and of appearing either personally not through the laws of intestacy or as a or by delegate in their behalf in all proceed- part of the estate of the intestate, but ings relating to the settlement of their estate through their original right to them created until such heirs or representatives shall by the statute. A confirmation of the corthemselves appear so far as com- rectness of such conclusion is contained in patible with local laws." The argument is, the provision that as to the countrymen of the right of "representing" is the right to do consuls who die at sea, the right of reprefor the represented persons whatsoever they sentation is not given unless the property of might have done for themselves, and the the deceased is brought into the consular clauses quoted contempiate a representation district. The existence of an estate of the without as well as with judicial proceedings. intestate in the consular district is the No legislative or judicial law of Russia or ground for the right to represent. The rethe state forbade the representation. maining language of the treaty provision denotes that the intention of the governments was to provide by it for the safeguarding of the property and the settlement of the estates of the citizens of either dying in the country of the other or at sea. The language has a completed purpose and effect if it be held to authorize the consular officers to act for the heirs, next of kin, or legal representatives of their countrymen, of the description set forth, in relation to their estates in instituting, appearing for, and participating in their behalf in legal or other proceedings for the proper administration, conserving, and guarding of the estates. This construction is further confirmed by the fact that it harmonizes with the functions of consuls under the established international practice. Matter of D'Adamo, 212 N. Y. 214, 106 N. E. 81, L. R. A. 1915D, 373. [15, 16] It is manifest that the language does not clearly and with certainty warrant the application and effect given it by the appellant. It is not clear that the language has any application to the widow and children of the intestate as the owners of the claim or property, which is theirs not by devolution or succession and as a part of the estate of the intestate, but through original and primary ownership. Our inquiry, therefore, is as to what, in such respect, was intended in the quoted language by the contracting governments, and in pursuing it we should adopt the same general rules, which are applicable in the construction of statutes, contracts, and written instruments generally. The entire provisions of the treaty relevant to the inquiry are to be studied, the words used are to be given their natural and ordinary signification, a sensible and reasonable effect must be given unless the words forbid, and the cognate rules of international law and of the legislation of the government may be considered. Matter of D'Adamo, 212 N. Y. 214, 106 N. E. 81, L. R. A. 1915D, 373; United States v. Choctaw, etc., Nations, 179 U. S. 494, 21 Sup. Ct. 149, 45 L. Ed. 291; Collins v. O'Neil, 214 U. S. 113, 29 Sup. Ct. 573, 53 L. Ed. 933; Geofroy v. Riggs, 133 U. S. 258, 10 Sup. Ct. 295, 33 L. Ed. 642. A care ful reading of the provisions of the treaty impels to the conclusion that the governments contemplated the assured conservation, administration, and settlement of the estates of the citizens of either who died in the country of the other, or dying at sea, left property which was brought into the country of the other. It is the heirs, next of kin, or legal representatives of such citizens who are to be represented and represented as such; that is, as having an ownership or interest under the laws of intestacy in the estate of the deceased. They are to be represented as to such ownership or interest. The widow and children in the case at bar are not the subjects of such a representation. While the statute declares that the damages recovered are exclusively for the benefit of the decedent's husband or wife, and next of kin, the denomination "next of kin" in connection with the preceding designation is merely a convenient means of designating, comprehensively and definitely, the distributees of the damages recovered. The damages are theirs, [17] The construction urged by the appellant is not reasonable. It would permit consular officers to transfer, dispose of, or convert into a different form the property of the absent, unknown, or minor heirs or next of kin of the citizens or subjects of their country who shall die within their consular jurisdiction. The vice consul effected such a The right of ac There result in the present case. There is no meritorious exception on the part of the appellant to the rulings of the trial justice in admitting or rejecting evidence. CARDOZO, J. The determination of this appeal requires us to construe the will and codicil of Alice V. Leavitt. The will was made in 1908. It gave to a friend, Mrs. Roy Johnston, a legacy of jewelry. It then created a trust for the annual payment of $600 to a brother for life, with remainder to charities. The subject of this trust is described by the testatrix as "the 30 shares of stock of the Standard Oil Company owned by me." These shares then constituted the bulk of her estate. All the rest, residue, and remainder of the estate, "including any legacy which may lapse or be void," she gave to her friend, Mrs. Johnston. The brother died in April, 1911. In December of the same year, the Standard Oil Company of New Jersey distributed among its stockholders the shares which it held in a large number of subsidiary oil com 2. WILLS 587(1)-CONSTRUCTION-SPECIFIC panies. It did this under the compulsion of LEGACY-CORPORATE STOCK. Where a testator specifically bequeathed certain corporate stock, and subsequent to the execution of the will the corporation, as required by a decree of the United States Supreme Court, distributed the stock of subsidiary corporations owned by it among its stockholders, the stock so distributed is not to be treated as the original stock under a different form, but as in effect a stock dividend of the corporation, and, by analogy to the rules of ademption, passes to the residuary legatee. It a decree of the United States Supreme Court by which it was required to dispose of its holdings in corporations under its control. The decree did not compel it to distribute the holdings among its own stockholders. might have sold the shares and distributed the money, or even kept the money in its treasury. It elected, however, to distribute the shares in kind. At that time, the testa[Ed. Note.-For other cases, see Wills, Cent. trix still owned her 30 shares. Dig. §§ 1279, 1285-1287; Dec. Dig. 587(1).] tinued to own them till her death. But by 3. WILLS 587(1)-CONSTRUCTION-SPECIFIC force of the distribution under the decree, LEGACY COMPULSORY DISTRIBUTION OF there came to her, in addition, shares in 39 STOCK. subsidiary companies, which to-day are worth more than the shares in the parent There came to her also at the company. same time some warrants for subscription rights. The fact that the corporation was compelled to distribute its stock does not affect the rule, since ademption depends only on the fact of the change, not on the intention with which it was made. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1279, 1285-1287; Dec. Dig. 587(1).] She con Nine months after this distribution, in 4. WILLS 587(1)-CONSTRUCTION-SPECIFIO September, 1912, the testatrix made a codi LEGACY-CODICIL. That construction of the will is confirmed by the fact that after the distribution of the stock, and after the death of the person to whom an annuity was to be paid from the bequest during his life, testatrix executed a codicil in which she made certain additional legacies, which must fail if the distributed shares passed under this specific legacy, and made no change in the specific legacy. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1279, 1285-1287; Dec. Dig. 587(1).] Appeal from Supreme Court, Appellate Division, First Department. Proceedings for the judicial settlement of the account of John A. Brann, as sole surviving executor of the last will and testament of Alice Victorine Leavitt, deceased. An order of the surrogate construing the will and directing a distribution was affirmed by the Appellate Division (171 App. Div. 800, 157 N. Y. Supp. 756), and Bessie R. Johnston appeals. Reversed and remitted. George H. Richards, of New York City, for appellant. Joseph Fennelly, Joseph H. Fargis, and William C. Orr, all of New York City, for respondents. of the subsidiary companies were already cil. Her brother was then dead, the shares in her hands, and what she did and omitted to do must be viewed in the light of those conditions. By the codicil she gave money legacies aggregating $1,700 to friends and charities. She also disposed of a picture. "In all other respects," she said, "I do hereby ratify and confirm my said will." Three months later she died. [1, 2] The question is whether the shares in the 39 subsidiary companies pass as part of the original shares, or stand separate and by themselves, and pass to the residuary legatee. We think, in accord with the justices who dissented at the Appellate Division, that the residuary legatee must be held to have the better right. It is true that the gift of the 30 shares is a specific legacy, and that a specific legacy will be construed in the light of the situation existing when it was made. Matter of Delaney, 133 App. Div. 409, 117 N. Y. Supp. 838; 196 N. Y. 530, 89 N. E. 1098. But it is also true that unless the subject of a specific legacy exists, unchanged and nothing else. Knowing the form of her investments, she reaffirmed her purpose. Then, if not before, the gift ceased to be indefinite. We have spoken of the changes which the codicil failed to make. The changes that it did make point in the same direction. It added money legacies of $1,700. If the subsidiary shares pass with the primary shares, these legacies must fail, because there is then nothing out of which to pay them. The argument is made that the testatrix expected them to be paid out of the subscription warrants, which came to her with the subsidiary shares at the time of distribution. It happens that the shares received under these warrants are worth about $2,000. In the mind of the testatrix, the subsidiary shares, it is said, were part of the 30 shares; but the subscription warrants and the shares acquired thereunder, though fruits of the same distribution, were not part of the 30 shares. There is nothing to suggest a belief that she drew these nice distinctions. Only by the merest guesswork can we read that meaning into the will. in substance, at the date of the will, there | She made no change in her description of the results an ademption, complete or partial trust. The trust was still to be the 30 shares according to the facts. In strictness, there has been in this case no ademption at all, for the 30 shares, which were the subject of the legacy, exist; but since the subsidiary shares, while held by the parent company, helped to give the primary shares their value, the analogy of ademption becomes useful. Slater v. Slater, [1907] 1 Ch. 665, states the controlling principle, and applies it to a situation similar to the one at hand. The principle is that a change in the nature of the property works an ademption unless it is a change "in name or form only." Slater v. Slater, supra, at pages 671, 672, quoting Oakes v. Oakes, 9 Hare, 666, 672. See, also, Norris v. Harrison, 2 Maddocks, 268. It may be that where the change is merely formal, as where a company is reorganized and there is a reissue of the shares, the identity of the gift will be held to be substantially preserved (Mallan v. McFie, [1912] 1 Ch. 29; Turner v. Leeming, [1912] 1 Ch. 828), but that is not this case. Here the original shares remain intact, and there is no contest about them. The new shares are, in effect, an extraordinary dividend declared during the life of the testatrix. Brundage v. Brun- The value of the subsidiary shares is made dage, 60 N. Y. 544; Equitable Life Assurance the basis of another and more forceful arguSociety v. Union Pacific R. R. Co., 212 N. Y. ment. Their value, it is said, is so great that 360, 106 N. E. 92, L. R. A. 1915D, 1052. The the testatrix cannot have expected them to case stands the same as if the Standard Oil pass under a residuary clause which, at the Company had sold the shares, and distribut-time of the will, carried nothing of substaned the proceeds. It is hardly denied that a voluntary dividend, whether paid in money or in stock, would be separate from the primary shares. [3] The argument is that a different rule is applicable here because the dividend was compulsory. But the suggested distinction is inadequate. It was once thought that ademption was dependent on intention, and "It was, therefore, held in old days that when a change was effected by public authority, or without the will of the testator, ademption did not follow. But for many years, that has ceased to be law." Slater v. Slater, supra, at page 671. It has ceased to be law in England. Jarman, p. 163; Slater v. Slater, supra. It has ceased to be law in New York. Ametrano v. Downs, 170 N. Y. 388, 63 N. E. 340, 58 L. R. A. 719, 88 Am. St. Rep. 671. What courts look to now is the fact of change. That ascertained, they do not trouble themselves about the reason for the change. We cannot find substantial identity between this extraordinary dividend and the shares from which they came. tial value. But the argument, though plausible, is, we think, unsound. The 30 shares remain of large value. They were worth $625 a share ($18,750 in all) before the extraordinary dividend. They were worth $420 a share ($12,600 in all) at the death of the testatrix. It is true that the subsidiary shares are now worth about $20,000, but it does not appear that they were known to have such value at the time of distribution. But, if their value had been known, the result would be the same. Between the date of the will and the date of the extraordinary dividend, the brother of the testatrix, the life beneficiary of the trust, had died. It may well be that after his death she felt that the primary 30 shares would be suf ficient for the charities. She had said what should happen to any residue of her estate, and she must have felt secure in the belief that the direction would be looked upon as something more than an idle form. We cannot know what effect her brother's death and other new conditions may have had upon her [4] That conclusion, if it could otherwise mind. It is a fallacious argument which be thought doubtful, is made certain by the would have us say that, because there was no codicil. The effect of a codicil is to repub- residue when the will was made, we must lish the will and make it speak again from construe it in such a way as to make it imthe new date. Matter of Campbell, 170 N. possible that there should ever be a residue. Y. 84, 87, 62 N. E. 1070. At the date of this It was to provide against the contingency of codicil, the testatrix had received the sub- a possible residue that the residuary clause sidiary shares. She made no change, how- was framed. The opportunity to change it ever, in the gift of her residuary estate. was given when a codicil was signed; and with knowledge of the condition of the es- and judgment for damages against appellant tate, the clause was left the same. Our duty for $7,000, as compensation for the use apis to give effect to it according to its terms.propriated. From such judgment this appeal We are not to cut it down because of sus-is prosecuted. picions, impossible to verify, that the testa- Since the judgment here rests solely on the trix may have failed to appreciate its scope. To do that is to break down the safeguards which the law throws around a will. The order should be reversed, with costs to the appellant in all courts, payable out of the estate, and the case remitted to the surrogate for further proceedings in accordance with this opinion. HISCOCK, CHASE, CUDDEBACK, HOGAN, and POUND, JJ., concur. WILLARD BARTLETT, C. J., absent. Order reversed, etc. (185 Ind. 690) basis of the interlocutory order of condemnation and appointment of appraisers, it follows that the reversal of that order by this court requires the reversal of the judgment here in question. Judgment reversed, with instructions to sustain appellant's motion for a new trial. (185 Ind. 717) BAKER et al. v. TOWN OF SULPHUR Suit by John A. Baker and others against the WESTERN UNION TEL. CO. v. LOUIS-judgment, plaintiffs appeal. FECT. A judgment, in condemnation proceedings after trial by jury on exceptions to report of appraisers rests on the interlocutory order appointing the appraisers, and must be reversed where that order had been reversed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4627-4629, 4658, 4659; Dec. Dig. 1180(2).] consideration the same questions of law which SPENCER, J. This appeal presents for our were passed on by this court in the case of Haskett v. Town of Sulphur Springs, 114 N. E. 33, and there decided adversely to the contention of appellants herein. On the authority of that decision, the judgment of the trial court in this case must be, and is, affirmed. (185 Ind. 675) Appeal from Circuit Court, Posey County; PRINCETON COAL CO. v. FETTINGER. Herdis Clements, Judge. Condemnation proceedings by the Western Union Telegraph Company against the Louisville & Nashville Railroad Company and others. From a judgment assessing the damages, the plaintiff appeals. Reversed, with instructions to sustain motion for new trial. Pickens, Moores, Davidson & Pickens, of Indianapolis, J. E. Williamson, of Evansville, and Albert T. Benedict, of New York City, for appellant. Philip W. Frey, of Evansville, for appellees. MORRIS, J. Appellee owns a railroad right of way in Posey county. Appellant telegraph company instituted a condemnation proceeding to acquire a right of way for its telegraph line over and upon the right of way of appellee. There was a hearing, and an interlocutory order was made, granting the prayer of petitioner for the condemnation and appointing appraisers. From such order an appeal was taken by appellee, resulting in a reversal of the interlocutory order appointing appraisers. Louisville, etc., R. Co. v. Western Union Telegraph Co. (1916) 111 N. E. 802; section 933, Burns 1914. In the meantime the appointed appraisers reported appellee's damages, and appellant excepted to such report. Section 936, Burns 1914. A trial on the exceptions resulted in a verdict (No. 22891.) (Supreme Court of Indiana. Dec. 12, 1916.) MASTER AND SERVANT 12-REGULATIONS Miners' Washroom Law (Burns' Ann. St. 1914, § 8623), containing proviso that the employer shall not be required to furnish soap or towels, thereby inferentially requires the mine owner to furnish all other things essential to the equipment and maintenance of the washmentioned it is to the exclusion of all others. room, under the rule that where one thing is [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 12.] Appeal from Circuit Court, Pike County; John L. Bretz, Judge. On rehearing. For former opinion, see 113 N. E. 236. Embree & Embree, of Princeton, for appellant. Oscar Lanphar, of Princeton, for appellee. ERWIN, J. It is insisted by appellant that the court erred in declaring that the construction of the statute was not in issue, and in not deciding that question in the original opinion. We are of the opinion that the statute was too plain to even suggest to any one reading the same that there could be any doubt as to its meaning. The act in question after providing that washrooms should be erected by the coal companies, and providing how the same should be equipped, cause the deed contains a recital which makes follows with this statement: it ineffective. "That said building or room shall be a separate building or room from the engine or boiler room and shall be maintained in good order, be properly lighted and heated, and be supplied with clean cold and warm water, and shall be provided with all necessary facilities for persons to wash, and also provided with suitable lockers for the safe-keeping of clothing; provided however, that the owner, operator, lessee, superintendent of or other person in charge of such mine or place aforesaid shall not be required to furnish soap or towels." The question as far as the legal aspect of the cases are concerned, is the same in this case as in the Booth Case, 179 Ind. 405, 100 N. E. 563, L. R. A. 1915B, 420, Ann. Cas. 1915D, 987, for there can be no difference, as far as the legal principle is concerned, in a case requiring the equipment and maintenance of a washroom than one requiring the erection of one; each rests upon the authority of the lawmaking body to require it to be done. Hence we said in the original opinion in this case that all questions had been disposed of in the Booth Case. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 345, 944, 946, 947; Dec. Dig. 310.] Appeal from Circuit Court, Wabash County; Alfred H. Plummer, Judge. Action by Hiram Harger and wife against Florence B. Warner, for partition. A judgment for defendant on demurrer to plaintiffs' complaint was sustained on appeal to Appellate Court (112 N. E. 545), and the case thereafter transferred from the Appellate Court under section 1394, Burns' Ann. St. 1914. Judgment reversed, with instructions to overrule demurrer. Walter G. Todd and Franklin W. Plummer, both of Wabash, for appellants. D. F. Brooks, of Wabash, for appellee. SPENCER, J. This is an action by appellants, as husband and wife, as the owners by entireties of an undivided one half of certain real estate, against appellee as the owner of the other undivided half, for partition thereof. The sole question presented for our consideration is the sufficiency want of facts. After reciting that the ownof the complaint as against demurrer for ership as between appellants and appellee leges that the real estate sought to be parwas as tenants in common, the complaint al An examination of the law will disclose that the proviso to the section, which excuses the mine owner from furnishing soap and towels, could have but one inference, and that is that all other things essential to the equipment and maintenance of the washroom should be furnished by the mine own-titioned was owned by one Abraham Peters, er. It is a fundamental rule in construction of statutes that where one thing is mentioned it is to the exclusion of all others. Broom Max., 651, 664; State v. Patterson, 181 Ind. 660, 664, 105 N. E. 228. It is equally true that where, as in this case, the statute excepts from the things to be furnished in the maintenance of the washroom, viz. soap and towels, all things necessary to its proper equipment and maintenance other than those mentioned in the exception shall be furnished by the mining company. This is the only logical conclusion that can be deduced from the language of the statute. Broom's Maxims, p. 666. The petition for rehearing is overruled. (185 Ind. 691) since deceased; that a copy of his will is filed therewith, marked "Exhibit A"; that after said Peters departed this life, an undivided one-half thereof was owned by his widow, Mary, who "conveyed to these plaintiffs the undivided one-half of said real estate by warranty deed, a copy of which deed is hereto attached, marked 'Exhibit B,' and made a part hereof." Such "Exhibit B," being dated in 1907, contains this clause: "The above deed shall be delivered to the said Hiram or Rosa Harger at the death of said Mary Ann Peters." The complaint further alleges that Mary Ann Peters died in 1914, and before the bringing of the action. The provision that the washroom shall be maintained by the company is no more in The ruling of the trial court in sustainconflict with the Constitution than that part ing the demurrer to the complaint must have requiring that it should be built by it. The been based on the exhibits, and particularly constitutionality of the act was determined on the theory that the general allegations in Booth v. State, supra. of ownership and derivation of title by deed were overcome by the quoted clause of Exhibit B, relating to the delivery of the deed after the death of the grantor. While it in the lifetime of the grantor, is ineffective, is correct to say that a deed, not delivered in this case neither the deed nor the will was the foundation of appellants' action, and SHOWING TITLE. neither was a proper exhibit to the comIn a suit for partition, a will and a deed plaint, nor subject to consideration in deterthrough which plaintiffs derived title are not mining the complaint's sufficiency. Shetterly proper exhibits to the complaint, and cannot be v. Axt, 37 Ind. App. 687, 76 N. E. 901, 77 considered in determining its sufficiency, since neither is the foundation of the action, and N. E. 865; O'Mara v. McCarthy, 45 Ind. App. therefore the complaint is not insufficient be- 147, 90 N. E. 330. Disregarding, as we must, HARGER et ux. v. WARNER. (No. 23189.) (Supreme Court of Indiana. Dec. 14, 1916.) PLEADING 310-EXHIBITS-INSTRUMENTS For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |