Samuels v. State.

diction of the court at the time of the trial. The jury were justified in finding that his automobile was taken without his consent. The assignment is therefore overruled.

Another assignment of error relates to the indorsement of the name of a witness on the information after the trial had commenced. The statute relating to the filing of an information has been changed to provide that the county attorney shall "indorse thereon the names of the witnesses known to him at the time of filing the same," and that "at such time thereafter, as the court or a judge thereof in vacation, in its or his discretion, may prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him." Laws 1915, ch. 164. The statute formerly authorized the indorsement of additional names on the information "at such time before the trial of any case as the court may by rule or otherwise prescribe." Rev. St. 1913, sec. 9063. The purpose of the change is clear. The record shows that the court did not abuse its discretion in permitting the name of the witness to be indorsed on the information after the trial had commenced.

Defendant singles out one of the instructions, and argues that it permits the jury to find a larceny was committed without evidence establishing the crime beyond a reasonable doubt; that it assumes facts not proved; that it gives prominence to assumed facts; that it gives undue importance to the possession of the property; and that it withdraws from the jury evidence of defendant's good character. When the charge to the jury is considered as a whole, the law is correctly stated. An instruction preceding the one assailed enumerated the elements of the crime, and distinctly stated that each must be proved to the jury's satisfaction beyond a reasonable doubt. Another instruction correctly stated the law relating to evidence of defendant's good character. There was testimony relating to all of the matters mentioned in the instruction. The point is not well taken.

101 Neb.-25

Moran v. Moran.

It is further argued that the court erred in refusing to give the following instruction requested by defendant:

"There must be evidence, aside from the statements of the defendant out of court, that the automobile was stolen, otherwise it is the duty of the jury to acquit the defendant."

Under the evidence the request was properly refused. The instruction is not limited to the rule that an extrajudicial confession is not of itself sufficient to establish the corpus delicti. There was other evidence tending to show that the automobile was stolen. In addition, statements of defendant not constituting a part of his confession were proper matters to be considered by the jury. Error in the proceedings has not been shown. judgment is therefore

AFFIRMED.

The

EDWARD E. MORAN, APPELLANT, V. ROBERT C. MORAN ET AL., APPELLEES: CAMDEN J. GARLOW ET AL.,

APPELLANTS.

FILED JUNE 2, 1917. No. 19458.

1. Common Law: LAW OF STATE. Any provision of the common law of England that is inconsistent "with any law passed or to be passed by the legislature of this state" is not made the law of this state by section 3697, Rev. St. 1913.

2. Deeds: CONSTRUCTION. Every instrument conveying real estate or interest therein must be construed so as "to carry into effect the true interest (intent) of the parties, so far as such intent can be collected from the whole instrument," if the intent is not an unlawful one. Rev. St. 1913, sec. 6195. This applies to deeds as well as other instruments, and so far abrogates the rule in Shelley's case.

3.

:

: LIFE ESTATE. Applying these rules, the granting clause of the deed involved in this case is construed to convey to the grantee a life estate with remainder to his heirs.

Moran v. Moran.

APPEAL from the district court for Platte county: GEORGE H. THOMAS, JUDGE. Affirmed.

Albert & Wagner and Garlow & Long, for appellants.

A. M. Post and M. Whitmoyer, contra.

J. J. Thomas and Edwin Vail, amici curiæ, on rehearing.

SEDGWICK, J.

On the trial of this case in the lower court the deeds involved were construed to convey life estates only. The plaintiff and cross-petitioner now contend that these deeds conveyed a title in fee to the grantees named therein. The cross-petitioner Garlow refers in his brief to some former decision of the district court as a bar to this action, but as no such decision is alleged in the pleadings, and no serious discussion is given it, and both the plaintiff and the crosspetitioner devote their discussion entirely to the construction of the deeds involved, we conclude, as stated by the defendants, that the decision of the district court rests entirely upon the proper construction of the deeds. The following is the granting clause of the deed to be construed:

"Grant, bargain, sell, convey, and confirm unto R. C. Moran, of Platte county, Nebraska, the following described real estate situated in the county of Platte, and state of Nebraska, to wit: (describing the land) Subject however to the following conditions: First, that the said R. C. Moran shall have, hold, use, occupy, and enjoy the aforesaid premises with all rents, issues, profits, and proceeds arising therefrom, for his own use and benefit, shall have authority to lease said premises, but shall not bargain,, sell, or mortgage said premises during his natural lifetime, but upon his death said premises shall be the property of his lawful heirs. Second, that said R. C. Moran shall pay to the said Robert Moran from the proceeds of said premises $50 each and every year during the natural life of said Robert Moran. Together with all the tene

Moran v. Moran.

ments, hereditaments, and appurtenances to the same belonging, and all the estate, right, title, interest, dower, claim or demand whatsoever of the said Robert Moran and Sarah Moran of, in, or to the same, or any part thereof."

There is some discussion in the briefs as to whether the rule in Shelley's case has any force in this state, but it is not necessary to determine what force, if any, that rule has with us. The cross-petitioner, as was done in Albin v. Parmele, 70 Neb. 740, quotes extensively from the courts of the different states as to the effect of the rule in Shelley's case in those states respectively. In Pennsylvania it was said: "The rule in Shelley's case is a rule of law, not a rule of construction, and where a case falls within it, it applies inexorably without reference to intent." Shapley v. Diehl, 203 Pa. St. 566. And in Tennessee: "The rule in Shelley's case was brought over by our ancestors, formed part of the colonial laws, and, until abrogated by statutory enactment, must continue to be law in Tennessee." Polk v. Faris, 30 Am. Dec. 400 (9 Yerg. (Tenn.) 209).

In so far as the decision of the case at bar is concerned, we might concede that the rule in Shelley's case would continue and be the law in Nebraska, "unless abrogated by statutory enactment." It is difficult to determine the origin of that rule. It probably arose out of some peculiarities of the law of feudal tenures in England a good many hundred years ago. Our statute provides: "So much of the common law of England as is applicable and not inconsistent with the Constitution of the United States, with the organic law of this state, or with any law passed or to be passed by the legislature of this state, is adopted and declared to be law within the state of Nebraska." Rev. St. 1913, sec. 3697. By section 6195, Rev. St. 1913, it is provided: "In the construction of every instrument creating or conveying, or authorizing or requiring the creation or conveyance of any real estate, or interest therein, it shall be the duty of the courts of justice

Moran v. Moran.

to carry into effect the true interest (intent) of the parties, so far as such intent can be collected from the whole instrument, and so far as such intent is consistent with the rules of law." This latter statute has been construed by this court in Rupert v. Penner, 35 Neb. 587; Albin v. Parmele, supra; Benedict v. Minton, 83 Neb. 782, and in other cases. In Albin v. Parmele, supra, there is quite an exhaustive discussion of the subject in an opinion by Mr. Commissioner Ames, and, unless that is to be overruled, it must be decisive of this case. Two of those above cited cases of this court discussed the construction of granting clauses in deeds, and one construed such clause in a will, and it is suggested in the brief that a different rule might obtain in the construction of deeds, but section 6195, Rev. St. 1913, applies to every "creation or conveyance of any real estate, or interest therein," and, as pointed out in Albin v. Parmele, supra, wills in some instances are not as deliberately executed as are deeds in general, and therefore the effect of the use of technical terms in wills may not always have the same force as the use of similar terms in deeds might have in ascertaining the "true intent of the parties;" but, in any event, in both cases we are required to ascertain that intent from the whole instrument. It is said in one of the briefs that the rule in Shelley's case is the law, and any intent that is inconsistent with the law cannot be enforced by the very terms of the statute quoted. This suggestion is answered in Albin v. Parmele, supra, with the suggestion: "That which the statute expressly requires shall be consistent with the general rules of law is not the construction of the instrument, but the intent of the parties. It cannot be pretended that an intent to limit a remainder in fee to the heirs at law of one to whom is given the precedent freehold is inconsistent with any general rule of law."

The language of the granting clause of this deed so plainly shows an intent of the grantor to convey to the grantee a life estate with the remainder to his heirs that it cannot be said that the language needs any construc