McCoy et al. v. Barns et al. the expense of those who paid the purchase price. To permit her to do so would be to permit an injustice which a court of equity will not tolerate, unless restrained by fixed and inflexible rules which forbid relief. The principles of law above referred to give to the appellants the relief sought in this case. Section 5119, R. S. 1881, is a wise enactment intended to protect married women against surety debts, but was not intended as a means to enable them to acquire property at the expense of others. Tombler v. Reitz, 134 Ind. 9. This case is quite different from the case of Stewart v. Babbs, 120 Ind. 568. In that case the mortgage in suit covered not only the land conveyed to Mrs. Stewart and her husband, but it covered, also, an equal quantity owned by Mrs. Stewart in her own right long prior to the execution of the mortgage. Her answer and crosscomplaint related to the land held by her in her own right, and had no reference to the land conveyed by Mrs. Somers. That is quite different from this case, where no land owned by Mrs. Barns is involved, and where she is seeking to hold lands conveyed to her and her husband as against those who paid the whole purchaseprice. In our opinion, the court should have overruled the demurrers to the third paragraph of the appellants' reply to the answer of Otelia Barns, and to the fourth paragraph of their answer to the cross-complaint filed by the appellees, Otelia and Allen S. Barns. Under the view we have taken of this case, we deem it unnecessary to inquire whether the court did or did not err in sustaining a demurrer to the second paragraph of the complaint. Judgment reversed, with directions to the circuit court to overrule the demurrers to the third paragraph of the Wolfe v. The Evansville and Terre Haute Railroad Company. reply and to the fifth paragraph of the answer to the cross-complaint. Filed Jan. 12, 1894. No. 16,573. WOLFE V. THE EVANSVILLE AND TERRE HAUTE RAILROAD COMPANY. SUPREME COURT PRACTICE.-Presumption.—Decision of Trial Court.— Where the court instructed the jury to return a verdict for the appellee, and the evidence is not in the record, the presumption in favor of the action of the trial court must prevail on appeal. From the Sullivan Circuit Court. W. C. Hultz, for appellant. J. E. Iglehart, E. Taylor, J. T. Hays and H. J. Hays, for appellee. COFFEY, J.-At the conclusion of the evidence in this cause, the court directed the jury to return a verdict for the appellee, which was done. The evidence is not in the record. We must presume in favor of the ruling of the circuit court, that the evidence was not sufficient to authorize a verdict for the appellant. If such was the character of the evidence, the court did not err in directing a verdict for the defendant. Dodge v. Gaylord, 53 Ind. 365; Vance v. Vance, 74 Ind. 370; Washer v. Allensville, etc., Turnpike Co., 81 Ind. 78; McClaren, Admr., v. Indianapolis, etc., R. R. Co., 83 Ind. 319; Purcell v. English, 86 Ind. 34. Judgment affirmed. Filed Jan. 23, 1894. Perkins et al. v. McConnell et al. No. 16,494. PERKINS ET AL. v. MCCONNELL ET AL. WILL.-Construction of.-Devise.-"Heirs."-Rule in Shelley's Case.In the first item of a will the testatrix devised an undivided half of certain lands in fee-simple, to her son; and the second item was of the following tenor: "I give and devise to my daughter, Barbara Will, now Burkhart, the remaining undivided one-half of said farm, during her natural life, and, after her decease, that said estate is to go to her lawful heirs." Held, that the devise in the second item is governed by the rule in Shelley's case, the word "heirs" being a word of limitation and not of purchase. Held, also, that before the court can conclude that the testatrix employed the word "heirs" in a sense different from that assigned it by law, it must be clearly shown by the context that the testatrix employed the word as one of purchase and not of limitation. From the Hamilton Circuit Court. A. F. Shirts, G. Shirts and I. A. Kilbourne, for appellants. T. J. Kane and T. P. Davis, for appellees. HACKNEY, J.-Siebila Will died testate and the owner in fee-simple of an eighty acre tract of land in Hamilton county. By the first item of her last will and testament, she devised to her son an undivided one-half, in feesimple, of said land, and the second item reads as follows: "I give and devise to my daughter, Barbara Will, now Burkhart, the remaining undivided one-half of said farm, during her natural life, and, after her decease, that said estate is to go to her lawful heirs. After the death of the testator, Lewis Will, the son named in said first item and said Barbara Burkhart joined in a deed of general warranty to James M. Myers for said eighty acre tract. By numerous mesne conveyances, decrees, judgments and sales, the appellees Perkins et al. v. McConnell et al. claim the ownership of said lands. The appellants, the sons and daughter of said Barbara Burkhart, claim the ownership of the undivided one-half of said lands, under and by virtue of said second item of the will of Siebila Will. The only question for consideration is as to the application of the rule in Shelley's case to the item of the will above quoted. There is nothing in the will, beyond the language given, from which we can learn who, or what class of persons, were intended as the "lawful heirs" of said Barbara. By the fourth item of the will, the testator's direction is that certain household effects "be equally divided between my said two heirs." In this provision, the persons to whom it applies are distinctly designated, and, under the law, they are "heirs" of Siebila Will. Counsel insist that the adoption of the word "heirs" in this provision gives character to the phrase "lawful heirs" as used in the former provision, and that we must conclude that its employment in describing her son and daughter furnishes her definition of the "lawful heirs" of Barbara, as the children of Barbara. As to Barbara, we can not know that her husband was not a lawful heir, nor can we know that she had children to become her "lawful heirs," nor do we know that she had either husband or child, so far as disclosed by the will. The rule in Shelley's Case is simply that a devise of a freehold to one, with a limitation, either mediate or immediate, to his heirs, generally vests the whole estate in the ancestor, the particular devisee; the word "heirs" being one of limitation and not of purchase. 1 Coke, 94, 104a; 2 Jarman on Wills, 1177; Beach on Wills, 352; Conger v. Lowe, 124 Ind. 368; Millett v. Ford, 109 VOL. 136-25 Perkins et al. v. McConnell et al. 109 Ind. 476; Hochstedler v. Shimer v. Mann, 99 Ind. 190; Ind. 159; Allen v. Craft, We cite only a few of the cases supporting the rule as we have stated it, and adopting it as a rule of property in this State. The cases cited refute the contention of the appellant's learned counsel, that the rule does not apply in this State to devises. Much of the discussion of counsel is devoted to the question whether the rule applies against the intention of the testator. We may say that this contention is settled by the repeated decisions of this court, and there is no doubt that the intention of the testator, when ascertained, must control. Conger v. Lowe, supra, and the cases there cited. It is only when the intention of the testator is ascertained, that the court can judge of the application of the rule, and the rule does not disclose that intention. Confusion, when it exists, arises in ascertaining from the provisions of the will what the testator's intention was. In the case before us, there is little room for confusion. The testator has employed, in the limitation upon the devise to Barbara, the word "heirs," which, under the authorities cited, is not a word of purchase. Before we can conclude that he employed it in a sense different from that assigned to it by the law, there must be something in the context manifesting a clear intention to have employed the word as one of purchase, and not of limitation. See the cases above cited, and particularly those of Conger v. Lowe, and Shimer v. Mann. As we have said, the context supplies nothing from |