Volume 229 — Indiana Reports

1. WILLS — <italic>Construction — "Residue" Defined.</italic> — The residue of an estate is the surplus of the testator's estate remaining after all the debts and particular legacies have been discharged. p. 410. 2. WILLS — <italic>Construction — Designation of Devisees and Legatees</italic> <italic>— Specific Bequest Excludes Further Benefits in Absence of</italic> <italic>Express Provision.</italic> — When a testator makes a specific bequest to a named heir, the giving of this definite portion excludes the thought of the giving of more to such heir unless the will expressly makes provision for so doing. p. 410. 3. WILLS — <italic>Construction — Rules of Construction — Presumption</italic> <italic>Against Partial Intestacy.</italic> — The law does not favor and will avoid, whenever possible, partial intestacy, the presumption being that the testator intended to make disposition of his entire estate. p. 410. 4. WILLS — <italic>Construction — Rules of Construction — Primary</italic> <italic>Purpose To Give Effect to Testator's Intent.</italic> — In the interpretation of a will the primary purpose on the part of the court is to discover, if possible, the intentions of the testator, to give effect thereto, as he has expressed such intention in his will, provided this can be done without contravening some principle of public policy, or some inflexible or unyielding rule of law. p. 410. 5. WILLS — <italic>Construction — Rules of Construction — All</italic> <italic>Provisions To Be Given Effect.</italic> — A will should be so construed as to give effect to all the language and provisions thereof, and, if possible, it must not be interpreted so as to render any part superfluous, absurd or meaningless. p. 410. 6. WILLS — <italic>Construction — Rules of Construction — Law Favors</italic> <italic>Construction Disposing of Property as Would the Law —</italic> <italic>Principle Inapplicable Against Express Contrary Provisions.</italic> — While the law favors a construction of a will that disposes of the property devised or bequeathed in the manner in which the law would have disposed of it had the deceased died intestate, this rule of construction cannot apply where the testator has clearly and unambiguously expressed a contrary intention. p. 411. 7. WILLS — <italic>Construction — Rules of Construction — Clear and</italic> <italic>Unambiguous Words Must Govern.</italic> — If the words used in a will<page_number>Page 405</page_number> are not ambiguous and clearly express the intention of the testator, they must govern for that which is plain and manifest needs no interpretation, and a will expressed in clear and precise terms, manifesting the testator's intention and leading to nothing absurd, presents no reason for refusing the intention which it naturally presents to the mind. p. 411. 8. WILLS — <italic>Construction — Rules of Construction — Courts May</italic> <italic>Not Remake Will.</italic> — Where the terms of a will present no ambiguity and require no judicial construction, any effort on the part of the court to construe the will so as to produce a disposition other than that which is clearly expressed results in a remaking of the will which the courts may not do. p. 412. 9. WILLS — <italic>Construction — Rules of Construction — Determination</italic> <italic>of Proper Disposition Solely for Testator.</italic> — It is solely for the testator, not the courts, to determine what is a liberal, just, equitable and proper disposition of his estate. p. 412. 10. WILLS — <italic>Construction — Rules of Construction — Laws of</italic> <italic>Descent Not Controlling.</italic> — Where the provisions of a will were clear and unambiguous, the laws of descent were not controlling, since the will was written to avoid these laws and to distribute the estate agreeable with the expressed desires of the testatrix. p. 412. 11. HUSBAND AND WIFE — <italic>Conveyances Between Husband and Wife —</italic> <italic>Absolute Title Passes — Property May Be Disposed of by Will.</italic> — A husband may transfer his real estate or any interest therein to his wife by direct deed, either for a valuable consideration or as a gift, when the rights of creditors are not involved, and when he does so, all of his title or interest passes so that the wife may dispose of the property by will as she desires, and there is no equity in favor of the husband requiring her to leave such property to him as her only heir. p. 412. 12. WILLS — <italic>Construction — Disposition of Residue.</italic> — Where a will provided a bequest to the sister of the testatrix for life with the remainder to the life tenant's two children, share and share alike, a clause providing that the residue of the estate, after other bequests, was to go to the sister upon the same terms and conditions was sufficient to pass the residue to the sister for life, and, upon her death, to her two children in fee. p. 412. 13. WILLS — <italic>Rights of Devisees — Death of Life Tenant During</italic> <italic>Administration of Estate Immaterial.</italic> — Where a will devised the residue of the testatrix' estate to her sister for life with the remainder to the sister's two children, the fact that the<page_number>Page 406</page_number> sister died after the death of the testatrix but before the estate was ready for distribution was immaterial, because the will speaks as of the time of the death of the testatrix. p. 414.

1. APPEAL — <italic>Briefs — Failure To Discuss Reasons for New Trial —</italic> <italic>Questions Waived.</italic> — Errors assigned in a motion for a new trial as causes therefor which are not discussed in the appellant's brief are deemed to be waived on appeal. Rules of the Supreme Court, 2-17(f). p. 426. 2. DAMAGES — <italic>Pleading, Evidence and Assessment — Personal</italic> <italic>Injuries — Instruction on Consideration of Permanent Injuries</italic> <italic>Proper Notwithstanding Absence of Expert Testimony.</italic> — Where plaintiff averred that he suffered injuries which would permanently impair him, and the evidence showed he suffered contusions and lacerations on his head, face, shoulder and leg, that his hearing was affected, that he had a ringing in his ears and suffered headaches, and that his shoulder hurt when he raised his arm, a situation of such objectivity was presented to enable the jury to determine the permanence of the injuries without evidence from experts; and it was not error to instruct the jury to consider the permanence of the injuries, if any, in assessing damages. p. 428. 3. DAMAGES — <italic>Pleading, Evidence and Assessment — No Evidence on</italic> <italic>Loss of Income — Instruction To Consider Loss of Income, If</italic> <italic>Any, Not Error.</italic> — An instruction advising the jury that it might include in the assessment of damages plaintiff's "loss of income, if any," was not objectionable on the ground that there was no evidence of loss of income, because by the use of the words "if any" the jury was instructed that it could only include damages for such loss if the loss had been proved. p. 428. 4. AUTOMOBILES — <italic>Injuries From Operation — Action — Trial —</italic> <italic>Instructions — Instruction on Negligence Per Se for Violation</italic> <italic>of Speed Statute — Instruction Proper.</italic> — In an action for personal injuries and property damage resulting when defendant's automobile overtook and collided with that of the plaintiff, it was not error to give an instruction, which quoted the applicable parts of the statute on speed and told the jury that if it found defendant violated this statute, he was guilty of negligence <italic>per se,</italic> and if it found such violation proximately caused the plaintiff's injuries and the plaintiff was free from contributory negligence, the verdict should be for the plaintiff. Burns' 1940 Replacement, § 47-2004. p. 430. 5. AUTOMOBILES — <italic>Injuries From Operation — Action — Trial —</italic> <italic>Instructions — Instruction on Negligence Per Se for</italic> <italic>Violation</italic><page_number>Page 423</page_number> <italic>of Reckless Driving Statute — Instruction Proper.</italic> — In an action for personal injuries and property damage resulting when defendant's automobile overtook and collided with that of the plaintiff, an instruction, which quoted from the statute defining reckless driving and instructed the jury that the defendant would be guilty of negligence <italic>per se</italic> if he violated that statute and that if they found he was guilty of such a violation which caused the plaintiff's injuries and plaintiff was free of contributory negligence, the verdict should be for the plaintiff, was not erroneous on the ground that it injected into a civil case a criminal offense and that it was beyond the issues. Burns' 1940 Replacement, § 47-2001(c). p. 431. 6. AUTOMOBILES — <italic>Injuries From Operation — Action — Trial —</italic> <italic>Instructions — Instruction on Motorist's Duty To Keep Lookout</italic> <italic>— Instruction Proper.</italic> — In an action for personal injuries and property damage resulting when defendant's automobile overtook and collided with that of the plaintiff, it was not error to instruct the jury that a motorist has a duty to use due care in observing the highway before him and that if they should find from the evidence that by the exercise of such due care the defendant could have stopped his vehicle and avoided the accident, and that a collision occurred because of the failure so to act, defendant would be guilty of negligence and, the plaintiff being free from contributory negligence, the verdict should be for the plaintiff, because the instruction was not subject to the objections made to it that it was repetitious, not within the issues nor applicable to the evidence, that it invaded the province of the jury and was peremptory and that it placed a higher duty on the defendant than required by law. p. 432. 7. AUTOMOBILES — <italic>Injuries From Operation — Action — Trial —</italic> <italic>Instructions — Instruction on Duty To Use Due Care —</italic> <italic>Instruction Proper.</italic> — Where the complaint averred that the defendant drove his car against the rear of plaintiff's car, specifying four separate acts of negligence, and the evidence showed that the plaintiff, after starting his car, traveling about thirty feet and shifting gears, heard a horn, and then his car was immediately struck from the rear, it was not error to give an instruction defining reasonable care and telling the jury plaintiff would be entitled to recover if the evidence showed that defendant, in the operation of his automobile, failed to exercise such care, which failure proximately caused the accident, and that plaintiff was free from contributory negligence; nor was the instruction vulnerable to the objection that it did not limit the jury to a consideration of only the negligence averred and<page_number>Page 424</page_number> proved, in light of other instructions which so limited the jury's consideration. p. 434. 8. TRIAL — <italic>Instructions — Form and Requisites — All of Law in</italic> <italic>Case Need Not Be Stated in Each Instruction.</italic> — Courts are not required to state all of the law in the case in each instruction given. p. 435. 9. TRIAL — <italic>Instructions — Construction and Effect — All</italic> <italic>Instructions Considered Together.</italic> — All the instructions given in a case are to be construed with reference to each other, and the entire charge is to be taken as a whole, not in detached parts, so that, if it is consistent with itself, and taken together states the law correctly, it is not subject to objection even if the whole of the law upon a particular head is not fully stated in one or more separate parts of the charge. p. 435. 10. AUTOMOBILES — <italic>Injuries From Operation — Action — Evidence —</italic> <italic>Admissibility — Defendant's Statement Admissible as Admission</italic> <italic>and as Res Gestae.</italic> — In an action for damages resulting from an automobile accident, plaintiff's testimony that defendant, a few moments after the collision, stated to the plaintiff, "I will sure try to get my company to pay you for this" was admissible in evidence both as an admission against interest and as part of the res gestae. p. 435. 11. AUTOMOBILES — <italic>Injuries From Operation — Action — Evidence —</italic> <italic>Admissibility — Testimony of Plaintiff as to Injuries</italic> <italic>Suffered — Checks for Hospital Bills — Evidence Properly</italic> <italic>Admitted.</italic> — In an action for personal injuries suffered in an automobile accident, plaintiff's testimony as to the injuries he suffered and checks given by plaintiff in paying his hospital bills were properly admitted in evidence. p. 436.