except await its unloading, excluding a question on redirect examination regarding what other duties he had there, was not erroneous, where no offer of proof showing the expected answer was made. (225 Mass. 213) WHITMAN v. WHITNEY et al. (Supreme Judicial Court of Massachusetts. Middlesex. Nov. 29, 1916.) [Ed. Note. For other cases, see Trial, Cent. WILLS 487(4)—INTENTION OF TESTATRIX— Dig. 113; Dec. Dig. 45(3).] EVIDENCE. Exceptions from Superior Court, Suffolk County; John F. Brown, Judge. Action by Cornelius J. Guiney against the Union Ice Company. Judgment for defendant, and plaintiff brings exceptions. Exceptions overruled. Harry F. R. Dolan, Jas. H. Morson, and Jos. S. O'Neill, all of Boston, for plaintiff. Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone, of Boston, of counsel), for defendant. Where testatrix mistakenly believed that she had only a life estate in a trust fund, and her belief was attributable solely to the fact that she voluntarily omitted to make inquiries make her dispositions without definite knowlor an estimate of her property, and chose to edge of its amount or value, evidence is not admissible to prove that by her will testatrix did not intend to dispose of her interest in the trust fund. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1028; Dec. Dig. 487(4).] Appeal from Supreme Judicial Court, Middlesex County. appealed. From a decree of a single Justice of the Supreme Judicial Court allowing the executor's motion to dismiss their appeal, William L. Whitney and others appeal. De cree affirmed. Hartley F. Atwood and Elias Field, both of Boston, for appellants. Elder, Whitman & Barnum, of Boston, for appellee. Petition for probate of will by Edmund BRALEY, J. [1, 2] If the plaintiff had not A. Whitman, executor of the last will and been in the car from which the ice was being testament of Abigail W. Howe. There was taken and placed on his wagon he would not a decree of the probate court allowing the have been injured by the glancing and unin-will, and William L. Whitney and others tentional blow of an ice pick in the hands of a workman of the defendant engaged in transferring the ice. It is apparent from the plaintiff's uncontradicted testimony that he was not required to assist in loading the ice, and until it was loaded he "had nothing in particular to do in the car." If nothing more appeared he must be held while in the car to have been at most a mere licensee to whom the defendant owed no duty except to refrain from the infliction of wilful injury, of which there is no evidence. Freeman v. United Fruit Co., 223 Mass. 300, 302, 111 N. E. 789. But to meet this initial difficulty, and after the plaintiff in cross-examination had reiterated that he had "nothing to do there except to wait for the ice," he was asked in redirect examination, "Was there any reason other than you testified to?" When there followed a colloquy between counsel for plaintiff and the presiding judge during which the judge said, "His duty did not call him in there," and the witness interposing said, "Not at that time." While the wit ness was immediately told by his counsel "Don't you answer," it is clear from all of his evidence, including this statement, that unless some sufficient reason not previously disclosed was given for his presence in the car his rights had not been enlarged, and he could not recover. The question having been finally excluded the plaintiff contends there was error and a new trial should be granted. But no offer of proof, or any statement showing the answer expected was made. Nor can we infer from the record what the answer might have been. Under such circumstances it cannot be held as matter of law that the ruling was wrong. Bachant v. B. & M. R. R., 187 Mass. 392, 396, 73 N. E. 642, 105 Am. St. Rep. 408; Coolidge v. Boston Elev. Ry., 214 Mass. 568, 571, 102 N. E. 74. Exceptions overruled. PIERCE, J. This is an appeal from a decree of a single justice of this court, allowing a motion to dismiss an appeal from a decree of the probate court allowing certain instruments as the last will and codicils of Abigail W. Howe. The grounds upon which the motion is asked is, that the appellants set forth no reasons why the appeal should be allowed in law. The appellants, who are the only heirs and next of kin of the testatrix, within the time allowed by law filed their appeal from the allowance of the will, alleging as their sole ground of objection: "Because the testatrix died owning an interest in the principal of a trust fund under the will of Susannah Whitney, late of Cambridge in said county of Middlesex, deceased, of great value; that she believed she had no interest in said trust fund other than a life interest; that she did not intend to dispose of said interest in the principal of said fund by her will or codicils; and that the said will and codicils were void and of no effect, so far as they disposed of said interest, and so much thereof as disposed of said interest should not be admitted to probate." The fact that the testatrix had the legal power to dispose of the principal of the trust fund, distinguishes the case at bar from Deane v. Littlefield, 1 Pick. 239, Holman v. Perry, 4 Metc. 492, Heath v. Withington, 6 Cush. 497, Old Colony Trust Co. v. Bailey, 202 Mass. 283, 88 N. E. 898, which are cases where there was either a partial legal disability on the part of the testator or where [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 88 567-570; Dec. Dig. 156,] there had been fraud or undue influence as by procuring insurance, and the lessee would be to a specific clause in the will. In these class- liable to him for the premium. es of cases, wills have been proved to take effect in part and to be void in part. Sumner v. Crane, 155 Mass. 483, 484, 29 N. E. 1151, 15 L. R. A. 447; Old Colony Trust Co. v. Bailey, supra. COVE 5. LANDLORD AND TENANT 156 [Ed. Note.-For other cases, see Landlord and Appeal from Municipal Court of Boston, Appellate Division. Action by Moses Richmond against Harry S. Kelsey. From an order of the appellate division dismissing the report, defendant appeals to the Supreme Judicial Court. firmed. Af The appellants do not claim that the ignorance of the testatrix of her legal right to dispose of the principal fund, that her belief that she had no interest therein other than a life estate, or that her intent not to dispose of her interest was the result of fraud, of any delusion or incapacity to understand the nature, quantity or value of her interest; but assert that the mere belief of the testatrix that she had only a life estate in the trust fund requires the decree of the probate court should exclude the trust property from the operation of the will. So far Chas. N. Barney, of Lynn, Hubert A. Muras may be inferred from the record, the ig-phy, of Boston, and Robt. T. Woodruff, of norance and belief of the testatrix were Lynn, for appellant. Francis P. Garland, of attributable to no other fact or condition than Boston, for appellee. that she voluntarily omitted to make inquiries or an estimate of her property, and chose to make her dispositions without definite or certain knowledge of its amount or value. It is clear upon the authority of Barker v. Comins, 110 Mass. 477, that upon the facts stated, evidence would not be admissible to prove that the testatrix did not intend to dispose of her interest in the trust fund. Decree affirmed. (225 Mass. 209) RICHMOND v. KELSEY. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 29, 1916.) 1. INSURANCE 115(4) INTEREST LAND- PIERCE, J. This is an action by an assignee of a lessor against the lessee upon a covenant contained in an indenture of lease, which, so far as is material to the issue now presented, reads: and promises with and to the said lessor that "And the said lessee hereby covenants he will during said term, and for such further time as the said lessee or any other person or persons claiming under him, shall hold the said premises or any part thereof, pay unto the lessor the said yearly rent upon the days herein before appointed for the payment thereof, and also all the taxes, insurance, and assessments what soever. " Following the plaintiff's demand and the defendant's refusal to insure for the benefit of the plaintiff, the plaintiff placed on the property insurance, to the extent of $30,000 upon new buildings and $10,000 on old buildings, payable to himself. It is not argued, and apparently is not claimed, that the insurance is excessive or based upon an exaggerated and fictitious valuation of the property. In effecting the insurance the plainCOVE- tiff paid as a premium to the insurance company $137.50, and seeks to recover that sum Where the lease obligated the lessee to pro- as damage for breach of the covenant, in vide insurance, and further required peaceable surrender, and provided for re-entry on default the first count of his substitute declaration, of rent, the insurance provided must be rea- or, in the alternative, a like sum with insonably adequate to protect the reversion; the terest after demand in the second count upon landlord's interest not being merely nominal. -- [Ed. Note.-For other cases, see Landlord and a common count for debt. The answer of Tenant, Cent. Dig. 88 567-570; Dec. Dig. the defendant is a general denial and pay156.] ment. At the hearing of the case before argument the defendant asked the court to make the following rulings: "1. On all the evidence the plaintiff is not entitled to recover. effect insurance for the benefit of the lessor. "3. The lease does not require the lessee to repay the lessor premiums for insurance effected by the lessor for his own benefit. "4. The lease does not require the lessee to repay the lessor premiums paid for insurance, ef For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fected by the lessor for his own benefit, beyond | interest, and refute and disprove the defenda nominal amount." ant's claim that the insurable interest of the [1] The lessor, as reversioner, had an in-owner of the buildings is only nominal. This surable interest in the property as it was covenant, like that for the payment of taxes when leased, and also in any erections or ad- and betterments, was inserted for the beneditions thereto, by virtue of the covenant of fit and indemnity of the lessor. Adams v. the lease which reads: North American Ins. Co., 210 Mass. 550, 552, 96 N. E. 1094. And it is not met and performed by the placing of insurance, however adequate, solely in the name of the lessee. We do not find it necessary to decide whether the covenant would have been executed and fulfilled had the policy been made payable to the lessor and lessee according to their respective interests in the property. See Sherwood v. Harral, 39 Conn. 333. "And further, that he, the said lessee, shall and will, at the expiration of said term, peaceably yield up unto the said lessor all and singular the premises and all the erections and additions made to or upon the same, in good tenantable repair in all respects, reasonable wearing and use thereof, and damage by fire and other casualties excepted." As also by the condition which reads: "Provided also that these presents are upon the condition that if the said lessor does or shall fail to pay the rent and taxes which on his part are to be paid under the terms of this lease or within ninety days after the same shall become due and payable, then and in either of the said cases, the lessor lawfully may immediately or at any time thereafter, and while such neglect or default continues, enter into and upon the said premises or any part thereof in the name of the whole and repossess the same as of their former estate.' Columbia Ins. Co. v. Cooper, 50 Pa. 331. [4, 5] Upon the refusal of the lessee on demand to perform the covenant, the lessor could properly protect his risk and the covenantor would become obligated to reimburse the lessor for the amount of the premium which the lessor had to pay to effect the insurance. Dodd v. Jones, 137 Mass. 322; 2 Tiffany, Landlord and Tenant, 863, and cases cited. There was a breach of the covenant, under the first count and the damages to be assessed were not necessarily nominal. Hey v. Wyche, 12 L. J. Q. B. 83. [2, 3] From these covenants and conditions it appears that the lessor has a valuable property interest to protect. And while it is true that there is no provision for abate- The defendant does not contend that the ment of rent in case of the destruction of the plaintiff, as assignee of the lessor, cannot buildings or for termination of the lease in maintain an action on the covenant because such an event, it is also a fact that the lessor there was no agreement by or liability on has a right to determine the lease on the the lessor to rebuild or repair in case of fire; nonpayment of rent or taxes and to repossess it therefore is unnecessary to decide whethhimself of his former estate. These consider the covenant is a personal one of inerations make certain and establish the plaindemnity or runs with the land. tiff's contention that the covenant to pay the insurance is an agreement to effect such insurance as shall be reasonably adequate to cover and to protect the lessor's reversionary | It follows that the requested rulings were refused rightly, and that the order dismissing the report should be affirmed. So ordered. HARTER v. BOARD OF COM'RS OF claim sued upon in this action; that on▬▬▬▬▬▬ day of April, 1915, at a regular meeting of said board of commissioners, said claim was (Appellate Court of Indiana, Division No.. 1. wholly disallowed. Whereupon he demands Nov. 28, 1916.) COURTS 220(4)-JURISDICTION OF APPELLATE COURT-TRANSFER TO SUPREME COURT. The court of appeals, being of the opinion that the decision in Roberts v. Board, etc., 54 Ind. App. 316, 99 N. E. 1015, determining that under Burns' Ann. St. 1914, § 7335, amounts allowed for mileage to sheriffs are not fees, but allowances for necessary expenses, is erroneous, and that a judgment following such decision should be reversed, not having power to do so, will transfer the case to the Supreme Court, with the recommendations under section 1394 as above stated. [Ed. Note.-For other cases, see Courts, Cent. Dig. 1292; Dec. Dig. 220(4).] Appeal from Circuit Court, Boone County; Willett H. Parr, Judge. Action by Samuel W. Harter against the Board of Commissioners of Boone County. From judgment adverse to plaintiff, on his refusal to plead further after demurrer to the complaint was sustained, he appeals. Case transferred to Supreme Court. L. Ert. Slack, Willis C. Nusbaum, and Miller & Dowling, all of Indianapolis, for appellant. Roy Adney, of Lebanon, for appellee. FELT, C. J. This was an action brought by appellant, a former sheriff of Boone county, Ind., against the board of commissioners of said county, to recover money collected by him as statutory mileage while serving as sheriff of that county. The complaint was in two paragraphs to each of which a demurrer was filed and sustained. Appellant refused to plead further, and judgment was thereupon duly rendered against him, from which he appealed. The error assigned and relied on for reversal is the sustaining of appellee's demurrer to each paragraph of the complaint. judgment for $543. The second paragraph is based on a claim of $83.50 for mileage alleged to be due him for summoning grand and petit juries. The demurrer was, for insufficiency of the facts, alleged to state a cause of action. The memoranda accompanying the demurrer states, in substance, that the complaint seeks to recover mileage fees, which, under the statute, are designated as "sheriff's costs," and belong to the county; that the appellate court has so decided in the case of Roberts v. Board, etc., 54 Ind. App. 316, 99 N. E. 1015. The assignment presents the question whether allowances for mileage of a sheriff authorized by the statute in connection with services performed by him as such officer belong to the county as pay for official duty performed or whether, when collected, such allowances may be retained by the officer as reimbursement for necessary expenses of travel expended by him while performing the duties of his office. The question has been before this court, and the conclusion reached that the amounts allowed for such mileage are not in fact, "sheriff's costs," or "fees provided by law on account of services performed by such officers," as designated in section 7335, Burns 1914, which belong to the county, but instead are allowances made to such officer to reimburse him for the necessary expenses of travel paid by him while performing the duties of his office, and therefore belong to him personally. While such was the conclusion of this court, the decision was to the contrary on the theory that the question had been settled by the Supreme Court contrary to such conclusion. Roberts v. Board of Commissioners, 54 Ind. App. 316324, 99 N. E. 1015. In the case of Roberts v. Board, etc., supra, Lairy, J., very clearly sets forth the views of this court, and cites authorities in support of the conclusion that mileage allowances, as such, are reimbursements for expenses of travel and are not fees or allowances which, under our statute, belong to the county. We here adopt the views there expressed, and cite the following additional authorities as throwing some light on the question involved. Campbell v. U. S., 65 Fed. 777, 13 C. C. A. 128; Wheeler v. Clinton Co., 92 Iowa, 44, 60 N. W. 207; Irvin v. County, etc., 63 Ill. 528; Crossen v. Earhart, 8 Or. 370373; Warner v. Fremont Co., 4 Idaho, 591, 43 Pac. 327; Richardson v. State ex rel., 66 Ohio St. 108, 63 N. E. 593, 594; Kirkwood v. Soto, 87 Cal. 394, 25 Pac. 488; Drexel v. Douglas Co., 62 Neb. 862, 87 N. W. 1053; Starr v. Board, etc., 40 Ind. App. 7-12, 76 N. E. 1025, 79 N. E. 390. The decision in the The gist of the first paragraph of the complaint is that appellant was duly elected and served as sheriff of Boone county, Ind., for two years from January 1, 1911; that in his quarterly report of fees, as such sheriff, through inadvertence and mistake, he paid into the treasury of the county the sums of money which had been charged and collected by him as such sheriff as statutory mileage in connection with the service of writs, summonses, subpoenas, venires, and notices, originating within Boone county, and served by him therein as such sheriff; that the money so paid over by him was his own individual property, under and by virtue of the statutes of the state of Indiana, an itemized account of which was made a part of the complaint as an exhibit; that on March 23, 1915, he filed with the auditor of Boone county his duly itemized and verified claim against appellee, which was the identical Roberts Case, supra, was based entirely For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-21 *Transferred to Supreme Court, 116 N. E. 304. question as to the construction of the will. upon the opinion in Smith v. State ex rel., [ who were given contingent remainders with the 169 Ind. 260, 82 N. E. 450. We have examined double aspect, where there was no debatable the record and briefs in the Smith Case, and find that the question of allowances for mileage was not involved. In that case the allegation considered states that the sheriff"procured allowances from the board of commissioners in the sum of $153.60 and drew the same from the treasury of said county for fees for posting election notices; that he drew all the same and all said sums in addition to his salary," etc. In the itemized bill of particulars filed with the complaint the several amounts, which together aggregated $153.60, were designated, "For election notices," and, "For posting election notices." The allegations very clearly showed the amounts there in controversy to be "fees, provided by law on account of services performed" by the sheriff, which belongs to the county. The question which was in fact in issue and actually decided by the court, therefore, was different from that involved in the opinion of this court written by Judge Lairy, and from the question in the case at bar. We therefore conclude that the decision in the case of Smith v. State ex rel., supra, was not decisive of the question presented in the case of Roberts v. Board, etc., supra, and that this court should not have held that it was, notwithstanding the opinion contains language which, on its face, seems to warrant the conclusion reached. In the view of this court the Smith Case can be distinguished from the Roberts Case and from the case at bar, and should not be held conclusive upon the question involved in the two latter cases. But the Supreme Court on February 19, 1913, denied a transfer (101 N. E. xxii) in the case of Roberts v. Board, etc., supra, and the opinion, therefore, has the effect of a decision of that court, as well as of the Appellate Court. It is the opinion of this court that the decision in Roberts v. Board, etc., should be overruled; that the case of Smith v. State ex rel., supra, should be distinguished, and the judgment in the case at bar be reversed, but, for the reasons stated, this court has not the power so to do. The case is therefore transferred to the Supreme Court under the provisions of section 1394, Burns 1914, with the recommendations above stated. (275 Ill. 573) MCCARTY et al. v. McCARTY et al. (No. 10852.) (Supreme Court of Illinois. Oct. 24, 1916. hearing Denied Dec. 14, 1916.) LIEF CONTINGENT REMAINDER. A bill to quiet title does not lie, where there is no one asserting a right adverse to complainants, though statements had been made by persons claiming no title that there were outstanding contingent remainders, since courts do not generally entertain suits to declare the rights of parties on a state of facts which has not arisen and may never arise. tle, Cent. Dig. § 4; Dec. Dig. 3. QUIETING TITLE 6.] 7(2) - "CLOUD ON TI A "cloud on title" is a claim which is apparently valid, but which may be removed by extrinsic evidence; so that a bill to remove a cloud does not lie where the only defect in the title plainant claims. appears on the face of the will under which com [Ed. Note.-For other cases, see Quieting Title, Cent. Dig. §§ 15, 18, 19, 21-23, 25; Dec. Dig. 7(2). First and Second Series, Cloud on Title.] 4. WILLS 705-VOID DECREE-CONSTRUC- A decree in equity construing a will is not void, although the jurisdiction was erroneously exercised, since equity always had power to con strue wills. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1682; Dec. Dig. 705.] Error to Circuit Court, Douglas County; Wm. K. Whitfield, Judge. Suit by Emma Y. McCarty and others against John Wesley McCarty and others to construe a will. From the decree, certain infant defendants, by their guardian ad litem, bring error. Reversed and remanded, with directions to dismiss. W. Thomas Coleman, of Tuscola, guardian ad litem, for plaintiffs in error. Edward C. Craig, Donald B. Craig, and James W. Craig, Jr., all of Mattoon, for defendants in error. CARTWRIGHT, J. Francis A. McCarty died in May, 1899, leaving Emma Y. McCarty, his widow, and John McCarty, William F. McCarty, Caroline McCarty, Laura F. McCarty, and Frances McCarty, his children and heirs at law. He left a last will and testament, by which he devised to his wife, Emma Y. McCarty, an estate in all his property, real and personal, during her life while she remained his widow, and provided that if she Re- should remarry the estate should be divided according to the statutes of descent; that if she died his widow the estate was then to be divided into the number of equal shares provided by the provisions of the will to be distributed among his five children as therein provided; and that if any of the children should die previous to the widow's death, 1. WILLS 695(2) CONSTRUCTION - JURISDICTION OF COURTS. Rev. St. c. 22, § 50, as amended in 1911 (Laws 1911, p. 253), giving courts of equity jurisdiction over bills to construe wills where no trust was involved, does not give such courts jurisdiction over a bill to determine the rights of the life tenant after purchasing the remainders leaving a child or children, the child's share vested in the children against the grandchildren, should go to such child or children. He |