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Appellee Fannie Wheatcraft, at the time | Tilton, and that for this reason the demurrer of the execution of such deed, was unmar- thereto should have been sustained. ried and was the only child and heir of the grantor. Appellee Grace Wheatcraft was then in life and was the only child and heir of said Fannie.

In March, 1905, Eliza J. McAlpin died intestate, leaving said Fannie as her only child and heir. On the 24th day of April, 1905, said trust deed was recorded in deed record-in Marion county, Ind.

On the 18th day of December, 1909, Grace Wheatcraft was married to David R. Tilton, and on the 23d day of March, 1910, she and her mother, Fannie, joined in a petition filed in the Marion circuit court in which they, for the reasons therein set forth, asked a removal of said trustee.

[1] To this petition appellant filed a verified plea in abatement in which he alleged that he was then, and for more than 20 years prior thereto had been, a resident of Johnson county, Ind. To this plea a demurrer for want of facts was sustained, and such ruling is assigned and relied on as error. A demurrer to the complaint and separate demurrers to each of the several grounds for removal numbered 2, 3, 4, 5, 6, 8, 11, and 12 were each overruled, and to each ruling appellant saved proper exceptions. These rulings are also assigned as error and relied on for reversal. An answer in denial, three paragraphs of affirmative answer, and a reply in denial closed the issues. There was a trial and a general finding for appellees and that appellant be removed. A motion for new trial was overruled, and this ruling is assigned and relied on as error. The question presented by the ruling on the demurrer to the plea in abatement requires us to determine whether the place of residence of the trustee controls the question of jurisdiction in such cases.

The real estate in which the trust was created and over which the trustee, as such, was to exercise management and control was in Marion county. The deed creating the trust was recorded in Marion county. The petition sought the removal of the trustee and nothing more. It did not ask a personal judgment against appellant, and tendered no issue that in any way affected his person or property, but sought only to relieve the trust estate of appellant's management and control.

The facts averred in the petition and the relief sought therein bring it within the general rule which gives jurisdiction of a trust to a circuit court of the county in which it is created. Sections 4023, 4039, and 4040, Burns 1908; Thiebaud v. Dufour, 54 Ind. 320, 327; Tucker et al. v. State, 72 Ind. 242, 246; Hinds v. Hinds, Ex'r, 85 Ind. 312, 316; Preimer Steel Co. v. Yandes, 139 Ind. 307, 316, 38 N. E. 849.

It is urged against the complaint that it does not state facts sufficient to constitute a

[2] Appellant's contention that a complaint in which more than one plaintiff joins must state a cause of action in favor of all the parties joining therein to make it sufficient against a demurrer for want of facts is supported by authority. Darkies v. Bellows, 94 Ind. 64, 66; Holzman v. Hibben et al., 100 Ind. 338, 339, 340; McIntosh v. Zaring, 150 Ind. 301, 313, 49 N. E. 164, and authorities there cited; Swales v. Grubbs, 6 Ind. App. 477, 480, 33 N. E. 1124.

[3] It is insisted that the complaint shows that Fannie Wheatcraft was unmarried and that the words "child" or "children," as used in the deed here involved, means the legitimate child or children of said Fannie, and that the complaint therefore shows upon its face that Grace Tilton has no interest in the trust involved, and hence no cause of action was stated in her favor. "It is a rule of construction that prima facie the word 'child' or 'children,' when used either in a statute or will, means legitimate child or children.” McDonald v. Pittsburgh, etc., R. Co., 144 Ind. 459, 461, 43 N. E. 447, 32 L. R. A. 309, 55 Am. St. Rep. 185; Jackson v. Hocke, 171 Ind. 371, 373, 84 N. E. 830, and authorities there cited. In the complaint before us, however, it appears by necessary inference that Grace Tilton was in being when Eliza McAlpin made the deed in question.

Section 2998, Burns 1908, provides: "Illegitimate children shall inherit from the mother as if they were legitimate, and through the mother, if dead, any property or estate which she would, if living, have taken by gift, devise, or descent from any other person."

Mrs. McAlpin, having made the deed in question after the birth of her grandchild, Grace, she will be presumed to have made it both with reference to the existence of such grandchild, and the statute above quoted governing the descent of property in such cases. It is further insisted by appellant that by the terms of the deed in question the appellee Grace, at the time of the filing of the petition herein, had no vested interest in the remainder in the fee, but only a contingent remainder therein, and that for this reason the complaint fails to show a cause of action in her.

[4, 5] The law favors the vesting of remainders at the earliest possible moment (Alsman v. Walters, 101 N. E. 117, 119, and authorities there cited); but whether, by the provisions of the deed in question, the interest of appellee Grace in the real estate be treated as vested, or contingent only, the complaint shows that she had such an interest in the subject of the action as entitled her, under section 263, Burns 1908, to join as a plaintiff.

[6] It is urged against the ruling on the separate demurrers to the several grounds

neither of them show any cause for removal | verse, in a petition to remove the trustee, in favor of Grace Tilton, and that therefore . the separate demurrer to such grounds should have been sustained. This contention is specially made with reference to grounds 2 and 3. These grounds are as follows:

"(2) He has not paid to Fannie Wheatcraft the rents of said real estate annually, as provided in said deed of trust.'

"(3) He has not accounted to Fannie Wheatcraft 'for the net rents and profits of said real estate annually as provided in said deed of trust.'"

Assuming, without deciding, that appellant is correct in his contention that these several grounds for removal should be treated as separate paragraphs of a complaint, and that each ground should be sufficient as to each plaintiff, we must determine whether the respective grounds stated afford a cause of removal in favor of Grace Tilton. It is true in a sense that such appellee was not directly harmed by appellant's failure to account to her coappellee, the life tenant, for the annual rents and profits of said real estate, but we must not lose sight of the nature and character of the action here involved. The only purpose of the action is the removal of the trustee on account of a breach of his trust.

Section 4023, Burns 1908, provides as follows: "Trustees having violated or attempted to violate any express trust, or becoming insolvent, or of whose solvency or that of their sureties there is reasonable doubt, or for other cause in the discretion of a court having jurisdiction, may, on petition of any person interested, after hearing, be removed by such court, and all vacancies in express trusteeships may be filled by such court." (Our italics.)

Both the life tenant and the remainderman are interested in a faithful performance of the trust and the proper management and preservation of the trust estate, and we are of the opinion that the section of statute just quoted authorizes a joint ground for removal which shows a breach of the trust by the trustee which injuriously affected one cestui que trust alone; and, if such breach be a sufficient cause for removal by such cestui que trust, it will inure to the benefit of his copetitioners and be treated as a sufficient ground of removal in favor of them. It must be remembered that it is the breach of the duty and its effect on the trust estate, and not the extent of its effect on any one cestui que trust, that furnishes the cause of action or ground of removal, and such removal by one necessarily operates as a removal for all. For these reasons we think any cestui que trust may join with another cestui que trust, whose interest is not ad

and they may jointly allege any violation of duty by the trustee which furnishes sufficient ground for his removal, though such violation may have directly affected one only of the parties joining. Of course, in an action to recover damages resulting from the violation of the duty, an entirely different question would be presented. In support of our conclusion on this question see Gartside v. Gartside, 113 Mo. 348, 358, 20 S. W. 669.

Finally it is insisted in effect that the complaint, and each of the grounds thereof, fails to state a cause of action in favor of either of the appellees because the trust estate is not shown to be in jeopardy, and no "actual dishonesty or incompetency on the part of appellant" is shown.

[7] It is true, as appellant contends, that it is not every violation of duty, or mismanagement on the part of the trustee, that will necessitate his removal, especially where the trust fund is in no danger of being lost on account of such breach of duty. Perry on Trusts (5th Ed.) § 276; Am. & Eng. Enc. L. (2d Ed.) vol. 28, p. 979. It seems clear, however, under our statute and from all the decisions, that, if the breach of the trust relied on endangers or impairs the trust fund, it will furnish a sufficient ground for removal. Am. & Eng. Enc. L. (2d Ed.) vol. 28, pp. 978 and 979; Grand Rapids, etc., Co. v. Cox, 8 Ind. App. 29, 35 N. E. 183, and authorities there cited; N. C. R. v. Wilson, 81 N. C. 223–230.

[8] The use of the trust estate by the trustee for his own benefit or any neglect or mismanagement, which impairs or jeopardizes such estate, will furnish sufficient ground for removal. Am. & Eng. Enc. L. vol. 28, supra; Gartside v. Gartside, supra; N. C. R. Co. v. Wilson, supra, 81 N. C. 230; Piper's Appeal, 20 Pa. St. 67; Wilson v. Wilson, 145 Mass. 490, 14 N. E. 521, 1 Am. St. Rep. 477; section 4023, R. S. 1908.

The complaint and the several grounds for removal therein stated, to which a demurrer was overruled, fully meet the requirements of the decisions cited and the principles of law announced therein. The only grounds of the motion for new trial discussed in appellant's brief are those alleging that the decision is contrary to law, and that it is not sustained by sufficient evidence. Practically the same questions are raised that we have already discussed in connection with the complaint, and no necessity is indicated for their further discussion in this connection. There is evidence tending at least to support several, if not all, the grounds for removal to which the demurrer was overruled. We find no error in the record.

Judgment affirmed.

(53 Ind. App. 518) WESTERN INS. CO. v. ASHBY. (No. 8,004.) (Appellate Court of Indiana, Division No. 1. June 5, 1913.)

1. APPEAL AND Error (§ 757*)—BRIEFS-SUF


Under court rule 22 (55 N. E. v), providing that briefs shall contain a concise statement of so much of the record as fully presents every error and exception relied on, an appellant, whose briefs failed to state the substance of pleadings complained of or testimony objected to, waives the errors complained of.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] 2. INSURANCE (§ 310*)-CONDITIONS-INVA


Provisions in a fire policy that it shall be void upon breach of certain conditions merely allow it to be avoided at the option of the insurer, who must, after notice of the breach, act with reasonable promptness, notify the insured of its election, and tender back the unearned premium.

[Ed. Note. For other cases, see Insurance, Cent. Dig. $$ 703, 761, 780, 826, 840, 904; Dec. Dig. § 310.*1


An insurance broker, acting within the scope of his authority, is the agent of the company from which he secures insurance, and his knowledge relating to the risk is binding on the company, though not communicated to it.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 96-113, 125; Dec. Dig. § 95.*1 4. INSURANCE (§ 396*)-FIRE INSURANCELOSS WAIVER.

FELT, P. J. This is a suit by the appellee against the appellant to recover upon an insurance policy for the loss by fire of certain personal property.

[1] Trial by jury resulted in a verdict for appellee in the sum of $2,500. From a judgment on the verdict the appellant has appealed, and in his brief states as to the first error relied on that the appellee's complaint does not state facts sufficient to constitute a cause of action. Neither the complaint nor the substance thereof is set out in the brief. Furthermore the only defect suggested in appellant's brief appears to be without foundation for appellee shows that the apparent defect has been cured by the return to a writ of certiorari duly issued on order of this court.

Appellant also states in its brief that the court erred in overruling its separate demurrer to the second and fifth paragraphs of appellee's reply to its second, third, and fourth paragraphs of answer. But neither the replies nor the demurrers are set out in the briefs, nor is the substance thereof stated.

Appellant also claims the court erred in overruling its motion for a new trial. From the briefs we learn that a new trial was asked because the verdict of the jury is not sustained by sufficient evidence, and is contrary to law; that the damages assessed by the jury are excessive; that the court erred in giving to the jury certain instructions and

Where a fire insurance company has knowledge of facts which will enable it to de-in refusing to give certain instructions tenclare the policy void, and it requires proof of loss, failing to give timely notice of its election to avoid the policy, it waives the right to defeat a recovery for those reasons.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 1071-1077; Dec. Dig. & 396.*1 5. INSURANCE (§ 665*)-FIRE INSURANCE-LI


In an action on a fire policy, evidence held sufficient to sustain a finding that the insurer had waived the breach of conditions which entitled it to avoid the policy.

[Ed. Note. For other other cases, see Insurance, Cent. Dig. 88 1555, 1707-1728; Dec. Dig. § 665.*]

6. INSURANCE (§ 378*)-FIRE INSURANCEEVIDENCE-ADMISSIBILITY. In an action on a fire policy, where the insurer set up as a breach of conditions that plaintiff's title to the property was not absolute, evidence of the knowledge of the broker effecting the insurance as to the nature of plaintiff's title is admissible, because his knowledge must be imputed to the company.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 968-997; Dec. Dig. § 378.*] Appeal from Circuit Court, Allen County; E. O'Rourke, Judge.

Action by Leona Ashby against the WestAction by Leona Ashby against the Western Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Robert B. Dreibelbiss and H. I. Smith, both of Ft. Wayne, for appellant. Howard L. Townsend and Elmer Leonard, both of Ft. Wayne, for appellee.

dered by appellant; also that the court erred in admitting in evidence the testimony of the appellee, in which she related a conversation between herself and an insurance broker

nanied Kehoe, who solicited the insurance, delivered the policies, and collected the pre


Appellant has not set out either the instructions given or refused or the substance thereof. Rule 22 (55 N. E. v) is plain and definite, and its purpose and scope has been stated in many decisions. Litigants who wholly ignore the rules of the court cannot expect the court to search the record for errors they have failed to present. In this case appellant has almost wholly ignored the rules and thereby waived the errors, if any, it desires to have considered. Chicago, etc., Co. v. Walton, 165 Ind. 253, 74 N. E. 1090; Schrader v. Meyer, 48 Ind. App. 36, 95 N. E. 335; Webster v. Bligh, 98 N. E. 73.

Appellee has set out in her briefs much sufficient to enable us to consider the quesof the evidence given at the trial, which is tions on the motion for a new trial which relate to the sufficiency of the evidence to sustain the verdict, and the assignment that the verdict is contrary to law; also the admissibility of part of appellee's evidence as above shown. The evidence tends to show that appellee was the owner of a large amount of household goods and furniture in

There was no evidence tending to show that the appellant had at any time either before or after the fire offered to cancel the policy, rescind the contract, or return any portion of the premium received. The policy in suit contains provisions declaring it void if the insured is not the absolute and unconditional owner of the property insured, or if she has or obtains other insurance without the insurer's consent. Appellee does not dispute these propositions, but claims appellant had knowledge of her title and of the other insurance, and, after obtaining such knowledge, issued the policy, collected and retained the premium, and after the loss occurred not only required her to make proof of the loss, but, after several weeks of delay, to furnish additional proofs, which she did.

the city of Ft. Wayne, of the probable value | timony. He also stated that he knew what of $7,000; that on the 10th day of February, the property was at the time the policies 1909, she procured two policies of fire insur- were written, and that each of said policies ance, each for $2,500, one of which was is- covered the same property; that by an oversued by appellant and the other by the Hum- sight he failed to insert in the policy permisboldt Insurance Company; that each of said sion to carry other insurance, but that it policies was written by Walsh and Kierspe, ought to have been inserted, and it was insurance agents for said companies; that by his mistake the clause was omitted from one Kehoe was engaged in the insurance the policy in suit. business, and solicited appellee to insure her said property, and at the time learned from her that a part of the property owned by her which was to be insured had been purchased by her on the installment plan, and that she did not then have an absolute title thereto; that said Kehoe procured the policy in suit from said agents of appellant, delivered the same to her, and received from her the premium of $50, out of which he was paid a commission by said agents; that said Kehoe had, for some time prior to this transaction, obtained insurance for appellant through said agents in the same way this insurance was procured; that appellee made no representations as to her title to said property, except the statement aforesaid, and no further information was sought from her; that appellant was in no way misled or deceived by any statements or representations made by her; that appellant's agents had knowledge of the character of appellee's title to the property insured at the time the policy was issued; that the policy had been in force almost two years at the time the fire occurred; that shortly after the fire occurred an adjuster of appellant called upon appellee, looked over the property, and was by the appellee fully advised as to the character of her title to the property, and he thereafter directed her to protect the property not wholly destroyed by fire, and to make an invoice of the property injured and destroyed; that proofs were forwarded to the companies in accordance with such request, and later appellant claimed the proof of loss was insufficient, and made a request that appellee furnish additional proof, which she did, and also made demand for payment; that appellee had nothing to do with the designation or selection of the companies in which her insurance was written, and when said Kehoe delivered the policies, she accepted the one in suit and the one issued by the Humboldt Insurance Company for a like amount, and paid him the premiums therefor; that she did not read the policies or know anything about the conditions they contained.

George Kierspe testified that he was one of the agents of appellant in Ft. Wayne; that Kehoe brought the insurance to his agency, and they paid him the regular commission on the business; that he issued both policies at the same time and was agent for both companies; that both policies were delivered to Kehoe as aforesaid.

William Walsh testified that he was the

[2] The doctrine is well established in this state that a provision in such policy, rendering it void upon certain conditions, means voidable at the option of the insurer, and that to render it void, upon discovery of the facts by which liability may be avoided, it must act with reasonable promptness, must notify the insured of its election to avoid the policy, tender back, or in some appropriate way restore, or offer to restore, the unearned premium received, and upon failure so to do will be deemed to have waived the right to so declare the policy void, and to have elected to treat it as a valid contract of insurance. Glens Falls Ins. Co. v. Michael, 167 Ind. 659–678, 74 N. E. 964, 79 N. E. 905, 8 L. R. A. (N. S.) 708; Ohio Farmers' Ins. Co. v. Vogel, 166 Ind. 239-244, 76 N. E. 977, 3 L. R. A. (N. S.) 966, 117 Am. St. Rep. 382, 9 Ann. Cas. 91; Metropolitan Life Ins. Co. v. Johnson, 94 N. E. 785; U. S. Health & Accident Ins. Co. v. Clark, 41 Ind. App. 345351, 83 N. E. 760.

[3] It has been held in this state that an insurance broker, acting within the scope of his authority, is the agent of the company from which he secures insurance, and that his knowledge relating to the risk is binding on the company, though not communicated to it. German Fire Ins. Co. v. Greenwald, 99 N. E. 1011, and cases cited.

[4] Where an insurance company has knowledge of facts which would enable it to declare the policy void and a loss occurs, by requiring proof of loss and failing to give timely notice to the insured of its election to avoid the policy it waives the right to defeat a recovery on the policy by reason of such facts. Replogle v. American Ins. Co., 132 Ind. 360, 367, 31 N. E. 947; Home Ins.

633; Phenix Ins. Co. v. Boyer, 1 Ind. App. 329, 27 N. E. 628.

[5] From the evidence in this case it is clear that the jury were warranted in finding that appellant had waived any condition in the policy by which it might have avoided liability. Where this is done the policy will be enforced the same as if such provisions were not in the policy. Ohio Farmers' Ins. Co. v. Vogel, supra.

[6] The knowledge of the broker relating to facts affecting the validity of the policy issued by appellant to the appellee being imputed to the company, it follows that the court did not err in permitting appellee to testify to facts showing his knowledge of her title before the policy was either written or delivered.

No available error is shown by the briefs. The presumption is in favor of the judgment of the lower court, and substantial justice appears to have been done between the par


Judgment affirmed.

(53 Ind. App. 501)

CO. (No. 8,010.)
(Appellate Court of Indiana, Division No. 1.
June 4, 1913.)


The evidence is not in the record so as to authorize a review of the action of the court in overruling a motion for a new trial, on the ground of insufficiency of the evidence, where no reference is made in the brief to the filing of the bill of exceptions and no order book entry of the filing of the bill is shown in the record, and the certificate of the clerk fails to show that a bill of exceptions was filed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2944-2947; Dec. Dig. § 706.*1


Where the assignment of error to the conclusions of law is general, if any of the conclusions are correct, there is no available error. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. 8 731.*1

Appeal from Circuit Court, Howard County; William Purdum, Judge.

Suit by the Armstrong-Landon Company against Henrietta Miller and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Milton Bell and Jos. C. Herron, both of Kokomo, for appellants. Blacklidge, Wolf & Barnes, of Kokomo, for appellee.

SHEA, J. Suit by appellee to foreclose a mechanic's lien against appellants Henrietta Miller and Charles G. Miller. Appellant John W. Tash was made a party to the action to answer as to any interest he might have or claim in the property subject to the lien.

The complaint was in four paragraphs, to each of which appellant's separate demurrers were overruled. Answer in general denial. Appellant Tash Tash filed a cross-complaint against Miller and Miller to foreclose a mechanic's lien against them on an account he claimed was owing him by Charles G. Miller, which was answered in general denial.

Upon request, the court made a special finding of facts and stated conclusions of law thereon as follows:

(1) That appellee is entitled to a personal judgment of $429.19 (principal and interest) against Charles G. Miller, and $55 attorney's fees, also foreclosure of the mechanic's lien against Henrietta Miller and Charles G. Miller as to that part of the real estate de-. scribed in finding No. 30.

(2) That cross-complainant John W. Tash is entitled to a personal judgment of $84.29 (principal and interest) against Charles G. Miller and $15 attorney's fees; also foreclosure of his mechanic's lien against Henrietta Miller and Charles G. Miller upon that part of the real estate described in finding No. 30.

(3) That Henrietta Miller is entitled to have all of her real estate, except the part described in finding No. 30, released from the lien of said mechanic's lien and recover her costs; that all costs are to be taxed against Charles G. Miller and declared a lien upon the real estate described in finding No. 30.

Judgment was rendered accordingly. The errors assigned are the overruling of appellant's motion for a new trial and error of the court on its conclusions of law upon the facts found. In support of the motion for a new trial it is insisted that the decision of the court is not sustained by sufficient evidence and is contrary to law.

[1] Appellee earnestly insists that any question presented by the motion for a new trial cannot be considered by this court for the reason that the evidence is not in the record. No reference is made in the brief to the filing of a bill of exceptions. An examination of the record shows no order book entry of the filing of the bill of exceptions; neither does the certificate of the clerk cure the imperfection or show that a bill of exceptions was filed. Under numerous decisions of this as well as the Supreme Court, it must be held that the evidence is not in the record. Dreyer v. Hart, 147 Ind. 604, 709, 47 N. E. 174; Board, etc., v. Huffman, Adm'r, 134 Ind. 1, 31 N. E. 570; De Hart v. Board, etc., 143 Ind. 363, 41 N. E. 825; Elrod v. Purlee, 165 Ind. 239, 73 N. E. 589, 74 N. E. 1085; McCormick Harvesting Co. v. Smith, 21 Ind. App. 617, 619, 52 N. E. 1000, and authorities cited; Kelso v. Kelso, 16 Ind. App. 615, 44 N. E. 1013, 45 N. E. 1065.

[2] It is earnestly urged by appellee that the assignment of error as to the conclusions of law is general, and therefore, if any one

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