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of the old channel.” Again, in the same case, the court, referring to the very full examination of the authorities to be found in one of the opinions of Attorney General Cushing (8 Op. Atty. Gen'l, 175), said: “The result of these authorities puts it beyond doubt that accretion on an ordinary river would leave the boundary between two States the varying center of the channel, and that avulsion would establish a fixed boundary, to wit, the center of the abandoned channel. It is contended, however, that the doctrine of accretion has no application to the Missouri River, on account of the rapid and great changes constantly going on in respect to its banks; but the contrary has already been decided by this court in Jeffries v. Land Company, 134 U. S. 178, 189." In Nebraska v. Iowa, it appeared that the Missouri River near the land there in dispute had pursued a course in the nature of an ox-bow, but it suddenly cut through the neck of the bow and made for itself a new channel. The court said: “This does not come within the law of accretion, but that of avulsion. By this selection of a new channel the boundary was not changed, and it remained as it was prior to the avulsion, the center line of the old channel; and that, unless the waters of the river returned to their former bed, became a fixed and unvarying boundary, no matter what might be the changes of the river in its new channel."
Manifestly, these observations cover the present case and make it clear that the boundary line between Missouri and Nebraska in the vicinity of Island Precinct cannot be taken to be the middle of the channel of the Missouri River, as it has been since the avulsion of 1867 and now is, but must be taken to be the middle of the channel of the river as it was prior to such avulsion. We cannot see that there are any facts or circumstances that withdraw the present case from the rule established in former adjudications.
Counsel for Missouri contend that the act admitting Missouri into the Union, the memorial sent by the Legislature of that State to Congress in 1831, and the act of June 7, 1836, with the
proclamation of the President as to the extinguishment of Indian titles to lands between Missouri, as originally bounded, and the Missouri River, show that Congress intended that, so far as the boundary of the State of Missouri was concerned, the middle of the channel of the Missouri River, wherever it may be at any particular time—and regardless of any changes, however caused or however extended, or permanent, suddenly occurring in its course or channel—was to be taken as a perpetual, natural monument fixing the boundary line. We cannot accept this view. We perceive no reason to believe that Congress intended, either by the acts of 1820 and 1836 relating to Missouri or the act admitting Nebraska into the Union, to alter the recognized rules of law which fix the rights of parties where a river changes its course by gradual, insensible accretions, or the rules that obtain in cases where, by what is called avulsion, the course of a river is materially and permanently changed. Missouri does not dispute the fact that when Nebraska was admitted into the Union the body of land described in the present record as Island Precinct was in Nebraska. It is equally clear that those lands did not cease to be within the limits of Nebraska by reason of the avulsion of July 5, 1867.
For the reason stated we adjudge, in respect of the matters involved in this suit, that the middle of the channel of the Missouri River, according to its course as it was prior to the avulsion of July 5, 1867, is the true boundary line between Missouri and Nebraska. Accordingly, the original bill must be dismissed, and a decree entered in favor of the State of Nebraska on its cross bill.
It appears from the record that about the year 1895 the county surveyors of Nemaha County, Nebraska, and Atchison County, Missouri, made surveys of the abandoned bed of the Missouri River, in the locality here in question, ascertained the location of the original banks of the river on either side, and to some extent marked the middle of the old channel. If the two States agree upon these surveys and locations as correctly
marking the original banks of the river and the middle of the old channel, the court will, by decree, give effect to that agreement; or, if either State desires a new survey the court will order one to be made and cause monuments to be placed so as to permanently mark the boundary line between the two States. The disposition of the case by final decree is postponed for forty days, in order that the court may be advised as to the wishes of the parties in respect of these details.
KEELY v. MOORE.
ERROR TO THE COURT OF APPEALS
OF THE DISTRICT OF
No. 55. Argued November 9, 1904.- Decided December 19, 1904.
The signature of a resident of the District of Columbia to a will executed
abroad was witnessed on the day of execution by two witnesses; on the day following an American vice consul signed, as such and under seal, a certificate that the testator had appeared before him and acknowledged the will and his signature thereto. It did not state that the testator signed in his presence. The law in the District of Columbia required three witnesses in testator's presence, but did not require the testator to sign in presence of witnesses. The will was attacked also on grounds of testator's insanity and undue influence on the testator who had, previous to the execution of the will, been for a short time in an insane asylum. In an action affecting title to real estate there were issues sent to a jury and
the title under the will sustained. Held, that: Under the circumstances in this case the jury might properly draw the in
ference that the vice consul executed the certificates in the ordinary course
of business and in presence of the testator. Although a notary taking an acknowledgment as required by law is not,
in the absence of separate signature as such to be regarded as a witness, inasmuch as the certificate in this case was not required by law and was unnecessary, it was, together with the description appended to the vice consul's name, immaterial and could be disregarded as surplusage and the vice consul's signature regarded as that of a witness in his unofficial capacity.
The application of a relative, and the certificates of physicians, for the ad
mission of testator to an insane asylum, from which he had been released apparently in sound condition prior to the execution of the will, were properly excluded both because not sworn to and given in a different pro
ceeding and on a different issue. There was no error in submitting the question of testator's insanity to the
jury with the instruction that if they found that the insanity was permanent in its nature and character the presumptions were that it would continue and the burden was on those holding under the will to satisfy the
jury that he was of sound mind when it was executed. A man may be insane to the extent of being dangerous if set at liberty and
yet have sufficient mental capacity to make a will, enter into contracts, transact business and be a witness.
This was an action of ejectment brought in the Supreme Court of the District by grantees of the heirs at law of William Thomson against Joseph H. Moore and the firm of Thomas J. Fisher & Company, agents of Mary Cecelia and Georgiana Hawkes Thomson of the county of Kent, England, devisees under the will of William Thomson, to recover possession of an undivided ninety-one one-hundredths of certain real estate in the city of Washington. Upon the trial it was admitted that William Thomson died in Southampton, England, in 1887, seized of the lot in question; that he was born in and was a citizen of the United States, leaving no issue or descendants. Plaintiffs had acquired the title of the heirs at law, and the defendants were in possession of the lot as life tenants under his alleged will.
The validity of the will and the due execution thereof were contested by the plaintiffs for reasons hereinafter indicated in the opinion. The trial resulted in a verdict for the defendants, upon which judgment was entered, and affirmed by the Court of Appeals. 22 D. C. App. 9.
Mr. Hugh T. Taggart and Mr.C.C. Cole, with whom Mr. Leo Simmons was on the brief, for plaintiffs in error.
Mr. Wilton J. Lambert and Mr. D. W. Baker, for defendants in error.
MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.
The validity of the will was attacked upon three grounds: 1st, that it has not the requisite number of witnesses to pass real estate in this District; 2d, that the testator was of unsound mind; 3d, that undue influence had been exercised by one of the designated executors, and others.
Thomson was a resident of Washington, but at the time of and for some years prior to his death was the American consul at Southampton, England. One John H. Cooksey, a resident merchant at Southamptan, was his vice consul. The will was prepared by Walter R. Lomer, a resident solicitor, and was executed at his office February 24, 1886. By this will he devised the property in controversy to the appellees, Mary Cecelia Thomson and Georgiana Hawkes Thomson, his cousins, of Kent County, England, jointly for their joint lives and to the survivor of them, with remainder to Mary Cunningham Roberts, of London, for life, and remainder in fee to her only son. The will, which was executed in duplicate, was written upon two sheets of paper, to each of which the testator affixed his name. It was witnessed in the usual form by Lomer and by one Linthorne, a clerk in his office, who attached their signatures in the presence of and at the request of the testator, and in the presence of each other. On the day after the execution of the will Thomson again went to the office of his solicitor, Lomer, who wrote a certificate of acknowledgment in the margin of the second and last page of the will, which was signed by Cooksey, the vice consul.
The original will, being of record in the Probate and Admiralty Division of the High Court of Justice in London, could not be produced, but was proved by a certificate and examined copy. The attestation clause and the certificate were as follows:
“Signed and acknowledged by the said William Thom