I'EDERAL UPbR tlie:distinction
vol.S7..
betilveen the:gift of a debt qua debt, and 'the gift of a sum of. money to arise when' the. debt shall have been reoovered and ceased to exist as a debt. In a gift of the latter class it may be inferred that the testator contemplated the recovery of the debt in his own lifetime, and intended to give, not the debt itself, but the amount to be receiv'edin J.'espect of it. When the, bequests are of this the fund received by the testator in his life-time may be followed through its transmutations, and reached, if capable of identification. The case of Doughty v. Stillwell, 1 Bradf. (Sur.) 300, is a departure from the doctrine of these authorities, and, so far as it sanctions the proposition that tbe ademption of a specific legacy caused by tbe act of the testator in extinguisbingtbe subject may be' nullified by extrinsic evidence .of bis motive or intentions, it is not approved. The bequests bere are for tbe sums given to tbe complainants, respectively, in case the executors should realize the amount by collecting the cotton claims, and, not otherwise. The testator, by collecting; the claims, himse!f,put it out of the power oOheexecutors to comply.with the provisionsofthe will,and to that. 'eXtent his acts were equivalent to a revocation of the bequests. The bill is dismissed. ' :" . · :. ; "I
WHI'l'E tt
ale
V.RUKES.:
(CirCUit Oourt, JJ. Indiana.
February 28, 1889.) . ', .
,', :
' . Testator l1ad many children, and devfsed re.al estate to several o.f them and heirs. the will OM devise of land was to "the , binrs of H.. {testator's sonl 'by lils paYing $600 ol'ltof -thll'l'ents andprotits yearly arising ,out,of the place." H. was named as one executors·. At testator's d.eath H. had one child, bQrn out of wedlock, 9ut which he and hfs wi'fe 'treated as their chUd,and another child in ventre lIa mere. and born a few weeks later. Three other children were born toR. 'afterwards.' Before executed, H. took possession of the land, and occupied it with testll-to,r'l!consent, and. continued to occupy. it for,22 years after testator's death, when he sold it. Held, that the devise should be construed as if it rtlad "to H. and ,his heirs... j' '
DESCRIPTION' OpDlilVISEE.
" Actiollby Winfield S. White and Sarelda White against Harrison J. Rukes to recover land. Trial by the court. James A. Shackelford andWilliatn H. Dye, for complainants. HarriiJ &: for defendant. GRESHAM,
James, Alexander, Amelia, Rebecca,Esther, and ,William. The entire estate was disposed of byth,e will, which was written by an unskilled, if not an illiterate,person; direoting the payment of, his debts and funeral expenses, and making money bequests to Polly,Malinda,
ai widow, and sons and daughters; namely,. Henry,Polly, Malinda,
J.
John A.White.died testate November 1, 1858, leaving
WHITE fl.
755
James, ," and, Alexander; the testator devised to' AOlelia and' her heirs, Malinda and her heirs, Rebecca and her heirs, Esther and her heirs, and William and his heifs,specific real estate. The devise to Esther was charged with the maintenance of her mother, and the devises to the other children were charged with the payment of specific sums to the execurors, to enable them to pay bequests, and otherwise carry out the provisions of the will. The sixth item of the will reads: "Also to the heirs of HenryWhite, 93 acres of land," (describing it) "by his paying six hundred dollars out of the rents and profits yearly arising from the, place, as.my executors may deem proper." The testator designated William Adams and Henry White as executors of his will and guardian of his minor children. Winfield S. White, the eldest child of Henry White, was born two years before his' parents were married, and their next childSerelda, was boruin wedlock, a few weeks after the testator's death. Winfield S. was born out of wedlock, he was recognized by ReIllY: his wife as their child, and as such became a member of their household. Three other children were born unto Henry and his wife. Some time before the death of the testator,-just how long the evidence fails to show,-Henry went into possession of the land described in the sixth item of the will. and with the knowledge and con,of the ,occupied and cultivated it, a'nd continued in possesuntil August 13, 1880,wh.en he conveyed it to by deed 'of general warranty, in consideration of $2,300, which was paid by the grantee. Shortly after this conveyance Henry removed with his family to Missouri, where he died in 1881, and Winfield S. and Serelda,. his two eldest children, then brought this action against'Rukes to recover the land, claiming it as devisees under the item above <11,10ted. The plaintiffs insist that the words "heirs of Henry White " should be construedtotpean "children ofllenr)' White, born orbegotten," thus excluding his three after-born children, and evincing ani'ntention to disinherit IIenry,: notwithstanding the testator's confidence in him, maniwill, and, So far as the fested bylIlakiag him one of the executors of one of the guardians of the leg'bteesand Wills are not so construed unless the language is clear and unambIguouS. It cannot be doubted that the testator intended to devise the land to his paying $600 out of the rents and some one who should hold it profits yearly from the The pronoun "his" refers not to to the last antecedellt,-Henry White;--who had eecupied "heirs, the land with the consent of the testator for some time before the will '.was executed. It is unreasonable to suppose that the testator intended to devise the land to all or part of Henry's children in such a way that the devise was liable to be defeated 10r the non-payment ,of an annual charge, and require or expect Henry to make such payments out of the rents and profits of the land, (only 93 acres.) although nothing was given to him. It appears from a fair construction of thesixtb item, in connection with the other provisions of the willi that the testator intended to. devise the land to Henry, charged 'with. the pay ment of $600 a ,year, which"with the annual charges against the lands devised to the
756
FEDERAL REPORTER,
vol. 37.
othet children, would enable. the executors to satisfy the specific legacies. The person who was expected to occupy and cultivate the land and pay the annual charges was in the testator's mind as the devisee. If "children".is substituted for "heirs," it becomes necessary to go further and substitute" their" for "his." And if the testator intended to devise the land to Henry's children, and at the testator's death there had been no such children, the devise would have lapsed or failed for want of a dtwisee. By transposing the "heirs of Henry White" so as to read "Henry White and his heirs," (thus conforming to the ,language employed in. making the other devises,) the words of the testator are prese,rved, all obscurity disappears, and the scheme of the will is upheld. When from the circumstances under which a will is made, the state of the property disposed of, the relation of the legatees, devisees, and others to it,and the general scheme of the instrument, the intention of the testator is manifest, it will be carried out, even to the of supplying and transposing words. Finding and judgment for the defendant.
VAN BII3BFlItet al.,'V. Wn,LIAMSON et al.v. SAME. McARTHUR
et,al. v.
MORRIS et ql. '!.I. SAME. JONES SAME. McARTHUR 11. SAME.
(Oircuit Gourt. So D. :()hio, W. D. March 1, 1889.)
1.
Under the Ohio occupying claimants' law. (2 Rev. St. 1886. c. 10, subd. 2,) which requires that the value of all "lasting and valuable improvements" made on the land shall be paid for in full. such value is not to be ascertained by what the improvements originally cost the claimant. but by the substantial benefit they confer I1pon the rightful owner, at the date of the commencement of the action. ' SAME...,.IlIIPROVEMENTS BY LIFE·TENAN'l'-LrABILI'1'1" OF REMAINDER-MEN.
CLAIMANTS-EsTIMATE OF IMPROVEMENTS.
2.
Improvements made by the life tenan t, or those holding under him, prior to his death. cannoJ be charged against the remainder-men, who, at the time the improvements were made, were minors. and in no position to interfere or complain.
On Exceptions to Report of Special· Master. King, Thompson &- Maxwell, ,for plaintiffs. R. A. Harrison, F. O. Goode, nndA. H. Gillett, for defendants. JACKSON, J. Consolidated causes pending on exceptions to the report of special master, filed herein January 2, 1889, upon the subject oflasting and valuable improvements, which defendants have placed upon the lands or several tracts recovered by plaintiffs. Aside from certain clerical errors or mistakes in the commissioners' report, which counselll.t the hearing agreed should be corrected, the exceptions taken by the severa:! defendants to the report relate chiefly to alleged excessive charges ofrent against them respectively, and the failure to allow them larger amounts for improvements. The plaintiffs' ex-
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