in the land in controversy to his widow. In respect to the remainder in fee, he died intestate. In so far as the real estate was not disposed of by the will of the testator, the law cast it upon his heirs at his death. Hauk v. McComas, 98 Ind. 460; Waugh v. Riley, 68 Ind. 482.

The mere fact that a will was made, did not interrupt the statute regulating descents, unless, by force of the testament, a disposition was made of the whole estate different from that provided by law in case of intestacy. Armstrong v. Berreman, 13 Ind. 422; Rusing v. Rusing, 25 Ind. 63; Lindsay v. Lindsay, 47 Ind. 283; Dale v. Bartley, 58 Ind. 101; Parks v. Kimes, 100 Ind. 148.

Conceding to some extent, at least, the force and application of the rule stated, counsel argue, in support of the ruling below, that the second clause of the will manifests an intention of the testator to dispose of the remainder of the real estate to his heirs, excluding the appellant, Ambrose. Whatever may have been his intention in regard to the exclusion of his son Ambrose E., the fact remains that there is not one word in the will looking to a disposition of the reversion, after carving out of it a life-estate for his widow. The controlling fact is not the emphasis with which he may have declared his purpose to exclude the appellant, but that he wholly failed to devise the estate so as to vest the remainder in fee in any one, thus leaving it to be controlled by the canons of descent. The case is in no way distinguishable in principle from McIntire v. Cross, 3 Ind. 444.

We agree that the intention of the testator is to be ascertained and carried into effect in the construction of every will, but this intention is to be collected from what is contained in the instrument. The rule is not to be carried to the extent of importing bodily into the testament a disposition of an estate concerning which the instrument itself is entirely silent.

It is insisted that, because the appellant received the legacy bequeathed to him in the second clause of the will, he thereby became estopped to assert his right as heir. The principle invoked is not applicable here. A beneficiary in a will or other instrument will not be heard to repudiate the instrument after accepting the benefits which it confers. Here, however, the appellant makes no assault upon the will. The appellees set up the will to bar the appellant's right as heir. Accepting the will according to its terms, the appellant asserts that his right in the real estate, as heir, is in no manner affected by the will. In this he is sustained by the instrument which the appellees have produced. What the appellant's rights may be in the end, in view of the advancements referred to in the will, is not now before us.

The court erred in overruling the demurrer to the answer. Judgment reversed, with costs.

(108 Ind. 518)

BRITISH MERCANTILE INS. Co. v. CRUTCHFIELD and others.

(Supreme Court of Indiana. December 17, 1886.)

1. TRIAL-DEMURRER TO EVIDENCE.

Upon demurrer to the evidence the court must consider, not only all the facts which the evidence proves or tends to establish, but also all such fair and reasonable inferences of fact as a jury might have lawfully drawn from the evidence. 2. FIRE INSURANCE-PROOF OF LOSS-TENDER TO AGENT-FOREIGN COMPANY.

Evidence of a tender, by the assured, of his proofs of loss to the agent of a foreign insurance company, who countersigned and issued the policy, and who, so far as appears, was the only officer or agent of such company in the state, and the unexplained refusal of the agent to accept such proofs, without objection, is sufficient, upon demurrer to the evidence, to show a compliance with the terms of the policy requiring notice and proof of loss to be given to the company.

8. SAME-SPECIFICATIONS AND PROOF OF Loss.

The failure of the plaintiff to introduce the specifications and proof of loss in evidence in such case cannot be complained of on appeal, where other evidence was admitted, without objection, showing that they were duly made out, and tendered to the agent, who made no objection to them, either in form or substance.

4. APPEAL DEMURRER TO EVIDENCE-ASSESSMENT OF DAMAGES BY COURT-PRESUMP

TION.

Where the record shows the overruling of a demurrer to the evidence, and an assessment of damages by the court, neither party requesting a jury, it will be presumed, although the record is silent, that all proper and necessary evidence was heard by the court on the question of the assessment of damages.

Appeal from circuit court, Posey county.

Gilchrist & De Bruler and W. P. Edson, for appellant. H. C. Pitcher, for appellees.

Howk, J. In this case the only error relied upon here by appellant, the defendant below, for the reversal of the judgment of the trial court, is the overruling of its demurrer to appellees' evidence. The action was upon a policy of insurance, executed by appellant, and countersigned and issued by its duly-authorized agent at Mount Vernon, Indiana, on the ninth day of February, 1882, to one Thomas J. Gordon, whereby appellant, in consideration of a certain premium, did insure the said Gordon against loss or damage by fire to his property therein described, in the sum of $1,600, for the term of three years from and after the date of the policy, as follows: $1,000 on his one-story frame dwelling-house, $200 on his household and kitchen furniture, and $400 on his one-story frame store-room,-all occupied by him, and situated on his farm, on the Mount Vernon and Uniontown road, in Henderson county, Kentucky. It was alleged by appellees in their complaint that on the twentieth day of August, 1884, said dwelling-house was wholly consumed by fire, and the furniture damaged by such fire in the sum of $100; that, at the time of such loss, Thomas J. Gordon was the owner of the property so destroyed and damaged, and fully performed all the conditions of the policy on his part, and that on September 1, 1884, Gordon assigned in writing the aforesaid policy to appellees. Wherefore, etc. Issue was joined by appellant's answer in general denial. Counsel on both sides concur in stating that the only evidence introduced by appellees, in support of their cause of action, was the policy of insurance, and its assignment, and the oral testimony of Thomas J. Gordon.

On behalf of the appellant, its counsel insist that the evidence wholly fails to show that the assured had complied with the conditions of his policy, which required him to render a particular account of his loss, signed and sworn to by him, stating whether any and what other insurance had been made on the same property, etc. On the other hand, appellee's counsel contends that the conduct of the adjuster and general agent of the appellant towards the assured, as shown by his testimony on the trial, was such as to dispense with, or constitute a waiver of, any compliance by the assured with the conditions of his policy requiring him to render a particular account of his loss.

We give, in this connection, from the brief of appellant's counsel, the entire testimony of the assured, Thomas J. Gordon, on the trial of this cause, as follows: "The house mentioned in the policy belonging to me burned on the twentieth day of August, 1884, at ten o'clock in the morning, after breakfast. It was a total loss, and part of the furniture in the house also burned. We saved some of it. It left us outdoors, and we batched in a tent. I came to John L. Rosenkrans, the local agent of the company at Mount Vernon, Ind., and told him of the loss. I sent word to him before that by David Barker. When I told Rosenkrans of the loss, he said it was best to wait until Mr. T. H Smith, the adjuster of the company, came; that he [Rosenkrans] had nothing to do of that kind; and that the adjuster would be here shortly. I waited eight or ten days, and came down again to see Rosenkrans, when I asked him if the North British & Mercantile Insurance Company had gone into bankruptcy. Rosenkrans replied that he had just received a telegram from Mr. Smith that he would be at Mount Vernon that night, and for him [Rosenkrans] to prepare for a ride to-morrow. He came, and they went

over the river from Mount Vernon to the premises where the house burned. The next day or two after that, on Monday, I saw Mr. Smith, the adjuster and general agent, in Mr. Rosenkrans' office in Mount Vernon. He [Smith] asked me if I had made out plans and specifications and proofs of loss; that the company required them to be made. I said 'I am ready to make proof of loss, or any other papers he wanted.' He would not furnish me any papers for that purpose, and he refused to give me any instructions or satisfaction. I told him I would make them out in ten days. He said it would take thirty days. After that I tendered my account of losses to Rosenkrans. He refused to take them. Rosenkrans told me I must send them to the company at Chicago, and offered to furnish me an envelope with the address to send it in. Mr. Smith asked me if I had filed plans and specifications of the building burned and proof of loss. I filed my account of loss with Rosenkrans, or offered to do so, the second day after Mr. Smith was in Mount Vernon, and Rosenkrans refused to take them. Mr. Smith told me there were a couple of stoves saved from the building, and asked me to take care of the stoves, and a piece of the sills of the house, until the suit, so they could be produced at the trial if we had a suit. I saved a piece of the sill, and intended to have it here to-day. I sent for it, but it is not here. I was owner of the house and furniture at the time of the loss."

And said witness, being cross-examined by the defendant, testified as follows: "Mr. Smith, the adjuster, was here about three weeks after the twentieth day of August, 1884, the day the house burned. It was four or five days after the fire that I saw John L. Rosenkrans, and told him of the loss. I only saw Mr. Smith twice. I talked with him twice only,-both times at Mr. Rosenkrans' office, in the Posey County Bank. John L. Rosenkrans, Luke Rosenkrans, and William D. Crunk were the only persons present at those two conversations. They were there when the conversations took place, except that W. D. Crunk was not present all the time, and John and Luke Rosenkrans were. The policy of insurance was then in the Posey County Bank. At that time Mr. Smith told me to send the plans and specifications of the house and the proofs of loss to Chicago, that Mr. Rosenkrans would furnish me a printed envelope to send them in; that Mr. Rosenkrans had no right to receive them; and that they must be sent by me to the company at Chicago, and I must put it into the post-office myself. Mr. Smith said to me that he required plans and specifications of the house burned. I told him I was ready to furnish them. I never made or furnished any plans or specifications. I tendered plans and specifications and proof of loss to Rosenkrans two days after Smith was here, and he refused to take them."

"Redirect Examination. Mr. Smith asked me if I had filed plans and specifications and proof of loss. I said I would file them in two days. He replied: You can't file them that soon. It will take you thirty days.' He told me I must send them to Chicago. I said I would file them day after tomorrow. He said: If you do make them out, they will not be right,' and said he would send them back, and keep sending them back, until they were right. I said: I am ready to file papers to Rosenkrans; and Rosenkrans said he would not take them; that he had nothing of that kind to do; that he would furnish me a printed envelope for me to send them to Chicago, and I must mail it myself at the post-office. Mr. Smith said he would return them as long as I sent them, if they were not right."

In considering the sufficiency of the evidence to sustain the decision of the circuit court in overruling appellant's demurrer to appellee's evidence, it must be borne in mind that, by its demurrer, appellant admitted all facts of which there was any evidence, and all conclusions which can fairly and logically be drawn from such facts.

In passing upon and deciding the questions presented by a demurrer to the evidence, the court must consider, not only all the facts which the evidence

tends to establish, but also all such fair and reasonable inferences of fact as the jury, if trying the cause, might have lawfully drawn from such evidence. The rule, as we have stated it, which controls in the consideration and decision of a demurrer to evidence, is declared in and sustained by many of our reported cases. Trimble v. Pollock, 77 Ind. 576, and cases cited; Willcuts v. Northwestern Mut. Life Ins. Co., 81 Ind. 300, and cases cited; McLean v. Equitable Life Assur. Soc., 100 Ind. 127, and cases cited; Lake Shore, etc., Ry. Co. v. Foster, 104 Ind. 293; S. C. 4 N. E. Rep. 20.

In the case last cited, in laying down the rules to be applied by the courts in passing upon a demurrer to evidence, the first rule is thus stated: "First. A demurrer to the evidence admits all facts which the evidence tends to prove, or of which there is any evidence, however slight, and all inferences which can be logically and reasonably drawn from the evidence." See, also, the numerous authorities there cited in support of this first rule.

Having thus stated the rules which must govern us in passing upon appellant's demurrer to appellee's evidence, we pass now to the consideration and decision of the particular points or questions upon which appellant's counsel rely, with much apparent confidence, for the reversal of the judgment. We have already stated, but will here repeat, what we regard as the principal point urged by appellant's counsel for the reversal of the judgment herein, in their own language, as follows: "It was necessary, before plaintiffs could recover, for them to show that the assured had complied with the conditions of his policy, which required him to render a particular account of his loss, signed and sworn to by him, stating whether any and what other insurance had been made on the same property," etc. Appellees alleged in their complaint, as we have seen, that the assured fully performed all the conditions of the policy on his part. The condition of the policy to which appellant's counsel refer, in the above quotation from their brief of this cause, reads as follows: "Persons sustaining loss or damage by fire shall forthwith give notice of said loss to the company, and, as soon thereafter as possible, render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property," etc. The "particular account of such loss," mentioned in the foregoing condition, is what is known, in common parlance, as the "proofs of loss." Appellant's counsel claim that the evidence wholly fails to show any compliance by the assured with the foregoing condition of his policy. If this claim of counsel is sustained by the record, then the trial court erred in overruling appellant's demurrer to the evidence, and the judgment below must be reversed.

The first question for our decision, under the law, therefore, may be thus stated: Is there any evidence, however slight, in the record of this cause, which tends to prove, or from which the triers of the facts might logically and reasonably infer, that, at the proper time, the assured has substantially complied with the foregoing condition of his policy by rendering to the appellant the particular account or proper proof of his loss? We are of opinion that this question ought to be and must be answered in the affirmative. The policy of insurance was in evidence, and it showed upon its face that J. L. Rosenkrans was the "duly-authorized agent of the company at Mount Vernon, Indiana," and that he there countersigned and issued the policy to the assured on the ninth day of February, 1882. From this evidence the trier of the facts might reasonably infer that appellant's agent had, by complying with the provisions of section 3765, Rev. St. 1881, in force since March 3, 1877, obtained from the auditor of state the proper certificate of authority "to take risks or transact any business of insurance in this state" in the name of appellant, and as its agent. Other evidence in the record tended to prove that Rosenkrans continued to act as the duly-authorized agent of appellant until some time after the loss by fire of the property insured by the policy sued on herein. There is evidence, also, tending to prove that the assured promptly

notified appellant's agent, Rosenkrans, of the loss of his dwelling-house by fire.

No objection is made by appellant's counsel to this notice, and it may be assumed, therefore, that, in so far as notice of the loss to the company was concerned, the giving of such notice to its agent, Rosenkrans, was a sufficient compliance by the assured with the aforesaid condition of the policy. By the terms of the same condition the particular account of his loss was also to be rendered to the company. Upon this subject the assured testified: "I tendered plans and specifications and proof of loss to Rosenkrans, two days after Smith was here, and he refused to take them." Elsewhere it appeared that Rosenkrans was probably acting under the instructions of Smith, the adjuster, in refusing to receive the proof of loss when tendered by the assured. According to the evidence, Smith was apparently determined to baffle the assured, and keep him out of the money due on his policy. It was insisted by Smith that the assured must send the proof of loss to him at Chicago, Illinois; but this was not required by the terms of the policy, and certainly, in the absence of contract, it was never contemplated by our statute, under which Rosenkrans was authorized, as appellant's agent, to transact its business of insurance in this state. Under our statute, there can be no doubt, we think, that, where a condition of the policy requires that notice of the loss shall be given to the company, the giving of such notice to the duly-authorized agent of a foreign insurance company, doing business in this state, will be a sufficient compliance with the terms of such condition.

In Pittsburgh, etc., Ry. Co. v. Ruby, 38 Ind. 294, it was held "that notice to an agent of a corporation, relating to any matter of which he has the management and control, is notice to the corporation."

In Phoenix Mut. Life Ins. Co. v. Hinesley, 75 Ind. 1, after quoting the rule on the subject of notice to an agent of a corporation, as stated in the case last cited, the court said: "It seems to us that this rule of law is especially applicable to the agents of foreign insurance companies, transacting the business of insurance for their companies in this state, and that it must be held that notice to such agents, in relation to any business of insurance transacted by them for their companies is notice to such companies." Upon the points stated in this quotation the case last cited has been approved and followed in Willcuts v. Northwestern Mut. Life Ins. Co., supra, and in Ætna Ins. Co. v. Shryer, 85 Ind. 362.

We know of no good reason why it should not be held, also, where the condition of the policy, as in the one under consideration, requires that the assured shall render the particular account of his loss to the company, and not to any specified officer or person, or at any specified office or place, that the rendering of such particular account of his loss by the assured to the dulyauthorized agent of a foreign insurance company will constitute a sufficient compliance by the assured with the terms of such condition. Text writers and courts agree in saying that the agent of an insurance company may waive the rendering, by the assured, of the particular account or proofs of his loss, and that such waiver may be implied by or inferred from the facts and circumstances of the case. Etna Ins. Co. v. Shryer, supra, and authorities cited. A fortiori, should it be said, we think, that the tender, by the assured, of his proofs of loss to the agent of a foreign insurance company, who countersigned and issued to the assured his policy, and who, so far as appears, was the only officer or agent of such company in this state, and the unexplained refusal of such agent to accept such proofs of loss without objection thereto, was a sufficient compliance by the assured with the condition of his policy. Certainly, it must be said, under the rules of law applicable to the case as here presented, that there is evidence in the record which tends to prove, and from which the court or jury might reasonably infer the fact, that the assured had substantially complied with the conditions of his policy, both