grantors "duly acknowledged the execution of the same," is sufficient. Johnson v. Irwin, 16 Wash. 652 (48 Pac. Rep. 345).

Sec. 211. Wyoming. (See Vol. I, § 105; Vol. IV, § 168.) Deeds executed out of the state the certificate of acknowledgment to which fails to state that the instrument was executed and acknowledged according to the law of the state where such acknowledgment was taken are validated, where the laws of Wyoming in relation to such certificate have, in all other respects, been complied with. Laws 1899, p. 10.

DEFINITIONS.

EPITOME OF CASES.

Sec. 212. What will be treated as real estate

"Unmarried" and "park" defined. Sand and gravel, while in its original bed, will be treated as real estate. Glencoe Sand & Gravel Co. v. Hudson Bros. Com. Co., 138 Mo. 439 (40 S. W. Rep 93; 60 Am. St. Rep. 560; 36 L. R. A. 804). Under Idaho Rev. Stat. § 2825, possessory rights to ditch and water rights are real property. Ada Co. Farmers' Irr. Co. v. Farmers' Canal Co., Idaho (51 Pac. Rep. 990; 40 L. R. A. 485). "Unmarried," defined and construed. Muller v. Balke, 170 Ill. 150 (47 E. Rep. 355); Peters v. Balke, 167 Ill. 304 (48 N. E. Rep. 1012). In discussing the definition of the term " park," the supreme court of Nebraska, in the case of Ehmen v. Village of Gothenburg, 50 Neb. 715 (70 N. W. Rep. 237), say: "In the United States we have no parks, within meaning of the forestry laws of England. The term has never, in this country, been used in that sense. Indeed, such signification is not now, in England, exclusive. To demonstrate this, we need only to refer to Hyde Park,' in London. The universal meaning of the term in this country is a tract of land in or near a city or town, and devoted to purposes of amusement, pleasure, or exercise. There may be private parks, but the use of the term to designate private property is the exception, and public use is implied by the term, in the absence of language or surrounding facts implying the contrary. In Price v. Inhabitants, 40 N. J. L. 608, it is

said, 'A park in a city means, to the sense of every person, a place open to every one.' In People v. Green, 52 How. Prac. 440, the term park' is defined as a piece of ground adapted ' and set apart for the purposes of ornament exercise and amusement."

DESCENT.

Sec. 213.

EPITOME OF CASES.

Descent of real estate-Construction of statutes. Upon the death of an ancestor intestate, the title to his real estate vests in his heirs instantly without administration of his estate. Johnston v. Colby, 52 Neb. 327 (72 N.W. Rep. 313). Construing Ia. code, §§ 2455, 2456, fixing the right of inheritance of parents of an intestate dying without issue, and § 2557, which provides that "if both parents are dead, the portion which would have fallen to their share by the above rules, shall be disposed of in the same manner as if they had outlived the intestate and died in the possession and ownership of the portion thus falling to their share," it is held that where property passes from brother to brother under the last section, the inheritance is direct and does not depend on the fact of the parents at the time of their decease being capacitated to inherit under the statute of descent. Wilcke v. Wilcke, 102 Ia. 173 (71 N. W. Rep. 201). Under Minn. Gen. Stat. 1894, § 4471, subd. 6, if the intestate leaves no issue, husband or wife, father or mother, brother or sister, but all of his next of kin are nephews or neices, they take his estate in equal shares although they are the children of different deceased brothers and sisters. In re Breg's Estate, 71 Minn. 11 (73 N. W. Rep. 511). Ohio Rev. Stat. § 4185, construed and applied-proceedings to designate one as heir. Bird v. Young, 56 O. St. 210 (46 N. E. Rep. 819).

Minn. Gen. Stat. 1894, § 4477 regulating inheritance by adopted children has been amended by adding a provision that if any adopted child inheriting property as such," shall die during its minority unmarried and without issue" the property inherited by him "shall pass by inheritance to the heirs at law of

the person from whom said child so received said property." Minn. Laws 1899, p. 180. Mo. Rev. Stat. § 971-adoption of children-amended by adding § 971a. Laws 1899, p. 50. Mo. Rev. Stat. §§ 4799-4822, relating to "Escheats" have been repealed and a new statute covering the entire subject enacted. Laws 1899, p. 203. Wyoming also has a new statue on this subject. Laws 1899, p. 158.

Sec. 214. Descent of equitable and legal title. Where an ancestor has only an equity of redemption in land, his heir does not inherit the legal estate. Russell v. Roberts, 121 N. C. 322 (28 S. E. Rep. 406). In determining questions as to the descent of real property, regard is had to the legal title only; and where the legal title is acquired by purchase, and an equity in the property by inheritance, the legal title and equitable interest at once unite, and upon the death of the owner the descent of the property will be cast as an estate which came by purchase. Higgins v. Higgins, 57 O. St. 239 (48 N. E. Rep. 943).

Sec. 215. Inheritance from slaves. Tenn. Laws 1865-66, ch. 40, § 5 (Shannon's Code §§ 4179, 4198) provides that all free persons of color who were living together as husband and wife in this state while in a state of slavery, are hereby declared to be man and wife, and their children legitimately entitled to an inheritance in any property heretofore acquired or that may be hereafter acquired by said parents to as full an extent as the children of white citizens are entitled by the laws of this state." Construing this statute in the case of Shepherd v. Carlin, 99 Tenn. 64 (41 S. W. Rep. 340), the supreme court say: "We are of the opinion that, by the plain terms of this act, the right and power of inheritance are conferred only as to such property as may descend from parents, and that no right of collateral inheritance is conferred by the act. This was no doubt, the intention of the general assembly, and is the clear meaning of the words of the act, which can admit of no other construction. A like construction has been placed upon statutes similar to the act of 1865-66 in other states. Tucker v. Bellamy, 98 N. C. 31 (4 S. E. Rep. 34); Jones v.

Hoggard, 108

N. C. 178 (12 S. E. Rep. 906, 907); Williams v. Kimball, 35 Fla. 49 (16 So. Rep. 783-786; 48 Am. St. Rep. 238; 26 L. R. A. 746)." The same construction is given this statute in the case of Henderson v. Baniel, Tenn. (42 S. W. Rep. 470), in which it is also held that Laws 1869-70, ch. 75 (Mill & V. Code § 3287; Shannon's Code, § 4281), providing that," In all cases of free persons of color, or slaves, owning real or personal estate, and having while slavery existed, departed this life, possessed of, or having, legal or equitable estate, the same shall descend and be distributed between the widow and their children or descendants, or next of kin, whether they were slaves or not at the death of the decedent, agreeable to the laws of descent and distribution provided for free persons," does not authorize the inheritance of the decedent's property, in such a case, by his brother's children where the brothers were born out of wedlock, under the con. dtions existing at the time of slavery. In Kentucky, except as against innocent purchasers or where the property has been previously "divided out or sold, or distributed by the order or judgment of any court of competent jurisdiction," children born of slave marriages are entitled to inherit prop erty of both father and mother. Laws 1898, p. 102.

Sec. 216.

Descent to surviving husband. A husband may waive his right to inherit from his wife by an agree ment either antenuptial or postnuptial. Leach v. Rains, 149 Ind. 152 (48 N. E. Rep. 858). A surviving husband's right under Mass. Pub. Laws, ch. 124, § 1, as amended by Stat. 1887, ch. 290, § 1, to take the real estate of his dead wife in fee to an amount not exceeding $5,000 “if she die and leave no issue living," is not dependent upon the wife having had children. Howe v. Berry, 168 Mass. 418 (47 N. E. Rep. 104). As to descent of property between husband and wife under the statutes of Louisiana, see Zeigler v. His Creditors, 49 La. 144 (21 So. Rep. 666).

Sec. 217.

Descent to surviving wife-Statutes construed. Ala. Acts 1886-87, p. 112; Acts 1892-93, p. 138, construed and applied-title and rights of widow where husband leaves an estate less in value than the amount exempted

by law. Wilkins v. Walker, 115 Ala. 590 (22 So. Rep. 476). Under the statutes of Indiana the right of a widow to onethird of the real estate of her deceased husband is absolute, and she is entitled to the same free from all demands of creditors except mortgages in the execution of which she has joined. The waiver of such a right as to the real estate upon which she may have joined with her husband in executing a mortgage operates only in favor of the mortgagee, and not in favor of other creditors or liens. To protect the widow in this right she is entitled to have the personal assets not required for the payment of claims expressly preferred by statute applied to the payment of the mortgage or other liens necessary to protect her one-third of the real estate, and clear the same of incumbrances. If such assets are not sufficient to protect her said one-third interest, she is entitled to have all of the real estate of her deceased husband that did not descend to her as widow sold, and the proceeds applied to payment of liens on real estate, so as to protect the interest given her by statute. Shobe v. Brinson, 148 Ind. 285 (47 N. E. Rep. 625). Ind. Rev. Stat. 1894, § 2641, which prohibits a widow, who has remarried, holding lands by virtue of a former marriage by which there is a child or children or their descendants surviving, from alienating such lands does not render void her lease of such lands for life. Forgy v. Davenport, 146 Ind. 399 (45 N. E. Rep. 592). "If a man die intestate leaving surviving him a second or other subsequent wife without children by him, but leaving a child or children or their descendants alive, by a previous wife, such surviving, childless, second or other subsequent wife, shall take only a life estate in the lands of her deceased husband, and the fee thereof shall at the death of such husband vest at once in such child or children, or the descendants of such as may be dead, subject only to the life estate of such widow." Ind. Laws 1899, p. 131. This statute also provides that conveyances executed by the husband's children by a former wife before the death of the subsequent childless wife operate to convey title after her death; and validates conveyances between such wife and children or by them to third parties. Id. p. 132. McClain's Ia. Code, § 3644, giving a surviving wife the right to a one-third of her husband's property in fee simple, which has not been sold on