cardinal rule in the construction of wills is that the intention of the testator shall prevail; but, where words are used which have a settled legal meaning, full effect must be given to them. The cases go very far upon this question. Thus, in Doe v. Jackman, 5 Ind.-283, it was said: "But the term 'heirs' is one of limitation. It has a fixed and legal meaning, and a mere presumed intention will not control its signification. It cannot be held a word of purchase, unless the testator's intent to so use it appears manifest.'

In McCray v. Lipp, 35 Ind. 116, the court said: "Under the rule in Shelley's Case, the fee passes in opposition to the apparent intent of the testator."

This court in Siceloff v. Redman, supra, said: "Although from this language it is apparent that the testator intended that Virginia should take a lifeestate only, and that her heirs should take after her death; and as the estate so intended to be granted to Virginia would terminate at her death, and could not, therefore, descend to her heirs, it would seem apparent that the testator intended that the heirs should take directly as purchasers, and not by descent from the ancestor,-yet, by the technical meaning applied to the heirs' un-· der the rule in Shelley's Case, this apparent intention is denominated a presumed intention, and it is not allowed to control the technical meaning of the word heirs;' or, in other words, despite the apparent intent in the testator, the rule gives the fee to the ancestor."

Again, in the case of Gonzales v. Barton, 45 Ind. 295, the court said: "If the question could be regarded as one of intention only, there would be no difficulty in coming to the conclusion that in this case it was intended that Morey should take a life-estate only; but such is not the rule, as may be seen by a full reference to the cases cited as having been decided by this court."

Mr. Fearne states the rule very strongly, perhaps too strongly; for he says: "The most positive direction will not defeat the operation of the rule in Shelley's Case." 2 Fearne, Rem. 453.

Judge SHARSWOOD, in delivering the opinion of the supreme court in Ingersoll's Appeal, 86 Pa. St. 240-245, said: "Nothing, certainly, is better settled than that the intention of a testator, if not. contrary to law, shall be carried out in the disposition he may make of his property after death. There are

many things which he cannot do, however clearly he may intend it. He cannot create a fee, and clog the power of alienation, or relieve it from liability for debts. He cannot create a perpetuity by an executory devise, after an indefinite failure of issue, or at any other period which may not be until after a life or lives in being, and twenty-one years.

The same learned judge in Doebler's Appeal, 64 Pa. St. 15, said: "While the intention of the testator, if consistent with law, is undoubtedly to be the polar star, yet we are bound to take as our guides those general rules or canons of interpretation which have been adopted and followed by those who have gone before us. It becomes no man and no court to be wise above that which is written. Security of titles requires that no mere arbitrary discretion should be exercised in conjecturing what words the testator would have used, or what form of disposition he would have adopted, had he been truly advised as to the legal effect of the words actually employed. That would be to make a will for him, instead of construing that which he has made."

In Bender v. Fleurie, 2 Grant, Cas. 345, the testator gave to his daughter certain land in these words: "She shall have it as her own during her life, and then it is to come to the heirs of her body for their own use." This was held to be clearly an estate tail within the rule, and it was said by the court: "But it is said the testator did not mean to give her an estate tail. Perhaps he did not, but he has used words which in law mean nothing else. If he intended to give but a life-estate, voluit non dixit, we must take what he said, not what he meant. * * But no court in this state or in England has ever treated the phrase heirs of the body' as words of purchase, when they are used with reference to the issue of a devisee to whom a life-estate is

6

given. They are words of limitation, and, as such, they create an estate tail in the first taker, which cannot be cut down, even by the clearest expression of a desire that it shall be a life-estate only."

Preston says: "In wills the rule applies generally, and without exception, to the several limitations as often as the gift to heirs is without any expression of qualification;" and, in illustration of his meaning, he further says: "Neither the express declaration (1) that the ancestor shall have an estate for his life, and no longer; nor (2) that he shall haye only a life-estate in the premises, and that, after his decease, it shall go to the heirs of his body, and in default of such heirs vest in the person next in remainder, and that the ancestor shall have no power to defeat the intention of the testator; nor (3) that the ancestor shall be a tenant for his life and no longer, and that it shall not be in his power to sell, dispose, or make away with any part of the premises, * * *-will change the word 'heirs' into words of purchase." Prest. Est. 364.

In a work declared by the supreme court of Pennsylvania in Hileman v. Bouslaugh, 13 Pa. St. 344, to be a "masterly disquisition," it is written: "The requisite limitation to the ancestor and his heirs being found, the rule must be applied. It can never be a question whether the rule can be applied or not, whether the author of the limitations intended it to be applied or not. We might as well ask whether the testator intended to contravene the rule against perpetuities. It will no more yield to individual intention than any other fundamental law of property. The rule admits of no exception. Hayes, Principles for Expounding Dispositions of Real Property, 94, (7 Law Lib. 52.)

The question here under discussion was examined by us in Shimer v. Mann, supra, and many authorities considered. As a result of that investigation, it was declared that "superadded words which merely describe or specify the incidents of the estate created by such a word of limitation, as the word heirs,' do not cut down the interest of the devisee."

Stronger still is the expression of the rule in Walker v. Vincent, 19 Pa. St. 371, for it was there said: "The law does not pretend to carry out the intention of the testator in all cases, for many testators show a very clear intention to shackle the estates granted by them to a degree that is totally incompatible with any real enjoyment of them, and which the law does not allow. The great merit of the rule in Shelley's Case is that it frustrates, and is intended to frustrate, unreasonable restrictions upon titles; for, when an estate is declared to be a fee-simple or fee-tail, it is at once made subject to a limitation in its proper form, no matter how clear may be the testator's intention to the contrary."

The words of limitation, when used in a will, always control. It is as certain as any proposition in jurisprudence that the words of limitation will bear down all others. There is therefore no escape from the force of the rule in Shelley's Case when the word "heirs" is used in its strict legal sense as a word of limitation. But the word "heirs" is not in every case a word of limitation, for it may be employed in a different sense. It has seemed to many that there is a conflict between the rule declaring that the intention of the testator must govern and the rule in Shelley's Case, but this appearance of conflict fades away when it is brought clearly to mind that, when the word "heirs" is used as a word of limitation, it is treated as conclusively expressing the intention of the testator. Where it appears that the word was so used, the law inexorably fixes the force and meaning of the instrument. If once it is granted that the word was used in its strict legal sense, nothing can avert the opera. tion of the rule in Shelley's Case; so that the inquiry is, was the word used as one of limitation? The only method in which the instrument employing the word "heirs" can be shown not to be within the rule is by showing that the word was not employed in its strict legal sense. As said in Hileman v.

Bouslaugh, supra: "The question on a will is not whether the testator intended that the rule should not operate, for that is not subject to his power, but whether he used the words heirs of the body' as synonymous with the word 'children,' or its proper equivalent.'

This is essentially the doctrine of our own case of Shimer v. Mann, supra. It is because the word "heirs" is not used in its legal sense that the courts do not apply the rule in Shelley's Case; for, where it is so used, the rule must be applied. It was because the word "heirs" was used as meaning "children" that it was held, in Ridgeway v. Lanphear, supra, and in Millett v. Ford, 8 N. E. Rep. 917, that the rule did not operate. Here, however, we must hold that it does operate, because the explanatory or superadded words do not show with that certainty which the law requires that the word was not used as a word of limitation. Shimer v. Mann, supra, and cases cited. Judgment affirmed.

Howk, J., does not concur in this opinion.

(109 Ind. 295)

INDIANA, B. & W. Ry. Co. v. QUICK.

(Supreme Court of Indiana. January 26, 1887.)

RAILROADS-KILLING STOCK-DEFECT IN FENCE.

In an action against a railroad company for damages for killing stock, it is the condition of the road at the place where the animals entered upon the track, and not that where they were killed, that is material; and the supreme court will not decide an appeal on the latter erroneous theory, merely because the case was tried upon such theory.

Appeal from circuit court, Clinton county.

On petition for rehearing. See ante, 788.

C. W. Fairbanks and W. R. Moore, for appellant. Paul & Humphries and Wm. M. Reeves, for appellee.

NIBLACK, J. A petition for a rehearing has been filed in this case, and, in a brief accompanying it, bitter complaint is made that we did not at the former hearing consider the cause upon the theory upon which it was tried in the court below, accompanied with an intimation that we certainly did not read the evidence given at the trial with as much care as it was our duty to have done, in justice to the appellee. We nevertheless did read the evidence very carefully, and, although we did not deem it then necessary to say so, we came to the conclusion that the case had been tried upon an utterly erroneous theory, and that the judgment might have been rightfully reversed for that reason alone. The averment of the complaint was, as has been already stated, that the horses entered upon the railway track at a point at which it was not securely fenced, and the evidence showed, beyond all controversy, that they entered the track, or, which was, in legal contemplation, the same thing, into an open area adjoining the track, at Wesley station, nearly, if not quite, a half of a mile east of where four of the horses were killed, and a very material distance east of the place at which the other horse ran into the cattle-pit, and was also killed. The real condition of the track with reference to fencing, at Wesley station, became, therefore, under the issues and the evidence, the controlling question at the trial. In cases like this, it is the condition of road at the place at which the animals entered upon the track, and not at which they were killed, which becomes the material question for decision. Toledo, W. & W. Ry. Co. v. Stevens, 63 Ind. 337; Wabash Ry. Co. v. Forshee, 77 Ind. 158; Louisville, N. A. & C. R. W. Co. v. Porter, 97 Ind. 267; Louisville, etc., Ry. Co. v. Thomas, 106 Ind. 10; S. C. 5 N. E. Rep. 198.

It is true that much of the evidence introduced at the trial had reference to the condition of the cattle-pit into which one of the horses fell, and over

which the others leaped, and counsel, during the progress of the trial, seemed to regard that as the pivotal question in the cause, but, for the reasons given, it was a merely incidental and immaterial question. After the horses got upon the track in front of the locomotive, they would probably have been in less danger if there had been no cattle-pit over which they were compelled to pass. The more impassable the cattle-pit may have been, the greater obstruction it would have been to the horses in their effort to escape from the train. However securely constructed the cattle-pit in question may have been, and however well kept in repair, it would have afforded the railway company no defense if its road ought to have been fenced where the horses entered upon it, that is, at Wesley station.

If counsel choose, and are permitted by the nisi prius court, to try a cause upon a theory outside of any issue formed by the pleadings, it does not follow that the cause must be reversed in this court upon the same theory. On the contrary, such a trial is mistrial, and cannot be sustained by this court, except, perhaps, in a case in which a palpably just conclusion has been reached upon the real merits of the cause.

The petition for a rehearing is overruled.

(109 Ind. 434)

HALL and Wife v. DURHAM. 1

(Supreme Court of Indiana. January 27, 1887.)

1. EVIDENCE-JUDGMENT-CHANGE IN RECORD.

The record of a judgment, otherwise admissible in evidence, regular on its face, and in a case where the court had jurisdiction, cannot be collaterally attacked or rendered inadmissible by showing that it had been changed after it was entered by the clerk, but before it was signed by the judge.1

2. SAME-EJECTMENT-COMPROMISE.

In an action of ejectment, proffered evidence of one of the defendants that all matters concerning the real estate in controversy had been compromised, was properly excluded, there being no statement of the manner or nature of the alleged compromise, and nothing to show the materiality of the evidence.

3. EXCEPTIONS-BILL OF EXCEPTIONS-INSTRUCTION TO RETURN CERTAIN VERDICT-ORDER-BOOK ENTRY.

The entry of the clerk on the order-book that the court instructed the jury to return the following verdict, (setting it out,) will not take the place of a bill of exceptions.

Appeal from circuit court, Montgomery county.

Ballard & Clodfelter, for appellants. J. R. Courtney, for appellee.

NIBLACK, J. Some time previous to the September term, 1884, of the Montgomery circuit court, William H. Durham, the appellee in this case, commenced an action in that court against John R. Hall and Margery Hall, the appellants in this appeal, to quiet his title to a tract of land in Montgomery county. At the term of court above named the defendants in that action failed to appear, and, it being shown that summons had been served upon them more than 10 days before the first day of the term, a judgment quieting the plaintiff's title to the land described in his complaint was entered against the defendants as upon default. In March, 1885, this action, which was for the recovery of the possession of the tract of land to which the title had been quieted as above stated, was commenced by Durham against the same defendants, and a trial resulted in a verdict and judgment in favor of Durham. At the trial Durham offered in evidence the complaint and judgment in the

1 A judgment of a court having jurisdiction cannot be collaterally attacked for defects of form. U. S. v. Board of Auditors, 28 Fed. Rep. 409; Levan v. Milholland, (Pa.) 7 Atl. Rep. 194; Barnard v. Barnard, (Ill.) 8 N. E. Rep. 320; Spencer v. McGonagle, (Ind.) 8 Ñ. E. Rep. 266, and note; Phillips v. Lewis, (Ind.) 9 N. E. Rep. 395; Rosenheim v. Hartsock, (Mo.) 2 S. W. Rep. 473.

'Rehearing denied, 10 N. E. 581. See 18 N. E. 181.

action prosecuted by him as above, to quiet his title, but the defendants objected-First, upon the ground that the complaint was not sufficient to support such a judgment; second, that the judgment had been changed in a material respect after it was first entered, without their knowledge or consent.

The court heard evidence in regard to the alleged change in the judgment, and, evidently coming to the conclusion that, if any change was made in the judgment after it was first entered by the clerk, it was before it was signed by the judge, admitted both the complaint and judgment in evidence. The reasonable inference from the evidence which the court heard was that the judgment so read in evidence was entered upon the proper order-book of the Montgomery circuit court, that it appeared to have been entered in the usual course of proceeding, and was signed by the proper judge. Under such circumstances, the objection to the reading of the judgment in evidence was mere collateral attack on the validity of the judgment, as between the parties, which was regular on its face, and of a class which the court had jurisdiction to render. Such an attack was not permissible, and hence the court did not err in admitting the judgment in evidence. As to the sufficiency of a complaint to quiet title, see the case of Kitts v. Willson, 106 Ind. 147; S. C. 5 N. E. Rep. 400.

John R. Hall, one of the defendants, was called as a witness, and it was proposed to prove by him that all the matters in difference between the parties concerning the real estate in controversy had been compromised and adjusted, but there was no statement as to the manner in which the alleged compromise and adjustment had been made, and the evidence thus proposed was excluded. There was no error in this ruling. Nothing was shown from which the materiality of the proffered evidence could be inferred.

It is claimed that the court, after the evidence was concluded, instructed the jury to return a verdict for the plaintiff, which they accordingly did, and that this was erroneous because of some alleged conflict in the evidence on some questions raised at the trial. The clerk, after noting on the order-book the impaneling of the jury, proceeded as follows: "And the jury having heard the evidence, and argument of counsel, are, by the order and direction of the court, required to return the following verdict;" then setting out the verdict in full, which, as has been stated, was in favor of the plaintiff. But there is no mention of these proceedings in the bill of exceptions. If the jury were required to return a particular verdict, it was necessarily through the medium of an instruction given them by the court, and a question could only be reserved upon such an instruction by bringing it into the record in some lawful manner. The entry of the clerk, set out as above, did not take the place of a bill of exceptions, and consequently presents no question for our consideration. Rev. St. 1881, § 650; Kesler v. Myers, 41 Ind. 543; Berlin v. Oglesbee, 65 Ind. 308; Olds v. Deckman, 98 Ind. 162; Redinbo v. Fretz, 99 Ind. 458. The record presents no available error, and, in consequence, the judgment is affirmed, with costs.

(109 Ind. 405)

WESTERN UNION TEL. Co. v. SWAIN.

(Supreme Court of Indiana. January 28, 1887.)

TELEGRAPH COMPANY-INDIANA ACT OF APRIL 8, 1885-FAILURE TO TRANSMIT MESSAGE

-PENALTY.

The act of April 8, 1885, (Acts Ind. 1885, p. 151.) prescribing certain duties of telegraph and telephone companies, and providing penalties for violation thereof, applies to acts or omissions caused by partiality or bad faith, and not to those caused by negligence merely, and no penalty can be recovered for a mere negligent failure to transmit a message to the proper party.

Appeal from circuit court, Wayne county.

McDonald, Butler & Mason, for appellant. 4. C. Lindemuth, for appellee.