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State; and as we understand the decisions of the Supreme Court of the United Stateş, similar laws enacted by State authority have been upheld and sustained, although such laws may affect commerce." The People v. Wabash, etc. R. R. Co. 104 Ill. 476. See, also, Hall v. DeCuir, 95 U. S. 485, 487; Peik v. Chicago, etc. R. R. Co. 94 id. 164; Chicago, etc. R. R. Co. v. Iowa, id. 155; Munn v. Illinois, id. 113.
The exceptions are sustained in so far as they are based upon the omission of the defendants to answer the allegations of the bill as to transactions reaching beyond the limits of the State.
WILL-CONSTRUCTIGN – “WITHOUT BOD
THACKSON v. WATSON.*
the benefit of his widow and son. By the eighth clause of the will, the executor was directed to rent out the land of the testator to the best advantage until his son arrived at the age of 21 years, and by the ninth clause, directed his executor to pay one-third of the net proceeds to his widow, and appropriate the other two-thirds to the benefit of his son as thereinafter directed. By the tenth clause, the testator devised the rest and residue of his estate, real and personal, to his son Henry Duke Watson, “to be paid over to him, and to be delivered up to him, by the executor when he should arrive at the age of twenty-one years, if he should live that long;” and then proceeded to direct the executor as to the manner of raising and educating him. The son having arrived at age, the executor delivered up to him the estate, and, being vested by the tenth clause just quoted, with an absolute fee, conveyed a part of the land devised to him by his father to the appellant, who now insists that his title is imperfect by reason of the eleventh and twelfth clauses of the will. In the eleventh clause of the will the testator provides that, in case his son shonld die without bodily heirs, then all testator's real estate shall be converted into money by the executor, and, out of the proceeds, make certain bequests to his relations then living, naming them. In the twelfth clause he provides that, in case his son should die without bodily heirs, the whole estate, after paying the particular bequests, shall be equally divided between certain of his relations therein named.
The appellant maintains that the tenth clause of the will, when construed with the eleventh clause gives to the son a fee-simple estate, subject to be defeated at any time by the happening of the event, viz., the death of the son without bodily heirs. On the other hand, counsel for the appellee insists that the son took the fee subject to be defeated upon the contingency only of his dying without bodily heirs before arriving at the age of
Court of Appeals of Kentucky, September 11,1886.
Will-Construction—“If He Lives so Long—“On Death Without Heirs.”—Testator directed that his executor should control and manage the estate until his son was twenty-one years of age, and then, "if the son should live so long,” the whole estate was “to be paid over and delivered up to him.” The next clause of the will provided that, in case the "son should die without bodily heirs,” the “real estate should be sold and converted into money, and distributed” among certain relatives. Held, 1. That the words “die without bodily heirs" were intended to refer back to the former clause, “if he should live so long," and that the son, having aftained the age of twenty-one years, took the fee-simple. 2. That rules of construction will not be allowed to defeat the plain intention of the testator as gathered from the whole instrument.
Appeal from circuit court, Mason county.
This was an action brought by the plaintiff to cancel a mortgage given by him to the defendant. The mortgage was given to secure the defendant in the event of the plaintiff's title to certain lands, sold by bim to the defendant, not being good. The lands sold were derived from the plaintiff's grandfather under the will set out in the opinion. Judgment for plaintiff, and appeal by defendant.
E. Whittaker and L. W. Robertson, for appellant, W. D. Thackston. Cochran & Son and H. Wadsworth, for appellee, Henry D. Watson.
PRYOR, J., delivered the opinion of the court.
William Watson, of the county Mason, died in the year 1870, leaving a last will and testament, and his widow and II. D. Watson, his only child, surviving him. His will is now before this court for construction. By various clauses of his will preceeding those from which this litigation has arisen, he made several special devises, and gave minute and specific directions to his executor as to the control and management of his estate for
The settled and well-understood construction in references to such devises seems to be that where an estate is given or devised with remainder over, but, in the event the remainder-man should die without a child or children, then to a third person, the words “dying without children or issue" are restricted or - limited to the death of the remainder-man before the termination of the particular estate; and it is equally as well settled that if an estate is devised to one in fee, but if he die without issue, or without leaving a child or children, then to another, the first devisee takes a defeasible fee which is subject to be defeated in the event of his death, at any period, without issue. Birney v. Richardson, 5 Dana, 424; Pool v. Benning, 9 B. Mon. 623; 2 Jarm. Wills, 506.
Counsel for appellant argues, as no particular estate in interest preceded the devise to appellee, that under the last rule of construction, the appellant will be deprived of all title by the death of
*S. C., 1 Southwestern Reporter, 338.
the appellee at any time without leaving issue surviving him. The construction of a will, or any of its provisions, must be controlled by the intention of the party making it; and, when that intention is ascertained from the whole instrument, it should be adopted, and no rule of construction will be allowed to defeat the expressed or plain intention of the testator. General rules of construction will be followed when not inconsistent with the manifest intention of the testator: but, says Mr. Redfield, “the court will place themselves as far as practicable in the position of the testator, and give effect to his leading purpose and intention as indicated by the words of the will, construed with reference to all attending circumstances." The words contained in a particular clause of a will, when alone considered, may bring the devise within the operation of a general rule; but, when considered with reference to the whole will, a different construction must often prevail; otherwise the plain intention of the testator would be defeated. It is at least the intention of the testator that the court must look to in construing wills, and, when that intention is ascertained, the general rules of construction are to be applied.
Without, therefore, determining the nature of the devise to the executor,-whether he was vested with an interest in the estate or not,-he certainly had the control and management of the entire property until the son arrived at the age of 21 years, and then, by an express provision of the tenth clause of the will, the whole estate was "to be paid over and delivered up to him by the executor when he arrived at the age of 21 years, if he live that long." The eleventh clause of the will, following directly the provision of the tenth clause, under which the executor was to surrender the entire estate to the son, provides that, in case his son died without bodily heirs, then “I direct and will that all my real estate be sold by my executor, and converted into money, and distributed as therein directed; and, when construing the two clauses together, as they should be, it is evident the plain meaning of the testator was that in the event the son died before the period at which the property was to be delivered to him, and all control over it surrendered by the executor then the executor was to sell the realty, and make distribution as provided by the subsequent provisions of the will. The two clauses, read together, direct, in subsance, the executor “to pay over and surrender to the son all the estate when he arrives at the age of 21, if he live that long; but if he should die before that time without leaving bodily heirs, the estate is to go to his collateral kindred."
In the case of Duncan v. Kennedy, 9 Bush, 580, the testator devised his estate to five persons,naming them,directing his executors to take possession and control of the property devised, until January, 1872, when the same was to be divided between the devisees; but further provided that, if any one of the five should die,then in that event it was to
be divided between the survivors. It was held that, in order for the devise over to the survivors to take effect, it was necessary for the death of the
taker without issue to take place before January 1, 1872.
The testator, when having his will written, was evidently contemplating the death of his son before the period at which he was to have the complete control of the estate, because he directs the property to be delivered over to him if he is then alive; and, providing against the contingency of his dying before that time, proceeds to devise his estate to his collateral kindred in the event his son leaves no children. His executor is to sell, and make the distribution, and no such thought entered the mind of the testator as requiring the executor, after his son had arrived at age and taken the custody of the property, to regain the possession of it, if his son thereafter died childless, in order that he might sell, and distribute the proceeds to others. The remote devisees were living when the will was made, and they were to take in the event the contingency happened before the son reached the age of 21. The title of the son became indefeasible when he arrived at that age, and therefore the title to the land sold by him to the appellant is not incumbered by any claim that might be asserted under this will by the remote devisees.
Nor is the view of the question in conflict with the ruling of this court in Parrish v. Vaughan, 12 Bush. 97. In that case the devise to the grandson was these words: “But should he [the grandson] die before he arrives at the age of 21 years, or without lawful issue of his body, then, and in either of these events, the land shall revert back." It was held that, the grandson dying without children, the estate went back to the heirs of the original devisor. In order to vest the title, in that case, in the devisee, the grandson, it became necessary to substitute the conjunction “and” for the disjunctive “or," and, not only so, but to disregard the words "then and in either of these events.” This the court refused to do, holding that the testator must have understood the meaning of the language used by him, and, having given an expression to his intention by using the language referred to, this court would not assume that such was not the meaning, and substitute other words with a view of showing a different intention than the face of the will presented.
In our opinion, the appellant has no cause to complain of his title, and the judgment is therefore affirmed.
rule compelling the employe to forfeit wages already earned on his leaving the employ of the master. Schietenger v. Bridgeport etc. Co., S. C.
Conn. April 24, 1886. 6 East. Rep. 113. 5.
Agreement to Pay Note and Mortgage Held by Third Party-Assignment.-A. entered into a parol agreement with H., upon a sufficient consideration moving from the latter, to pay the amount of a note and mortgage held by L, against H. and subsequently L. sold the mortgage and the debt thereby secured to the plaintiff. Held, that that such agreemənt constituted a valid and binding obligation in favor of L.; and, being in the nature of additional security for the payment of the mortgage debt, passed with the assignment thereof as an incident, and the plaintiff could enforce the same action against A. Lahmers v. Schmidt, S.C.
Minn., July 14, 1886. N. W. Rep. 169. 6. --, Wagers-Grain Contracts for Future De.
livery. A contract for grain for future delivery is not, as matter of law, void as a gambling transaction; it must be shown to be but a bet to avoid it; and the mere payment of “differences” in settlement, is not sufficient to establish it to have been a wager. Tomblin v. Callen, S. C. Iowa, June 18, 1886. 22 Rep. 367.
1. AGISTMENT-Lien of Agister on Foreclosure of
Chattel Mortgage.- Where S. placed a chattel mortgage executed to him by G. M. on a certain horse in the hands of I. M. to foreclose I. M. placed the horse in his own stable to be fed and cared for, and proceeded to advertise the horse for sale on foreclosure. Pending the sale, s. M., a personal security on the note to secure which the mortgage was given, ten. dered to S. the amount due on the note and mortgage, principal and interest. S. accepted the tender, and delivered upto S. M. the note and mortgage, and ordered I. M. to proceed no further in foreclosing the mortgage. Held, that I. M. had nolien on the horse for his feeding and care. (QuareEditor C. L. J.) Hale v. Wigton, S. C. Neb. Sept. 8, 1886. 29 N. W. Rep. 177.
2. ATTORNEY AND COUNSELOR - Contracts with
Client--Onus as to Good Faith— Termination of Relation.-An attorney who contracts with his client is subject to the onus of proving that, as respects the contract, no advantage was taken of the client's situation. But where a previously exist. ing relation of attorney and client has come to an end, so that the parties are dealing, each for himself, at arms-length, this strict rule does not apply; but, to avoid the contract, (otherwise unobjectionable,) the client must show that it was procured by actual fraud. Held, that, upon the evidence in this case, a request for an instruction to the effect of this latter proposition was erroneously refused. Tancre v. Pullman, S. C. Minn., July 26,
1886. 29 N. W. Rep. 171. 3. BAIL AND RECOGNIZANCE - Recognizance De
fective-Common-Law Bond.-A recognizance of the appearance of an accused person to answer to an indictment for felony, taken before and approved by an officer or person unauthorized by law, or wbere, under the facts of the case, the taking thereof is unauthorized by law, so that the same fails to be binding under the statute, held, also, to be void a common-law obligation. Dickinson v. State, S. C. Nebraska, Sept. 8, 1886. 29, N. W. 184.
7. CORPORATION - Foreign Corporation Stock
holders.—The liability of stockholders, or of the subscribers for stock of a corporation, to the creditors of the company, is governed by the laws of the State under which it is created. It is the setled law of this State that, in the absence of an express promise to pay for shares in a corporation, none is created by a mere subscription therefor. Nor is any created by the mere agreement to take shares. Where by the local laws of the State under which the corporation is created, a liability is imposed on stockholders woich is wholly at vari. ance with the laws of this State, the courts of this State are not required to enforce such liability. New Haven etc. C. v. Linden etc. Co., S. J. C.
Mass., July 6, 1886. 6 East. Rep. 663. 8. COVENANT- Warranty- Eviction Pleadinn
Evidence- New Trial- Motion, when Made-Cov. enant of Seizin Defined.-In an action on a warranty deed for a breach of the covenant for quiet enjoyment, the plaintiff must allege and prove that he has been turned out of the possession of the granted premises, or of some part thereof, or has yielded the possession thereof to the paramount title. A motion for a new trial must be made in the terms, substantially, in which it may be allowed within the rules of law, or it will be denied. The covenant for title or of seizin is an assurance to the purchaser that the grantor has the very estate, in quantity and quality, which he purports to convey. If he has not such title, his covenant is broken immediately upon its being made. Real v. Hollister,
S. C. Neb. Sept. 8, 1886. 29 N. W. R. 189. 9. CRIMINAL LAW- Assaults with Intent-Indict.
ment-Assault with Dangerous Weapons.--An indictment for an assault with dangerous weapons, with intent to kill, under section 29, art. 2, c. 42, Wag. St. 449, providing for the punishment of an assault with a deadly weapon, or with any other means or force likely to produce death or great bodily harm, is sufficient if it alleges that the assault was made with an ax and a gun, with intent to kill, and that they were “deadly weapons" without the further allegation that they were “likely to
4. CONTRACT.-Where an employee is discharged because he will not continue to work for less than the agreed price, the employer cannot invoke a
produce death.” This allegation is only necessary when other means than deadly weapons are employed in making the assault. State v. Painter, 67 Mo. 84, followed. State v. Pecora, S. C. Mo. June
7, 1886. 1S.W. Rep. 304. 10. - Pleading-Indictment - Place. – An in
dictment alleging, generally, an offense to have been committed in the county where it is found, if otherwise valid, is sufficient without any more particular designation of the precise locality. State v. Sneed, s. C. Tenn. June 10, 1886. 1 S. W. Rep. 282.
11. DAMAGES-Depriving of Use of Mill.-The rule
of de mages for wrongfully depriving a party of the use and possession of a portable saw-mill is the rental value or hire of the mill, or one of simi. lar capacity, during the time it is thus withheld. Where the mill-owner has been compelled to pay a foreman under a subsisting contract during the time the mill was, kept idle, and a watchman to take care of the same, he may recover such items of damages in additio to the rental value. Wood v. Maryland, Maryland Court of Appeals, July 15, 1886. East. Rep. 745,
12. DEED-For Benefit of Credit ors-Attorney and
Client- Waiver.-A creditor who participates in proceedings in equity for distribution of properiy sold under a deed of trust so far makes Lumself a party to the deed as to waive his right to deny its validity, and to have elected to surrender any lien he may have had upon the property, and to look to the proceeds of sale instead. But the attorney who recovered the judgment cannot, without express authority from his client, file the claim in the equity proceedings and thus waive his lien. Horsey v. Chew, Maryland Court of Appeals, June 24, 1886. 6 East. Rep. 748.
lot will take an easement in it. Where the common owner of lots bas laid out an alley-way between them, that she has designated the way as a “private alley," must be construed, in an action to deprive one of the lot owners of its use, as intended to show its use for her lots, only; but for all of them. Cihac r. Kleke, $. C. Ill. May 15, 1886.
22 Rep. 398. 16. EQUITY-Bill of Review -- Opening Decree of
Orphans'. Court Confirming Trustees' Accounts -New Matter:-Arf account of executors, who are also trustees under the will, confirmed by a decree of the orphans' court, can be reviewed, as a matter of right, only for error of law apparent on the face of the record, or for new matter which has arisen since the decree. As a matter of grace, a review may be granted for new proof discovered after the decree, which proof could not possibly have been used at the time when the decree was made. Scott's Appeal, s. C. Penn. May 3, 1886. 5
Atl. Rep. 671. 17. EVIDENCE- Weight of Evidence-Record-Pa
rol.-Where, upon the trial of a cause, facts are proved on the part of the plaintiff, by parol testimony, within the pleadings, sufficient to establish plaintiff's case prima favie, none of such testimony being contradicted, and the defendant proves by record evidence, also within the pleadings, such facts as establish a complete defense, such evidence taken together, will not sustain a finding for the plaintiff. Dickinson v. State, s. C. Neb. Sept. 8,
1886; 29 N. W. Rep. 184. 18. EXECUTORS AND ADMINISTRATORS- Will not
Probated-Debts Paid-Title to Asset 8– Evidence Possession-Dying Declarations-Creditors-Administration-Estoppelby Conduct-Debts of a testator, paid in good faith by his executrix and residuary life legatee, will be allowed against his estate, although the legatee took possession of the estate without proving the will. Where there is an issue as to title as between the estate of a hus. band and the estate of his widow, who was executrix and residuary life legatee under the husband's will, that will not having been probated until after the widow's death, it is error to admit testimony tending to prove that a certain sum of money was in the widow's possession at the time of her death, and that she made a dying declaration that it was intended to pay her debts. Creditors of a decedent who have failed to compel an administration of his estate cannot take advantage of the confusion resulting from such failure. Jenks v. Breen, Court of Chancery of New Jersey, Sept. 8, 1886; 5 Atl.
Rep. 647. 19. FALSE IMPRISONMENT-Damages-One Person
Mistaken for Another-Execution of Warrant for Arrest Against Wrong Person.-Where a person was imprisoned by mistake for another, such mistake may be considered in mitigation of damages and on the question of malice; but it will not justify the imprisonment, unless the mistake was caused or contribnted to by the words or acts of the one imprisoned. An officer who executes a warrant against one person by arresting another is a trespasser. Formwalt v. Hylton, S. C. Texas,
June 1, 1886; 1 S. W. Rep. 376. 20. GARNISHMENT--Inter-State Garnishment.-A
debt by a foreign corporation to one of its emploves at the place of its domicile, not being within the jurisdiction of our courts,can not be reached and subjected by a creditor here, by process of
In Fraud of Creditors – Subsequent Mortgage-Foreclosure, R. L. 4155.-A deed of land executed by a debtor to keep it from attachment, cannot be attacked by a petition under the statute to foreclose a subsequent mortgage executed by the debtor on the same land. The titles of adverse claimants cannot be litigated in a foreclosure suit. Kinsley v. Scott, S. C. Vt. August
7, 1886. 6 East. Rep. 775. 14. Registration
Quit claim Deed Construclion. Where a quitclaim deed, conveying property, was made in 1848, and lost before record, but was substituted by a decree of court filed in 1881, and the same property was conveyed by the heirs of the grantor in 1874, held, that the claim of persons deriving title from the heirs of the grantee of the original quitclaim deed was good as against a purchaser in 1882 from persons claiming title from the heirs of the grantor. Words which are added in the latter part of a deed, for the sake of greater certainty,may be resorted to, to explain preceding parts which are not entirely clear. Wallace v. Crow, S. C. Texas, June 23, 1886.
1 S. W. Rep. 372. 15. EASEMENT-Alley- Laid out between Lots of
Same Oncner-Purchaser — Rental Value - "Prirate Alley''— Designation by Common Ovner. – Where an alley-way bas been laid out between the lots of the same owner, though it has been taken from the length of some of the lots, only, if its use is beneficial to another of the lots, and manifestly increases its rental value, the purchaser of such
v. McGowan, S. C. Me. Aug. 5, 1886; 6 East. Rep. 626.
garnishment against the corporation. Reversed; garnishee discharged. Louisville, etc. Co. v.
Dooley, S. C. Ala. Dec. Term, 1885-86. 21. GIFT OF CORPORATE STOCK-Agreement Against
Public Policy.-In an action for breach of contract for non-delivery of corporate stock, the defendant may show, as matter of defense, tbat the contract sued upon was part and parcel of a prior secret agreement between the plaintiff and the company, whereby the plaintiff was to subscribe for a large amount of the stock for the purpose of inducing others to subscribe, and that for so doing he was to receive, in addition to his subscription, the amount of stock in question as a gift from the company. Nickerson v. English, S. Jud. Ct. Mass. July 3, 1886; 6 East. Rep. 551.
26. NEGLIGENCE-At a point where a railroad cros
ses a highway, travelers on either have a right to cross the other. A train has a preferential right of way over a person traveling on the highway, but is bound to give timely notice of its approach and to moderate its speed enough to allow the highway traveler to avoid collision. The duty of a vehicle or foot traveler on the highway to give precedence to the train is founded on the obligation of the train men to give due warning of the train's approach. A foot traveler crossing a railroad track, by a foot-path near a highway crossing, who stops at the track to look and listen for an approaching train, but cannot perceive one or signals of one, and begins to cross but is struck by a train approaching suddenly, and without warning, and who is otherwise in the exercise of due care, is not chargeable with negligence contributing to the collision. Baltimore, etc. Co. o. Oroings, Md. Ct. App. June 23, 1886; 3 Cent. Rep. 847.
22. INJUNCTION Actions at Law-Cross-Bill
Equity-Pleading - Answer – Striking Out.-A cross-bill, after simply stating that two writs of attachment had issued and were served in an action of law, prayed for an injunction restraining such action pending a decision on a suit between the same parties in this court. Held that, wbile the facts in the chancery suit would justify an injunction, yet the omission to show in the cross-bill anything inferring tbat the action at law is still pending would be such an uncertainty as to prevent the awarding of the injunction. Portions of an answer that are merely amplifications or enlargements of what has already been sufficiently stated, or are statements that do not pertain to the issue between the parties, will be stricken out. Heckscher v. Trotter, N. J. Ct. Ch. Sept. 11, 1886; 5 Atl. Rep. 652.
Children in Public Street.-The driver of a horse car is required to manage his car with ref. erence to all the risks that may reasonably be expected, including the risks arising from the heedlessness and indiscretion of children. The degree of care which the law requires of a child old enough to be intrusted alone in a dangerous place, or as the custodian of a younger child, is that which may reasonably be expected of children of his age, or which children of his age ordinarily ex. ercise. Collier v. South Boston, etc. Co., S. Jud. Ct. Mass., July 3, 1886; 6 East. Rep. 648.
23. INSURANCE COMPANY-Charter-Powers-Pol
icy.-Under a power in its charter to insure "hay, grain, and other agricultural products in barns, stacks, or otherwise, against loss by storms or hurricanes,” an insurance company may insure a growing crop. An insurance of "stocks. crops, and farming implements” embraces a growing crop. Mutual, etc. Co.v. De Haven, iS. C. Penn.
May 3, 1886; 22 Rep. 407. 24. INSURANCE - Evidence. Evidence to show
knowledge on the part of an alleged agent of the insured of other insurance was rightly excluded where no agency had been shown to exist. The policy provided that if the insured should have or afterwards make another contract of insurance whether valid or not, it should be void. Held, that insurance procured by a mortgage on the interest of the insured, without the knowledge of the latter, in conformity with a mortgage clause, was not other insurance within the meaning of the policy. Held, that where after knowledge of such other insurance the company without dissent proceeds to adjust the loss, this is a waiver of the alleged forfeiture. Carpenter v. Continental, etc. Co. S. C. Mich. June 17, 1886; 15 Ins. Law Journal, 667.
28. Notes-Application of Payment s–Principals
A. and B. were jointlyliable to C. upon a judgment note given by them, and all tbree agreed that the production of B.'sfoil wells should be turned over to C. 10 pay the amount for which A. and B. were jointly liable. B. afterwards directed the yield of the wells to be applied to the payment of other debts due by him to C., and for other purposes, which was done accordingly. In an issue to determine whether or not the judgment note was paid by the yield of the wells. Held, that as A. and B. were both principals in the obligation, it was within the power of either of them (without the knowledge or consent of the other) to change the application of the proposed payment, and that the judgment note could not therefore be treated as paid. Tait v. Hackett, S. C. Penn. May 12, 1886; Weekly Notes of Cases, Vol. 18, p. 145.
25. INTOXICATING LIQUOR- Search and Seizure
Criminal Practice-On a complaint for search and seizure, if the evidence at the trial shows that the search and seizure were made in the night-time, the respondent should ask the court to instruct the jury as to the effect of such evidence. The State is not required to prove that the unlawful intent as to the particular liquor seized existed at the moment of seizure. It is sufficient if it existed at the time of making the complaint. State
29. PARTNERSHIP- Attachment-General Assign
ment—The individual interest of a co-partner in the co-partnership effects is attachable. The at. tachment may be made by seizure of the effects, and the attaching officer may remove them for safe-keeping. That the defendant co-partner has overdrawn his account with the co-partnership does not invalidate the attachment. But the execution and record by the defendant co-partner of a general assignment for the benefit of his creditors under Public Statutes, R. I. chapter 237, sec. tion 12, at once dissolves the attachment. Trafford v. Hubbard, S. C. R. I., June 11, 1886; 6 East. R., 693.