro. Div. (1875–76), Sir J. Hannen said: "In this case the witnesses, instead of attesting the signature of the testatrix on the paper itself, attested on the back of the original will, to which that paper was attached by a pin. The law does not require that the attestation should be in any particular place, provided that the evidence satisfies the court the intention of attesting. But the attestathat the witnesses in writing their names had tion, if not on the same sheet of paper as the signature of the testator, must be on a paper physically connected with that sheet," and the probate will be sustained. And to the same effect are the cases of Soward, etc., v. Soward, 1 Duv. (Ky.) 134; Bolton v. Bolton, 107 Miss. 85, 64 South. 967; In re Perrine's Will, 109 Misc. Rep. 459, 180 N. Y. Supp. 335. cutors, and Administrators, vol. 1, § 336, | orphans' court of Caroline county, dated the 9th day of March, 1920, and appealed from states: "But the attestation or subscription by wit-in this case, will be affirmed. Decree affirmed, with costs. WERBER v. ALPER. (No. 5484.) nesses must be on the same sheet of paper Mr. Alexander, in his commentaries on the Law of Wills, vol. 1, p. 676, thus states the law, as supported by authority: "If the will consists of several sheets of paper, it is not necessary that each sheet be signed by the witnesses, but the signatures of the witnesses must be either upon the same sheet as the signature of the testator, or on some sheet physically connected with it." See A. & E. Ency. of Law, vol. 30, p. 603; Jarman on Wills, p. 215; Rood on Wills, §§ 292, 297; 6 Corpus Juris, 554; In re Moro (Cal.) 190 Pac. 168, 10 A. L. R. 422; § 50, art. 13, p. 279. Code, [2] Under the facts shown by the record in the present case, the attestation or subscription by the witnesses was not on the same sheet of paper as that which contained the testatrix's own signature, nor was it upon a paper physically connected with that sheet. On the contrary, Mrs. Shane signed her name at the foot of the alleged will, which was contained on one sheet of paper, and, after folding it, she placed it in an envelope and sealed it. The attestation clause and the signature of the witnesses were then written across the sealed portion of the envelope, and on the outside thereof. We think, the orphans' court of Caroline county was right in revoking the probate of the alleged will in this case, because it is obvious, under the authorities cited, the formalities prescribed by law in the execution of wills have not been complied with to constitute a valid will. [3] The validity of a will, under all the authorities, is made to depend upon the instrument's being properly attested and subscribed by two or more credible witnesses, as provided by the statute, and, unless the statute is complied with in this respect, the devises and bequests are, in the language of the statute, "utterly void and of none effect." 1921.) May 16, New trial 69-Court may consider credibility of parties. In an action on a note, which the defendant denied having executed, the court, on a motion for new trial, following a verdict for the plaintiff, was properly influenced by his opinion as to the credibility of the plaintiff and the defendants. PER CURIAM. This is an action of assumpsit to recover upon a promissory note alleged to have been delivered by the defendant to the plaintiff for money loaned. The case was tried before a justice of the supe rior court sitting with a jury, and resulted in a verdict for the plaintiff. On motion of the defendant said justice granted a new trial. The case is before us upon the plaintiff's exception to the decision of said justice granting a new trial. The evidence in the case was conflicting. The defense was an unqualified denial of the allegations that the defendant borrowed the money in question and made the note in suit. In passing upon the motion for new trial, said justice naturally and properly was influenced by his opinion as to the credibility of the plaintiff and the defendant. An examination of the transcript discloses many circumstances which arouse suspicion as to the validity of the plaintiff's claim. The decision of said justice amounts to a finding that the verdict fails to do justice between the parties. We are unable to say that said justice erred in that finding. The plaintiff's exception is overruled. The case is remitted to the superior court for a For the reasons stated, the decree of the new trial. (113 A.) PER CURIAM. This is an action of trespass on the case for negligence, and is before this court on the plaintiff's exception to the action of a justice of the superior court in directing a verdict for the defendants upon the close of the testimony. The declaration avers that the plaintiff was driving his motor truck in a southerly direction upon South Main street in the city of Providence, and while proceeding with due care he was obliged to stop upon the railway track in said street on account of an obstruction in his way of travel; that a servant of the defendants, operating one of its electric cars in a southerly direction on said track, at a rapid rate of speed, and while the plaintiff's truck was in full and plain view of said servant, and at a sufficient distance to enable him to stop said electric car before reaching said truck, did not stop the electric car, but negligently ran it into the rear of said truck, damaging it, and causing personal injuries to the plaintiff. nesses, is to the effect that when the plaintiff. drove his truck upon the car track the electric car was not in sight, or was so far away that it could be stopped before reaching the truck. They also testified that there was nothing to obstruct the vision of the motorman and that he did not slow down the electric car until after the collision. The defendants' witnesses testified to the effect that the plaintiff drove his truck onto the car track within such a short distance of the electric car that the motorman could not stop it in time to avoid a collision. [1, 2] The averments in the declaration presented the question of the "last clear chance" and were supported by the plaintiff's testimony. Fillmore v. R. I. Co., 42 R. I. 102, 105 Atl. 564. It is well settled that a verdict should not be directed for the defendant if, on any reasonable view of the testimony, the plaintiff can recover. Reddington v. Getchell, 40 R. I. 463, 101 Atl. 123; Baynes v. Billings, 30 R. I. 53, 73 Atl. 625. It was error for the court to direct a verdict for the defendants upon the conflicting testimony, and the plaintiff's exception thereto is sustained. The case is remitted to the superior court with direction to grant a new trial. GERMAIN v. L'UNION ST. JEAN BAPTISTE D'AMÉRIQUE. (No. 5491.) (Supreme Court of Rhode Island. May 17, 1921.) Appeal and error 78 (3)-Exceptions to overruling of demurrer not entertained until issues of fact are tried. Exceptions based on the overruling of demurrers will not be entertained, where the decision overruling the demurrer permits the action to proceed to a determination of issues the issues of fact have been tried. of fact tendered by the pleadings, until after Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Action by Wilfrid Germain against L'Union St. Jean Baptiste d'Amérique. From action of the court in sustaining plaintiff's demurrer to a special plea, defendant brings exceptions. Bill of exceptions dismissed, and case remitted for further proceedings. Eugene L. Jalbert, of Woonsocket, for plaintiff. Adelard Archambault, of Woonsocket, for defendant. The court ruled that the evidence proved that the plaintiff was guilty of contributory negligence in driving his truck upon the track in front of the electric car, and directed a verdict for the defendants. The testi PER CURIAM. This is an action brought Jean Baptiste d'Amérique to recover the proceeds of a benefit certificate upon the life of one Alcide Germain, a brother of the plaintiff, in which certificate the said plaintiff is named as the beneficiary. stands and raises questions of fact which have not yet been determined. The defendant's bill of exceptions is dismissed, and the case is remitted to the superior court for further proceedings. (43 R. I. 473) (Supreme Court of Rhode Island. May 24, 1921.) 1. Taxation 665-Tax collector may include his reasonable charges as compensation in tax sale. The plaintiff's declaration alleges that on the 16th day of May, 1913, the defendant, a domestic and fraternal society, issued upon the life of Alcide Germain a benefit certificate, in which the defendant agreed to pay GORDON et al. v. QUINN et al. (No. 468.) to Wilfrid Germain, the plaintiff, upon the death of Alcide Germain the sum of one thousand dollars; that the designation of said plaintiff as the beneficiary of said Alcide Germain was made in accordance with the by-laws of said defendant society; that on the 12th day of April, 1918, said Alcide Germain was instantly killed while in action on the Western Front as a private in the Canadian Expeditionary Force during the late war; that at the time of his death said Alcide Germain was in good standing with said defendant society; that he (the plaintiff) was still the duly designated beneficiary of said Alcide Germain and entitled, therefore, to demand and receive the proceeds of said benefit certificate; that in all particulars said plaintiff has complied with the requirements of the by-laws of said defendant society; and that the defendant, although often requested, has refused and still refuses to pay the sum demanded with interest. To this declaration the defendant pleaded the general issue and also filed a special plea in bar alleging that the said Alcide Germain, previous to his departure for the seat of war, gave his certificate of insurance in the defendant company to his sister, Aurore St. Sauveur, who thereafterwards made the required payments thereon and became substituted as the beneficiary thereunder by the issuance of a new certificate to her by the defendant. The plaintiff demurred to this special plea on various grounds which need not be specifically set forth at this time. The superior court sustained the demurrer, the defendant took an exception, and now comes to this court alleging that the court below erred in sustaining said demurrer. The defendant is here prematurely. This court has held that exceptions based on the overruling of demurrers will not be entertained where the decision overruling the demurrer permits the action to proceed to a determination of issues of fact tendered by the pleadings until after the issues of fact have been tried. Frank et al., Receivers, v. Broadway Tire Exchange Co., 42 R. I. 27, 105 Atl. 177; Troy v. Providence Journal Co., 43 R. I. 22, 109 Atl. 705. The present case comes within these decisions. The plea of the general issue still In the sale which Gen. Laws 1909, c. 60, § 12, provides that the collector shall make of so much of a parcel of land liable for payment of taxes as is necessary to pay the tax, interest, costs, and expenses, so far as no statute fixes the amount of his compensation he may include as expenses a reasonable charge for performance of his duties, and also sums necessarily paid out by him in connection with the levy and sale. 2. Taxation 665-Tax collector should item ize his charges included in tax sale. It is better practice for tax collectors to itemize their charges which they include in the amount for which property is sold at tax sales. 3. Taxation 665-Tax collector may charge for deed for each of several lots sold to same person. As the tax collector cannot assume that sev eral lots required to be separately assessed and 665-Reasonable charge of tax collector in giving notice of levy properly included in tax sale. In addition to the 50 cents fee for levy Laws 1909, c. 62, § 4, and chapter 364, § 11, which a tax collector is allowed under Gen. he is entitled to reasonable compensation for giving notice thereof by posting which is properly included in amount for which tax sale is made. (113 A.) Suit by Hamilton A. Gordon and others such sale certain illegal and excessive against Robert J. Quinn and others. De amounts for expenses, and hence, in disre cree for complainants, and respondents ap- gard of the provisions of the statute, he sold peal. Reversed and remanded, with direc- more of each of said parcels than was necestion to dismiss. sary. Quinn & Kernan, of Providence, for appellants. Alfred G. Chaffee, of Providence, for appel lees. PER CURIAM. This is a bill in equity to remove a cloud upon the complainants' title to certain land. It appears that the complainants were the owners of 38 house lots upon a certain plat in the town of Warwick. The value of each of said lots was small; and the tax assessed against each of said lots on December 14, 1914, was very small. The complainants are nonresident heirs at law of a former owner, and appear to have been unaware of their ownership of said lots at the time said tax was due and payable. Said tax was not paid upon said lots, and for such nonpayment the lots were sold at public auction by the tax collector of the town of Warwick to the respondent Robert J. Quinn. At such auction sale it was necessary to sell the whole of each lot in order to pay the tax, interest, costs, and expenses charged against such lot. A separate deed for each lot was delivered by the tax collector to said Robert J. Quinn. After hearing in the superior court a final decree was entered adjudging said tax sale to be illegal, that said deeds purporting to convey title to said land constituted a cloud upon the title of the complainants, and were illegal and void. The decree ordered that said deeds be canceled. The case is before us upon the respondents' appeal from said decree. Section 12, c. 60, General Laws 1909, provides for the sale of real estate for nonpayment of taxes and is as follows: "In all cases where any parcel of real estate is liable for payment of taxes, so much thereof as is necessary to pay the tax, interest, costs and expenses, shall be sold by the collector, at public auction to the highest bidder, after notice has been given of the levy, and of the time and place of sale, in some newspaper published in the town, if there be one, and if there be no newspaper published in the town, then in some newspaper published in the county, at least once a week for the space of three weeks, and the collector shall also post up notices in two or more public places in the town for the same period." Under said section the tax collector is authorized to sell so much of any parcel of land as is necessary to pay the tax in arrears upon such parcel together with the interest upon the tax and the collector's legal costs and expenses. The contention of the complainants is that the tax sales now in question are void for that the tax collector sought to obtain at Besides the tax and interest, the amount of costs and expenses to recover which the collector sold each lot was as follows: Levy, $1; advertising $1; preparing advertisement $1; examining title, drawing deed, auctioneer's fees, etc., $4-a total of $7. [1] In the absence of statutory provision fixing the amount of his compensation, the collector would be entitled to include as expenses a reasonable charge for the performance of such duties as the law imposes upon him, and also the sums necessarily paid out by him in connection with the levy upon the sale of the real estate for unpaid taxes. We [2, 3] With regard to the last item of $4, among the expenses claimed by the collector, there is no evidence tending to show that the charge is excessive for the matters included, and it does not appear to us to be so. think, however, that the collector should have specified his charge for each of the expenses included therein. It does appear in evidence that his charge for drawing the deed was $2, and the complainants contend that this charge was illegal, because all of the 38 lots of the complainants were sold to the same purchaser, and the collector should have made one deed for the whole, and not 38 separate deeds. This objection of the complainants overlooks the requirement of the law that each parcel shall be assessed separately. The collector, in order to recover the tax, interest, and expenses upon a lot, was obliged to sell such lot or so much thereof as was necessary, and in making the sale he was obliged to state the total of his charges against the lot, in order that a purchaser might determine what part of the lot he would be willing to take for the amount of the tax, interest, and expenses. As the collector could not assume before the sale of a lot that such lot would be sold to the same person who purchased the other 37, the collector was obliged to include in the expenses chargeable against such lot a charge for drawing his deed to the lot or to such part thereof as it would be necessary to sell. We do not regard this objection of the complain ants as valid. [4] The only statutory provision fixing the amount of a tax collector's fees and regulating his charges for expenses in connection with the levy upon and sale of property for unpaid taxes is contained in section 4, c. 62, General Laws 1909, which, among other things, provides: "In case of distraint of personal property, or levy on land, the collector shall have the same fees as sheriffs have in similar cases." Under section 11, c. 364, General Laws 1909, a sheriff is allowed a fee of 50 cents for |