payment of such expenses and the life ten-13. APPEAL AND ERROR 1067 HARMLESS ant receive nothing. Stone v. Littlefield, 151 ERROR-INSTRUCTIONS. Mass. 485, 24 N. E. 592; Edwards v. Edwards, 183 Mass. 581, 67 N. E. 658; Jordan v. Jordan, 192 Mass. 337, 78 N. E. 459. [4] It is agreed that the proceeds of sales of other parcels of unproductive real estate sold before the death of the widow were apportioned between principal and income in accordance with the rule as above stated. While such an apportionment between income and principal of the proceeds of the sale of the real estate in question undoubtedly could have been properly made during the lifetime of the widow, we are of opinion that such a division ought not to be so made at this time-after her decease. The sale was not made until after her death; consequently, the fund did not come into existence until after that date and until all her rights under the trust had ceased. At the time when the fund was created, she had no beneficial interest in the trust. The case of Richardson v. Hall, 124 Mass. 228, upon which the appellant relies, is plainly distinguishable from the case at bar. In that case the testator gave to his widow an annuity which was held to have become vested in her and that her administrator was entitled to receive any balance thereof due and unpaid. In the case at bar the proceeds of the sale never became vested in Mrs. Thompson. Whether the expenses incurred in the maintenance and sale could have been properly deducted from the principal of the fund during the lifetime of the widow need not be decided. See Edwards v. Edwards, ubi su pra. The decree of the probate court must be affirmed. Ordered accordingly. (226 Mass. 10) VIKING MFG. CO. v. SMITH. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 22, 1917.) 1. BROKERS 88(2)-ACTION FOR COMPENSATION-SALE BY PRINCIPAL. In action by plaintiff to recover commission for sale of auto truck which defendant had authorized him to sell, but had later sold same himself to a party to whom plaintiff had sold the truck, an instruction that to recover plaintiff must prove that his services were the predominating, efficient cause of the sale was proper. [Ed. Note. For other cases, see Brokers, Cent. Dig. 88 128, 129; Dec. Dig. 88(2).j 2. TRIAL 253(10) — INSTRUCTIONS- EVIDENCE-ACTION FOR COMPENSATION. Where the jury was warranted in finding that defendant, through his son as agent, undertook to confer exclusive right of sale of an auto truck upon plaintiff, and that the son had authority to make the agreement, an instruction that there was no evidence of such authorization was properly refused. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 621, 622; Dec. 253(10).] Where the judge, manifestly through inadvertence, omitted an instruction offered to the jury, and the defendant suffered no legal harm thereby, there was no reversible error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. 1067; 4. APPEAL AND ERROR Trial, Cent. Dig. § 475.] 1068(1)—HARMLESS ERROR-INSTRUCTIONS REFUSED. Where it is apparent from the verdict that plaintiff was not injured by refusal to give no reversible certain instructions, there was error in such refusal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4225; Dec. Dig. Omn 1068(1); Trial, Cent. Dig. 88 475, 525, 526, 553.] Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge. Action by the Viking Manufacturing Company against Fred M. Smith. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled. Whipple, Sears & Ogden, of Boston, for plaintiff. Harry I. Cummings, of Boston, for defendant. PIERCE, J. The defendant admitted that his son, with his authority, placed an auto truck with the plaintiff for sale on condition that he should get $4,000 net and the plainthe sale of the truck. In the absence of the tiff have all it could get over that sum for agent in charge of the place of business of the plaintiff, and without his consent, the defendant removed the truck from the shop of the plaintiff and sold it to the Everett Distilling Company for $4,500. There was evidence tending to show that the agent of the plaintiff, before the truck was taken away and sold by the defendant, had shown the truck to the agents of the Everett Distilling Company; that he took them out in it "for a demonstration," talking the merits of the truck for an hour and a half; that he "talked the truck up in good shape"; that he named the price and sold the car to them for $5,200, less $300 allowed for equipment. The declaration is in two counts for the same cause of action: The first, setting out in substance the agreement, a sale to the Everett Distilling Company and a consequent indebtedness of $900 to the plaintiff; the second count is an account annexed claiming to recover $900. [1] At the close of the evidence the defendant requested the judge to rule and to instruct the jury: "(4) On all the evidence the plaintiff was not the efficient cause of the sale of said truck." This request the judge refused to give, and the defendant excepted. Upon the issue of efficient cause, the judge, after stating: "That if a person places property in the hands of another for sale, and that person procures a purchaser who is ready to take the property on the terms stated he then has earn For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ed his commission, he has earned his compensation, and the owner of the property cannot take it out of the hands of the broker or agent and thereby deprive him of his commission; but if, while it is in the hands of the broker or agent for sale the owner of the property sees fit to take it out of his hands, he has a perfect right to do so provided he does it in good faith, and provided he does not intend to take advantage in any way of the work the broker has done and make a sale of the property to a party with whom the broker may have had negotiations. A person owning property may, of course, put it into the hands of a broker or agent to sell and give him the exclusive right to sell. If he does that, then the owner himself has no right to make a sale, and if after leaving it with the broker he did make a sale the broker would be entitled to make the sale and have the benefits; but in the absence of any exclusive right, the owner of the property may sell the property if he can, and if the sale was made without any intervention or assistance or help on the part of the broker, of course the owner of the property would not be obliged to pay any commission," instructed the jury: "Now, those are the principles of law which underlie this case, which resolves itself into a question of fact as to whether the plaintiff in this case who, perhaps, may be referred to as a broker, did, in point of fact, deal with the purchaser of this property, and whether that dealing was the efficient cause of bringing about the sale? If it was, then he is entitled to his compensation. If the sale was made without him and he was not the efficient cause of bringing about the sale, then the defendant is entitled to a verdict, and the plaintiff would be entitled to recover nothing." The instructions made clear to the jury that to recover, the plaintiff must prove that its services were the really effective means, the predominating efficient cause, of bringing about the sale. Whitcomb v. Bacon, 170 Mass. 479, 49 N. E. 742, 64 Am. St. Rep. 317; French v. McKay, 181 Mass. 485, 63 N. E. 1068; Cohen v. Ames, 205 Mass. 186, 91 N. E. 212. Harrigan v. Dodge, 216 Mass. 461, 103 N. E. 919); that a special agent cannot bind his principal by acts beyond the scope of the authority actually given the agent; that persons dealing with a special agent act at their peril as to the extent of his authority (Snow v. Perry, 9 Pick. 539; Mussey v. Beecher, 3 Cush. 511; Stollenwerck v. Thatcher, 115 Mass. 224; Norton v. Nevills, 174 Mass. 243, 54 N. E. 537); and that a special agent cannot enlarge his authority by his own statement so as to bind his principal (Stollenwerck V. Thatcher, supra). These rules are inapplicable where, as in the case at bar, the jury were warranted if it believed the testimony, in finding that the agent of the defendant undertook to confer an exclusive right; and if it disbelieved the testimony of the principal and agent, in finding that the agent had the authority of his principal and acting under it made the exclusive agreement with the person asserting rights under it. was not [3] The request to rule that "the receipt given by the plaintiff [in the form requested by the defendant] dated August 5, 1913, is not evidence that the plaintiff was given the exclusive sale given, although the judge stated he should do SO. This was manifestly an inadvertence; but as the defendant was not entitled to the opinion of the judge upon the effect to be given to a part of the testimony without relation to its setting, the defendant suffered no legal harm. Grier v. Guarino, 214 Mass. 411, 101 N. E. 981; Nicholson v. Feindel, 219 Mass. 490, 107 N. E. 353. [4] To find for the plaintiff as it did, the jury under the above-quoted instructions must have found that the efforts of the plaintiff were the efficient and predominant cause of the sale. It follows that the defendant was not harmed if it be true, as he contends, that "the entire matter of the alleged exclusive agency was not adequately dealt with by the court." [2] The defendant now waives this exception and contends that his request, “(2) There is no evidence that the defendant authorized the employment of the plaintiff as his exThe rule as to damages was correctly givclusive agent in the sale of the truck in en by the judge and we find no error in his question," should have been given. This re-treatment of this issue. Tanguey v. Sullivan, quest, and those numbered "3" and "6," undoubtedly are founded upon the propositions that the son of the defendant, Harold Smith, was an agent of special and limited authority (Coddington v. Goddard, 16 Gray, 445; 163 Mass. 166, 39 N. E. 799. We have examined every complaint presented in the brief of the defendant and find no reversible error. Exceptions overruled. (186 Ind. 38) VOYLES et al. v. HINDS. (No. 23005.) (Supreme Court of Indiana. Jan. 25, 1917.) 1. WILLS 270, 277-Probate-OBJECTIONS -COMPLAINT AND NOTICES. Failure of one after filing, in the clerk of court's office, objections to probate of will to file a formal complaint in the circuit court, contesting the validity of the will, as provided by Burns' Ann. St. 1914, § 3154, and to give notices required by section 3156, leaves the court without jurisdiction to render judgment in the proceeding. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 632-635; Dec. Dig. 270, 277.] 2. WILLS 277-PROBATE - OBJECTIONS COMPLAINT. The complaint which Burns' Ann. St. 1914, § 3154, provides that an objector to probate of a will shall file should contain the formal requisites of a complaint as prescribed by section 343. [Ed. Note.-For other cases, see Wills, Cent. Dig. $$ 632-635; Dec. Dig. 277.] 3. PLEADING 46-COMPLAINT - NAMES OF PARTIES. Under Burns' Ann. St. 1914, § 343, providing that a complaint shall contain the title of the cause and the name of the parties, the names of the parties, being given in the caption, need not be repeated in the body of the pleading. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 101-103; Dec. Dig. 46.] 4. WILLS 277-PROBATE-OBJECTIONS AND COMPLAINT. Objections to probate of will filed with the clerk of court under Burns' Ann. St. 1914, § 3153, merely prevent probate before the clerk, and require him to continue it till the succeeding term, and at such term become functus officio, and do not constitute the complaint required by section 3154. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 632-635; Dec. Dig. 277.] 5. INFANTS 80(2)-ACTIONS-GUARDIAN AD LITEM-WILL CONTEST. Service not being had, as required by Burns' Ann. St. 1914, § 3156, on infant defendants in proceeding to resist probate of and contest a will, the court has no jurisdiction of their persons, and so cannot appoint a guardian ad litem for them. [Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 213, 214; Dec. Dig. 80(2).] Appeal from Circuit Court, Washington County; Wm. H. Paynter, Judge. Proceeding by Jennie Voyles and another vacation. On the same date appellee filed written objections to the probate of said will, which objections were to the effect that said pretended will was unduly executed, was obtained by undue influence, and that said Amanda J. Hinds was, at the time of the attempted execution of said will, of unsound mind. The will disclosed a large number of beneficiaries, and named one Logan Clark as executor. At the October term of the Washington circuit court it appears from the record that this proceeding was brought into the circuit court by being placed on the docket of said court and entitled "Jennie Voyles, Stella Short, et al. v. Probate of Will, No. 7016, Estate of Amanda J. Hinds, Deceased." On November 14, 1914, under the foregoing title we find the entry, "Said cause is set for trial January 25, 1915," and again, under the same title, we find the entry, "Set for trial March 22, 1915." No formal complaint was filed to resist the probate of the will. No person or persons were made defendants to any petition objecting to the probate of the will. No notice of any kind was served upon any of the parties named in the will as beneficiaries, nor upon the party named as executor therein. On March 22, 1915, the case was called for trial, and a jury was called to hear the cause. It was then suggested to the court that five of the parties named as beneficiaries under the will were minors, under the age of 21 years, and nonresidents of the state, whereupon the court appointed one James C. Berkey, one of the appellants herein, guardian ad litem for said minors. This guardian ad litem called the court's attention to the fact that no complaint was on file, except the objections to the probate of the will filed in the clerk's office in vacation, that no citation had issued to his wards or to other beneficiaries under the will, and moved to strike out the objections of John Milton Hinds. All of the adult beneficiaries appeared by counsel and objected to being compelled to go to trial without a forissued thereon at least 14 days before the mal complaint being filed and citation being day of trial, and proof of publication of no to probate the will of Amanda J. Hinds, de- tice to nonresidents, and moved to strike out ceased, and John Milton Hinds filed objec-appellee's objections to the probate of the tions. From judgment holding the will invalid, proponents appeal. Reversed, with instructions. James G. Berkey, James M. Fippen, and Mitchell & Mitchell, all of Salem, for appellants. W. W. Hottel and Elliott & Houston, all of Salem, for appellee. ERWIN, J. On September 19, 1914, Jennie Voyles and Stella Short filed in the office of the clerk of the circuit court of Washington county what purported to be the last will and testament of Amanda J. Hinds, and asked that the same be admitted to probate. This was at a time when the circuit court was in will. These objections and the motion to strike out were each overruled, and appellants excepted. Trial was had by jury, and a verdict returned, to the effect that the pretended will was invalid and should not be admitted to probate. On this verdict the court entered judgment against all parties named as beneficiaries in the will, including said minors. Motion for new trial was filed by appellants and overruled by the court, and appeal prayed to this court. Appellants contend that the court has no power to hear and determine the validity of the will, or enter judgment denying probate, without a formal complaint making all parties interested in said will, including the ex For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ecutor named therein, parties to the action, and proper notices given at least 14 days before the day of trial, and as to all nonresidents notice by publication for three weeks, 30 days before the day of trial. Appellee contends that no formal complaint is necessary, and that the objections filed in the clerk's office to the probate of the will is all the complaint required, and that no notice to any of the beneficiaries is necessary, but that all parties are bound to take notice that such objections have been filed. Appellee cites in support of this proposition the cases of Steinkuehler v. Wempner, 169 Ind. 154, 81 N. E. 482, 15 L. R. A. (N. S.) 673, Hoffbauer v. Morgan, 172 Ind. 273, 88 N. E. 337, and Harbison v. Boyd, 177 Ind. 267, 96 N. E. 587. In each of those cases it does not affirmatively appear that a formal complaint was filed, but there is no holding in either of those cases that a formal complaint was not necessary. In fact that question was not in either of those cases, and as there was no contention in regard to the complaint, the same was not referred to specifically. The fact is that in each of those cases a formal complaint was filed with parties plaintiff and defendant, and proper notices issued. In Faylor v. Fehler, 181 Ind. 441, 451, 104 N. E. 22, 26, this court after citing several decisions of this court, said: "The construction deducible from these cases seems to be: (1) That the preliminary objections which will arrest probate until the next term of court must, at or before that time, be followed by a formal complaint in resistance of probate; (2) that such formal complaint must name as defendants the executor, and all persons beneficially interested, who do not join as plaintiffs or contestants, and that citation must issue for the defendants unless they voluntarily appear, and this appears to us to be the orderly and correct practice." In Fillinger v. Conley, 163 Ind. 584, this court, on page 587, 72 N. E. 597, on page 598, said: "The proceeding before the clerk is necessarily ex parte. On the other hand, it is clear that the proceeding before the court was intended to be of an adversary character, and that the party who unsuccessfully resisted the probate should be estopped by the judgment from contesting the will. Duckworth v. Hibbs (1871) 38 Ind. 78. To this end there must be a party or parties defendant, an issue, and a judgment." Section 3153, Burns 1914; section 2765, Burns 1901, provides for the probate of a will before the clerk, and stipulates that where objections are filed with the clerk, "he shall continue the same until the succeeding term of the court, when, if the person contesting such will fails to resist the probate thereof, the judge of such court may admit such will to probate." We are of the opinion that the failure of appellee to file a formal complaint in the circuit court, contesting the validity of the will and the giving of the notices required by section 3156, supra, left the court without jurisdiction to render judgment in this proceeding. [2] By a formal complaint is meant that a pleading shall be filed, stating the title of the cause, specifying the name of the court and county in which the action is brought, the names of the parties to the action, plaintiff and defendant. Section 343, Burns 1914. [3] But where the names of the parties are given in the caption of a pleading, such names need not be repeated in the body of the pleading. Cosby v. Powers, 137 Ind. 694, 37 N. E. 321. [4] The objections to the probate of the will filed with the clerk had the effect to prevent the probate of such will before the clerk, and to require him to continue the probate of the will until the succeeding term of court. Prebster v. Henderson, 113 N. E. 241, decided June 27, 1916. At the next succeeding term of court the objections to the probate of the will filed with the clerk became functus officio, and had no place in the pleadings in the case, and did not constitute a complaint as contemplated by section 3154, Burns 1914. The [5] Appellants insist, further, that the court had no authority to appoint a guardian ad litem for the minors in this case. record does not show any service upon the infant defendants; in fact it is admitted that no service was had upon any of them or others. The court had no jurisdiction of their persons, and was not authorized to appoint a guardian ad litem for them. Roy et al. v. Rowe (1883) 90 Ind. 54. For the reasons herein assigned, the judgment must be reversed, which is accordingly ordered, with instructions to the court below to grant a new trial and vacate the judgment entered. If the language, the publication of which is [1] Section 3154, Burns 1914, makes pro-admitted, is not libelous per se upon a court, if vision as to complaint and the necessary it does not show on its face that it was intendaverments thereof, and as to who shall ed to apply to the court, and innuendoes are rebe made parties. Section 3156, Burns 1914, quired to show such application, or if it is fairly susceptible of an innocent meaning so far as the provides for the service of citation upon all court is concerned, defendant, charged with an defendants, and when hearing may be had. indirect contempt in its publication, may, by a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sworn answer, explain his language by showing that he used it in a sense not libelous, and declare that he did not intend to impugn the motives or integrity of the court, or to interfere with or embarrass its proceedings, and such answer must be taken as conclusive. [Ed. Note. For other cases, see Contempt, Cent. Dig. §§ 174, 175; Dec. Dig. 58(4).] 3. PERJURY 6-FALSE SWEARING. If a party, charged with an indirect contempt upon a court by publishing language libelous as to it, swear falsely in his answer, attempting to purge the contempt, by explaining the language used, he may be punished for perjury. [Ed. Note.-For other cases, see Perjury, Cent. Dig. 88 7-17; Dec. Dig. 6.] 4. CONTEMPT 8 LIBEL ON COURT. * INDIRECT CONTEMPT Where a newspaper editorial stated that "a good pointer has reached us to the effect that Judge C. tried to confine the grand jury until indictments were agreed upon, but failed," and that "our information is that two members of the grand jury are holding out and refusing to indict and will not sign the indictments. Every known method of coercion has been used * * * to secure indictments, but so far it has failed. The grand jury is yet in session and many rumors are current that the jury wants to adjourn, but the powers that be refuse to permit adjournment"-such language was an attack on the official conduct of the court having charge of the grand jury, which was investigating election frauds, and its publication constituted a contempt of court. [Ed. Note.-For other cases, see Contempt, Cent. Dig. § 14; Dec. Dig. 8.] an editorial in a newspaper of general circulation known as the Herald, of which appellant was the editor. The facts constituting the alleged offense were brought to the knowledge of the court by an information duly verified and filed by the prosecuting attorney. Upon the filing of the information an order was entered by the court, ordering the appellant to show cause why he should not be punished for contempt, a copy of which order was served on appellant. Afterward appellant appeared and filed his verified answer in discharge of the rule. After hearing argument on the sufficiency of the answer, the record shows that the court made a finding of facts and filed the same, and ordered the clerk to make such findings a part of the record. Thereupon the court issued an attachment for the defendant, and, the sheriff having brought the appellant into court in obedience to said writ, the court found him guilty of contempt of court, and fixed his punishment. The editorial publication upon which the information for contempt was based was as follows: ting the Marion county grand jury to 'come "The Republicans are having a hard time getthrough' with batches of indictments against 150 Democrats for alleged violations of the election laws. A good pointer has reached us to the effect that Judge Collins tried to confine the grand jury until indictments were agreed upon, but failed. Our information is that two members 5. CONTEMPT 8 INDIRECT CONTEMPT-LI- of the grand jury are holding out and refusing BEL ON COURT. To have a contempt of court by the publication of language attacking the court, it is not necessary that the language employed should have actually brought the court into disfavor, and engendered a want of proper respect and regard for the court, or that it should have actually embarrassed or impeded the progress of the court, or the administration of justice therein; it being sufficient if the language is of a character calculated to produce such effect. [Ed. Note.-For other cases, Cent. Dig. § 14; Dec. Dig. 8.] 6. CONTEMPT 30 PUNISH. see Contempt, POWER OF COURT TO The right to punish for contempt is inherent in every court, being necessary to the preservation of order and the enforcement of judgments, writs, and orders, and the due administration of justice. [Ed. Note.-For other cases, see Contempt, Cent. Dig. §§ 91, 93, 94; Dec. Dig. 30.] Appeal from Criminal Court, Marion County; James A. Collins, Judge. George M. Ray was convicted of an indirect contempt of the Marion criminal court, and from the judgment he appeals. Judg ment affirmed. to indict and they will not sign the indictments. It requires five out of six members to find an indictment. Every known method of coercion has been used, we are told, to secure indictments but so far it has failed. The grand jury is yet in session and many rumors are current that the jury wants to adjourn but the powers that be refuse to permit adjournment. It is said that several meetings have been held by officials to devise ways to force the grand jury to bring the desired indictments, all of which have failed. There has never been any talk in the jury room about including two prominent Democratic politicians, however." [1] Appellant did not question the sufficiency of the facts stated in the information in the trial court, and that question cannot be considered on appeal. By his verified answer appellant admitted the publication of the article, but he makes an attempt to show that the language was not used in such a sense as to reflect discred it or disrespect upon the court or the grand the administration of justice, and he avows jury, or to corrupt or embarrass or influence that he had no intention by the use of such language to express contempt or disrespect for the court, or grand jury or to bring either into public disfavor or disrepute, or to embarrass or influence the administration of justice. In cases of indirect contempt it has been held that the defendant may purge himLAIRY, C. J. This is an appeal from a self of contempt by a sworn answer, denying judgment of the Marion criminal court, by the facts stated in the information, or by which appellant was convicted of an indirect setting up a state of facts consistent with contempt of that court by the publication of his innocence and disavowing intention to M. L. Clawson, of Indianapolis, for appellant. Evan B. Stotsenburg, Atty. Gen., for the State. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |