misrepresentation of fact, for he answered that he had no disease. As to what hemophilia is, the appellant quotes the Century Dictionary, vol. 4, page 2791:

"A congenital morbid condition characterized by a tendency to bleed immoderately from any insignificant wound, or even spontaneously; also called hematophilia, hemorrhaphilia, and hemorrhagic diathesis."

Dr. Osler and others in their text-books give substantially the same definition, and they refer to it as hemorrhagic diathesis. Dr. Koontz, a witness, was asked:

"Whether or not hemorrhagic diathesis is a constitutional disease?" Answer: "I do not consider any diathesis a disease." Question: "Is hemorrhagic diathesis a constitutional disAnswer: "It could not be in my opinion."

In making out the proof of loss,

Koontz had stated:

Dr.

"The disease was naturally of a hemorrhagic diathesis, which, in my judgment, was a potent factor in his fatal illness."

Counsel for appellant asked him to state, "What do you mean by hemorrhagic diathesis?" to which he answered:

"Diathesis means a susceptibility, a vulnerability, to disease. Hemorrhagic merely qualifies pertaining to hemorrhage; being a potent factor means that it was one of the most important things in my judgment in the case."

Dr. Slayden said that:

quest by the company to withhold burial, and to the right of the company to make an autopsy upon the body of the assured. The policy contained this provision:

"The company shall have the right and opportunity to examine the person of the assured in case of accident or disability, at such times and in such manner as the company shall require, and in case of death shall have the right to make or participate in an autopsy upon the body of the assured, where not forbidden by statute."

On the 27th of August the father of the assured addressed and mailed a letter to the company at Boston, setting out in detail the manner in which the assured had received his injuries, and stating that in the opinion of the attending physicians there was no hope for his recovery. On the next day he died, and the father sent to the company at Boston this telegram:

noon, result of injury received August 23rd. "My son David W. died at 2:30 this afterSee letter of August 27th.

"[Signed] D. J. Duncan."

This telegram went as a night letter; that is, was not to be delivered until next morning. It was delivered to the company at 10 o'clock on the morning of August 29th. It seems that the letter had not been received at that time. The company sent the following telegraphic reply, which the father re

"Duncan was of a hemorrhagic diathesis; but ceived at 1:30 o'clock that afternoon : that is a vulnerability, not a disease."

One may be vulnerable to tuberculosis by an inherited predisposition, and still may never have it. One's skin may be thin, and in that way he may have an inherited vulnerability to sunburns, and yet keep free of them. In the same way, one may be vulnerable to hemorrhages, that is, by inheritance be more susceptible to them than others, yet he may never have a hemorrhage.

The testimony of Dr. Furgerson and Dr. Tichenor is to the same effect. The evidence of these doctors, as well as other witnesses, who were intimately acquainted and associated with the assured, shows that he was in good health, up and about at all times, attending to all his duties. Except the instances of bleeding already referred to, his complaints were no different nor more frequent than those of the ordinary person.

[3, 4] When the applicant answered that he was sound physically, it did not necessarily mean that he was as sound, or that his anatomy was as perfect, as the strongest, or even the average, man. The question related only to his own condition measured by what it had been, and by the answer one naturally infers that he was sound as compared to his condition theretofore. In this particular it was for the jury to determine from the evidence whether the assured made truthful answers. The jury believed that his answers were truthful, and we are of opinion that the evidence sustains their verdict.

"Legal department in absence of details requires further investigation. Adjuster will be in Greenville immediately. Withhold burial as autopsy may be necessary.'

The weather was warm, he died the day before at 2 o'clock, funeral notices had been distributed among friends, and all arrangements had been made for the burial that day at 4 o'clock. During the next 21⁄2 hours, the interval between the telegram and the hour fixed for the funeral, the adjuster did not appear, and no word came from him. Instead of postponing indefinitely, and dismissing the company of friends, they proceeded with the funeral as announced. By this telegram the company did not demand an autopsy, or say that one would be demanded, or even be necessary. It amounted to a request to withhold the burial for an indefinite time—until the adjuster got there. The telegram did say that the adjuster would be there immediately; but he did not come immediately, and the family receiving no word from him, and having no information as to his whereabouts, they could not know how long it would be necessary to hold the remains in order to comply with the request. That day, after the burial, the adjuster in Owensboro did call some friend in Greenville, not connected with the family, and in that way received the information that the interment had already taken place. Subsequently numerous letters passed between the company and the father, who was acting for the beneficiary.

The following, taken from a letter of Sep

quest or demand made by the company for an autopsy:

"Will you be good enough to advise at once whether or not you will permit said autopsy?" On November 6th the company wrote: "We desire permission immediately to disinter the body of said David W. Duncan for the purpose of performing an autopsy thereon."

"It might be possible, but, without some cause, a very improbable thing in my opinion." He was then asked:

"State to the jury whether or not an autopsy performed on the body of David W. Duncan would have shown what was the cause of the and may not have. internal hemorrhage." Answer: "It may have I judge it would have at least given some information; I doubt that." Question: "It would have been a help, would it not, Doctor?" Answer: "It would have been; but, as to its being specific, I rather doubt it."

It does not appear that the testimony of this doctor refers to the time when the moIn all probability he referred to the time of death. We are satisfied

tion was made.

red to the time of death.

It is the contention of Mrs. Duncan that she neither refused nor granted permission to disinter the remains or to make an autopsy. Technically her position was one of neutrality, although there is no attempt to conceal a natural feeling of abhorrence to the idea of reopening the grave. The only evidence to show a denial of the request that the evidence does not show sufficient reacomes from Mr. Carey, employed by the ap-son for ordering a disinterment and autopsy pellant as a claim examiner, and he says that in April, seven months after the burial, and on the 14th of October, 1913, he met Mr. D. the question of error can only be measured J. Duncan, the father, at the Seelbach Hotel by the ruling at that time. in Louisville, in an effort to adjust the claim. Carey says he then requested permission to make an autopsy, and that Mr. Duncan "re-ial, or by the failure then to give consent to fused to permit an autopsy, stating that he wished said defendant company to examine certain proofs of claims about to be filed with defendant company, and that he thought the company would pay the claim upon a basis of the information

[8] We are of the opinion that the policy was not voided by a failure to withhold bur

an autopsy, or by refusing permission on the 14th of October, the time referred to by Mr. Carey, which was 45 days after the burial. Certainly no positive demand was made for an autopsy before the time referred to by Mr. Carey, and Mr. Duncan's response to him hardly amounts to a refusal. He suggested [6, 7] At the April term of court the com- certain proofs in lieu. In Granger Life Inpany entered a motion, supported by affida-surance Co. v. Brown, 57 Miss. 308, 34 Am. vits, and for the first time made formal de

contained in said proofs."

mand to have the remains exhumed and an autopsy held. The appellee filed a response, in which she maintained her position of neutrality; that is, said she had never denied nor consented to an autopsy. The court overruled the motion, and, in our opinion, properly so. The motion was addressed to the sound discretion of the court, and it was incumbent upon appellant to show with reasonable certainty that an autopsy then made would disclose bodily conditions from which it could be determined whether the assured died of disease or accident. Had it been a case of suspected metallic poisoning, no doubt an autopsy, made even seven months after burial, would have thrown light on the question; but where the conceded cause of death was a ruptured blood vessel, a condition involving tissues and membranes only, it is doubtful if an autopsy at any time would have shown whether the rupture was spontaneous or accidental, and especially is this - so if made at a time when decomposition was so far advanced. The depositions of several doctors who testified on the trial accompanied the motion for an autopsy; but, except in the case of Dr. Koontz, there was absolutely no showing from any of them to indicate that an autopsy would be of any aid in determining the question, and the testimony of Dr. Koontz was not sufficient to justify the court in sustaining the motion. Dr. Koontz, in answering the question whether a hemophiliac might have internal hemor

Rep. 446, the court said:

"We are not prepared to say that in a proper case the court, in the interest of justice, should not compel the exhuming and examination of a dead body which is under the control of the plaintiff, if there is strong reason to believe that without such examination a fraud is likely to be accomplished, and the defendant has exhausted every other method known to the law of exposing it."

But in this case neither the evidence nor the affidavits show that an examination would disclose anything material. The company never demanded an autopsy, and did not exhaust its efforts to have an examination. During the boy's illness the father notified the company by letter of the accident and the probable consequence. While the company had not received this letter when it received the telegram giving notice of death, yet in ordinary course of the mails the letter should have been in the hands of the company at that time, and the father naturally so believed. Measured by the custom in that section, the burial was not hasty, and we are satisfied that none of appellant's rights were violated when the remains were buried as theretofore planned, and, under all the circumstances, the appellee did not thereby forfeit her rights, particularly when it is not shown that an examination of the body would have thrown any additional light on the case. Wehle v. U. S. Mut. Acc. Ass'n, 153 N. Y. 116, 47 N. E. 35, 60 Am. St. Rep. 598.

[9] The company argues that, since the assured was its agent, there was no one at

W. B. Miller, of Chattanooga, for appellant. Sizer, Chambliss & Chambliss, of

tect its interests; therefore it could not act by the Court of Civil Appeals, Mrs. Long immediately. This circumstance made it nec appeals. Affirmed. essary to send an adjuster from some other point. But the telegram did not make it known who the adjuster would be, or from Chattanooga, for appellee. what point he would come, or how much time would be required. The disadvantage to which it might be placed in this particular case must be considered as waived by the company when it accepted an application from and issued a policy to its own agent.

[10] We are of opinion that the evidence of Dr. Slayden with reference to the state

ment the young man made to him as to how he was injured was competent. Omberg v. U. S. Mut., etc., Co., 101 Ky. 303, 40 S. W. 909, 19 Ky. Law Rep. 462, 72 Am. St. Rep. 413.

of the validity of the will of R. N. Phillips, GREEN, J. This case presents a contest deceased. The question submitted is whether it was necessary for the testator to have made known to the subscribing witnesses the nature of the document.

The proof showed that R. N. Phillips lived

in Chattanooga at the Mountain City Club. He had been ill and confined to his room for several days, and upon his recovery executed the will in controversy here. He [11] Appellant insists that, if the deceased wrote the will himself on the stationery of suffered from a strain, he can only recover the club, and signed it. After signing it he $50. Section 13 of the policy provides that if took the paper to L. W. Llewellyn, exhibited the assured be disabled within six months "by it, and asked Mr. Llewellyn to witness his rheumatism, tuberculosis, ** * strains, signature. The paper was so held or folded. then the company will pay the as- by Phillips that no part of its contents could sured $50 per month for the number of be seen or its character ascertained by Llewmonths that the assured is confined or dis- ellyn. Llewellyn demurred to signing the inabled thereby." As already stated, the pol-strument on the ground that he did not like icy provided indemnity for death or disability due to accident, and for disability due to certain diseases. The $50 per month for a strain covered such time as he may be disabled thereby, but was not intended to be in satisfaction of a claim for death, if it

* * *

resulted therefrom.

We perceive no error in the instructions, and on the whole case we are of opinion that the judgment should be affirmed; and it is so ordered.

LONG v. MICKLER.

(Supreme Court of Tennessee. Oct. 16, 1915.) 1. WILLS 123-REQUISITES-EXECUTIONWITNESSES.

Where the testator wrote out his will, signed it, and on his request procured the signature of one witness without disclosing that it was a will, and that of another witness after disclosing it to be his will, it is valid, under Shannon's Code, 3895, providing that no will shall be good unless written in the testator's lifetime and signed by him and subscribed in his presence by two witnesses, although neither witness saw him sign or subscribed as witness in the presence of the other witness.

[Ed. Note.-For other cases, see Wills, Cent.

Dig. $$ 321-331; Dec. Dig. 123.]
2. WILLS 119-EXECUTION-WITNESSES.

Unless publication of the contents of a will to the subscribing witnesses is required by statute, they need not be informed of the character of the document when they subscribe.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 305-313; Dec. Dig. 119.]

Appeal from Circuit Court, Hamilton County; Nathan L. Bachman, Judge.

to sign anything without knowing what it was. Phillips replied, "Well, you know that is my signature," and thereupon Llewellyn signed the instrument at the request and in the presence of Phillips as a witness. Phillips then took the paper to W. W. Spotts and requested Spotts to sign it, telling him that it was his (Phillips') will. Spotts thereupon signed the paper as a witness, in Phillips' presence. About a week later Phillips told Llewellyn, the first witness, that the paper the latter had subscribed was his (Phillips') will.

Upon the foregoing testimony being offered, the trial judge directed a verdict in favor of the will, there being no question made upon its validity except the failure of the testator to make publication of its contents to the subscribing witnesses. The Court of Civil Appeals affirmed the judgment Court of Civil Appeals affirmed the judgment below, and we think the action of the two courts was proper.

[1] It was not necessary that either of the witnesses should have seen the testator sign the paper, nor that either should have subscribed it in the presence of the other witness. Simmons v. Leonard, 91 Tenn. 183,

18 S. W. 280, 30 Am. St. Rep. 875, and cases cited.

The statute of Tennessee is as follows: "No last will or testament shall be good or sufficient to convey or give an estate in lands, unless written in the testator's lifetime, and signed by him, or by some other person in his presence and by his direction, and subscribed in his presence by two witnesses at least, neither of whom is interested in the devise of said lands." Shannon's Code, § 3895.

Will contest between Emma Long and This statute is founded on the section of Margaret Mickler. From a judgment on a the statute of frauds relating to wills (29 directed verdict in favor of the will, affirmed Car. II, c. 3), which provides that a devise

STATE v. WILCOX. (No. 18364.)

Mozley & Woody, Fort & Green, and J. W. Farris, all of Bloomfield, for appellant. John

(Supreme Court of Missouri. June 29, 1915.) T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.

1. INDICTMENT AND INFORMATION 202 SUFFICIENCY-AIDER BY VERDICT. An information for embezzlement not as- BLAIR, J. In the Stoddard county cirsailed before the trial on any of the grounds cuit court defendant was convicted of emmentioned in Rev. St. 1909, 8 5115, providing bezzlement and sentenced to three years in that no information shall be deemed invalid, the penitentiary, and has appealed. Two othnor shall the proceedings be affected by reason of certain specified grounds, held good after ver- er cases against appellant were submitted in dict. Division No. 2 at the same time this case was submitted. In those cases opinions have been handed down in each of which reference is made to this case for the statement of 39-EVIDENCE-OTHER the facts upon which the decisions therein

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 640-650; Dec. Dig. 202.]

2. EMBEZZLEMENT

OFFENSES-INTENT.

In a prosecution for embezzlement by a bank cashier evidence of shortages in the bank's assets other than those resulting from the transaction counted on was admissible upon the question of fraudulent intent, where there was evidence that defendant was responsible for the entire shortage which he had continuously contrived to conceal.

[Ed. Note. For other cases, see Embezzlement, Cent. Dig. § 62; Dec. Dig. 39.]

SIBILITY.

depend. Finding the statement made in the opinion in division to be correct, it will be used (substantially) in this opinion. No change is made which affects the references in the two other cases mentioned.

The amended information described the property defendant was charged with embezzling as "certain money, property, rights in action, valuable securities and effects, a par

3. CRIMINAL LAW 396-EVIDENCE-ADMIS- ticular description of which is to the prosecuting attorney unknown," to the amount and value of $1,000.

In a prosecution for embezzlement by a bank cashier, where evidence had been admitted showing a general shortage in the assets of the bank as bearing upon fraudulent intent, testimony by accused tending to explain the shortage was improperly excluded.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. 396.]

4. EMBEZZLEMENT

23-INSTRUCTIONS-DISPOSITION OF PROPERTY EMBEZZLED.

The evidence tended to show that the City Bank of Bloomfield was incorporated in 1900, its stock being practically all owned by George Houck, who died in 1907, leaving his stock to his two sons, George and Rudolph S. Defendant was cashier of the institution during its entire existence. He was a nephew of George Houck, Sr., and was 44 years old at the time of the trial. On May 14, 1912, defendant owed the Bank of Bloomfield, located across the street from the City Bank, a note for $2,500, on which, on the day mentioned, he paid $1,000, delivering his check drawn on the City Bank for that purpose. This check was paid by the City Bank in the ELEMENTS-DEFINITION-"IMPLY." "exchange of checks" for that day's business. Conversion is any dealing with the prop-It was never charged to appellant's account, erty of another which excludes the owner's dominion; the word "imply" meaning it is "virtually involved or included; involved in substance; inferential, tacitly conceded-the correlative of express or expressed."

In a prosecution for embezzlement by a bank cashier, an instruction that the fact that the proceeds of the check whereby the embezzlement was consummated went to another did not constitute a defense, was not erroneous. [Ed. Note. For other cases, see Embezzlement, Cent. Dig. §§ 31-352; Dec. Dig. 23.]

5. EMBEZZLEMENT 11-"CONVERSION" —

[Ed. Note. For other cases, see Embezzlement, Cent. Dig. §§ 9, 10; Dec. Dig. 11. For other definitions, see Words and Phrases, First and Second Series, Conversion.]

6. CRIMINAL LAW 730-TRIAL-CONDUCT OF COUNSEL-CURE OF ERROR.

That counsel expressly advised the jury not to read the instructions, but to return a verdict forthwith, was cured by the direction of the court that the jury pay no attention thereto.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. 730.] Bond, J., dissenting.

but (he testified) was carried as a cash item until November 18, 1912, when the City Bank was closed by the bank commissioner. There was also evidence that there were 40 or 50

other checks of the same kind drawn and

signed by appellant for sums aggregating $18,000 or $20,000, and paid by the City Bank, none of which had been charged to appellant's account; that defendant brought all these checks from his house and gave them to the bank commissioner subsequent to the closing of the bank; that there was a shortage totaling $78,000; and that defendant admitted he was responsible for it all. There was other evidence that about November 18, 1912, appellant stated that the whole trouble

In Banc. Appeal from Circuit Court, Stod- was due to the Bloomfield Mercantile Comdard County; E. M. Dearing, Judge.

A. D. Wilcox was convicted of embezzlement, and he appeals. Reversed and remanded.

See, also, 179 S. W. 482, 483.

pany, of which he was president and principal owner, and that he claimed that the $2,500 note above mentioned was, in fact, the debt of the mercantile company.

In his testimony appellant specifically de