seled with the attorneys for the trustee in, in Fallon v. Kehoe, 38 Cal. 44, 99 Am. Dec. bankruptcy, doing all in their power to have 347: the claim of appellee disallowed. They were then contending that the real estate now in controversy belonged to the estate of Ulysses S. Bartmess, bankrupt, and that it should be sold by Homer Elliott as trustee to pay the debts of said Bartmess, a position entirely inconsistent with their present one.

[1] The facts as found by the court do not disclose whether the appellant was named as a creditor or interested party in the proceedings in bankruptcy. If appellant was a party to the proceedings in bankruptcy, our task would be easy, and our course clear, as it is universally held that the action of a referee in bankruptcy in the allowance of a claim is res adjudicata as to all who have been made parties to the proceedings in the bankruptcy court.

[2] Upon the filing of a petition in bankruptcy, followed by an adjudication, all property in the possession of the bankrupt of which he claims ownership passes at once into the custody of the court of bankruptcy, and becomes subject to its jurisdiction to determine all adverse or conflicting claims thereto, whether of title or liens. In re Schermerhorn, 145 Fed. 341, 76 C. C. A. 215. See, also, In re Kellogg, 121 Fed. 333, 57 C. C. A. 547.

"We apprehend there can be but little doubt on this point, and we do not understand counsel as controverting the proposition that, if the true owner conveys the property by any name, the conveyance, as between the grantor and grantee, will transfer title."

See, also, Middleton v. Findla, 25 Cal. 76. The owner of real estate attesting a deed made by a person having no title, if such owner knows the contents of such deed, will, by attesting it, be estopped from setting up his own title against the grantee and his privies. Devlin on Real Estate, § 1286a; Equitable, etc., Co. v. Lewman, 124 Ga. 190, 52 S. E. 599, 3 L. R. A. (N. S.) 879; Wakefield v. Brown, 38 Minn. 361, 37 N. W. 788, 8 Am. St. Rep. 671; Miller v. Bingham, 29 Vt. 82.

The appellant is in no position to claim that its equities are equal or superior to those of appellee. In fact, it secured all, if not more than, it was entitled to when the trial court found that its title should be quieted as to the claims of the appellees other than May Bartmess.

The court did not err in its conclusion of law.

Judgment affirmed.

(71 Ind. App. 688)

HARDY et al. v. SMITH et al. (No. 9898.)* (Appellate Court of Indiana, Division No. 1.

[3] Ought the appellant, in view of all the facts and circumstances disclosed in this case, be permitted, after a delay of over two years, after it has stood by and with knowledge permitted the court and the public to deal with the property as belonging to Ulysses S. Bartmess, to now claim the property free and clear of a claim that was liti- 1. WILLS gated in the bankrupt court and which was by that court found to be a valid lien on said real estate?

We would remind appellant that "he who keeps silent when duty commands him to speak shall not speak when duty commands him to keep silent." Appellant, by its act in having John H. Smith make the deed to Bartmess, represented that Smith had the power and authority to make such deed and to convey the title, and it ought in equity to make that representation true.

The rule of law is clear that, when one by his words or conduct causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own position, the former is precluded from averring a different state of things as existing. Pickford v. Sears, 6 Ad. & E. 469; Stevens v. Dennett, 51 N. H. 324.

OF TESTATOR.

May 29, 1919.)

439-CONSTRUCTION-INTENTION

In construing a will, the court must be guided by the testator's intention. 2. WILLS

469-CONSTRUCTION-INTENTION

OF TESTATOR-MEANING OF LANGUAGE.

In searching for the intention of the testator, every word and clause of the will must be considered, and, if possible, given effect. 3. WILLS 449 CONSTRUCTION AGAINST PARTIAL INTESTACY.

A construction resulting in a partial intestacy will be avoided, unless the language of the will is such as to compel it.

4. WILLS634(1)—CONSTRUCTION-CONTINGENT OR VESTED REMAINDER.

. A remainder will not be construed to be

contingent, if it can be construed to be vested. 5. WILLS 634(15)-CONSTRUCTION-VESTED REMAINDER.

Under a will giving to testatrix's husband [4] The appellant had an equitable inter- and brother life estates in certain land, and, est in the real estate which it could have subject thereto, devising such land and all realconveyed to Bartmess, and it is our judg-ty owned at her death to a niece for life, or on her death prior to death of testatrix, or the ment that whatever title it could have pass- death of the husband and brother prior to ed by deed did in equity pass by the deed death of testatrix, then at niece's death, or from Smith, trustee, to Bartmess. As said the death of husband and brother, the fee sim

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. Transfer denied.

(123 N.E.)

ple to vest absolutely in two daughters of niece | of item 4 of said will. It is contended by apas tenants by the entirety, and where husband pellants that the devise to appellees Lilly and brother predeceased testatrix, the daugh- Smith and Mary P. Smith was, by the terms ters took a vested remainder in fee.

6. WILLS

461-CONSTRUCTION

SITION OF WORDS-OR."

If from the wording of the will it is obviously necessary to carry out the intention of the testator, the word "or" will be construed as "and."

of said item 4, contingent upon the death of TRANSPO-devisee Miranda Smith prior to the death of the husband and brother of testatrix; and inasmuch as this contingency did not happen, and cannot now happen, this conditional devise failed, and that testatrix died intestate as to said real estate. On the other hand, appellees take the position that item 4 of the will must be construed as devising the fee simple of said real estate to appellees Lilly Smith and Mary P. Smith, their right of enjoyment being postponed until the termination of the life estates devised, and that as to said real estate testatrix died testate.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Or.] Appeal from Circuit Court, Carroll County; James P. Wason, Judge.

Suit to quiet title by Wilson A. D. Hardy and another against Miranda Smith and others. Demurrer to complaint sustained, and judgment for defendants, and plaintiffs appeal. Affirmed.

L. D. Boyd and George W. Julien, both of
Delphi, for appellants.
Wm. C. Smith and John H. Cartwright,
both of Delphi, for appellees.

REMY, J. Mary A. Lamb by item 3 of her will devised to her husband, William R. Lamb, and her brother, Alexander Hardy, each a life estate in certain lands therein described. Item 4 of said will is as follows: "Item 4. Subject to the provisions of item three, in favor of my husband and my brother, Alexander, I devise the said real estate described in item three and all the real estate of which I may die the owner, to my niece Miranda Smith of Kokomo, Indiana, for and during the term of her natural life, or in case of her death prior to my death, or the death of my husband and brother, then at her death, or the death of my husband and brother, the fee simple of all of said real estate shall vest absolutely in Lilly Smith and Mary P. Smith, daughters of said Miranda Smith, as tenants by the entirety the survivor to take the whole."

Appellants prosecuted this suit against appellees to quiet title to eight-tenths of the said real estate, and to construe said will. Appellees are the persons named as devisees

in said item 4.

[1-4] In construing the provisions of a will, we must be guided by the testatrix's intention, and in search for such intention every word and clause of the will must be considered, and, if possible, given effect. Fenstermaker v. Holman, 158 Ind. 71, 62 N. E. 699. A construction resulting in a partial intestacy will be avoided, unless the language of the will is such as to compel such construction. Keplinger v. Keplinger, 185 Ind. 81, 113 N. E. 292. It is also a rule of construction that a remainder will not be construed to be contingent, if it can be construed to be vested. Linscott v. Trowbridge, 224 Mass. 108, 112 N. E. 956. See, also, Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914.

[5] A careful examination of the will, keeping in mind these rules of construction, leads to the conclusion that it was the intention of the testatrix to die testate as to all of her property, and that Lilly Smith and Mary P. Smith should take the fee of the real estate, subject only to the stipulated life estates. It is undisputed that item 3 gave to the husband of testatrix a life estate in said land in the event he outlived her; also a life estate in testatrix's brother during the years, if any, he outlived her husband. Item 4 provides:

"Subject to the provisions of item three.
* * I devise
* all the real estate

of which I may die the owner, to Miranda
Smith for and during her natural life"

life estate, subject to the life estates mentioned in item 1. Then follows the clause upon which appellants base their contention, and which they claim amounts to a condition which has become impossible of performance, to wit:

The complaint alleges that the said hus--thereby giving to said Miranda Smith a band and brother died seven years prior to the death of testatrix; that appellants, among others, are the heirs at law of testatrix; that said testatrix died intestate as to the fee simple of the said lands; and that the fee simple of the undivided eight-tenths thereof is in appellants. Appellees' demurrer to the complaint for want of facts was sustained, and judgment was rendered for appellees upon the refusal of appellants to What was testatrix's intention with refer plead further. The action of the court in ence to this clause? Plainly her purpose sustaining the demurrer is the only error as- was merely to provide for the possibility of signed. Miranda Smith dying before her life estate The controversy involves the construction should vest, and to make it certain that Lilly

"Or in case of her death prior to my death, or the death of my husband and brother."

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

Smith and Mary P. Smith would take the fee In any event. In other words, testatrix did not want the vesting of the fee in remainder in Lilly Smith and Mary P. Smith to be dependent upon the vesting of a life estate in their mother. This construction is borne out by the clause which follows, which clause provides:

"Then at her death [the death of Miranda Smith], or the death of my husband and brother, the fee simple of all said real estate shall vest absolutely in Lilly Smith and Mary P. Smith," etc.

[6] It is apparent, from the context of the will, that testatrix improperly used the word "or," instead of the word "and." If we make the substitution, that part of the will would read:

"To my niece Miranda Smith of Kokomo, In-lants. diana, for and during the term of her natural life, and in case of her death prior to my death, or the death of my husband or brother, then at her death, or the death of my husband and brother, the fee simple of all of said real estate shall vest absolutely in Lilly Smith and Mary P. Smith," etc.

-and there would be no uncertainty. The disjunctive "or" is not a technical word, and it is a well-known rule that if, from the wording of the will, it is obviously necessary to carry out the intention of the testator, the word "or" will be construed as "and." Janney v. Sprigg, 7 Gill (Md.) 197, 48 Am. Dec. 557, cases cited and note; 6 Words and Phrases, 5007.

We conclude that appellees Lilly Smith and Mary P. Smith took a vested remainder in fee in the real estate involved in this suit. The trial court correctly sustained appellee's demurrer to the complaint. Judgment affirmed.

(70 Ind. App. 416)

ENLOE, J. This was an action by appellee against the appellants, founded upon a certain contract in writing entered into by the parties on the 2d day of December, 1912. It appears from the record that for some time prior to said date one H. D. Flora had been selling merchandise furnished to him by appellee, and for which he was, as shown by said agreement, indebted to appellee, on said date, in the sum of $833.88; that said Flora was desirous of continuing the sale of such merchandise so theretofore furnished

him by appellee, and on said date the said appellee and said Flora entered into a contract, by the terms of which said appellee agreed to furnish to said Flora such merchandise as it manufactured, or sold, at wholesale prices, until the 1st day of March, 1914, to be sold by said Flora within the limits of certain described territory; that such goods as should thereafter be furnished by appellee, and freight or express charges

HESS et al. v. J. R. WATKINS MEDICAL thereon, should be paid for by said Flora, as

CO. (No. 9901.)

therein stipulated, unless the time of payment should be extended by appellee, which

(Appellate Court of Indiana, Division No. 1. right it expressly reserved; that the time of June 5, 1919.)

1. PRINCIPAL AND SURETY 6"SURETY" DISTINGUISHED FROM "GUARANTOR."

A "surety" undertakes to do that which his principal is bound to do, in case the principal fails to comply with the contract, while a guarantor undertakes that the principal will do the things mentioned in the contract by the principal to be done, and, in case the principal fails to do so, that he, the guarantor, will pay damages sustained to the beneficiary from such failure of the principal.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Guarantor; Surety.]

payment of the then existing indebtedness of $833.88 was extended, by the terms of said agreement, so that the same could be paid at any time during the existence of said contract then made. This contract was duly signed by the appellee and said Flora, and immediately following their signatures was the following:

"In consideration of one dollar in hand paid by the J. R. Watkins Medical Company, the receipt whereof is hereby acknowledged, and the execution of the foregoing agreement by said company, and the sale and delivery by it to the party of the second part of its medicine, extracts, and other articles, and the extension

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

(123 N.E.)

of the time of payment of the amount due from [with his contract while a guarantor underhim to said company as therein provided, we, takes that the principal will do the things the undersigned, do hereby jointly and several- mentioned in the contract by him (the prinly guarantee full and prompt payment of said cipal) to be done, and, in case the principal sum, and for said medicine, extracts, and other fails in his undertaking, that he (the guararticles, and the prepaid freight and express thereon, at the time and place, and in the antor) will pay whatever damages may be manner in said agreement provided. * sustained by the beneficiary in the contract by reason of such failure on the part of such principal.

"S. J. Hess.
"L. G. Harley."

[2] In the case of Nading v. McGregor, 121 Ind. 465, 23 N. E. 283, 6 L. R. A. 686, the court said:

"In a strict guaranty, the guarantor does not undertake to do the thing which his principal is bound to do; but his obligation is that the principal shall perform such act as he is bound to perform, or, in the event he fails, that the

The complaint was in one paragraph, to which was attached as an exhibit, in its entirety, the aforementioned contract, and to this complaint the appellants first answered severally, in abatement, setting out in their answer, in full, that part of the aforesaid contract signed by them, and then alleging that said Flora did, at the time said contract guarantor will pay such damages as may rewas signed, and at the time the amounts named in said contract, which were guaranteed by these defendants, became due, and at the time this suit was commenced against these defendants, and still does, reside in the city of Kokomo, Ind.; that the appellee never brought suit against said Flora, or attempted to enforce this contract against the principal.

sult from such failure. It is this feature which enables us to distinguish a strict or collateral guaranty from a direct undertaking or promise, itself into a promise or undertaking on the part so that, when an instrument of writing resolves of the person executing it to do a particular thing which another is bound to do, in the event such other person does not perform the act himself, it is said to be an original undertaking, and not a strict or collateral guaranty. In the latter class of contracts the undertaking is in the nature of a surety, and the person bound by it must take notice of the default of his principal."

To this answer in abatement a demurrer was sustained, and appellants then answered in three paragraphs-the first, general denial; second, payment; and a third paragraph, which was in substance as follows: In Ward v. Wilson et al., 100 Ind. 52, 50 "That the appellants guaranteed the payment| Am. Rep. 763, the court said: of the said several amounts sued on in the complaint, and did not promise to pay the same as debtors, on the account sued on, and at the time and times the several amounts became due, the principal, Flora, was solvent, and no notice of the nonpayment of the principal debtor was given to these guarantors by the appellee, or other person, and that thereby these defendants, and each of them were precluded from saving themselves from liability on the guaranty, and said guarantors were thereby damaged and injured to the amount of their liability, by reason of the failure of such no

tice."

To this paragraph of answer a demurrer was sustained, and thereafter the cause was submitted to the court for trial, which made a general finding in favor of appellee, and that appellants were indebted to appellee in the sum of $912, and rendered judgment accordingly.

The errors assigned are: Error in sustaining demurrer to answer in abatement; error in sustaining demurrer to third paragraph of answer; error in overruling appellant's motion for a new trial.

[1] The first and second assigned errors, for their answer, center upon the one question as to the character of the undertaking of appellants, as set forth in said contract. Were they strict guarantors, or were they sureties? A surety undertakes, by his contract, to do that which his principal is bound to do, in case the principal fails to comply

"In like manner, where the stipulation is to pay the debt or perform the contract of antered into separately from the other or not, other absolutely or at all events, whether enthe same effect should, in all cases, be given to such contracts, and the obligor held liable,

without notice of default.

* No ade

quate reason occurs to us for stating it as a
rule that a direct, unconditional agreement to
pay for goods which may be delivered to a
third person in the future, or the same kind of
has engaged to perform, may, by construction,
a contract to do any other thing which another
be made conditional upon a notice of default
* and, if notice of
of such third person,
future liability is to be relied on, it should be
stipulated for in the writing, rather than that
the courts should undertake to annex some con-
dition of liability upon an absolute engagement."

In Trustees of, etc., v. Gilliford et al., 139 Ind. 524, 38 N. E. 404, the court said:

"The answer states that the guarantors had no notice or knowledge of a large part of such sales. They had expressly guaranteed 'payment for all sales' which might be made by appellant to William A. Patton. It was their duty either to revoke that guaranty or see that William A. Patton continued to make payments for the goods purchased."

In Closson v. Billman et al., 161 Ind. 610, 69 N. E. 449, the court said:

"Appellant was not a surety, although he joined with the principal obligor in the sign

ing of the bond, because his undertaking was Walker & Hollett and Ralph E. Jones, all that his principal would perform the contract of Indianapolis, for appellant. which was collateral to the bond. *

Ap- David F. Smith, Samuel D. Miller, Frank Dailey, and Wm. H. Thompson, all of Indianapolis, for appellee.

pellant was a guarantor, and as such cove-C. nanted that his principal would perform the main engagement, or that he [the guarantor] would answer in damages for the default."

Since by Burns' Ann. St. 1914, § 1101, all defenses, legal or equitable, in action to quiet title, may be made under general denial, error cannot be predicated on action of court in sustaining a demurrer, in an action to quiet title, to a paragraph of the answer; another paragraph of the answer containing a general denial. 2. TRIAL 400 (2)-CONCLUSIONS OF LAW-lant's OBJECTIONS.

There was no error in overruling a motion to modify conclusions of law, there being no rule of practice authorizing such a motion; the appropriate remedy being by exception to the conclusions.

"There was no error in overruling the motion to modify the conclusions of law. We know of no rule of practice authorizing such a mo3. APPEAL AND ERROR 293-FINDINGS OF tion. * * The appropriate remedy is by TRIAL COUrt. excepting to the conclusions of law, and not by a motion to modify; otherwise the statute could be practically nullified, which requires the exception to such conclusions to be taken at the time."

Appellant next complains of the action of the court in overruling its motion to modify the judgment theretofore rendered herein, by adjudging and decreeing that the appellant, Sheehan Construction Company, had and held a lien upon the lands in question, to the

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