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plaintiff Mary became eighteen years of age in 1873, and in October following John McKenna sold said land to one Sprank without consulting with said Mary in relation thereto. The consideration of the sale does not appear, but, at the request of the said John, the said plaintiff conveyed the said real estate to said Sprank, and the latter, at the request of John McKenna, executed his note for $2,000, payable on or before ten years, with interest from January 1, 1874, at 10 per cent., payable annually to said Mary McKenna. The note was secured by mortgage, which was filed for record by said. John. In February, 1873, John McKenna loaned one Kennedy $1,440, and took his note, secured by mortgage, for said amount, payable to said Edward H. McKenna, payable on or before six years from date, with 10 per cent. interest, payable annually. The said mortgage John McKenna caused to be recorded. The plaintiff Edward was then about fourteen years of age. Neither of the plaintiffs have ever had actual possession of said notes or mortgages. It is doubtful if Edward knew of their existence until three years or more after they were executed.

The defendant Kelso is a lawyer and a banker, and seems to be a careful and prudent witness. He has no interest in the event of this suit, except a possible liability for costs. He drafted the mortgage from Kennedy to the plaintiff Edward, and did much business for and with the said John. The latter kept a bank account with Mr. Kelso. The former had a tin. box in which he kept his valuable papers, and the same were deposited in Mr. Kelso's bank. In said box he placed the said. notes and mortgages. The interest due from year to year on. said notes was mostly paid to Kelso, and by him placed to the credit of said John, and paid out on the checks of the latter. A portion of said interest, however, was paid to said John by the makers of the notes, and the same was used by by him. No part of it was ever paid to either of the plaintiffs, nor were either of them ever consulted by said John as to the disposition thereof, or in any other respect in regard to said notes or mortgages. At one time Mr. Kelso paid the plaintiff Mary some money, and informed said John thereof, whereupon the latter got very much excited, and directed Kelso not to let any of his family have any money. At this time Mr. Kelso was receiving interest on the Sprank note. Mr. Kelso, out of abundant caution, and on his own motion, charged John McKenna with the interest received on said

notes, and credited the same to the plaintiffs. This cannot prejudice the rights of either party.

The plaintiffs are the children of said John by his first wife, by whom he also has another child, who was his favorite, and to whom no gift was made. He has several children by his second wife, who is now living. With her he had frequently difficulties. A divorce proceeding was commenced by her, but it was compromised. He did not exhibit much fondness for his children. He on more than one occasion beat and otherwise maltreated the plaintiffs. His habits were bad and so was his temper, caused possibly by an excessive use of intoxicating liquors, which caused softening of the brain, resulting in insanity. The testinony bearing on this branch of the case is not set out, because it is deemed unnecessary to do so.

The plaintiff Mary testified in relation to the Sprank deed, that "I signed the deed. Did it partly because he said it was mine. He took me to town. Said it was mine and got me to sign the deed." Except this, the evidence is singularly barren of any expressions of John McKenna tending to show he intended to make or had made a gift to either of the plaintiffs; and as to the question of delivery there is not a particle of evidence, unless it can be found in the foregoing statement. Mr. Kelso testifies that the object of John McKenna in having the aforesaid notes made payable to the plaintiffs was to defeat the claims of his wife to "dower." He learned this from said John.

The mere fact that the notes were made payable to the plaintiffs, coupled with the further fact that John McKenna caused the mortgages to be filed for record, cannot under the circumstances amount to a sufficient delivery, for he retained possession of the same, and had and exercised dominion over them. As to the plaintiff Edward it may be said he was a minor, and that it was right and proper his father should take care of his interest, and that he was the proper custodian of said Edward's property. Conceding this to be true, the same cannot be said of the plaintiff Mary. She had reached her majority, and if the notes had been given to her she was entitled to the interest; but, instead of acknowledging the justness of her claim, the said John violently objected to her receiving any of said interest. The notes and mortgages never were delivered to any one for the plaintiffs. They never left the possession of John McKenna, and all the circum

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stances tend to show that his possession was not for their use and benefit.

We firmly believe Mr. Kelso's evidence as to the object and intent of these two transactions on the part of John McKenna. His object was to so place a portion of his property that his wife could not readily reach it while he lived, or after his death. But he never intended to make a complete and valid gift to his children. Hence there was no delivery, and he used and controlled the supposed gift as his own. The suggestion that he desired to provide for his first wife's children is not entitled to weight, because he made no provision for her other child, who was his favorite. We fully accord with the finding of the learned judge of the circuit court, and the judgment must be affirmed.

D. H. WILSON, Appellee, vs. IOWA COUNTY, Appellant.
Filed October 28, 1879.

Rule 12 of the rules of this court does not restrict its jurisdiction.-[ED. *Supplemental opinion.

PER CURIAM. A petition for rehearing has been filed in this case in which it is insisted that section 12 of the rules of court is nugatory, for the reason that the court has no power to make such rule. It is said that the effect of the rule is to restrict the jurisdiction of the court, and that it is competent only for the legislature to do that. It may be conceded that the court cannot restrict its jurisdiction. Whether the rule has that effect must depend upon the construction which should be given to section 3173 of the Code. That section provides that "no appeal shall be taken in any cause in which the amount in controversy between the parties, as shown by the pleadings, does not exceed one hundred dollars, unless the trial judge shall certify that such cause involves the determination of a question of law upon which it is desirable to have the opinion of the supreme court; but this limitation shall not affect the right of appeal in any cause in which is involved any interest in real property." The object of the statute is, of course, to relieve this court, to some extent, from the burden of determining causes involving unimportant rights. The provision allowing appeals in causes involving the determination of a question of law, upon which *For original opinion see 1 N. W. REP. (N. S.) 490, (Iowa, 26.)

it is desirable to have the opinion of the supreme court, is made in the interest of the public. The parties, as distinguished from the public, are interested only in the subjectmatter of the litigation. Now the public is not supposed to be interested in the determination of any question of law; at least not sufficiently so to justify an appeal, unless the question be one upon which, in the opinion of the trial judge, it is desirable to have the opinion of the supreme court. The inevitable inference is that this court should be relieved from the determination of other questions.

This court may make rules not inconsistent with the provisions of the statute. Under section 3173 of the Code it cannot be doubted that the trial judge might have certified that the cause involved the determination of a particular question of law, and confined the appellant to a presentation of that question alone. The trial judge might have done this without interfering with the jurisdiction of this court. If this might have been done by the trial judge under the statute, in all cases without rule, it follows, we think, that this court may, without limiting its jurisdiction, require such certificate to be made. The rule does not restrict our jurisdiction, but simply requires that a thing proper to be done without rule, shall be done in order to entitle a party to a hearing in this

court.

The petition for a rehearing is overruled.

ELIZA PHINNEY vs. JOHN H. WARREN.

Filed October 28, 1879.

During the period that administration may be had on the estate of a deceased person, title to personalty left by him may possibly be in abeyance. When it expires it vests in the heirs jointly, and so remains until division by them. In suit to recover such property all must join, though their shares are different. This action having been commenced in equity, no objection being made in the court below, or motion to transfer to the law docket,it cannot be urged here for the first time that it should have been at law.-[ED.

*On rehearing.

John A. Hoffman and M. E. Cutts, for appellant.

C. P. Searle and J. F. Lacey, for appellee.

PER CURIAM. Upon the death of the payee of the note it may be conceded that the note became the property of the *For original opinion see 1 N. W. REP. (N. S.) 522. (Iowa, 58.)

a dministrator, if there was one; but if no administrator is appointed it will not do to say the note ceased to be property. Property cannot thus be blotted out. There is no statute which requires that letters of administration should be taken out, or that imposes a penalty for not doing so. It may be that at common law personal property goes to the administrator, and if none is appointed it possibly would escheat. But the statute provides that personal property not required for the payment of debts shall be distributed to the heirs, and this must be the rule, whether an administrator has been appointed or not. The statute further provides that administration cannot be granted after the lapse of a certain period of time, except possibly where there has been fraud, accident or mistake. During such statutory period it may possibly be the title to the property is in abeyance. At its expiration, however, the title thereto vests in the heirs at law, and they may maintain an action thereon. The title of the heirs is joint until there has been a division, just as it would be if the property consisted of real estate; to recover which all the heirs must join, notwithstanding their shares may be different. The note in question belongs to the plaintiffs jointly, and it matters not what their respective shares may be; therefore the plaintiffs could have maintained an action at law on the note. They, however, entitled their action in equity. No motion, however, was made to transfer to the law docket; nor was any objection made to the form of the action, nor was it insisted that the action should have been at law in the court below. It cannot, therefore, be made for the first time in this court. It is insisted that the views herein expressed are antagonistic to what was said in Haynes v. Harris, 33 Iowa, 516. To some extent this may be true, but that case is clearly distinguishable from this, because the statutes of Indiana do not provide any limitation or statutory bar to granting letters of administration. It appeared, therefore, in that case, that administration might at some future time be granted. The petition for rehearing is therefore

overruled.

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