dertakes to complete the contract of carriage. This is as far as the decision in the Dimmitt Case goes. But the statute can only be held to adopt so much of the English rule as is consistent with it. It cannot properly be held to abrogate the existing law in this state, unless inconsistent with it. The statute, ingrafted upon the law of this state, as it then existed, makes the rule by which we must be governed. The English law does not make it. To the extent, then, that the statute declares the English rule, the decisions of the English courts would be authority for its interpretation, but they would not be authority where the statute and the rule conflict. The statute must be interpreted in the light of our own law, and, so far as possible, in conformity to it. In the Dimmitt Case, supra, the court says: "By its provisions, the act of acceptance by a common carrier of property to be transferred to a place beyond the terminus of its route is evidence of a contract to carry such property to the place of its destination. The act of issuing a receipt or bill of lading for property to be transferred to a place beyond the terminus of the route of a common carrier is evidence of a contract by such carrier to carry such property to the place of its destination. This prima facie case the statute makes for the plaintiff on the facts stated. In order to defeat it, the defendant must show that, by specific agreement, it only contracted to carry the property to the terminus of its own line, or, what is equivalent, that there was a specific agreement that it was to be liable only for loss or damage occurring on its own line." This is a fair statement of the interpretation given by the English courts to contracts for transportation beyond the route of the receiving carrier. Hutch. Carr. § 147; Lawson, Carr. § 238. The law as stated is also within the terms of the statute, and is inconsistent with the law of this state as previously declared by this court. Coates v. Express Co., 45 Mo. 238; Snyder v. Express Co., 63 Mo. 376. The provision of the statute is that "wherever any property is received by a common carrier to be transferred from one place to another." This language does not restrict, but rather recognizes, the right of the carrier to limit its contract of carriage to the end of its own route, and there deliver the property to the connecting carrier. There can be no doubt, then, that, under the statute as well as under the English law, the carrier can, by contract, limit his duty and obligation to carriage over its own route. But it seems that, under the decisions of the English courts, a carrier can also limit his liability to a loss or damages occurring on his own route by specific agreement that it should only be so liable. In the Dimmitt Case the rule is stated to its full extent, though unnecessary to the decision in that case, there having been no attempt to make such limitation. While, under the decisions of this court, it had been held that a carrier could, by contract, limit its common-law liability of insurer, it was be

fore the statute, and has been since, uniformly held that he could not, by contract or otherwise, relieve himself from liability for loss or damage occasioned by his own negligence, or that of his agents or employés. Such was the law when this statute was enacted. There is nothing in the statute that indicates an intention to change it. Indeed, it seems to be recognized, for the statute, by its terms, only declares a liability for loss or damage caused by negligence. The dictum of the court in the Dimmitt Case, to the effect that an agreement that a carrier should only be liable for loss or damage occurring on its own line is equivalent to an express contract to carry the property only to the terminus of its own line, cannot be taken as the law of this case, where there is an express contract and also an agreement for nonliability. Where the original undertaking is in doubt, such an agreement might be evidence of the intention of the parties in respect thereto. This question is not involved here, and need not be decided. We cannot, therefore, give such an interpretation to the statute as would permit a carrier to contract for a through shipment, and at the same time exempt himself from liability on account of the negligence of connecting carriers. Such an interpretation would in effect operate as a repeal of the vital provisions of the law which declare a conclusive liability in such case. The statute does not undertake to change the law in respect to liability of a carrier for his own negligence, but to extend it to connecting carriers as well, and declare a liability for negligence without regard to which was in fault. Under these views of the law, no difficulty is found in giving construction to the contract. The agreement to carry from Stoutsville to Chicago is absolute and unconditional. The thirteenth condition or covenant can only be regarded as an attempt, on the part of defendant, to relieve itself from the responsibility of answering for the negligence of the carrier by which it undertook to complete the contract. The statute forbids such qualification of the contract. It can only be held to relieve defendant from its common-law liability of an insurer. The ruling of the court in respect to giving and refusing the instructions mentioned was correct.

2. We are unable to see, as contended by defendant, that the construction we give this statute makes it repugnant to that provision of the constitution of the United States which gives to congress alone the power to regulate commerce among the states. The act in no way operates as a regulation of trade and business among the states. No burden or restriction on transportation is imposed. Carriers are left free to make their own contracts in regard to compensation for their services for transportation between the states, subject to congressional regulations. The statute merely prohibits a carrier who, by contract, undertakes to transport property to a point beyond its own route, from relieving itself of

its duty. It only imposes the duty and liability which the law, from considerations of public policy, imposes upon all common carriers in the transportation of property over their own lines, though they may extend into other states. A statute of Iowa which provided that no contract of a common carrier should exempt it from its common-law liability was held by the supreme court of that state not to be in conflict with the commercial power of congress prescribed by the constitution. Hart v. Railroad Co., 69 Iowa, 490, 29 N. W. 597. See, also, to the same effect, Solon v. Railway Co. (Iowa) 63 N. W. 692, and Bagg v. Railway Co. (N. C.) 14 S. E. 79. The judgment is affirmed. All the judges concur, except SHERWOOD, J., who dissents.

SCOTT et al. v. NOEL.

(Court of Appeals of Kentucky. Nov. 23, 1895.)

MORTGAGES-FORECLOSURE-WRIT OF POSSESSION.

Where a motion to enjoin the execution of a writ of possession for land sold under a mortgage is filed, in which a claim to the land adverse to the mortgage is set up by a person in possession, and not a party to the foreclosure suit, the court, on overruling the motion, with leave to amend, should not award the writ of possession.

and Annie Scott (an infant who sues by her friend, Tinoleon Scott) offered and presented their petition in this cause, asking to be made parties thereto, and that the same be taken as their answer. It is alleged in substance in the petition that Tinoleon Scott, Bettie Green, Catherine Cortney, Laura Green, and Annie Scott are the children of the defendant W. C. Scott, and grandchildren of Sarah S. Scott, deceased; that Westley A. Gains did, by deed duly recorded in the coun ty clerk's office of Franklin county, convey to the defendant W. C. Scott for life, and after death to these petitioners and defendant William Scott, a tract of land in said Franklin county containing about 150 acres, of which tract the land herein adjudged to be sold is a part, and that Sarah A. Scott, in her lifetime, by and with the consent of defendant W. C. Scott, allotted to Tinoleon Scott 25 acres of said land, upon which he built a house and other improvements, and that he has had possession of same, holding it adversely to all the world,-residing on it,-for more than 15 years past, said 25 acres being em braced in the mortgage and judgment herein; that since said allotment to Tinoleon Scott about 25 acres of said land have been alotted to Bettie Green and William Scott, each, who have also improved same, and reside upon and

Action by John C. Noel against William Scott and others to foreclose a mortgage. From a judgment foreclosing the mortgage and awarding a writ of possession, against the petition of Tinoleon Scott and others, they and defendants appeal. Reversed in part.

John L. Scott & Son, for appellants.

GUFFY, J. On the 15th of April, 1891, the appellee, John C. Noel, instituted suit in the Franklin circuit court against William Scott, W. C. Scott, and their wives, seeking to obtain judgment upon a note for $200 executed to him by the said William and W. C. Scott, and also seeking to enforce an alleged lien for the payment of the note on a 50-acre tract or parcel of land mortgaged to him (Noel). The defendants answered and pleaded a payment of $160, but the court upon final hearing rendered judgment in appellee's favor for the amount claimed, and adjudged a sale of the land, or enough thereof to satisfy the judgment. The land was afterwards sold, report confirmed, and deed made, Noel being the purchaser. It appears that the judgment of sale was rendered December, 1891, and the sale made January 4, 1892. Noel purchased the land at his bid of $249.10, the land having been appraised at $600. The report of sale was confirmed May 6, 1892, and on the next day the conveyance to Noel was made, acknowledged, approved, and ordered to be certified. It seems that on the 4th of January, 1893, appellants Tinoleon Scott, Bettie Green, L. C. Green, Catherine Cortney,

right to the land, and file copy of the deed referred to, and pray that the judgment be vacated or modified, deed be canceled, and plaintiff, Noel, be enjoined from executing the writ of possession, and for all proper relief, etc. On the 5th of January, 1893, appellants' motion for injunction was overruled, and leave given to petitioners to amend their petition. On the 12th of January, 1893, a writ of possession was awarded plaintiff for the possession of the land sold. On the 15th

iarch, 1893, appellants procured an appeal, and now ask that all the foregoing orders and judgments be reversed.

The allegations of the petition of Tinoleon Scott and others, taken in connection with the deed filed, tend to show that they have an interest in the land sold, and the order overruling their motion for an injunction, and the order awarding plaintiff a writ of possession for the land sold, may be taken as in effect adjudging their claim to be invalid, and it was error to award the writ at that time; and the judgment to that extent is reversed, and cause remanded, with directions to set aside said order, and to permit the parties to litigate their claims to the land. The personal judgment against William and W. C. Scott is sustained by a preponderance of the evidence, and is therefore affirmed. The judg ment for sale of the land, and order confirming same, as well as the conveyance, are left for the final determination of the court, after hearing the case prosecuted by Tinoleon Scott and others. Cause remanded for further proceedings consistent with this opinion.

HOOD et al. v. DAWSON et al. (Court of Appeals of Kentucky. Nov. 20, 1895.)

WILLS-CONSTRUCTION.

1. Testator gave a certain farm "to W. * and his children forever, but if W. shall die leaving no child" the farm was devised to J. Held, that W. took a fee simple, to be defeated only in case he died without children; the words "his children forever" being words of limitation, and not of purchase, creating an estate tail, which by statute was made a fee simple.

2. A statutory provision that, where an estate is given to any person "for his life, and after his death" to his heirs or to the heirs of his body, the same shall be construed to be a life estate, does not affect such will, as in such case no estate is given for life.

Appeal from circuit court, Mason county. "To be officially reported."

Action by Sarah E. Hood and others against Richard Dawson and others. There was a judgment for the latter, and the former appeal. Affirmed.

John L. Scott & Son and Horace S. Clarke, for appellants. E. L. Worthington, for appellees.

GRACE, J. The questions presented in this record involve the title of a tract of land of some 180 acres, lying in Mason county, and near the city of Maysville, and supposed to be of considerable value. This land is claimed by Sarah E. Hood, the appellant, who is the sole child and heir at law of James Wilson, the son of Robert Wilson, and devisee under the will of his uncle, James Wilson. It is also claimed by the appellees as vendees under deed from James Wilson, the devisee aforesaid. So that, both claimants tracing title back to James Wilson, Sr., and claiming same under his will, the first and only thing to do is to determine the construction and true meaning of same. The material clauses of this will bearing in any degree on this case are as follows: "(2) I give and bequeath to my beloved wife, Priscilla Wilson, during her natural life only, all my estate, both real and personal." "(3) At the death of my wife, I give to James Wilson, the son of Robert Wilson, the farm on which I now live, to him and his children forever; but if the said James Wilson shall die leaving no child nor children of his own, lawfully begotten, then I give the said farm to my two nephews, James Wilson and Joseph Wilson, the sons of my brother, William Wilson." By the fourth clause of his will testator, after making some minor bequests to some servants and to his wife's kindred, says: "And all the rest and residue of my estate I give and bequeath to said James Wilson, son of Robert Wilson, above named, to him and his heirs forever." The contention of appellant is that under the third clause of this will her father, James Wilson, Jr., only took a life estate, with re

mainder to his children, she being the only one; while the appellees contend that James Wilson took a fee in said land, to be defeated only on the condition that he died leaving no child or children surviving him; and that, leaving plaintiff his only child, his title became absolute, and inured to the benefit of his vendees and appellees, who claim under them. The will was written in 1834. James Wilson, Sr., died in 1837. In 1841, James Wilson, the devisee, sold and conveyed with warranty against himself and his heirs, this land to Respess and Coleman, and by subsequent conveyances same came regularly to the appellees. James Wilson, Jr., the devisee, lived until 1891. The true intent and meaning of this third clause of testator's will is appealed to by both parties in support of their respective claims.

Cases involving similar or substantially similar language in other testaments have so often been before this court that the meaning to be attached to the one now under consideration is believed to be a question of authority and precedent, rather than of argument. Many cases are cited by both parties, each party citing those most favorable to his present contention. In the case of Bradley v. Skillman, 3 Ky. Law Rep. 734, the devise was in these words: "I give and bequeath to my son Shelton [Bradley] all the residue of my property after paying my debts and the foregoing legacies, to him and his heirs or children, should he have any, forever; but should my son Shelton die without heirs, then the residue of my estate that may come into his possession agreeable to this my will is to be equally divided," etc., between his (testator's) several grandchildren. This case was, upon full consideration, held to vest a fee-simple estate in the son, Shelton Bradley, subject to be defeated only by his dying without heirs or children. He left children, who claimed as devisees in remained as against the vendees of their father. Some points of similarity in the two cases may be noticed.-as that in each case the devisees had no child at the time of making the devise; that in each case there was a devise over in the event the devisee named should die without child or children surviving him; and that in each case the testator, by the terms of the devise, and in attempting to describe its devolution, says, "To him and his heirs or children forever." In each case the devisee sold the property as his own, and in each case, after the death of the devisee, the heir at law filed suit against the purchaser in possession. True, in the case cited the language used is, "to him and his heirs or children forever," while in the case under consideration the language is, "to him and his children forever," but the court in the case cited holds the words "heirs" and "children" to be used interchangeably, and as meaning one and the same thing. In the case of Mooran v. Dillehay, 8 Bush, 434, the contest arose under the will of Larkin Landidge, and upon the following clause: "I give to my daughter Har

riett Givens one negro man, Lewis, negro boy named Alfred, negro woman named Anna," etc., "which property I give unto my daughter Harriett Givens and her heirs forever; and if she should die and leave no heirs of her body it is my will that all the land and negroes I have given her should go to my daughter Eleanor Hocke and her children." In considering this case the court said: "We are well satisfied that the devisor, in using the words, 'I give unto my daughter Harriett Givens and her children forever,' meant and intended the words 'children forever' to be words of inheritance only, and used them in the sense of 'heirs' or of 'heirs of her body'; and this construction of the will is fortified by prior and subsequent clauses and language in the instrument evidently showing the words 'children forever' were used by the testator and draftsman of the will as synonymous with the words 'heirs' or 'heirs of the body.'" Several other clauses in the will then under examination are quoted to show that the testator, by the words used, intended to vest a fee in his daughter, to be. divested only in the event of her dying without leaving children; and the court in that case held a fee in the daughter Mrs. Givens, subject to be divested, etc. In other words, the court held the words "children forever" to be words of inheritance, and not words of purchase. In this case it will be noticed the words of the gift are identical with the words used in the testament under consideration. In the case of Lachland's Heirs v. Downing's Ex'rs, 11 B. Mon. 32, the question arose under the will of George Downing, and the language of the devise was as follows: "All the residue of my estate, whether real, personal, or mixed, not herein otherwise disposed of, I devise may be equally divided after my death between my brother John Downing and my two sisters Elizabeth Cameron and Nancy Gibson and the children of sister Nelly Lachland, to them and their children forever," etc. In that case it was held that the words used, as applied to the devise to his brother and his two sisters, "to them and their children forever," were words of limitation or inheritance, and not words of purchase, so that as to these several portions the brother and each sister took a fee, with nothing to the children of either. Again, the similarity of the words employed and the words under consideration is strikingly apparent. The court said: "But the words actually used ["to them and their children forever"] evidently occupy the place of what is called the 'habendum,' and is an abridgement of the usual habendum clause; the office of which is not to introduce new grantees or donees, but to describe the estate or interest of those already named or designated" (as the granting clause). In the case of Williams v. Duncan (Ky.) 17 S. W. 330, the question arose under the will of William C. Williams, as follows: "The remainder of my property on Fifth street, between Main street and the river, in the city of Louisville, I give and de

vise to my grandsons and their children." Under this will it was held: "That while the word 'children' is not, like 'heirs, a word of limitation, importing by its own force a feesimple estate, yet it will be so construed when necessary to effectuate the intention of the testator as made manifest from a consideration of his whole will. Under this devise by a grandfather to his grandchildren and their children the grandsons take a fee-simple estate, it being manifest throughout the will that it was used in the sense of 'heirs."" Here again the language in the two devises is the same, except, indeed, that in the devise under consideration the word "forever" is added.

In these several cases cited numerous other authorities are quoted in support of this same view. We conclude: The authorities cited are sufficient to place the case under consideration in the list of those where, by the language used in this will, "I give to James Wilson the farm on which I now live, to him and his children forever; but if the said James Wilson shall die leaving no child nor children of his own, lawfully begotten, then I give the said farm to my two nephews, James Wilson and Joseph Wilson, the sons of my brother William Wilson, to them and their heirs forever,"-an estate in fee simple was created in James Wilson, to be defeated only in the event that he should die without children. That he took the feesimple estate, and that his child took nothing; and hence that his deed of conveyance passed good and perfect title to his vendees, and that his daughter, the appellant, cannot recover. That the granting clause of this devise is first to him, James Wilson, and that the further clause, "to him and his children forever," is but descriptive of the estate taken, and not intended to introduce new beneficiaries. That the words "to him and his children forever" mean as clearly "to him forever" as they do to "his children forever." That, as used, they are equivalent to the words "heirs," or "heirs of his body," or to an indefinite issue. That, as used, they become words of limitation, and not of purchase. That under the common law they would have created an estate tail, which for a long time, in Kentucky, by statutory enactment, has been declared to be an estate of inheritance in the first taker. That these words, as thus used and construed, are not in violation of the statute, which provides "that when any estate shall be given by deed or will to any person for his life, and after his death to his heirs or to the heirs of his body, or his issue or descendants, the same shall be construed to be estate for life only in said person, and a remainder in feesimple in his heirs or the heirs of his body or his issue or descendants." This statute has often been recognized and upheld by the courts, and yet the question remains (preceding in every case its application) "whether an estate has been given for life only to any one." Certainly it has not been done in

this case, for we observe by the second clause of the testator's will he did create a life estate in his wife in this identical property. He did it in these words, "I give and bequeath to my beloved wife, Priscilla Wilson, during her natural life only, all my estate, both real and personal,"-words far different from those used in the third clause under consideration. Manifestly testator knew the difference between an estate for life and one of inheritance. In the latter part of the fourth clause of his will he says, "All the rest and residue of my estate I give and bequeath to said James Wilson, the son of Robert Wilson, above named, to him and his heirs forever." Here he gave an estate of inheritance, pure and simple, without conditions. And in the third clause, different still from both the others, he gave an estate of inheritance, to be defeated only in the event that his nephew should die without leaving child or children surviving him. This he did not do. The contingency never happened. As said before, counsel for appellants cite quite a number of authorities supposed to be in support of their contention in this case. While we have not time to review them in detail, we will say that many of them have been cited and commented on in the cases we have quoted, and shown to rest on different language, or a different basis and surroundings; and, by reason of the facts being so widely different, they are believed not to be in conflict with the views herein expressed. Quite a number of the cases cited by appellants arise under wills made by husbands in favor of their wives and children. They are of such frequent occurrence in this court that they may be almost said to make a class by themselves. In such cases the constant and uniform tendency of the court has been, in cases where the language was, in substance, "to the wife and children," or "for the use and benefit of the wife and children," or "of the wife and the heirs of her body or issue," etc., to hold that the wife takes a life estate only, and that the children take in remainder. The reason assigned by the court for this favorite construction is that otherwise, if the wife was held to take an interest in fee simple, this part of the estate might pass to some stranger in blood to the husband, a possibility not to be supposed consonant to his wishes and intention. This rule has been also applied to cases where the consideration for the conveyance moves from the husband to the grantor. Our view of the law of this case makes it unnecessary for the court to pass upon the liability of the appellant upon the covenant or warranty of title of this land by his ancestor, James Wilson, it being stated in his petition that she received from her father assets of greater amount than the value of this land. For the reasons indicated, the judgment of the court below in dismissing plaintiffs' petition is affirmed.

QUICK v. COMMONWEALTH. (Court of Appeals of Kentucky. Nov. 30, 1895.)

FALSE PRETENSES-HEARSAY EVIDENCE.

1. On a trial for obtaining money by falsely representing that defendant was agent for a collection company which had a branch office at Lexington, testimony that the witness was informed by the police that there was no such office there is incompetent.

2. But testimony that the witness sought for the agency, but was unable to find it, is

proper.

Appeal from circuit court, Madison county. "Not to be officially reported."

A. C. Quick was convicted for obtaining money under false pretenses, and appeals. Reversed.

A. R. Burnam and W. S. Moberly, for appellant. W. J. Hendrick, for the Commonwealth.

HAZELRIGG, J. The indictment charges the appellant and his brother, who are known in the record as A. Cain and R. E. Hays, respectively, with the crime of obtaining money by false pretenses, in that they "did unlawfully, fraudulently, and feloniously pretend and state to J. C. Morgan that there was a collecting company located in the city of Philadelphia, Pennsylvania, known as the Continental Collecting Company, and that said company had a branch agency in the city of Lexington, Kentucky, for the purpose of collecting bad debts, established and in operation, and that the said agency had an office in the said city of Lexington, Kentucky, and that they, the said R. E. Hays, alias J. M. Quick, and A. Cain, alias A. C. Quick, were the authorized agents of the said company, and that said company, through the said branch agency in the city of Lexington, would collect bad accounts due to said Morgan from various persons for an agreed percentage upon said Morgan's becoming a member of said company by paying ten dollars in money to said Quicks; and the said Morgan, relying upon said statements as true, did give to said Quicks the sum of ten dollars in money, the property of said Morgan,-which statements were made with the fraudulent intent of obtaining the said money, and were false in that there was no such Continental Collecting Company in the city of Philadelphia, and that there was no such branch agency established and in operation in the city of Lexington, Kentucky, and that the said agency had no office in the city of Lexington, and that the said Quicks were not the authorized agents of the said company, and well knew that said statements were false at the me they so made them." Upon a trial of the case, the court discharged the brother of the appellant, but submitted the question of the appellant's guilt or innocence to the jury, under instructions which fully embraced the law of the case, and which are not seriously complained of. The jury found him guilty,