claimant, was not required, under the provisions of the statute governing or controlling the settlement of the estate of a decedent, to file a formal complaint, but it was only necessary that she should file a "succinct and definite statement" of her claim, embracing therein such facts as were necessary to constitute a prima facie claim against the estate in her favor. In view of or in consideration of this fact we have held that the rule so frequently asserted to the effect that' a plaintiff must recover upon the theory outlined by the facts alleged in his complaint does not apply to or control the mere statement of a claim filed against a decedent's estate. Masters v. Jones, 158 Ind. 647, 64 N. E. 213; Thomas v. Merry, 113 Ind. 83, 15 N. E. 244; Woods v. Matlock, 19 Ind. App. 364, 48 N. E. 384. While it is true that appellee did not prove all which she alleged in her formal complaint, nevertheless there is evidence sufficient to substantially establish the issuable facts constituting the cause of action set out in the complaint. This was sufficient. Railroad Co. v. Sheeks, 155 Ind. 7493, 56 N. E. 434. It is insisted by counsel for appellant: (1) That the amount of recovery is too large; (2) that, under the facts, a recovery is barred by the statute of limitations. The objection urged against the amount which appellee recovered is based upon the ground that she is not entitled to any interest on the money in dispute. Under the instructions of the court the jury, it appears, allowed 6 per cent. interest on each amount of the money received, in question, from the time the same was received by Stanley. By so instructing the jury it is claimed that the court erred, for the reason, as counsel insist, that Stanley was only the custodian of the money in controversy, and therefore was not liable for interest thereon. The inquiry, under the facts, is as to whether, by receiving the money in dispute, the mere relation of creditor and debtor was created between the husband and the children of his wife, or must he be regarded and treated as receiving and holding it in trust for these children? That a trust in personal property or money may be created by parol is settled beyond controversy by the decisions of this court. Hon v. Hon, 70 Ind. 135; Hunt v. Elliot, 80 Ind. 245, 41 Am. Rep. 794; Mohn v. Mohn, 112 Ind. 285, 13 N. E. 859; Thomas v. Merry, 113 Ind. 83, 15 N. E. 244; Haxton v. McClaren, 132 Ind. 235, 31 N. E. 48. The facts disclose that John H. Stanley, the husband, had children by former marriages, and the desire or intention manifested and expressed by the wife was that the money should be received and held by him for her own children. His declarations, when considered along with other evidence and circumstances in the case, establish that fact. It is evident under the facts that the receiving of the money in question by him was, to say the least, the equivalent of his receiving it to hold or keep it for his wife's children, and this trust he expressly agreed to execute. The transaction, being a matter between husband and wife, is strengthened by reason of this relation, and the confidence which the wife would naturally repose in her husband in respect to his carrying out her wishes and desires in regard to the money. It is not essential that technical language or words be used to create a trust; it is sufficient if the intention of the settlor is manifest, or made apparent. Anderson v. Crist, 113 Ind. 65, 15 N. E. 9. We are of the opinion that under the facts equity will regard and treat Stanley as receiving and holding the money in trust for the children of his wife, and a recovery thereof can be enforced by appellee as one of them, so far as she is concerned. This is fully sustained by the authorities. Miller v. Billingsly, 41 Ind. 489; Durham v. Bischof, 47 Ind. 211; Wyble v. McPheters, 52 Ind. 393; Hogshead v. State, 120 Ind. 327, 22 N. E. 330; Reddick v. Keesling, 129 Ind. 128, 28 N. E. 316; Randsel v. Moore, 153 Ind. 393, 53 N. E. 767, 53 L. R. A. 753, and cases cited; Haxton v. McClaren, 132 Ind. 235, 31 N. E. 48. Under the facts the trust so created was a direct and continuing one, not cognizable at law, but exclusively within the jurisdiction of equity. Stanley, as it appears, repeatedly acknowledged his trust, and never repudiated or disavowed the same, and therefore his holding or claim to the money at no time became adverse to the cestui que trust; hence, under these circumstances, the statute of limitations is not available, for the reason that it never began to operate. The position of the trustee not being adverse to the beneficiary, therefore, as between the former and the latter, there can be no limitation of time, unless it is made to appear that there was a clear repudiation or denial of the trust by the trustee, and that notice or knowledge thereof was brought home to the cestui que trust or beneficiary, so as to require the latter to act in the premises upon a clearly asserted title upon the part of the trustee. Raymond v. Simonson, 4 Blackf. 77; Ward v. Harvey, 111 Ind. 471, 12 N. E. 399; Thomas v. Merry, 113 Ind. 83, 15 N. E. 244; Jackson v. Landers, 134 Ind. 529, 34 N. E. 323; Parks v. Satterthwaite, 132 Ind. 411, 32 N. E. 82; Jones v. Henderson, 149 Ind. 458, 49 N. E. 443; Perry, Trusts, §§ 863, 865. The general rule that the statute of limitations will bar suits in equity as well as actions at law has well-recognized exceptions in a direct and continuing trust, which is the creature of equity, and falls within the latter's sphere of jurisdiction. Raymond v. Simonson, Parks v. Satterthwaite, and Jones v. Henderson, supra. It follows that there is nothing in the case at bar to justify the contention that the statute of limitations is a bar to appellee's right of recovery. The next question is, can the allowance of 6 per cent. interest on the money from the time it was received be justified? There is evidence to show that Stanley actually used the money in the purchase of real estate for himself, thereby converting it to his own use and profit. Under these circumstances it would be wholly inequitable not to charge him, as trustee, with the legal rate of interest upon the trust funds. As a general rule, in the absence of anything to the contrary, the question of requiring a trustee to pay interest on the trust funds is one which must depend upon the facts and circumstances in each particular case; and, where good conscience requires that the trustee be charged with interest, the payment thereof ought to be exacted. Miller v. Billingsly, 41 Ind. 489; Railway Co. v. Swinney, 97 Ind. 586. In fact, it may be asserted that the case at bar falls within that clause of the interest statute which provides that "on money had and received for the use of another, and retained without his consent, interest shall be allowed at the rate of $6 per year on $100." We conclude that under the facts it was entirely proper and right for the jury to allow the legal rate of interest on the money in question from the date it was received by Stanley, the trustee, and therefore the court did not err in so advising the jury. There is no error, and the judgment is affirmed. 1. Where, in an action against a county auditor and his sureties to recover money alleged to be due the county, the several items sued for are all alleged breaches of the bond, it is not necessary that each item should be alleged in a separate paragraph of the complaint. 2. Where, in an action on a bond of a county auditor, defendants could have tested each breach alleged by demurrer or motion to strike out, in the same manner as if each had been contained in a separate paragraph, error in a refusal to require plaintiff to number the separate specifications of breaches of the bond was not ground for reversal of a judgment in favor of plaintiff. 3. Under Burns' Rev. St. 1894. § 253, providing that actions on official bonds and bonds payable to the state shall be brought in the name of the state of Indiana on relation of the party interested, an action on the bond of a county auditor to recover moneys alleged to be due the county is properly brought in the name of the state on relation of the board of commissioners of such county. 4. The sustaining of demurrers to special answers was not error, where the matter alleged therein was admissible under a general denial pleaded. Appeal from circuit court, Dearborn county: Noah S. Givan. Judge. 3 See Counties, vol. 13, Cent. Dig. § 156. Action by the state of Indiana, on relation of the board of county commissioners of Dearborn county, against Ambrose E. Nowlin and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed. Roberts & Johnston, for appellants. W. N. Hauck, for appellee. COMSTOCK, J. The state, on relation of the board of commissioners of the county of Dearborn, brought this action against Ambrose E. Nowlin as principal, and the other appellants as sureties, upon the official bond of said Nowlin as auditor of said county, to recover certain sums of money alleged to have been received by said Nowlin, while auditor, from the treasury of said county, to which he was not legally entitled. There was a general finding and judgment against appellants for $3,054.56. The action of the court in overruling appellants' motion to separate the complaint into separate paragraphs, or separate assignments of the alleged breaches of the bond sued on, and to number them, is the first specification of error discussed. The plaintiff sought to recover on the bond certain sums of money claimed to have been received from said county and used by said Nowlin while auditor, and charged in the complaint to have unlawfully received; basing said charge on his alleged failure to have his claims therefor, on which allowances were made, on file in the auditor's office five days before the regular or special session of said board of commissioners at which said claims were allowed. It is also alleged that certain sums were illegally charged and collected by said Nowlin; the claim of illegality being based upon the charge that certain services performed by him in indexing the commissioners' records were not accurately or skillfully done, and that there were mistakes and omissions in said indexing; also that certain sums received by said auditor were illegally received for services; the charge of illegality being based upon the alleged fact that no indispensable public necessity existed for said services. It is also sought to recover certain sums claimed to have been illegally received by said auditor from said county, because the services for which said sums were allowed were a part of the official duties of said auditor, covered by his regular salary, and for which no additional or extra pay could be charged by said auditor; also that certain sums were illegally received by said auditor; basing such claims of illegality upon the charge that and that he procured receipts from the counhe collected and appropriated certain fees, ty treasurer showing the payment of said fees to said treasurer, and claiming that he had issued to himself for each receipt a quietus, and claiming that he thereby obtained money from said county illegally. All of the alleged causes of action are charged in one paragraph. The items set out in the complaint are all alleged breaches of the bond. It was not necessary that there should be a separate paragraph for each item. McFall v. Sewing Machine Co., 90 Ind. 148; Smiley v. Deweese, 1 Ind. App. 211, 27 N. E. 505; Sheetz v. Longlois, 69 Ind. 491. Appellants admit this proposition, but insist that the motion to number the separate specifications of breaches should have been sustained. As a matter of convenience, the motion should have been sustained; but inasmuch as the appellants could have tested each breach by filing a demurrer thereto, or a motion to strike out, in the same manner as if each had been contained in a separate paragraph or assignment, the error was not one for which there should be a reversal of the judgment. State v. Roche, 94 Ind. 372; Mustard v. Hoppess, 69 Ind. 324; Colburn v. State, 47 Ind. 310; Boden v. Dill, 58 Ind. 273; Hilton v. Mason, 92 Ind. 157; Boos v. Morgan, 5 Ind. App. 218, 31 N. E. 39. Appellants contend that the demurrer to the complaint should have been sustained because there is no statute authorizing the action to be brought by the state on the relation of the board of commissioners. Section 253, Burns' Rev. St. 1894, provides that "actions upon official bonds and bonds payable to the state shall be brought in the name of the state of Indiana upon the relation of the party interested." The county is the party interested in the action, because its funds have been diminished by the acts of the auditor alleged to have been illegal, and the board of commissioners is therefore the proper relator. Graham v. State, 66 Ind. 386. The remaining specifications of error question the action of the court in sustaining demurrers to the second, third, and fourth paragraphs of answer to the complaint. The second paragraph is a partial answer. It sets forth an entry of the proceedings of the board of commissioners employing appellant Nowlin to procure a suitable index, and to index the commissioners' records for 25 years. The part of the complaint to which this answer is addressed alleges that no indispensable public necessity existed for such index. The order of the board does not show that such necessity existed for said index. The third paragraph of answer is also a partial answer, and is to that part of the complaint which seeks to recover money allowed and paid the auditor for assisting experts in the examination of the records. In this paragraph it is alleged that the board found and entered of record the fact of indispensable public necessity for the indexing, and a copy of the entry is set out in the answer. It is also alleged that there was in fact such necessity, and facts are alleged showing the necessity for an examination of the public records. It is shown by the answer that appellant did the work in pursuance of the contract, and presented his account therefor, and that the sum allowed and paid was just and reasonable. The fourth paragraph of answer is addressed to that part of the complaint which alleges the wrongful charge by and payment to said Nowlin for "bringing up work in arrears on commissioners' records, tax duplicates, making transfer book, and indexing." A general denial was filed, but withdrawn, after the court had sustained demurrers to the foregoing special answers. The question of the court's ruling upon the special answers is the same as though the general denial had not been withdrawn. Stratton v. Elliott, 83 Ind. 425; Kidwell v. Kidwell, 84 Ind. 224; Board of Election Com'rs of Gibson Co. v. State, 148 Ind. 675, 48 N. E. 226. The theory and gravamen of the complaint was that the auditor had illegally received and appropriated to his own use the various sums charged therein. Any facts tending to show that he was justly and legally entitled to recover the sums charged (and the facts set out in said answers had that tendency) were admissible under the general denial. There was no error in sustaining the demurrers. No attempt is made to bring the evidence to this court. Judgment affirmed. (31 Ind. App. 571) HAUGH et al. v. SMELSER.* (Appellate Court of Indiana, Division No. 2. Jan. 27, 1903.) DESCENT-REAL ESTATE-HUSBAND AND WIFE -STATUTORY PROVISIONS. 1. Under the express provisions of Burns' Rev. St. 1901, § 2651, all the real estate of a husband who dies intestate leaving no parent or child goes to his widow, though there may be living brothers or sisters or their descendants. Appeal from circuit court, Rush county; Douglas Morris, Judge. Action by Mary H. Haugh and others against Maria P. Smelser. From a judgment in favor of defendant, plaintiffs appeal. Affirmed. Spencer & Ferris and F. J. Hall, for appellants. Benjamin F. Miller and Reuben Conner, for appellee. WILEY, J. Jesse W. Smelser died intestate the owner of real estate in Rush county of the value of $30,000. He left surviving him the appellee, Maria P. Smelser, his widow, who was a third wife. He died childless, and neither his father nor mother survived him. The appellants-there being a large number of them-are surviving brothers and sisters or descendants of brothers and sisters of the said decedent. A number of the appellants brought an action against Maria P. Smelser, as widow, and others, for partition of the real estate owned by the decedent at his death, upon the theory that the appellee was entitled to the undivided one-third of the real estate as widow, and that the plaintiffs below and all the defendFor opinion on petition for rehearing, see 66 N. E. 506 ants except Maria P. were entitled to have set off to them the undivided two-thirds as the brothers and sisters and their descendants of the said Jesse. A demurrer by appellee for want of facts was sustained to the complaint, and the only question presented by this appeal is the correctness of that ruling. All the plaintiffs and all the defendants below except Maria P. Smelser are joined as appellants. It is not necessary to set out the complaint, for the statement above fully presents the question for decision, and that question is this: Where a husband dies intestate and childless, the owner of real estate, leaving a widow, and without father and mother surviving, but brothers and sisters or their descendants surviving, does the widow take the entire estate? This question is answered by the statute and a long line of decisions in this state. Section 2651, Burns' Rev. St. 1901, is as follows: "If a husband or wife die intestate, leaving no child and no father or mother, the whole of his or her property, real and personal shall go to the survivor." This statute has been construed by the supreme court in many cases, and it has uniformly been held that under it, where a wife or husband die intestate, leaving no child, and no father or mother, the whole of the property left goes to the survivor. Armstrong v. Berreman, 13 Ind. 422; Leard v. Leard, 30 Ind. 171; Nebeker v. Rhoads, Id. 330; De Moss v. Newton, 31 Ind. 219; Lindsay v. Lindsay, 47 Ind. 283; Longlois v. Longlois, 18 Ind 60. This statute and these decisions, under the facts averred in the complaint, vest the title to the real estate in question in appellee. The law, as thus declared for so many years, has become a rule of property in this state, and, if it is unjust or inequitable, relief should be sought through the lawmaking power, and not the courts. There can be but one construction placed upon the plain language of the statute. Judgment affirmed. (30 Ind. App. 357) DRAKE v. BIDDINGER. (Appellate Court of Indiana, Division No. 1. Jan. 27, 1903.) REAL ESTATE AGENTS-RIGHT TO COMMISSIONS. 1. An owner of land agreed to pay a real estate agent commissions for finding a purchaser "at $65 per acre, $2,000 down, balance on terms satisfactory to undersigned." Afterwards he priced the land to a prospective purchaser at $75. Nothing was said about any other price until the terms of the payment had been agreed on, when the purchaser said he would take the land at $65 on those terms. The owner rejected the offer and left the room. Held, that the agent was not entitled to commissions; there being no evidence that the minds of the parties had met on any terms or conditions as to deferred payments on a basis of $65 per acre. Appeal from circuit court, Fulton county; A. C. Capron, Judge. Action by Peter Biddinger against Hezekiah S. Drake. Judgment for plaintiff, and defendant appeals. Reversed. M. L. Essick, A. H. Montgomery, and C. C. Campbell, for appellant. Harry Bernetha and Holman & Stephenson, for appellee. HENLEY, J. This was an action by appellee, a real estate agent, to recover a commission for the sale of real estate. His contract with appellant was as follows: "Rochester, Indiana, July 27, 1899. The undersigned hereby places in the hands of Peter Biddinger, real estate agent, for sale, the following described lands: The south half of the southwest quarter of the southeast quarter of section 16, also 95 acres off of the south side of the northeast quarter of section 21, all in township 30, range 3 east, containing in all 1152 acres, in Fulton county, Indiana,-95 acres being of uniform width, and agrees to pay 3 per cent. commission for finding a purchaser therefor for cash on the following terms, at $65.00 per acre; $2,000.00 to be paid down; balance on terms satisfactory to undersigned. It is agreed between the parties that said Biddinger shall have exclusive rights of sale of said land for six months from this date, and thereafter until canceled by the undersigned. Should the owner of said lands make or accept terms and price differing from these expressed herein during the existence of this contract, it is agreed that such change shall not in any wise affect Biddinger's claim for commission. [Signed] H. S. Drake." It is averred in appellee's complaint that appellant was the owner of the real estate heretofore described at the time of the execution of the contract; that he is still the owner of the same; that on the 10th day of February, 1900, appellee found a purchaser for said real estate, in the person of one George Clinger, who was ready, able, and willing to purchase said real estate, and pay therefor the sum of $65 per acre, and to pay $2,000 cash, and was able and willing to arrange to pay the balance of the purchase money on terms satisfactory to appellant; that appellant then and there notified appellee that he refused to sell said real estate. The three paragraphs of complaint are based upon the same facts. Appellant's answer was a general denial. The trial was by a jury. There was a verdict for appellee in the sum of $225.21. Appellant's motion for a new trial was overruled, and judgment was entered for the amount of the verdict. The only question presented by this appeal is upon the assignment of error that the trial court erred in overruling the motion for a new trial. Counsel for appellant argue under this assignment that there is no evidence to sustain the verdict of the jury upon the material question in the case. If there is any evidence in the record to prove that appellee furnished a purchaser for appellant's land, who was ready, able, and willing to make the purchase at $65 per acre, and who was ready to pay $2,000 cash, and arrange the deferred payment, as to amounts, time, and interest, satisfactory to appellant, then this court will not disturb the verdict. A brief résumé of the evidence shows that appellant priced his land to the prospective purchaser produced by appellee at $75 per acre; that nothing was said about any other price until after the terms of the payment had been agreed upon, when the prospective purchaser informed appellant that he would take the land at $65 per acre on those terms. His offer was refused by appellant, who left the room, and the meeting came to an end. This covers the whole scope of the evidence, and every inference properly deducible from it. There is no evidence to show that the minds of the contracting parties met upon any terms or conditions, as applied to the deferred payments, upon a basis of $65 per acre. "ASsent necessarily implies a meeting of the minds of all contracting parties,-a coming together upon the common ground of mutual understanding of fact and subject-matter. Until all understand alike, there can be no assent, and therefore no contract." 7 Am. & Eng. Enc. Law (2d Ed.) p. 413. The evidence does not show such a condition existing in the mind of the appellant in this case as amounts to assenting to the proposed terms of the deferred payments, which, under the conditions of the contract, must be made to his satisfactioL. The motion for a new trial ought to have been sustained. Judgment reversed, with instructions to the trial court to sustain the motion for a new trial. OLD WAYNE MUT. LIFE ASS'N v. FLYNN.* (Appellate Court of Indiana, Division No. 2. Jan. 16, 1903.) INSURANCE-FOREIGN COMPANY-SERVICE OF PROCESS-DESIGNATED AGENT. 1. In the absence of an averment in the complaint, in an action against a foreign insurance company on a judgment rendered against it in a state not its domicile, showing that it had filed a stipulation in such state authorizing service on it by serving the insurance commissioner or a designated agent, as required by the laws of such state, it must be inferred that it had not filed the requisite stipulation. 2. A foreign insurance company which transacts business in a state without filing a stipulation authorizing service of process on it, by serving the insurance commissiouer or a designated agent, as required by the law, is nevertheless bound by process served on the insurauce commissioner. 3. Where a statute provides that process may be served on a foreign insurance company, by serving the insurance commissioner, service on the deputy insurance commissiouer, though made at the commissioner's office, is insufficient. Appeal from superior court, Marion county; J. M. Leathers, Judge. L. See Insurance, vol. 28, Cent. Dig. § 1573. Action by Enos Flynn against the Old Wayne Mutual Life Association. From a judgment for plaintiff, defendant appeals. Reversed. C. E. Averill and McBride & Denny, for appellant. Hiram Teter, Benjamin F. Watson, and H. W. Bullock, for appellee. COMSTOCK, J. This was a suit upon a judgment alleged to have been rendered by the common pleas court of Lackawanna county, Pa., in favor of the appellee, Enos Flynn, and against the appellant, the Old Wayne Mutual Life Association. The answer upon which the case was tried was a general denial. The court found for the plaintiff in the sum of $4,017.90, and rendered judgment accordingly. The errors upon which the appellant relies for reversal are-First, the court erred in overruling a demurrer to the second paragraph of the complaint; second, in sustaining a demurrer to the second paragraph of appellant's answer; and. third, in overruling the appellant's motion for a new trial. The complaint was in two paragraphs. The trial court sustained a demurrer to the first. The second paragraph alleges, in substance, that the defendant was a corpora tion of the state of Indiana; that the defendant, by its agent, for that purpose authorized by it, in the month of May, 1893, issued its certificate of membership and policy of life insurance upon the life of one John Doyle, a citizen of Pennsylvania, for the benefit of the plaintiff, who was also at the time a citizen of Pennsylvania; that said policy was in the sum of $4.000; that the defendant was at the time doing a life insur ance business in the state of Pennsylvania; that the insured, John Doyle, died April 3, 1895, while said policy of insurance was in full force; that the plaintiff had performed all the conditions of the contract by him to be performed, but that the defendant had wholly failed, etc.; that on the 5th day of September, 1895, the plaintiff commenced suit in the court of common pleas, a court of general jurisdiction in said state, and caused process to be issued out of said state against defendant; that such process was legally and personally served upon the defendant, in accordance with a certain law of the state of Pennsylvania, a copy of which is set out in the pleading, the purport of said law being that no insurance company not of the state of Pennsylvania, nor its agents, should do any business in that state, until it had filed with the insurance commissioner of that state a written stipulation, duly authenticated by the company, agreeing that legal process affecting the company should be served upon the insurance commissioner of that state, or upon some agent specified by the company to receive service of process, and that such service should have the same effect as if personally served upon the company within the state, and further providing that, |