WRITS OF ERROR WERE DENIED, DISMISSED, OR GRANTED BY THE SUPREME COURT OF TEXAS IN THE FOLLOWING CASES IN THE COURT OF CIVIL APPEALS PRIOR TO APRIL 21, 1915. [Cases in which writs of error have been denied, dismissed, or granted, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.] WRITS OF ERROR DENIED FOURTH DISTRICT San Antonio Independent School Dist. v. State, 173 S. W. 525. WRITS OF ERROR DISMISSED SECOND DISTRICT Texas & P. R. Co. v. Tomlinson, 169 S. W. 217. FOURTH DISTRICT Niagara Fire Ins. Co. v. Mitchell, 164 S. W. 919. SIXTH DISTRICT Missouri, K. & T. R. Co. of Texas v. Dellmon, 171 S. W. 799. See End of Index for Tables of Southwestern Cases in State Reports THE SOUTHWESTERN REPORTER VOLUME 174 "Item 4. I will and bequeath to my son John WRIGHT et al. v. CURRY, TUNIS & NOR- Thomas Wright and his bodily heirs about for WOOD. (Court of Appeals of Kentucky. March 19, 1915.) WILLS 607-CONSTRUCTION-ESTATES CREATED ESTATE TAIL-"BODILY HEIRS." In the absence of any provision in the will manifesting a contrary intent, a devise to one and his bodily heirs creates an estate tail, which by Ky. St. § 2343, is converted into a fee simple, since the words "bodily heirs" are ordinarily words of limitation. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1368-1371; Dec. Dig. 607. For other definitions, see Words and Phrases, First and Second Series, Bodily Heirs.] ty-five acres of land known as the Jeptha Bell land adjoining the dower. I also will and bequeath to my son John Thomas Wright and his bodily heirs between twenty-five and thirty acres bounded as follows: Beginning at the small red oak on the hill near the barn west of the home residence running south with the original Wright and Drake line to the pike and down said pike to the line of J. M. True and Mary True, thence northward with their line to a corner of J. T. Wright to the red oak at the beginning." It will be observed that the various tracts of land given to John Thomas Wright are devised "to my son John Thomas Wright and his bodily heirs." We have held in a numAppeal from Circuit Court, Scott County.ber of cases that the words "bodily heirs," Action by Curry, Tunis & Norwood, a corporation, against J. T. Wright, to subject certain lands to the payment of a debt, in which Annie Laurie Wright and others intervened and asserted an interest in the land. From a judgment against the interveners on demurrer to their petition, they appeal. Affirmed. Ford & Ford, of Georgetown, for appellants. Bradley & Bradley and Wm. S. Kelly, all of Georgetown, for appellee. conwho The CLAY, C. This appeal involves the struction of the will of B. F. Wright, died a resident of Scott county, Ky. question arises in the following way: Curry, Tunis & Norwood, a corporation, obtained a judgment against J. T. Wright, a son of B. F. Wright. Execution was issued thereon and returned "No property found." This action was brought to subject the land of J. T. Wright to the payment of the debt. Annie Laurie Wright and others, the infant children of J. T. Wright, intervened, and asserted an interest in the land sought to be subjected. A demurrer was sustained to their petition, and the petition dismissed. From the judgment so entered this appeal is prosecuted. "heirs of the body," "heirs lawfully begotten of the body," and other similar expressions, are appropriate words of limitation, and must be construed as creating an estate tail, which, by section 2343 of the Kentucky Statutes, is converted into a fee simple, unless there be something else in the will or deed from which a reasonable inference can be drawn that the words were used in a sense different from their legal and technical meaning. Johnson v. Johnson, 2 Metc. 331; Prescott v. Prescott's Heirs, 10 B. Mon. 56; Brown v. Alden, 14 B. Mon. 141; True v. Nicholls, 2 Duv. 547; McCauley v. Buckner, 87 Ky. 191, 8 S. W. 196; Sanders v. Wade, 30 S. W. 656, 17 Ky. Law Rep. 205; Marshall v. Walker, 80 S. W. 1132, 26 Ky. Law Rep. 199; Young v. Amburgy, 87 S. W. 802, 27 Ky. Law Rep. 1079; Watkins v. Pfeiffer, 92 S. W. 562, 29 Ky. Law Rep. 97; Edwards v. Walesby, 98 S. W. 306, 30 Ky. Law Rep. 251. We have carefully examined the will in question, and find that it contains no provision or expression showing that the words "bodily heirs" were used in the sense of children, or in any sense different from their ordinary and usual meaning. In the absence of anything indicating a contrary intention the words must be give their technical meaning. It follows that the chancellor properly adjudged that J. T. Wright acquired a fee simple under his father's will, and that the latter's children have no interest in the land That part of the will of B. F. Wright affecting the land in controversy is as follows: "Item 3. I will and bequeath to my son John Thomas Wright and his bodily heirs at the death of my wife Sarah J. Wright all off Sarah J. Wright dower right except twenty-five in controversy. acres of land hereinafter described. Judgment affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes PRESTON v. PRESTON. INSURANCE 25-INSOLVENCY OF INSURER— been liable to the insured. The question for decision, therefore, is: Does the petition as amended satisfy the rule of law above announced? The petition alleges, in substance, that on September 1, 1912, the defendant, claiming The petition in an action against a fire insurance company's local agent alleged that de- to be the agent, and while he was the agent, fendant induced plaintiff to take out a fire pol- of the Franklin Fire Insurance Company, of icy and pay the premium thereon; that the Wilmington, Del., induced the plaintiff to property insured was burned, but that the in- take out a fire insurance policy upon his ressurance company failed to pay; that when the policy was issued the company had discontinued idence and his household goods, for $1,200, business, which fact was known to defendant, for which he paid a premium of $30 upon the but unknown to plaintiff; that, as defendant delivery of the policy to him; that on Noknew, the company had never been authorized to do business in the state, but defendant fraud-vember 18, 1912, his house, while it was ulently represented otherwise; that the com- covered by the policy, was totally destroyed pany was insolvent; and that plaintiff was in- by fire, with all of its contents, with the exduced by defendant's representations to take out ception of a few inconsiderable articles of the policy. An amendment to the petition stated that the property was of a certain value, personalty; that he made demand upon said that plaintiff had complied with all the condi- Franklin Fire Insurance Company for said tions of the policy, that the fire was not caused sum of $1,200, which it wholly failed to pay; by any of the agencies mentioned in the policy that at the time the policy was issued said as excusing the company from liability, and that the insolvency of the company was the sole rea- insurance company had discontinued busison for its failure to pay the policy. Held, ness, and that fact was known to the dethat the petition as amended was sufficient, fendant, but unknown to the plaintiff; that though somewhat inartificially drawn, to state a cause of action; the agent, under the circum- at the time the policy was issued said Frankstances stated, being a guarantor of payment of lin Fire Insurance Company was not auany loss incurred. thorized to transact business in the state of Kentucky, and had never at any time any authority under the laws of Kentucky to do business in the state of Kentucky, which fact was known to the defendant; that in order to deceive and defraud the plaintiff, and induce him to take out said policy, the defendant falsely and fraudulently represented to plaintiff that said insurance company was a good and reliable company, when in fact it was not a reliable company, but was insolvent, and was not authorized to do business in the state of Kentucky; that plaintiff took out said policy, relying upon said representations to be true, and believing them in good faith to be true; and that he would not have taken out said policy, but for said false and fraudulent statements and representations of the defendant. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 27, 32; Dec. Dig. 25.] Appeal from Circuit Court, Lawrence County. Action by Frank A. Preston against Ed. Preston. From judgment for defendant, plaintiff appeals. Reversed and remanded, with directions. A. O. Carter, of Louisa, for appellant. M. S. Burns, of Louisa, for appellee. A. MILLER, C. J. The appellant, Frank Preston, who was the plaintiff below, is a property owner in Lawrence county. He brought this action against the appellee, Ed. Preston, who was the defendant below, to recover $1,200, the amount represented by an insurance policy which the petition alleged Ed. Preston, as an insurance agent, had fraudulently induced Frank Preston to procure from an insolvent fire insurance company, which was not authorized to do business in this state. The circuit court sustained a demurrer to the petition as amended, and the plaintiff, Frank Preston, appeals. In Vertrees v. Head & Matthews, 138 Ky. 83, 127 S. W. 523, it was held that one who undertakes, in violation of a statute, to act as agent for an insurance company not authorized to do business in this state, personally guarantees the solvency of the company and its ability to perform its agreement, and is liable for loss sustained because of its insolvency or failure to perform its contract, to one contracting with it through such agent without knowledge that the company was not authorized to do business, and believing that the agent was duly authorized, irrespective of any false representations concerning its solvency, if the company itself would have The amended petition further states that the property insured was of the actual cash value of $1,200, that at the time of said fire said policy was in full force and effect, that plaintiff had complied with all the requirements, provisions, conditions, and terms of said policy, that said fire was not caused by any of the agencies mentioned in the said policy which would excuse the company from liability, and that the insolvency of said company was the sole reason for its failure to pay said policy. Although the petition is somewhat inartificially drawn, it contains the averments of fact above set forth, which, if true, would justify a recovery under the rule laid down in Vertrees v. Head & Matthews, above quoted. It is proper to say that the Vertrees Case was not called to the attention of the circuit judge when he sustained the demurrer to the petition. It follows, therefore, that the demurrer to the petition should have been overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The judgment is reversed, and the case remanded, with instructions to overrule the demurrer to the petition, and for further proceedings. the original motion for a new trial, he had called upon the stenographer for a transcript of the evidence so taken down by him, the same to be used upon the trial of the motion for a new trial and, if necessary, for a bill of exceptions and evidence on appeal; that he relied upon said stenographer's notes and transcript of the evidence to make his bill of 977-DISCRETIONA-poses of appeal, but that he was informed by exceptions and bill of evidence for the pur CROUCH v. O'BANION. 1. APPEAL AND ERROR [Ed. Note.-For other cases, see Appeal and 2. NEW TRIAL 93-DECISION ON MOTIONDISCRETION. The refusal of a new trial, sought because the court stenographer was unable to transcribe the evidence, was not an abuse of discretion, where the court granted to appellant until the next succeeding term to prepare and tender his bill of exceptions and evidence, and it appeared that appellant and his counsel, being present at the trial, could, with the aid of the court, have prepared such bills as would have been sufficient on appeal. said stenographer that he was unable to decipher his notes so taken at the trial, and for that reason could not furnish him the transcript of the said evidence. at the November term overruled the motion The court for a new trial, but granted appellant until a day in the succeeding February term of the court to prepare and tender his bill of exceptions, which, however, was not done. The sole contention of appellant is that the court below abused its discretion, under the circumstances, in refusing to give him a new trial because of the stenographer's inability to transcribe the evidence from his notes taken at the trial; he having thereby [Ed. Note.-For other cases, see New Trial, been virtually deprived of the right of appeal Cent. Dig. § 189; Dec. Dig. 93.] by an officer of the court upon whom he had right to rely. Appeal from Circuit Court, Owen County. Action by G. W. O'Banion against C. H. Crouch. From judgment for plaintiff, de fendant appeals. Affirmed. Vallandingham & Alexander and W. A. Lee, all of Owenton, and Hazelrigg & Hazelrigg, of Frankfort, for appellant. Botts & Perry, of Owenton, for appellee. TURNER, J. In March, 1911, appellee instituted this action against appellant on a note, and sought to subject certain personal property to payment thereof, upon which mortgage had been executed to secure same, and in addition set up certain grounds of attachment, and prayed for a general order of attachment. The defendant answered, pleading that there was no consideration for the execution of the note, and asserting numerous claims against appellant by way of set-off and counterclaim. The issues, as made up, involved considerable detail concerning numerous transactions between the parties. The evidence was taken orally, and the notes of the same taken down by the stenographer of the court. At the end of the trial the court entered a judgment at the June term, 1912, for the plaintiff's debt, interest, and costs, and directed sale of the personal property to satisfy same. On the day the judgment was entered, appellant filed his motion and grounds for a new trial, which contained nothing out of the ordinary; but same was not acted upon by the court at that term. At the succeeding November term of the court, before the motion for a new trial had been acted upon, appellant filed additional grounds for a new trial, wherein he stated that, pending [1, 2] In the granting or refusing of a new trial a broad discretion rests with the trial court, and, in the absence of something showwill not disturb his ruling. In this case ing an abuse of that discretion, this court the lower court, after discovering at the November term that the stenographer could not transcribe his notes and could not consethereof to be used in preparing his bill of quently furnish to appellant a transcript evidence and exceptions, granted to appellant until the succeeding term to prepare and tender his bill of exceptions and evidence, doubtless being of the opinion that he and his counsel could, from memory, sufficiently prepare them in the old way to present all the questions on appeal. Appellant and his counsel were present at the trial, and with the aid of the court could have prepared such bills as would have been sufficient on appeal. It is conceded that the pleadings support the judgment, and no other question can be considered, in the absence of a bill of exceptions. court abused its discretion, and the judgment We are not prepared to say that the lower is affirmed. WELBORN v. WHAYNE. (Court of Appeals of Kentucky. March 16, 1915.) LANDLORD AND TENANT 157-CONTRACT OF LEASE - PROVISION FOR CLEARING AND FENCING-BREACH-DAMAGES. W., providing that W. shall cut all the timber Under a contract of lease of land by S. to from it and clear it for cultivation and fence it, that for clearing and fencing it he shall have 1909, and that if he has not cleared and fenced the use of it free for five years from January 1, it by January 1, 1913, he shall then surrender, but if he has done so, he shall have the use of it till January, 1914, and that he shall have all the timber, his surrender of possession on January 1, 1913, when he had removed all the timber, but cleared and fenced none of the land, is not a satisfaction of his failure to clear and fence, but he remains liable in damages therefor. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 571, 572, 574-582, 584600, 602-607; Dec. Dig. 157.] Appeal from Circuit Court, McLean County. Action by Latta Whayne against H. Welborn. Judgment for plaintiff, and defendant appeals. Affirmed. Little & Slack, of Owensboro, and W. B. Noe, of Calhoun, for appellant. Joe H. Miller, of Calhoun, for appellee. CARROLL, J. On November 3, 1908, the appellee, whose name was then Latta Shutt, entered into the following contract: "This indenture made and entered into this the third day of November, 1908, by and between Latta Shutt, of Calhoun, Kentucky, party of the first part, and H. Welborn, of Rumsey, Kentucky, party of the second part: Witnesseth that said Latta Shutt has this day rented to and leased to said H. Welborn all the remainder of her tract of land in McLean county, Kentucky, on the Madisonville road, containing 214 acres, after taking out the 100 acres heretofore leased to him May 21, 1907, and leaving 14 acres of said tract next to Woosley and Blake. The said H. Welborn shall clear all the timber off said land and remove it and all underbrush therefrom and place in condition for cultivation. He shall build around said land, including the 14 acres hereby reserved, a fence of woven wire 32 inches high, with two strands of barbed wire on the top of same, and for said fence to put in good oak, catalpa or mulberry posts, and place said posts not farther than twelve feet apart. For clearing and fencing said land as aforesaid, the said Welborn shall have the use of said land, including in this additional lease, free of charge for five years from January 1, 1909; if said Welborn has not cleared all of said land and erected and built the fence as herein designated by January 1, 1913, then he shall surrender possession of said land at said time, but if same is fully cleared as specified herein and fenced, then he shall have the use of same for remainder of the time to January 1, 1914. It is further agreed that said Welborn shall have all the timber on the land to be clear ed, except the line trees. It is further agreed that the said Welborn shall surrender possession of said land at the expiration of said lease according to its terms herein without demand or notice." The appellant entered upon the land under this contract and remained in possession of it until January 1, 1913, when he vacated the premises and surrendered possession of the land to the appellee. During the four years he was in possession he cut all the timber on the land, but did not build the fence he agreed to build or clear the land he agreed to clear. In May, 1913, the appellee brought suit against the appellant, charging that during the time he was in possession of the land he cut and removed therefrom all of the merchantable timber, which was reasonably worth $1,000, and failed and refused to clear 88 acres of the land or to build any part of the fence he agreed to build. Damages in the sum of $1,200 were sought to be recovered. The chief defense of the appellant was that the contract, as he construed it, provided that if he failed to perform its conditions, he should surrender possession in January, 1913, and this abandonment of his right to use the premises for the year 1913 was a satisfaction of his failure to perform in full the terms of the contract, or, in other words, the liquidated damages agreed upon between the parties for his breach of the contract. He further averred that he surrendered full possession on January 1, 1913, and therefore although he took all the timber from the The instructions are complained of, but we think they are more favorable to the appellant than he was entitled to. Under the instructions the jury were authorized to, and did, allow appellant $71 as a credit on the damages to which appellee was entitled, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |