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and also I give to my said sister my long gold chain, and I request her to give said chain to some poor Catholic bishop, also to my said sister whatever she may wish to have out of my room and whatever remains in said room be given to Annie Morgan, Saran Hayes and Ada Blake."

Item 2 and items 4 to 15, inclusive, consist of charitable devises and bequests and bequests to relatives and friends. Items 16 and 17 are as follows:

"16. I hereby give and bequeath and devise to my sister Annie E. Harned any and all balance or remainder that may be left after the carrying out and administering my estate as herein directed.

"17. I hereby nominate and appoint the Washington Trust Company of the town of Washington, in the county of Daviess and state of Indiana, as my executor to carry out the foregoing will."

Edward K. Hertford is a minor, and appeared by guardian ad litem. At the hearing counsel agreed on a statement of facts with a stipulation that, in so far as admissible in evidence, the same should be deemed as true. This statement includes the following: The testatrix was a widow for 18 years previous to the execution of the will. She was of sound mind, but in poor physical health, and was a patient in a hospital at Evansville when the will was made. It was written by a stranger to her, a lawyer at Evansville, who was never at Washington, knew nothing of its financial institutions, and did not actually know whether the municipal corporation of Washington was a city or town. At the time all Mrs. Wilson's private papers and securities were in Washington. She owned no Greencastle school bonds, but did own two Putnam county courthouse bonds of the par value of $500 each. In 1885 she inherited from her deceased father 20 shares of stock in the Washington National Bank, located in the city of Washington, in Daviess county. In 1896 she sold ten shares of this stock (par value $100 per share) to F. M. Harned, husband of appellee Annie E. Harned, and with whom she resided. In 1907 a stock dividend of 100 per cent. was declared, and the capital stock of the bank increased from $50,000 to $100,000. Mrs. Wilson's 10share certificate was surrendered, and in lieu thereof, with her knowledge, one for 20 shares was issued to her. Said F. M. Harned delivered the new certificate to her in 1907, and executed her receipt therefor to the bank. She owned this certificate when the will was made, and at her death. The actual value of the stock is and was then when the will was made $250 per share. She owned no other bank stock. She never in person attended any stockholder's meeting of the bank, and was not in it for two or three years before the will was made. When dividends were declared on her bank stock, the amounts due her were credited to her deposit account, and certificates therefor delivered to said Harned, who delivered the same to her. There was before the execution

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of the will, in said city of Washington, a corporation called the Washington Trust Company, of which Mrs. Wilson knew. 1902, however, this company was merged into the Citizens' Loan & Trust Company of said city. The latter is still in existence doing business. The testatrix was ignorant of the merger.

The trial court adjudged that by item 1 of the will Mrs. Wilson bequeathed to Irma Hertford the two Putnam county courthouse bonds, to be held by the Citizens' Loan & Trust Company of Washington in trust for the legatees as named in said item. It further adjudged that 10 shares of the bank stock was bequeathed to Irma Hertford by item one, and that the remaining 10 shares passed to Annie Harned under the residuary clause of the will.

Irma and Edward K. Hertford appeal, and claim that all the bank stock was disposed of by item 1 of the will; that the clause, "I hereby give and bequeath to Mrs. Irma Hertford my stock in the Washington National Bank amounting to one thousand dollars,” considered in connection with the other provisions of the will and the facts surrounding the testatrix when it was executed, show her intention to bequeath all the stock; that the words which we italicize were used for the purpose of superadded description, and should be disregarded. Counsel for appellees contend that the italicized words were used for the purpose of restriction of quantity of stock given rather than of description of the gift made, and that there is no latent ambiguity in the will that calls for the admission of parol evidence.

[1, 2] The right to dispose of property by will is a creature of statute. Its exercise is limited by the requirement that it be in writing. While courts of equity are invested with the power of reforming written contracts for mutual mistake and make them conform with the intent of the contracting parties, they are not clothed with like authority over wills, nor have they the rightful power to admit extrinsic evidence to add to, eliminate, or vary the terms of a will as written. Dennis v. Holsapple (1897) 148 Ind. 297, 47 N. E. 631, 46 L. R. A. 168, 62 Am. St. Rep. 526.

[3] Since, however, it is the object in construing wills to give effect to the testator's lawful intentions expressed in the will, and since the law prescribes no technical rule of accuracy either in the description of the gift or of the donee, extrinsic evidence is admissible to show the circumstances surrounding the testator when the will was made, and thus furnish the court engaged in the task of ascertaining the intent the same light, as near as possible, as that enjoyed by the writer of the instrument. Daugherty v. Rodgers (1889) 119 Ind. 254, 20 N. E. 779, 3 L. R. A. 847.

[4, 5] In construing wills the general sub

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Jects of inquiry are: (1) The person intend- I would have passed without such mention ed; (2) the thing contemplated; and (3) the under the residuary clause. Her stock testator's purpose in relation to such per- was represented by a single certificate, and son and thing. Wigram on Wills, p. 263, the legacy to Mrs. Hertford was a specific note. It often happens that the language one. The language used in item 1 is not reaof a will, on the face thereof, is sufficiently sonably consistent with the assumed intent clear to denote the testator's purpose; yet, to divide the stock equally between Mrs. when read in the light of evidence relating Harned and Mrs. Hertford. to the property owned by him, and the ob- In Patch v. White, supra, the testator, on jects of his bounty, when the will was ex- the face of the will, devised to a person namecuted, there develops such lack of harmony ed "lot No. 6 in square 403" in the city of between the language employed and the sur- Washington, D. C. The testator did not own rounding facts as to render the testator's in- such lot, but did own lot numbered 3 in tention obscure. To remove such latent am- square 406. In an opinion holding that the am-s biguity the court may properly inquire into devisee acquired title to the lot actually ownevery other material extrinsic fact to which ed, but erroneously described, it was said: the will certainly refers, and to the relation of the testator to such facts, to the end that the court may discover the purpose of the testator in the language actually used in the will. Daugherty v. Rodgers, supra, 119 Ind. 259, 20 N. E. 779, 3 L. R. A. 847; Patch v. White, 117 U. S. 210, 6 Sup. Ct. 617, 710, 29 L. Ed. 860.

[6] Errors in the description of a legacy or legatee will be disregarded where enough remains to show with reasonable certainty, the gift and object intended. Pate v. Bushong (1903) 161 Ind. 533, 540, 69 N. E. 291, 63 L. R. A. 593, 100 Am. St. Rep. 287.

"The testator, evidently by mistake, put '3' for '6' and '6' for '3,' a sort of misspeech to which the human mind is perversely addicted. It is done every day even by painstaking people. Dr. Johnson, in the preface to his Dictionary. well says: 'Sudden fits of inadvertence will surprise vigilance, slight avocations will seduce attention, and casual eclipses of the mind will darken learning.' Not to allow the correction of such evident slips of attention, when there is evidence by which to correct it, would be to abrogate the old maxim of the law, 'Falsa demonstratio non nocet.'"

In the instant case item 1 of Mrs. Wilson's

will provides that:

"I hereby give and bequeath to Mrs. Irma Hertford my stock in the Washington National Bank."

Standing alone, this provision would undoubtedly bequeath all the stock in such bank owned by her. We are of the opinion from the terms of the will, and the facts admitted as true, that the phrase "amounting to $1,000" was intended by testatrix to furnish an additional description of the bank stock owned by her, and not to limit the quantity of the gift to Mrs. Hertford; that such description is erroneous, and should

and authorities cited. See also Note to Re Bocck, L. R. A. 1915E, 1009.

[7, 8] It appears here that when the will was made Mrs. Wilson owned 20 shares of stock, of the par value of $2,000, and of the actual value of $5,000. It was necessary for the trial court to determine whether the testatrix intended to give to Irma Hertford a beneficial interest in (1) All the bank stock, or (2) the half thereof, or possibly $1,000, in the proceeds of the sale thereof. We are We are of the opinion that extraneous facts were admissible in evidence to remove the latent ambiguity. Daugherty v. Rodgers, supra. be disregarded. Pate v. Bushong, supra, These facts show that testatrix's certificate of stock originally represented only 10 shares, of the par value of $1,000, and that this was exchanged for the one in controversy; the increase in the number of shares being accomplished by the conversion of undivided earnings into capital stock. The will was executed five years after the new certificate was delivered to her, and at the time she could not examine her private papers for accurate description. If she intended to divide this bank stock between the residuary legatee and Mrs. Hertford, she omitted from item 3 any mention thereof, and this omission is significant, for it expressly mentions a gift of $1,000 to Mrs. Harned which

[9] It is suggested by counsel for appellees that most of the cases relied on by appellants' counsel deal with misdescriptions of real estate. While this is true, we perceive no good reason why a like rule is not applicable to bequests of personalty.

Appellants' motion for a new trial challenged the court's decision because contrary to law, and not supported by sufficient evidence. The court's construction of the provision relating to the bank stock was erroneous, and the judgment is reversed, with instructions to grant appellants' motion for a new trial.

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(63 Ind. App. 272)

TROOK v. TROOK et al. (No. 9287.)* (Appellate Court of Indiana, Division No. 2. Oct. 5, 1916.)

1. NEW TRIAL 178(6)-As or RIGHT-SEVERAL CAUSES OF ACTION.

Defendant is not entitled to new trial as of right, the complaint stating two substantive causes of action, one involving title to real estate, the other for an accounting, both of which proceeded to judgment, the former of which would, standing alone, and the latter would not, entitle him to a new trial as of right.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 354; Dec. Dig. 178(6).] 2. APPEAL AND ERROR 835(2)-REHEARING -QUESTION NOT RAISED BEFORE.

Defendant cannot on rehearing for the first time question the sufficiency of the complaint, under the statute to establish a trust in real

estate.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3242; Dec. Dig. 835(2).] Appeal from Superior Court, Grant County; Robert M. Van Atta, Judge.

On rehearing. Denied.

For former opinion, see 110 N. E. 1004. Woodson Marshall, Geo. A. Henry, Wilson D. Lett, and John A. Kersey, all of Marion, and Myers & Gates, of Indianapolis, for appellant. G. D. Dean, of Indianapolis, and Blacklidge, Wolf & Barnes, of Kokomo, for appellees.

MORAN, J. Appellant by his petition for a rehearing and briefs supporting the same insists that the court erred in its original opinion in holding: (1) That appellant was not entitled to a new trial as of right; and (2) in holding that the Grant superior court had authority to set aside an order of the Grant circuit court granting a new trial as of right after the cause was transferred to the superior court by agreement of the parties. As to the latter contention, the argument now advanced in this behalf is in the main the same as advanced by appellant originally, and what we have said in our former opinion fully covers such questions.

[1] As to the first proposition, appellant contends that, notwithstanding much is said in the complaint to the effect that appellant took title to the real estate in question in trust for appellees, and a trust is asked to be declared in their favor, that the real controversy involves the title and possession of the real estate. We are of the opinion that the complaint states a substantive cause of action on the theory that appellant held the real estate in trust for appellees, and that the court should so declare upon the facts pleaded if they were established, and which the court did so find and so declare. Yet, if it be conceded for the sake of argument that the complaint does not state a substantive cause of action in this respect, and that it does state a cause of action involving the

question of title and possession of real estate as to entitle appellant to a new trial as of right, if this cause of action stood alone, would not entitle appellant to a new trial as of right in this cause.

The decree in the case at bar is quite comprehensive in its scope. It adjusted the entire transaction mentioned in the original opinion as between the parties, not alone between appellant and appellees, but as between the appellees, as appellant was directed to convey a part of the real estate to the appellees jointly and a part to them in severalty, and in the same decree the court found that appellant was indebted to appellees in the sum of $175 for money that came into his hands while acting as trustee for the appellees, and for which a personal judgment was rendered against him. Likewise it was found that appellees were entitled to receive the sum of $312 from the Flint Elevator Company for grain sold from the real estate in controversy by appellant in the course of his trust.

The personal judgment rendered for $175 against appellant and the finding that the appellees were entitled to the sum of $312 due from the Flint Elevator Company were within the issues, as the complaint in this respect stated a substantive cause of action for an accounting. Hence the complaint stated two substantive causes of action even on appellant's theory, one of which would, and the other would not, entitle appellant to a new trial as of right. The new trial as of right was properly denied. Henry v. Frazier et al., 53 Ind. App. 605, 100 N. E. 770.

[2] Appellant for the first time now seeks to raise the question that by virtue of the statute of the state in reference to the creation of trusts in real estate the complaint could not under the facts pleaded be held sufficient on the theory of establishing a trust in appellant to the real estate in favor of appellees. This question, not having been heretofore raised, cannot be considered upon a petition for rehearing.

The petition for a rehearing is overruled.

(63 Ind. App. 538) FRAZURE v. BUCKLES et al. (No. 9085.)† (Appellate Court of Indiana, Division No. 2. Oct. 4, 1916.) MUNICIPAL CORPORATIONS 705(4)-ILLEGAL RACE IN STREET-INJURY TO SPECTATOR -RIGHT OF RECOVERY.

Though the holding of a race on a village street was in violation of Burns' Ann. St. 1914, $$ 2664, 2665, one who went to see it, and therefore was in the position of consenting to the unlawful act, and while watching it was injured by a horse therein, cannot recover as for an illegal act, regardless of negligence and contributory negligence.

[Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. § 1515; Dec. Dig.
705(4).]

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

Transfer denied.

Appeal from Circuit Court, Noble County; lege of seeing said horse race, and that the S. M. Hench, Special Judge.

Action by Jason A. Frazure against John Buckles and others. From an adverse judgment, plaintiff appeals. Affirmed.

H. G. Zimmerman and F. P. Bothwell, both of Ligonier, for appellant. McNagny & McNagny, of Columbia City, and Grant & Foote, of Albion, for appellees.

IBACH, J. This is an appeal on reserved questions of law from a judgment in favor of appellees upon a complaint by appellant for personal injuries sustained at a horse race conducted under the direction and management of appellees, and unlawfully run at a dangerous rate of speed on a street and highway in and through the village of Wolf Lake, on the occasion of a public entertainment known as a "Grand Onion Carnival."

One who allows his horse to run in a race along a public highway, or who acts as a rider in such race, may be punished by a fine under section 2664, Burns 1914, and under section 2665, Burns 1914, it is a finable offense to run horses within the limits of a village. Appellant's contention is that, since this race was run in violation of statute, appellees, who had charge of the race were liable to appellant for the commission of a willful injury, and that the rules of negligence or contributory negligence do not apply. The complaint contains no allegations of negligence, but proceeds on the theory of trespass, or willful injury. Appellant seeks to hold appellees liable merely because the horse race was run in violation of law, and that he was injured by one of the horses running against him.

plaintiff saw that there were no ropes or barthat portion of the said Goshen road where said riers separating the place where he was from horse race was to be run, and if you further find that the plaintiff then knew that six horses were to run in said horse race, and that said race was to be started in said Goshen road somewhere between 600 and 800 feet northwest of where plaintiff then was, and that said horses were to run southeasterly on said Goshen road and past the point where plaintiff was, and if you find that plaintiff saw one or more of the horses in said horse race pass him, and the plaintiff went a short distance into said Goshen road when said horse race was being run, and was watching the horses in said race which had passed him, and paid no attention to the horses in said race which were still to come from the direction of the starting point, and if you further find that, if the plaintiff had looked in the direction of said starting point, he would and could have seen other horses in said horse race which had not yet passed him and were coming toward him from the starting point of said race, and could have avoided any injury to him from said horses by the exercise of such care and caution as a reasonably prudent and cautious man would have exercised under like circumstances, and in the situation that plainif you further find that by reason of plaintiff's tiff was then in, as shown by the evidence, and failure to exercise such care and caution one of the horses running in said race ran against and struck him, and injured him as shown by the evidence, then I instruct you that the plaintiff cannot recover in this suit, and your verdict ought to be for the defendants, and this is true even if said horse race was run upon a public highway."

This case is in all essential respects similar to that of Johnson v. City of New York, 186 N. Y. 139, 78 N. E. 715, 116 Am. St. Rep. 545, 9 Ann. Cas. 824. That action was brought to recover damages for personal injuries suffered by the plaintiff by being struck by an automobile while witnessing an automobile New York City. race in a public highway in a borough of The plaintiff had come from her residence about five miles to see the races, and at first watched the race from the highway, then went into an adjacent clump of woods to get a better view, and while there was struck by an automobile which was by some chance deflected from "If you find from a fair preponderance of the the road. The act of the city in authorizing evidence in this case that the defendants, or other persons, advertised an onion carnival at the use of the road as a race course was the town of Wolf Lake, Ind., to be held on Au- illegal, and the act of the other defendants gust 22 and 23, 1912, and as one of the attrac-in holding the race under that permission tions of said carnival advertised a horse race

There are various errors assigned, but the merits of the case will be considered in the discussion of instruction No. 5 given by the court to the jury at appellees' request, and what is said concerning that error will be applicable to all others presented. Instruction No. 5 is in the following words:

to be run thereat, and that the plaintiff then lived in Albion, Ind., and saw and read said advertisement, and went from his said residence to said town to visit as a spectator said carnival and said horse race, and if when the plaintiff reached said town of Wolf Lake, and before said horse race was run, he learned that said horse race was to be run on what is commonly called the Goshen road, and if he knew that said Goshen road was a public highway, and the principal street in said town, and if you further find that the plaintiff knew that said horse race was to be a contest of speed, and that therefore the horses participating therein would be run at the greatest speed of which they were capable, and if you further find that the plaintiff went to the vicinity of the intersection of Wolk Lake street and said Goshen road expressly to see said horse race, and that the plaintiff paid no admission or fee for the privi

was equally illegal, and the race held by the defendants was an unlawful use and obstruction of the highway, and per se a nuisance. The court said:

"But, granting that the action of the defendants in the use of the highway was illegal, the question remains: Was it illegal against the plaintiff so as to render the parties participating therein liable to her solely by reason of the illegality of their acts and regardless of any element of negligence or other misconduct? If the plaintiff had been a traveler on the highway when she met with injury, a very different question would be presented. Highways are constructed for public travel, and, as already said, the acts of the defendants were doubtless an illegal interference with the rights of the traveler. It may well be that for an injury to the traveler, or to the occupants of the lands

This case was also followed in the case of Bogart v. City of New York, 200 N. Y. 379, 93 N. E. 937, 21 Ann. Cas. 466. The case of 93 N. E. 937, 21 Ann. Cas. 466. Scanlon v. Wedger, 156 Mass. 462, 31 N. E 642, 16 L. R. A. 395, is similar.

Appellant has cited several cases from this and other states relating to the liability for injuries caused by an unlawful act, but in none of them was the plaintiff in the position of consenting to the unlawful act, as is the case here. There is no Indiana case which we have found in conflict with the New York opinion above quoted, and the reasoning in that case is so cogent that, without further discussion, the judgment is affirmed.

(62 Ind. App. 669) SPURRIER v. VATER et al. (No. 9183.) (Appellate Court of Indiana, Division No. 2. Oct. 3, 1916.)

1. NUISANCE 72-PUBLIC NUISANCE-INJUNCTION BY PRIVATE PERSON.

One is not entitled to injunctive relief against a condition in a city park amounting to a nuisance, it not affecting him in a special or peculiar manner, but all patrons thereof alike.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 164-169; Dec. Dig. 72.] 2. MUNICIPAL CORPORATIONS 996-DISPOSITION OF PROPERTY-INJUNCTION BY TAXPAYER.

A single resident taxpayer may maintain suit to enjoin unlawful disposition of a city's property. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 2166; Dec. Dig. 996.] 3. MUNICIPAL CORPORATIONS

adjacent to the highway, or even to a person who visited the scene of the race for the purpose of getting evidence against the defendants and prosecuting them for their unlawful acts, the defendants would have been absolutely liable, regardless of the skill or care exercised. But the plaintiff was in no such situation. She was not even a casual spectator whose attention was drawn to the race while she was traveling in the vicinity. She went from her home, a distance of five miles from the scene of the race, expressly to witness it and to enjoy the pleasure that the contest offered. As to the elements which made the contest illegal, she was aware of their existence. She knew it was to take place on a highway, and she knew it was to be a contest for speed, and that therefore the automobiles would be driven at the greatest speed of which they were capable. *** It is entirely possible that as a matter of fact the plaintiff did not know that the race on the highway was illegal, but it was illegal not from any want of permit, but because there was no statutory power to grant a permit to use the highway for a private purpose. The plaintiff, like every other person, is chargeable with knowledge of law, however ignorant in fact she may have been of it. *We are at a loss, however, to see how the legality or illegality of the race affected a person in the condition of the plaintiff. The danger she would encounter in witnessing the race would be exactly the same had there been a statute of the state which expressly authorized it. It does not lie in the mouth of the plaintiff to assert as a ground of liability the illegality of an act from which she sought to draw pleasure and enjoyment. It may be assumed that her mere presence at the race was not sufficient participation therein to render her liable to prosecution as one of the maintainers or abettors of the nuisance, * though in the case of a prize fight, at common law, all spectators were equally guilty with the combatants of a breach of the peace. *The general maxim, 'Injuris non fit volenti,' applies, and one cannot be heard to complain of an act in which he has participated, if not so far as to render him lia- public works, in authorizing the removal of sand There being a presumption that the board of ble as a party to the offense or tort, at least from a city park under the power given it by to the extent of witnessing, encouraging it, and Burns' Ann. St. 1914, § 8696, subd. 12, dischargseeking pleasure and enjoyment therefrom. Il-ed the duty thereby imposed on it of requiring lustrations of this principle may readily be found. It is a misdemeanor to conduct a horserace within a mile of court when the court is in session; also to give a theatrical or operatic exhibition on Sunday. It seems to me absurd that persons obtaining admission and attending the prohibited race or opera and meeting injury there shall successfully assert the illegality of the exhibition as a ground of recovery. It might with just as much force be contended that the presence of the person injured at the illegal exhibition or spectacle precluded him from recovery against the parties by whose negligence or tort the injury had been occasioned. Such is the law in some jurisdictions. Had the defendants broken into and entered without permission upon private property and conducted the race thereon, doubtless they would have been absolutely liable for all injuries occasioned thereby to the owners or occupants of the land. But what bearing would the trespass have on the defendants' liability to spectators? As between the plaintiff and these defendants, the legality or illegality of the exhibition given and witnessed, so far as that illegality depends on the obstruction and appropriation of the highway, was not the material factor. It did not create a liability against the defendants if they were at fault in the conduct of the race in no other respect. It does not preclude a recovery by the plaintiff if the injury to her was caused by the misconduct or fault of the defendants."

*

*

* *

TAXPAYER'S ACTION-PLEADING.

1000(5)

-

a bond for damages caused by the excavation,
the complaint of a taxpayer to enjoin the re-
moval, though alleging it to be unlawful, and
that it will cast a burden on the taxpayers to
restore the park to its original condition by
filling, is insufficient, in not alleging that no such
bond was executed.

[Ed. Note.-For other cases, see Municipal
Corporations, Dec. Dig. 1000(5).1
Appeal from Superior Court, Lake County;
Herbert S. Barr, Special Judge.

Action by Grant Spurrier against William E. Vater and others. From an adverse judgment, plaintiff appeals. Affirmed.

J. A. Gavit, of Hammond, and R. C. Martin, of Chicago, Ill., for appellant. Peter Crumpacker and Fred Crumpacker, both of Hammond, for appellees.

MORAN, J. Appellant unsuccessfully sought to enjoin the appellees from removing sand, gravel, and earth from a public park owned and controlled by the city of Whiting, Ind. The question for review in this court is predicated upon the sustaining of appellees' demurrer to appellant's complaint.

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

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