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widow, the surplus of his personal estate, amounting to the sum of $3,998.
By his last will and testament, which was dated on December 9, 1871, and was duly admitted to probate by and before the clerk of the court below on the tenth day of February, 1879, John Radcliff devised and bequeathed his estate, real and personal, as follows: "(1) I will and bequeath to my wife, Sarah Radcliff, all my estate, both real and personal, so long as she remains my widow. But, in case of her again marrying, I will to her one-third of all my effects, to hold as her own, and for her sole benefit, as she may desire; and, in case of said subsequent marriage of my said wife, I devise and will to Catherine Yount and Nancy Teeters, daughters of Henry Teeters, jointly and equally, the tract of land belonging to me, and lying south of the farm now owned by William Radford, supposed to contain seventy-four acres, for their sole use and benefit; and the balance of my estate, in case of said subsequent marriage, to be equally divided between my brothers and sisters. I also desire and appoint Lemuel Guthridge executor of this, my last will. Done this,” etc.
Appellant, the widow of John Radcliff, deceased, and named in such decedent's will as his wife, and Lawson Summit, were married on the tenth day of May, 1885. The appellees are the devisees named in such decedent's will as Catherine Yount and Nancy Teeters, and are grandchildren of the testator's first wife. The 74 acres of land devised to appellees by the testator, in case of the subsequent marriage of his wife, the appellant herein, are the same real estate described in the complaint in this action. After the marriage of appellant and Lawson Summit, to-wit, on May 20, 1885, appellees served a written notice on appellant requiring her to yield and surrender to them, as the rightful owner thereof, the immediate possession of the real estate in controversy herein; and, such notice not having been complied with, appellees commenced this action against appellant in the court below, on the fifth day of August, 1885.
We have now stated the facts of this case, in regard to which there is no conflict in the evidence. Indeed, we may say there is no conflict whatever in regard to any of the material facts, and these we have fully stated. The proper decision of this case, it is manifest, depends upon the construction which must be given to the first sentence in the last will of John Radcliff, deceased, namely: "I will and bequeath to my wife, Sarah Radcliff, all my estate, both real and personal, so long as she remains my widow.” The controversy between the parties, appellant and appellees, mainly turns upon the last few words of the sentence last quoted,-“so long as she remains my widow;" appellant's counsel vigorously insisting that these words make the testator's devise of all his estate, both real and personal, to depend upon a "condition in restraint of marriage,” while appellees' counsel earnestly contend that such words simply “mark the period which is to determine the estate” devised to the appellant. Our statute provides that “a devise or bequest to a wife, with a condition in restraint of marriage, shall stand, but the condition shall be void.” Section 2561, Rev. St. 1881, in force since May 6, 1853.
In 4 Kent, Comm. 126, Chancellor Kent defines the distinction between words of limitation and words of condition, as follows: "Words of limitation mark the period which is to determine the estate, but words of condition render the estate liable to be defeated in the intermediate time, if the event expressed in the condition arises before the determination of the estate, or completion of the period described by the limitation. The one specifies the utmost time of continuance, and the other marks some event which, if it takes place in the course of that time, will defeat the estate." This statement, of itself, of the distinction between words of limitation and words of condition, settles the point of contention under consideration adversely to the views and argument of appellant's counsel in the case now before us. The words "so long as she remains my widow," are, in the strictest sense, words of limita- • tion, and not of condition. Clearly and unequivocally, these words specify the widowhood of appellant as the utmost time of continuance of the estate devised to her, and they do not mark or indicate any event the occurrence of which in the intermediate time will defeat such estate.
The terms of the testator's devise to his wife, the appellant, are not distinguishable, in legal effect, from those of the first devise copied in the opinion of the court in Harmon v. Brown, 58 Ind. 207, as follows: "First. I give and bequeath unto my beloved wife, Penina, during her widowhood, all my real and personal estate, to be held, and freely possessed and enjoyed, during her widowhood." There, as here, the testator's widow terminated her widowhood by her subsequent marriage, and there, as here, the question was presented for our decision whether the words “during her widowhood” (which do not differ in meaning from the words “so long as she remains my widow") were words of limitation or words of condition. In the case cited, it was held, upon full consideration, that the words “during her widowhood” were words of limitation, and not of condition, within the meaning of section 2567, supra. The court there said: “A man may devise property to his widow during her widowhood. He is not obliged to devise to her a larger estate, as for life or in fee, in order to accomplish that purpose. But if he desires to devise her a larger estate, as for life or in fee, and so expresses himself in his will, but makes it dependent upon the condition that she should not marry, the condition will be regarded as in terrorem, and void. Such condition will not cut down an estate to a period less than that to which it is limited." To the same effect, substantially, are the following more recent cases: Coon v. Bean, 69 Ind. 474; Stilwell v. Knapper, Id. 558; Brown v. Harmon, 73 Ind. 412; Tate v. McLain, 74 Ind. 493; O'Harrow v. Whitney, 85 Ind. 140; Hibbits v. Jack, 97 Ind. 570, and authorities cited.
Much stress is placed, on behalf of appellant, upon her right to elect, under the provisions of section 2491, Rev. St. 1881, in force since May 6, 1853, to take under the will instead of the provisions of our statute regulating descents for a surviving wife. Whether appellant had or had not exercised this right of election, or had or had not elected to take under the testator's will, or under the provisions of our statute of descents, is one of the disputed questions in this case, which has given rise to considerable discussion by the learned counsel of the respective parties. We are of opinion, however, that as applied to the case in hand, and as against the testator's will, this disputed question is immaterial, or, at least, of no practical importance; for the estate first devised to appellant, so long as she should remain the widow of the testator, having been determined by her subsequent marriage, the remaining devises, which were made to depend upon the condition of such marriage, at once took effect, and became operative. Appellant, having married again, could not, as against the appellees and the other devisees named in the testator's will, claim any greater share or interest in the real estate of the testator than the one-third part thereof; and this share or interest, and no more, she would be entitled to claim and hold, whether she elected to take under the testator's will, or under the provisions of our statute of descent for a surviving wife.
It is claimed, also, on behalf of appellant, that, after the determination of the estate first devised to her by her subsequent marriage, there was no effective devise over of the testator's property mentioned in his will. In this view of the case, appellant's counsel wholly misapprehend, we think, the force and effect of the language used in the will. In plain words, the testator devises to his wife, the appellant, in the event of her again marrying, the one-third of all his estate, and to the appellees the real estate in controversy. in this action, and the balance of his estate he devises to his brothers and sisters in equal shares. The intention of the testator is manifest, and is not unlawful, and, under the accepted rule in the courts of this state for testa
mentary construction and interpretation, his intention should be given effect. Millett v. Ford, 8 N. E. Rep. 917, and cases cited.
We have found no error in the record of this cause. The judgment is affirmed, with costs.
(109 Ind. 457)
PRESTON and others o. WITHERSPOON and others.
(Supreme Court of Indiana. December 21, 1886.) 1. ESTOPPEL-SALE OF GRAIN STORED WITH ELEVATOR COMPANY HAVING APPARENT
Where owners and dealers in wheat place it with an elevator company, and knowingly permit such company to mingle it with other wheat purchased by the company, and to sell from the common mass, thus clothing it with apparent ownership and authority to sell the wheat, they are estopped to assert title thereto, as against an innocent purchaser for value, who bought in good faith, in the usual course of business, believing such company to be the owner of the wheat; and a private understanding between the dealers and the company cannot affect the rights of such
innocent purchaser.1 2. MAXIM-Two INNOCENT PARTIES.
Where one of two innocent parties must suffer by the acts of a third, he who has
enabled such third person to occasion the loss must sustain it. 8. WAREHOUSEMAN- ELEVATOR COMPANY-Rev. ST. IND. 1881, 82 6525-6550, NOT APPLI
CABLE TO INNOCENT PURCHASER.
The statute in regard to public warehouses (Rev. St. Ind. 1881, 82 6525-6550) does not affect the rights of innocent purchasers of grain stored with an elevator com. pany clothed by the party leaving it with apparent ownership and authority to sell, although such sale is not evidenced by the warehouse receipt issued to the depositor.
Appeal from circuit court, Gibson county.
M. W. Fields and L. C. Embree, for appellants. J. W. Ewing and McCullough & Miller, for appellees.
ZOLLARS, J. The nature of the case sufficiently appears from the special finding of facts made by the court below at the request of appellants. As the brief of counsel for appellees contains a fuller statement of the facts found than does the brief of counsel for appellants, we take therefrom the following summary, making a few additions thereto:
The defendants Runcie and Wallace, under the firm name of the Fort Branch Elevator Company, were engaged at Fort Branch in buying, selling, and shipping wheat, and, for hire, receiving wheat from farmers for storage, and, on demand of the depositors, were to return to them wheat of a like kind, quality, and amount as that deposited, but not the identical wheat. The company occupied an elevator and warehouse, situated 50 or 60 feet apart. The elevator contained 14 bins, each holding, when filled, 3,000 bushels of wheat, and the warehouse three bins, holding 6,000 bushels. The plaintiffs severally, during the months of June, July, and August, 1883, deposited wheat to amounts set out in the finding. The wheat deposited by the plaintiffs was all delivered at and taken in at the elevator, except 200 bushels of the plaintiff Preston's wheat, which was taken in and stored at the warehouse. The company, from July 10, 1883, to March 1, 1884, received for storage from the plaintiffs and other depositors 40,000 bushels of wheat, and during the same time bought, sold, and shipped on their own account 55,000 bushels. The wheat bought and the wheat deposited was nearly all taken in at the elevator, being hauled there in wagons by the farmers, and unloaded into a common receptacle, and from there elevated to the bins in the elevator, and in this way all the wheat purchased and taken in at the elevator, and all the wheat deposited and stored in the elevator, was mixed and mingled together.
1 As to estoppel by conduct, see Baals v. Stewart, (Ind.) 9 N. E. Rep. 403; Quick v. Milligan, Id. 392, and note; Richey v. Merritt, Id. 368, and note; Lyles v. Les her, Id. 365; Ward v. Berkshire Life Ins. Co., Id. 361, and note; Johnson v. Connecticut Fire Ins. Co., (Ky.) 2 S. W. Rep. 151, and note.
It was the custom of the company to sell wheat from the elevator, and to ship from the elevator in car-lots of from one to five cars at a time, the shipments being publicly made from the elevator from day to day and from week to week; and the plaintiffs knew that the company was selling wheat, and knew, at the time they deposited their wheat, that the custom of the company was to mix wheat purchased and stored, and sell from the common bin.
About the first of March, 1884, the company sold and shipped from the warehouse four cars of wheat (two cars of Mediterranean and two of Fultz) to the defendants, Witherspoon, Barr & Emison, who were engaged in the milling business at Princton, Indiana, under the firm name of Witherspoon, Barr & Co. The Mediterranean wheat was purchased by Runcie and Wallace, and stored by them in the warehouse separate and apart from any wheat of their customers, and also separate and apart from other wheat bought and sold by the elevator company. The firm of Witherspoon, Barr & Co. purchased and paid the Fort Branch Elevator Company the contract price and market value of said wheat, in the due course of business, and without having any knowledge or information that plaintiffs or any one else had or claimed to have any interest in or title to the same. The Fort Branch Elevator Company, on their own account, from July 10, 1883, to March 7, 1884, sold and shipped the 55,000 bushels of wheat bought, and also the 40,000 bushels deposited by the plaintiffs and others, except the four cars sold Witherspoon, Barr & Co., and the 2,377 bushels left in the elevator after the company ceased to do business, which was March 7, 1884. The wheat thus left in the elevator was taken by the depositors, and divided pro rata among themselves. A short time before the sale to Witherspoon, Barr & Co., Preston, being in the warehouse with Wallace, said to him, “Where is my wheat?” and Wallace said, “There is all of your wheat,” pointing to a pile of wheat in the warehouse containing three or four thousand bushels. And a few days afterwards the plaintiff Preston and Wallace went together to Vincennes to sell the wheat, and, being unable to realize a satisfactory price, they started back to Fort Branch, and on their way back it was understood that Wallace should stop off at Princeton, and see what was the best offer he could get for the wheat. Wallace stopped off,. went to Witherspoon, Barr & Co., and sold the wheat shipped to them a few days afterwards. And after it was all paid for, and all unloaded except onethird of one car, the plaintiffs made a demand on Witherspoon, Barr & Co. for the wheat, who refused to give it up.
The court found, as a conclusion of law, that the defendants, Witherspoon, Barr, and Emison, were not liable to the plaintiff, or either of them, in any sum whatever, because (1) the Mediterranean wheat bought by said Runcie & Wallace is not of the kind or quality as that deposited by the plaintiffs, or either of them; (2) the facts do not show that the Fultz wheat, so bought by Witherspoon, Barr, and Emison was the wheat of the plaintiffs, or either of them; (3) because (in any view of the facts) Runcie & Wallace were, by the voluntary acts of the plaintiffs, clothed with the apparent title and right to sell; and the said Witherspoon, Barr, and Emison were bona fide purchasers for value. The only error assigned by the appellants is that, upon the facts specially found, the trial court erred in its conclusions of law.
Upon the facts found by the trial court, are Witherspoon, Barr & Co. liable to the plaintiffs, who deposited wheat with the Fort Branch Elevator Company? That is the question, and the only question, for decision here.
In the case of Rice v. Nixon, 97 Ind. 97, cited by counsel for appellant, the question was whether, as between the depositors and the warehousemán, the latter should be held as a bailee, or as a purchaser of the wheat deposited for storage, which, without his fault, and before a demand therefor by the depositors, had been destroyed by fire. The depositors sought to hold him liable as a purchaser, because he had mixed their wheat in a bin with wheat deposited by others, and with wheat purchased by him, and had sold from the common mass. That he had done, in keeping with a custom of his. But of that custom the depositors prosecuting the action had no knowledge.
There was always in the bin wheat enough to supply all depositors, and at any time before the fire they could have received from the bin all the wheat they had deposited. Upon the facts thus before the court, it was held that the warehouseman was a bailee, and not a purchaser of the wheat so deposited. It will be observed that in that case the wheat deposited had all been deposited in and the sales made from a common bin, and that it does not appear whether or not any of the wheat deposited by the plaintiffs in the action remained in the bin at the time of the fire. See, also, Bottenberg v. Nixon, 97 Ind. 106.
The case of Schindler v. Westover, 99 Ind. 395, also cited by appellant's counsel, involved a question of title to wheat as between the depositors and a mortgagee of the warehouseman. The wheat, 500 bushels, had been stored, to be kept until the first of the following July. The depositors requested that their wheat should be kept in a separate bin. That the warehouseman declined, but agreed that the wheat should not be taken from the mill, and that he would re turn a like amount and a like quality whenever called for by the depositors. The wheat was stored in a bin with the wheat of other depositors, and with wheat bought by the warehouseman, and from the common mass wheat was taken in the inanufacture of flour. Before the third day of the following March all of the wheat, so received from the depositors, together with that which it had been so commingled, had been ground into flour, and disposed of by the warehouseman. On that day there were 1,900 bushels of wheat in the mill, and the warehouseman executed a chattel mortgage thereon. The mortgagees, under and by virtue of that mortgage, took possession of and sold the wheat. Before it was removed from the mill, the depositors demanded of the warehouseman and the mortgagees the amount of wheat by them deposited. It was held that the depositors and depositary were tenants in common of the 1,900 bushels of wheat then in the mill; that the title of the depositors to 500 bushels of wheat in the mill was superior to any claim of the depositary, although the identical wheat stored by them had been previously manufactured into flour; that the mortgagees could not and did not, by virtue of the chattel mortgage, acquire a better title to the wheat mortgaged than the mortgagor had; that, upon demand by the depositors for a return of the 500 bushels, (so much being then in store,) their title thereto was absolute and perfect as against the depositary or those claiming under him; and that, if such demand were refused, they could maintain replevin for the possession of the wheat, or if, after demand for the return of the wheat, the parties in possession should convert the same to their own use, the depositors could maintain an action for the recovery of damages for such wrongful conversion of the wheat.
It will be observed that in that case the wheat mortgaged was in the mill at the time the mortgage was executed, and at the time the demand was made by the depositors, and that in quantity it was more than equal to the amount stored by the plaintiffs in the action. In the case before us the wheat sold by the elevator company to Witherspoon, Barr & Co. was not kept in the same bin, nor in the same building where appellants' wheat was kept, while it was kept by the elevator company. In this regard, the facts in the case differ from the cases above cited. The warehouse, however, seems to have been used by the elevator company in the transaction of its general business, and was situated but 50 or 60 feet from the elevator. Whether this difference in the facts of the cases requires a different ruling as to the rights of the de