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know that 157 had started. A. Yes, sir; they whistled off, and was supposed to start. I heard them working steam. Q. After you said, 'What?' and the fireman said that Moore was signaling to back up and you looked and saw Moore signaling to back up and Tighe throwing the switch, did you understand that you were to cross that switch before 157 could get to it? A. I understood that's what they meant for me to do. Q. Did that require you to act promptly and quickly? A. Well, yes, it did, to a certain extent. Q. How wide open did you open the throttle? A. Well, I could not say about that. Q. Did you try to make a quick run for that switch? A. Ordinarily. If it hadn't looked safe I wouldn't have started. Q. How long after Ostertag got off the engine before you started back? A. Well, it didn't seem to me more than a minute. It might have been a little longer, and it might have been not any more. Q. How far did you run altogether on that last movement? A. Well, in my judgment I didn't run over three engine lengths from the time I started till I stopped. Q. What is about the length of the engine? A. Of that engine? I suppose it was about probably maybe between 40 and 50 feet, the engine and tank. When we speak about the engine we mean the tank and all. Q. That's what I mean. Where was Ostertag after you stopped? A. Ostertag was at the front end of the engine."

He testified that the fireman pulled the bell when he started to back up.

E. C. Allison, fireman of 1241 testified that he did not ring the bell before they started, but just as they started.

All witnesses, except the above two and the plaintiff, testified that they could not say whether the bell was rung.

Plaintiff testified:

"Well, we had been down to the freight house and set a freezer on 51⁄2, and we came back up No. 5, backing up, understand, working that engine 1241; when they were getting up towards the head end of this 57, she made up on 4 alongside of us, and while we was heading up towards the head end of this train, she had whistled off; we had run up on the frog and stopped. I was up in the cab all this time, got in the cab when we were leaving the freight house platform, cut the car off and put a block under it so it would not run off, climbed up in the cab, and rode up, standing up there with the engineer and fireman. Well, this train had whistled off when we ran up on this frog, and somebody told us to get in the clear, I couldn't say who it was, but I heard somebody say 'Get in the clear;' the engine ran in the clear, ran down probably opposite the road engine, at that time she was starting to move, you know, so just as he stopped in the clear I got down on the left side of the gangway, got out of the cab, you know, the back of the cab, got down on the left side, I walked back between this moving train, and our engine was standing still here, on the left side of me, this train was pulling out along on the north side, on my right, and I was heading west; just after I was walking along here, the side of our tank, I was watching this train, too, you know; she was under motion; this engine of ours was standing still, I got to the back of the tank of our engine, I stepped across with this foot over the north rail, cut diagonally across, going up to the shanty, customary to go up there, you know, when the engine is idle, and the foreman was up there yes, he was up there-so just as I stepped bebind the tank this way, about to cross this way, the engine hit me in the back, knocked me down, and that is all I know. Q. Was engine 1241 stationary at the time you passed behind it, when you first stepped in behind it on the

track? A. Yes, sir; that engine was standing still; after I stepped over the rails to cross it, she was still standing, but she moved immediately after I started across. Q. How far would you judge you had got away from the engine, from where the engine was, when it stopped still, and you turned around the corner of the tank when it hit you. A. How far was I from the back of the tank? Q. Yes, sir; how far do you say it had moved? A. Well, maybe it might have been from here to that gentleman, the second man here. I don't know; I just stepped over and across, out, you know. Q. Well, give your best judgment of it in feet? A. Well, I should say 5-not more than 10 feet, anyhow. Q. You may state whether or not any whistle was blown or bell rung? A. No, sir; God knows. Q. What injuries did you receive there at the time, Mr. Ostertag? A. Well, I lost this limb, 5%1⁄2 inches from the hip joint, bruised this eye here, this left eye; this right hip was bruised clear down to the ankle and back; it is skinned; the watch here ran into my side; there is the dent in it yet. I carried that watch right here; it ran this watch stem into my side, and part of the chain I had on it." You feel that foot, you mean the foot that is gone? A. Yes, sir, feel the natural leg, the toes down here, it hurts sometimes, feels like a great wheel standing on the toes, or something. Q. Now, how does the limb bother you now, in what way? A. Well, from walking around, you know, it gets sore, and I can't stoop over; you see, I can't bend; I have to stand stiff like; if I want to stoop over, you know, it sets right up in the crutch, you know, it is hard on me in the summer time, especially hot weather. Q. What difference does the summertime make? A. The heat, you know, and perspiration, sweat a good deal, kind of chafes it, and it takes a long time, you know, to get a stump healed up, to get it good and solid and get used to it." Q. Then you may answer directly the question whether or not that limb has ever been free from pain since this accident? A. No, sir."

Q.

He testified that the engines were operated on signals; that he was familiar with the rules of the company and with the signals; that the employés were supposed to look out for the signals; that the switch engines have no schedule time; and that there is danger from their moving back and forth. He also testified that he did not see the signal given to 1241 to back up; that he was not looking for it, but was looking where he was going. C. A. Moore, a witness for defendant, testified as follows:

"Q. Now, what conversation, if any, did you have with Mr. Shull up there in regard to the movements of your train and movements of 157? A. Why, I asked him if we had time to go out ahead of 157, or something to that effect, or I remarked to him that we had time to go ahead of them, and he said yes, we had. Q. Had you seen at that time, Mr. Detwiler; where was he at that time, do you remember; did you see him? A. He came out of the office as Mr. Shull and I were talking, with his bills in his hand, and when I got through telling Mr. Shull about this, about the time I made the remark I says 'Is 157 ready to go? He says, Yes, just about.' 'Well,' I says, 'We can get out ahead of them.' He says, 'Yes, come ahead,' so I just turned and gave my man a sign to back up. Q. Now, just state to the jury whether you could tell from where you were at that time; you could tell, now, where Mr. Ostertag was at that time, if you know? A. No, I could not tell just exactly where he was at; he was near the tender of the engine. Q. And was the engine standing still at that time? A.

When I gave my back-up signal? Q. Yes. A. | train." The defendant's witness Moore testiYes, sir."

Two days after the injury, Mr. Taylor, representing the defendant, called to see plaintiff at the hospital, and plaintiff signed a statement at Mr. Taylor's request, stating, among other things, that plaintiff could not say whether the bell was ringing when he was struck, as there was so much noise. Plaintiff was at that time under the influence more or less of an opiate. That statement was read in evidence by the defendant. The plaintiff read in evidence, over the objection of defendant, a rule of defendant providing for two short whistles in answer to any signal not otherwise provided for. During plaintiff's examination in chief the following occurred:

fied that it was not customary for switch engines to answer signals with the whistle. Among the instructions the court gave the jury the following for the plaintiff:

"(A) If from the evidence you find that on or about the 7th day of June, 1910, while plaintiff was in defendant's employ as a member of a switching crew in charge of and operating a switch engine of the defendant in the course of its business, he was, without negligence upon his part, struck and injured by said switch engine, and that he was so struck by reason of the negligence, if any, of any of defendant's servants in charge of such, engine or in control of its movements in causing such engine to move without warning, your verdict should be for the backward against the plaintiff suddenly and plaintiff. By negligence' as used above is meant the want of such care as persons of ordinary prudence should be expected to use under the same or similar circumstances.'

And the following for the defendant: "(1) The court instructs the jury that it was not negligence of itself for defendant to move engine 1241 over track 5, passing the switch connecting track 4 and track 5, ahead of train 157, at the time and place described in evidence, and you cannot find for plaintiff on that issue.

"(2) The court instructs the jury that it was not negligence of itself for Foreman Moore to give a signal to engine 1241 to come ahead of train 157 at the time and place mentioned in evidence, and you cannot find for plaintiff on

that issue.

"(3) The court instructs the jury that there is no evidence in this case showing that the agents and servants of defendant saw plaintiff in a situation of peril after he stepped onto the track in front of switch engine 1241, in time to have stopped said engine after it was started and avoided injuring the plaintiff, and you will therefore find for defendant on that issue."

And refused to give other instructions ask

"(4) The court instructs you that under the law of Kansas, read in evidence, it was not negligence for defendant's employés to move_said engine over track 5, ahead of train 157 on track 4, as detailed by the evidence, and you cannot find defendant guilty of negligence in so running engine 1241 at the time and place described in evidence.

"Q. You may state whether there was any custom in that yard at that time and previous to that time-I mean the time of your injuryas to any signal other than the bell from the engineer when he gets a signal to start to work again after being laid off or tied up for any time, is there or is there not or was there or was there not, such a custom? A. Yes, sir. (Defendant's counsel objected as incompetent, irrelevant, and immaterial, because not pleaded, and asking for the conclusion of the witness, and asking him to pass upon what is the custom, assuming facts not proven. The court overruled the objection, to which ruling of the court defendant then and there duly excepted.) Q. What was the custom, Mr. Ostertag? (Defendant's counsel objected to the question for the reason that the witness is not shown competent, not shown there was any custom, and not within the issues of the pleadings. The court overruled the objection, to which ruling of the court defendant then and there duly excepted.) What was the custom? A. Well, if the engine was standing there, and we all had been up to the shanty, say, for instance, we come down with that engine, and the foreman or I, or any-ed by defendant, among which are the folbody would give them a signal, he did acknowl-lowing: edge the signal by giving two short blasts of the whistle, 'Choo, choo,' answer he got your signal, lots of times. Q. Was it customary all the time? (Defendant moved to strike out the preceding answer for the same reasons last above stated; it being a mere conclusion of the witness. The court overruled the motion to strike out, to which ruling of the court defendant then and there duly excepted.) A. And other days when they all go to work he will acknowledge the foreman's signal and mine, if I give any, two short blasts of the whistle. (Defendant's counsel moved to strike all that out for the reasons last above stated. The court overruled the motion, to which ruling of the court defendant then and there duly excepted.)" The plaintiff pleaded and proved a statute of Kansas providing that a servant may recover against the master for the negligence of a fellow servant upon the giving of a notice not necessary here to be stated. Defendant read in evidence a statute of Kansas adopting the common law as modified by the Constitution, statutes, decisions of the courts, etc., also the case of Dyerson v. Railroad, as reported in 74 Kan. page 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207. Defendant read in evidence a rule of the company providing that "all employés are further warned that they must not rely on others to notify them of the approach of a

"(5) The court instructs you that the rule of defendant, read in evidence, that 'all employés are further warned that they must not rely on others to notify them of the approach of a train' did not require the engineer of 1241, to give plaintiff any warning just before starting said engine, in the absence of knowledge of said engineer that plaintiff was in the act of going upon said track at said time."

Plaintiff's counsel in his opening statement to the jury, said that plaintiff was with Dewey at Manila Bay, to which counsel for defendant objected, when the following occurred:

"Mr. Guthrie: I mean he was a sailor in the United States Navy.

"Mr. Watson: I object to that as incompetent, irrelevant, and immaterial.

"The Court: It don't make any difference what his employment has been at other times. It might be a matter of argument when you come to argue the case.

"Mr. Guthrie: I will explain, your honor, because I want to keep within the line; the theory upon which I am making these sugges

tions as to his early experience is that his past
experience has not been such as to qualify him
for any form of earning capacity outside of the
railroad business and the duties of a sailor.
"Mr. Watson: I object to that because no
such allegation in the petition, no such issue
framed here; it is not competent for any pur-
pose under the allegations of the petition here.
"Mr. Guthrie: It may be a question of good
faith on the part of counsel. [Reading from pe-
tition] 'was impaired in his earning capacity to
the entire extent thereof, and his enjoyment of
life and the exercise of his physical faculties
was permanently impaired.'

"The Court: That he was with Dewey at Manila that would not

"Mr. Guthrie: I apologize to the jury on that particular form of expression.

"Mr. Watson: We move that the jury be instructed to disregard that statement.

"Mr. Guthrie: Gentlemen, I apologize to you -that his services in the navy included that particular item of service.

"Mr. Watson: I object to it, and move that the jury be discharged.

"The Court: The jury are instructed to disregard those statements which are outside of the evidence."

During the argument of Mr. Guthrie for plaintiff to the jury the following occurred:

"I want to confess to you frankly in this case that this is a hard case for me to try. Years ago in the little town from which we came, Louis Ostertag and myself went in the same swimming hole-he is my boyhood friendand as I think of him there, mangled, torn, bruised, his clothing and his flesh strewn along that rail, his foot hanging to his limb by this battered mass of flesh, as I think, two days after that, of this claim agent for this railroad company, that man just coming out of an operation, in the condition that you understand was inevitable in this case, that ghoul following around that hospital endeavoring to get that man's name to a statement which should damn him in the future, when I think of these practices, gentlemen, it is hard

"Mr. Watson: I object to any such language as that as incompetent and improper.

"Judge Douglass: We except to that language, and ask that the jury be instructed to disregard it, and the jury be discharged.

"The Court: I did not hear the statement: "Mr. Guthrie: I did not even finish the statement.'

Mr. Guthrie then proceeded to comment on the fact that the court had modified some of defendant's instructions before giving them. Defendant objected, and the court sustained the objection. Mr. Guthrie then proceeded as follows:

"Gentlemen, I say these counsel who are so easily hurt and shocked in their feelings are here like the woman of bad repute who hates to have any suggestion made about virtue in her presence, because it hurts, and because they were trying to argue this case to you

*

*

"Mr. Guthrie: Have I no right to argue that counsel are seeking to mislead the jury? "The Court: That is not the effect of the way you are arguing. "Mr. Guthrie: I say to you that in my honest judgment, and I hope it will meet your conviction, gentlemen, the amount claimed here will not compensate him for what this has meant to him. Put yourself in his place. Consider what it would mean to you, and others similarly situated, and answer that question according to the dictates of your honest judgment.

"Mr. Watson: We object to that.

"Judge Douglass: The courts have said a number of times it is a very improper appeal to the jury to put themselves in the place of the plaintiff. We object to it, and now move that the jury be discharged.

""The Court: Yes, sir.

"Mr. Guthrie: I said 'similarly situated.' "The Court: It is objectionable; I would avoid that."

R. W. Blair, of Topeka, Kan., and Watson, Watson & Alford, of Kansas City, for appellant. Guthrie, Gamble & Street, of Kansas City, for respondent.

ROY, C. (after stating the facts as above). [1] I. Appellant has chosen to present this case on the theory that the plaintiff stepped on the track in front of a moving engine without looking or listening for its approach. It put in evidence the case of Dyerson v. Railroad, 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207, in support of that theory. It is enough to say that this case does not involve that proposition. It belongs to that class of cases which involves the question as to whether an engine in the switchyards was suddenly, without warning, put in motion under such circumstances as to cause an injury to one entitled to such warning. The fact that the engine may have started to move just before plaintiff stepped into the place of danger, under the circumstances of this case, does not transfer this case from the latter class to the former.

Here, the plaintiff walked along by the side of an engine standing still on the track. He was close enough to touch it with his left hand. At his right was the engine of the freight which had "whistled off," had been given the switch, and, according to the evidence for the plaintiff, was starting on its way; the engines on both tracks, according to some of the witnesses, being only a car's length from the clearing point. What is more, engine 1241 had just cleared the track for the freight, and plaintiff, as he left the "Judge Douglass: I object to the remark of engine, had said, "Yes, give them a good counsel for the simple reason that he is im- clear." The circumstances so nearly precludputing improper motives to counsel in the case, ed the thought of starting 1241 over the and there is no testimony before the court or jury to that effect; we except to it, and we switch in front of the freight that the engiask now that the jury be discharged from fur- neer of 1241, on being told of the signal to ther consideration of this case. The evidence is "back up" said, "What?" that the engineer made a quick start. The sitout-uation demanded that he should start quickly, or not at all. The evidence was such as to make it clearly a question for the jury as to whether the plaintiff was guilty of the want of ordinary care in attempting to cross track

"Mr. Guthrie: I do impute improper motives"The Court: You better stay within the record and not wander around these matters

side.

"Mr. Guthrie: If your honor please"The Court: The attorneys conducted themselves along legitimate lines in the trial of this case.

5 as he did, and whether the engine was started without warning in such a way and under such circumstances as to constitute negligence on the part of the defendant. This case falls clearly within the Tetwiler Case, 242 Mo. 178, 145 S. W. 780, as to the above questions.

II. This suit is not brought under the humanitarian doctrine, and does not involve it in any way. We shall not discuss the cases cited on that question.

[2] III. Appellant says that it was error to admit in evidence defendant's rule requiring two short whistles in answer to any signal not otherwise provided for. The evidence for defendant was that switch engines in the yards were not required to answer signals with the whistle. The instructions did not submit to the jury any fact involving that rule. If the admission of such rule in evidence was error it was harmless.

[3] IV. Plaintiff's counsel were not guilty of misconduct in saying what he did as to the statement signed by the plaintiff at the request of defendant's claim agent, and read in evidence by the defendant. That statement read in evidence was supposed to be harmful to the plaintiff's case. The circumstances under which it was procured were such that we shall not say that counsel exceeded the bounds of propriety in discussing that subject.

[4] As to the other objections made to the conduct of plaintiff's counsel, it is sufficient to say that the defendant did not at the time ask that the counsel for plaintiff be reproved by the court. The court sustained the objections, and in one case instructed the jury not to consider counsel's statement. In two instances defendant, by reason of such misconduct, asked that the jury be discharged. There is nowhere, so far as we know, any authority for discharging the jury for such cause, though we do not now decide that in no case would such action be proper.

[5] V. Though we have held that the misconduct of plaintiff's counsel in his argument to the jury is not reversible error under the circumstances of this case, yet we take such conduct into consideration in deciding the question of excessive damages, in accordance with the rule in Applegate v. Railroad, 252 Mo. loc. cit. 202, 158 S. W. 376, and Kinney v. Railroad, 169 S. W. 23, not yet officially reported.

[6] If the plaintiff will, within 10 days, enter a remittitur of $5,000 as of the date of the judgment in the trial court, the judgment will be affirmed for $10,000, with interest at 6 per cent. from the date of the judgment in the trial court; otherwise the judgment will be reversed and the cause remanded.

WILLIAMS, C., concurs.

PER CURIAM. The foregoing opinion is adopted as the opinion of the court. All the Judges concur.

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ly creates an estate by the entirety, so that on A deed to a husband and wife presumptivethe death of one the whole estate vests in the survivor.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 71-86, 88, 89; Dec. Dig. § 14.*]

2. TRUSTS (§ 81*)-RESULTING TRUST-HUS

BAND AND WIFE.

While a court of equity, where a husband takes his wife's money, and, along with some of his own, pays for land taking title in the name her heirs, decree a resulting trust pursuant to of the two, will, at the instance of the wife or which she is the absolute owner of such proportionate part of the land as was paid for with her money, the aid of equity cannot be invoked and thereby deprive the wife or her heirs of by the husband's heirs to secure such decree, their right to the whole estate at his death.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 115-118; Dec. Dig. § 81.*] 3. TRUSTS ($ 88*)-RESULTING TRUST-EVIDENCE TO ESTABLISH.

though the deed was to husband and wife, a Extrinsic proof is admissible to show that, resulting trust was created in the wife's favor by the purchase of the property by the husband in part with her money.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 130-133; Dec. Dig. § 88.*]

In Banc. Appeal from Circuit Court, Pike
County; William T. Ragland, Judge.
Suit by Elzena Moss and others against
Margaret V. Ardrey and others. From a
judgment for plaintiffs, defendants appeal.
Reversed and remanded.

Schofield & Plowman, of Hannibal, for appellants. M. L. Farres, of Hannibal, for respondents.

GRAVES, J. The petition in this case is in two counts. By the first count the plaintiff Elzena Moss seeks to set aside for fraud and undue influence a certain deed executed by her and others to her father, conveying the land in dispute. This count, in addition, asks that the court ascertain and determine the title of the several parties in and to the lands. The second count is an action for the partition of the land. The case is fully stated by the trial court in a finding of facts incorporated with its judgment. Many of these findings of facts stand admitted in the briefs, but where there is dispute such dispute can be considered in the course of the opinion. The findings nisi will serve well for a statement of the case. Such findings are as follows:

"The court finds under count No. 1: That Noah Turley died intestate about the year 1859, leaving surviving him his widow, Christiana Turley, and their only child, Charity C. Turley, and seised in fee of the following described That at the death of said Noah Turley_all of lands, to wit [described lands in controversy). said lands descended to said Charity C. Turley,

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

subject to the dower right therein of her mother, the said widow of said Noah Turley, deceased. That thereafter there was duly assigned and set out to said widow, Christiana Turley, as and for her dower in said lands, 63 acres thereof. That after the death of Noah Turley his said widow married one Benjamine Milam. That in the year 1870 or 1871 said Charity C. Turley married one William G. Ardrey. That thereafter, in the year 1873, the said Christiana Milam and Benjamine R. Milam, her husband, by their general warranty deed of date March 20, 1973, and duly acknowledged by the grantors in said deed and duly filed for record June 2, 1891, in the office of the recorder of deeds in and for Pike county, Mo., granted and conveyed to the said Charity C. Ardrey all of said 63-acre tract. That by reason of such conveyance the said dower interest in said 63acre tract and the said remainder interest therein of the said Charity C. Ardrey merged, and she became and was the owner in fee of both the said 63-acre tract and the 73-acre tract, constituting together said 136-acre tract. That there were born to said William G. Ardrey and Charity C. Ardrey, his wife, four children, James T. Ardrey, Evelena Ardrey, Elzena Ardrey, and William S. Ardrey. That Sophia Ardrey, a defendant herein, is the wife of said James T. Ardrey. That Nora Ardrey, a defendant here, is the wife of William S. Ardrey. That said Evelena Ardrey married George Burch, a defendant herein. That said Elzena Ardrey married one Charles Liter; from whom, on the day of May, 1907, she was lawfully divorced. That thereafter, and prior to the death of her father, the said Elzena Liter married, and is now the wife of, Joseph Moss, her coplaintiff herein. That in the year 1884 said Charity C. Ardrey died intestate, leaving surviving her her widower, the said William G. Ardrey, and the said four children born to the said William G. Ardrey and his wife, Charity C., as aforesaid. That after the death of their mother the said children, by means not clearly appearing in the evidence, sought to dispossess their father of said lands, which by reason of the death of their mother had descended to said four children as tenants in common, subject to their father's curtesy estate therein. Failing in their attempt to dispossess the said William G. Ardrey, the said heirs sought efther to buy the interest of their father in said lands or sell their interest therein to him. Several propositions tending to that result were made by the respective parties; and thereafter, on the 27th day of September, 1901, by their quitclaim deed of that date, the said James T. Ardrey and his wife, Sophia, Evelena Burch and George Burch, her husband, Elzena Liter and her then husband, Charles Liter, William S. Ardrey and his said wife, Nora, remised, released, and quitclaimed to the said William G. Ardrey and his then wife, Margaret V. Ardrey, for the expressed consideration in said deed of the sum of $1,300, all of said 136-acre tract. That of said consideration the sum of $325 was in fact paid to each of said four heirs of Charity C. Ardrey, deceased. That after the death of Charity C. Ardrey, and prior to the execution of said mentioned deed, said William G. Ardrey married Margaret V. -, who, as the surviving widow of said William G., is one of the defendants herein. That on the 31st day of December, 1901, said quitclaim deed was duly acknowledged by all of the grantors therein, and was duly recorded in the office of said recorder of deeds. That at the date of the execution by them of said quitclaim deed each of the four children of William G. Ardrey was of age, married, and not living with their father, and each of them had a separate home and domestic establishment. That they sold their said interest in said lands with full knowledge of the interest their father had in the same, having previously consulted a lawyer and by him been informed as to the nature and extent of such interest.

That in the matter of the execution of said deed the said William G. Ardrey did not exercise any influence over his children, nor were their interests in said lands sacrificed, nor did they suffer any loss by reason of such conveyance. On the contrary, they received a fair and full consideration for the interest they conveyed; their father then being 56 years of age, and the value of the curtesy estate being in excess of the value of the remainder interest; and said lands were at the date of said quitclaim deed not worth over $10 per acre. The said transaction was characterized by fairness, and was without any fraud or semblance thereof on the part of the said William G. Ardrey.

"The court further finds that, of said consideration paid to said heirs for said lands, sixthirteenths thereof, to wit, the sum of $600, the separate money and means of said Margaret V. Ardrey, was by her said husband, he having the same in possession at the time, paid to said heirs as part of the purchase price, and not with the written consent of the said Margaret V. Ardrey. The fact of such payment was testified to by the defendant Margaret V. Ardrey as a witness in the case, testifying therein in behalf of plaintiffs, and was conceded by counsel for defendants in their briefs furnished the court. The fact of such payment prevented said quitclaim deed from creating an estate by the entirety in said William G. Ardrey and his wife. If, after such conveyance, Margaret V. Ardrey had died before her husband, it clearly appears that neither he nor his heirs after him could be heard to claim that he took the entire estate as surviving tenant by the entirety. If it were such estate as to one, it was as to the other. It would be an estate by the entirety as to both, or as to neither. The court finds and declares as a proposition of law that, under and by virtue of said quitclaim deed, the grantees therein took title in and to said lands as tenants in common; the said William G. Ardrey thereby becoming the owner of an undivided seven-thirteenths interest in said 136-acre tract; and his wife, Margaret V. Ardrey, thereby becoming the owner of an undivided six-thirteenths interest in said 136-acre tract, subject to the said curtesy estate therein of the said William G. Ardrey.

G.

"The court further finds: That there were born to the said William G. Ardrey and his wife, Margaret V. Ardrey, two children, defendants herein, viz., Pansy L. Ardrey and Clifton Ardrey, the latter of whom is a minor, duly served with process herein and represented herein by his duly appointed guardian ad litem herein, the said Margaret V. Ardrey; that on the day of 1901, the said William Ardrey and his wife signed, and on the day of 1901, acknowledged, a certain quitclaim deed purporting to convey to their said two children, Pansy L. and Clifton Ardrey, the above-described 136 acres. That said lastmentioned deed, after the signing and acknowledgment of the same as aforesaid, was by the grantors named therein put away and kept at their home, among their papers, and was continuously in their possession during the said William G.'s life, and thereafter remained in the possession of said Margaret V. Ardrey until January 4, 1910, when she duly filed the same for record in the office of said recorder of deeds, and with the intent thereby to pass the title to the lands in controversy to said Pansy L. and Clifton Ardrey. That there was never any delivery of said last-mentioned deed by Wil liam G. Ardrey, and there was never any delivery of the same by Margaret V. Ardrey until the filing of the same by her for record as aforesaid, and no title of the said William G. Ardrey in or to said lands passed or was conveyed by said deed to any one. That said William G. Ardrey did not reside on said lands at the time of his death, and did not have any homestead therein, and there is no homestead interest or claim involved in this action. That upon the

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