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dertakes to complete the contract of carriage. fore the statute, and has been since, uniforniThis is as far as the decision in the Dimmitt ly held that he could not, by contract or otherCase goes. But the statute can only be held wise, relieve himself from liability for loss to adopt so much of the English rule as is or damage occasioned by his own negligence, consistent with it. It cannot properly be held or that of his agents or employés. Such was to abrogate the existing law in this state, un- the law when this statute was enacted. There less inconsistent with it. The statute, in- is nothing in the statute that indicates an ingrafted upon the law of this state, as it then tention to change it. Indeed, it seems to be existed, makes the rule by which we must be recognized, for the statute, by its terms, only governed. The English law does not make it. declares a liability for loss or damage caused To the extent, then, that the statute declares by negligence. The dictum of the court in the English rule, the decisions of the English the Dimmitt Case, to the effect that an agreecourts would be authority for its interpreta- ment that a carrier should only be liable for tion, but they would not be authority where loss or damage occurring on its own line is the statute and the rule conflict. The statute equivalent to an express contract to carry the must be interpreted in the light of our own property only to the terminus of its own line, law, and, so far as possible, in conformity cannot be taken as the law of this case, where to it. In the Dimmitt Case, supra, the court there is an express contract and also an agreesays: “By its provisions, the act of accept- ment for nonliability. Where the original unance by a common carrier of property to be dertaking is in doubt, such an agreement transferred to a place beyond the terminus of might be evidence of the intention of the parits route is evidence of a contract to carry ties in respect thereto. This question is not such property to the place of its destination. involved here, and need not be decided. We The act of issuing a receipt or bill of lading cannot, therefore, give such an interpretation for property to be transferred to a place be- to the statute as would permit a carrier to yond the terminus of the route of a common contract for a through shipment, and at the carrier is evidence of a contract by such car- same time exempt himself from liability on rier to carry such property to the place of its account of the negligence of connecting cardestination. This prima facie case the stat- riers. Such an interpretation would in effect ute makes for the plaintiff on the facts stated. operate as a repeal of the vital provisions of In order to defeat it, the defendant must show the law which declare a conclusive liability in that, by specific agreement, it only contracted such case. The statute does not undertake to carry the property to the terminus of its to change the law in respect to liability of a own line, or, what is equivalent, that there carrier for his own negligence, but to extend was a specific agreement that it was to be it to connecting carriers as well, and declare a liable only for loss or damage occurring on liability for negligence without regard to its own line." This is a fair statement of the which was in fault. Under these views of interpretation given by the English courts to the law, no difficulty is found in giving concontracts for transportation beyond the route struction to the contract. The agreement to of the receiving carrier. Hutch. Carr. § 147; carry from Stoutsville to Chicago is absolute Lawson, Carr. $ 238. The law as stated is and unconditional. The thirteenth condition also within the terms of the statute, and is or covenant can only be regarded as an atinconsistent with the law of this state as tempt, on the part of defendant, to relieve previously declared by this court. Coates v. itself from the responsibility of answering for Express Co., 45 Mo. 238; Snyder v. Express the negligence of the carrier by which it unCo., 63 Mo. 376. The provision of the statute dertook to complete the contract. The statis that “wherever any property is received by a ute forbids such qualification of the contract. common carrier to be transferred from one It can only be held to relieve defendant from place to another." This language does not re- its common-law liability of an insurer. The strict, but rather recognizes, the right of the ruling of the court in respect to giving and carrier to limit its contract of carriage to the refusing the instructions mentioned was corend of its own route, and there deliver the rect. property to the connecting carrier. There can 2. We are unable to see, as contended by be no doubt, then, that, under the statute as defendant, that the construction we give this well as under the English law, the carrier statute makes it repugnant to that provision can, by contract, limit his duty and obliga- of the constitution of the United States which tion to carriage over its own route. But it gives to congress alone the power to regulate seems that, under the decisions of the English commerce among the states. The act in no courts, a carrier can also limit his liability to way operates as a regulation of trade and a loss or damages occurring on his own route business among the states. No burden or by specific agreement that it should only be restriction on transportation is imposed. Carso liable. In the Dimmitt Case the rule is riers are left free to make their own contracts stated to its full extent, though unnecessary in regard to compensation for their services to the decision in that case, there having been for transportation between the states, subject no attempt to make such limitation. While, to congressional regulations. The statute under the decisions of this court, it had been merely prohibits a carrier who, by contract, held that a carrier could, by contract, limit undertakes to transport property to a point its common-law liability of insurer, it was be- beyond its own route, from relieving itself of responsibility for neglect to properly perform John Cortney, Laura Green, Daniel Green, its duty. It only imposes the duty and liabil- and Annie Scott (an infant who sues by ity which the law, from considerations of pub- her friend, Tinoleon Scott) offered and prelic policy, imposes upon all common carriers sented their petition in this cause, asking to in the transportation of property over their be made parties thereto, and that the same own lines, though they may extend into other be taken as their answer. It is alleged in states. A statute of Iowa which provided substance in the petition that Tinoleon Scott, that no contract of a common carrier should Bettie Green, Catherine Cortney, Laura exempt it from its common-law liability was Green, and Annie Scott are the children of held by the supreme court of that state not the defendant W. C. Scott, and grandchildren to be in conflict with the commercial power of Sarah S. Scott, deceased; that Westley A. of congress prescribed by the constitution. Gains did, by deed duly recorded in the counHart v. Railroad Co., 69 Iowa, 490, 29 N. W. ty clerk's office of Franklin county, convey to 597. See, also, to the same effect, Solon v. the defendant W. C. Scott for life, and after Railway Co. (Iowa) 63 N. W. 692, and Bagg death to these petitioners and defendant Wilv. Railway Co. (N. C.) 14 S. E. 79. The judg- liam Scott, a tract of land in said Franklin ment is affirmed. All the judges concur, ex- county containing about 150 acres, of which cept SHERWOOD, J., who dissents.
tract the land herein adjudged to be sold is a part, and that Sarah A. Scott, in her life
time, by and with the consent of defendant SCOTT et al. v. NOEL.
W. C. Scott, allotted to Tinoleon Scott 25 (Court of Appeals of Kentucky. Nov. 23, acres of said land, upon which he built a house 1895.)
and other improvements, and that he has MORTGAGES-FORECLOSURE-WRIT OF POSSESSION.
had possession of same, holding it adverseWhere a motion to enjoin the execution ly to all the world,-residing on it,-for more of a writ of possession for land sold under a than 15 years past, said 25 acres being em. mortgage is filed, in which a claim to the land adverse to the mortgage is set up by a person
braced in the mortgage and judgment herein; in possession, and not a party to the foreclosure
that since said allotment to Tinoleon Scott suit, the court, on overruling the motion, with about 25 acres of said land have been alotted leave to amend, should not award the writ of
to Bettie Green and William Scott, each, who possession.
have also improved same, and reside upon and Appeal from circuit court, Franklin county. claim the same. They assert in detail their "Not to be officially reported."
right to the land, and file copy of the deed reAction by John C. Noel against William
ferred to, and pray that the judgment be va. Scott and others to foreclose a mortgage.
cated or modified, deed be canceled, and From a judgment foreclosing the mortgage
plaintiff, Noel, be enjoined from executing the and awarding a writ of possession, against the
writ of possession, and for all proper relief, petition of Tinoleon Scott and others, they
etc. On the 5th of January, 1893, appellants' and defendants appeal. Reversed in part.
motion for injunction was overruled, and John L. Scott & Son, for appellants.
leave given to petitioners to amend their peti
tion, On the 12th of January, 1893, a writ GUFFY, J. On the 15th of April, 1891, of possession was awarded plaintiff for the the appellee, John C. Noel, instituted suit in nossession of the land sold. On the 15th the Franklin circuit court against William iarch, 1893, appellants procured an appeal, Scott, W. C. Scott, and their wives, seeking and now ask that all the foregoing orders and to obtain judgment upon a note for $200 exe- judgments be reversed. cuted to him by the said William and W. C. The allegations of the petition of Tinoleon Scott, and also seeking to enforce an alleged Scott and others, taken in connection with the lien for the payment of the note on a 50-acre deed filed, tend to show that they have an intract or parcel of land mortgaged to him terest in the land sold, and the order over(Noel). The defendants answered and plead- ruling their motion for an injunction, and the ed a payment of $160, but the court upon order awarding plaintiff a writ of possession final hearing rendered judgment in appellee's for the land sold, may be taken as in effect favor for the amount claimed, and adjudged adjudging their claim to be invalid, and it a sale of the land, or enough thereof to satis- was error to award the writ at that time; fy the judgment. The land was afterwards and the judgment to that extent is reversed, sold, report confirmed, and deed made, Noel and cause remanded, with directions to set being the purchaser. It appears that the aside said order, and to permit the parties to judgment of sale was rendered December, litigate their claims to the land. The per1891, and the sale made January 4, 1892. sonal judgment against William and W. C. Noel purchased the land at his bid of $249.10, Scott is sustained by a preponderance of the the land having been appraised at $600. The evidence, and is therefore affirmed. The judg report of sale was confirmed May 6, 1892, and ment for sale of the land, and order confirmon the next day the conveyance to Noel was ing same, as well as the conveyance, are left made, acknowledged, approved, and ordered for the final determination of the court, after to be certified. It seems that on the 4th of hearing the case prosecuted by Tinoleon Scott January, 1893, appellants Tinoleon Scott, Bet- and others. Cause remanded for further protie Green, L. C. Green, Catherine Cortney, ceedings consistent with this opinion.
mainder to his children, she being the only HOOD et al. v. DAWSON et al.
one; wbile the appellees contend that James
Wilson took a fee in said land, to be defeated (Court of Appeals of Kentucky. Nov. 20,
only on the condition that he died leaving no 1895.)
child or children surviving him; and that, WILLS-CONSTRUCTION.
leaving plaintiff his only child, his title be1. Testator gave a certain farm "to W.
came absolute, and inured to the benefit of his 本
* and his children forever, but if W. vendees and appellees, who claim under then. shall die leaving no child" the farm was devised
The will was written in 1834. James Wilson, to J. Held, that W. took a fee simple, to be defeated only in case he died without children;
Sr., died in 1837. In 1841, James Wilson, the words "his children forever” being words of the devisee, sold and conveyed with warranty limitation, and not of purchase, creating an es- against himself and his heirs, this land to tate tail, which by statute was made a fee sim
Respess and Coleman, and by subsequent conple. 2. A statutory provision that, where an es
veyances same came regularly to the appeltate is given to any person "for his life, and aft- lees. James Wilson, Jr., the devisee, lived uner his death” to his heirs or to the heirs of his
til 1891. The true intent and meaning of body, the same shall be construed to be a life es
this third clause of testator's will is appealed tate,' does not affect such will, as in such case no estate is given for life.
to by both parties in support of their respec
tive claims. Appeal from circuit court, Mason county.
Cases involving similar or substantially sim“To be officially reported.”
ilar language in other testaments have so oftAction by Sarah E. Hood and others against
en been before this court that the meaning to Richard Dawson and others. There was a
be attached to the one now under considerajudgment for the latter, and the former ap- tion is believed to be a question of authority peal. Affirmed.
and precedent, rather than of argument. John L. Scott & Son and Horace S. Clarke, Many cases are cited by both parties, each party for appellants. E. L. Worthington, for ap
citing those most favorable to his present conpellees.
tention. 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 ShelGRACE, J. The questions presented in this
ton (Bradley] all the residue of my property record involve the title of a tract of land of
after paying my debts and the foregoing legasome 180 acres, lying in Mason county, and near the city of Maysville, and supposed to
cies, to him and his heirs or children, should be of considerable value. This land is claim
he have any, forever; but should my son
Shelton die without heirs, then the residue of my ed by Sarah E. Hood, the appellant, who is
estate that may come into his possession agreethe sole child and heir at law of James Wil
able to this my will is to be equally divided," son, the son of Robert Wilson, and devisee
etc., between his (testator's) several grandunder the will of his uncle, James Wilson. It
children. This case was, upon full considis also claimed by the appellees as vendees un
eration, held to vest a fee-simple estate in the der deed from James Wilson, the devisee
son, Shelton Bradley, subject to be defeated aforesaid. So that, both claimants tracing ti
only by his dying without heirs or children. tle back to James Wilson, Sr., and claiming
He left children, who claimed as devisees in same under his will, the first and only thing
remained as against the vendees of their fato do is to determine the construction and
ther. Some points of similarity in the two true meaning of same. The material claus
cases may be noticed.--as that in each case es of this will bearing in any degree on this
the devisees had no child at the time of makcase are as follows: “(2) I give and be
ing the devise; that in each case there was a queath to my beloved wife, Priscilla Wilson,
devise over in the event the devisee named during her natural life only, all my estate,
should die without child or children survivboth real and personal.” “(3) At the death of
ing him; and that in each case the testator, my wife, I give to James Wilson, the son of
by the terms of the devise, and in attempting Robert Wilson, the farm on which I now live,
to describe its devolution, says, "To him and his to him and his children forever; but if the
heirs or children forever.” In each case the said James Wilson shall die leaving no child devisee sold the property as his own, and in nor children of his own, lawfully begotten, cach case, after the death of the devisee, the then I give the said farm to my two nephews, heir at law filed suit against the purchaser in James Wilson and Joseph Wilson, the sons of
possession. True, in the case cited the lanmy brother, William Wilson.” By the fourth guage used is, “to him and his heirs or chilclause of his will testator, after making some dren forever," while in the case under considminor bequests to some servants and to his eration the language is, “to him and his chilwife's kindred, says: "And all the rest and dren forever," but the court in the case cited residue of my estate I give and bequeath to holds the words "heirs" and "children to be said James Wilson, son of Robert Wilson, used interchangeably, and as meaning one above named, to him and his heirs forever.” and the same thing. In the case of Mooran v. The contention of appellant is that under the Dillehay, 8 Bush, 434, the contest arose unhird clause of this will her father, James der the will of Larkin Landidge, and upon the Wilson, Jr., only took a life estate, with re- following clause: "I give to my daughter Harriett Givens one negro man, Lewis, negro boy vise to my grandsons and their children." Unnamed Alfred, negro woman named Anna," der this will it was held: “That while the etc., "which property I give unto my daugh- word "children' is not, like 'heirs,' a word of ter Harriett Givens and her heirs forever; and limitation, importing by its own force a feeif she should die and leave no heirs of her simple estate, yet it will be so construed when body it is my will that all the land and ne- necessary to effectuate the intention of the groes I have given her should go to my daugh- testator as made manifest from a considerater Eleanor Hocke and her children." In con- tion of his whole will. Under this devise by sidering this case the court said: “We are a grandfather to his grandchildren and their well satisfied that the devisor, in using the children the grandsons take a fee-simple eswords, 'I give unto my daughter Harriett Give | tate, it being manifest throughout the will ens and her children forever,' meant and in- that it was used in the sense of 'heirs.'” tended the words 'children forever to be Here again the language in the two devises is words of inheritance only, and used them in the same, except, indeed, that in the devise unthe sense of ‘heirs' or of 'heirs of her body'; der consideration the word "forever" is added. and this construction of the will is fortified by In these several cases cited numerous othprior and subsequent clauses and language in er authorities are quoted in support of this the instrument evidently showing the words same view. We conclude: The authorities ‘children forever' were used by the testator cited are sufficient to place the case under and draftsman of the will as synonymous with consideration in the list of those where, the words 'heirs' or 'heirs of the body.'" Sey
by the language used in this will, "I give to eral other clauses in the will then under ex- James Wilson the farm on which I now live, amination are quoted to show that the testa- to him and his children forever; but if the tor, by the words used, intended to vest a fee said James Wilson shall die leaving no child in his daughter, to be, divested only in the nor children of his own, lawfully begotten, event of her dying without leaving children; then I give the said farm to my two nephand the court in that case held a fee in the ews, James Wilson and Joseph Wilson, the daughter Mrs. Givens, subject to be divested, sons of my brother William Wilson, to them etc. In other words, the court held the words and their heirs forever,"-an estate in fee "children forever" to be words of inheritance, simple was created in James Wilson, to be and not words of purchase. In this case it defeated only in the event that he should die will be noticed the words of the gift are iden- without children. That he took the feetical with the words used in the testament simple estate, and that his child took nothunder consideration. In the case of Lach- | ing; and hence that his deed of conveyance land's Heirs v. Downing's Ex'rs, 11 B. Mon. passed good and perfect title to his vendees, 32, the question arose under the will of George and that his daughter, the appellant, cannot Downing, and the language of the devise was recover. That the granting clause of this as follows: "All the residue of my estate, devise is first to bim, James Wilson, and whether real, personal, or mixed, not herein that the further clause, “to him and his otberwise disposed of, I devise may be equally children forever,” is but descriptive of the divided after my death between my brother estate taken, and not intended to introduce John Downing and my two sisters Elizabeth new beneficiaries. That the words "to him Cameron and Nancy Gibson and the children and his children forever" mean as clearly of sister Nelly Lachland, to them and their “to him forever" as they do to "his children children forever," etc. In that case it was rever." That, as used, they are equivalent held that the words used, as applied to the to the words "heirs," or "heirs of his body," devise to his brother and his two sisters, “to or to an indefinite issue. That, as used, they them and their children forever," were words become words of limitation, and not of purof limitation or inheritance, and not words of chase. That under the common law they purchase, so that as to these several por- would have created an estate tail, which for tions the brother and each sister took a fee, a long time, in Kentucky, by statutory enwith nothing to the children of either. Again, actment, has been declared to be an estate the similarity of the words employed and the of inheritance in the first taker. That these words under consideration is strikingly appar- words, as thus used and construed, are not ent. The court said: "But the words actu- in violation of the statute, which provides ally used to them and their children for- “that when any estate shall be given by ever"] evidently occupy the place of what is deed or will to any person for his life, and called the 'habendum,' and is an abridgement after his death to his heirs or to the heirs of of the usual habendum clause; the office of his body, or his issue or descendants, the which is not to introduce new grantees or do- same shall be construed to be estate for life nees, but to describe the estate or interest of only in said person, and a remainder in feethose already named or designated” (as the simple in his heirs or the heirs of his body granting clause). In the case of Williams v. or his issue or descendants." This statute Duncan (Ky.) 17 S. W. 330, the question has often been recognized and upheld by the arose under the will of William C. Williams, courts, and yet the question remains (preas follows: "The remainder of my property ceding in every case its application) “whethon Fifth street, between Main street and the er an estate has been given for life only to river, in the city of Louisville, I give and de- any one.” Certainly it has not been done in this case, for we observe by the second
QUICK v. COMMONWEALTH. clause of the testator's will he did create a (Court of Appeals of Kentucky. Nov. 30, life estate in his wife in this identical prop
1895.) erty. He did it in these words, "I give and
FALSE PRETENSES-HEARSAY EVIDENCE. bequeath to my beloved wife, Priscilla Wil
1. On a trial for obtaining money by falseson, during her natural life only, all my es- ly representing that defendant was agent for a tate, both real and personal,”—words far dif
collection company which had a branch office
at Lexington, testimony that the witness was ferent from those used in the third clause
informed by the police that there was no such under consideration. Manifestly
Manifestly testator office there is incompetent. knew the difference between an estate for 2. But testimony that the witness sought
for the agency, but was unable to find it, is life and one of inheritance. In the latter
proper. part of the fourth clause of his will he says, "All the rest and residue of my estate I
Appeal from circuit court, Madison county. give and bequeath to said James Wilson,
“Not to be officially reported." the son of Robert Wilson, above named, to
A. C. Quick was convicted for obtaining him and his heirs forever." Here he gave
money under false pretenses, and appeals.
Reversed. an estate of inheritance, pure and simple, without conditions. And in the third clause, A. R. Burnam and W. S. Moberly, for apdifferent still from both the others, he gave pellant. W. J. Hendrick, for the Commonan estate of inheritance, to be defeated only wealth. in the event that his nephew should die without leaving child or children surviving HAZELRIGG, J. The indictment charges him. This he did not do. The contingency the appellant and his brother, who are known never happened. As said before, counsel for in the record as A. Cain and R. E. Hays, appellants cite quite a number of authori- respectively, with the crime of obtaining ties supposed to be in support of their con- money by false pretenses, in that they "did tention in this case. While we have not unlawfully, fraudulently, and feloniously time to review them in detail, we will say pretend and state to J. C. Morgan that there that many of them have been cited and com- was a collecting company located in the city mented on in the cases we have quoted, and of Philadelphia, Pennsylvania, known as the shown to rest on different language, or a Continental Collecting Company, and that different basis and surroundings; and, by said company had a branch agency in the reason of the facts being so widely differ- city of Lexington, Kentucky, for the purent, they are believed not to be in conflict
pose of collecting bad debts, established and with the views herein expressed. Quite a in operation, and that the said agency had number of the cases cited by appellants an office in the said city of Lexington, Kenarise under wills made by husbands in favor tucky, and that they, the said R. E. Hays, of their wives and children. They are of alias J. M. Quick, and A. Cain, alias A. C. such frequent occurrence in this court that Quick, were the authorized agents of the said they may be almost said to make a class by
company, and that said company, through themselves. In such cases the constant and the said branch agency in the city of Lexuniform tendency of the court has been, in ington, would collect bad accounts due to cases where the language was, in substance, said Morgan from various persons for an. “to the wife and children," or "for the use agreed percentage upon said Morgan's beand benefit of the wife and children," or "of coming a member of said company by paythe wife and the heirs of her body or issue," ing ten dollars in money to said Quicks; and etc., to hold that the wife takes a life estate the said Morgan, relying upon said stateonly, and that the children take in remain- ments as true, did give to said Quicks the der. The reason assigned by the court for sum of ten dollars in money, the property this favorite construction is that otherwise, of said Morgan,-which statements were if the wife was held to take an interest in made with the fraudulent intent of obtaining fee simple, this part of the estate might the said money, and were false in that there pass to some stranger in blood to the hus- was no such Continental Collecting Company band,-a possibility not to be supposed con- in the city of Philadelphia, and that there sonant to his wishes and intention. This was no such branch agency establisueu and rule has been also applied to cases where in operation in the city of Lexington, Kenthe consideration for the conveyance moves tucky, and that the said agency had no offrom the husband to the grantor. Our view fice in the city of Lexington, and that the of the law of this case makes it unnecessary said Quicks were not the authorized agents for the court to pass upon the liability of of the said company, and well knew that said the appellant upon the covenant or war- statements were false at the ume they so ranty of title of this land by his ancestor, made them." Upon a trial of the case, the James Wilson, it being stated in his petition court discharged the brother of the appelthat she received from her father assets of lant, but submitted the question of the apgreater amount than the value of this land. pellant's guilt or innocence to the jury, unFor the reasons indicated, the judgment of der instructions which fully embraced the the court below in dismissing plaintiffs' peti- law of the case, and which are not seriously tion is affirmed.
complained of. The jury found him guilty,