[8] It is not material that these declarations made to others were not made in the presence of any officer or representative of the appellant bank.

Petition by Joseph Hussey and others for a local option election was dismissed by a In order to establish the element of fraud county board of commissioners upon motion involved in the issue, it was necessary and of Robert A. Cushman, and the petitioners proper that the appellee show fraudulent in-appealed to the circuit court, which directed tent of the party who procured from him the note sued upon, and, as the bank at that time had no relation to the transaction, it would be unreasonable to allow appellee to put in evidence only such transactions, statements, or matters as happened in the presence of the bank. The evidence was properly admitted. The only remaining proposition advanced by appellant is that the verdict is not sustained by sufficient evidence, because the evidence

an election to be held, and Cushman appealed to the Appellate Court. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Judgment of circuit court reversed, with directions to set aside its judgment and dismiss the appeal.

Opinions (60 Ind. App. 464, 111 N. E. 23: 117 N. E. 963) superseded.

T. Morton McDonald, of Princeton, for apshowed that appellant purchased the note in pellant. Henry Kister and Harvey Harmon, both of Princeton, for appellees. due course and before maturity, and for a valuable consideration "without notice of any defense or of any infirmity in the note, and that circumstances attending the purchase of said note do not show a lack of honesty and

good faith on the part of appellant."

In view of our conclusion, this proposition is not at this time of any importance.

LAIRY, J. Appellees with others joined in a petition filed with the board of commissioners of Gibson county purporting to be signed by 20 per cent. of the legal voters of

the city of Princeton. The purpose of the

petition was to obtain an order of the board In connection with this point, appellant of commissioners calling an election in the further says that the evidence does not show city of Princeton to determine whether the prompt rescission and return, or offer to re-hibited within the corporate limits of said sale of intoxicating liquors should be proturn, the stock. What we have said hereinbefore disposes of this..

Because of the court's refusal to give in

city. Burns' 1914, §§ 8316-8323.

After the petition was filed one Robert A.

structions 4 and 5, requested by appellant, Cushman designating himself as a taxpayer the judgment below is reversed.

TOWNSEND, J., not participating.

(187 Ind. 228)

CUSHMAN v. HUSSEY et al.

(No. 23286.)

and remonstrator appeared before the board and filed a motion to dismiss the petition, which was sustained, and the petition was dismissed by the board. After the order dismissing the petition was filed, two of the petitioners who are named here as appellees attempted to appeal to the Gibson circuit court. Cushman, who is named here as ap

(Supreme Court of Indiana. March 1, 1918.) pellant, appeared in the circuit court and re

1. COURTS

488(1) JURISDICTION-TRANS

FERRING CASES. Where a case was transferred to the Supreme Court under Burns' Ann. St. 1914, 8 1405, authorizing transfers when there is a disparity between the number of cases pending in the Supreme and Appellate Courts, the Supreme Court has the same jurisdiction as the Appellate Court, including power to re-examine that court's ruling on a motion to dismiss.

newed his motion to dismiss, which was overruled, and such proceedings were had in that court as resulted in an order finding the petition sufficient, and in directing an election to be held thereunder. Cushman attempted to appeal from this order by filing a record and assignment of errors with the clerk of the Appellate Court. The case has been transferred to this court under the disSection 1405, parity clause of our statute. Burns' 1914. While the case was pending in the Appellate Court a motion to dismiss was filed and overruled with an opinion. CushLOCAL man v. Hussey, 60 Ind. App. 464, 111 N.

2. APPEAL AND ERROR 31-QUESTIONS REVIEWABLE-ADMINISTRATIVE ACTIONS. Ordinarily, no appeal lies from an administrative or ministerial action by a board of commissioners, unless specially authorized by statute.

3. INTOXICATING LIQUORS →32(2) OPTION-DENIAL OF PETITION-APPEAL.

Burns' Ann, St. 1914, § 8318, providing that E. 23. county commissioners shall order a local option [1] The case having been transferred unFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Wilkins v. State, 113 Ind.
State v. Johnson, 105 Ind.
Board, etc., v. Brown, 147

der the section of the statute cited, this court, noy v. City of Jeffersonville, 17 Ind. 169, has the same jurisdiction to determine the 79 Am. Dec. 468; question presented as was possessed by the 514, 16 N. E. 192; Appellate Court, including the power to re- 463, 5 N. E. 553; examine the ruling of that court on the mo- Ind. 476, 46 N. E. 908. tion to dismiss.

The case last cited was a mandamus pro[2, 3] As a ground for the motion to dis- ceeding brought to compel the board of commiss the appeal, appellee asserts that the ac-missioners of Jackson county to order a spetion of the board of commissioners, in pass- cial election, on the petition filed by relator, ing on the sufficiency of the petition and in and others, for the purpose of enabling the ordering an election as provided by section voters of Jackson county to determine wheth8318, Burns' 1914, is not judicial in its char-er the county seat of that county should be acter, but that it is purely a ministerial duty. removed from Brownstown to Seymour. A If the action of the board directed by section peremptory writ of mandate was awarded by 8318, supra, is administrative in its charac- the trial court, and this judgment was after, no appeal could be taken, as the stat- firmed on appeal. At page 494 of 147 Ind., at ute makes no special provision for such an page 913 of 46 N. E., in the opinion, speakappeal. As to boards of commissioners gen- ing on the subject here under consideration, erally, it is the rule that where the duty to the court said: be performed does not involve judicial action, but consists in the performance of administrative ministerial or discretionary powers, no appeal lies from such action, unless it is specially authorized by statute. 7 R. C. L p. 942; Board of Comm. v. Davis, 136 Ind. 503, 36 N. E. 141, 22 L. R. A. 515; Board of Comm. v. Heaston, 144 Ind. 583, 41 N. E. 457, 43 N. E. 651, 55 Am. St. Rep. 192.

In the case last cited the court, at page 587 of 144 Ind., at page 458 of 41 N. E. (55 Am. St. Rep. 192), in the opinion, says:

"Boards of commissioners, under the law, in the discharge of their duties have, at least, a dual character. In some respects they act judicially, and the law regards them as a court, and from their decision an appeal lies in this state under section 5572, R. S. 1881 [section 6021, Burns 1914], by a party aggrieved to a higher court."

At page 588 the court says:

"It is likewise true that when administrative duties are enjoined upon these boards by law, from their action thereon, no appeal can be taken, unless especially authorized by statute." The case last cited also holds that the stat

ute authorizing appeals, generally, from boards of county commissioners (section 6021, Burns' 1914), applies only to decisions of the board which are of a judicial character.

"The entire scope of this act clearly indicates that it was the intent and purpose of the Legmissioners, in considering the petition and in islature to make the action of the board of comordering the special election, purely ministerial, and not judicial. The affidavits required to be attached to and accompany the petition were declared to be conclusive evidence of the truth of the facts required to warrant the commissioners in ordering the election. Nothing in the nature of an adversary proceeding was contemplated. When the petition, affidavits, and bond were filed, as provided by the act, which requirements the complaint avers were complied with, the duty of the board, under the statute, was so plain and imperative that no element of discretion can be said to enter into its performance; and it is manifest, also, that under its provisions the board was not invested with judicial functions."

It is apparent from a consideration of this statute that the Legislature intended that the sufficiency of the petition should be summarily determined, and that the election should be ordered if the petition was found sufficient. No notice of the filing of the petition is required and adversary proceedings election is concerned. As to this question, at were not contemplated so far as ordering the least, the action of the board in determining the sufficiency of the petition is purely minSection 8318, Burns' 1914, provides that isterial and its duty to call the election, in the petition provided for in section 1 of the case the petition is sufficient, is mandatory. act shall be deemed sufficient when it is sign-It certainly was not intended that the called by 20 per cent. of the number of qualified electors of the territory for which such election is petitioned. The section provides that when this is ascertained the board shall order an election. Before ordering an election on such a petition the board is required to A similar question to the one here under ascertain, in the manner provided by the sec- consideration was presented and decided in tion, that the legal voters who have signed the case of Locher v. Walsh et al., 17 Cal. the petition constitute 20 per cent. of the App. 727, 121 Pac. 712. In that case it apnumber of qualified electors of the territory peared that the petition had been filed with in which the election is requested. The duty the clerk of the city of Auburn requesting resting on the board after ascertaining such that a certain ordinance regulating the sale fact is purely ministerial. It is well settled of intoxicating liquors be referred to the in this state that a duty is none the less voters of the municipality, and that an elecministerial because the person upon whom tion be called for that purpose under the it rests is required to ascertain the exist-provisions of the law of that state with refence of a state of facts as a preliminary step erence to the passage of ordinances by initiato the exercise of the right or duty. Flour- tive vote. Under the provisions of the stat

ing of the election should be delayed by the formation and trial of issues as to the sufficiency of the petition, which might involve the possibility of appeals as in this case resulting in extended delay.

SPENCER, C. J. Appeal from a judgment of conviction based on an indictment which charges that appellants are guilty of operat

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ing a place where intoxicating liquors were See, also, Mershon v. State (1875) 51 Ind. sold, bartered, and given away in violation 14, 18.

that they presented their objections at the earliest opportunity and we are required, then, to pass on their contention that when the juror, Peterson, was excused from service on the grand jury, his successor should have been selected in the same manner as the or

provided. This contention finds express support in the provisions of section 544a, Burns 1914 (Acts 1909, p. 103) which require, in part:

of section 8351, Burns 1914. To this charge [1] In the present case the facts pleaded appellants filed a plea in abatement present-in appellants' answer are sufficient to show ing an alleged irregularity in the selection of the grand jury which returned the indictment, and now challenge the action of the trial court in sustaining a demurrer to that plea. The answer in abatement alleges that after the original members of the grand jury had been selected in accordance with the pro-iginal panel was drawn, that is, as by statute visions of section 1668, Burns 1914, and had assembled for the purpose of being charged and sworn, one of their number, Mose Peterson, was, for good cause shown, regularly excused from service. The plea then alleges: That the judge of the trial court "did not fill the vacancy thus caused by calling together the jury commissioners of said county and by having the name of an additional member drawn as provided by law, but at the said time ordered the court bailiff of said court to go to a certain business house in the city of Muncie, said county and state, and there summon one William W. Ross to come into court and act as a member of said grand jury in the place of the said Mose Peterson; that, pursuant to the order of said judge, the said court bailiff proceeded to the said place of business, and there found and summoned the said William W. Ross to appear in court and serve as a member of said grand jury; that thereupon, in response to the summons, the said Ross did appear in said circuit court room and by direction of the said judge took his place as a member of the said grand jury, and he, the said Ross, together with the five other members drawn by the jury commissioners, was accepted as a member of the said grand jury, and said Ross was sworn as a member under the direction of said judge, and thereupon the said judge appointed the said Ross as the foreman of the said grand jury."

Other allegations of the pleading attack the motive of the judge in assuming to exercise the power to select the new juror.

In support of their assertion that Ross was improperly selected as a member of the grand jury, appellants direct our attention to the statutory provisions for the filling of vacancies on grand juries after their organization (section 1960, Burns 1914), or in case the vacancy is caused by the successful challenge of a juror (section 1967, Burns 1914), and contend that under all other circumstances the necessary additional juror must be selected in the same manner as the original body was drawn. Without disputing this contention, the state insists that appellants' remedy, if any, is provided by section 1965, Burns 1914, and that they should have challenged the selection of Ross before the grand jury was sworn. It is true, as stated in 12 R. C. L. 1032, § 19, that:

"If the accused knew that his case would be

presented to the grand jury because he had been

"That in the circuit, superior, criminal and probate courts of the state of Indiana, where persons drawn for jury service or jurors, in any such courts have been excused from service for the term of court, the judge thereof shall immediately notify the clerk of the circuit court thereof and of the number so excused from the service, and said clerk shall immediately proceed to draw from the jury box for each of said courts the number of names required by each of said courts to fill up the regular panel thereof, and record and certify such drawing upon the proper order book of such courts, respectively, and the names so drawn and certified shall become members of the regular panel of such courts for such term. The names shall be drawn and the persons summoned in accordance with the existing provisions for the drawing and summoning of jurors, except that such persons so drawn shall be immediately summoned to appear at once in such courts." (Our italics.)

[2] It is true that this statute makes further provision for the use of talesmen under certain conditions, but, as the method adopted for the selection of an additional juror in the present case is not within the contemplation of the law relative to talesmen, the provisos in question need not be expressly considered at this time. The language used in the above statute indicates that it is of broad application, and is intended to apply in the selection of grand as well as petit juries. So considered, it is to be construed, in connection with section 1668, Burns 1914 (Acts 1881, p. 557), as announcing the rule that when a member of the regular panel of any jury is excused from service for the term of court, his successor must be selected under the latter statute in the same manner as the original panel should have been drawn. The allegations of appellants' plea in abatement clearly show a violation of that rule in this case, and our next inquiry is to determine whether the sustaining of a demurrer to that plea constitutes reversible

error.

[3] Cases may be found which apply the doctrine that where, in the organization of a committed to await its action, he must * * grand jury, qualified jurors are, in fact, seobject to defects in the grand jury's organiza- cured, an error or irregularity in their setion by challenge to the polls or to the array; lection or impanelment does not, in the abBut if he was not in custody or out on bail at the time the grand jury was impaneled, and sence of fraud or corruption, supply ground so had no knowledge that his case would go be for sustaining a plea in abatement (Sage fore the grand jury, and consequently no op- v. State [1891] 127 Ind. 15, 17, 26 N. E. portunity to object to its organization before the indictment was found against him, he may 667; Cooper v. State [1889] 120 Ind. 377,

Ind. 336, 341), but, on examination of these decisions and others of similar import, it will be found that they invoke a rule which is of legislative origin (Acts 1841, p. 126; G. & H. 433, § 12; 2 R. S. 1876, p. 419, § 12). PAYMENT OF LEGACIES-RESIDUARY ESTATE. As those statutes are no longer in force, we The rule that real estate shall not be resortare required to return to the common-lawed to primarily for the payment of legacies and debts does not control when by a fair construcprinciples governing cases of this character, tion real estate is found to be placed in the and find an exposition thereof in Vattier v. residuum and thus treated as personalty. State (1835) 4 Blackf. 73, which holds, in sub- 6. WILLS 449-CONSTRUCTION AGAINST INstance, that an indictment found by a grand jury which is not organized in accordance with the statutory requirements is void, and the objection may be presented by plea in abatement. See, also, Shattuck v. State (1859) 11 Ind. 473, 477; State v. Herndon (1839) 5 Blackf. 75.

with the payment of legacies, the rule of liberal construction in favor of the wife does not legacies was that she should not take everything. control, as the express intention in making such 25. WILLS 822-PROPERTY CHARGED WITH

The presumption of innocence prevails in Indiana. Section 2137, Burns 1914. The protection of the innocent from unfounded prosecution, and of the state from the improper shielding of crime, either in the exercise of assumed power or through official malfeasance, can be secured only by a strict compliance with the statutory method provided for the selection and impanelment of grand as well as petit juries.

Our conclusions require a reversal of the judgment below, with instructions to the circuit court to overrule appellee's demurrer to the answer in abatement and for further proceedings not inconsistent herewith. It is so ordered.

(187 Ind. 478)

COON V. COON et al. (No. 23432.)* (Supreme Court of Indiana. Feb. 26, 1918.) 1. WILLS 821(2)—CHARGING LEGACIES ON REALTY-SUFFICIENCY OF PERSONALTY.

Where at the time a will was executed the testator had sufficient personal property to pay money legacies, it was a fair presumption that he did not at that time intend to charge the specifically devised real estate with the payment of such legacies, and the real estate devised specifically was not chargeable with their payment, though he did not have sufficient personal property at the time of his death to pay such legacies.

2. WILLS 439-CONSTRUCTION-CARRYING OUT TESTATOR'S INTENTION.

Where a testator, who left no parents, children, or descendants, gave everything to his wife as the law would have given it, less two specific money bequests, there being no occasion to make a will except his desire and determination to remember the two legatees other than his wife, and this evidently being the moving thought, it should be carried into effect unless some provision of the will or some rule of law compels the exclusion of such beneficiaries. 3. WILLS 452-CONSTRUCTION-LAWs or DESCENT.

In construing a will the laws of descent do not control, as the will was written to avoid such laws.

4. WILLS 452-CONSTRUCTION IN FAVOR OF SURVIVING WIFE.

TESTACY.

In determining whether after-acquired real estate passes under a specific devise to the testator's wife or under a residuary clause in her favor so as to be chargeable with the payment of legacies, neither Burns' Ann. St. 1914, § 3121, requiring that an intention to devise the entire interest in real estate shall be effectuated, nor the rule against a construction creating partial intestacy was controlling, as the intention to devise the entire estate was effectuated whether the real estate passed under the specific bequest or the residuary clause and there was no partial intestacy in either case. 7. WILLS 858(5) RESIDUARY CLAUSE — PROPERTY INCLUDED.

-

A testator bequeathed certain sums of money to a brother and a foster daughter, devised to his wife "all my real estate," followed by a specific description of his real estate as consisting of 2 lots and 20 acres of land, and bequeathed all the residue of the estate to the wife. When the will was made he had sufficient money to pay the legacies in favor of the brother and foster daughter, but thereafter he sold the 20 acres of land and invested such money and the proceeds of such sale in other land, and at the time of his death did not have sufficient personal property to pay the legacies. Held, that this after-acquired real estate did not pass under the specific devise in favor of the wife, but under the residuary bequest, and was thereby in effect converted into personalty and was subject to the payment of legacies, especially as that construction of a will which will give effect to the will rather than one which will defeat it should be adopted when the language is reasonably susceptible of two different constructions.

9. WILLS

450-CONSTRUCTION-OPERATIVE EFFECT OF ALL PARTS OF WILL.

A will is to be so construed as to uphold all of its provisions, if possible.

Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.

Suit to quiet title by Emma D. Coon against William H. Coon and others. From a judgment for defendants, plaintiff appeals. Transferred from the Appellate Court, on petition, under section 1394, Burns' Ann. St. 1914. Judgment affirmed, superseding opinion in the Appellate Court (112 N. E. 841).

Clyde H. Jones, of La Fayette, for appellant. Gavin & Gavin, of Indianapolis, and Stuart, Hammond & Simms, of La Fayette, for appellees.

In determining whether real estate acquired after the date of a will passes under a specific devise to the testator's wife or under the residuHARVEY, J. This is a suit to quiet title ary clause in her favor so as to be chargeable to real estate. The complaint is in one para

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Rehearing denied.