note, and as between the signers was in fact | cy suit is not settled yet. I want you to get all you can out of the other two. They had the money. Shall be at home in two weeks and will see you then. Yours, etc., B. M. Ricker." is given for $1,000 and there has been no interest paid since Oct. 1, 1904, and no payment on the note except a dividend from the bankrupt estate of B. F. Ricker of $10.25 received Jan. 26, 1909. The bank desires this note paid at once. Please give this matter your immediate attention and let me hear from you. Truly yours, Fred S. Wright." a surety. About December, 1904, or January, 1905, B. F. Ricker failed and went into bankruptcy. On the back of the note appeared five indorsements of interest paid, the first on October 2, 1902, and the last on Septem- On May 13, 1909, Fred Wright, the plainber 24, 1904, it being the interest to October tiff's attorney, wrote a letter to the defend1, 1904. There was also an indorsement un- ant as follows: "Woodsville, N. H. May 13, der date of January 26, 1909, "Rec'd $10.25 1909. Mr. B. M. Ricker, Groton, Vt.-Dear from trustee in bankruptcy, 1%." And under Sir: At the request of the Woodsville Bank date of June 3, 1909, there appeared in- I am writing you in relation to a note held dorsed, from the trustee in bankruptcy, by that bank signed by you together with B. $25.63. Between the last two indorsements F. Ricker and J. W. Blanchard. The note there appeared upon the note, "Without recourse to Woodsville National Bank, by H. W. Allen, Cashier." None of the indorsements were in the handwriting of defendant Ricker, and there was no evidence that he ever made or authorized any of those payments, unless it appears from the letters, hereinafter referred to by inference, that the payments made by the trustee of B. F. Ricker's bankruptcy estate were so made. In consequence of a letter from defendant Ricker to H. W. Allen, cashier, in February, 1906, and by the latter shown to the plaintiff's attorney, the note was proved by the plaintiff against said bankrupt estate. This letter was offered in evidence, but excluded. The writ bears date September 27, 1909. There was evidence that soon after the note was given it was sold and transferred by the Woodsville National Bank to the plaintiff bank. On the date named therein, Jerry Abbott, then treasurer of the plaintiff, wrote and mailed the following notice: "Woodsville Guaranty Savings Bank, Woodsville, N. H. March 12, 1908. The interest on your note for one thousand dollars to April, 1, 1908, will be $226.20, and you are requested to pay the same on or before that date. Respectfully, J. Abbott, Treasurer. To B. F. Ricker: Please present this notice when making payment." On a separate sheet was written: "We must have the interest at least, cannot wait any longer." The envelope in which the evidence tended to show this letter was inclosed was addressed to the defendant B. M. Ricker, and be replied thereto as follows: "Groton, Vermont, March 16, 1908. Mr. J. Abbott, Treas. -Dear Sir: Yours received. Send me the date of that note when it was given and the dates of the payments that have been made on it. Frank's bankruptcy (case) has not been settled yet. You get all you can out of the other parties. He and John Blanchard had the money. Yours, etc., B. M. Ricker." Later Jerry Abbott, treasurer, again wrote defendant Ricker as to the $1,000 note, but the original letter was lost, and the plaintiff had no copy. To this letter defendant Ricker replied as follows: "Coventry Center, R. I., September 17, 1908. Mr. Abbott-Dear Sir: To this letter the defendant replied: "Groton, Vermont, May 15, 1909. Mr. Fred S. Wright-Dear Sir: Yours received. I am sorry to say that I cannot do anything for the bank now. I have lost my money and have no funds to pay with. They know all about it. I got a notice from J. C. Sherburne the referee in Benjamin F. Ricker in bankruptcy to meet at Randolph May 21, 1909, and there are $419.45 in hands to be distributed. I suppose the bank got one too. Yours, etc., B. M. Ricker." Upon the foregoing evidence, unexplained or varied, respecting an acknowledgement or new promise, the plaintiff rested his case. Defendant Ricker then moved for a verdict, which was refused. Thereupon, this defendant not wishing to go to the jury upon any question of fact, and electing to stand on his motion, on motion of the plaintiff, a verdict was ordered for the plaintiff to recover the amount due upon the note, and judgment rendered thereon. Defendant Ricker excepted to the overruling of his motion, to the direction of a verdict for the plaintiff, and to the judgment. No question was made as to the amount due on the note, nor as to the amount of the verdict. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. Smith & Smith and Fred S. Wright, for plaintiff. Elisha May, for defendant Ricker. WATSON, J. The suit having been discontinued as to Blanchard, the case is here against B. M. Ricker alone, and we shall refer to him as the defendant. The defendant not wishing to go to the jury upon any question of fact, the sole question before us is, Did the evidence show such an acknowledgment of the promissory note in question by him that a verdict for the plaintiff could reasonably and properly be based thereon? 8, 1912.) tained in the three letters written by the defendant under dates of March 16, 1908, Sep- MELLEN v. UNITED STATES HEALTH & tember 17, 1908, and May 15, 1909, respecACCIDENT INS. CO. tively. There can be no doubt that in each (Supreme Court of Vermont. Windham. Jan. of these letters the defendant acknowledged the note as an existing indebtedness, but this is not enough. To prevent the statutory bar, the acknowledgment must be of such a character and made in such circumstances as to indicate or be consistent with a willing-court. ness to remain liable. Brayton v. Rockwell, 41 Vt. 621; Prescott v. Vershire, 63 Vt. 517, 22 Atl. 655. When the letter of March 16th, was written by the defendant the note had yet five months to run before it would be outlawed as to him. It was in reply to a notice sent him by the treasurer of the plaintiff, under date of March 12th, stating the amount of the interest on the note to April 1st, and requesting its payment on or before that date, and further stating (on a separate sheet) that the bank must have the interest at least, "cannot wait any longer." B. F. Ricker, one of the principles on the note for whom the defendant was in fact surety, was then in bankruptcy. In these circumstances the defendant, in that letter to the plaintiff's treasurer, asks for the date of the note, the dates of the payments thereon, and then says, "Frank's bankruptcy (case) has not been settled yet. You get all you can out of the other parties. He and John Blanchard had the money." We think thereby the defendant impliedly indicated a willingness to remain liable on the note; that the letter has the force of saying, "I want you to get all you can out of the other parties (for they had the money), and I am willing to pay the rest." The case of Winchell v. Hicks, 18 N. Y. 558, is very much in point. There one Bowman had the money and was the principal for whom the other defendants were sureties. Before the statute had run, the plaintiff called upon Hicks for payment of the note, being willing to forego the payment of the principal if the interest should be paid. Hicks replied in substance, "that he (plaintiff) must get it out of Bowman." This reply of Hicks was held sufficient to bind him; that it meant in other words, "I am surety only, and though liable and willing to pay, if the principal fails so to do, I wish you to request him to pay it, and if he refuses or fails, you can call on me again." The letter of September 17th, though written after six years from the maturity of the note had elapsed, contained, in this respect, in substance the same as the letter of March 16th, with the further statement, "shall be home in two weeks and will see you then." We think that these two letters (without considering the third) were reasonably sufficient to justify the verdict ordered and the judgment rendered. Judgment affirmed. 1. APPEAL AND ERROR (§ 262*)—RULINGS— NECESSITY OF EXCEPTIONS. An objection to the submission of an issue to the jury will not be reviewed in the absence of an exception taken thereto in the trial [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1582-1595; Dec. Dig. 262.*] 2. APPEAL AND ERROR (§ 273*)-EXCEPTIONS -SCOPE-GENERAL EXCEPTION. A general exception to the whole charge is not available to reach an objection to the submission of a particular issue to the jury. Error, Cent. Dig. §§ 1620-1630; Dec. Dig. [Ed. Note.-For other cases, see Appeal and 273;* Trial, Cent. Dig. §§ 695, 696.] 3. APPEAL AND ERROR (§ 757*)—EXCEPTIONS -BRIEFS. An exception not briefed will not be reviewed. Error, Dec. Dig. § 757.*] [Ed. Note.-For other cases, see Appeal and 4. APPEAL AND ERROR (§ 1097*)-PRIOR APPEAL-LAW OF THE CASE. The Supreme Court will not review a former decision in the same case on substantially the same state of facts, but the decision on the prior appeal will be treated as the law of the case. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4358-4368; Dec. Dig. § 1097.*] 5. APPEAL AND ERROR (§ 1212*)-REVIEW REVERSAL. Where the Supreme Court on a prior appeal held, as a matter of law, that certain letters written by an insurance company to plainof condition, it was not necessary for the court tiff amounted to a waiver of an alleged breach to submit the question of waiver to the jury on retrial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4713; Dec. Dig. § 1212.*] 6. TRIAL (§ 136*)-QUESTIONS For Court or JURY-CONSTRUCTION OF WRITINGS. When the facts surrounding the execution of a written instrument are known and not disputed, the construction of the writing is for the court. [Ed. Note.-For other cases, see Trial, Dec. Dig. § 136.*] Exceptions from Windham County Court; Fred M. Butler, Judge. Action by Archibald Mellen against the United States Health & Accident Insurance Company. Verdict for plaintiff, and defendant brings exceptions. Affirmed. See, also, 83 Vt. 242, 75 Atl. 273. Argued before ROWELL, C. J., and MUNSON, WATSON, and POWERS, JJ. Gibson & Waterman, for plaintiff. Joseph Madden and A. P. Carpenter, for defendant. ROWELL, C. J. This is assumpsit on a health and accident insurance policy which provides that no claim thereunder shall be valid unless written notice is given to the . company at Saginaw, Mich., within 20 days | charged a waiver by reason of the letters, from the date of injury or beginning of the illness for which claim is to be made. That date in this case was December 31, 1903. The testimony on the part of the plaintiff tended to show that he gave the required notice within the required time by depositing it in the post office, stamped and properly addressed to the company at Saginaw. The testimony on the part of the defendant tended to show that it never received such a notice. [1] The court left it to the jury to say whether it did or not, and the jury must have found that it did. The defendant now claims that this was error; but, as it does not appear that the action of the court in this respect was excepted to, the matter is not considered. [2] If counsel think that the general exception to the whole charge is available as an exception to this part of it, they are unmindful of the repeated rulings to the contrary. [3] The policy also provides that, in case of disability, indemnity will be paid only for the time the assured is under the professional care and attendance of a qualified physician or surgeon. The defendant excepted to the charge as to the length of time the plaintiff's evidence tended to show that he was under such care and attendance; but, as the exception is not briefed, it is not considered. [4] The policy further provides that, if the assured is disabled by accident or illness for more than one month, he or his representative shall, as a condition precedent to recovery thereunder, furnish every 30 days a report from his attending physician or surgeon, fully stating his condition and probable duration of his disability. There was nothing to show that this provision was complied with. But the plaintiff claimed that it was waived by the defendant's letters of February 24 and March 9, 1904, in the former of which it wrote to its local agent in Brattleboro to the effect that, as the plaintiff had not complied with the requirements of his policy in respect of giving notice of the commencement of the disability for which he expected to make claim, it saw no reason why it should entertain his claim; and in the latter of which it wrote to its said agent that, inasmuch as the conditions of the poliey had been clearly violated, it did not feel that it should be held liable, and asked the agent to advise the plaintiff to that effect. The plaintiff had been disabled by his accident more than one month before the first of said letters was written, and the defendant requested the court to charge that no waiver of this condition in the policy could be inferred before the denial of liability by the letter of February 24, 1904. the court refused to charge as requested, but But as their contents were made known to the plaintiff before the time elapsed within which he was bound to furnish proof of loss; to all which the defendant excepted, and now insists that its request to charge should have been complied with, and that the charge on the subject of waiver of said provision was wrong, for that there was a breach of it before the first letter was written. But when this case was here before (83 Vt. 242, 75 Atl. 273) it was expressly held that said provision was waived by the denial of liability contained in said letters. But the defendant says that then this subject apparently was not clearly brought to the attention of the court, and that it seems that the court took it for granted that there was no violation of the policy in this respect until after the letter of February 24th. Be this as it may, it is certain that the facts now shown concerning the matter are the same as the facts then shown, and, that being so, the decision then is the law of the case now and must control, for this court will not review its former decision in the same case made upon substantially the same state of facts. This is the established rule in this state as shown by a long line of cases. Sherman v. Estey Organ Co., 69 Vt. 355, 38 Atl. 70. [5, 6] It is further claimed that it was for the jury to say whether those letters amounted to a waiver. But that they did amount to a waiver was ruled before as a question of law, and that ruling is controlling now. Besides, the construction of writings, when once the facts necessary for fixing it have been ascertained, as they were here, none of them being in dispute, is for the court and not for the jury. Thayer, Prelim. Treat. Ev. 205 et seq. DENCE. Evidence held sufficient to show a delivery of the deeds by decedent to his wife with intention to pass title. [Ed. Note.-For other cases, see Deeds, Dec. Dig. § 208.*] 2. DEEDS (§ 194*)-DELIVERY-ACCEPTANCE— PRESUMPTION. While acceptance is necessary to complete the delivery of a deed, it will be presumed from the beneficial character of the transaction where the deed is absolute and unconditional unless the grantee renounces it. [Ed. Note.-For other cases, see Deeds, Cent. Dig. § 579; Dec. Dig. § 194.*1 Appeal from Probate Court, Washington County; Willard W. Miles, Judge. Judicial settlement of the estate of B. W. | vault of the bank. A few days after this, Braley, deceased. On objections of Fred N. Blackwell and his wife were at the Braley Braley to the account of the administrator place, and this transfer of the property was with will annexed. From an order overrul- discussed, both Dr. and Mrs. Braley being ing the objections, he appeals. Affirmed. present. After the doctor's decease, the Argued before ROWELL, C. J., and MUN- deeds were found in his safe by the adminisSON, WATSON, HASELTON, and POW-trator, in a drawer called Mrs. Braley's priERS, JJ. vate drawer, in which her papers were kept. J. Ward Carver, for appellant Fred N. Both the Braleys had access to the safe Braley. Williams & Dane, for appellee. POWERS, J. This is an appeal by a residuary legatee from the allowance of the account of an administrator c. t. a. The only objection to the account here urged is that it does not include the testator's home place in Barre. In argument, the appellant makes controlling the question whether a certain deed of this property made by the testator to his wife was so delivered in his lifetime as to carry the title. The administrator insists that the title to the property cannot be litigated in this proceeding, since it only involves a question of accounting, and that the question of title is only material here as it bears on his diligence and good faith. He does not, however, make the point that, in the circumstances shown, he is not required to make this real estate a matter of accounting, even though it belonged to the testator. So we do not trouble ourselves with that aspect of the case. Nor do we reach the question of due diligence and good faith, for, in our view, the judgment must be affirmed on the question made by the appellant. In the court below, an agreed statement of facts was filed, and judgment was rendered thereon affirming the decree of the probate court allowing the account as presented. The case comes here on the appellant's exception to that judgment. [1] The question, then, is whether the facts are sufficient to sustain the judgment; and, in determining that question, this court will, in aid of the judgment, read the facts agreed in the light most favorable to the administrator. Thus read, the agreed statement shows that the testator, Dr. B. W. Braley, owned a residence in the city of Barre, which he acquired in 1880, and which he and his wife occupied until his death in 1907. In the fall of 1880, he had a talk with one E. D. Blackwell, an officer of the National Bank of Barre, in which he told Blackwell that he was going to deed this place to his wife. Some time in November of that year, he went to the bank, and told Blackwell that he was going to carry out this intention, and that he wanted him (Blackwell) to act as a medium through which to pass the title of the property to Mrs. Braley. Thereupon, he executed a warranty deed of the home place to Blackwell, who immediately executed a similar deed to Mrs. Braley. Then Dr. Braley took the deeds and to this drawer, and some of the doctor's papers were found in it. The deeds were not recorded until Mrs. Braley caused them to be in February, 1909. The property was always listed to Dr. Braley, the buildings were always insured in his name, and he paid all taxes, assessments, and insurance premiums as long as he lived. A deed does not take effect until it is delivered. And in this case, the deed must have been delivered in the lifetime of Dr. Braley, for his administrator had no authority to deliver it. To constitute a delivery, the grantor must part with the custody and control of the instrument, with the intention of having it operate as a transfer of the title, and must part with his right to the instrument as well as with the possession of it. Roberts' Vt. Dig. p. 768, par. 36. The appellant argues that Dr. Braley never parted with the control of these deeds, but the facts are against him. The deeds were passed over to Blackwell. This must have been so, for he was instructed to place them in the vault. There is nothing to show that Dr. Braley had any dominion or control over them while they remained in the custody of the bank. If we were to interpret the agreed statement as showing that Dr. Braley was an officer of the bank, the result would be the same there would be nothing to show that he had or could have anything to do with the deeds while they remained there. The intention of the grantor is, as we have seen, a controlling factor in the transaction. This may be manifested by acts, or words, or both. It is always a question of fact and to be determined as such, unless the proof is such that a necessary inference arises therefrom, in which case it is a question for the court. Lindsay v. Lindsay, 11 Vt. 621. The facts here presented are not sufficiently decisive of the question of intent to compel a conclusion one way or the other. While, as pointed out by the appellant, some of them indicate a purpose on the part of Dr. Braley to retain control of both the papers and the property as long as he lived, the fact that he went to the bank on the day the deeds were executed with the avowed purpose of carrying into effect his previously expressed intention, the fact that he then parted with all control over the deeds, the fact that the discussion at his house was of a completed and not of a contemplated trans Cent. Dig. § 42; Dec. Dig. § 23.* For other definitions, see Words and Phrases, The status of parent and child is a correlative one, so that, where there is a legal child, there must have been a legal father, and hence the children of such legal child, whether natural or adopted, are the grandchildren of such legal father. Mrs. Braley's drawer in the safe-point, estate by representation to the same extent as quite as strongly to the conclusion that he if he had been the son of intestate's natural daughter. left the deeds at the bank for Mrs. Braley's benefit, and with intent to make the transfer of title complete especially in view of the relationship between the parties and the apparent character and purpose of the transaction, which are circumstances to be considered, and which in Illinois would raise a presumption of delivery. Chapin v. Nott, 203 Ill. 341, 67 N. E. 833. Which of these conclusions is the correct one was a question for the court below to decide on the facts placed on the record. And the facts being sufficient to warrant the inference that Dr. Braley intended to complete the execution of the deeds by delivery, and thus make effective the transfer of the property, we must assume in support of the judgment that the court below drew that inference and based its judgment thereon. Whitehead Whitehead, 84 Vt. 321, 79 Atl. 516. V. [2] But the appellant says that there was no acceptance of the deed, without which it would not take effect. It is true that an acceptance is necessary to complete the delivery of a deed, but acceptance of an absolute and unconditional deed is presumed from the beneficial character of the transac tion, unless the grantee renounces it. Blanchard v. Sheldon, 43 Vt. 512; Church's Ex'r v. Church's Est., 80 Vt. 228, 67 Atl. 549, 11 L. R. A. (N. S.) 693; note to Brown v. Weathersfield (Neb.) 53 Am. St. Rep. 532. So when this conveyance was discussed in Mrs. Braley's presence and nothing appeared to indicate that she objected to the gift, her acceptance was sufficiently made manifest. [Ed. Note.-For other cases, see Parent and Child, Dec. Dig. § 1.*] 3. ADOPTION (§ 23*)-INHERITANCE-"CHILDREN"-"ISSUE." P. S. 2936, subd. 1, provides that the estate of an intestate shall descend in equal sentatives of deceased children, and subdivision shares to his "children," or the legal repre2 provides that, if the deceased is a married person and leaves no "issue," the surviving husband or wife, if such survivor does not take dower or testamentary provision, shall be entitled to one-half of the estate of deceased forever if it does not exceed $2,000, otherwise the $2,000 and one-half of the remainder, etc. division 1, and the word "issue," in subdivision Held, that the word "children," as used in sub2, were not limited to natural children, but included as well children by adoption. [Ed. Note.-For other cases, see Adoption, Cent. Dig. § 42; Dec. Dig. § 23.* vol. 2, pp. 1115-1141; vol. 8, p. 7601; vol. Intestate before marriage adopted a daughdefendant, who then had knowledge of the ter as his heir at law, and thereafter married adoption, but who never assented or dissented. The adopted child died, leaving complainant as her sole heir, and thereafter intestate died, leaving defendant his widow surviving. Held, Judgment affirmed. Let the result be cer- that the case was one where the husband died tified to the probate court. an intestate leaving "legal representatives" of deceased children who were entitled to take under the first canon of descent (P. S. 2936), and under section 2925, subd. 3, providing that the widow may be barred of one-third in value of her husband's real estate where the husband dies leaving no child or representatives of children, and the widow is entitled to the provisions in such case made and provided. [Ed. Note.-For_other cases, see Adoption, Cent. Dig. § 42; Dec. Dig. § 23.*] Exceptions from Bennington County Court; Eleazer L. Waterman, Judge. Action by J. K. Batchelder, as guardian of Howard M. Scott, against Jennie Walworth and others. From a judgment for plaintiff, distributing the estate of George W. Walworth, deceased. defendants except. Affirmed. 1. ADOPTION (§ 23*) — INHERITANCE FROM Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POW Batchelder & Bates, for plaintiff. Holden the adopted child, and where intestate, who & Healy, for defendants. WATSON, J. On the 18th day of April, complainant was entitled to share in intestate's 1909, George W. Walworth died intestate at |