CLARKE, J. The insurance companies (2)-Issue of fraud in award of named in the statement above insured the arbitrators purely equitable. Marks Brothers against loss from fire on their stock of reclaimed army goods. There was a fire, and the insured submitted an itemized claim for damages aggregating $28,

Jurisdiction to impeach award in arbitration because of fraud by arbitrators is purely equitable prior to the Code, whether attacked offensively or defensively, and hence, where fraud was pleaded as defense, motion to trans-325.44. Adjusters were selected, one by the fer to equity should have been granted.

(265 S.W.)

tered against the insurers, a reversal is | ways, as in the English courts, cognizable asked because of the court's refusal to trans- only in chancery, but the jurisdiction more fer the cases to equity after the defense of often is concurrent, and usually purely equifraud had been interposed. table only where the common-law remedies are inadequate or incomplete. Story's Eq. Juris, § 184; Pomeroy's Eq. Juris. § 910, et seq.

[1] As is conceded, these actions on the award were properly begun at common law. Section 11 of the Civil Code of Practice provides when and how an ordinary action, properly commenced as such, may be transferred to equity, and subsection 2 thereof reads:

[4] The difficulties that have attended a decision of whether or not available legal remedies were adequate to relieve against fraud attributable to or affecting only the parties to the action were not encountered in cases where the fraud affects or is attributable to third parties rather than the imme

"Either party may, by motion, have the case transferred to equity docket for the trial of any issue which, before the said day (August 1, 1851), was exclusively cognizable in chan-diate parties to the action, as where a judgcery."

ment or award has been obtained by fraud,

The single issue presented by the pleadings and it generally has been agreed that, in such cases, legal remedies are not adequate. Pomeroy's Eq. Juris. § 919.

in all of these cases was whether or not the award was vitiated by fraud, partiality, and misconduct of the arbitrators.

[2] If then, on August 1, 1851, when the first Code was adopted, such an issue was cognizable only in chancery, the court erred in refusing to transfer these cases to equity, unless, as also claimed by the insured, the right thereto was waived. This is necessarily true despite the fact that, by reason of sections 95 and 113 of the Code, the defendant is permitted to plead as many defenses as he may have, whether legal or equitable, in any action filed against him, since manifestly the right to transfer given by section 11 to equity for trial of an issue in equity, is dependent upon his right to raise such an issue in an ordinary action by his defense thereto.

It seems to be conceded that an action to

set aside an award upon the ground of fraud must have been in equity prior to August 1, 1851, and therefore also since that time, under section 6 of the Code; but it is insist

ed that courts of law then had and now have concurrent jurisdiction to relieve from fraud

in an action to enforce a common-law right.

That they had and still have such concurrent jurisdiction in many cases is true,

as in an action upon a note or other con

tract to which the signature of the defend

ant was obtained by fraud. Wood v. Waters, 1 Litt. 179; Tribble v. Oldham, 5 J. J. Marsh. 137; Hunt v. Nance, 122 Ky. 274, 92 S. W. 6. But, as said in the last-named

case:

"Only a court of equity has jurisdiction to cancel or declare void a deed or other instrument, whether upon the ground of fraud or mistake."

[3] The distinction recognized in that case, and upon which counsel for the insured rely, has been consistently recognized in this state both before and since the adoption of a Code of Practice in 1851. But this distinction, with its many niceties, is not helpful here, except as it makes clear the fact that, in this state, as in practically all American courts, the issue of fraud is not nearly al

Our Code (section 518) fixes the jurisdiction to relieve from a fraudulent judgment

in the court which rendered it, but provides (section 51) that courts-as does section 73 have power over awards on equitable prinof the statute that courts of equity-"shall

ciples as heretofore."

We have been able to find only two cases decided prior to the adoption of these staturaised, and in both of them the court extory declarations, in which the question was pressly held that the jurisdiction to impeach an award because of fraud by the arbitrators is purely equitable, whether attacked offensively or defensively. Southard v. Steele, 3 T. B. Mon. 435; Maysville, etc.. Turnpike Co. v. Waters, 6 Dana, 62.

It would therefore seem clear that the jurisdiction of the issue of fraud in an award upon the part of the arbitrators, however presented, was exclusively equitable prior to the adoption of the Code, and that both the

Code and the statutes have expressly de

clared it shall continue so.

tion, throw no light upon the subject, although the issue has been tried both at law

More recent cases, with a single excep

and in equity since the adoption of the Code, tion raised by motion to transfer, as is now but without having the jurisdictional quesnecessary to avoid a waiver. But the issue was declared to be purely equitable in Jones v. Northern Assurance Co., 182 Ky. 701, 207 S. W. 459, where it was presented defensively, as here, and that, if submitted to a jury, the verdict would be advisory only.

We therefore conclude that the court erred in refusing to transfer the trial of the issue to equity, unless, as claimed, the right was waived.

[5] The insistance for the insured is that the right is waived, unless the motion for transfer is made when or before the answer is filed, as required by subsection 2 of section 10 of the Code. But that subsection, by its terms, relates only to transfers of common-law actions to the equity docket which should have been brought in

265 SOUTHWESTERN REPORTER

equity, and therefore can not apply where,, trator and the umpire. If it is set aside, then
(Ky.
as here, the action admittedly was properly the plaintiffs may prosecute such remedy as
begun at common law. Subsection 2 of sec- the law gives them. They are not without rem-
tion 11, which by its terms is applicable edy."
here, contains no such provision.

And the reason why in the one case the Code requires the motion to be made when or before answer is filed, and does not so require in the other, is manifest and significant. Where an action is filed at common law that should have been in equity, that fact is of course apparent from the petition, and the motion can and must be filed "when or before" answer. But when an action is properly begun at common law, no reason can exist for a transfer of "an issue" cognizable only in equity until after such an issue has been formed, and, as the issue of fraud was not formed here until the replies were filed, and the motion was then made in each case, there could have been and was no waiver.

[6] It is also urged defendants waived consideration of the matter in this court by their failure to except to the orders overruling their motions to transfer, but they later, and before the cases were set for trial, moved to reconsider the motion and excepted to the order overruling that motion, and thereby saved the question.

It is next insisted that the error was not prejudicial because there was no evidence of fraud. A sufficient answer to this contention for the insured, as well as to the contrary one of the insurers that fraud was conclusively established, is found in the fact that the other appraiser fixed the loss at about one-third the amount of the award, and there is considerable evidence supporting either view, as well as contrary evidence as to whether or not the award was based upon an unsworn statement furnished by the insured to the appraiser selected by them as to the sound value of the damaged goods. [7] We are therefore of the opinion there was evidence aplenty from which either a jury or a chancellor might have concluded the award was or not the result of fraud, and that the denial to the insurers in these two cases of their right to have the question of fraud laid upon the conscience of the chancellor was prejudicial, and that for this reason the judgments on the award must be reversed.

[8] For reversal of the judgments against the insured, it is urged that the instructions to the jury were prejudicially erroneous, and having concluded that this is true, we shall contine our discussion to that subject. As already stated, the evidence was such that the jury might have found for either side. The first instruction given by the court concludes with this statement:

"If the award is upheld, the plaintiffs will receive the amount of the award of the arbi

While this statement is no doubt true as jury at the time were in nowise concerned, a principle of law, it is one with which the and so instructed, it is utterly impossible to determine whether they set the award aside because of a belief that it was fraudulent, as only they have a right to do, or simply because they considered it excessive, and believed that justice would be served the better by setting it aside and leaving plaintiffs to their suggested remedy.

struction is not apparent, since he excluded Just what led the court to give this innot to consider it when made by counsel in a similar statement and warned the jury stating his case at the beginning of the trial.

Wherefore the judgment in each case is directions to transfer them for trial togethreversed, and the causes are remanded, with er in equity.

(Court of Appeals of Kentucky. Oct. 3, 1924.) 1. Process 96(1)—Where verified petition contained grounds for constructive service, separate affidavit unnecessary.

CAHILL et al. v. PELZER et al.

Where petition was verified, and contained grounds for constructive service, it took place of affidavit, and separate affidavit stating Prac. §§ 57, 58, 116. grounds was unnecessary, under Civ. Code.

2. Process 47-Sufficient for plaintiff to state she "believed" defendants absent from state.

ment in petition that plaintiff "believed" deUnder Civ. Code Prac. §§ 57, 58, statefendants were absent from state was sufficient der section 116, was only verified as true "as to support warning order, though petition, unshe verily believes."

3. Wills 470-Intention gathered from entire language is polar star of construction.

tator, as gathered from entire language, is In construction of wills, intention of tespolar star by which courts should be guided. 4. Wills 649-Exception clause held to permit alienation of property on death of one child.

estate to testator's children, with remainder to Will giving widow life estate, and then life their offspring but providing that children should have no power of sale, "unless in case one of my heirs should die, there and then that property the benefits derived from the same be mitted alienation of whole property on death of equally divided over the remaining heirs," perone child of testator. 5. Perpetuities

6(1)-Restraints against

alienation not favored.

ored in law.
Restraints against alienation are not fav-

(265 S.W.)

6. Wills 649-Qualifications on restraints | married and had children. Thereafter this against alienation, when ambiguous, construed to provide for entire removal.

Ambiguous qualifications to restraints against alienation will be construed so as to provide for entire removal of restraints rather than only partial ones.

Appeal from Circuit Court, Campbell County.

Action by William D. Cahill and others against Mary Pelzer and others. From the judgment, the former appeal. Reversed, with directions.

Howard M. Benton, of Newport, for adult appellants.

E. W. Hawkins, Jr., of Newport, guardian ad litem, for infant appellants.

L. S. Shepler and W. A. Burkamp, both of Newport, for appellees.

THOMAS, J. This equity action is the second effort on the part of some of the devisees of Dennis Cahill, deceased, against the others, to procure a decretal sale of the devised land of the testator, for the purposes of division among all of them according to the terms of the will. The disposition of the first action will be found in this court's opinion in the case of Ennen v. Air, 104 S. W. 960, 31 Ky. Law Rep. 1184, and in it the will of the testator was construed to devise to the widow a life estate in the testator's real property, and after her death a life estate in his children, with the fee in remainder, according to that opinion, "to the offspring of his children, meaning such offspring as would take from them by descent if they should die intestate." At that time all of the children of the testator were living, but whether any of them were married or had children does not appear from the opinion, and the court, in the light of the facts as they then existed, construed certain language of the will to forbid a sale of the property under the then existing conditions. The language of the will so construed to create a limitation on the right of alienation

is:

"I request that oldest, soberest and best worthiest be executor and administrator, without bond, be it male or female, and that they shall have no power to sell any of the property, my wife and children, unless in case one of my heirs should die, there and then that property the benefits derived from the same be equally divided over the remaining heirs."

action was brought in the Campbell circuit
court by the adult devisees against the in-
fant remaindermen, including, of course, the
children of testator's deceased child, all of
whom were nonresidents and proceeded
against by constructive service, seeking the
same relief that was sought in the first case
of Ennen v. Air, supra, and the court held
that the exception clause in the will against
the right of alienation, reading, "unless in
case one of my heirs should die, there and
then that property the benefits derived from
the same be equally divided among the re-
removed the restraint
maining heirs,"
against alienation and entered a judgment
sustaining the prayer of the petition. The
land was sold pursuant to the decree so or-
dering and the purchasers filed exceptions
to the sale upon two grounds: (1) That the
affidavit for the warning order was insuffi-
cient, and for that reason it was void; and
(2) that the court construed the will incor-
rectly. The exceptions were sustained, and
the sale and order therefor were each set
aside, and the petition dismissed, but wheth-
er upon one or both grounds does not appear
in the order. All of the devisees, both adult
and infants, prosecute this appeal there-
from. We will dispose of the two grounds
in the order named.

[1, 2] 1. The petition was verified by the plaintiffs and it contained the grounds for the constructive service, which, under numerous opinions of this court, is permissible, since in those opinions it was held that it was not necessary that a separate affidavit stating the grounds should be made. The averments of the verified petition on that subject are, "All of said defendants are infants and nonresidents of the state of Kentucky, and, as plaintiffs believe, are now absent therefrom," and the respective residences of the defendants are then set out. "Addresses are as follows," etc. The post offices of the defendants are then set out. The verification reads:

"The plaintiff Catherine Air, being duly sworn, says that the statements contained in the foregoing petition in equity are true, as she verily believes."

It is contended in support of this ground that, since in the petition or affidavit the affiant stated in substance that she believed the defendants are now absent from the state, and stated in her verification that the allegations of the petition containing the affidavit were true, "as she verily believes," this renders the required statement of the absence of the defendants from the state of no force or effect, and left it as if no statement whatever was made as to their absence from the state.

The real estate involved consisted of five parcels in the city of Newport, Ky., four of which were improved, and the other one wholly unimproved. In October, 1922, Thomas P. Cahill, one of the children of the testator, died leaving four infant children. and in the meantime others of his children For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 265 S.W.-3

There might be some force in the contention if the affidavit and the verification did

applicable. We therefore conclude that the warning order was sufficient, and that the defendants, who were proceeded against as nonresidents, were properly brought before the court for adjudication of the questions involved.

not literally follow the provisions of our, lute, but the one seeking the warning order Code relating to such matters. As above may state his belief as to the other necesstated, we have frequently held that a prop- sary requisite; i. e., absence from the state. erly verified petition containing the neces- With the pleading containing the statement sary allegations for constructive service, as as set forth in the Code, and with a verifiset out in sections 57 and 58 of the Civil Code cation of it in the very language of its secof Practice, authorizes the issuing of a tion 116, we are unable to sustain this warning order for the defendant and the ap-ground of exception, and the difference pointment of a corresponding attorney for pointed out renders the cases relied on inhim. One of the grounds stated in subsection 2 of section 57 of the Code upon which a warning order may be obtained is that the defendant is "a nonresident of this state and believed to be absent therefrom" (our italics). And the various subsections of section 58 prescribe who shall make the affidavit under shown conditions and what the affiant shall state, but it is required that any of such affiants shall make oath to one or more of the grounds contained in section 57. It is not claimed but that the essential fact of absence from the state according to affiant's belief was improperly stated in the petition, which, if true, it would seem to follow that, if the petition was properly verified, then under the frequently announced rule, supra, this ground of exception would be without merit.

[3, 4] 2. In determining this ground it should first be remembered that in the construction of wills the intention of the testator, as gathered from the entire language he employed, is the polar star by which courts should be guided. With that fundamental rule in mind, our task is to determine the intention, purpose, and meaning of the testator by incorporating in his will the exception clause against alienation quoted above. Undoubtedly he meant something, and intended in some way to modify or qualify the prior absolute restraint against alienation,

Section 116 of the Civ. Code of Practice since he is not to be presumed as employing

says:

"Every pleading, which this Code requires to be written must be verified by an affidavit to the effect that the affiant believes that the statements of the pleading are true" (our italics)

-with certain enumerated exceptions, none of which have any relevancy to this case. We therefore see that the verification or affidavit which that section requires to be

made to the petition was literally complied

that qualifying language to no purpose. We must admit that the language containing the qualification is somewhat ambiguous, and that it, like the whole will, as stated in the Ennen opinion, is awkwardly and ungrammatically expressed, and because of which, as is also stated in that opinion, it somewhat confuses his intention. An analysis of the qualification, in the light of the other provision of the will, would no doubt furnish

us assistance in arriving at his meaning and purpose. The language is:

"Unless in case one of my heirs should die, there and then that property the benefits de

with, because all it requires is "that the affiant believes that the statements of the pleading are true" (our italics). We then have the prescribed statement in the petition rived from the same be equally divided over the

remaining heirs."

as to the affidavit for warning order, and literally stated in the language of the Code It is the contention of the appellees (the section, and we have that pleading verified purchasers) that that language provided, upstrictly according to section 116 of the Code. on the death of one of the testator's heirs, If the fact necessary to procure the warning that only his portion should be divided "over order was one which the provisions of sec- [among] the remaining heirs," and that the tion 57 of the Code required to be absolutely power to sell the whole property for division, stated, but instead of doing so the pleader upon the happening of that event, was in no had only stated it as a fact "as he believed," manner thereby provided for. In the light or in any manner made the absolute truth of the many awkward words and expressions of the fact depend upon his belief, then there in the will, we might, according to a well would be some force in counsel's contention, founded and recognized rule, supply for the and it was that character of absolute state- word "that," just preceding the word “propment that was involved in the cases upon erty" in that clause, the article "the," so which he relies. Illustrating our meaning, that the clause would read, “Unless in case subsection 2 of section 57, referred to, re- one of my heirs should die, there and then quires that, before a warning order may is- the property the benefits derived from the sue upon the ground of nonresidency, it must same be equally divided over [among] the appear by affidavit that the defendant is "a remaining heirs," and we do not feel that nonresident of this state," and in addition we would be doing violence to the language, thereto "believed to be absent therefrom." in the light of the facts, to make such subThe requirement as to nonresidency is abso- stitution, if it was absolutely necessary for