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day of December, 1884, in his own name, | of the money he received belonging to said taking a certificate of deposit therefor paya-legatees.

ble to his own order. The Jennings County Next it is proper to consider the question Bank was a private bank, owned and con- whether the bequest to Alice and Lizzie Woodducted by one Charles E. Cook. On the 14th fill was subject to be used by the administraday of September, 1885, Cook, the banker, tor for the payment of costs of administrafailed, and made an assignment. Afterwards tion. We think it was not. The testatrix Cook compromised with his creditors, includ- made a specific bequest of the proceeds of the ing Enoch G. Corya, for 50 cents on the dol- note to these two legatees, and followed such lar, and paid to said Enoch G. Corya in full bequest, devising all the remainder of her of said certificate, $207.63. The testatrix estate to her daughter, Delia Corya. The died the owner of a farm worth $3,000 or bequest to her daughter, Delia, is general, more, and a small amount of personal prop- and she treats her personal and real estate erty, and was owing no debts. The admin- as forming one whole, without designating istrator made no inventory of the estate. between them. Woerner on the American The administrator filed his report, showing Law of Administration, at page 986, vol. 2, the receipt of the money by him from the says: "It is also presumed that by singling out clerk; the depositing of it in the bank; the a specific article by way of a specific bequest failure of the bank; the compromise and re- the testator intends that the legatee shall ceipt of $207.63 in full of his certificate, and take in preference to those legatees whose the payment of one-half of the costs of ad- bequests are not specifically pointed out. ministration, amounting to $29.42 out of said Hence the rule is that specific legacies do not $207.63; and paid the balance into court for abate, except in favor of such legacies as Susie Corya, guardian of Alice and Lizzie were given for a valuable consideration, or Woodfill, and asked to have his report ap-among themselves." 2 Williams, Ex'rs, 1473, proved, and that he be discharged. Susie 1474, states the rule to be as follows: "That Corya, guardian, appeared, and filed proper exceptions to the report, setting forth the facts as herein before set out, and objected to the approval and confirmation of said report. There was a hearing by the court, and the exceptions were overruled and the report approved. Motion for new trial by appellant, properly presenting the questions, was filed and overruled, and exceptions taken. This appeal is prosecuted and errors properly assigned in this court.

The questions presented are as to the liability of the administrator for the full amount of the money received belonging to Alice and Lizzie Woodfill, and as to whether such funds are liable for the payment of any portion of the costs of administration. It is not contended by the appellee but that the legatees Alice and Lizzie Woodfill, were entitled to all of the proceeds of the note, including the amount paid before the death of the testatrix. In the case of Naltner v. Dolan, 108 Ind. 500, 8 N. E. Rep. 289, it was held that whenever a trustee puts funds in such shape as to invest himself with the legal title to them, or if deposited in a bank in such manner as, on the face of the books of the bank in which the deposit is made, to authorize the trustee, his assigns or legal representatives, to claim it as the funds of the depositor, the cestui que trust has a right to treat the same as the funds of the trustee, and recover the same of the trustee; and in such case, if loss occurs, it is the loss of the depositor. Fletcher v. Sharpe, 108 Ind. 276, 9 N. E. Rep. 142. These authorities are decisive of the question in this

case.

Enoch G. Corya, administrator, deposited the money to his own credit, payable to his own order. There was a liability created on the part of the bank in favor of Corya. The loss sustained was the loss of Corya, the depositor, and he is liable, as administrator, to account for the full amount

as long as any of the assets, not specifically bequeathed, remain, such as are specifically bequeathed are not to be applied in payment of debts; although to the complete disappointment of the general legacies." We think the costs of administration should have been paid out of the estate not specifically bequeathed to said Alice and Lizzie Woodfill, and which was disposed of and given to Delia Corya by the residuary clause in the will. See Woerner, Adm'n, 989. The court erred in overruling the exceptions of the appellant to the report, and in overruling appellant's motion for new trial. Judgment reversed, at costs of appellee, with instructions to the court below to proceed in accordance with this opinion.

BERKSHIRE, J., took no part in the decision of this case.

(119 Ind. 525) BRUCE et al. v. BISSELL et al. (Supreme Court of Indiana. June 27, 1889.) CONSTRUCTION OF WILL.

provided she should survive him, remainder to her surviving children in fee. A subsequent clause in the will devised the same land to testator's wife for life, remainder to testator's heirs in fee. Both wife and daughter survived the testator, and the latter afterwards died, leaving a son. Held, that said son, upon testator's death, took a vested remainder in fee.

A testator devised land to his daughter for life.

Appeal from circuit court, Marion county; LIVINGSTON HOWLAND, Judge.

R. W. McNeal, for appellants. McDonald, Butler & Snow, Winter & Elam, Duncan & Smith, A. B. Young, Peelle & Taylor, F. W. Morrison, Chas. E. Barrett, Shepard & Martindale, and Davis & Mortz, for appellees.

MITCHELL, J. This action was brought by James A. and John W. Bruce against

George P. Bissell and about 100 others, to re- | her death to my right heirs in fee-simple, excover the possession of certain real estate ly- cept the said Rachel Johnson and Dovey ing within the limits of the city of Indian- Bruce, and their descendants." The facts apolis. The plaintiffs claim title under the are obscurely or incompletely stated in the last will and testament of William Reagan, record and briefs, but, as we understand the who died on the 5th day of April, 1847, the record, the land involved in the present litiowner of the land in controversy, while the gation is that described in the first paragraph defendants in like manner assert title as above, and was devised to Rachel Johnson purchasers, through one whom they claim for life, with remainder over to her children.. took it as devisee from the testator. The The same land is embraced by the descripjudgment from which this appeal is prosecut- tion contained in the last clause of the will, ed was adverse to the plaintiffs below, and and is devised to the testator's widow for whether that judgment shall be affirmed or life, together with the north half of the same reversed depends upon the construction to tract which is disposed of by the second be given to the will under or through which clause above set out. both parties claim. So much thereof as is The widow and both daughters survived material reads as follows: "I give and be- the testator, Rachel having, at the time of queath unto my daughter Rachel Johnson, his death, one son, Harrison L. Johnson, wife of Jeremiah Johnson, a tract of land on who was her only child. She survived her which she now lives, lying and being in father only 19 days, her death having ocMarion county, known as the south half of curred on the 24th day of April, 1847. Harthe south-east quarter of section number rison L. Johnson died intestate on the 15th twenty-five, in township number sixteen day of September, 1856, leaving John W. north, of range three east, for and during Johnson as his sole heir. The latter died her natural life, provided she shall be living on the 27th day of December, 1872, unmarat the time of my death, and after her death ried, and without issue, leaving Nancy Reato the child or children of her body lawfully gan, his great-grandmother, as his next of begotten, who may survive her, in fee-sim- kin under the statute. Nancy Reagan, asple; but if she, said Rachel, should die be- suming that she took a life-estate in the fore me, and leave such child or children liv- whole farm under the last clause of the will ing at my death, then, in that event, I be- of her husband, continued in possession, and queath said land to said child or children in in 1873, claiming to have inherited the south fee-simple, but should she, said Rachel, be half in fee from her great-grandson, John living at the time of my death and after- W. Johnson, she sold and conveyed it to wards die, leaving no such child or children, George Bruce. The land was afterwards platthen I give and bequeath said tract of land ted into streets, alleys, and lots. The deto said Rachel for life, remainder to my right fendants claim through the conveyance to heirs in fee-simple. I give and bequeath to George Bruce, as his near and remote grantees, my daughter Dovey Bruce, wife of George while the plaintiffs, the only children and Bruce, the north half of the aforesaid tract of heirs of Dovey Bruce, assert that by the land for and during her natural life, provid-terms of the will of William Reagan they are ed she shall be living at the time of my death, the owners and entitled to the immediate and after her death to the child or children of possession as the right heirs of the testator, her body lawfully begotten who may survive to whom the land was devised upon a conher in fee-simple; but if the said Dovey should tingency which they claim has happened. die before me, and leave such child or chil- It was settled by the judgment of this dren living at my death, then, and in that court in Cloud v. Bruce, 61 Ind. 171, that deevent, I bequeath said tract of land to said grees of kindred are computed in this state, child or children in fee-simple, but should according to the rule of the civil law, that the said Dovey be living at the time of my the statute of descents covers every concéivdeath, and afterwards die, leaving no such able state of circumstances that can surround child or children, then I give and bequeath the descent of property, and that under secsaid tract of land to said Dovey for life, re- tion 2471, Rev. St. 1881, the real estate of an mainder to my right heirs in fee-simple, intestate descends to a great-grandmother, as it being my express intention that my said being "the next of kin in equal degree of daughters shall respectively enjoy said tracts consanguinity," in preference to a great aunt of land above described and bequeathed dur- or uncle of the same paternal or maternal ing their respective natural lives, and after line. It is hence settled by the above decistheir and each of their deaths to descend in ion that whatever interest John W. Johnfee-simple respectively to the child or chil- son, the grandson of Rachel Johnson, had in dren of their bodies lawfully begotten that the land at the date of his death, was inhermay survive them respectively, and survive ited by his great-grandmother, Nancy Reamyself, and in default then to go to my right gan, through whose conveyance the appellees heirs in fee-simple. I give and bequeath to claim title. On the appellant's behalf it is my beloved wife, Nancy, during her natural contended that the intention of the testator, life, the farm on which I now live, known as as expressed in his will, was that his widow, the south-east quarter of section number Nancy Reagan, should enjoy the entire estwenty-five, in township number sixteen, tate during her natural life, and that upon (16,) north, of range three east, and after her death it should vest in equal moieties in

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his two daughters, Rachel Johnson and Dovey of the time of enjoyment. The right and Bruce, as provided in the first and second capacity of the remainder-man to take posclauses of the will, to be enjoyed by them session of the estate, if the possession were during their respective lives, and upon the to become vacant, and the certainty that the death of the daughters, respectively, with a event upon which the vacancy depends must child or children surviving, the fee-simple happen sometime, and not the certainty that was then to vest in their child or children, it will happen in the life-time of the remainand, in the event of the death of either leav-der-man, determines whether or not the esing no child or children, then the share so devised was to go to the right heirs of the testator. Hence the argument proceeds, since Nancy Reagan, in whom was vested the paramount life-estate, outlived her daughter Rachel Johnson, and all her lineal descendants, neither the daughter nor her son, Harrison L., both of whom were alive at the death of the testator, ever took any vested interest in the land, which, according to the appellants' insistance, was carried by the last clause of the will, upon the termination of the precedent particular estate by the death of Nancy Reagan, to them as the right heirs of the testator.

By

tate is vested or contingent." Hoover v.
Hoover, supra; Croxall v. Shererd, 5 Wall.
268; Tied. Real Prop. § 401. When the tes-
tator whose will is involved in the present
case died, his widow, Nancy Reagan, his
daughter Rachel Johnson, and her son, Har-
rison L. Johnson, to whom he had devised
particular and ulterior estates respectively in
the land in controversy, were all alive. A
will takes effect, and is to be regarded as
speaking, from the date of the death of the
testator, and words of survivorship found
therein, unless there is a manifest intent to
the contrary, always relate to those who are
then in being and survive the testator.
the first clause of the will the land in dis-
pute was devised to Rachel Johnson for life,
provided she should be living at the time of
the testator's death, and after her death to
her child or children who might survive her.
It was provided further that in the event
this testator's daughter Rachel should be liv-
ing at his death, and yet die without leaving
a child or children, then she was to have the
land during her life-time, with remainder
over to his right heirs in fee-simple. This
was an attempt to create an estate in the nat-
ure of a cross-remainder, but, as we have
seen, Rachel Johnson died subsequent to the
death of the testator, leaving a son, Harri-

fee vested upon the death of the testator. The contingency never arose upon which the cross-remainder was to take effect. It is unnecessary, therefore, to consider that feature of the will further.

The error which pervades the argument is fundamental, and lies in the assumption that, because the enjoyment of the successive estates was postponed until the particular estate which preceded it should determine, therefore the successive estates created by the will did not vest in the respective devisees upon the death of the testator, but continued in abeyance until the happening of the events which were to determine the prior estate. The general rule is, where a particular estate is created by will, with a remainder over upon the happening of an event, the words descriptive of the event are construed as referring merely to the period when the enjoyment of the prior estate de-son L. Johnson, in whom the remainder in termines, and not as designed, in the absence of express words or a manifest intent to that effect, to postpone the vesting of the remainder over. 2 Jarm. Wills, 407. So, where a remainder is limited over to a class which is liable to be increased during the continuance of the prior estate, the remainder will not be held in abeyance, but will vest at the testator's death in those of the class who answer the description, subject to open and let in after-born members. Tied. Real Prop. § 402. It is familiar law that, in the absence of a clear manifestation of the intention of the testator to the contrary, estates shall be held to vest at the earliest possible period. The intent to postpone the vesting of the estate must be clear and manifest, and must not arise by mere inference or construction. It is likewise well settled that "the law will not construe a limitation in a will into an executory devise, when it can take effect as a remainder, nor a remainder to be contingent when it can be taken to be vested." Doe v. Considine, 6 Wall. 458475; Amos v. Amos, 117 Ind. 19, 37, 19 N. E. Rep. 539, 543; Harris v. Carpenter, 109 Ind. 540, 10 N. E. Rep. 422; Hoover v. Hoover, 116 Ind. 498, 19 N. E. Rep. 468, and cases cited. "An estate in remainder is not rendered contingent by the uncertainty

The

It may be observed that the last clause of the will gave to the widow, Nancy Reagan, an estate for life in the entire tract in clear and unambiguous terms. This clause also contains some expressions in relation to the remainder over after her death, which, when considered in connection with the preceding clauses in the will, are ambiguous. land in dispute was, however, disposed of in clear and unambiguous terms in the second clause of the will. It was devised to Rachel Johnson for life, with remainder over in fee to her child or children, in case she should survive the testator, leaving a child or children, which she did. But for the last clause of the will there would be no room to argue that Harrison L. Johnson did not take the remainder over in fee under this clause of the will. Whatever doubt there is arises from the ambiguity created by the latter part of that clause. The rule is that where an estate or interest is given in one clause of a will, in clear and decisive terms, the interest so given cannot be taken away or cut down by raising a doubt upon the extent and mean

ing of a subsequent clause, nor by inference | court the duty of preparing the syllabi, and therefrom, nor by any subsequent words that this is the keystone of the entire system it are not as clear and decisive as the words of proposes to create. The removal of this keythe clause giving the interest or estate." stone, like the removal of the keystone of an Bailey v. Sanger, 108 Ind. 264, 9 N. E. Rep. arch, causes the whole to crumble and fall. 159, and cases cited; Hochstedler v. Hochsted- It is impossible to enforce the act without ler, 108 Ind. 506, 9 N. E. Rep. 467; Goudie v. judicial legislation, since reports without Johnston, 109 Ind. 427, 10 N. E. Rep. 296; syllabi are unknown to the law, and it canAllen v. Craft, 109 Ind. 476, 9 N. E. Rep. not be rationally conceived that the legisla919. Where two particular estates of the ture intended to provide for a system of resame extent are carved out of the same prem- porting with this essential and indispensable ises, and given to different persons, in the feature absent. The error of the legislature absence of anything to indicate an intention consists in assuming that the duty of preon the part of the testator that the devisees paring the head-notes can be imposed upon were to be joint beneficiaries, the rule seems the judges. In re Griffiths, 20 N. E. Rep. to be that the superior estate must elapse be- 513. This error pervades and poisons the fore the inferior can begin. In the absence whole act, and causes its entire invalidity. of other evidence as to which is superior, We think it is beyond controversy that a systhat which is created last in the will is tem resting on a radical and fundamental deemed to have the preference. Wig. Wills, error must fail. The provision of the act 39, 302. It is not important, however, that assuming to compel the judges to prepare the we determine whether Nancy Reagan took syllabi is so interlocked and blended with the the superior life-estate in the whole tract, or other provisions as to make a separation imwhether she became a joint beneficiary for possible. We understand it to be firmly eslife with her daughters, since the decision tablished that where a separation cannot be depends entirely on the conclusion already made, and the invalid provision completely enunciated that Harrison L. Johnson took a detached and treated as independent, the vested remainder in fee upon the death of whole act must be pronounced void. If the the testator, which was in nowise affected purpose of an act "is to accomplish a single or cut down by the doubtful expressions con- object only, and some of its provisions are tained in the last clause of the will. There void, the whole must fail, unless sufficient was no error. The judgment is therefore remains to effect the object without the aid. affirmed, with costs. of the invalid portion. And if they are so mutually connected with and dependent on each other as conditions, considerations, or

(119 Ind. 520)

GRIFFIN, Secretary of State, v. STATE ex rel. compensations for each other, as to warrant

GRIFFITHS, Reporter.

(Supreme Court of Indiana. June 27, 1889.) CONSTITUTIONAL LAW.

The provisions of act Ind. March 4, 1889, which attempts to create a new system of law reporting in which the judges shall prepare the syllabi, are so interdependent that the unconstitutionality of the requirement as to the syllabi renders the whole act void.

Appeal from circuit court, Marion county; LIVINGSTONE HOWLAND, Judge.

McMaster & Boice, for appellant. Claypool & Ketcham, Clifford & Browder, L. T. Michener, and A. F. Potts, for appellee.

the belief that the legislature intended them as a whole, and if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them." Cooley, Const. Lim. 212. In Meshmeier v. State, 11 Ind. 482, WORDEN, J., in delivering the opinion of the court, said: "But it would seem that the provisions of the statute held to be constitutional should be substantially the same, when considered by themselves, as when taken in connection with other parts of the statute, held to be unconstitutional; or, in other ELLIOTT, C. J. The question which this words, where that part of a statute which is record presents may be thus stated: Shall unconstitutional so limits and qualifies the the secretary of state accept 500 copies of remaining portion that the latter, when volume 117 of the Indiana Reports under the stript of such unconstitutional provisions, is laws enacted prior to March 4, 1889, or must essentially different in its effect and operation he receive them from the reporter under the from what it would be were the whole law act of March 4, 1889? It is our judgment valid, it would seem that the whole law should that the act of March 4, 1889, is entirely des- fall. The remaining portion of the statute, titute of validity, and that the secretary of when thus stript of its limitations and qualstate must proceed under the statutes enacted ifications, cannot have the force of law, beprior to its passage. It is quite clear that cause it is not an expression of the legislative the act of March 4, 1889, assumes to create will. The legislature pass an entire statute, an entirely new system, and that the essential on the supposition, of course, that it is all feature attempted to be introduced by it is in valid, and to take effect. The courts find violation of the constitution, and carries down some of its essential elements in conflict with the whole act. Elliott's Supp. §§ 1824-1836. the constitution, strip it of those elements, It assumes to change the former system by and leave the remaining portion, mutilated imposing upon the judges of the supreme and transformed into a different thing from

what it was when it left the hands of the legislature. The statute, thus emasculated, is not the creature of the legislature; and it would be an act of legislation on the part of the courts to put it in force. The courts have no right thus to usurp the province of the legislature." The general rule stated by Judge Cooley is approved and applied in State v. Denny, 21 N. E. Rep, 274, (November term.) It is undoubtedly the law that when the several provisions of an act are independent some may stand, although others may fall, but this occurs only when the provisions are clearly independent. As said by SHAW, C. J., in Warren v. Mayor, etc., 2 Gray, 94, the rule that some portions of a statute may stand while others fall "must be taken with this limitation: that the parts so held respectively constitutional and unconstitutional must be wholly independent of each other."

since it is perfectly clear that the legislature meant to construct a complete system upon the foundation laid by it. As that foundation is absolutely destitute of strength, the whole fabric must fall. We suppose no one doubts that the head-notes are an essential part of a report; and, this being so, it must follow that an act which attempts to impose this work on the judges proceeds on a theory that is utterly untenable, and upon which no valid act can be constructed. The act before us proceeds on this theory, and is entirely devoid of force. The theory being radically unsound, it is impossible to detach any portion of the provisions of the act, for the radical defect in the governing theory destroys the whole superstructure. Courts cannot patch up legislative enactments. A court has no right to enter the legislative domain. It would be an unjustifiable usurpation of power by the courts to attempt to cure the infirmity in the statute by placing in it provisions found in other acts. The act before us assumes to cover the entire subject. It is an entirety, and as an entirety must be judged; and, as it assumes to cover the entire subject, it does it, or it does nothing. It must stand or fall as an entire system. The courts must take the act as it comes from the legislature, and they can neither import provisions into it nor wrench provisions from it by assuming the functions of legislators. Legislation cannot be mended by judicial tinkering, nor validated by judicial judgment, where it is so infirm as to be without force. With questions of policy or expediency courts have nothing to do, nor can the good policy and wise expediency of an act of the legislature control the judicial judgment. If an act impinges upon the constitution, one course, and one course only, is open to the courts, and that is to adjudge it void. However much the courts may be impressed with the wisdom of a particular act, or however urgent may seem the necessity for legislation, they must, nevertheless, try the act by the constitution, and if it will not stand the test, so declare. Judgment af

In the statute under discussion, the invalid provisions are not independent, and if the unconstitutional provisions are stripped from it, then it becomes an entirely different act from the one which left the hands of the legislature. The first section of the act provides that "it shall be the duty of the reporter of the supreme court to receive all opinions and syllabi which by this act are required to be published;" and section 12 directs the judges to prepare the syllabi. It is, therefore, quite clear that if the provisions of section 12 are inoperative, there can be no syllabi prepared, and without syllabi it would, as every one knows, be impossible to prepare an index; and yet the act commands that an index shall be prepared by the reporter, and that the syllabi which the reporter shall receive are those ordered to be prepared by the judges. The sections referring to the index are thus irreparably interwoven with the provisions respecting the preparation of the syllabi, and the fall of the latter necessarily carries the former. Without syllabi we should have reports utterly unlike any ever published, and surely this was not the legislative intention. Certainly it cannot be contended that the legislature intended to create a system providing for the publication of a mere collec-firmed. tion of decisions without indexes or headnotes; and yet, if we strip the act of the provisions relating to the syllabi, we should have just such a system. The result we have indicated must eventually follow if the provisions respecting the syllabi are eradicated, for without them there is no provision authorizing any person to prepare the syllabi. It is therefore plainly evident that the whole system which the act assumes to create depends entirely upon the provisions respecting the syllabi. Either the whole system fails, or a system built up out of the mutilated act must be one wherein reports are to be published without syllabi or indexes. But such a deformed and lame system courts have no right to construct, for not only is the work of building a system legislative, but the attempt by the courts to build one would be to overthrow the expressed legislative will,

(119 Ind. 535)

SPARKLIN et al. v. ST. JAMES CHURCH. (Supreme Court of Indiana. June 28, 1889.) ASSIGNMENT OF ERRORS.

Where two appellants jointly assign as error the action of the court in sustaining a demurrer to the separate answer of one of them, no question is presented for the determination of the supreme court.

Appeal from circuit court, Elkhart county; JAMES D. OSBORN, Judge.

Lew Warner, Chas. W. Miller, and Dodge, Johnson & Herr, for appellants. W. L. Stonex and Baker & Baker, for appellees.

OLDS, J. This is an action brought by the appellees against Charles E. Sparklin, Anna L. Sparklin, Harry Kolb, and William Gross, for the possession of, and to quiet title to, cer

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