Ind. App. 461, 108 N. E. 400; Sovereign Camp, etc., v. Latham (1915) 59 Ind. App. 290, 107 N. E. 749; Scottish, etc., Ins. Co. v. B. E. Linkenhelt & Co. (1919) 70 Ind. App. 324, 121 N. E. 373; Kokomo, etc., Co. v. Ramseyer (Ind. App. 1920) 125 N. E. 580. Appellee has challenged the showing made by appellant on the question of diligence in seeking information, prior to the trial, on the subjects covered by the affidavits, but we are not required to consider such question, in view of what we have already stated. We conclude that the court did not err in overruling appellant's motion for a new trial on the ground of newly discovered evidence.

of which there was evidence, but there was no error in refusing to give the same as its subject-matter was substantially covered by instructions Nos. 21 and 23 given by the court on its own motion. Van Spanje v. Hostet tler (1918) 68 Ind. App. 518, 119 N. E. 725. Failing to find that the court erred in overruling appellant's motion for a new trial, the judgment is affirmed.

JELICIC v. VERMILLION COAL CO. (No. 11900.)

May 22, 1924.)

I. Master and servant

388-Widows conclusively presumed dependent within Compensation Act.

Under Acts 1919, p. 165, dividing widows entitled to compensation into three classes, those living with their husbands at the time of their deaths, those not living with them, but dependent on them, and those not living with them and not dependent on them, but nevertheless entitled by virtue of law to support from them, widows falling within the first and third classes are conclusively presumed to be wholly dependent, while as to those in the second class no such presumption arises. 2. Master and servant 403-Widow claiming compensation has burden of proving husband's liability to support her.

[3] The only remaining errors which ap pellant has attempted to present, relate to the (Appellate Court of Indiana, Division No. 1. action of the court in giving and refusing to give certain instructions. Appellee has challenged the sufficiency of appellant's brief to present any such questions, and her contentions in this regard have much merit. However, after much hesitation, we have decided to consider certain of the alleged errors, with reference to the instructions, which appellant claims to have presented. Complaint is made of the action of the court in giving instruction No. 2 on its own motion, in which the jury was informed that the complaint alleges as an act of negligence "that the defendant operated his truck at a great or high rate of speed," and that she could recover on proof of such negligence alone, if she had otherwise established her cause of action. Appellant bases his contention that this instruction is erroneous on a claim that there is no evidence that his truck was operated as alleged. The evidence does not warrant such a claim, in view of the direct testimony in that regard, and the inference to be drawn from the circumstance, which the evidence tends to establish, that the driver was unable to stop the truck in less than 75 feet from the place of collision, although he put on the emergency brake with all his power just before it occurred. There was no error in giving said instruction.

[4] What we have said as to said instruction No. 2 applies with equal force to instructions Nos. 14, 20, and 22, given by the court on its own motion, and of which complaint is made on account of the reference to speed in each of them. Instruction No. 19 given by the court on its own motion, is also challenged, but, as appellant has failed to point out in his brief wherein it is erroneous, we are not required to give the same any consideration.

[5] Appellant complains of the action of the court in refusing to give certain instructions requested by him, but, as he has not attempted to present any question, except as to No.

1, the others will not be considered. Said instruction contains a definition of an accident, and applies the same to certain facts

A widow entitled to compensation because the law imposed the duty on her deceased husband to support her has the burden of proving facts warranting the conclusion of such liability.

3. Master and servant 388-Husband held not liable to support wife claiming compensation for death.

A showing that the widow of an employee killed in August, 1921, had been living apart from him in a foreign country since January, 1914, had received $1,650 from him prior to 1917, was not dependent on him and had not heard from him since April, 1921, held insufficient to warrant the conclusion that such deceased husband was legally liable to her for support.

4. Husband and wife 4-Husband not liable for support of wife who has abandoned or voluntarily without justification lives apart.

A husband is not liable for the support of a wife who had abandoned him or voluntarily and without justification lives apart.

5. Pleading 63-Party claiming statutory right must bring himself within statute.

A party claiming a right conferred by statute must bring himself within its provisions. 6. Appeal and error 996-Findings based on reasonable inferences must be accepted as true.

Though facts found appear to be based on inferences, where same are reasonable, they

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(144 N.E.)

must be accepted as true on appeal, though Appellant's assignment of error contains contrary inferences may be equally reasonable 11 specifications, but all are covered by the and such as the appellate court would have first, as it presents the sufficiency of the facts been more inclined to draw. found to sustain the award and the sufficien7. Evidence 75-Widow's failure to explain cy of the evidence to sustain the finding of separation from husband and his failure to facts. Acts 1917, p. 154. We shall first consupport may be considered on question of his sider the sufficiency of the facts found to susliability for support. tain the award, denying compensation to apFailure of a widow claiming compensation pellant, as the widow of the deceased emto explain long-continued absence of her hus-ployee, Vide Jelicic. Under the law as it has band, his failure to support her during a part existed since 1919, three classes of widows of of that period, and the absence of communica- deceased employees are entitled to receive tion between them for nearly three months preceding his death, held a circumstance properly compensation, as dependents, where facts are considered in determining the question of his found showing liability, viz.: (1) Those living legal liability to support her. with their husbands at the time of their deaths; (2) those not living with their husbands at the time of their deaths, but dependent upon them for support; (3) those not living with their husbands at the time of their deaths, and not dependent upon them for support, but nevertheless were entitled to support from their husbands at the time of their deaths, by virtue of the laws of the state. Acts 1919, p. 165; Collwell v. Bedford Stone, etc., Co. (1920) 73 Ind. App. 344, 126 N. E. 439.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Joka Jelicic, by Dr. Bojidar Pouritch, Consul of the Kingdom of the Serbs, Croats and Slivenes, attorney in fact, against the Vermillion Coal Company. From denial of compensation, claimant appeals. Affirmed.

Defrees, Buckingham & Eaton, of Chicago, Ill., for appellant.

Hays & Hays, A. C. Owens, W. P. Stratton, J. S. Taylor, W. H. Bridwell, and G. W. Buff, all of Sullivan, for appellee.

[1] If a widow falls within either said first or third class, she is conclusively presumed to be wholly dependent upon her deceased husband for support; but if she falls within said second class, there is no such presumption, and hence the question of deBATMAN, J. Appellant seeks to reverse pendency must be determined in accordance an award in which she was denied compen-with the fact, as the fact may be at the time sation against appellee, based on the following finding of facts:

"And the full board, having heard the argument of counsel, having reviewed the evidence and being duly advised in the premises, finds that on July 20, 1921, one Vide Jelicic was in the employment of the defendant at an average weekly wage of $24; that on said date the said Vide Jelicic received a personal injury by an accident arising out of and in the course of his employment, of which the defendant had knowledge; that said injury resulted in the death of said Vide Jelicic on August 1, 1921, of which the defendant had knowledge; that at the time of the injury and death of said Vide Jelicic, the said Vide Jelicic left surviving him Joka Jelicic, his widow, and Djuka Jelicic, his minor daughter, who were at said time living in the Kingdom of the Serbs, Croats and Slovenes; that the said Djuka Jelicic died on April 18, 1922; that the said Vide Jelicic and his wife and daughter had been living apart since January 23, 1914; that up to 1917 the said Vide Jelicic had sent to his wife, Joka Jelicic, the sum of $1,650; that the said Joka Jelicic last heard of her husband, Vide Jelicic, on April 13, 1921; that, at the time of the injury and death of said Vide Jelicic, the said Joka Jelicic was not dependent upon him for her support; that the injury and death of the said Vide Jelicic was not due to his willful misconduct or willful disobedience of any orders of the defendant; that the defendant has paid $100 of the burial expenses of the said Vide Jelicic."

of such death, as provided in said last-named act. In the instant case it is clearly disclosed by the finding of facts that appellant does not fall within either said first or second class, as it is found that appellant was living apart from her husband at the time of his death, and that she was not dependent on him for her support. Therefore we are only required to determine whether she falls within said third class, which is based on the italicized portion of the following provision of section 38 of the Workmen's Compensation Act, as amended in 1919:

"The following persons shall be conclusively presumed to be wholly dependent for support on a deceased employee:

"(a) A wife upon her husband with whom she is living at the time of his death, or upon whom the laws of the state impose the obliga tion of her support at such time. (Our italics.) Acts 1919, p. 165.

*

Whether a wife is living with her husband at the time of his death involves a conclusion of fact, but whether the laws of the state impose an obligation upon him to support her at such time involves a conclusion of law, as its determination requires an application of abstract principles of law to the facts, as Lagler v. Roch they are found to exist. (1914) 57 Ind. App. 79, 104 N. E. 111; Cable Co. v. McElhoe (1914) 58 Ind. App. 637, 108 N. E. 790.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[2] The burden of proving the facts which, evidence, nor has she set out any such fact would warrant such a conclusion of law was upon appellant, and, if not found, we must assume they were not proved. Raynes v. Staats-Raynes Co. (1918) 68 Ind. App. 37, 119 N. E. 809; Calumet, etc., Co. v. Mroz (1922, Ind. App.) 137 N. E. 627; Chicago, etc., R. Co. v. Kaufman (1921, Ind. App.) 133 N. E. 399; S. J. Peabody, etc., Co. v. Miller (1922, Ind. App.) 133 N. E. 591.

which she claims is established by the evidence, but not stated in the finding. An investigation, however, discloses some evidence to sustain every ultimate fact expressly found, by being stated in the finding, or impliedly found, by being omitted therefrom. This is true, notwithstanding the variance between the evidence and finding as to when appellant last heard of or from her husband, as this at most is a mere evidential fact. True, some of such ultimate facts appear to be based upon inferences; but, as they are reasonable, we must accept such facts as true on appeal, although contrary inferences may be equally as reasonable, and such as we would have been more inclined to draw, had the questions been submitted to us as original ones. City of Linton v. Jones (1920) 75 Ind. App. 320, 130 N. E. 541; Utilities Coal Co. v. Herr (1921) 76 Ind. App. 312, 132 N. E. 262. In reaching this conclusion we note that the only evidence of facts, on which the Industrial Board could have based a con

state imposed an obligation upon appellant's husband to support her, at the time of his death, was given by appellant herself. It is significant that she did not give any evidence of misconduct on the part of her husband, which excused her from living with him at the time of his death, or any evidence that at such time she was free from conduct which would have relieved her husband from the obligation imposed upon him by the laws of this state to give her support.

[3-5] The only facts found, bearing upon the question under consideration, are the following: Appellant is the widow of the deceased employee, Vide Jelicic. She had been living apart from him since January 23, 1914. He had sent her the sum of $1,650 prior to 1917, but she was not dependent upon him for her support at the time of his death. She last heard of him on April 13, 1921, a little more than three months prior to his death. Do these facts warrant the conclusion of law, essential to appellant's right of recovery, viz. that the laws of this state imposed an obligation on said deceased employee to support appellant at the time of his death?clusion, as to whether or not the laws of this We are clearly of the opinion that they do not, for the following reasons: While it is true, as a general rule, that the laws of this state impose upon husbands the duty of supporting their wives, such duty does not exist under all circumstances. To illustrate: It does not exist where a wife abandons her husband, or voluntarily and without justification lives apart from him. Summers v. Summers (1912) 179 Ind. 8, 100 N. E. 71; Brown v. Templeton Coal Co. (1923, Ind App.) 137 N. E. 724. In the instant case no fact is found which explains the conduct of appellant in living apart from her husband for more than seven years prior to his death. In face of the burden resting on her to establish her right to receive compensation, we may not assume that her conduct in that regard was attributable to the fault of her husband, and thereby conclude that he was under a legal obligation to support appellant, by virtue of the laws of this state, notwithstanding her absence in a foreign land for more than seven years. This is in accord with the well-established rule that a party, claiming a right conferred by statute, must bring himself fully and clearly within its provisions before he can enforce it. Stafford v. St. John (1904) 164 Ind. 277, 73 N. E. 596; Board v. Jarnecke (1905) 164 Ind. 658, 74 N. E. 520; Woodward v. State (1910)

174 Ind. 743, 93 N. E. 169.

[6] The only other question before us relates to the sufficiency of the evidence to sustain the finding. Appellant in the propositions or points of her brief has not set out any ultimate fact which she claims is stated in the finding, but not established by the

[7] It is also significant that, although the deceased employee had been in this country for more than seven years, had written her only occasionally and had ceased to send her money for more than four years prior to his death, she gave no evidence of having written to him, or made any effort to join him in this country, or of having made any complaint of his long absence, or of his failure to send her any portion of his earnings, during the time stated. These were facts peculiarly within her knowledge, and pertinent to an issue on which she had the burden. Her failure to give any evidence in explanation thereof was a circumstance the court had a right to consider, and may have been controlling in the determination of material questions of fact against her, which Barnett v. Gluting (1891) 3 Ind. App. 415, 29 N. E. 154, 927; Bump v. McGrannahan (1915) 61 Ind. App. 136, 111 N. E. 640; Godwin v. De Motte (1916) 64 Ind. App. 394, 116 N. E. 17; Indianapolis, etc., T. Co. v. Montfort (1923, Ind. App.) 139 N. E. 677.

otherwise would have been in even balance.

For the reasons stated the award is affirmed.

(144 N.E.)

RODEBECK v. RICHARDSON et al.

(No. 11831.)

(Appellate Court of Indiana, Division No. 2. June 3, 1924.)

1. Executors and administrators

319-Sale

there was no reversible error in refusing testimony of trial judge that if he had known purchaser was objecting to title he would not at the time he took action on administrator's

report have approved it, where only inference therefrom was that court would have postponed action until purchaser had been given proval of report.

by administrator under court order is judl-opportunity to present his objection to ap

cial sale.

A sale by an administrator under order and decree of court is strictly a judicial sale.

2. Executors and administrators 375-Sales by administrators effective after approval by court.

Sales by administrators are not only made under court order, but must be reported to and approved by court before becoming effective. 3. Executors and administrators

76-Administrator's act, approved by court, becomes judicial act.

An administrator must report his proceedings to court, and after court approves his act it adopts it as its own, and it becomes a judicial act.

4. Executors and administrators 377-Party for whose benefit notice is given may waive.

Object of notice of sale is to inform public of nature and condition of land to be sold and time, place, and terms, and party for whose benefit it is given may waive omission to give notice or defects therein.

5. Executors and administrators 362-If object of notice of sale is attained, error or defects therein are Immaterial.

If objects to be gained by giving notice of sale are attained, immaterial errors and defects will not affect its sufficiency.

6. Executors and administrators 375When confirmation of sale cures defects in

notice stated.

Where terms of sale or notice given are such as court had authority to direct in decree ordering property sold, confirmation of sale by court cures irregularities in terms of sale as made or in notice of sale.

7. Executors and administrators

Appeal from Circuit Court, Hancock Coun. ty; Fred C. Gause, Judge.

In the matter of the estate of Henry Fralich, deceased. Petition by Frederick Rodebeck against Guy Richardson, administrator, and others, to set aside order approving sale of land. From judgment denying petitioner relief, he appeals. Affirmed.

Samuel J. Offutt and Charles H. Cook, both of Greenfield, for appellant. Arthur C. Van Duyn and Charles L. Lindall, both of Greenfield, for appellees.

MCMAHAN, J. Guy Richardson adminis trator of the estate of Henry Fralich, hereafter referred to as appellee, filed his petition for the sale of real estate to pay debts. All of the heirs of the decedent and all lienholders were made defendants. On February 4, 1920, the court directed said administrator to sell such real estate at private sale, after giving notice of the time, terms, and place of sale by two weekly publications in a certain weekly paper. On April 25, 1921, appellee filed his report reciting, among other things, that he had given notice of sale as required by the order of the court, that he sold such real estate to appellant, and asking that said sale be approved. The sale was approved, deed ordered, reported, and approved, with directions to deliver the same to appellant when he complied with the or der of the court fixing the terms of sale.

May 18, 1921, appellant filed his petition asking the court to set aside the order ap362-Mis- proving the sale, on the ground that the take in notice of sale, not misleading to pub-written agreement entered into between him lic, held immaterial.

Where mistake in notice as to date of sale is not such as to mislead the public, it is immaterial and of no effect; such being especially true where mistake is obvious on inspection. 8. Executors and administrators 362-Defect in notice of sale of land held immaterial. Where only parties who could attack sale of land by administrator to pay debts because of defects in notice of sale were heirs of decedent, who by their subsequent warranty deed were barred from action to set aside and vacate sale, defects in notice were immaterial. 9. Executors and administrators 380 (3)— Refusal to admit evidence of trial judge that if informed of objection he would not have approved administrator's sale held not reversible error.

In proceeding to set aside order approving sale of land by administrator to pay debts,

and appellee required appellee to furnish an abstract showing a merchantable title to the real estate; that the abstract which appellee furnished did not include the papers, proceedings, and judgment ordering the real estate sold, and did not show a merchantable title; that, on having certain objections to the title pointed out, appellee caused suit to be instituted to quiet the title to correct the alleged defects; that, after the decree quieting title had been entered, appellee again tendered an abstract, but that the same failed to show a merchantable title, in that it did

not show that appellee had caused notice of the time of the sale to be published; that the notice of sale as shown by the abstract and by the record was published in the paper named on the 5th, 12th, and 19th days of February, and stated that appellee would of

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fer the real estate for sale February 4, 1920, [ advertise the land for sale. Appellee refused and that no other or different notice of such to readvertise unless appellant would agree sale was given; that appellant notified appellee of the defects in said notice, and that by reason thereof he would not complete the purchase of the real estate; that appellee, with full knowledge of said fact, presented his report of sale to the court and secured the approval thereof; that appellant had no knowledge that appellee was intending to make such report of sale until after the same had been filed and approved. Appellee filed an answer to this petition, and, after hearing evidence, the court denied appellant any relief. Appellant's motion for a new trial Appellant entered into possession of the for reasons, (1) that the decision is not sus- real estate in controversy within a few days tained by sufficient evidence, (2) that the after the agreement between him and appeldecision is contrary to law, and (3) in exclud-lee was signed. In his answer to appellant's ing certain evidence, being overruled, he ap- petition appellee alleged that such possession peals.