A PPEAL by defendant from a judgment, James G. Taylor, devisee of the tract of of the Superior Court for Martin County, in plaintiff's favor, upon submission of a controversy without action to determine whether the title tendered by plaintiffs under a land contract was good. Affirmed. The facts are stated in the opinion. land in question, under the will of his father, Jesse Erwin Taylor, and, on the facts agreed, the title offered was properly made to depend upon the construction of the will of said Jesse, in terms as follows: "Item 5. I loan to James G. Taylor during the term of his natural life the following described tract of land, beginning at a gum in Bee branch, Moye P. Taylor's corner, and running along said Taylor's line Hoke, J., delivered the opinion of the 4 25100 chains; thence S. 55 W. to the line of court: The immediate grantor of plaintiffs was In Booth v. Terrell, 16 Ga. 20, an instruc- | tion that the loan of a slave by one person to another for the life of the borrower by a parol agreement that the slave should be returned to the lender or his heirs at the death of the borrower vested an absolute title in the borrower was held erroneous for the reason, as the appellate court said, that this was not a will, but a gift inter vivos; and the lender manifested no intention of parting with his property (distinguishing on this ground a number of will cases in which the term was held equivalent to “give”), and therefore there was no attempt to create a remainder or even a reversion by parol. While a majority of the cases included in this note involve the application of the rule in Shelley's Case, it is obvious that the distinctive question here considered is merely whether the use of the word "lend" will defeat the application of the rule, assuming that in the view of the court, at least, the rule would otherwise have been applicable. The general subject of the rule in Shelley's Case is discussed in a note in 29 L.R.A. (N.S.) 963. II. Deeds. In accordance with the rule above stated, the word "lend" or "loan" used in a deed has been held equivalent to "give" where the grantor indicates an intention to part with the property mentioned. Jones v. Jones, 20 Ga. 699. It was accordingly held in this case that a deed of gift in which the grantor "loaned to his sister one negro girl. during her natural life and then to her bodily heirs" did not create an estate tail in the grantee, so as to vest an absolute estate in her under a statute, but only an estate for her life. There was a gift over in case of the death of the first taker without issue to her brothers and sisters "that shall be alive at that time;" the words "at that time" were held to prevent the creation of an estate tail in the first taker. In other cases no attention is given to the word used, but it is construed as though the word "give" or "grant" had been used. A deed of gift of slaves, conveying the slaves as a loan to a husband and wife during their natural lifetime, and after their decease to their children lawfully begotten the lands devised to my daughter, Mollie Smith, in Item 4; thence along said line between them, was held in Catterlin v. Hardy, 10 Ala. 511, to express a clear intention that the first takers should have only a life interest, and that the remainder after their death should go to the children lawfully begotten; that the remainder was vested in the children. A deed containing the words "do lend to the said during his natural life" a certain tract of land, and in the habendum "to have and to hold the same with the appurtenances thereunto belonging to the said his natural life, and at the death of the said unto the lawful heirs of the said and their heirs, executors, administrators, and assigns," under the rule in Shelley's Case conveys a fee-simple title to the grantee. Edgerton v. Aycock, 123 N. C. 134, 31 S. E. 382. A conveyance, the granting words of which were "lease, let, rent and confirm" to the grantee and his heirs "for the full term of 1,000 years or as long as wood grows or water runs," was held to convey a fee in the use, in Stevens v. Dewing, 2 Vt. 411. III. Wills. a. In general. The intention of the testator, which is the determining factor in the construction of wills, generally controls the construction to be placed upon the use of the word "lend" and its derivatives as used in a will. . 66 On the question whether a will was wholly executed, so as to dispense with the necessity for the appointment of an administrator at the death of the life tenant, it was held in Burch v. Burch, 19 Ga. 174, that a provision in a will, viz., I lend to my beloved wife the whole of my estate, both real and personal, during her natural life or widowhood," did not pass any of the property out of the estate during the lifetime of the wife, who remained unmarried. The will in this case contained other provisions for the disposition of the property in case of the remarriage of the wife, and the testator carefully distinguished in the use of the words "lend" and "give." This was held to show that there was no unmeaning distinction with the testator in the use of these words, but, upon a careful review of the will, it was held and along Julian H. Purvis' line and Mrs. | where the same obtains, it does so as a rule Ruth Taylor's line and N. P. Taylor's line of property without regard to the intent to a dead elm in Bee branch; thence up of the grantor or devisor. Jones v. Whichsaid branch to the first station; containing ard, 163 N. C. page 243, 79 S. E. 504; Price 190 acres, more or less; and at the death v. Griffin, 150 N. C. page 523, 29 L.R.A. of said James G. Taylor I give and devise (N.S.) 935, 64 S. E. 372; Edgerton v. Aythe said land to his heirs at law in fee cock, 123 N. C. page 134, 31 S. E. 382; simple forever.” Chamblee v. Broughton, 120 N. C. page 170, 27 S. E. 111; Starnes v. Hill, 112 N. C. page 1, 22 L.R.A. 598, 16 S. E. 1011. The case states that the James G. Taylor is now living and has two children, and defendant contends that, under said clause, the devisee took only a life estate. It is established by repeated decisions of the court that the rule in Shelley's Case is still recognized in this jurisdiction, and, evident that the testator did not intend the title to any of his property to pass out of his estate, and therefore the will remained unexecuted. The use of the word "lend" in the clause in a will, viz., "I lend unto my grandson a tract of land; three negroes Now if in case that the said [grandson] should live to arrive to manhood and beget heirs lawfully, the above property to him and his heirs forever; (if not) I give and bequeath the abovementioned property" over, was held to indicate an intention on the part of the testator to give the property to this grandson for life as a provision and maintenance, to be enlarged into a fee in the event of his having issue. Felton v. Billups, 21 N. C. (1 Dev. & B. Eq.) 584. Consequently, upon his death without is sue, the property went over. to A testamentary provision, viz., “I do lend all my estate, real and personal. And it is my will that my estate should be kept together until the said [one of the devisees] arrives to twenty-one years of age, and then equally divided share and share alike with the said four children to them and their heirs forever," conveys an absolute property in the several shares to the several legatees after the division takes place. Cox v. Marks, 27 N. C. (5 Ired. L.) 361. It is stated that what the testator might have meant by the word "lend" in case any of the children had died before the time of division it is useless to inquire, because it is clear that he intended they should have in the first instance an absolute property in their several shares after the division should take place. b. Personal property. In gifts of personal property the word "lend" or "loan" is equivalent to the word "give" or "bequeath" where the testator in dicates a clear intention to part with the entire dominion over the property be queathed. Ewing v. Standefer, 18 Ala. 400; Bryan v. Duncan, 11 Ga. 67; Jones v. Jones, 20 Ga. 699; Pournell v. Harris, 29 Ga. 736. It has been stated that the word "end" is equivalent to "give" in the ab ence of anything to show that the testator intended In Jones v. Whichard, a very accurate statement of the rule is given with approval from Preston on Estates, as follows: "When a person takes an estate of freehold, legally or equitably, under a deed, will, or other that the legal estate should not pass. My. ers v. Pickett, 1 Hill, Eq. 35. a . one In Deane v. Hansford, 9 Leigh, 256, there is stated to be no sound distinction between bequest of slaves in the language, "1 lend to my grandson," and a bequest by words imparting a gift. A gift viz., "I lend my niece negro girl and her increase my niece's natural life and at her death to the lawful issue of her body," and in case of the niece dying without issue, over, creates, at least, a life estate in the niece. Bryan v. Duncan, 11 Ga. 67. during A testamentary provision, viz., "I loan to my daughter during her natural life and then to her bodily heirs" certain negroes, naming them, creates an estate tail in the daughter, which, by statute, is converted into an absolute interest. Jones v. Jones, 20 Ga. 699. A similar holding appears in Pournell v. Harris, supra, where the testamentary provision was: "I lend to during her natural life [certain slave] and at her decease I give the said slaves and their increase to the heirs of her body lawfully begotten." So, a bequest as follows: "I lend to L. S. during her natural life, five negroes these five negroes, with all their increase I will to the lawful begotten heirs of L. S. to be equally divided among them at her death," vests an absolute estate in the first taker. Ewing v. Standefer, 18 Ala. 400. four ne A gift in a will in the following language, "I lend to my daughter groes [followed by a bequest to another daughter] during their natural lives and then to the heirs of their bodies," conveys to the first taker an absolute estate. Myers v. Pickett, 1 Hill, Eq. 35. The word "loan" was treated as equivalent to "give" in Hyman v. Williams, 34 N. C. (12 Ired. L.) 92, where a provision, "I loan to my wife [certain property]," with gift over at her death, was held to convey a life estate to the wife in certain personal property, which was all that was in dispute. In Robertson v. Hardy, 2 Va. Dec. 275, 23 S. E. 766, it is held that no restriction of the gift of personal property can be inferred from the use of the word "loan" in pages 121-124, 56 S. E. 687, citing Cox v. Marks, 27 N. C. (5 Ired. L.) page 361; King v. Utley, 85 N. C. page 59 and other cases. writing, and in the same instrument there otherwise. Sessoms v. Sessoms, 144 N. C. is a limitation by way of remainder, either with or without interposition of another estate, of an interest of the same legal or equitable quality to his heirs, or heirs of his body, as a class of persons to take in succession, from gener..tion to generation, the limitation to the heirs entitles the ancestor to the whole state." It is further held here and elsewhere that, in the constru. ¡on of a will, the word "lend" will be taken to pass the property to which it applies, in the same manner as the words "give" and "devise," unless it is manifest that the testator intended a clause of the testator's will reading: "I do at my death loan the tract of land on which I at present reside and known as the 'dower tract' to my beloved wife during her natural life, with all the property of whatever nature or kind soever it may be," etc. It has been stated that where it is apparent that the testator intended some gift by the use of the word "loan," and not a mere loan and sufferance, the gift will be treated as absolute unless it is limited by the context of the will. Parker v. Wasley, 9 Gratt. 477. It was accordingly held in this case that a clause in the will, viz., "I loan to my daughter a negro girl and $200 in cash which is her full proportion of all my estate," which was subsequently modified by a codicil to the effect that "I loan to my daughter $300 more in lieu of a negro girl which I loaned her in my will," conveyed an absolute estate to the daughter. It was urged in this case that by using the word "loan" in this bequest, and in other bequests the word "give," an intention to convey a limited, and not an absolute, estate, is shown. In answer to this it is stated that the most that can be made of it is that the testator had some meaning in the use of the word "loan" in the bequest in which it was used different from that which he had in the use of the word "give" in other clauses of his will, but what the meaning was it is impossible from the record to as certain. It is further stated that there is nothing in the will to limit the duration of the estate given to the legatee named in this clause, and therefore nothing to prevent her from taking an absolute estate. A devise, viz., "All of my estate I loan to my wife during her natural life. My wish is that the property I have loaned to her, after her death shall be sold" and the money divided between the testator's children, was construed the same as if the word "give" had been used, it being stated that the word was used as the equivalent of "give." Chapman v. Chapman, 90 Va. 409, 18 S. E. 913. In certain cases in which the word "lend" is used, no special emphasis is placed upon the word. Applying the principles as approved and stated in these cases, we think it clear that plaintiff's grantor, James G. Taylor, took a fee-simple estate; the devise giving him an estate in the property for life and then to his heirs general to take in succession forever. There is no error, and the judgment below is affirmed. A provision in a will, viz., "I loan to my sister three negroes also one third part of all my land lying in Anderson county, and at her death I give the above property to her lawful heirs of her body," was treated in Lloyd v. Rambo, 35 Ala. 709, as a gift to the sister, remainder to the lawful heirs of her body, and therefore to vest the first taker with the absolute property in the slaves, which were the only part of the gift in dispute. No point is made of the use of the word “lend” in a bequest of slaves and personal property in Williamson v. Ledbetter, 2 Munf. 521, but it is interpreted as though the word "give" had been used. decision appears in Wade v. Boxley, 5 Leigh, 442. A similar A clause in a will, viz., "I lend unto my granddaughter one negro girl during her natural life and at her death I give and bequeath the said negro girl to the lawful issue of her body that may then be living," was sustained as not creating a limitation too remote, and was sustained also as against the argument that it created an estate tail which, under the statute, would vest the entire estate in the first taker, in Woodley v. Findley, 9 Ala. 716. See Felton v. Billups, 21 N. C. (1 Dev. & B. Eq.) 584; Den ex dem. Harrell v. Hoskins, 19 N. C. (2 Dev. & B. L.) 479, infra. But a different construction has been placed upon the word "lend" in a will in Loving v. Hunter, Yerg. 4. The provision in question was, "I lend unto my three daughters to them during their natural lives and then given to the lawfully begotten heirs of their bodies." In holding that the daughters did not take an absolute estate under the rule in Shelley's Case, the court states: "The word 'lend' is here used, and not the word 'give;' and although the former word confers the use for life, it may for some purposes be construed to mean the same thing as though the latter word had been used; yet the use of the word 'lend' assists in determining what estate the testator intended his daughters should take. By the use of the words lend during their natural lives,' the intention of the testator is as certainly ex'pressed and as well understood to confer on them only a life estate as it would have, been by the use of any form of superadded words. This is more especially manifest by reference to the words which follow these. He says, after lending to the daughters for life and then given to the lawfully-begotten heirs of their bodies.' He uses here the word given' in contradistinction to the word ‘lend,' the more conclusively to show that his purpose was that his grandchildren should take the absolute estate, the use of which was bestowed on their mother for life only." In Glover v. Harris, 4 Rich. Eq. 25, the will provided: "I lend to my loving wife during her natural life the use of one half of my land and five negroes." The will contained a residuary clause in which "all the property which I possess and have not before bequeathed" was ordered to be sold and certain disposition made of the proceeds. The question in the case so far as the use of the word "lend" is concerned was whether the wife took an absolute estate in the slaves. In holding that the wife took only a life es'tate, the court states that the word "lend" used in such a connection as this is evidence of an intention to make a limited disposition; and the words "lend" and "use" and "for life" all harmonize in showing that there was no intention to give the property absolutely and forever to the wife. c. Real estate. As in gifts of personal property, so in gifts of real property, the word "lend" or "loan" has been held equivalent to "give," "bequeath," or "devise. After holding that a gift in a will in the language, "I lend unto my grandson to him and his lawful heirs of his body forever," conveyed an estate tail to the first taker, which by the statute was converted into a fee simple, the court in Sessoms v. Sessoms, 144 N. C. 121, 56 S. E. 687, states that this construction is not affected by the use of the word "lend." This word is not infrequently used in wills as synonymous with "give" or "bequeath" or "devise." It is further stated that there are instances where from the context or exceptional use of the word it has been allowed a different significance, but the general rule is that unless it is manifest that the testator did not intend an estate to pass, the word "lend" will pass the property to which it applies in the same manner as if the word "give" or "devise" had been used. A devise of land as follows: "I lend to my son tract of land during his natural life," was held to vest in the son a life estate, in Callis v. Kemp, 11 Gratt. 78. It is stated that whether the word "lend" or "give" is used, an estate for life is vested in the first taker. See Chapman v. Chapman, 90 Va. 409, 18 S. E. 913, supra, where both real and personal property were involved. A similar interpretation has been placed upon clauses containing this word without any discussion of the word. Thus, a gift in a will, viz., "I lend unto all the lands 1 own during his natural life, and after his death I give the above-mentioned land to his heirs lawfully begotten, to them and to their heirs forever," was held to convey an absolute estate in the first taker under the rule in Shelley's Case without any discussion as to the effect of the word "lend." Den ex dem. Folk v. Whitley, 30 N. C. (8 Ired. L.) 133. Without any discussion of the meaning of the word "loan," a "loan" to the daughter of the testator for her natural life, and after her death to her heirs forever, was treated under the rule in Shelley's Case as conveying a fee simple in the first taker. King v. Utley, 85 N. C. 59. A devise in the following language, viz.: "The two houses situated on 14th street, is a lifetime lease it cannot be taken from you nor you cannot spend it, but it is held to insure you something to live on during your lifetime. Fifth: and at your de cease if you have lawful heirs then all will fall to them but if not then my present residence to be sold the money to be distributed as follows," was held to convey to the devisee therein named a fee-simple estate. McCann v. Barclay, 204 Pa. 214, 53 Atl. 767. A disposition of land was made in Robertson v. Hardy, 2 Va. Dec. 275, 23 S. E. 766, as follows: "I do at my death loan the tract of land on which I at present reside to my beloved wife during her nat ural life." The court states that under this clause the land was expressly given to the wife for life. A will in which the word "lend" was used by the testator in making a gift of land and personal property was construed without reference to the use of this word, in Den ex dem. Harrell v. Hoskins, 19 N. C. (2 Dev. & B. L.) 479. A clause reading, "I lend to my daugh ter," etc., was construed as if there had | in consideration of payment of interest durbeen a gift, devise, or bequest, in Moon v. Stone, 19 Gratt. 130. But the intention of the testator is the determining factor. When the word "lend" is used in the same clause with "give," this may be an indication of an intention to distinguish between the words. A testamentary provision, viz.: "I lend unto my beloved wife, all the lands which I may die possessed of in during her natural life for her to support herself and my children which may remain with her on the land, and after the death of my wife, this land to be equally divided between all my sons or their children, this [land] I give to my sons above, over and above their distributive share of my estate as hereafter bequeathed to them," followed by items in tioned as being given to the sons, indicated an intention on the part of the testator that the family, such of them as remained on the farm, should be supported upon it until the widow's death, with her, and if none remained on it with her, then the use of it should be hers until her death, with the possession and right of possession in her until her death. Hudgens v. Wilkins, which reference is made to the land men 77 Ga. 555. A gift in the words: "I also loan to my said wife all that portion of my land embracing my homestead, etc.," found in a paragraph of the will in which the testator gave and bequeathed certain personal property to his wife absolutely, was held in Britt v. Rawlings, 87 Ga. 146, 13 S. E. 336, to convey the land to the wife only for life. "It is difficult to conceive," says the court, "why he should have used these different expressions in relation to the several kinds of property disposed of by this item unless he intended that his wife should have the slaves and other personalty absolutely and the land only for life." See Felton v. Billups, 21 N. C. (1 Dev. & B. Eq.) 584. W. A. E. OHIO SUPREME COURT. JOHN RENSCHLER, Plff. in Err., V. ing life on notes of varying amounts according to age and service to be rendered, is within the operation of the statute governing the transaction of insurance business. ousting respondent from carrying on the business of insurance without first securing a license. Affirmed. The facts are stated in the opinion. Messrs. Axline, Betts, & Kerns, for plaintiff in error: Not only the right of contract to bury, but also the right to insure, is a commonlaw right, and not dependent upon any franchise or permit; hence, until the individual's common-law right is taken away or abridged by some statutory enactment, the right to so contract remains. State ex rel. Richards v. Ackerman, 51 Ohio St. 163, 24 L.R.A. 298, 37 N. E. 828. To construe insurance laws as prohibiting the individual from engaging in the insurance business would make them un constitutional. State v. Beardsley, 88 Minn. 20, 92 N. W. 472; Hauser v. North British & Mercantile Ins. Co. 206 N. Y. 455, 42 L.R.A. (N.S.) 1139, 100 N. E. 52, Ann. Cas. 1914B, 263; Robbins v. Hennessey, 86 Ohio St. 191, 99 N. E. 319. Messrs. Charles J. Pretzman and Frank Davis, Jr., with Mr. Timothy S. Hogan, Attorney General, for defendant in error: The mutual note is a contract of insurance; and the agreed statement of facts shows that respondent is engaged in the insurance business. 1 May, Ins. § 27; Guenther, Life Ins. § 191; State ex rel. Sheets v. Pittsburg, C. C. & St. L. R. Co. 68 Ohio St. 9, 64 L.R.A. 405, 96 Am. St. Rep. 635, 67 N. E. 93; State ex rel. Coleman v. Wichita Mut. Burial Asso. 73 Kan. 179, 84 Pac. 757; Fikes v. State, 87 Miss. 251, 39 So. 783; STATE OF OHIO EX REL. TIMOTHY S. State v. Willett, 171 Ind. 296, 23 L.R.A. HOGAN, Attorney General. |