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safety arbitrarily devised and set up to fit the actionable necessities of every casualty, and such shifting, arbitrary methods, how ever incongruous, would be urged as being the only safe method and only sane way of arranging and conducting the master's business. We do not understand counsel for defendant to contravene the rule contended for by plaintiff that the same rule of law applied to plaintiff in going to, and returning from, the premises of defendant as protected him while on such premises and just as if plaintiff had actually been engaged there at work. Upon the facts before us no other view is tenable. All the duties which the master owed to plaintiff while the latter was upon the premises attached at the moment plaintiff was injured. Jackson v. Butler, 249 Mo. 342, 155 S. W. 1071; Lewis v. Railroad, 59 Mo. 495, 21 Am. Rep. 385; Porter v. Railroad, 71 Mo. 66, 36 Am. Rep. 454; Huhn v. Railroad, 92

Mo. 440, 4 S. W. 937; Alcorn v. Railroad, 108 Mo. 81, 18 S. W. 188; Williams v. Railroad, 119 Mo. 316, 24 S. W. 782. At this precise moment it was incumbent on the defendant to furnish to plaintiff, who was on the premises in the line of duty, a reasonably safe way of ingress and egress.

[2] Reciprocally it was the duty of appellant to use his senses as to an appliance plainly in sight, which appliance respondent had the right to install, and touching which, as we have seen, no duty lay upon the master to place at any location other than that which was convenient to, and suited, the

master.

We think, upon the facts here, the plaintiff was guilty of contributory negligence, as a matter of law, in failing to see, in the light he had and under the circumstances here, the mud scraper by which he was injured; for it was the duty of the plaintiff himself to exercise ordinary care for his own safety, to use his eyes, which he says were reasonably good, and to avoid running into permanent erections and appliances, plainly visible and open, upon his employer's premises.

been comprehended by a person of ordinary prudence, whose mental and physical capacities, for observing the facts indicative of danger, both natural and acquired, and opportunities were the same as those of the servant himself." 4 Labatt's M. & S. § 1310; Porter v. Hannibal & St. Joe Railroad Co., 71 Mo. loc. cit. 77, 36 Am. Rep. 454; Hollenbeck v. Railroad, 141 Mo. 97, 38 S. W. 723, 41 S. W. 887; Nicholds v. Plate Glass Co., 126 Mo. loc. cit. 64, 28 N. W. 991.

In the case of Porter v. Railroad, supra, at page 77 of 71 Mo. (36 Am. Rep. 454), it was said:

"If, however, the defect is patent, open to machine in the business the servant is engaged observation, or such as the ordinary use of the in would disclose to an ordinarily observant man operating it, and the servant had ample opportunity, by operating it, before being injured, to observe the defect, his opportunity to know would be held as knowledge, whether, in fact, he knew of the defect or not. Keegan v. Kavanaugh, 62 Mo. 232; Hulett v. St. L., K. C. & N. Ry, Co., 67 Mo. 239."

Commenting upon the entire trend and scope of the hundreds of cases cited by him on this point, the above distinguished author says:

these cases is that an adult servant of ordinary "It will be seen that the general effect of intelligence is presumed to have been capable of ascertaining every fact which could have been apprehended by the senses of a person having those senses in relation to the dangerous condithe same opportunities as he had for exercising tions which caused the injury." 4 Labatt's Master & Servant, § 1313, and numerous cases

cited.

No case holding to the contrary has been The cases of Alexcalled to our attention. ander v. St. Joseph, 170 Mo. App. 376, 156 S. W. 729, Graney v. St. Louis, 141 Mo. 180, 42 S. W. 941, and O'Donnell v. Hannibal, 144

Mo. App. 155, 128 S. W. 819, are all sidewalk cases, wherein injuries occurred to pedestrians upon public streets and sidewalks. We need scarcely pause to say that there is a difference between the actual degree of care reciprocally enjoined by law upon a city as to its sidewalks and pedestrians thereon, as compared to that required of a master and his servants while the latter are at work upIn the former on the master's premises. case there is an implied assurance that the sidewalks are clear and unincumbered and

It is true that plaintiff denies absolutely that he ever saw the scrapers or either of them until he was hurt. But does it materially aid his case that in broad daylight reasonably safe and free from dangerous obin an open and otherwise clear space he fail- structions, and reasonably safe for the use ed to observe a fixed and permanent appli- maintained; while, on the other hand, obof pedestrians, for which use alone they are ance, which was in plain view and was prac-viously no business could ordinarily be cartically as big in bulk and presented to the vision an object as large as one of the vol

umes of the Revised Statutes? We think not. Negligence, and likewise contributory negligence, may, and oftentimes does, consist as well in failing to know as in failing to do. for, says Labatt:

"The juridical theory of imputed knowledge, which is applied in actions by a servant against his employer, is simply this: That he is or is not chargeable with a comprehension of the conditions which caused his injury and of the risks created by those conditions, according as it may reasonably be inferred that those conditions or those risks would or would not have 169 S.W.-3

ried on, for neither machinery, machines, ma

terials, and appliances could be installed or used upon the master's premises, if an assurance of absolute freedom from obstructions the servant by the master. Such cases are and smoothness of way were warranted to not so in point here as to be decisive, however much in point upon a different state of facts, and however similarly we may loosely define generally the degrees of care respectively enjoined.

The case of Strobel v. Mfg. Co., 148 Mo. App. 22, 127 S. W. 421, cited by appellant,

statute of uses (Rev. St. 1909, § 2867) in the person or persons entitled to the equitable es

tate under the will.

[Ed. Note.-For other cases, see Conversion, Cent. Dig. §§ 66-72; Dec. Dig. § 22;* Trusts, Cent. Dig. $ 175, 1752; Dec. Dig. § 131.*] 5. TRUSTS (§ 191*) — CREATION — PUBPOSE — TERMINATION.

while superficially seeming to be controlling | remaining in the trustees became vested by the as to the facts, is yet not so. For the reason that in the Strobel Case, supra, the obstruction was abnormal or unusual, was in a dark passageway used by the employés as a means of exit, and was composed of material loosely and carelessly, but temporarily, piled therein. It was an obstruction which lacked the feature of permanence; it was therefore abnormal-i. e., "not conforming to system" (Webster's Dictionary)—and rendered the passageway dangerous beyond the ordinary at the time of the injury to Strobel, and an injury occurring therefrom was therefore actionable.

It results from what has been said that the judgment should be affirmed.

Let this be done.

WALKER, P. J., and BROWN, J., concur.

DE LASHMUTT et al. v. TEETOR et al.

(No. 15700.)

Where testator devised his real property to certain of his executors as trustees for the sole and only purpose of selling the land and paying over the proceeds to the executors for distribution, the power of sale vesting in the trustees could not survive a final distribution, settlement, and discharge of the executors, when the title vested in the persons holding the beneficial estate, so that a substituted trustee subsequently appointed had no power to exercise the

power of sale.

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[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 243; Dec. Dig. § 191.*] 6. TRUSTS (§ 189*) TRUSTEES POWERS RIGHTS OF REMAINDERMEN-LIFE ESTATE. Where a trustee held title for a life tenant only, and not for the remaindermen, the trustee could not bind the remaindermen or their title in any way that the life tenant could not have bound them by her acts had no trustee intervened, and hence could not dispose of the re

(Supreme Court of Missouri, Division No. 1. mainder by estoppel or by ratification of a void

June 2, 1914. Rehearing Denied

July 14, 1914.)

1. PROPERTY (§ 6*)-TRANSFERS - VALIDITY WHAT LAW GOVERNS.

Real estate transfers, whether by act of the parties or by operation of law, depend for their validity and effect on the laws of the jurisdiction in which the property is situated. [Ed. Note. For other cases, see Property, Cent. Dig. § 3; Dec. Dig. § 6.*] 2. TRUSTS (§ 189*)-TRUSTEES-FOREIGN AP. POINTMENT CONVEYANCE OF DOMESTIC

REAL PROPERTY-AUTHORITY.

A substituted trustee, appointed by a Maryland court exercising equity jurisdiction in place of a surviving testamentary trustee authorized by will to sell testator's real property, had no power, by virtue of such appointment or will, to convey real property belonging to testator located in Missouri.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 240, 241, 244; Dec. Dig. § 189.*] 3. CONVERSION (§ 22*)-SALE OF REAL PROPERTY-RECONVERSION.

While a testator by the provisions of his will may convert real property into personalty whenever his plan of distribution requires it, which conversion takes place at the moment of testator's death, it is nevertheless subject to be reconverted into its original character, and will be reconverted by the election of the ultimate and absolute owner under the will, being at the time sui juris, to take the land in its original condition before sale.

[Ed. Note. For other cases, see Conversion, Cent. Dig. §§ 66-72; Dec. Dig. § 22.*] 4. CONVERSION (§ 22*)-TRUSTS (§ 131*)—PowER OF SALE.

Where a trust consisted of a naked power in the trustees to sell land in controversy when and as they deemed best and pay the proceeds to testator's executors for distribution, one of them being required to hold an undivided onesixth for the benefit of complainants' mother for life, remainder to her children, the trustees were invested with the legal title for the purpose of sale only, having no right to possession or management of the property, and, they having failed to exercise the power, the land was reconverted into realty, and the legal estate only

deed.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 240, 241, 244; Dec. Dig. § 189.*] 7. ESTOPPEL (8 52*)-"EQUITABLE ESTOPPEL" -"ESTOPPEL IN PAIS.'

"Equitable estoppel" or "estoppel in pais" is that condition in which justice forbids that one speak the truth in his own behalf, and when a party by his conduct or language has caused another reasonably to believe in the existence of a certain state of things and, having a legal right to do so, to act on the belief he will not be permitted to set up the contrary to the prejudice of the person so acting. The act or

conduct may be the simple failure of one against whom it is invoked to speak when it is his duty to do so, but whether his conduct be the result of negligence or design, it may be corrected before the party invoking it has acted upon it to his prejudice.

[Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 121-125, 127; Dec. Dig. § 52.*

For other definitions, see Words and Phrases, vol. 3, pp. 2497-2508; vol. 8, p. 7655.] 8. TRUSTS (§ 237*) - TRUSTEES' DEED-INVALIDITY RATIFICATION-ESTOPPEL.

Where certain remaindermen, entitled to the fee of certain property discharged from a trust, under their grandfather's will, had no knowledge of an invalid sale of the land by a substituted trustee when they accepted a partial distribution, the fact that such distribution consisted in part of the proceeds of such sale did not constitute a ratification thereof, nor estop them thereafter to object to the sale.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 325, 344; Dec. Dig. § 237.*]

Appeal from Circuit Court, St. Clair County; C. A. Denton, Judge.

Suit by John S. De Lashmutt and others against G. O. Teetor and others. From a decree in favor of defendants, complainants appeal. Reversed and remanded, with direc

tions.

This suit was begun by filing the petition in the St. Clair county circuit court October 3, 1907, and summons was taken at the same

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

date. The plaintiffs are the surviving hus- | and qualified and entered upon his duties as band and three sons and one daughter of such. In 1887 John E. Sifford filed in the Cleanthe Eugenia De Lashmutt, deceased, a daughter of John Sifford, deceased, who is the common source of all title asserted by any party to the suit. The plaintiffs claim title to 19/150 of a tract of land in said county, particularly described as the W. 1⁄2 of the S. E. 4 of section 7, township 37, range 28. The defendant Teetor claims title to the whole through a conveyance dated April 7, 1893, by one Aubrey Pearre, purporting to act as trustee for Mrs. De Lashmutt, as well as administrator with the will annexed of the estate of John Sifford, to one D. L. Dade, for a consideration of $1,000. The defendants Darrow and Henry are beneficiary and trustee in a deed of trust under the Dade title. The other defendants, of whom there are 15, are descendants of John Sifford, and would represent all the other interests in the land, if the theory upon which the plaintiffs are proceeding be the true one. They, however, are seeking no relief and do not answer. The theory of the plaintiffs is that the deed of Pearre to Dade is void for want of power to convey in any of the capacities assumed by the maker.

The amended petition upon which the cause was tried was filed November 14, 1908, and is in two counts. The first count states the interest of the parties in connection with their relationship to John Sifford. That he died testate in Frederick county, Md., in 1878, seised of the land. That his will was duly admitted to probate by the orphans' court of Maryland for said county, and established as such will by the formal decree of said court. That letters testamentary issued out of said court to his son John Sifford and one John Loats, the only surviving executors named in said will, who thereupon duly qualified, and entered upon the discharge of the duties of said office. Loats soon died, and John E. Sifford became the only surviving

executor.

"That by said last will all the lands of said testator in St. Clair county, Mo., were devised to John E. Sifford and two others and the successor or successors of them, in trust, with power to sell and convey all or any portion of said lands as might be considered in the discretion of said trustees for the best interest of said testator's estate, and, further, to pay over all of the proceeds of such sales to testator's executors to be divided amongst his devisees, including plaintiffs."

circuit court for Frederick county, Md., a court of general jurisdiction, sitting in equity, his petition to be relieved from the trust with reference to the St. Clair county lands, and for the appointment of Aubrey Pearre as his successor. This proceeding was ex parte. The court relieved Sifford of the trust and appointed Pearre, who, purporting to act in both capacities of executor and trustee, executed the deed to Dade already referred to. That the will was not filed for record in St. Clair county until February 24, 1904, and no ancillary or other administration on the Sifford estate was ever taken ont in Missouri; that the only color of title held by Teetor is through the said deed to Dade, which is utterly null and void. The petition further states that under the will of John Sifford, his daughter Cleanthe E. De Lashmutt was getting a life estate in equity of an undivided one-sixth of all lands of the testator, which was devised to his daughter Josephine Sifford in trust for the said Cleanthe, with directions to permit her to use and enjoy the same, and receive the rents, issues, and income thereof during her life; that she died March 25, 1903, leaving surviving her her husband, the plaintiff Van E. De Lashmutt, to whom she was married prior to the death of her father, and the other plaintiffs, together with Frank T. De Lashmutt and Gertrude D. Jackson, her children and sole heirs. Frank T. De Lashmutt has since died, and Gertrude Jackson has refused to assert any interest in the lands in suit and is made defendant. The petition then proceeds as follows:

"Plaintiffs further state that they each (except Van E. De Lashmutt) and including Frank from the estate of John Sifford, deceased, paid to E. De Lashmutt have received some money them by and through their said mother's trustee under the will of said John Sifford; and these plaintiffs say that according to their information and belief a portion of the money so received was derived from the proceeds of the sale of the land in suit, but that these plaintiffs have no sufficient knowledge or information concerning same to state definitely what amount or proportion of the proceeds of the sale of said land have been received by them or any of them. And these plaintiffs say that, having no right to participate in the bequests and devises so made by John Sifford to Cleanthe E. De Lashmutt until after her death in 1903, they had no knowledge or information as to the manner and method in which the land in dispute had been disposed of, or whether dishav-posed of at all, and did not know and were not advised that said land had been disposed of by said Aubrey Pearre in the illegal manner hereof the facts aforesaid as to the manner and inbefore set out; and they were first advised method of the sale of the said land in suit during the year 1905, and after a portion of the money held by Cleanthe E. De Lashmutt's trustee had been received and receipted for as hereinbefore recited.

That the other trustees died without ing assumed to execute the powers vested in them by the will, and that John E. Sifford accepted said trust and entered upon the performance of his duties as such trustee. That John E. Sifford in July, 1885, resigned as executor, and refused to act further under said will in that capacity, and thereupon Aubrey Pearre (who had since the execution of the will intermarried with the testator's daughter Ann Josephine Sifford) was by the said orphans' court duly appointed administrator de bonis non cum testamento annexo,

"Plaintiffs further state that defendant G. O. Teetor, by mesne conveyances, derives his pretended title to said land from said D. L. Dade, and that said land is reasonably worth the sum of $2.800, or an increase of $1,800 over the consideration paid the said Aubrey Pearre by

said D. L. Dade for said land, and there is now an existing deed of trust on all said land in favor of Hez H. Henry, beneficiary, and F. L. Darrow, as trustee therein, for the sum of $1.600, placed on the land by the grantees of said D. L. Dade, and for this reason said Henry and said Darrow are made parties to this suit. "Plaintiffs further state that the rights and equities existing between them and the defendants herein cannot be determined or adjusted in a suit at law, and that they have no adequate remedy in a court of law, and that they hereby invoke the aid of the powers of this court of equity to adjust the rights, interests, and equities in and to said lands as between plaintiffs and defendants.

"Plaintiffs further aver that the fair and reasonable rental value is now, and has been since the pretended sale thereof by Aubrey Pearre to D. L. Dade, the sum of $1.50 per acre per year; and plaintiffs here now offer to do and perform toward defendants such equity as to the court may seem just and right under the facts which shall develop in this cause.

interest and title in and to said land as against these plaintiffs and their interest in said land."

The second count of the petition repeats or adopts the facts stated in the first count, and prays "for a decree finding and determining their interest in said lands, finding and stating an account between plaintiffs and defendants, and decreeing partition of said lands, and appointing commissioners, and decreeing plaintiffs' interest in said land free from the lien of said deed of trust, and that the same is valid only as against the interest of said Teetor herein, and for such other orders, judgment, and decrees in the premises as to the court shall seem right, just, and equitable."

The answer states, substantially as it is stated in the petition, the acceptance by John "Wherefore, plaintiffs pray the court by its E. Sifford of the trust created in the will, judgment and decree to ascertain, determine, together with his appointment and resignaand define as between plaintiffs and defendants tion as executor, and the appointment of the title to said land, and to ascertain, deter- Pearre as his successor, his application in mine, and define that plaintiffs are entitled to an undivided 19/150 interest in fee in and to the 1887 to the circuit court for Frederick counland in this suit involved as against the de- ty, Md., a court of general equity jurisdiction, fendant G. O. Teetor, and that said interest be to resign as trustee, and his petition for the divested out of said Teetor and fully vested and perfected in these plaintiffs, and, in order to pre- appointment of a successor; his refusal to vent further litigation, that this court of equity act further; the acceptance of his resignaaward to plaintiffs a writ of restitution and tion and appointment of Aubrey Pearre his possession for their interest in said land as ascertained by this court; and plaintiffs pray for successor as trustee; acceptance by Pearre such other, further, or different orders, judg- of the appointment; and that the latter conment, and decrees as to the court shall seem tinued to act as such trustee until the St. just, right, and equitable in the premises as be- Clair county lands were all sold, and turned tween them and defendant Teetor; and in this connection, and in order that the court may over the proceeds to himself as administrator do complete, full, and ample justice between the de bonis non of the estate. The answer then parties litigant, plaintiff asks that the court ascertain the amounts received, if any, by plain-proceeds as follows: tiffs out of the purchase money paid by such Dade for said lands, and the amount, if any, that should now be chargeable against plaintiffs and in favor of defendant Teetor, by reason of such sums and taxes paid by said Teetor or his grantees, and to charge said Teetor and his grantees with fair and reasonable rent as shall be just and right, and on stating such account to make such orders and decrees touching the settlement of same as shall be just and right. And plaintiffs say that in the event that the court shall deem it inequitable and unjust to defendant Teetor to deprive him of any portion of said land, but that said Teetor should be permitted to retain all of said lands and account to plaintiffs for their interest and share therein, then these plaintiffs are willing to release and surrender to defendant Teetor all of their right, title, and interest in said lands upon defendant fully accounting to them for the fair and reasonable value of said land increased or diminished by the accounting between them as found by the court, and plaintiffs are willing to receive such sum of money as to the court shall seem just and right under all of the facts in this cause.

"And as against defendants F. L. Darrow and Hez G. Henry, plaintiffs say that they are entitled to a decree, finding, and determining that said deed of trust is not a lien upon or against plaintiff's' interest in said land, either in kind or in any sum adjudicated due plaintiffs, and that as against them and their interest in said land, said deed of trust and the debt evidenced thereby be ordered and decreed canceled and for naught held; and plaintiff's say that the value of said lands is so greatly in excess of the amount of said debt that the beneficiary under said deed of trust will not be endangered in the collection of his said debt, and that said defendants be divested of all and any apparent

"Defendant further states that the said Aubrey Pearre, as said administrator of the will annexed of the estate of said John Sifford, received from said trustee the proceeds of the sale of said real estate, and in accordance with the provisions of said John Sifford's will distributed the same among and to the beneficiaries under said will, including the plaintiffs to this action, and that said beneficiaries, including plaintiffs, with full knowledge of all the foregoing facts as above set forth, received and receipted for the same, and that by reason of the premises and said conduct of said beneficiaries, as well as under said conveyance, this defendant is now the owner of said real estate, and plaintiffs are estopped thereby to assert title to said real estate.

"(2) And further answering in this cause, defendant adopts without repeating the several allegations in the first count or paragraph of this answer, and avers that there is a defect of parties to this cause in this: (a) That the lands in controversy were devised in trust to trustees named in the will of John Sifford, deceased, and plaintiffs aver that successor in trust has never been appointed, and in that event the appointment of Aubrey Pearre is held to be void, then the original trustees named in the will, and in the event of their death their heirs are necessary parties to this action; (b) that the trustee for Cleanthe E. De Lashmutt during her lifetime and upon her death for the children of said Cleanthe is not alleged to have ever conveyed to said children, and for that reason is a necessary party to this action.

(3) And, further answering in this cause, defendant adopts without repeating the several allegations in the first count or paragraph of this answer, and avers that plaintiffs' alleged cause of action did not accrue within 10 years next before the filing of the original petitior

in his cause, and is barred under the statutes members of her family except her oldest of limitation in this state."

A copy of the will of John Sifford with the proof taken in the orphans' court for Frederick county, Md., and its order establishing the same and admitting it to probate, is filed with the answer. The devise of John Sifford and others as trustees is as follows:

"I give and devise to my son John E. Sifford and my sons-in-law John Loats and John I. Boyd, of the state of Maryland, all my lands, tenements and real estate situate in St. Clair county, Missouri, to them, their heirs and assigns upon the following trust:

child, Mrs. Jackson, who remained in Baltimore, and John S., who went to Ohio before 1888, and resided at different places in that state, had settled upon leaving Pennsylvania, and resided ever since. At the time the family moved to Indiana, the youngest child, Mrs. Mills, was about three years old, and the oldest, Mrs. Jackson, about 13. The plaintiff John S. was then about 9 years old, and Oscar 6 years old. The estate of John Sifford had been fully administered and distributed, and the final settlement of Pearre was approved and passed June 8, 1897. John E. Sifford died in 1904.

"Nevertheless upon trusts that they, or the survivor, or survivors of them, shall sell said lands and real estate in whole or in parts, at public or private sale, and upon such terms, While Mr. Pearre testified that after his and at such times as they or the survivor, or appointment as trustee by the Frederick cirthe survivors of them, shall deem most advan-cuit court in Maryland, and in 1888 or 1889 tageous to my estate, and upon the further trust and with full power and authority in he made "one or two" visits to St. Clair counthem, or the survivors or survivor of them to ty, Mo., and stopped off at the De Lashmutt convey said lands when sold to the purchasers home in Shelburn, Ind., and discussed with or purchaser by a good and sufficient deed or the whole family his sales and proposed sales deeds, and upon the further trust to pay over the proceeds of such sales to the executors of land in St. Clair county, the De Lashmutts hereinafter named and appointed by this, my all say that during the visit he did not talk will, or to the survivors or survivor of them, about any sales he had made or was going to be my said executors, the survivors or survivor of them, distributed according to the pro- to make, but did say that he was going to visions of this, my will, among the legatees Missouri to recover some lands that had therein mentioned." been sold or thrown away by John E. Sif

The will also contains the following be- ford, administrator, and spoke about bringing quest:

"I give and bequeath to Ann Josephine Sifford, one other seventh part of my estate, in trust to invest the same, or such part as she may in her discretion think fit, in real estate within or without the state of Maryland, and to permit my daughter Cleanthe De Lashmutt to occupy the said real estate and to take and receive to her own, sole, separate and exclusive use during her life, the issues, rents and profits thereof, and upon the further trust in case my said daughter shall not occupy my said real estate, either to sell the same, or to rent out the same, and if sold, to reinvest the same from time to time in other real estate and to pay over the rents, issues and profits thereof, to my said daughter Cleanthe for and during her life, and for her sole, separate and exclusive use and benefit. And upon the further trust to invest any portion of this bequest not invested in real estate in such securities, public or private, as she may deem best, vesting in said trustee full discretion as to said investments, with power to call in said investments and from time to time reinvest the same, and upon the further trust to pay my said daughter Cleanthe for and during her natural life the income from such investments for her own sole, separate and exclusive use free from the marital rights of her present or any future husband. And from and after the death of my said daughter Cleanthe, in trust, to convey to her children now born or hereafter to be born, the real estate held under the provisions of this clause of my will and to transfer and hand over to such children the investments held under this clause of my will."

His son, John E. Sifford, his daughter, Mrs. Loats, and his sons-in-law John Loates and John J. Boyd were named as executors. By a codicil the share so disposed of became onesixth instead of one-seventh.

Issue was taken by reply to the new matter in the answer.

Mrs. Cleanthe Eugenia De Lashmutt died March 25, 1903, at Shelburn, Sullivan county, Ind., where she, with her husband and all the

suits for it. They also say, in substance, that the first information they had that any of the lands had been sold was about three months after their mother's death when they received a quitclaim deed for their signature, covering some of these lands, which were said to have been sold to one E. S. Knowles. This was returned without signing.

On August 7, 1903, Mr. Pearre wrote John S. De Lashmutt the following letter about the estate left in Mrs. Pearre's hands at the death of Mrs. De Lashmutt:

"8/7/3.

Your sisters have

"J. S. De Lashmutt, 811 S. Sandusky Ave., Bucyrus, O.-Dear Nephew: Yours of July 30th to hand. Your mother's estate consists of $5,000 in bonds and the property in Shelburn, Ind. This property stands in the name of Aunt Nannie J. Pearre. Out of the property $500, is to be returned to the Loats Orphan Asy $500 each in it. My understanding is that the lum, Frederick City, Md. Shelburn property belongs to your sister, after the Loats asylum get its $500. If that is the. case, the only other property is the 5 bonds of $1,000 each to divide between the 5 heirs, or I will send you the one bond to each heir. bond, or sell it, and send you a O. K. with statement of sale. You can send me a receipt in full for your interest in your mother's estate, or account just as you may view the status of the property in Shelburn. Make the receipt to Anna J. Pearre, née Sifford, trustee.

"Your aunt is absent until September. Also your sister, Mrs. Jackson, or I would confer with them. A. Pearre."

"Very truly yours,

On April 26, 1904, he wrote the following: "4/26/04. "Mr. J. S. De Lashmutt, 811 S. Sandusky Referring Ave., Bucyrus, O.-Dear Nephew: to your favor of the 25th., would say the bond you would get is one issued by the city of Montgomery, Ala. It is a 5% bond, has only two or

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