Action by William M. Taylor against Caroline L. Crapster. Judgment for plaintiff, and defendant brings error. Reversed.

Hackney & Lafferty, for plaintiff in error. G. H. Buckman and Grant Stafford, for defendant in error.

GRAVES, J. This action was commenced in the district court of Cowley county, by the defendant in error, May 14, 1903, to quiet his title to the real estate in controversy. The plaintiffs in error claim to own the land, and in a cross-petition have asked for possession thereof and a judgment against the defendant in error for rents and profits. Soranus L. Brettun, from whom all parties claim title, owned the land in question, and at his death disposed of the same by will. He devised a life estate therein to his widow and two grandchildren, Brettun Crapster and Caroline L. Crapster, with remainder in fee to the children of his said grandchildren. The plaintiffs in error, Caroline L. Crapster and Bretta V. Crapster, are minor children of said Brettun Crapster, and Milton A. Bangs, Margaret E. Bangs, Ruth T. Bangs, and Phyllis G. Bangs are minor children of Caroline L. Crapster, who married A. C. Bangs. October 11, 1883, the executors of the will of Soranus L. Brettun, filed a petition in the probate court, asking for an order to sell the real estate in controversy for the purpose of paying the debts of the testator. The order was granted, November 9, 1883, the lands sold thereunder and conveyed by the executors to one Kerns, who sold to the defendant in error, and his title depends upon the validity of said sale. At the time the executors filed their petition to sell, the plaintiff in error Milton A. Bangs was about two months old. His coplaintiffs were all born since that time. notice was given to Milton A. Bangs of the petition or proceedings to sell. No guardian or other person was served with notice as his representative, and no person appeared in his behalf; in fact, it was not supposed at the time that he had any right or interest

in the land.

It is claimed by the plaintiffs in error that this failure to notify the infant, either personally or otherwise, made the sale and conveyance under which the defendant in error holds void as against the rights of the plaintiffs in error. Whether such sale is valid or not is the only question presented. It is settled law in this state that the sale of real estate in the probate court by executors or administrators for the payment of debts is an adversary proceeding, and notice to the owner of the land to be sold is jurisdictional. Mickel v. Hicks, 19 Kan. 578, 21 Am. Rep. 161; Fudge v. Fudge, 23 Kan. 418; Rogers v. Clemmans, 26 Kan. 527; C., K. & N. Ry. Co. v. Cook, 43 Kan.

judgment without notice is a nullity and open to attack collaterally. Rogers v. Clemmans, supra; Kelso v. Norton (Kan.) 87 Pac. 184. The statute which prescribes the kind and manner of notice to be given in such cases is found in section 2992, Gen. St. 1905, which reads: "The court shall require notice of the petition, and of the time and place of hearing the same, to be given for such length of time and in such manner as the court may see proper." The order made by the court in this case reads: "It is ordered that said petition come on for final hearing on the 20th day of October, A. D. 1883, at the hour of 10 o'clock a. m., at the probate courtroom in the county aforesaid, the said day being one of the days of the October, 1883, term of said court, and that said executors notify the heirs at law and all others interested in the pendency of said petition, and the time and place set for the hearing thereof (and, unless the contrary be made to appear, an order will be granted for such sale), by causing to be served personally upon Brettun Crapster and Louis C. Bangs, sole heirs at law (besides said executors of said decedent, and both of said heirs being residents of Cowley County, Kansas), a true copy of their petition herein filed, together with notice in writing of the time and place where the same will be heard. Service to be had at least three days prior to the time herein appointed for such hearing in said county." The order approving service of notice reads: "It is found that the heirs at law of said decedent have been served with a true copy of said petition and notice of the time when the same would be heard; service being acknowledged on the back of said original petition by Brettun Crapster and Louis Bangs, the other heirs being the executors of said estate, and said notice being in conformity to the order of this court heretofore in that behalf made and is good and sufficient."

It will be seen that, while the court ordered notice to be served upon the heirs at law and all persons interested, it specificallydesignated the testator's grandchildren, Brettun Crapster and Mrs. Bangs, as the soleheirs at law, ignoring entirely the interests of this infant. Notice was served upon Mrs. Bangs, the mother of Milton A. Bangs, but such notice did not inform her that the rights of her children would be in any manner affected by the proceeding. It only called her attention to her own interests therein. If she had been served with a notice as the guardian of her child, a different question would be presented. When it is remembered that the parents of this child knew of the pendency of these proceedings, it seems like a useless formality to serve notice upon the babe in his mother's arms. At the same time, this babe, though helpless, had the legal capacity to be, and was, the owner of the

fee simple title to the land about to be sold. His interests might have been best conserved by resisting the sale; but he was unable to determine what his rights were, or how they might be protected. Courts have always been especially careful and vigilant in protecting the property rights of infants, and the extreme youth and helplessness of this plaintiff in error, at the time of this sale, was sufficient to furnish a strong appeal to the conscience of the court to interpose in his behalf, at least to the extent of providing him with a competent guardian who would see that his interests were protected. Nothing of this kind, however, was done. The babe's rights were ignored. It is a fundamental and universal rule of law that no person can be judicially divested of any property rights without notice thereof and an opportunity to be heard, and this rule applies to old and young alike. In the case of Galpin v. Page, 18 Wall. (U. S.) 350, 21 L. Ed. 959, it is said: "It is a rule as old as the law that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination. It is judicial usurpation and oppression, and never can be upheld where justice is justly administered." The rights of this plaintiff in error Milton A. Bangs have been disregarded. They were not even considered. Therefore the sale complained of is void.

The judgment of the district court is reversed. All the Justices concurring.

(74 Kan. 751)

LOHMULLER v. MOSHER et al. (Supreme Court of Kansas. Dec. 8, 1906.) WILLS-CONSTRUCTION-ABSOLUTE DEVISE.

A provision in a will as follows: "I give and devise to my daughter Elizabeth Yambert eleven hundred dollars aside of what she has already received and I appoint my sons Jacob Yentzer and Benjamin Yentzer after my death to puchase with the above eleven hundred dollars a home for the above-named Elizabeth Yambert, to be for her use during her life and after her death the property to fall to her children"-does not express an absolute and unconditional gift of the sum of money named to Elizabeth Yambert, but requires its investment in real estate for her use during her life with remainder in fee to her children. [Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 1379-1385.]

(Syllabus by the Court.)

Error from District Court, Nemaha County; Wm. I. Stuart, Judge.

Action by Emma Mosher and others against Laura E. Lohmuller. Judgment for plaintiffs, and defendant brings error. Affirmed.

Wells & Wells, for plaintiff in in error. Emery & Emery and P. L. Burlingame, for defendants in error.

* *

BURCH, J. John Yentzer of Seneca county, Ohio, died leaving a will which was duly probated at his domicile, and which contains the following provision: "I give and devise to my daughter Elizabeth Yambert eleven hundred dollars aside of what she has already received and I appoint my sons Jacob. Yentzer and Benjamin Yentzer after my death to purchase with the above eleven hundred dollars a home for the above named Elizabeth Yambert, to be for her use during her life and after her death the property to fall to her children." Benjamin Yentzer was appointed executor of the will. In 1878 he deeded to Elizabeth Yambert the land in controversy by a deed containing the following recitals: "This deed made in compliance and accompanied by a copy of the last will and testament of John Yentzer late of Seneca county, Ohio, deceased heretofore on the 14th day of November A. D. 1876. Admitted to probate court, and now on record in said probate court of which by Benjamin Yentzer his executor and in compliance with item four (4) of said will, does convey as specified in said deed to the said Elizabeth Yambert to be for her use during her life and after her death the property to fall to her heirs forever. * To have and to hold the same to the only proper use of the said Elizabeth Yambert to be for her use during her life and after her death the property to fall to her heirs forever." This deed was filed for record in the county where the land lies on March 7, 1885. Afterward one Durland acquired tax deeds of the property. In March, 1889, Elizabeth Yambert gave a general warranty deed of the land to Laura E. Lohmuller in consideration of $1,000 and support for the remainder of her life. After that Laura Lohmuller paid taxes on the premises. She is a grandchild of Elizabeth Yambert, but her mother, Saloma Michaels, daughter of Elizabeth Yambert, died before the death of John Yentzer occurred. After the conveyance to Laura E. Lohmuller Durland quitclaimed to her. Elizabeth Yambert died in 1902, leaving five children. Two of them conveyed their interests in the property to William Coates. In an action for partition brought in 1904 Coates was awarded twofifths of the land and the three children who had not conveyed, one-fifth each. Laura E. Lohmuller was allowed a lien for taxes. The court found that Benjamin Yentzer and Elizabeth Yambert intended that the deed of 1878 should carry out the purpose expressed in the will and intended that it should follow the wording of the will but that the word "heirs" was inserted by mistake instead of the word "children"; hence the deed was ordered to be reformed. Laura E. Lohmuller complains of this judgment.

The chief controversy relates to the interpretation of the will. It is said that Elizabeth Yambert was given $1,100 absolutely and unconditionally; that this clear bequest cannot

be cut down by what follows; and that the attempt to limit her interest in land purchased with her own money was nugatory. The rule of law relied upon by the plaintiff in error is well understood. It has been stated in various ways. The form used in the note to the case of McIsaac v. Beaton (37 Can. Sup. Ct.) 3 Am. & Eng. Ann. Cas. 615, is probably as satisfactory as any. "A clear devise or bequest will not be cut down by other expressions or clauses contained in the will which do not, with reasonable certainty, indicate the intention of the testator to cut it down." The authorities are collated in the note referred to. See Williams v. McKinney, 34 Kan. 514, 9 Pac. 265; McNutt v. McComb, 61 Kan, 25, 58 Pac. 965; Safe Deposit Co. v. Stick, 61 Kan. 474, 59 Pac. 1082. Applying the rule to the will in question it immediately becomes manifest that the words following the first indication of a gift are not ambiguous, nor are they directory merely, or precatory, or inferential in their intent. They are unequivocal, of equal authority with those going before, and so inseparably conjoined with those which precede that the expression of the testator's comprehensive thought is not complete until the end of the sentence is reached. The testator desired to add to what his daughter had already received. He set aside $1,100 for the purpose. He gave that much more to her but not as cash. His sons Jacob and Benjamin were to take the money and buy a home for her. This home was to be for her use and benefit during her life: after her death the property so purchased to fall to her children. The purpose is as unmistakable as if in stiff legal phraseology he had appointed trustees, had ordered $1,100 in cash from his estate to be paid to them, had ordered them to invest that sum in real estate, suitable for a home for Elizabeth, and then had charged the land so to be acquired with an estate to her for life, with remainder in fee to her children. It is impossible to say that Elizabeth was to take $1,100 in cash to spend as she pleased, or that, if her brothers purchased a home for her with the money, she might, whenever she wished, deed it away, as a gift or for a price, in fee simple absolute. The case, therefore, is not one of a clear bequest, against which subsequent expressions may not prevail, and the rule invoked is not controlling.

Other questions presented are less difficult of solution. It is nothing to Laura E. Lohmuller that only one of the trustees carried out the provisions of the will, or that, in the execution of the trust, a consideration passed, the beneficiary having been satisfied. The real estate in question did not belong to the testator and title to it did not pass by his will; hence it was not necessary that the will be recorded in Nemaha county.

The conveyance to Elizabeth Yambert expressly limited her interest in the land to a life estate, and the reference in the deed to

the will sent prospective purchasers of the land to the will to ascertain the true scope of the deed. Under these circumstances any grantee of Elizabeth Yambert took with notice to the extent of her rights, and there was no need of reforming the deed. Any error in that respect could not be prejudicial.

After Laura E. Lohmuller had purchased the life estate in the land, her acquisition of the Durland tax titles merely redeemed the land from taxes. The words "fall to her children" in the will create by inartistic phrase a remainder in fee, the word "children" being a word of purchase.

The facts found by the district court are sustained by the evidence, and its judgment is affirmed. All the Justices concurring.

MIRICK v. SUCHY.

BARRY v. SAME.

(74 Kan. 715)

(Supreme Court of Kansas. Dec. 8, 1906.) PARENT AND CHILD-TORTS OF CHILD-LIABILITY OF FATHER.

In an action against a father for damages resulting from the setting out of a fire by his minor sons, it is not a sufficient allegation of the parent's liability to allege that the sons, "while they were engaged in his [the father's] business and for his benefit, and working for him, purposely, carelessly, and negligently set out a fire." It is necessary to allege, in substance, if done in the absence of the father and without his direction, that the setting out of the fire was a service being rendered for the father, or resulting from an act done in such service; in other words, that the fire was set out or caused by an act within the scope of the employment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Parent and Child. §§ 146, 147.] (Syllabus by the Court.)

Error from District Court, Rush County; Chas. E. Lobdell, Judge.

Actions by B. E. Mirick against John Suchy and by R. C. Barry against John Suchy. Judgments for defendant, and plaintiffs bring error. Affirmed.

Each of the above cases was commenced in the district court of Rush county on a petition which is substantially the same as the other, except as to the name of the plaintiff, the description and value of the property alleged to have been destroyed by the fire, and the amount of judgment prayed for. The common defendant filed a general demurrer to the petition in each action. The demurrers were sustained by the court, each plaintiff elected to stand on his petition, and judgment was rendered against him for costs. Each plaintiff, as plaintiff in error, brings his case to this court for a review of the ruling, and all parties agree to submit the cases together as one. After a proper description of his property alleged to have been destroyed by the fire, and setting forth the value thereof, the petition in Barry's case, omitting the prayer for relief and the signatures, is as follows: "That on the said 30th day of

plaintiffs, the court refused to permit Mr. McFarlane, the manager of the company, to testify in regard to the terms of this agreement, whereupon the defendant made a formal offer to prove "an oral contract with the plaintiff whereby plaintiff was to perform certain services and the defendant was to give him land in payment for them, the choice of the land to be made by the plaintiff at his option; and that the defendant. stands ready and willing to perform its part of the contract." This offer was rejected, and thereupon the court instructed the jury to return a verdict in favor of plaintiffs for the sum of $87.25. A motion for a new trial was overruled, and judgment rendered for that amount. To reverse this judgment, the company brings this case here on appeal.

Sheafor & Dolman, for appellant.

GODDARD, J. (after stating the facts). The question for our determination is whether the court erred in excluding testimony tending to prove the oral agreement relied on by defendant to defeat a recovery of the money judgment for services rendered in pursuance of of such agreement; in other words, whether the plaintiffs were entitled to invoke the statute' of frauds to avoid the obligations of the oral agreement under which the labor was performed, and recover therefor upon an implied assumpsit, notwithstanding the defendant is willing to carry out the agreement on its part.

We think it is clear that this may not be done. The party to be charged may avail himself, if he so elect, of the protection of the statute, if its requirements have not been complied with, as a defense to an action upon an executory oral contract, or he may waive the protection of the statute, in which event the contract would be perfectly good against him. But a third party cannot escape his obligations growing out of such a contract by denying the obligation of the contract on the party to be charged thereby. Browne on the Statute of Frauds (5th Ed.) § 135. It has been uniformly held that where a party has rendered services, or paid money, in consideration of an oral contract for purchase of land, he cannot rescind such contract and recover for such services, or the money paid, unless the other party insists upon the statute, and refuses to perform it on his part. Among the numerous authorities to this effect, see the following: Shaw v. Shaw, 6 Vt. 69; Philbrook v. Belknap, 6 Vt. 383; Abbott v. Draper, 4 Denio (N. Y.) 51; Crabtree v. Welles, 19 Ill. 55; Cobb v. Hall, 29 Vt. 510, 70 Am. Dec. 432; Day v. Wilson, 83 Ind. 463, 43 Am. Rep. 76; Coughlin v. Knowles, 7 Metc. (Mass.) 57, 39 Am. Dec. 759: Gammon v. Butler, 48 Me. 344. In Shaw v. Shaw, supra, it is said: "The statute applies only to executory contracts, not to those in whole or in material part executed. Therefore, when one party has partly per

formed under such a contract, he cannot recover for what he has done, unless the other party insist upon the statute, and refuse to perform. This is too obviously just to require comment, and to disregard it would do violence to every leading principle. The contract cannot be considered void so long as he, for the protection of whose rights the statute is made, is willing to treat and consider the contract good." Under this obviously just rule, the defendant should have been permitted to introduce the evidence offered, and to show, if it could, that the plaintiffs were not entitled to recover a money judgment for the services rendered.

The error of the court in excluding the evidence offered by the defendant necessitates a reversal of the judgment. Reversed.

GABBERT, C. J., and BAILEY, J., concur.

(38 Colo. 115) CRAIG et al. v. A. LESCHEN & SONS ROPE CO.

(Supreme Court of Colorado. Dec. 3, 1906.) 1. APPEAL--REVERSAL - PLEADINGS-AMEND

ΜΕΝΤ.

It having been determined on a prior appeal that evidence offered by defendant to prove an estoppel against plaintiff was inadmissible in the absence of a pica, defendants were not entitled to amend their answer by pleading such estoppel, where no application for leave to so amend was made until the close of the testimony on retrial.

2. CORPORATIONS - FOREIGN CORPORATIONS — DOING BUSINESS WITHIN STATE-RIGHT TO SUE.

Laws 1897, p. 157, c. 51, providing that no foreign corporation shall have or exercise any corporate powers or be permitted to do business within the state until the required fee shall have been paid, did not prohibit a foreign corporation from suing to protect its property or other rights, or from acquiring personal property in the state until such fees had been paid.

[Ed. Note. For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 2527, 2544.]

3. TRIAL INSTRUCTIONS-APPLICABILITY EVIDENCE.

ΤΟ

Where, in an action to recover property levied on, defendants failed to deny that the property was of the value of $2,500, as alleged in the complaint, and the proof showed that it was worth more than that sum, the court was justified in charging that such was its value.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 432-434.]

Appeal from District Court, Teller County; William P. Seeds, Judge.

Action by the A. Leschen & Sons Rope Company against W. E. Craig and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

R. G. Withers, for appellants. Chas. Butler, for appellee.

BAILEY, J. This action was brought in 1898. The first trial resulted in a judgment