State ex rel., 83 Ind. 67; Taylor v. Johnson, 113 Ind. 161; Adams v. Slate, 87 Ind. 573.

A creditor is not authorized to interfere with any disposition which his debtor may make of his property, so long as he is not injured thereby. The debtor may convey his property with the intention of defrauding his creditor, but if he still retains property subject to execution out of which the debt may be collected, the debtor cannot complain. So, also, if the debtor conveys all of his property with like fraudulent purpose, retaining nothing, but when the creditor seeks to collect the debt of him he has acquired and then has property subject to execution from which the claim can be made, the creditor has no ground for interfering with the fraudulent conveyance.

The averments in the second paragraph that the debtor was of unsound mind when she made the conveyances do not affect the question. The contracts of a person of unsound mind, not under guardianship, or whose mental unsoundness has not been judicially determined, are voidable, but are not void. A creditor, however, cannot avoid a conveyance made by his debtor solely because the debtor was of unsound mind when he made it. Nor does the fact that the grantee, knowing of the debt and of the debtor's mental weakness, took advantage of such weakness for the purpose and with the intention of thereby defrauding the creditor, authorize the creditor to appeal to a court of equity to set aside such deed, unless he is injured thereby.

Both paragraphs of the complaint are fatally defective, and the demurrer should have been sustained to each paragraph.

It is due to the court below to say that while the question here involved is fairly in the record by demurrer and exception, it was probably never in fact presented or argued. This seems to be clearly indicated by the special findings, which show that evidence was heard, and the court found the existence of the facts which ought to have been averred and were not. This, however, does not cure the error, as the appellants may say, We only called witnesses to meet the facts charged, and could not anticipate that the court would hear evidence on facts not put in issue. The court cannot say, if the fact had been put in issue, that appellants might not have met it successfully with proof.

Judgment reversed, with direction to the circuit court to proceed in accordance with this opinion.

FRAUDULENT CONVEYANCES.-A voluntary conveyance will not be set aside as fraudulent on the allegation that the grantor was indebted before and after its execution; a creditor cannot avoid a conveyance made by his debtor, if it left him with ample means to satisfy the creditor's demands: Miles v. Richardson, Walk. (Miss.) 477; 12 Am. Dec. 584; Wilbur v. Nichols, 61 Vt. 432; Brock v. Rich, 76 Mich. 644. Allegations showing that a debtor has conveyed away all of his property, leaving nothing to satisfy the demands of creditors, is a sufficient statement of the facts constituting the fraud: Mar ston v. Dresden, 76 Wis. 418; Gove v. Campbell, 62 N. H. 401; Smalley v. Mast, 72 Iowa, 171.

EARNHART V. EARNHART.

[127 INDIANA, 397.]

RULE IN SHELLEY'S CASE DOES NOT APPLY WHERE it unequivocally appears that the persons who are to take are not to take as heirs of the grantee or devisee.

SHELLEY'S CASE. — A devise of property to E. for and during the term of his natural life, and at his death to the persons who would have inherited the same if E. had owned the same in fee-simple at the time of his death, but declaring that there shall vest in E. a life estate, and nothing more, does not vest the fee in E., but gives him a life estate only.

L. W. Welker, for the appellant.

H. G. Zimmerman and F. M. Prickett, for the appellees.

OLDS, C. J. John Earnhart died testate. By item 3 of his last will and testament he gave to his granddaughter, Harriet Cook, the only child of his deceased daughter, Susannah, five hundred dollars, to be paid within one year after his death, or within one year after the death of his wife, if she survived him. It is specifically stated in said item that said legacy shall be paid by devisees in said will, other than his wife, to wit: "Nelson James, Lewis Thomas, and William Earnhart, Jane Wolf and Ellen Wolf, in equal shares, the shares of each to be a charge upon the lands hereby devised to him or her respectively."

Item 10 of the will is as follows: "I give and devise to my son, William Earnhart, for and during the term of his natural life, subject to the life estate of my said wife therein, the following described real estate in Noble County, Indiana, to wit: The north half of the northwest quarter and the west half of the northwest quarter of the northeast quarter of section thirtyfour (34), in township thirty-four (34) north, range nine (9) east. At the death of said William Earnhart, I give and devise said lands in fee-simple to the persons who would have

inherited the same from the said William Earnhart had he owned the same in fee-simple at the time of his death, the same to go to said persons in the same manner and in the same proportions as though said William Earnhart had owned the same in fee-simple at the time of his death. But the provisions of this item should only vest in the said William a life estate in said lands, and nothing more."

The appellant brings this action, setting out a copy of the will, and alleging that he owns the fee-simple title to the land described in item 10 of the will, and asking that the will be so construed as to give to him the fee-simple title to said land, and that his title be quieted to the same, making the other devisees and the executor parties defendant, alleging that they claim some interest in said land adverse to the appellant.

The appellees demurred to the complaint for want of facts, which demurrer was sustained, exceptions reserved, and this appeal is prosecuted, assigning such ruling as error.

It is contended that item 10 in the will is governed by the rule in Shelley's case, and that it gives to William Earnhart a fee-simple title to the land.

It is settled that the rule in Shelley's case is recognized as law and a rule of property in this state; but we do not think it applicable to the item of the will under consideration. The rule does not apply where it unequivocally appears that the persons who are to take are not to take as heirs of the grantees or devisees. In this case it is clearly and distinctly expressed, so that it unequivocally appears from the language that it was the intent of the testator that the appellant should take only a life estate in the land. It then makes a further devise of the remainder of the estate in the land to other persons, describing them, not by name, but in a definite manner, as the persons who would inherit the same if the fee was in the appellant, and distributes it between such persons in the same proportions as they would inherit from said appellant. The words used in making disposition of the remainder are words of purchase, descriptive of the persons to whom the fee is devised.

If in one item of the will the testator had devised to his son, William Earnhart, a life estate in the particular tract of land, and in another item had made disposition of the remaining fee after his death to the wife and children of the said William, naming them, there could be no possible question but that William would take a life estate, and his wife and children

would take the fee; nor do we think there can be any difference if, instead of naming them, the. will described them as the wife and children, stating that they should take one third to the wife, and the two thirds to go to the children in equal shares. If it described them as the heirs who would inherit from William in the same proportion as the law would cast it upon them, certainly there can be no difference whether the testator make such disposition of his property in one or in separate items, so it be clearly expressed. In item 10 of the will under consideration, the intention of the testator is clearly expressed to be that William take only a life estate, and a separate and distinct devise of the remaining fee at his death to the heirs of William, in the same proportion they would have inherited had William owned the same in fee. It is clearly expressed that such heirs shall not take by descent from William, but by purchase from the testator. This being clearly expressed by the will, the rule in Shelley's case does not apply: See Fountain County etc. Co. v. Beckleheimer, 102 Ind. 76; 52 Am. Rep. 645. When it clearly appears that the testator did not intend to grant a fee, then the devise will not be so construed as to vest one: Allen v. Craft, 109 Ind. 476; 58 Am. Rep. 425.

The will provides that the appellant shall pay his portion of the legacy given to the granddaughter, Harriet Cook, and makes it a charge against the land.

There was no error in sustaining the demurrer to the complaint.

Judgment affirmed, with costs.

RULE IN SHELLEY'S CASE. That the rule in Shelley's case may apply, the limitation over must be to the heirs in fee or in tail as a nomen collectivum for the whole line of inheritable blood: Kuntzleman's Estate, 136 Pa. St. 142; 20 Am. St. Rep. 909. Compare extended note to Carpenter v. Van Olinder, 11 Am. St. Rep. 100-107, for a discussion of the application of the rule in Shelley's case. In Illinois, when a devise is to the heirs generally, the rule applies, and will control in determining the estate devised: Hageman v. Hageman, 129 Ill. 164. The rule will not apply to a devise in which the word "heirs" is used as a synonym for "children": Conger v. Lowe, 124 Ind. 368. For the application of the rule in Massachusetts, see Trumbull v. Trumbull, 149 Mass. 200.

STATE V. ENGLE.

[127 INDIANA, 457.]

MANDAMUS WILL LIE AGAINST A JUSTICE OF THE PEACE TO COMPEL HIM TO ENTER JUDGMENT, to make correct docket entries in accordance with the facts, and to perform all duties which are ministerial.

COSTS. THE MERE TAXATION OF COSTS IS A MINISTERIAL ACT, where there is no question of the amount to be taxed.

MANDAMUS.-If a justice of the peace enters a judgment of dismissal, he may, by mandamus, be compelled to enter judgment in favor of defend. ant for his costs, and to issue execution thereon.

J. C. Chaney and W. S. Maple, for the appellant.

A. B. Williams, J. T. Beasley, G. W. Buff, and J. S. Bays, for the appellee.

OLDS, C. J. This is a proceeding brought by the appellant against the appellee to compel the appellee, a justice of the peace, to enter up a proper judgment for costs, and issue a writ for the collection thereof.

The appellant filed his complaint in the circuit court in two paragraphs. The appellee demurred to the second paragraph. The record shows the sustaining of the demurrer to both paragraphs, and exceptions. Judgment upon demurrer in favor of the appellee.

This appeal is prosecuted, and the ruling of the court assigned as error.

It appears by the facts alleged in the complaint that William G. Engle, appellee, is a justice of the peace in Sullivan County; that one Hoke brought a suit before said justice against the relator on a promissory note; that relator demanded a jury, and the cause was tried by a jury on September 5, 1887, and the jury disagreed and was discharged. No further proceedings were had in the case, and on the eighth day of November, 1887, in the absence of the parties to the suit, the justice entered a dismissal of the cause, and entered the same on his docket as follows:

"November 8, 1887. The above cause is hereby dismissed for want of prosecution. W. G. ENGLE, Justice."

That the relator had no notice or knowledge of the dismissal of said suit until on the twenty-seventh day of January, 1888, when a fee-bill was issued by said justice against him for the costs made by him; that thereupon relator immediately demanded of the justice that he tax all of the costs in said cause to the plaintiff therein, and issue an execution