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and of appearing either personally not through the laws of intestacy or as a or by delegate in their behalf in all proceed- part of the estate of the intestate, but ings relating to the settlement of their estate through their original right to them created until such heirs or representatives shall by the statute. A confirmation of the corthemselves appear

so far as com- rectness of such conclusion is contained in patible with local laws." The argument is, the provision that as to the countrymen of the right of “representing" is the right to do consuls who die at sea, the right of reprefor the represented persons whatsoever they sentation is not given unless the property of might have done for themselves, and the the deceased is brought into the consular clauses quoted contempiate a representation district. The existence of an estate of the without as well as with judicial proceedings. intestate in the consular district is the No legislative or judicial law of Russia or ground for the right to represent. The rethe state forbade the representation.

maining language of the treaty provision [15, 16] It is manifest that the language denotes that the intention of the governdoes not clearly and with certainty warrant ments was to provide by it for the safeguardthe application and effect given it by the ap-ing of the property and the settlement of the pellant. It is not clear that the language has estates of the citizens of either dying in the any application to the widow and children of country of the other or at sea. The lanthe intestate as the owners of the claim or guage has a completed purpose and effect if property, which is theirs not by devolution it be held to authorize the consular officers or succession and as a part of the estate of to act for the heirs, next of kin, or legal repthe intestate, but through original and pri- resentatives of their countrymen, of the demary ownership. Our inquiry, therefore, is scription set forth, in relation to their esas to what, in such respect, was intended in tates in instituting, appearing for, and parthe quoted language by the contracting gov

ticipating in their behalf in legal or other ernments, and in pursuing it we should

proceedings for the proper administration, adopt the same general rules, which are ap. This construction is further confirmed by

conserving, and guarding of the estates. plicable in the construction of statutes, con the fact that it harmonizes with the functracts, and written instruments generally. tions of consuls under the established interThe entire provisions of the treaty relevant national practice. Matter of D'Adamo, 212 to the inquiry are to be studied, the words used are to be given their natural and ordi- N. Y. 214, 106 N. E. 81, L. R. A. 1915D, 373. nary signification, a sensible and reasonable

[17] The construction urged by the appeleffect must be given unless the words forbid, lant is not reasonable. It would permit conand the cognate rules of international law sular officers to transfer, dispose of, or conand of the legislation of the government may vert into a different form the property of the be considered. Matter of D'Adamo, 212 N. absent, unknown, or minor heirs or next of Y. 214, 106 N. E. 81, L. R. A. 1915D, 373 ; kin of the citizens or subjects of their counUnited States v. Choctaw, etc., Nations, 179 try who shall die within their consular juU. S. 494, 21 Sup. Ct. 149, 45 L. Ed. 291 ; Col- risdiction. The vice consul effected such a lins v. O'Neil, 214 U. S. 113, 29 Sup. Ct. 573, result in the present case. The right of ac53 L Ed. 933; Geofroy v. Riggs, 133 U. s. tion was a property right of the beneficiaries 258, 10 Sup. Ct. 295, 33 L. Ed. 642. A care of it. Matter of Meekin v. Brooklyn H. R. R. ful reading of the provisions of the treaty Co., 164 N. Y. 145, 58 N. E. 50, 51 L. R. A. impels to the conclusion that the govern. 235, 79 Am. St. Rep. 635. The consul convertments contemplated the assured conserva

ed it into $400. The construction urged by tion, administration, and settlement of the the appellant would justify his act. There estates of the citizens of either who died in is no distinction between the property right the country of the other, or dying at sea, in question and the other property rights, if left property which was brought into the any, of the beneficiaries or those of others country of the other. It is the heirs, next of similarly situated which would guard them kin, or legal representatives of such citizens against the effect of such a construction. who are to be represented and represented The death of a fellow countryman of a conas such; that is, as having an ownership or sular officer within the consular district interest under the laws of intestacy in the es would place at the disposal of the officer the tate of the deceased. They are to be repre property of the absent, unknown, or minor sented as to such ownership or interest. The heirs and next of kin of the deceased. The widow and children in the case at bar are not treaty in question is one of many between the subjects of such a representation. While this and other countries containing identical the statute declares that the damages recov or equivalent language to which our deciered are exclusively for the benefit of the de- sion would be applicable. he language and cedent's husband or wife, and next of kin, the rules controlling its interpretation forbid the denomination “next of kin" in connection the construction given by the appellant. with the preceding designation is merely a There is no meritorious exception on the convenient means of designating, comprehen- part of the appellant to the rulings of the sively and definitely, the distributees of the trial justice in admitting or rejecting evi. damages recovered. The damages are theirs, I dence.

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The Judgment should be affirmed, with CARDOZO, J. The determination of this costs.

appeal requires us to construe the will and

codicil of Alice V. Leavitt. The will was WILLARD BARTLETT, O. J., and HIS- made in 1908. It gave to a friend, Mrs. Roy COCK, CHASE, HOGAN, CARDOZO, and Johnston, a legacy of jewelry. It then creatPOUND, JJ., concur.

ed a trust for the annual payment of $600

to a brother for Ufe, with remainder to charJudgment attirmed.

ities. The subject of this trust is described

by the testatrix as "the 30 shares of stock (219 N. Y. 263)

of the Standard Oil Company owned by me." In re BRANN.

These shares then constituted the bulk of her

estate. All the rest, residue, and remainder Appeal of JOHNSTON.

of the estate, “including any legacy which (Court of Appeals of New York. Nov. 21, 1916.) may lapse or be void,” she gave to her friend,


The brother died in April, 1911. In DeA specific legacy will be construed in the cember of the same year, the Standard Oil light of the circumstances existing when it was

Company of New Jersey distributed among made.

[Ed. Note.-For other cases, see Wills, Cent. its stockholders the shares which it held Dig. $8 1939–1944; Dec. Dig. Om753.) in a large number of subsidiary oil com2. WILLS 587(1)–CONSTRUCTION-SPECIFIO panies. It did this under the compulsion of LEGACY-CORPORATE STOCK.

a decree of the United States Supreme Court Where a testator specifically bequeathed cer- by which it was required to dispose of its tain corporate stock, and subsequent to the ex: ecution of the will the corporation, as required holdings in corporations under its control. by a decree of the United States Supreme Court, The decree did not compel it to distribute the distributed the stock of subsidiary corporations holdings among its own stockholders. It owned by it among its stockholders, the stock so distributed is not to be treated as the orig-might have sold the shares and distributed inal stock under a different form, but as in effect the money, or even kept the money in its a stock dividend of the corporation, and, by anal treasury. It elected, however, to distribute ogy to the rules of ademption, passes to the the shares in kind. At that time, the testaresiduary legatee.

She con(Ed. Note. - For other cases, see Wills, Cent. tris still owned her 30 shares. Dig. 88 1279, 1285–1287 ; Dec. Dig. 587(1).) tinued to own them till her death. But by 3. WILLS 587(1)–CONSTRUCTION-SPECIFIC force of the distribution under the decree,

LEGACY COMPULSOBY DISTRIBUTION OF there came to her, in addition, shares in 39 STOCK.

The fact that the corporation was compelled subsidiary companies, which today are to distribute its stock does not affect the rule, worth more than the shares in the parent since ademption depends only on the fact of the

company. There came to her also at the change, not on the intention with which it was made.

same tiine some warrants for subscription [Ed. Note.-For other cases, see Wills, Cent. rights. Dig. 88 1279, 1285–1287; Dec. Dig. 587(1).) Nine months after this distribution, in 4. WILLS Om587(1)–CONSTRUCTION-SPECIFTO September, 1912, the testatrix made a codi. LEGACY-CODICIL,

cil. Her brother was then dead, the shares That construction of the will is confirmed by of the subsidiary companies were already the fact that after the distribution of the stock, and after the death of the person to whom an in her hands, and what she did and omitted annuity was to be paid from the bequest during to do must be viewed in the light of those his life, testatrix executed a codicil in which she conditions. By the codicil she gave money made certain additional legacies, which must fail it the distributed shares passed under this legacies aggregating $1,700 to friends and specific legacy, and made no change in the spe- charities. She also disposed of a picture. cific legacy.

"In all other respects,” she said, “I do here [Ed. Note: --For other cases, see Wills, Cent, by ratify and confirm my said will." Three Dig. 88 1279, 1285–1287; Dec. Dig. Om 587(1).]

months later she died. Appeal from Supreme Court, Appellate [1,2] The question is whether the shares Division, First Department.

in the 39 subsidiary companies pass as part Proceedings for the judicial settlement of of the original shares, or stand separate and the account of John A. Brann, as sole sur- by themselves, and pass to the residuary viving executor of the last will and testa- legatee. We think, in accord with the jusment of Alice Victorine Leavitt, deceased. tices who dissented at the Appellate Division, An order of the surrogate construing the will that the residuary legatee must be held to and directing a distribution was affirmed by have the better right. It is true that the gift the Appellate Division (171 App. Div. 800, of the 30 shares is a specific legacy, and that 157 N. Y. Supp. 756), and Bessie R. Johns-a pecific legacy will be construed in the ton appeals. Reversed and remitted.

light of the situation existing when it was George H. Richards, of New York City, made. Matter of Delaney, 133 App. Div. 409, for appellant. Joseph Fennelly, Joseph H. 117 N. Y. Supp. 838; 196 N. Y. 530, 89 N. E. Fargis, and William C. Orr, all of New York 1098. But it is also true that unless the subCity, for respondents.

ject of a specific legacy exists, unchanged

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in substance, at the date of the will, there she made no change in her description of the results an ademption, complete or partial trust. The trust was still to be the 30 shares according to the facts. In strictness, there and nothing else. Knowing the form of her has been in this case no ademption at all, investments, she reafirmed her purpose. for the 30 shares, which were the subject of Then, if not before, the gift ceased to be inthe legacy, exist; but since the subsidiary definite. shares, while held by the parent company, We have spoken of the changes which the belped to give the primary shares their val- codicil failed to make. The changes that it de, the analogy of ademption becomes use did make point in the same direction. It ful. Slater v. Slater, (1907] 1 Ch. 665, states added money legacies of $1,700. If the subthe controlling principle, and applies it to a sidlary shares pass with the primary shares, situation similar to the one at hand. The these legacies must fail, because there is principle is that a change in the nature of then nothing out of which to pay them. The the property works an ademption unless it is argument is made that the testatrix expecta change “in name or form only." Slater ved them to be paid out of the subscription Slater, supra, at pages 671, 672, quoting warrants, which came to her with the sub Oakes v. Oakes, 9 Hare, 666, 672. See, also, sidiary shares at the time of distribution. Norris v. Harrison, 2 Maddocks, 268. It may It happens that the shares received under be that where the change is merely formal, these warrants are worth about $2,000. In as where a company is reorganized and there the mind of the testatrix, the subsidiary is a reissue of the shares, the identity of shares, it is said, were part of the 30 shares; the gift will be held to be substantially pre but the subscription warrants and the shares served (Mallan v. McFe, (1912] 1 Ch. 29; acquired thereunder, though fruits of the Turner v. Leeming, (1912] 1 Ch. 828), but same distribution, were not part of the 30 that is not this case. Here the original shares. There is nothing to suggest a beshares remain intact, and there is no contest let that she drew these nice distinctions. about them. The new shares are, in effect, Only by the merest guesswork can we read an extraordinary dividend declared during that meaning into the will. the life of the testatrix. Brundage v. Brun The value of the subsidiary shares is made dage, 60 N. Y. 544; Equitable Life Assurance the basis of another and more forceful arguSociety v. Union Pacific R. R. Co., 212 N. Y. ment. Their value, it is said, is so great that 360, 106 N. E. 92, L. R. A. 1915D, 1052. The the testatrix cannot have expected them to case stands the same as if the Standard Oil pass under a residuary clause which, at the Company had sold the shares, and distribut time of the will, carried nothing of substaned the proceeds. It is hardly denied that tial value. But the argument, though plaus. a voluntary dividend, whether paid in money ible, is, we think, unsound. The 30 shares or in stock, would be separate from the pri- remain of large value. They were worth mary shares.

$625 a share ($18,750 in all) before the ex[3] The argument is that a different rule traordinary dividend. They were worth $420 is applicable here because the dividend was

a share ($12,600 in all) at the death of the compulsory. But the suggested distinction

testatris. It is true that the subsidiary is inadequate. It was once thought that shares are now worth about $20,000, but it ademption was dependent on intention, and does not appear that they were known to "4t was, therefore, held in old days that have such value at the time of distribution. when a change was effected by public au. But, if their value had been known, the rethority, or without the will of the testator, sult would be the same. Between the date ademption did not follow. But for many of the will and the date of the extraordiyears, that has ceased to be law.” Slater nary dividend, the brother of the testatrix, V. Slater, supra, at page 671. It has ceased the life beneficiary of the trust, had died. to be law in England. Jarman, p. 163; Slater It may well be that after his death she felt v. Slater, supra. It has ceased to be law in that the primary 30 shares would be sufNew York. Ametrano v. Downs, 170 N. Y. Acient for the charities. She had said what 388, 63 N. E. 340, 58 L. R. A. 719, 88 Am. should happen to any residue of her estate, St. Rep. 671. What courts look to now is the and she must have felt secure in the belief fact of change. That ascertained, they do not trouble themselves about the reason for that the direction would be looked upon as the change. We cannot find substantial something more than an idle form. We canidentity between this extraordinary dividend not know what effect her brother's death and and the shares from which they came.

other new conditions may have had upon her [4] That conclusion, if it could otherwise mind. It is a fallacious argument which be thought doubtful, is made certain by the would have us say that, because there was no codicil. The effect of a codicil is to repub residue when the will was made, we must lish the will and make it speak again from construe it in such way as to make it imthe new date. Matter of Campbell, 170 N. possible that there should ever be a residue. Y. 84, 87, 62 N. E. 1070. At the date of this It was to provide against the contingency of codicil, the testatrix had received the sub-a possible residue that the residuary clause sidiary shares. She made no change, how. was framed. The opportunity to change it ever, in the gift of her residuary estate. was given when a codicil was signed; and

with knowledge of the condition of the es- and judgment for damages against appellant tate, the clause was left the same. Our duty for $7,000, as compensation for the use apis to give effect to it according to its terms. propriated. From such judgment this appeal We are not to cut it down because of sus- is prosecuted. picions, impossible to verify, that the testa Since the judgment here rests solely on the trix may have failed to appreciate its scope. basis of the interlocutory order of condemnaTo do that is to break down the safeguards tion and appointment of appraisers, it fol. which the law throws around a will.

lows that the reversal of that order by this The order should be reversed, with costs court requires the reversal of the judgment to the appellant in all courts, payable out of here in question. the estate, and the case remitted to the sur Judgment reversed, with instructions to rogate for further proceedings in accordo sustain appellant's motion for a new trial. ance with this opinion.



SPRINGS. (No. 22990.) BARTLETT, C. J., absent.

(Supreme Court of Indiana. Dec. 13, 1916.) Order reversed, etc.

Appeal from Circuit Court, Henry County; Willis S. Ellis, Judge.

Suit by John A. Baker and others against the (185 Ind. 690)

Town of Sulphur Springs. From an adverse WESTERN UNION TEL. CO. V. LOUIS- judgment, plaintiffs appeal. Affirmed. VILLE & N. R. CO. et al. (No. 22908.)

Forkner & Forkner, of New Castle, for appel

lants. Barnard & Brown, of New Castle, for (Supreme Court of Indiana. Dec. 14, 1916.) appellee. APPEAL AND ERROR 1180(2)–REVERSAL


consideration the same questions of law which FECT.

A judgment, in condemnation proceedings were passed on by this court in the case of after trial by jury on exceptions to report of Haskett v. Town of Sulphur Springs, 114 N. E.

33, and there decided adversely to the contenappraisers rests on the interlocutory order ap: pointing the appraisers, and must be reversed tion of appellants herein. On the authority of where that order had been reversed.

that decision, the judgment of the trial court

in this case must be, and is, affirmed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88, 4627-4629, 4658, 4659; Dec. Dig. Om1180(2).]

(185 Ind. 675) Appeal from Circuit Court, Posey County; PRINCETON COAL CO. V. FETTINGER. Herdis Clements, Judge.

(No. 22891.) Condemnation proceedings by the Western (Supreme Court of Indiana. Dec. 12, 1916.) Union Telegraph Company against the Louis

MASTER AND SERVANT Om12-REGULATIONS ville & Nashville Railroad Company and oth

-MINERS' WASHROOM LAW-CONSTBUCTION. From a judgment assessing the dam Miners' Washroom Law (Burns' Ann. St. ages, the plaintiff appeals. Reversed, with 1914, § 8623), containing proviso that the eminstructions to sustain motion for new trial. ployer shall not be required to furnish soap or

towels, thereby, inferentially requires the mine Pickens, Moores, Davidson & Pickens, of owner to furnish all other things essential to Indianapolis, J. E. Williamson, of Evansville, the equipment and maintenance of the washand Albert T. Benedict, of New York City, mentioned it is to the exclusion of all others.

room, under the rule that where one thing is for appellant. Philip W. Frey, of Evans

[Ed. Note.-For other cases, see Master and ville, for appellees.

Servant, Dec. Dig. Om 12.] MORRIS, J. Appellee owns a railroad

Appeal from Circuit Court, Pike County, right of way in Posey county. Appellant

John L. Bretz, Judge.

On rehearing. telegraph company instituted a condemnation proceeding to acquire a right of way for its

For former opinion, see 113 N. E. 236. telegraph line over and upon the right of Embree & Embree, of Princeton, for apway of appellee. There was a hearing, and pellant. Oscar Lanphar, of Princeton, for an interlocutory order was made, granting appellee. the prayer of petitioner for the condemnation and appointing appraisers. From such order ERWIN, J. It is insisted by appellant an appeal was taken by appellee, resulting in that the court erred in declaring that the a reversal of the interlocutory order ap-construction of the statute was not in issue, pointing appraisers. Louisville, etc., R. Co. v. and in not deciding that question in the Western Union Telegraph Co. (1916) 111 N. original opinion. We are of the opinion that E. 802; section 933, Burns 1914. In the the statute was too plain to even suggest meantime the appointed appraisers reported to any one reading the same that there could appellee's damages, and appellant excepted to be any doubt as to its meaning. The act in such report. Section 936, Burns 1914. Aquestion after providing that washrooms trial on the exceptions resulted in a verdict) should be erected by the coal companies, and


providing how the same should be equipped, cause the deed contains a recital which makes follows with this statement:

it ineffective. "That said building or room shall be a sepa

[Ed. Note.-For other cases, see Pleading, rate building or room from the engine or boiler Cent. Dig. $$ 345, 944, 946, 947; Dec. Dig. room and shall be maintained in good order, be 310.] properly lighted and heated, and be supplied with clean cold and warm water, and shall be

Appeal from Circuit Court, Wabash Counprovided with all necessary facilities for per-ty; Alfred H. Plummer, Judge. sons to wash, and also provided with suitable Action by Hiram Harger and wife against lockers for the safe-keeping of clothing; pro- Florence B. Warner, for partition. A judgvided however, that the owner, operator, les.see, superintendent of or other person in charge ment for defendant on demurrer to plaintiffs' of such mine or place aforesaid shall not be re- complaint was sustained on appeal to Appelquired to furnish soap or towels."

late Court (112 N. E. 545), and the case The question as far as the legal aspect of thereafter transferred from the Appellate the cases are concerned, is the same in this Court under section 1394, Burns' Ann. St. case as in the Booth Case, 179 Ind. 405, 100 1914. Judgment reversed, with instructions N. E. 563, L. R. A. 1915B, 420, Ann. Cas.

to overrule demurrer. 1915D, 987, for there can be no difference,

Walter G. Todd and Franklin W. Plumas far as the legal principle is concerned, in mer, both of Wabash, for appellants. D. F. a case requiring the equipment and main-Brooks, of Wabash, for appellee. tenance of a washroom than one requiring the erection of one; each rests upon the au

SPENCER, J. This is an action by apthority of the lawmaking body to require it pellants, as husband and wife, as the ownto be done. Hence we said in the original ers by entireties of an undivided one half opinion in this case that all questions had of certain real estate, against appellee as been disposed of in the Booth Case.

the owner of the other undivided half, for An examination of the law will disclose partition thereof. The sole question presentthat the proviso to the section, which ex

ed for our consideration is the sufficiency cuses the mine owner from furnishing soap want of facts. After reciting that the own

of the complaint as against demurrer for and towels, could have but one inference,

ership as between appellants and appellee and that is that all other things essential to the equipment and maintenance of the wash- leges that the real estate sought to be par.

was as tenants in common, the complaint alroom should be furnished by the mine own- titioned was owned by one Abraham Peters,

It is a fundamental rule in construc- since deceased; that a copy of his will is tion of statutes that where one thing is men- filed therewith, marked “Exhibit A”; that tioned it is to the exclusion of all others. after said Peters departed this life, an unBroom Max., 651, 664; State v. Patterson, divided one-half thereof was owned by his 181 Ind. 660, 664, 105 N. E. 228.

widow, Mary, who "conveyed to these plainIt is equally true that where, as in this tiff's the undivided one-half of said real case, the statute excepts from the things to estate by warranty deed, a copy of wbich be furnished in the maintenance of the wash- deed is hereto attached, marked 'Exhibit room, viz. soap and towels, all things neces- B,' and made a part hereof.” Such "Exhibit sary to its proper equipment and mainte-B,” being dated in 1907, contains this clause: nance other than those mentioned in the ex

“The above deed shall be delivered to the said ception shall be furnished by the mining Hiram or Rosa Harger at the death of said company. This is the only logical conclu- Mary Ann Peters.' sion that can be deduced from the language The complaint further alleges that Mary of the statute. Broom's Maxims, p. 666. Ann Peters died in 1914, and before the

The provision that the washroom shall be bringing of the action. maintained by the company is no more in The ruling of the trial court in sustainconflict with the Constitution than that part ing the demurrer to the complaint must have requiring that it should be built by it. The been based on the exhibits, and particularly constitutionality of the act was determined on the theory that the general allegations in Booth v. State, supra.

of ownership and derivation of title by deed The petition for rehearing is overruled. were overcome by the quoted clause of Ex

bibit B, relating to the delivery of the deed

after the death of the grantor. While it (185 Ind. 691) HARGER et ux, v. WARNER. (No. 23189.) in the lifetime of the grantor, is ineffective,

is correct to say that a deed, not delivered (Supreme Court of Indiana. Dec. 14, 1916.) in this case neither the deed nor the will PLEADING Omn310EXHIBITS-INSTRUMENTS

was the foundation of appellants' action, and SHOWING TITLE.

neither was a proper exhibit to the comIn a suit for partition, a will and a deed plaint, nor subject to consideration in deterthrough which plaintiffs derived title are not mining the complaint's sufficiency. Shetterly proper exhibits to the complaint, and cannot be considered in determining its sufficiency, since

V. Axt, 37 Ind. App. 687, 76 N. E. 901, 77 neither is the foundation of the action, and N. E. 865; O'Mara v. McCarthy, 45 Ind. App. therefore the complaint is not insufficient be- 1 147, 90 N. E. 330. Disregarding, as we must,


ouw For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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