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ministrator represented to the court that an item of $350 which appeared in the inventory with which he was charged was the appraised value of a quantity of corn in cribs, estimated, when appraised, at 1,000 bushels. He stated, further, that, when he came to sell and weigh out the corn, it was found to be badly damaged and unmerchantable; that it fell short of the estimate; and that for these reasons, and for the further reason that the purchaser of 54 bushels subsequently became insolvent, he had only realized the sum of $162.45 for the corn. He asked that he might be credited on his account with $187.55, the difference between the amount realized and the amount with which he stood charged on the inventory.

At the proper time, Emily Williams, widow of the decedent, appeared, and filed exceptions to the report. She alleged that on the first day of November, 1883, when Cooper was appointed and qualified as administrator, the estate owned a crop of corn, consisting of 80 acres, standing in the field, ready to be gathered; that the crop would have yielded an average of 75 bushels per acre, and was worth 25 cents a bushel in the field, and would have brought that if it had been gathered and sold seasonably; and that, after deducting 12 bushels per acre, the landlord's share, there would have remained 5,000 bushels, upon which the estate could have realized 25 cents a bushel. She charges that the administrator failed to inventory the corn until the fifth day of the following March; that he refused to sell it, either at public or private sale, and refused the decedent's heirs permission to gather it in; that he neglected the crop, and permitted it to stand in the field, which he knew was liable to overflow in seasons of high water, where it remained exposed to injury by floods until the month of February, 1884, when it was gathered into cribs, and afterwards inventoried. Meanwhile, it is alleged, the corn was overflowed by high water, and damaged in the sum of $1,000. The exceptant prayed that the administrator be charged with $1,250 on account of the corn crop, instead of $350.

The matter, being thus at issue, was submitted to the court for trial. After hearing the evidence, the court found and adjudged that the administrator was not entitled to the deduction claimed by him on account of the alleged Joss sustained in failing to realize the sum at which the corn was appraised. His claim for services as administrator, amounting to $18.26, was also rejected. Otherwise his account was approved.

The administrator brings the record here, and asks a reversal on the evidence. The only question presented for the consideration of this court, therefore, is, was there any legal evidence fairly tending to sustain the finding and judgment of the court below? The evidence discloses that the appellant owned the land upon which the corn was raised; the decedent having rented it under an agreement that he was to yield to the landlord as rent 12 bushels of shelled corn per acre, to be delivered on the river bank in sacks. All the witnesses agree that the crop would have yielded 50 bushels per acre, and upward, if it had been gathered before the overflow. As it was, when gathered, it produced 1,151 bushels of shelled corn, and 1881 bushels of ears. Out of this the appellant took, as his rental, 864 bushels of the shelled corn, leaving for the estate 287 bushels, besides the corn in the ear. From the proceeds of this was to be paid the expense of gathering, shelling, and sacking the whole. To say the least, the result attained was most disastrous for the estate. The land upon which the corn was grown constituted part of the Wabash bottom, and the evidence tended to show that it was accustomed to overflow during the winter freshets. There was evidence, some of it from the appellant's witnesses, tending to show that, by the exercise of diligence, the corn might have been gathered in the first part of November following the appellant's appointment as administrator. During the middle and latter part of the month, the land was submerged. The waters did not recede until in December. After the water receded, the corn was gathered diligently.

Upon the whole evidence, while there may be some question whether the preponderance lies on the side of the appellant's diligence, or whether it establishes negligence, there can be no dispute but that there was evidence which fairly supports the conclusion that the appellant failed to exercise that degree of promptness in having the crop secured that its hazardous situation required. With respect to property which comes under the care of administrators, they are required to adopt such precautions against loss, and exercise such forethought for its security, as ordinarily prudent men are accustomed to employ in reference to their own property. There is evidence in the record fairly justifying the conclusion, which the court below must have reached, that the appellant failed to conform to this requirement.

As we are not permitted to consider evidence with a view of determining on which side the preponderance lies, we cannot disturb the finding below, Judgment affirmed, with costs.

(109 Ind. 476)

ALLEN and others v. CRAFT and others. 1

(Supreme Court of Indiana. January 13, 1887.)


A devise to a trustee is ineffective in a case where no power of disposition or control is vested in him, and the estate vests directly in the beneficiary.


Estates tail are abolished by statute, and what would have been an estate tail at common law, is an estate in fee-simple under the statute.


The rule in Shelley's Case is a law of property in Indiana, and under that rule a devise to "Matilda Allen, and her heirs, forever," carries the fee to the first taker, although some of the superadded words are inconsistent with the creation of a fee in the first taker.


The word "heirs" must be regarded as a word of limitation, unless the superadded words make it perfectly clear that the testator employed it in a different sense from that annexed to it by law.


Where a fee-simple is devised, a condition in restraint of alienation will be void. 6. SAME-INTENTION OF TESTATOR.

The intention of testator cannot prevail against a positive rule of law, such as the rule in Shelley's Case, unless it clearly appears that the word "heirs" was used by the testator in a sense different from the technical meaning assigned to it by law. Howk, J., dissents.

Appeal from circuit court, La Porte county.

Biddle & Truesdell, for appellants. Bradley & Bradley, Wile & Osborn, and H. Weir, for appellees.

ELLIOTT, C. J. The second item of the will of Catherine Allen reads thus: "Secondly, I devise and bequeath unto John Allen, of Xenia, in Green County, in the state of Ohio, in trust for Mrs. Matilda Allen, the present wife of my son Mark Allen, and her heirs, forever, the following real estate, to-wit: The south half of section 28, in township 36 north, of range 3 west, situate and lying and being in the county of La Porte, aforesaid. And I hereby direct that the said Matilda shall have the sole use, control, benefits, and profits thereof, free and clear of and from her said husband, my son Mark Allen, and free and clear of all interference on his part in the management thereof, the receipt of profits arising therefrom, and in all matters whatsoever, during her natural life; and at and after her death then the heirs of her body shall in all things control and manage the same, and receive the rents and profits arising therefrom: provided, nevertheless, that upon the death of my son Mark, if my said daughter Matilda should survive him, the heirs of her body then living and in being shall thenceforward be entitled to receive two-thirds of 1 Rehearing denied.

the profits thereof, to be equally divided between them; and, should the said Matilda marry again, then the heirs of her body then in being shall thenceforward manage and control the said land, still giving to my said daughter one-third of the profits during her natural life; but in no case shall the issue of my daughter Matilda by any marriage other than with my son Mark be entitled to inherit anything under or by virtue of this will, but I expressly prohibit them therefrom; and in case that my daughter Matilda shall survive her present husband, she shall not, after his death, alienate the said estate."

The designation of John Allen as trustee is ineffective, inasmuch as no power of control or disposition is vested in him. The estate, whatever its character, devised to Matilda Allen vests directly in her. This is the effect of the statute, as the trust is a mere naked one. Rev. St. 1843, p. 447, § 183; Rev. St. 1881, § 2981.

The controlling question in the case is as to the nature of the estate devised to Matilda Allen. If the estate devised is a fee, then the judgment below was right; if not, the judgment is wrong, and must be reversed.

The contention of appellee's counsel that, if the estate devised would have been an estate tail at common law, it is an estate in fee-simple under our statute, must prevail. Rev. St. 1843, 424; Rev. St. 1881, § 2958; Tipton v. La Rose, 27 Ind. 484.

There were at common law two kinds of estates tail,-general and special. Blackstone thus describes the latter: "Tenant in tail special is where the gift is restrained to certain heirs of the donee's body, and does not go to them all in general." 2 Bl. Comm. 112. In this instance, if the estate devised is an estate tail, it is a special one; for the words of the will restrain the persons who shall take to those begotten by the son of the testatrix and the husband of the donee. The inquiry as to whether the estate tail, conceding that this is the estate created by the devise, is a special or a general one, is important only for the purpose of showing that a limitation to a designated class of heirs does not cut down the estate of the first taker to less than a fee; for the estate is a fee, although the limitation may be to a designated class of heirs, to the exclusion of all others. It results from this rule of law that the limitation to the heirs of the body of Matilda Allen begotten by Mark Allen does not, in itself, further effect the devise than to make it what at common law would be an estate tail special; but, if it be such an estate at common law, then, by force of our statute, it is an absolute estate in fee, since all estates tail are transformed into fees absolute. What we have said disposes of the clause limiting the inheritance to the heirs begotten by Mark Allen considered in itself and apart from the other provisions of the will, and we proceed to analyze and discuss the other provisions of the instrument.

It is firmly established by our decisions that the rule in Shelley's Case is the law of this state. In one case the court declared and enforced this rule, but expressed the hope that it might be changed by legislation, avowing that it was not within the power of the court to change it, much as the court doubted its wisdom and justice. Siceloff v. Redman, 26 Ind. 251, see page 259. But the rule has been so repeatedly and emphatically declared to be a rule of property that it is no longer a question as to its binding force upon the courts of the state. Hockstedler v. Hockstedler, ante, 467, (December 17, 1886;) Fountain Co. v. Beckleheimer, 102 Ind. 76, authorities cited page 77; S. C. 1 N. E. Rep. 202; Shimer v. Mann, 99 Ind. 192; Ridgeway v. Lanphear, 99 Ind. 251; Biggs v. McCarty, 86 Ind. 352; McCray v. Lipp, 35 Ind. 116; Andrews v. Spurlin, Id. 262; Doe v. Jackman, 5 Ind. 285.

The clause in the will containing the words "unto Matilda Allen, and her heirs, forever," if it stood alone, would unquestionably carry the case far within the rule in Shelley's Case. Shimer v. Mann, supra, and cases cited; Hockstedler v. Hockstedler, supra. The clause cannot, however, be severed from those with which it is associated, but must be considered in conjunction

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with them. We have no doubt that a clause creating an estate in fee may be so modified by other clauses as to cut down the estate to one for life; but, to have this effect, the modifying clauses must be as clear and decisive as that which creates the estate. Hockstedler v. Hockstedler, supra; Bailey v. Sanger, 9 N. E. Rep. 159; Thornhill v. Hall, 2 Clark & F. 22; Collins v. Collins, 40 Ohio St. 353; Lambe v. Eames, 10 Eq. Cas. 267; Clark v. Leupp, 88 N. Y. 228; Roseboom v. Roseboom, 81 N. Y. 356; Freeman v. Coit, 96 N. Y. 63. If the other words of the will are as strong and clear as those of the clause, "unto Matilda Allen, and her heirs, forever," then it may well be held that the estate is less than a fee. The word "heirs," is, as Mr. Preston says, "the most powerful" that can be employed; and this our cases recognize. Shimer v. Mann, supra, and cases cited; Hockstedler v. Hockstedler, supra. Strong as is the word "heirs," it may be read to mean "children," if the context decisively shows that it was employed in that sense by the testator. Ridgeway v. Lanphear and Shimer v. Mann, supra; Hadlock v. Gray, 104 Ind. 596; S. C. 4 N. E. Rep. 167. But there must be no doubt as to the intention of the testator to affix to the word "heirs" a meaning different from that assigned it by law. Shimer v. Mann, supra; Jesson v. Wright, 2 Bligh, 1–56; Doe v. Gallini, 5 Barn. & Adol. 621; Lees v. Mosley, 1 Younge & C. 589; Powell v. Board of Domestic Missions, 49 Pa. St. 46-53; Den v. Emans, 3 N. J. Law, 522; Robins v. Quinliven, 79 Pa. St. 355.

It appears from these principles that the words employed in the clause, "unto Matilda Allen, and her heirs," must prevail to carry a fee, unless we find equally clear and decisive terms cutting down the estate; and this is not possible, unless, as said in one of the cases cited, the intent to employ the word "heirs" in a different meaning from that assigned it by law is so plain that nobody can misunderstand it. Our search, then, must be made with these rules as our guide.

The clause which gives to Matilda Allen the sole control of the estate during life, and, after her death, "then to the heirs of her body," is but a reiteration of the meaning conveyed by the clause we have already discussed; for in themselves they convey a fee, as the powerful term "heirs " is still employed.

Proceeding with our analysis, we come to the clause: "Provided, nevertheless, that upon the death of my son Mark, if my daughter should survive him, the heirs of her body then living shall thenceforth be entitled to receive twothirds of the profits thereof, to be equally divided among them; but, should the said Matilda marry again, then the heirs of her body then in being shall thenceforward manage and control the land, still giving to my daughter onethird of the profits thereof during her natural life, but in no case shall the issue of my daughter by any marriage other than with my son Mark inherit anything under or by virtue of this will, but I expressly prohibit them therefrom; and, in case that my daughter Matilda should survive her present husband, she shall not, after his death, alienate the said estate." The introductory clause in which the word "heirs" occurs undoubtedly shows, if taken by itself, that the word was not used as signifying "heirs" in the legal sense of the word; but we cannot separate this clause from the other members of the sentence; and considered, as undeniably it must be, in connection with them, it must yield. This we say, because in the clause blended with it is the word "issue." and this is ordinarily a word of limitation, of the same force as the word "heirs."

In Quackenbos v. Kingsland, 102 N. Y. 128, S. C. 55 Amer. Rep. 771, and 6 N. E. Rep. 121, the words of the will were: "I give, devise, and bequeath to my son Daniel Kingsland, and to his heirs; but, in case my son Daniel should die without lawful issue, I give and bequeath to my remaining children, "-and it was held that Daniel took an estate in fee.

The definition of the word "issue" was tersely stated by Lord ELDON in

Sibley v. Perry, 7 Ves. 522, for he said: "Upon all the cases, this word, prima facie, will take in descendants beyond immediate issue."

In Powell v. Board of Domestic Missions, 49 Pa. St. 46, it was said: "Undoubtedly the word issue' is regarded primarily as a word of limitation, and as synonymous with the technical words heirs of the body.' Hence it is presumed that when a testator devises an estate for life, with a remainder to the issue' of the devisee of that estate, he intends the remainder-men to take as heirs of the body by descent from their ancestor, rather than as purchasers, themselves the root of a new succession."

To a like effect is the statement in Den v. Emans, 3 N. J. Law, 522–525, that "the word issue,' in a devise, as a word of limitation, is synonymous to 'heir.' It is nomen collectivum, and takes in the whole generation."

In Robins v. Quinliven, 79 Pa. St. 335, these words were used: "The word 'issue' in a will prima facie means heirs of the body,' and, in the absence of explanatory words showing that it was used in a restricted sense, is to be construed as a word of limitation."

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In Carroll v. Burns, 15 Wkly. Notes Cas. 553, S. C. 55 Amer. Rep. 778, note, it is said: "The rule is unquestioned that, prima facie, in a will, the word 'issue' means heirs of the body,' and will be construed as a word of limitation, unless there be explanatory words showing it was used in a restricted sense. 99

These decisions, to which many more might be added, do no more than give expression to a long-existing and well-known principle; and the rule affixing to the term "issue" the meaning expressed in these cases requires that the term, as used in the will before us, should be deemed to mean "heirs" in the sense in which that term is employed in the clause of the will which reads, "unto Matilda Allen, and her heirs, forever." Hawk. Wills, 189.

It is contended, however, that the restriction upon the power of alienation evinces an intention to devise only a life-estate to Matilda Allen. But it is, however, to be noted that the language in which the restriction is expressed is ambiguous, if, indeed, the only just meaning that can be put upon it is not adverse to the appellant's contention. The restriction is not that Matilda shall in no event alienate the land, but that she shall not do so in one event; that is, in the event that she survives her husband. The clear implication is that, during her husband's life, she was empowered to alienate the land, so that, so far as the question of alienation is concerned, the words of this part of the will are not inconsistent with those which so clearly and decisively create an estate in fee. If only a life-estate was intended to be vested on the first taker, then there was no reason for imposing a restraint upon the power of alienation. But, under the rule of which we have spoken, we cannot enter into conjectures as to the effect of the clause respecting the power of alienation; for, unless it can be affirmed that the clause is as clear and decisive as that which creates the estate, the estate cannot be cut down. It would have been impossible to have found in all the domain of legal terminology stronger words than those employed, "to Matilda Allen, and her heirs, forever," and they must control the feeble influence of the clause which attempts to limit the right of Mrs. Allen to alienate the land devised to her.

There is another principle in the law of real property which exerts a controlling influence here, and that is this: Where an estate in fee is created in clear and decisive terms, a restriction upon the right of alienation is of no effect. There may be a partial restriction, but there cannot be a general one. This must be so, or else reason and logic must be disregarded; for a fee-simple necessarily implies absolute dominion over the land, and this cannot exist if the power of disposition is hampered by a restriction destroying the absolute dominion inherent in the owner of the fee. McWilliams v. Nisly, 2 Serg. & R. 513; Moore v. Schultz, 13 Pa. St. 101; De Peyster v. Michael, 6 N. Y. 467; Mandlebaum v. McDonell, 29 Mich. 78; 4 Kent, Comm. 5. Undoubtedly, the

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