Estate of Kirkendall: Cramer's Appeal. Such violent and inharmonious changes of the law, by construction, carrying the language of a statute beyond what appears to have been in the mind of the legislature, ought not to be favored. And I am of opinion that a sound construction. of the final clause of sec. 4 confines it, as a limitation, to the right of the half blood to inherit with the whole blood of the same degree. I am equally clear that it cannot apply to personalty. Personalty might indeed come by gift from a living ancestor. But title to it cannot come from a deceased ancestor. And as the clause appears to me to be confined to inheritance of what the intestate inherited, I am inclined to hold the word gift, coupled with descent and devise, to signify gift in some way taking effect upon the death of the ancestor. Noscitur a sociis. Personalty, except heir-looms or limbs of the inheritance which descend with it to the heir (Co. Lit., 18 b; 1 Williams' Exec., 790), is never inherited. Upon the owner's death, the legal title goes to the executor or administrator. "As estates of inheritance or freehold descendible shall go to the heir, so chattels, as well real as personal, shall go to the executors or administrators." Co. Lit., 388 a. Under a will, the right to a legacy comes by the bequest; upon intestacy, the right to distribution comes by blood. But in both cases, the right is subject to the administration of the estate, and therefore defeasible. Upon default of the executor or administrator, the right becomes a mere right of personal action against him. In any case, when title to personalty comes to legatee or distributee, it comes from the executor or administrator, not from the testator or ancestor. The title of the executor or administrator intervenes between testator and legatee, between ancestor and next of kin. Pending the administration of the estate, the legatee or next of kin has no title. His right is not jus in re, but only jus ad rem, suspended and dependent on the administration; a right to title from the executor or Estate of Kirkendall: Cramer's Appeal. administrator, to what may remain upon settlement of the estate. And personalty, coming by either legacy or distribution, has no quality of inheritance. Schuyler v. Hoyle, 5 Johns. Ch., 196; Roorbach v. Lord, 4 Conn., 347. This is not only stricti juris, but the transitory and changeable nature of personalty appears generally to exclude ancestral character. Practically, it might be not merely difficult, but impossible, to distinguish the personalty of an intestate derived under different ancestors and acquired by himself. And not only the terms used, but the nature of the provision, appear to me to confine the last clause of sec. 4 to realty. Of course as it stands in ch. 92, it expressly relates to realty only. And I cannot think that ch. 99, in providing for the distribution of personalty to the same persons entitled to realty by descent, was intended to give to personalty an ancestral character, which it never had before and which is generally inconsistent with its nature. Indeed it appears to me that the word inheritance in sec. 4, essential to the meaning of the provision, ex vi termini excludes personalty. Applying the provision to personalty, we might substitute distribution for descent and bequest for devise; but I know of no word or phrase applicable to personalty, which could stand as a substitute for inheritance. For inheritance here expresses not only the thing but the title. And it is an additional reason to me for regarding personalty as essentially non-ancestral, that I know of no word in the terms of the law to signify in relation to it, what inheritance does in relation to realty. By the Court.-The judgment of the circuit court is affirmed. Smith vs. Ehanert. SMITH VS. EHANERT. EVIDENCE. How far party may contradict his own witness. 1. Although the general rule is, that a party cannot impeach the general reputation for truth of his own witness, yet he may prove the truth of any particular fact relevant to the issue by any other competent testimony, in direct contradiction of what one of his witnesses has testified, even where such proof may collaterally show such witness to be generally unworthy of belief. 2. Thus, in an action on a promissory note alleged by the answer to have been without consideration, after plaintiff, as a witness for defendant, had testified that the note was for the price of specified chattels sold by him to defendant, the latter was entitled to show by his own testimony that he was not indebted to plaintiff on account of such chattels when the note was given. APPEAL from the Circuit Court for Waukesha County. Action on a promissory note. Verdict for the plaintiff'; new trial denied; and judgment rendered on the verdict; from which the defendant appealed. E. Fox Cook, for appellant. Frank B. Van Valkenburgh, for respondent. COLE, J. The plaintiff, when called as a witness for the defendant, among other things, testified as to the indebtedness due him from the defendant, which constituted the consideration of the note in suit. He stated, in substance, that the note was given for some cord-wood, sheep and wool, which he sold the defendant at the time the note was executed. To meet that testimony, and as relating to the same matter, the defendant was asked on his examination, whether at any time he owed the plaintiff for cord-wood and on account of sheep. The question was objected to, on the ground that a negative answer would tend to discredit or contradict the statements of the plaintiff on the same point; and the testimony was excluded. We are really unable to perceive any valid objection Smith vs. Ehanert. to the question under the circumstances, and think that the defendant should have been permitted to answer it. The inquiry surely related to one of the principal facts in issue, and the answer might have been important. One ground of defense was, that the defendant was not indebted to the plaintiff on any account or in any sum whatever, and that the note was wholly without consideration. The plaintiff had testified as to such indebtedness and what it was for. Why should not the defendant be allowed to show, if he could, that no such indebtedness existed? The general rule doubtless is, that a party calling a witness to prove his case, will not be permitted, because the witness gives testimony adverse to him, to show that the witness's general reputation for truth is bad. But to this rule there are exceptions. Says Prof. Greenleaf: "It is exceedingly clear that the party calling a witness is not precluded from proving the truth of any particular fact, by any other competent testimony, in direct contradiction to what such witness may have testified; and this not only where it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of showing that he was generally unworthy of belief." 1 Greenl. Ev., § 443. The learned counsel for the plaintiff further insists that the question was improper for the reason that it was too general, and was leading. No such ground of objection, however, was taken on the trial, and it would manifestly be unfair to allow such an objection now to prevail, to justify the ruling of the court below. But the counsel also insisted that the testimony, in effect, was afterwards admitted and went to the jury. This position is not sustained by the record. It is true that the defendant afterwards stated in his examination, that when he took possession of the farm which he had purchased of the plaintiff, there were upon it "about sixteen to twenty cords of wood," piled. This wood, he said, he bought of the plaintiff, hauled away and sold. He was then asked if he had ever paid Blesch vs. The Chicago & Northwestern Railway Company. for this wood; he answered "yes." He was further asked "when;" the answer to that question was objected to, and excluded. There his examination on that point ends. It is very evident that the answers given do not cover or embrace the entire ground of indebtedness sworn to by the plaintiff. Therefore, without considering the other questions discussed by counsel, we think there must be a new trial on account of the error in excluding the testimony above referred to. By the Court.-Judgment of the circuit court reversed, and a new trial ordered. BLESCH VS. THE CHICAGO & NORTHWESTERN RAILWAY COM PANY. RAILROADS: ACTION: DAMAGES. (1) When entry of railroad company on lands a trespass. (2-4) Measure of damages. 1. Where a railway company, without the consent of the owner, and without having acquired a right to the land in the manner provided by statute, takes possession of land for which it is liable to make compensation (in this case land forming part of a public street, but the fee of which was in the plaintiff), it is liable in an action of trespass; and the neglect of the owner to proceed by injunction to restrain the company from constructing its road on such land, is not a waiver of his right of action for the trespass. Sherman v. The M., L. S. & W. Railway Co., 40 Wis., 645, and earlier cases in this court. 2. In an action for such a trespass, it was error to give instructions implying that plaintiff was entitled to recover the difference between the value of the use of the premises with the railroad constructed and used as it was, with all its inconveniences, and the value of such use as it would have been with the railroad where it was, but without such inconveniences. 3. The damages recoverable in this case could not exceed the difference between what would have been the rental value of the premises (during the continuance of the trespass, down to the commencement of the action), in case there had been no railroad on the street, and its actual rental value with the railroad constructed and operated as it was. |