such cases, upon an examination of all the authorities to which we have had access, we entertain no doubt as to the admissibility of such evidence for the purpose of testing the accuracy as well as the veracity of the witness, and of enabling the court and jury, from the fullest view of all the minute circumstances of the case, to arrive at a true conclusion. Upon this point, therefore, there is no error. We are also of opinion that the circuit judge did not err in refusing to grant a new trial.

The testimony of Mrs. Wilson fully sustains the conviction, and her credibility, though attempted to be assailed, was well supported, and there is no opposing evidence, nor is any exception taken to the charge of the court.

Let the judgment of the circuit court be affirmed.

ADMISSIBILITY OF PREVIOUS STATEMENTS OF WITNESS TO CORROBORATE his testimony on the trial: See Johnson v. Patterson, 11 Am. Dec. 756, and the note thereto, discussing the subject. See also Henderson v. Jones, 13 Id. 676; Munson v. Hastings, 36 Id. 345. That statements made by a prosecutrix for rape, soon after the injury, are admissible, to corroborate her testimony, see State v. De Wolf, 20 Id. 90.

GOLD V. CARTER.

(9 HUMPHREYS, 369.]

EVIDENCE OF BENEFITS CONFERRED BY OBSTRUCTION OF Navigable RIVER upon the community, as where the obstruction consists of a mill which is greatly needed in the neighborhood, is inadmissible to divest it of its character as a nuisance in case for an injury therefrom to one navigating the river.

TRESPASS on the case for an injury to the plaintiffs' boat while navigating the Cumberland river by an obstruction placed therein by the defendant. The obstruction, it appeared, was a floating mill, erected in the river by the defendant under a privilege granted by the county court, pursuant to an act of the legislature authorizing the court to grant such privileges under such rules and regulations as they might think proper, provided that such obstructions should not in any way obstruct navigation in said river. In rebuttal of evidence as to the injury to navigation caused by the obstruction, evidence was introduced to show that the mill was of great benefit to the surrounding country, and the judge instructed the jury, among other things, that if the public advantage from the erection of the mill overbalanced the slight inconvenience to navigation, it was no nuisance. This

was the only question considered on the appeal which was taken by the plaintiffs after verdict and judgment for the defendant.

Meiys and Guild, for the plaintiffs.

Caruthers, for the defendant.

By Court, MCKINNEY, J. In respect to the true application and extent of the principle upon which this case was placed by the circuit judge, in his instructions to the jury, viz., the principle of compensation for nuisance, as it is denominated in some of the cases, there is, in the books, at least an apparent disagreement. The case of The King v. Ward, 4 Ad. & El. 384; S. C., 31 Eng. Com. L. 92, is relied upon, with other cases, of similar import, to maintain the proposition, that every structure or erection in a river declared navigable by law, not of a character to improve or facilitate the navigation, is, in law, a nuisance, and that collateral benefits resulting to the public, or to a different part of the public, from such erection, will not divest it of the character of a nuisance; that the countervailing benefit, sufficient for that purpose, must be to the public, or that portion of it engaged in the navigation of the stream; or, in other words, that the public have been more benefited than injured in the ordinary and legitimate uses of the stream: See also Hart v. Mayor of Albany, 9 Wend. 571 [24 Am. Dec. 165]; Respublica v. Caldwell, 1 Dall. 150.

On the other hand, the case of The King v. Russell, 6 Barn. & Cress. 566; S. C., 13 Eng. Com. L. 258, is supposed to be an authority to support the doctrine, that an abridgment of the right of navigation, or passage, may be justified, if the erection be productive of a greater public benefit: or, even, if the benefit conferred upon a different part of the public, be greater, in degree, than the injury done to that part engaged in navigation. This case does not require that we should attempt to reconcile the cases upon this subject: neither does it require that we should lay down what might be deemed the correct principle in such cases, did our views altogether coincide upon that point. For all the purposes of the present case, it is sufficient to hold, as we all do, that, whatever may be the correct principle, it manifestly has no sort of application to the facts of this case, and was wholly misapplied by his honor, the circuit judge. It is clear, that no amount of benefit conferred upon an indefinite number of private individuals, or upon a local community, can be admitted to countervail the public injury, and

inconvenience resulting from the obstruction of a navigable river.

The circuit court therefore erred in admitting evidence of the supposed public benefit, as it is called, derived from the use of the defendant's floating mill; and, also, in submitting it to the jury to determine whether such benefit countervailed the injury to the public, occasioned by the obstruction of the navigation. Upon this ground, the judgment will be reversed, and the case be remanded for a new trial.

OBSTRUCTION OF NAVIGABLE RIVER AS NUISANCE: See Commonwealth v. Church, 44 Am. Dec. 112; People v. St. Louis, 48 Id. 339, and cases cited in the note thereto.

PUBLIC BENEFITS ARISING FROM OBSTRUCTION OF RIVER do not make it any the less a nuisance if it infringes the public right of navigation: People v. St Louis, 48 Am. Dec. 339.

CATHEY V. CATHEY.

[9 HUMPHREYS, 470.]

TESTATOR'S CHILDREN TAKE VESTED INTEREST IN ESTATE DEVISED TO WIFE, TO BE DIVIDED "amongst my children as she may think best,” and on failure of appointment the children take equally at the wife's death. POWER OF APPOINTMENT MAY BE EXECUTED, though not Referred to, BY WILL disposing of the property, where there is nothing for the will to act on except in execution of the power.

WILL BY DONEE OF POWER OF APPOINTMEnt Makes NO DISPOSITION of the property and is no execution of the power, where such will merely directs the property to be kept together under the management of certain persons "until the heirs may wish a division;" and where the power was to divide the property among the donor's children as the donee should think best, they take equally.

BILL to obtain construction of certain wills. The chancellor decreed a distribution according to the statute of distributions. Appeal. The opinion states the case.

R. Houston and Nicholson, for the complainant.

N. Baxter and S. D. Frierson, for the defendants.

By Court, GREEN, J. The complainant is the administrator of James Cathey, with the will annexed, and the executor of H. B. Cathey's will. This bill is brought to obtain a construction of these wills, and to get directions from the chancery court as to the disposition of the property. In James Cathey's will, is the following clause: "I give and bequeath to my be

loved wife, Honor B. Cathey, all my property, both real and personal, for her to divide among my children, as she may think best, but if she should marry after my death, then, in that case, it is my will and desire that my estate be equally divided between her and my children, share and share alike," etc. The testator had five children at his death. Two of his daughters married, and died before their mother, one of them (Mrs. Hart) leaving one child, and the other died without issue. Mrs. Cathey did not marry, nor did she make any disposition of the property during her life. Her will is the following words: "I, Honol B. Cathey, being of sound mind and perfect memory, do make and publish this my last will and testament, in manner and form following: First, it is my will that all my property, both real and personal, remain together on my farm as heretofore. And further it is my wish, that brother Thomas D. Cathey, and my son, James D. Cathey, have the management of it entirely, until the heirs may wish a division or distribution of the property made among themselves. It is also my wish that Dr. Thomas C. Moore have five hundred dollars, or a negro boy worth that amount, as brother Thomas D. Cathey, and my son, James D. Cathey, may think best."

1. We think that by the will of James Cathey, his children took a vested interest in his estate, immediately upon his death. He gives his property to his wife, for her to divide among his children, as she may think best. This is, in fact, a gift to his children, in such proportions, and so distributed, as their mother might think best, but still it must go to his children. No one else can take, and no one of them can be excluded. The time. for a distribution, is left to the discretion of Mrs. Cathey. She might have made it forthwith, if she had chosen, but she had the right to enjoy the property during her life, and give or " divide" it by her will. Although the "children" of James Cathey, as a class, took a vested interest in the property, and, of course, each of them took a vested interest, yet the quantum each one took, remained uncertain until Mrs. Cathey should make the division; for although she was required to divide among all the children, she was not required to make them all equal: 1 Rop. on Leg. 420.

2. These being the legal rights of the parties, the next question is, What becomes of the estate if the power of appointment is not exercised? We think that the interest which had vested in the children, as a class, and which might by the exercise of the power of appointment, have been divided unequally among

them, remained vested in them in equal proportions, in failure of any appointment: Bristow v. Warde, 2 Ves. 335, note 3.

3. The next inquiry is, Did Mrs. Cathey exercise the power of appointment in this case? We think the authorities, referred to by the complainant's counsel, support the position that a power may sometimes be executed by will, although the power itself, nor the subject of it, be referred to, provided the will contain a disposition of property, and there is nothing for it to operate upon except in execution of the power: 2 Kent's Com. 334; Brown v. Ricketts, 3 Johns. Ch. 555; 1 Jar. on Wills, 567.

But the question recurs, Does Mrs. Cathey's will purport to dispose of any property? Her will in substance is, that she desires her property to remain together on the farm, until the heirs wish a division among them selves. She does not purport to give it away, or to divide it. She directs that it shall be safely kept together, until the heirs shall choose to divide it— thereby leaving it for the operation of her husband's will, under the law, without the exercise of the power she had to divide it. She seems to indicate, very indefinitely though, that the heirs, whosoever they might be, were entitled to the property, and would divide it, when they might think proper. With their supposed right, she does not choose to interfere.

We think, therefore, that no appointment has been made, and that the estate will go under the will of James Cathey, according to the statutes of distribution of intestates' estates.

Affirm the decree.

CHILD OF TESTATOR TAKES VESTED INTEREST as executory devisee under devise to the testator's wife for life, "and at her decease to be left to" such child: Farley v. Gilmer, 46 Am. Dec. 249. And where a testator devises to his wife for life or during widowhood, and provides that if she marries or dies the estate shall be equally divided among the testator's children, each child takes a vested transmissible interest: Bentley v. Long, 47 Id. 523. Under a devise to the testator's wife for life, and of the residue to two of his brothers, to dispose of the same "among our brothers and sisters and their children as they shall judge shall be most in need of the same," a trust estate is vested in the two brothers for the benefit of the other brothers and sisters and the children of all of them living at the testator's death, to be enjoyed by them after the wife's death: Bull v. Bull, 20 Id. 86.

DEVISE WITH POWER OF APPOINTMENT VESTS ABSOLUTE ESTATE IN DEVISEE, WHEN: See Smith v. Starr, 31 Am. Dec. 498. See also the note to

Rubey v. Barnett, ante, 115.

EXECUTION OF POWER OF APPOINTMENT, WHAT SUFFICIENT: See Haslen v. Kean, 7 Am. Dec. 718; Ewing v. Handley, 14 Id. 140; Lancaster v. Dolan, 18 Id. 625; Asay v. Hoover, 45 Id. 713. As to the construction of a will executed under a power to appoint by will, see Thompson v. Garwood, 31 Id. 502.