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be understood as conclusive, but prima facie, and in the absence of satisfactory evidence to the contrary, it amounts to conclusive proof. The effect of the rule, and we believe it must be salutary, will be to throw the onus of proving probable cause on the defendant. A proper regard to the rights and safety of debtors exposed to a charge easily made, and sometimes difficult to explain, demands stringent rules." So, in Baldwin v. Weed (1837) 17 Wend. (N. Y.) 224, it was said: "But while I am of opinion this action for a malicious prosecution cannot be maintained upon the safe and established principles which govern it, I should regret if the defendant should escape without proper responsibility for the cruel, unnecessary, and oppressive manner in which he caused the execution of the warrant of the governor of Vermont. This feature in the case has undoubtedly imparted much of the importance that has been justly attached to the suit; for, without it, I cannot think an action for a malicious prosecution would have been thought of. An action for trespass, assault, and false imprisonment should have been brought, and was the appropriate remedy for the excess of authority and abuse of the process. 1 Chitty, Pl. 185; 6 Bacon, Abr. 556, note, title, Trespass; 2 Saunders, Pl. & Ev. 515. If any doubt has heretofore existed whether case might not also be sustained, it is, I apprehend, removed by the Revised Statutes, 2 Rev. Stat. 553, § 16. The case of Rogers v. Brewster (1809) 5 Johns. (N. Y.) 125, seems also an authority independently of the Revised Statutes. The declaration should have contained a count for the abuse of the process, and which would have reached this particular objectionable conduct of the defendant, so highly outrageous and indefensible. The court would probably yet permit a count to be added, covering this ground of action."

But in Grist v. White (1914) 14 Ga. App. 147, 80 S. E. 519, it appeared that a bale of cotton, which had been sold, was levied on in the hands of the purchaser under a claim against the seller. The purchaser, immediately after

the levy, swore out a warrant charging the seller with a crime, and caused him to be arrested and placed in the county jail until the following day, when he was released. The reason for the arrest was alleged to be the recovery of the money paid for the bale of cotton. For the damages suffered because of the arrest, the present suit was instituted. In an official syllabus it was said that no action for the malicious use or abuse of criminal process would lie.

Recovery has been allowed in an action for malicious prosecution, for the use of criminal process to collect a debt. Grist v. White (Ga.) and Prough v. Entriken (Pa.) supra. See also Wood v. Graves (1887) 144 Mass. 366, 59 Am. Rep. 95, 11 N. E. 567, wherein it was held that the termination of the prosecution is essential to a suit in that form. See, to the contrary effect, Baldwin v. Weed (1837) 17 Wend. (N. Y.) 224.

In Holley v. Mix (1829) 3 Wend. (N. Y.) 350, 20 Am. Dec. 702, a recovery was allowed in an action for false imprisonment, it appearing that the plaintiff had been arrested and confined on a criminal charge, to enforce the payment of a civil obligation.

In Marlatte v. Weickgenant (1907) 147 Mich. 266, 110 N. W. 1061, the court held that an action on the case would lie to recover damages caused by the use of criminal process for the extortion of money. It was said: "While assumpsit may be the remedy most usually sought for redress of extortion of money, it is not, on principle, an exclusive remedy. The wrong committed by extorting money from its owner by means of an abuse of criminal process is not different in character from extorting, by the same means, his horse, or his ox, or his ass, or any other thing that is his. In either case an action on the case is permissible."

IV. Measure of damages.

The recovery, for the use of criminal process to collect a debt, is not restricted to the value of the money or property obtained by the use of criminal process, but a recovery may also be had for the damages resulting.

McClenny v. Inverarity (1909) 80 Kan. 569, 24 L.R.A. (N.S.) 301, 103 Pac. 82; Marlatte v. Weickgenant (1907) 147 Mich. 266, 110 N. W. 1061. Thus, in the case last cited, it was said: "Nor do I think that damages for such an injury will, in all cases, be restricted to the value of the money or property obtained. If there be circumstances of aggravation, additional damages may be allowed."

So, in in McClenny v. Inverarity (1909) 80 Kan. 569, 24 L.R.A. (N.S.) 301, 103 Pac. 82, wherein it appeared that a mortgagor had been forced to borrow more money than was due on the mortgage note, because of his ar

rest, the court held that he was entitled to recover the amount that he was forced to borrow, plus damages caused by the publicity of the custody, threats made, display of force, and intimidating methods used. The court said: "It does not follow that the plaintiff should not recover had payment been suspended. The $250 may be an item of damages, but not necessarily the only one. The man was publicly held in custody, threats made, a display of force indulged in, and intimidating methods used. There is no arbitrary rule of law restricting the recovery to the sum wrongfully obtained." R. C. L.




REES DAVIES, Exr., etc.

Kansas Supreme Court - March 6, 1915.

(94 Kan. 474, 146 Pac. 1147.)

definition of "devise."

1. In the section of the Wills Act providing that "any married person having no children may devise one half of his or her property to other persons than the husband or wife" (Gen. Stat. 1909, § 812), the word "devise" is used in its popular sense, and relates to the disposal of personalty as well as real estate.

[See note on this question beginning on page 246.]

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APPEAL by the widow of Michael L. Breen, deceased, from a decision of the District Court for Clay County (Kimble, J.) that collateral relatives of deceased were entitled to one half of all his property. Affirmed.

The facts are stated in the opinion of the court.

Mr. W. T. Roche for appellant. Messrs. F. L. Williams and James L. Hogin for appellee.

Mason, J., delivered the opinion of the court:

Michael L. Breen, a married man

(94 Kan. 474, 146 Pac. 1147.)

having no children, died testate. By the terms of his will, his widow was to have one half of all his property, and collateral relatives the other. She elected not to accept the provisions of the will, but to take what she was entitled to under the statute. The sole question presented is whether the collateral relatives were entitled to one half of all the property, or to one half of what should remain after setting apart to the widow the exempt personal property owned by the testator at the time of his death. The district court took the view first stated, and the widow appeals.

In 1875, it was decided that as the statute then stood, if a widow. upon the death of her husband, he dying testate without surviving issue, elected to take under the law, she would be entitled to the whole of his estate, whatever might be the provisions of the will. This decision was based upon the statutory language that a widow who does not elect to take under her husband's will "shall retain her share of the real and personal estate of her husband as she would be entitled to by law in case her husband had died intestate." Barry v. Barry, 15 Kan. 587. In 1883, a new section (Laws 1883, chap. 163, § 1) was added to the act in relation to wills, reading as follows: "Any married person having no children may devise one half of his or her property to other persons than the husband or wife." Gen. Stat. 1909, § 9812. A preliminary contention is made by the appellant that this section affects only real property, inasmuch as it uses the word "devise" and not "bequeath." "Devise," however, is used with respect to the disposal of personal property in statutes as well as in wills. 3 Words & Phrases, p. 2047; 14 Cyc. 284. In the case cited it was said that the word "bequeath" in the section. there construed (Gen. Stat. 1909, § 9811) probably means "devise and bequeath." Such has undoubtedly

Will-definition of "devise."

been the interpretation placed upon it, and the term used in the subsequent statute should be given a similarly elastic meaning. In Carmen v. Knight, 85 Kan. 18, 116 Pac. 231, a will was upheld by which a childless wife disposed of one half of all her property otherwise than to her husband, but the point suggested was not raised.

The principal contention of the appellant is based upon the provisions of the statute relating to setting apart to the widow the exempt personal property owned by her husband at the time of his death. The following are the sections by which the matter may be affected:

"In addition to her portion of her deceased husband's estate, the widow shall be allowed to keep absolutely, for the use of herself and children of the deceased, all personal earnings and personal property of the deceased, which were exempt to him from sale, execution, garnishment and attachment, at the time of his death." Gen. Stat. 1909, § 3484, as amended by Laws 1911, chap. 189, § 1.

"If there be no children, then the said articles shall belong to the widow; and if there be children and no widow, said articles shall belong to such children," Gen. Stat. 1909, § 3485.

"The property to which the widow and children may be entitled under the second preceding section shall be stated separately in the inventory, and shall not be appraised, except such part thereof as may be necessary under the fourth and sixth subdivisions of said section; and such property shall be retained by the widow and children, and in no case shall it be liable for the debts of the deceased." Gen. Stat. 1909, § 3486.

"After allowing to the widow and children of any deceased intestate of this state the homestead provided in the next section of this act, and the personal property and other allowances provided by law respecting executors and administrators and the settlement of the es

tates of deceased persons, the remainder of the real estate and personal effects of the intestate, not necessary for the payment of debts, shall be distributed as hereinafter provided." Gen. Stat. 1909, § 2935.

Provisions for setting apart spe

Executor and administrator

widow's allow

ance-statutory construction.

cific property to the widow on the death of her husband have been held to be entitled to a liberal construction for her benefit, and to apply where there is a will, as well as in the case of intestacy. 3 Enc. L. & P. 265. The statutes which are interpreted in the many decisions on the subject are so different from each other, and from those here involved, that a review of them is not regarded as advisable. The question is whether the law which authorizes a husband who has no children, to will to others than his wife one half of his property, means that he may so dispose of one half of all his property, or of one half of what remains after the exempt portion has been set off to his wife.


The law as it existed prior to 1883 contained two provisions in apparent conflict with each other. The statute, then as now, provided that any person of full age and sound mind, owning property of any sort, might dispose of it by will (Gen. Stat. 1909, § 9776), but that one spouse should not (except by consent) will more than half of it away from the other (Gen. Stat. 1909, § 9811). This was in effect a declaration that a married person could dispose of one half of his property by will in any way he might see fit. But the statute, then as now, provided that, if the wife elected not to accept the provisions of the will, she should retain such share of her husband's property as she would have received had he died intestate. In the case of a widow who renounced the will of her childless husband, in which he undertook to give to others one half of his property, the question arose as to which provision of the statute

should control,-that which apparently gave him the right to make a valid disposition of half of his prop erty as he saw fit, or that which said that his wife might, at her pleasure, take it all by the Law of Descents, notwithstanding any will he might make. In the Barry Case it was decided that the latter provision should control the former. The Act of 1883 was manifestly passed in view of this decision, and with the intent to change the law as there announced. Literally, it did no more than declare the law as it already existed. But its obvious purpose and effect were to prevent the rule as newly announced, that a childless husband might dispose of half of his property by will, from being subordinate to the other rule that his widow might, at her election, take just what the statute would have given her had there been no will. The old rule, that the widow who elects not to take under the will of her childless husband gets just what the law would have given her had there been no will, is modified by the new declaration, so that now, in that event, the will controls to the extent of one half of the property, and by the operation of the Law of Descents she receives the remainder. Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815. The Statute of 1883, being the later expression of the legislative purpose, should also control in the case of a seeming conflict with any of the provisions above quoted. We conclude that the trial court rightly decided that the will operated to dispose of all of the testator's property, including the exempt personalty.

Will-power of disposition.

The judgment is affirmed..


The reported case (RE BREEN, ante, 238), in extending the statutory word "devise" to personal property, follows what is denominated as the "Minority rule" in the annotation be

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1. A statutory provision that when any estate shall be devised to one who dies before the testator, leaving descendants, such descendants shall take the estate in the same manner as the devisee would have done had he survived the testator, does not apply to personal estates where the Statute of Wills, which is of long standing, uses the words, "devise, legacy, and gift," correctly in the common-law sense, and never interchangeably. [See note on this question beginning on page 246.]

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APPEAL by objector from a decree of the District Court for Washoe County (Stoddard, J.) distributing the estate of Jennie Lewis, deceased. Affirmed.

Statement by McCarran, J.:

On the 24th day of June, 1914, Jennie Lewis, a widow, died, leaving an estate consisting of both real and personal property within the county of Washoe, state of Nevada. As to the disposition of this estate, she left a last will and testament, which last-named instrument was duly admitted to probate in the district court. The testatrix left no surviving husband, nor child, nor

4 A.L.R.-16.

child or children of any deceased child; and, as appears from the record, her sole and only heirs at law were a sister, Elizabeth Johnston, a brother, Charles Johnston, and a nephew, Robert Johnston, the son and only heir of Robert Johnston, deceased brother of testatrix. The will of the deceased set forth several gifts, devises, and bequests to individuals, friends, and relatives; and § 17 of the instrument is as follows:

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