nated; in such case, the term "surviving if she still survive. If she shall be deceased, him" might better denote an intent to limit it is my desire that the property do pass to her heirs." the vesting of the absolute estate in those children only who might survive the first taker. However, considering the language used in its entirety, we are of the opinion that a clear intention to create such an es

Item 3 of the will of Moses Fowler devised the residue of his real estate to three devisees, "subject to the following conditions, to wit: (a) In the event of the death of my said children without lawful issue living at the time of the death of such child, then the share of such deceased child shall vest in, and become the absolute property in fee In Campbell v. Bradford, supra, the follow- simple, in equal portions, of such of my said ing devise was considered:

When the will here was made, the testator knew that his son Francis might live as long as he actually did-44 years. He knew that of the children then born, and that might thereafter be born, no one might survive Francis, in which case nothing would pass by item 3 to testator's grandchildren or their descendants, if appellee's theory be correct. It is scarcely conceivable that the testator entertained such intent. It must be presumed that a rational, normal person in making such a will as this would have tender and just regard for dependent grandchildren who were manifestly objects of his bounty. Aspy v. Lewis, supra.

On

Testator knew that appellee or appellant's mother might die during the existence of the life tenancy, leaving dependent ones. Surely there is nothing in this will which shows the testator wanting in affection for his grandchildren. The fact that he created a life estate in Francis, with remainder to his young children, shows that testator looked into the future and sought to make provision for their possible day of need. reading item 3 it is possible to conceive that testator intended that, in the event that appellant's mother should marry and afterwards die with dependent children surviving, the right of such children to inherit a portion of this land should depend on the mere chance whether the mother died a day be fore or a day after the death of Francis. Myers v. Carney, 171 Ind. on page 386, 86 N. E. 400. In Rumsey v. Durham (1854) 5

Ind. 73, this court construed a will which devised property to testator's widow during life, and provided that at her death it be sold and "equally divided among my children." At the testator's death he had eight children. At the widow's death, the time fixed for distribution, only three survived. One of those who died left a child. It was contended by the three surviving children of the testator that they alone were entitled to participate in the distribution. This court held otherwise and said:

tates stand in disfavor before the law, the inten-
tion to create such an estate must be denied
the language of the whole will."
unless such intention has been made certain by

On appellant's theory, titles vested condiof the five children of the first taker who tionally and divested on the death of each lee was left. The practical effect of such the died before Francis, until finally only appelory is to constitute the deceased children of Francis mere conduits for the transmission

of a fee-simple title that could vest absolutely only on the condition that some child purposes the title might as well be in abeyance-a thing abhorred by the common law. Nothing in this will warrants the imputation

should survive the life tenant. For practical

to testator of an intent to make the fee

simple title of this land a grand prize to the victor in his grandchildren's race with death. The mere definition of a single word or the position of a pronoun ought not alone to pursuade a court that a testator's purpose was when making a final disposition of his propdevoid of reason, prudence, and affection erty among his grandchildren.

Springer, 138 Ind. 506, 37 N. E. 322. WhethAppellee relies especially on Corey v. er the doctrines declared in that case can be to which we have referred, we need not determine here, because the provisions of this will

reconciled with those declared in the cases

are so different from those found in the

Springer will that it could not be justly held that the Springer Case should control here, even if the soundness of the opinion were unquestioned.

We are of the opinion that on the death of Luke Walters the fee-simple title to the land in question vested absolutely in appellee and appellant's mother, subject to diminution to let in after-born children, and consequently the court erred in concluding that appellee is the sole owner of the land.

Judgment reversed, with instructions to restate the conclusion of law and for further proceedings not in conflict with this opinion.

(57 Ind. App. 259)

WORKS et al. (No. 8371.)

(Appellate Court of Indiana, Division No. 2. Nov. 25, 1914.)

1. CONTRACTS (§ 186*) RIGHTS OF THIRD PERSONS.

"But it is contended that his children alive at the termination of the life estate are alone entitled as distributees. If this construction be the true one, then the grandchild, not being REED et al. v. ADAMS STEEL & WIRE within the description of children, would have no share in the division of the estate. This could not have been the design of the testator. It is but fair to presume that he intended to give something absolutely to the persons designated as legatees; that he did not intend to disinherit any of his children, or their descendants. No doubt his mind would have revolted at the idea of his grandchildren being left, perhaps at a tender age, without the means of subsistence. To us it is clear that the actual intention of the testator was that the right to the distributive shares donated by the will should vest in his children immediately upon his decease."

In Fowler v. Duhme, 143 Ind. 275, 42 N. E. 631, this court said:

"In other words, since a devise of an estate, defeasible upon the happening of a contingency, may be so easily expressed, and since such es

A stipulation in a contract for the construction of the steelwork and cells in a jail that the board of county commissioners may require the contractor to employ a sufficient force to complete the work on contract time and to direct the application of the men to such part of the work as seem best, and that all materials and labor must be furnished at such time as may be for the best interest of all contractors concerned, so that the combined work of all may be completed on time, is not for the benefit of another contractor to construct the jail, except the steelwork and cells; and the latter may not sue the former contractor or the county for damages for delay in furnishing the steel work and

cells, in the absence of any agreement on the part of the commissioners that the steelwork and cells shall be so carried forward as not to interfere with the work of constructing the other part of the building.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 790-797; Dec. Dig. § 186.*] 2. CONTRACTS (§ 187*) RIGHTS OF THIRD PERSONS.

The common-law rule that the parties to a contract could not confer contractural rights on a stranger to the consideration, though the contract was made for his special benefit, is abrogated; and a contract made may be made either in whole or in part for the benefit of a third person, not a party to the consideration, provided the performance of the contract as between the parties to it will be beneficial to the third person, and provided it was the intention of one of the parties to require that the contract should be performed by the other party to the contract, for the benefit of the third person, and that the other party intended to assume that obligation.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 798-807; Dec. Dig. § 187.*] Appeal from Circuit Court, Porter County; Wm. Johnston, Special Judge.

Action by John Wesley Reed and another against the Adams Steel & Wire Works and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

were to complete the work under their contract on or before the 1st day of September, 1909.

It is alleged that the custom and the law of the state required that a building of three or more stories, such as the Lake county jail, should be constructed story by story, and that such custom and law was known to appellants and to each of appellees. It is also alleged, in substance, that appellants could not go forward with the work contemplated by their contract, except as appellee performed that portion of the steelwork necessary to the framework and construction of the building, and that the progress of the work under appellants' contract depended upon the progress of the work under the contract between the board of commissioners and appellee Adams Steel & Wire Works.

It is shown that appellants entered upon the performance of the contract and carried the work forward with all possible speed until they reached a point where steelwork and structural steel beams became necessary to the further progress of the work, at which time they notified appellees of the necessity of furnishing such steelwork, and reThe steelwork was not furnished, however, peatedly requested that it be furnished. as stated in the complaint, until six months after the time when it should have been supplied, and not until a period of inclement LAIRY, J. This action was brought by ap-weather had set in, thus causing great dampellants against appellees for damages. Each age to appellants. Each paragraph of the of the defendants filed a separate demurrer to the complaint, and each of these demurrers was sustained. Appellants abided the ruling on demurrer and appealed. The only question presented is the sufficiency of the complaint.

Wm. J. Whinery, of Hammond, for appellants. Otto J. Bruce, of Crown Point, and Ringer, Wilhartz & Louer, of Chicago, Ill., for appellees.

complaint states in what particulars appellants were damaged and the amount of the damages suffered by reason of the failure to furnish the structural steel, steelwork, and steel cells in proper time.

For the sake of brevity a mere skeleton or The complaint is in two paragraphs, both outline of the complaint has been given, suffiof which are very long. Each paragraph cient only to disclose the theory upon which shows that appellee board of commissioners the pleading proceeds. Viewed in the light of Lake county, after taking the legal pre- most favorable to the pleader, it shows that liminary steps, advertised for bids for the the damage suffered to appellants was caused reconstruction of the jail of Lake county, by a failure on the part of the Adams Steel with additions, according to certain plans & Wire Works to furnish the steelwork for and specifications previously adopted. The the jail and to place it in position in accordboard reserved the right to let the contract ance with the contract between it and the for the steelwork and steel cells in a sepa- board of commissioners. It is alleged that rate contract, and this work was let to appel- the contract between the board of commislee Adams Steel & Wire Works, and the re- sioners and the Adams Steel & Wire Works mainder of the contract was let to appel- provided that the board of commissioners lants, John W. Reed and Edwin W. Bump, should have the right at all times to require doing business as partners. The board of the contractor to employ such force on said commissioners entered into a contract with work as such board of commissioners might appellee Adams Steel & Wire Works for the regard as sufficient to complete said work furnishing of material and labor, and the on contract time, and to direct the applicaconstruction of steelwork and steel cells, and tion of such force to such parts of the work also entered into a contract with appellants. as seemed best to the board of commissionThe contract with appellants required them ers, and in the meantime retarding any other to furnish all labor and material and to con- parts of the work if considered proper by struct the jail and additions thereto in ac- them to do so. It is also alleged that this cordance with the plans and specifications, contract contained the provision following: except the steelwork and steel cells and mat"All the materials and labor to be furnished ters directly related therewith. Appellants by the second party, and not governed by the

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

foregoing schedule, shall be furnished at such | dy to another contractor who might be damtime as may be for the best interest of all con- aged by delay. tractors concerned, to the end that the combined work of all may be all fully completed on contract time."

It is further alleged that the contract be tween the board of commissioners and the plaintiffs contained like provisions with those above set out.

The case of Louisville, etc., R. Co. v. Hollerbach, 105 Ind. 137, 5 N. E. 28, is cited by appellants as tending to sustain their pcsition. An examination of that case will disclose that the railway company entered into a contract by which it employed Hollerbach [1] It is apparent from appellants' reply to construct two stone abutments and to brief that they do not contend that the com- furnish all material, except the sand and plaint states a cause of action sounding in cement. The company agreed to furnish the tort. On the contrary, they expressly state foundations and the cement and sand. Acthat each paragraph is based upon the princi-cording to the contract, the foundations were ple that a builder may recover all damages to be prepared and furnished ready to reoccasioned him by a breach of contract on ceive the masonry by the 25th day of July, the part of the owners or employers. We 1881, but the company failed to furnish the are thus called upon to determine whether or foundations for more than 15 months after not the contracts upon which the complaint the date fixed in the contract. It thus apis based, when considered in the light of the pears that the appellant in that case had facts alleged in the complaint, imposed such failed to comply with the terms of the conan obligation upon either or both of appel- tract in respect to the conditions which it lees with respect to furnishing and construct- had agreed to perform, and that Hollerbach ing the steelwork and cells as to require had been thereby delayed and damaged. Unthem, or either of them, to answer in dam- der such circumstances, a recovery was propages to appellants for any loss they may erly allowed, but that case can be readily have suffered on account of the work under distinguished from the case at bar. their contract being delayed by reason of the failure to furnish and complete the steelwork and cells in proper time.

It will be observed that the board of commissioners did not by their agreement with appellants undertake that the steelwork or steel cells should be completed by any particular time, or that this part of the work should be so carried forward as not to interfere with the work under appellants' contract. It is true that the board of commissioners by its contract with Adams Steel & Wire Works provided that the contractor should furnish all material not governed by the schedule at such time as should be for the best interest of all contractors concerned, to the end that the combined work of all might be completed on contract time, but this did not obligate the board of commissioners to see to it that the Adams Steel & Wire Works did furnish the material and do the work in such time as not to delay the work under appellants' contract, and to answer in damages to appellant in case it failed in this respect. The provision of the contract by which the board of commissioners reserved the right to require the employment of an adequate force of men to complete the work on contract time, and the further provision by which the board were given the right to direct the application of this force to such parts of the work as to them seemed best, was not intended to impose any obligation upon the board in favor of appellants. It is apparent that the board of commissioners were desirous that the whole contract should be completed within the time provided by the contract, and that these provisions were inserted to protect the interest of the county,

On behalf of appellants it is contended that the provisions heretofore quoted were inserted in the contract between the board of commissioners and the Adams Steel & Wire Works for the benefit of other contractors engaged in constructing other parts of the jail under contracts with the board, and that such provisions were intended to impose an obligation on the Adams Steel & Wire Works in favor of appellants for the breach of which it must answer to them in damages as one of such contractors.

[2] Under the common law of England none other than the parties to a contract could base an action thereon. The parties to a contract could not by its terms confer contractual rights upon a third person who was a stranger to the consideration, even though the contract was made for his special benefit. Tweddle v. Atkinson, 1 Best & S. 393, 30 L. J. Q. B. 265; Gandy v. Gandy, L. R. 30 Ch. Div. 57, 53 L. T. N. S. 306.

Some of the states adhere to this ancient common-law rule, but the majority, including Indiana, recognize the right of a person not a party to maintain a suit to enforce an agreement made between others for his benefit. Under the more modern rule thus adopted, a contract may be made either in whole or in part for the benefit of a person or persons who are not parties to it or to the consideration, and the person in whose favor it is made may maintain a suit on it in his own name. Clodfelter v. Hulett, 72 Ind. 137; Copeland v. Summers, 138 Ind. 219, 35 N. E. 514, 37 N. E. 971; Buscher v. Volz, 25 Ind. App. 400, 58 N. E. 269; Hendrick v. Lindsay, 93 U. S. 143, 23 L. Ed. 855. See note to Baxter v. Camp, 71 Am. St. Rep. 176.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes