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7. Wills 450-Construction giving effect to instrument rather than destroying it must be adopted.

Construction which will give effect to whole instrument must be adopted in preference to one which will destroy it.

8. Wills

472-The posterior of conflicting and inconsistent provisions, if clear, must be taken to denote testator's intent.

The posterior in local position of conflicting and inconsistent provisions, if clear and decisive, must be taken to denote testator's in

only heirs at law his widow Mary Deputy, Harry Deputy, a son, William Deputy, a son, Helen Starr, a daughter, and Florence Deputy, a daughter; that said Charles Deputy left as his heirs and only heirs at law his two children, namely Clarence Deputy, a son, and Gladys Bowie, a daughter; that the said heirs of both said Frank Deputy and said Charles Deputy were living March 8, 1922, and also on November 17, 1922; that Earl Starr was on November 17, 1922, and on March 8, 1922, the husband of said Helen Starr (all of the above-named heirs of Frank 9. Wills 529-Devise to testator's adopted and Charles Deputy are appellees therein); daughter, brothers and sisters, and heirs of that the appellant was on October 30, 1895, deceased brothers construed. duly adopted as the heir at law of said AbWill leaving testator's estate to his adopt- ner G. Deputy, by order of the Gibson cired daughter, his brothers and sisters then liv-cuit court of Gibson county, Ind., and was ing, and to the heirs of deceased brothers "what at the time of the death of said Abner G. would be his (or their) share of my estate each to share equally," held to intend Deputy his adopted child and only heir at an equal division between adopted daughter, law; that the will of said Abner G. Deputy brothers and sisters, and heirs collectively of was duly probated in the Gibson circuit court deceased brothers. on November 22, 1922, item I of which provides for the payment of debts and funeral

tent.

*

Dausman, C. J., dissenting.

Appeal from Probate Court, Vanderburgh County; E. I. Lockyear, Judge.

Action by Fannie D. Billings against Robert Deputy and others, wherein defendants filed cross-complaint. Judgment for defendants, and plaintiff appeals. Affirmed.

expenses.

Item II is as follows:

"Second. After the payment of such funeral expenses and debts, I give, devise and bequeath to Fannie White Deputy, my adopted daughter, Robert Deputy, Frank Deputy's heirs they to get what would be his share of my estate, Charles S. Deputy's heirs to get what Luther Benson, of Princeton, for appel- would be his share of my estate, Anna McCrary and Stella Grunden my sister each to lant. Baltzell & Baltzell, of Princeton, for ap- should die before I do then their heirs to reshare equally and if any one of the above pellees.

NICHOLS, J. Action by appellant against appellees.

The complaint is in two paragraphs, the first being an action in statutory form to quiet title to certain real estate in Gibson county and the second an action in ejectment, involving the same real estate. Appellees filed a cross-complaint. The cause was put at issue by an answer in denial to the complaint and an answer in denial to the cross-complaint, and was thereafter submitted for trial to the court who at the request of appellant filed special findings of fact. It appears by these special findings that Abner G. Deputy died testate in Gibson county, Ind., on November 17, 1922, and that at the time of his death he was the owner in fee simple, and in the possession of about 283 acres of land in said county, described in the findings. At the time of his death, and also on March 8, 1922, the said Abner G. Deputy had the following named brothers and sisters, to wit: Appellees Robert Deputy, Anna McCrary, and Stella Grundon; that prior to said March 8, 1922, he had two other brothers, namely, Frank Deputy and Charles Deputy, and that both said Frank Deputy and Charles Deputy died prior to March 8, 1922; that said Frank Deputy left as his heirs and

ceive the share of devise as hereinbefore mentioned."

Item III appoints an executor.

From the facts above found, the court announced as his conclusions of law thereon that the last will and testament of Abner G. Deputy, deceased, is in all respects valid, and that the following named persons are the owners of the real estate described in said finding of facts, in the following proportions, to wit: One-sixth to Fannie Deputy, an adopted daughter; one-sixth to Robert Deputy, a brother; one-sixth to Anna McCrary, a sister; one-sixth to Stella Grunden, a sister; one-twelfth each to Gladys Bowie and Clarence Deputy, children of Charles Deputy, a brother; one twenty-fourth each to Harry Deputy, William Deputy, Florence Deputy, and Helen Starr, children of Frank Deputy, a brother, and that the same was devised to them under said will.

[1] Proper exceptions were taken to these conclusions of law. Thereafter appellant filed her motion for a new trial, for the reasons that the decision of the court was not sustained by sufficient evidence and that was contrary to law. This motion was overruled, after which judgment was rendered in harmony with the foregoing conclusions of law, from which judgment this appeal. The

(146 N.E.)

Shelley, 56 Ind. App. 685, 105 N. E. 403; Stieglitz v. Migatz, 182 Ind. 549, 105 N. E. 465; DuBois v. Ray, 35 N. Y. 162.

[5] 4. The construction of words in a will is much less technical than that of the same words in a deed. In a deed, the words govern the intention; in a will, the intention governs the words. Edwards v. Bibb, 43 Ala. 666; Venis v. Talbert, 76 Ind. App. 122, 131 N. E. 424.

substantial question presented by appellant | 254, 20 N. E. 779, 3 L. R. A. 847; Sigler v. on her assignments of error, that the court erred in its conclusions of law and in overruling her motion for a new trial, is as to the respective rights of the parties in the real estate involved, depending upon the interpretation of item 2 of said will. It is appellant's contention that this item of the will is absolutely void for repugnancy and uncertainty, and, for that reason, she, as the only heir is the owner of real estate of which Abner G. Deputy died seized and that appellees have no interest whatever therein. That the will in question was crudely drawn, and that it was prepared by an unskilled person, needs not to be said, for such fact is apparent from a casual reading of the instrument. Such facts may be taken into consideration in construing it. Castleberry v. Stringer, 176 Ala. 250, 57 So. 849. Fortunately, by a series of adjudications, certain rules have been established to aid in the construction of such wills. Some of these rules which we deem helpful in construing the will here involved are as follows:

[2] 1. A will should be construed as a whole, and so as to prevent intestacy, and all of its provisions should be upheld, unless by so doing violence is done to the reasonable intention of the testator; and, where that intention is clear, though some of the expressions are inaccurate and apparently inconsistent, it is the duty of the court to subordinate the language to the plain purpose of the testator, Greene v. Greene, 7 N. Y. S. 30, 284. Other authorities stating in effect the same general principle are: Conover v. Cade, 184 Ind. 604, 112 N. E. 7; Winder v. Smith, 47 N. C. 327; Micheau v. Crawford, 8 N. J. Law, 90; In re Blake's Estate, 157 Cal. 448, 108 P. 287; McTigue v. Ettienne, 155 Iowa, 450, 136 N. W. 229; Johnson v. White, 76 Kan. 159, 90 P. 810; White v. Smith, 87 Conn. 663, 89 A. 872, L. R. A. 1917D, 596; Philips v. Philips, 10 Del. Ch. 314, 91 A. 452; Tyndale v. McLaughlin, 84 N. J. Eq. 652, 95 A. 117; Dorrance v. Dorrance (D. C.) 227 F. 679.

[6] 5. Where language of a will is inexact or ambiguous, courts may transpose or insert words or phrases, or leave out or insert provisions, in order to effectuate an intention that may be gathered from the whole text with reasonable certainty. In re State ex rel. v. Joyce, 48 Ind. 310; Shimer v. Mann, 99 Ind. 190, 50 Am. Rep. 99; Grimes v. Harmon, 35 Ind. 198, 9 Am. Rep. 690; Robbins Estate, 152 N. Y. S. 1067; Venis v. Talbert, supra.

[7] 6. Where a will is open to two constructions, and one will give effect to the whole instrument, while the other will destroy a part, the former must be adopted. Butler v. Moore, 94 Ind. 359.

[8] 7. Where there are provisions in a will which are conflicting and inconsistent, that which is posterior in local position, if clear and decisive, must be taken to denote the intention of the testator. Butler v. Moore, supra. Holdefer v. Teifel, 51 Ind. 343; Porter v. Union T. Co., 182 Ind. 637, 108 N. E. 117, Ann. Cas. 1917D, 427.

[9] If we follow appellant's contention, the result, of course, must be intestacy, which under the rules of laws must be prevented if it can be done without doing violence to the reasonable intention of the testator; but, when we have examined the will as a whole in the light of the surrounding circumstances, it seems to us that the intention of the testator is reasonably clear. The expressions "Frank Deputy heirs they to get what would be his share of my estate" and "Charles S. Deputy heirs to get what would be his share of my estate" are in fact but another evidence [3] 2. Where the intention is obscured by of the unskilled hand with which they were conflicting expressions, it is to be sought written. A literal interpretation of these rather in a rational and consistent, than in expressions, and without reading them in the an irrational and inconsistent, purpose. Jack-light of other portions of the same item, son v. Hoover, 26 Ind. 511; Vaubel v. Lang (Ind. App.) 140 N. E. 69.

might lead us to hold that these heirs were to receive no portion of the estate of the [4] 3. It is the duty of the courts, so far testator, for, with an adopted daughter who as the rules of law will permit, to give ef- was the lawful heir, the brothers and sisfect to the manifest intent of the testator, ters would have no share of his estate had as deduced from the language of the will, he died intestate. Had the testator so inread in the light of the circumstances sur-tended there would have been no occasion rounding him at the time of its execution; whatever for using these inconsistent and and words inadvertently used in an in- ambiguous expressions, or, in fact, of menexact or ambiguous sense should be read in tioning the two deceased brothers or their the sense in which they were employed by heirs. the testator, though this may differ from their ordinary and primary meaning. Skinner v. Spann, 175 Ind. 617, 93 N. E. 1061, 95 N. E. 243; Daugherty v. Rogers, 119 Ind.

Certainly the scrivener, inexperienced and ignorant of the technical meaning of legal phrases, would not have sought to express the discriminations of the testator against

Sales

GOULIS v. ANGEL.

Suffolk. Jan. 28, 1925.)

83-Time of delivery contingent on event within buyer's control must be within reasonable time.

his brothers' heirs in such hidden meaning, but rather would have said that to the heirs of the deceased brothers he gave nothing. From the reading of the whole item, and (Supreme Judicial Court of Massachusetts. especially of that portion of it that mentions that each is to share equally, it is apparent that the testator did not intend that the shares of his estate which his brothers' heirs should receive referred to what they would have received, or rather would not have received, had he died intestate. It is clear that the testator had in his mind the portion of the estate that would have gone to the brothers under the will had they been living at the time the will was written. The rule that the words of a will are much less technical than the same words in a deed is here

Where time of delivery of steel depended on buyer's furnishing permits when ship arrived, and promise to furnish permits was not conditional on his securing a particular ship, if one was not furnished within reasonable time, seller could recover for buyer's breach.

Appeal from Municipal Court of Boston, Appellate Division.

Marks Angel to recover damages for defend-
Action of contract by David Goulis against
ant's failure to accept melting steel at price
and case reported. From an order of the ap-
fixed by agreement. Finding for plaintiff,
pellate division of the municipal court, dis-
missing the report, defendant appeals. Af-
firmed.

C. Gerstein, of Boston, for appellant.
J. J. Walsh, of Boston, for appellee.

CARROLL, J. The defendant by an agreement in writing, dated September 25, 1920, purchased from the plaintiff one hundred (100) tons of steel. The dimensions, weights and price were fixed by the agreement. The steel was to be delivered "f. a. s. vessel, Army Base, South Boston," the defendant agreeing to "furnish permits promptly, when ship arrives." The plaintiff testified that permits from railroads and steamship companies were necessary before delivery could be made and that the defendant failed to supply these permits. The judge found for the plaintiff and ruled that under the contract the defendant was bound to furnish permits within a reasonable time, that "ship" meant any ship which the defendant might

clearly applicable. The intention, when it can be discovered with reasonable certainty from the whole will, must control the words. Had the scrivener written only "Frank Deputy's heirs," and "Charles S. Deputy's heirs," without the use of the phrases that follow these expressions respectively, the meaning would have been clear and in harmony with the general import of the item; and so the rule applies that, where a will is inexact or ambiguous, the court may transpose or insert words or phrases or leave out or insert provisions when to do so will effectuate the intention of the testator gathered from the whole text with reasonable certainty. Appellant contends that her construction, which she would have us adopt, destroys the instrument, but the construction, which it seems to us must be adopted, gives effect to the whole instrument and for this reason it must be adopted. Butler v. Moore, supra. Appellant's construction, which is of the first part of the item, discriminates against the heirs of Frank Deputy and of Charles S. Deputy. This is not in harmony with the provisions in the latter part of item that the devisees should share equally, and again the rule applies that, where there are two provisions of a will that are conflicting and in-procure to carry the steel. consistent, that which is posterior in local The necessary permits for delivery, accordposition must be taken to denote the intention of the testator. We interpret the intention of the testator to be that his adopted daughter, each of his brothers and sisters, and the heirs collectively of each of the deceased brothers were to share equally in the estate of the testator, each receiving onesixth of his estate. By this interpretation, which is a reasonable one from the reading of the whole will, and in the light of. surrounding circumstances, we prevent intestacy, give effect to the whole instrument, discard inconsistencies, avoid discriminations, and express with reasonable certainty the intention of the testator.

This being in harmony with the decision of the trial court, the judgment is affirmed.

DAUSMAN, C. J., dissents.

ing to the contract, were to be supplied by the defendant. His promise to pay for the steel was unconditional. The time of delivery depended upon his furnishing the permit when the ship arrived. But the defendant's promise was not conditional on his securing a particular ship; he was at liberty to supply any ship for this purpose, and if one was not furnished within a reasonable time the plaintiff could recover for the defendant's breach. The time of delivery being contingent on a future event within the defendant's control, the plaintiff could recover damages if the event did not occur as contemplated within a reasonable time. De Wolfe v. French, 51 Me. 420, 421; Noland v. Bull, 24 Or. 479, 484, 33 P. 983; Nunez v. Dautel, 19 Wall. 560, 562, 22 L. Ed. 161; Williston v. Perkins, 51 Cal. 554.

(146 N.E.)

The contract was fully set out in the writing. By the judge's finding for the plaintiff on the facts, and by reason of his refusal to give the rulings requested by the defendant, it becomes unnecessary to consider the effect of the parol evidence introduced by the defendant.

court for the county of Essex. On a complaint dated January 17, 1924, filed by Talbot as such special administrator, under G. L. c. 215, § 44, the complainant was ordered by the probate court to cite the respondent to appear on February 11, 1924, and be examined on oath upon the matter of the complaint;

There was no reversible error in the rul- she appeared as ordered and filed a motion to ings of the presiding judge.

Order dismissing report affirmed.

TALBOT v. BUSH.

(Supreme Judicial Court of Massachusetts. Essex. Jan. 29, 1925.)

I. Executors and administrators 85(2)Special administrator is person "interested in estate," within statute permitting complaint to discover assets,

As duty rests on special administrator, under G. L. c. 193, § 11, to collect decedent's personal property, he is person "interested in estate," within chapter 215, § 44, and may file complaint to discover and obtain possession of assets fraudulently received, concealed, or embezzled.

2. Executors and administrators 85(2)One of two special administrators may file complaint to discover assets.

Since either of two or more executors or administrators, without consent or knowledge of other, may properly take possession of property belonging to estate, one of two special administrators may file complaint, under G. L. c. 215, § 44, to discover assets.

3. Executors and administrators 85(2)— That one special administrator was counsel for defendant, charged with concealing assets, held not to affect right of other.

That one of two special administrators, not joining in complaint under G. L. c. 215, § 44, was counsel for party charged with receiving, concealing, and conveying assets, did not prevent other administrator from performing duty of collecting assets, imposed by G. L. c. 193, § 11.

dismiss the complaint on the following grounds:

"(1) That the petitioner is not a party interested in the estate of J. Foster Bush.

"(2) That it appears of record in this honorable court that Edward J. Coleman and Edmund H. Talbot were duly appointed special administrators of said estate and that said appointment is still in full force and effect.

"(3) That the interest, if any, of said special administrators in said estate is joint and entire and incapable of being severed."

The motion was denied and the case is before us on an appeal from the order of the court denying the motion. The judge of probate filed a report of findings of fact in response to a request made by the respondent therefor.

The questions are raised by the appeal: (1) Is the special administrator a person "interested in the estate" within the meaning of G. L. c. 215, § 44? and (2) upon the facts found, Is the complainant entitled to maintain the complaint without making the other special administrator a party complainant?

[1] The duties of a special administrator are defined by G. L. c. 193, § 11, which in part is as follows:

"A special administrator shall collect all the personal property of the deceased and preserve the same for the executor or administrator when appointed, and for that purpose may commence, maintain and defend suits."

See Meagher v. Kimball, 220 Mass. 32, 107 N. E. 431; Purcell v. Purcell, 223 Mass. 62, 123 N. E. 394.

istrator under the statute to collect the As the duty rests upon a special adminpersonal property of the deceased and preAppeal from Probate Court; Essex County. serve the same for the executor or administrator when appointed, it cannot be doubtIn the matter of the estate of John Fostered that he is a person "interested in the esBush, deceased. Edmund H. Talbot, special tate" within the meaning of G. L. c. 215, § 44. administrator, under Gen. Laws, c. 215, § 44, It is obvious that to file a complaint in was ordered to cite Theoda Foster Bush to the probate court is an appropriate means appear and be examined. Defendant's mo- of discovering and obtaining possession of tion to dismiss complaint was denied, and she such portions of the estate as may have been appeals. Order denying motion to dismiss fraudulently received, concealed от em

affirmed.

bezzled.

R. Baldwin, of Boston, for appellant. [2] We are of opinion that one of two E. H. Talbot, L. Withington, and E. C. special administrators is entitled to file a Park, all of Boston, for appellee.

CROSBY, J. On November 27, 1922, Edmund H. Talbot and Edward J. Coleman were appointed special administrators of the estate of John Foster Bush by the probate

complaint under the statute. Although it has been held that where there are two or more executors or administrators, the probate court is without power to license one of them to sell land for the payment of debts upon his sole petition (Hannum v. Day,

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

105 Mass. 33; Cobb v. Kempton, 154 Mass. 266, 28 N. E. 264), it does not follow that where there is more than one special administrator, all must join in a complaint under G. L. c. 215, § 44. The powers and duties of two or more persons qualified as executors or administrators are joint, and the same is true of two or more persons qualified as special administrators. The duties of special administrators, however, under the statute, are confined to the collection and preservation of the assets of the estate; in the performance of such duties one special administrator may act, and the same is true where there are two or more executors or administrators. Although as a general rule executors and administrators, if there are two or more, must act jointly in the performance of their duties, yet either without the presence or knowledge of the other may properly take possession of property belonging to the estate. In Hannum v. Day, supra, it was said at page 35:

"It is true that in some matters, as in the collection and payment of debts, and the disposition of personal property, one executor may act, but his acts are deemed to be the acts of

all."

It is equally the right and duty of a special administrator to avail himself of the remedy provided by G. L. c. 215, § 44, to make a complaint to the probate court, if necessary, to obtain possession of property of the estate which has been concealed or embezzled.

[3] The finding of the court that Coleman, the special administrator not joining in the complaint, is counsel for the respondent who is charged with receiving, concealing and conveying away certain property belonging to the estate, does not prevent the complainant from performing the duties imposed upon him by G. L. c. 193, § 11.

As the petitioner is an interested party, and as he may alone bring a complaint under the statute, the entry must be:

Order denying motion to dismiss affirmed.

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Exceptions from Superior Court, Middlesex County; Joseph Walsh, Judge.

Action in contract by Frank M. Carpenter against John F. Blake and others to recover compensation for sale of certain land. Judg. ment for defendants, and plaintiff excepts Exceptions overruled.

J. G. Bryer, of Boston, for plaintiff.
H. H. Newton, of Boston, for defendants.

WAIT, J. These exceptions must be overruled. The judge has found that the contract between the parties was not such as the plaintiff alleged in his declaration, but was an undertaking by the defendant to pay to the plaintiff all above $5,000 that he received for the property which the plaintiff was authorized to sell for him. The judge further found that the defendant did not receive anything above the $5,000, that no sale resulting in the receipt of a purchase price was ever consummated, and that the defendant did not, by any wrongful conduct on his part, contribute to the result.

There was evidence to justify these findings. They dispose of the case. The rulings requested by the plaintiff were accepted by the judge so far as they were consistent with the facts as found by him, and were denied only when inconsistent with those facts.

The requests of the defendant were given proper effect. The case is well within the authority of Munroe v. Taylor, 191 Mass. 483, 78 N. E. 106. There was no fault of the defendant which would make applicable the principle which underlies Walker v. Russell, 240 Mass. 386, 134 N. E. 388. See also MeCarthy v. Reid, 237 Mass. 371, 129 N. E. 675, 12 A. L. R. 100; Bemister v. Hedtler, 249 Mass. 40, 143 N. E. 818, 33 A. L. R. 579. Exceptions overruled.

HESTER v. CITY OF BROCKTON. (Supreme Judicial Court of Massachusetts. Plymouth. Jan. 28, 1925.)

1. Eminent domain 288-Only remedy for damages to abutter from laying out of street being under statute, petition for damages must be filed within prescribed time.

A petition under G. L. c. 79, § 14, for assessing damages to abutter caused by taking in one year after right to damages vests under private way for public way must be filed withsection 16; only remedy for taking and damages being under statute.

2. Eminent domain 288-Act making amendment statute applicable to eminent domain case did not extend time, so as to revive right after it ceased to exist.

G. L. c. 231, § 145, making section 51, providing for amendments at any time before final judgments, applicable to eminent domain cases,

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