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(146 N.E.) duties incident to and actually performed by such limitation, and in reliance on the appara manager of a moving picture business of ent authority with which the agent is clothed. like character; and that he was to employ Fatman v. Leet, 41 Ind. 133; Commercial and discharge all help needed in and about Union Assurance Co. v. State, 113 Ind: 331, the operation of the moving picture business, 15 N. E. 518; Talmage v. Bierhause, 103 Ind. except the bookkeeper and members of the 270, 2 N. E. 716; Elkhart Hydraulic Co. v. orchestra, He was the only one who ever Turner, 170 Ind. 465, 84 N. E. 812; 2 C. J. made any contracts for pictures, and 33 pay. | 566. There was no error in admitting the ments were made for pictures for which he contracts in evidence, and with the above incontracted, totalling $10,364.11. Parts of all terpretation of the law as to appellant beof the contracts shown by the exhibits were ing bound by the acts of its manager within performed and payments made thereunder the apparent scope of his authority, we do There was a limitation on Berkson's right to not need to consider alleged errors of the purchase in that he was not to purchase any court as to instructions. Other errors are picture that involved an expenditure of presented, but we do not deem them of conmore than $2,000 without the concurrence of trolling force. the board of directors, and later it was stip Judgment affirmed. ulated that all contracts were to be made with the concurrence of Mr. Toepp, treasur. er of appellant company. While all the contracts involved were made before this stipulation as to the concurrence of Toepp, it appears that all contracts were made in the BILLINGS V. DEPUTY et al. (No. 11978.) presence of Toepp and without objection by (Appellate Court of Indiana. Jan. 29, 1925.) him, and that he paid all moneys and made all deposits on the pictures so contracted for. 1. Wills Ow455_That will is crudely drawn At a meeting of the board of directors, the and prepared by unskilled person may be contracts were discussed, and Berkson there

*

considered in construing it. after went to Chicago and secured a reduc

That will is crudely drawn and prepared tion on the price of some of the pictures. It by unskilled person may be considered in con

struing it. does not appear that at the meeting of the board of directors there was any repudia- 2. Wills m 470-Will construed as whole to tion of the acts of Berkson in executing the

give effect to testator's intent, which governs

inaccurate and inconsistent expressions. contracts. We find nothing that indicates a disposi- all provisions upheld, unless so doing does vio

Will should be considered as whole and tion to cancel any of the contracts or any lence to reasonable intent of testator, which parts thereof until appellant leased the the intent, when clear, controls inaccurate and apatre to other parties, when it wrote appellee parently inconsistent expressions. not to ship any more films, saying that the 3. Wills Cm 453—Intent, when obscured, is to great expense of operating had forced it to

be sought in rational and consistent purpose. lease the property, and that the same was

Where testator's intent is obscured by conthen in the hands of another corporation. ficting expressions, it is to be sought in a raThis train of circumstances strongly impress- tional and consistent, rather than irrational and es us, as it must have impressed the jury, inconsistent purpose. that non est factum was an afterthought. [4, 5] But however this may be, the cir-4. Wills Ow441, 456–Testator's intent given

effect, and words used in inexact and ambigcumstances set out above show that Berkson

uous sense read in sense used. was the general manager of the moving pic

Courts should give effect to manifest intent ture business of appellant at the time the of testator deduced from will, read in light of contracts involved were made, and as such surrounding circumstances, and words inadhe was to perform all of the duties incident vertently used in inexact and ambiguous sense to and actually to be performed by a mana- should be read in that sense, rather than in ger of such a business, which, of course, their ordinary and primary meaning. would include the procurement of the films 5. Wills en 455–Intention controls words, and necessary to operation. Mr. Maberry, ap not words intention as in case of deeds. pellee's general agent through whom the

Construction of words in will is less technicontracts were made, testified that he had no

cal than in deeds, where words govern intenknowledge of any limitation on the authori- tion; intention being controlling in a will. ty of appellee's manager, Mr. Berkson, in the purchase of films, or the execution of con- 6. Wills Ow455–To effectuate intent courts

may transpose, insert, or leave out words, tracts therefor, and there is no evidence that

phrases, or provisions. appellant had any knowledge of such limitation. It is well established that private lim- biguous, courts may transpose, leave out, or

Where language of will is inexact and amitations on the general authority of an agent insert words, phrases, or provisions to effectuhave no effect on a third person who deals ate intent gathered from whole text with reawith the agert in good faith, in ignorance of / sonable certainty.

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7. Wills em450—Construction giving effect to only heirs at law his widow Mary Deputy, instrument rather than destroying it must be Harry Deputy, a son, William Deputy, a son, adopted.

Helen Starr, a daughter, and Florence DepuConstruction which will give effect to whole ty, a daughter; that said Charles Deputy left instrument must be adopted in preference to

as his heirs and only heirs at law his two one which will destroy it.

children, namely Clarence Deputy, a son, 8. Wills m472—The posterior of conflicting and Gladys Bowie, a daughter; that the

and inconsistent provisions, if clear, must be said heirs of both said Frank Deputy and taken to denote testator's intent.

said Charles Deputy were living March 8, The posterior in local position of conflict- 1922, and also on November 17, 1922; that ing and inconsistent provisions, if clear and Earl Starr was on November 17, 1922, and on decisive, must be taken to denote testator's in March 8, 1922, the husband of said Helen tent.

Starr (all of the above-named heirs of Frank 9. Wills m529-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 Ab. Will 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 Deputy his adopted child and only heir at

each to share equally," held to intend 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 proDausman, C. J., dissenting.

vides for the payment of debts and funeral

expenses. Appeal from Probate Court, Vanderburgh

Item II is as follows: County; E. I. Lockyear, Judge.

“Second. After the payment of such funeral Action by Fannie D. Billings against Rob-l expenses and debts, I give, devise and bequeath ert Deputy and others, wherein defendants to Fannie White Deputy, my adopted daughfiled cross-complaint. Judgment for defend they to get what would be his share of my es

ter, Robert Deputy, Frank Deputy's heirs ants, and plaintiff appeals. Affirmed.

tate, Charles S. Deputy's heirs to get what Luther Benson, of Princeton, for appel- would be his share of my estate, Anna Mc

Crary and Stella Grunden my sister each to lant. Baltzell & Baltzell, of Princeton, for ap- should die before I do then their heirs to re

share equally and if any one of the above pellees.

ceive the share of devise as hereinbefore men

tioned." NICHOLS, J. Action by appellant against appellees.

Item III appoints an executor. The complaint is in two paragraphs, the From the facts above found, the court first being an action in statutory form to announced as his conclusions of law thereon quiet title to certain real estate in Gibson that the last will and testament of Abner G. county and the second an action in ejectment, Deputy, deceased, is in all respects valid, involving the same real estate. Appellees iled and that the following named persons are a cross-complaint. The cause was put at the owners of the real estate described in issue by an answer in denial to the complaint said finding of facts, in the following proand an answer in denial to the cross-com- portions, to wit: One-sixth to Fannie Depuplaint, and was thereafter submitted for ty, an adopted daughter; one-sixth to Robert trial to the court who at the request of ap- Deputy, a brother; one-sixth to Anna Mcpellant filed special findings of fact. It ap- Crary, a sister; one-sixth to Stella Grunden, pears by these special findings that Abner a sister; one-twelfth each to Gladys Bowie G. Deputy died testate in Gibson county, Ind., and Clarence Deputy, children of Charles on November 17, 1922, and that at the time Deputy, a brother; one twenty-fourth each of his death he was the owner in fee simple, to Harry Deputy, William Deputy, Florence and in the possession of about 283 acres Deputy, and Helen Starr, children of Frank of land in said county, described in the find- Deputy, a brother, and that the same was ings. At the time of his death, and also on devised to them under said will. March 8, 1922, the said Abner G, Deputy [1] Proper exceptions were taken to these had the following named brothers and sisters, conclusions of law. Thereafter appellant to wit: Appellees Robert Deputy, Anna Mc- filed her motion for a new trial, for the reaCrary, and Stella Grundon; that prior to sons that the decision of the court was not said March 8, 1922, he had two other broth- sustained by sufficient evidence and that was ers, namely, Frank Deputy and Charles Depu- contrary to law. This motion was overruled, ty, and that both said Frank Deputy and after which judgment was rendered in harCharles Deputy died prior to March 8, 1922; mony with the foregoing conclusions of that said Frank Deputy left as his heirs and / law, from which judgment this appeal. The

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

(146 N.E.) substantial question presented by appellant | 254, 20 N. E. 779, 3 L. R. A. 847; Sigler v. on her assignments or error, that the court Shelley, 56 Ind. App. 685, 105 N. E. 403; erred in its conclusions of law and in over-Stieglitz v. Migatz, 182 Ind. 549, 105 N. E. ruling her motion for a new trial, is as to 465; DuBois v. Ray, 35 N. Y. 162. the respective rights of the parties in the real [5] 4. The construction of words in a will estate involved, depending upon the interpre- is much less technical than that of the same tation of item 2 of said will. It is appellant's words in a deed. In a deed, the words govcontention that this item of the will is ab-ern the intention; in a will, the intention solutely void for repugnancy and uncertainty, governs the words. Edwards v. Bibb, 43 Ala. and, for that reason, she, as the only heir 666; Venis v. Talbert, 76 Ind. App. 122, 131 is the owner of real estate of which Abner N. E. 424. G. Deputy died seized and that appellees have [6] 5. Where language of a will is inexact no interest whatever therein. That the will or ambiguous, courts may transpose or inin question was crudely drawn, and that it sert words or phrases, or leave out or insert was prepared by an unskilled person, needs provisions, in order to effectuate an intennot to be said, for such fact is apparent from tion that may be gathered from the whole a casual reading of the instrument. Such text with reasonable certainty. In re State facts may be taken into consideration in con ex rel. v. Joyce, 48 Ind. 310; Shimer v. Mann, struing it. Castleberry v. Stringer, 176 Ala. 99 Ind. 190, 50 Am. Rep. 99; Grimes v. Har250, 57 So. 849. Fortunately, by a series of mon, 35 Ind. 198, 9 Am. Rep. 690; Robbins adjudications, certain rules have been es- Estate, 152 N. Y. S. 1067; Venis v. Talbert, tablished to aid in the construction of such supra, wills. Some of these rules which we deem [7] 6. Where a will is open to two construchelpful in construing the will here involved tions, and one will give effect to the whole are as follows:

instrument, while the other will destroy a [2] 1. A will should be construed as a part, the former must be adopted. Butler v. whole, and so as to prevent intestacy, and Moore, 94 Ind. 359. all of its provisions should be upheld, unless [8] 7. Where there are provisions in a will by so doing violence is done to the reason which are conflicting and inconsistent, that able intention of the testator; and, where which is posterior in local position, if clear that intention is clear, though some of the and decisive, must be taken to denote the expressions are inaccurate and apparently intention of the testator. Butler v. Moore, inconsistent, it is the duty of the court to supra. Holdefer v. Teifel, 51 Ind. 343; Porsubordinate the language to the plain purpose ter v. Union T. Co., 182 Ind. 637, 108 N. E. of the testator. Greene v. Greene, 7 N. Y. S. 117, Ann. Cas. 1917D, 427. 30, 284. Other authorities stating in effect [9] If we follow appellant's contention, the the same general principle are: Conover v. result, of course, must be intestacy, which Cade, 184 Ind. 604, 112 N. E. 7; Winder v. under the rules of laws must be prevented Smith, 47 N. C. 327; Micheau v. Crawford, if it can be done without doing violence to 8 N. J. Law, 90; In re Blake's Estate, 157 the reasonable intention of the testator; but, Cal. 448, 108 P. 287; McTigue v. Ettienne, when we have examined the will as a whole 153 Iowa, 450, 136 N. W. 229; Johnson v. in the light of the surrounding circumstances, White, 76 Kan. 159, 90 P. 810; White v. it seems to us that the intention of the tesSmith, 87 Conn. 663, 89 A. 872, L. R. A. tator is reasonably clear. The expressions 1917D, 596; Philips v. Philips, 10 Del. Ch. “Frank Deputy heirs they to get what would 314, 91 A. 452; Tyndale v. McLaughlin, 84 N. be his share of my estate” and “Charles S. J. Eq. 652, 95 A. 117; Dorrance v. Dorrance Deputy heirs to get what would be his share (D, C.) 227 F. 679.

of my estate" are in fact þut another evidence [3] 2. Where the intention is obscured by of the unskilled band 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 might lead us to hold that these heirs were (Ind. App.) 140 N. E. 69.

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 Certainly the scrivener, inexperienced and their ordinary and primary meaning. Skin- ignorant of the technical meaning of legal der v. Spann, 175 Ind. 617, 93 N. E. 1061, phrases, would not have sought to express 95 N. E. 243; Daugherty v. Rogers, 119 Ind. | the discriminations of the testator against

his brothers' heirs in such hidden meaning, but rather would have said that to the heirs

GOULIS V. ANGEL. 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

Suffolk. Jan. 28, 1925.) that each is to share equally, it is apparent Sales Om83—Time of delivery contingent on that the testator did not intend that the event within buyer's control must be within shares of his estate which his brothers' heirs reasonable time. should receive referred to what they would Where time of delivery of steel depended on have received, or rather would not have re buyer's furnishing permits when ship arrived, ceived, had he died intestate. It is clear that and promise to furnish permits was not condithe testator had in his mind the portion of tional on his securing a particular ship, if one the estate that would have gone to the broth

was not furnished within reasonable time, sellers under the will had they been living at

er could recover for buyer's breach. the time the will was written. The rule Appeal from Municipal Court of Boston, that the words of a will are much less tech- Appellate Division. nical than the same words in a deed is here clearly applicable. The intention, when it Marks Angel to recover damages for defend

Action of contract by David Goulis against can be discovered with reasonable certainty ant's failure to accept melting steel at price from the whole will, must control the words. fixed by agreement. Finding for plaintiff, Had the scrivener written only "Frank Depu: and case reported. From an order of the apty's heirs,” and “Charles S. Deputy's heirs,” pellate division of the municipal court, diswithout the use of the phrases that follow

missing the report, defendant appeals. Afthese expressions respectively, the meaning

firmed. would have been clear and in harmony with the general import of the item; and so the C. Gerstein, of Boston, for appellant. rule applies that, where a will is inexact

J. J. Walsh, of Boston, for appellee. or ambiguous, the court may transpose or insert words or phrases or leave out or in

CARROLL, J. The defendant by an agreesert provisions when to do so will effectuate ment in writing, dated September 25, 1920, the intention of the testator gathered from purchased from the plaintiff one hundred the whole text with reasonable certainty. (100) tons of steel. The dimensions, weights Appellant contends that her construction, and price were fixed by the agreement. The which she would have us adopt, destroys the steel was to be delivered “f. a. s. vessel, instrument, but the construction, which it Army Base, South Boston,” the defendant seems to us must be adopted, gives effect agreeing to "furnish permits promptly, when to the whole instrument and for this reason ship arrives.” The plaintiff testified that it must be adopted. Butler v. Moore, supra. permits from railroads and steainship com

Appellant's construction, which is of the panies were necessary before delivery could first part of the item, discriminates against be made and that the defendant failed to the heirs of Frank Deputy and of Charles supply these permits. The judge found for S. Deputy. This is not in harmony with the the plaintiff and ruled that under the conprovisions in the latter part of item that the tract the defendant was bound to furnish perdevisees should share equally, and again the mits within a reasonable time, that "ship" rule applies that, where there are two pro- meant any ship which the defendant might visions 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 inten- ing to the contract, were to be supplied by tion of the testator. We interpret the in- | the defendant. His promise to pay for the tention of the testator to be that his adopt- steel was unconditional. The time of deliv. ed daughter, each of his brothers and sis- ery depended upon his furnishing the permit ters, and the heirs collectively of each of the when the ship arrived. But the defendant's deceased brothers were to share equally in promise was not conditional on his securing the estate of the testator, each receiving one- a particular ship; he was at liberty to supsixth of his estate. By this interpretation, ply any ship for this purpose, and if one was which is a reasonable one from the reading not furnished within a reasonable time the of the whole will, and in the light of, sur-) plaintiff could recover for the defendant's rounding circumstances, we prevent intes- breach. The time of delivery being contacy, give effect to the whole instrument, tingent on a future event within the defenddiscard inconsistencies, avoid discrimina- ant's control, the plaintiff could recover damtions, and express with reasonable certainty ages if the event did not occur as contemthe intention of the testator.

plated within a reasonable time. De Wolfe This being in harmony with the decision v. French, 51 Me. 420, 421; Noland v. Bull, of the trial court, the judgment is affirmed. 24 Or. 479, 484, 33 P. 983; Nunez v, Dautel,

19 Wall. 560, 562, 22 L. Ed. 161; Williston DAUSMAN, C. J., dissents.

v. Perkins, 51 Cal. 554.

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

(146 N.E.) The contract was fully set out in the writ-, court for the county of Essex. On a com ing. By the judge's finding for the plaintiff plaint dated January 17, 1924, filed by Talbot on the facts, and by reason of his refusal as such special administrator, under G. L. C. to give the rulings requested by the defend- 215, $ 44, the complainant was ordered by the ant, it becomes unnecessary to consider the probate court to cite the respondent to apeffect of the parol evidence introduced by pear on February 11, 1924, and be examined the defendant.

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.

dismiss the complaint on the following Order dismissing report affirmed.

grounds :

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

(2) That it appears of record in this honTALBOT V. BUSH.

orable court that Edward J. Coleman and Ed

mund H. Talbot were duly appointed special (Supreme Judicial Court of Massachusetts. administrators of said estate and that said apEssex. Jan. 29, 1925.)

pointment is still in full force and effect.

“(3) That the interest, if any, of said spe1. Executors and administrators Om85(2)—cial administrators in said estate is joint and Special administrator is person "interested entire and incapable of being severed." in estate," within statute permitting complaint to discover assets,

The motion was denied and the case is beAs duty rests on special administrator, un- fore us on an appeal from the order of the der G. L. c. 193, § 11, to collect decedent's court denying the motion. The judge of propersonal property, he is person “interested in bate filed a report of findings of fact in re estate," within chapter 215, $ 44, and may file sponse to a request made by the respondent complaint to discover and obtain possession of therefor. assets fraudulently received, concealed, or em

The questions are raised by the appeal: bezzled.

(1) Is the special administrator a person "in2. Executors and administrators ww85(2)— terested in the estate” within the meaning of

One of two special administrators may file G. L. c. 215, $ 44? and (2) upon the facts complaint to discover assets.

found, Is the complainant entitled to mainSince either of two or more executors or tain the complaint without making the other administrators, without consent or knowledge special administrator a party complainant? of other, may properly take possession of prop

(1) The duties of a special administrator erty belonging to estate, one of two special administrators may file complaint, under G. L.

are defined by G. L. c. 193, § 11, which in c. 215, $ 44, to discover assets.

part is as follows:

"A special administrator shall collect all the 3. Executors and administrators Om85(2)— That one special administrator was counsel personal property of the deceased and preserve

the same for the executor or administrator for defendant, charged with concealing as when appointed, and for that purpose may comsets, held not to affect right of other.

mence, maintain and defend suits." That one of two special administrators, not joining in complaint under G. L. c. 215, $ 44, See Meagher v. Kimball, 220 Mass. 32, 107 was counsel for party charged with receiving, N. E. 431; Purcell v. Purcell, 223 Mass. 62, concealing, and conveying assets, did not pre- 123 N. E. 394. vent other administrator from performing duty of collecting assets, imposed by G. L. c. 193, istrator under the statute to collect the

As the duty rests upon a special admin8 11.

personal property of the deceased and preAppeal from Probate Court; Essex County. serve the same for the executor or admin

istrator when appointed, it cannot be doubtIn the matter of the estate of John Foster ed 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 affirmed.

bezzled. R. Baldwin, of Boston, for appellant.

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

complaint under the statute. Although it

has been held that where there are two or CROSBY, J. On November 27, 1922, Ed- more executors or administrators, the promund H. Talbot and Edward J. Coleman were bate court is without power to license one appointed special administrators of the es of them to sell land for the payment of tate of John Foster Bush by the probate debts upon his sole petition (Hannum v. Day,

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or

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