night, and the next day repeating the above statements, and asserting that he had $4,000 deposited in the Bank of Orleans with which to pay for the cattle he might buy; that he visited the appellee at his farm, and repeated to him all the statements aforesaid; that appellee offered to sell 15 steers, at four cents per pound; that he remained in the neighborhood until the 13th of said month, buying cattle during that time of various persons, and executing checks to them upon the Bank of Orleans in payment, signing such checks, 'D. D. Fisher'; that the checks were all protested later for want of funds." "(9) That on the 11th day of July, relying upon the representations made to him as aforesaid, appellee sold to Miller, by the name of D. D. Fisher, 14 steers, at four cents per pound. (10) That appellee delivered the 14 steers to Miller at Livonia, on the 13th of July; the amount of the purchase price, fixed by weight, was $559.00; that Miller made a check for $560.60 upon the Bank of Orleans, adding $1 for costs of collection, and delivered the same to appellee; that appellee in receiving it relied upon the statements of Miller as above set out, and upon his further statement that he had $4,000 on deposit in the bank named; that the check was signed, 'D. D. Fisher'; that appellee transferred such check to the Bank of Salem, and that the same was in due time presented to the Bank of Orleans for payment; that payment was refused, for the reason that there was no such man as D. D. Fisher, and no funds in said bank to his credit. (11) That the false pretenses made by Miller, and by which he obtained possession of appellee's cattle, were such as would induce an ordinarily prudent man to part with his property. (12) That Miller, by reason of said false pretenses, obtained possession of 24 head of cattle in all; that before shipping he traded four of appellee's cattle to one Farr, and received from Farr three other cattle in exchange; that on July 13th he shipped said cattle to Louisville, Ky.; that they were unloaded and sold by commission men for $902.07 net, as the property of D. D. Fisher; that Miller received a check payable to bearer for said sum; that he indorsed the same by the name of D. D. Fisher, and received the money thereon." "(14) That, on July 14th, Miller went to Mitchell, Indiana, and on the 15th to Orleans; that he never had any funds at the Bank of Orleans, or any credit there, or any money or property at said time, either in or out of bank. (15) That soon after reaching Orleans he exhibited sums of money; deposited $250 in the Citizens' Bank, and received a certificate of deposit therefor; paid off debts due from him to divers persons, amounting to about $400." "(17) That, on July 18th, Miller was identified by appellee as D. D. Fisher; that thereupon Miller was arrested by the marshal of Orleans, without any warrant, and searched; that there was found $185 cash on his per

(19)

son, and the certificate of deposit in the Orleans bank for $250; appellee was with the marshal when the search was made, and then made claim to the certificate and money as his own, as coming from the sale of his cattle; that Miller protested against the marshal or appellee taking such money or certificate, but agreed that George M. Albertson might take and keep the same pending the preliminary examination of Miller on the charge of procuring property under false pretenses, and until some legal disposition was made of such money and certificate; Albertson took the money and certificate, and kept the same until he brought them into the court below. (18) That Miller was taken to the town of Salem by said marshal and the appellee, without a warrant, and when on the way they were overtaken by appellants McCart & Talbott, who had been sent for to defend him; that appellee then and there claimed to them that Miller was the man who got his cattle. That July 18th, Miller was charged before a justice of the peace with the crime of having obtained appellee's property by false pretenses; that appellants McCart & Talbott appeared as his attorneys; that he waived arraignment, and procured a continuance to get witnesses. (20) That, on the 19th of July, McCart & Talbott made a contract with Miller to defend him against the charge made, for which he agreed to pay them the sum of $500, and to turn over to them the certificate of deposit for $250 and the $185 cash held by Albertson to apply on such sum; and that he executed a written order on Albertson directing him to deliver said property to them. (21) That, on the 19th of July, McCart & Talbott presented said order to Albertson, and demanded said property; that Albertson refused to deliver said property to them, but afterwards filed his interpleader, and delivered the said property over to the court, where it is now held; that the said order was on said day exhibited to the cashier of the Orleans bank, and a demand made for the $250 evidenced by the certificate of deposit, which demand was refused; that on the same day this action was instituted, and a writ of attachment issued against Miller to Orange and Washington counties, and duly returned, 'No property found.' (22) That on the 22d of July summons and garnishment were served on the garnishee defendants. (23) That Miller, when he executed the written order on Albertson, orally authorized McCart & Talbott to indorse his name on the back of the certificate of deposit, but 'no indorsement was ever made on said certificate either by Miller, or McCart & Talbott, or either of them, McCart & Talbott never having got possession of said certificate. (24) Miller was disposing of the money derived from the sale of all the cattle purchased by him, under the false pretenses as aforesaid, at the time of the institution of the attachment, with

no intention of paying the plaintiff [appellee], and was disposing of the money derived from the same with the intention of cheating and swindling the plaintiff and other persons from whom he purchased the cattle. (25) That the money found on Miller and that evidenced by the certificate of deposit was derived from the sale of the cattle purchased by false pretenses of appellee and others, but what part of it was derived from the sale of plaintiff's ten head and the three head received from Farr the court cannot state. (26) That McCart & Talbott have ably defended Miller in all the criminal proceedings against him growing out of the transactions of said Miller in purchasing and obtaining said cattle under the false pretenses aforesaid, and that $500 is a reasonable fee for their services. (27) That McCart & Talbott knew when they took the order from Miller that appellee was claiming that Miller had defrauded him by false pretenses, and that such money and certificate, together with $15 in the hands of one Easly, was all that Miller then had." “(29) That the representations made by Miller to the plaintiff in reference to the purchase of said cattle and the giving of said check were made designedly, knowingly, falsely, and feloniously, with intent to defraud appellee, who believed the same, relied upon them, and was induced to part with his property thereby, and that the same was true of other persons named from whom cattle had been procured."

(2)

The court concluded that the law on the foregoing facts was (1) that the cattle were obtained by criminal false pretenses, as defined by section 2204, Rev. St. 1881; that whatever interest Miller had in the money and certificate was transferred to the other appellants; (3) that McCart & Talbott were not innocent holders; (4) that Miller had no interest in the property held by Albertson; (5) that appellee, Stephenson, was entitled to the $185 in money and the $250 evidenced by the certificate of deposit, and to have his title quieted thereto. There is some matter of an argumentative nature in the conclusions of law which has been eliminated.

The disposition of this appeal depends upon the facts thus found and the law thus stated. The pleadings are sufficiently comprehensive to allow either party any relief to which they might be entitled upon the finding. Appellants assert that appellee has elected to treat the money derived from the sale of the cattle as the property of Miller. The first paragraph of complaint upon which the attachment and garnishment were had avers that appellant Miller was indebted to appellee in the sum of $560, which indebtedness was incurred under the name of Fisher, in the purchase of 14 steers. The second paragraph avers the procurement of the property as described in the special finding, the possession by Miller of the money for

which he had sold it, and prays that appellee's title to such money be quieted. Authorities are cited as to the effect of an election to pursue one of two inconsistent remedies. This is not the question. The question is, does the record show such an election? The utmost that it shows is a misjoinder of causes of action. It was sought to raise that question by murrer, which was the proper method. There was no error in overruling such demurrer, as was done. Section 344, Burns' Rev. St. 1894, § 341; Horner's Rev. St. 1897; Langsdale v. Woollen, 120 Ind. 16, 21 N. E. 659. The amended complaint has relation to the date of the commencement of the action, and was a matter occurring in the progress of the original case. Railroad Co. v. Bills, 118 Ind. 221, 20 N. E. 775; School Town of Monticello v. Grant, 104 Ind. 168, 1 N. E. 302; Evans v. Nealis, 69 Ind. 148. When Miller was first arrested, appellee claimed the certificate of deposit and the cash as being the proceeds of his cattle. The claim seems to have been persisted in, and it became the duty of the court to render such judgment, within the issues, as should dispose of the case and be just to the parties.

The finding shows that the $250 deposited in the bank by Miller and the $185 which he had upon his person were derived from the sale of cattle purchased by false pretenses, as set out, "but what part was derived from the sale of plaintiff's ten head and the three head received from Farr the court cannot state." That Miller had received more money from the sale of appellee's cattle than the amount on hand is shown. The question now must be considered as one between Miller and the appellee alone. No other person is making any claim to any part of such money. If appellee cannot trace the fund, it is because Miller has so commingled it with his own, no matter how procured, as to destroy its identity. "The rule is elementary that, if any property in its original form and state is covered with a trust in favor of the principal, no change in that state or form can devest it of such trust, or give the agent or trustee converting it, or those who represent him in right, any more valid claim in respect to it than they respectively had before such change." Orb v. Coapstick, 136 Ind. 315, 36 N. E. 278, and authorities there cited. The law is very aptly stated by this court as follows: "The true owner of the property has the right to have his property restored to him, not as a debt due and owing, but because it is his property wrongfully withheld. As between the cestuis que trustent and the trustee and all persons claiming under the trustee, except purchasers for value and without notice, all the property belonging to the trust, however much it may have been changed in its form or its nature or character, and all the fruits of such prop erty, whether in its original or altered state,

continues to be subject to, and affected by, the trust. It was formerly held that these rules came to an end the moment the means of ascertaining the identity of the trust property failed. In the case of trust money commingled by the trustee with his own moneys, it was held that money has no earmarks, and when so commingled the whole became an indistinguishable mass, and the means of ascertaining fails. But equity, adapting itself to the exigencies of such condition, finally determined that the whole mass of money with which the trust funds were commingled should be treated as a trust." Windstanley v. Bank, 13 Ind. App. 544-547, 41 N. E. 956; Pearce v. Dill, 149 Ind. 142, 48 N. E. 788. A substantial identification is all that is required. Shepard v. Bank, 149 Ind. 539, 48 N. E. 346; Bundy v. Town of Monticello, 84 Ind. 128. The appellee's cattle were stolen from him. Fleming v. State, 136 Ind. 149, 36 N. E. 154; Beasley v. State, 138 Ind. 552, 38 N. E. 35; Crum v. State, 148 Ind. 401, 47 N. E. 833. The owner of property wrongfully taken has a right to follow it, and adopt any act done to it, and treat the proceeds as his own. Neat v. Harding, 4 Eng. Law & Eq. 494. Property unlawfully appropriated is held by the wrongdoer as trustee for the owner and may be followed so long as it can be identified. Riehl v. Association, 105 Ind. 71, 3 N. E. 633; Bank v. Johnson (Neb.) 71 N. W. 294.

The

Applying these legal principles to the facts found, the conclusion is irresistible. money that was in Miller's possession is not his money. He has no claim upon it. It is a less amount that he realized from the sale of appellee's cattle, and he can get no advantage from his own act in commingling appellee's money. If he were allowed to keep the entire fund as against appellee on account of the possible interest that some third person who is not before the court may have in it, then he would, upon the same ground, be able to hold the entire fund against the other person, and thereby wholly defeat any attempt to regain any part of it.

Whatever difficulty there may be in adjusting the rights of appellee to this fund, as between himself and other persons who have been similarly defrauded, there can be none as between appellee and Miller. Miller probably would not be selected by the other parties as the guardian of their interests, and he cannot be now permitted to assume that position, to his own advantage. It is not the policy of the law in any case to permit the wrongdoer who commingles goods wrongfully procured to profit thereby. "All the inconvenience is thrown upon the person who produces it, and he must distinguish his own property or lose it." 6 Am. & Eng. Enc. Law (2d Ed.) 596. The wrongdoer forfeits his interest to the other party. Id. 594; Brackenridge v. Holland, 2 Blackf. 383. The finding was sufficient,

and the last conclusion of law, in so far as it was a conclusion of law, was correct as against Miller.

Do appellants McCart & Talbott occupy any better position than Miller? If so, it can only be as bona fide purchasers or transferees for value and without notice. It is the settled rule that if facts are not found in a special finding they will be presumed against the party who has the burden of proof. Rice v. City of Evansville, 108 Ind. 7, 9 N. E. 139. The appellants McCart & Talbott filed answers in the court below setting up good faith, valuable consideration, and absence of notice on their part. These allegations are affirmative, and the burden of proof upon the record will govern in the case. The record in fact shows such affirmative allegations by said appellants. 5 Am. & Eng. Enc. Law (2d Ed.) 5. Aside from the "burden of proof upon the record," the law casts the burden upon them. "It is necessary, in order to bring a man within the category of a bona fide purchaser, for him to show (1) that he has acquired a legal title; (2) the party relying upon this defense must show that he gave a valuable consideration; (3) the purchaser must be free from notice up to and including the consummation of his purchase and the full payment of the price." Baily, Onus Probandi, 303; 2 Pom. Eq. Jur. § 752 et seq. None of these propositions is established by the findings. The burden must of necessity be and is upon the claimant, since he knows the facts connected with his purchase, as the plaintiff cannot be expected to know. Palmer v. Poor, 121 Ind. 138, 22 N. E. 984, 6 L. R. A. 469; Harbison v. Bank, 28 Ind. 133, 92 Am. Dec. 308; Zook v. Simpson, 72 Ind. 83; Baldwin v. Fagan, 83 Ind. 447; Mitchell v. Tomlinson, 91 Ind. 167; New v. Walker, 108 Ind. 373, 9 N. E. 386. "The defendant sought to show that he purchased the property from an immediate purchaser for value, and without notice of any infirmity in the title of his vendor. The burden of the first issue was upon the plaintiff, and the burden of the last upon defendant." Waterbury v. Miller, 13 Ind. App. 197 (209), 41 N. E. 383. The special finding fails to show that appellants McCart & Talbott were innocent purchasers. They, therefore, are charged with notice of the infirmity of Miller's title, and as against the appellee, with regard to his money, occupy the same position that Miller does. Indeed, if the burden of proof were otherwise, the facts displayed are sufficient to establish the negative position that they were not innocent purchasers. Shirk v. Neible (Ind. Sup.) 59 N. E. 281. This is not a case where the money has been received in the usual course of business. Appellants McCart & Talbott have not received anything; in the language of the special finding, "never having got possession of such certificate." The transaction was not a usual one. It was between

a man then in custody, upon a charge of a very grave crime, of which it has transpired that he was guilty, and his lawyers, who had theretofore acted for and consulted with him relative to the facts. They knew the charge, -the situation,-and if they did not know whose money it was they were proposing to take it was their own fault. The law will not permit the money taken from appellee to be used for such purposes and under such circumstances. Said appellants were put on inquiry, and are charged with notice. Mahoney v. Gano, 2 Ind. App. 107, 27 N. E. 315. For the reasons given, I think the petition for a rehearing should be granted.

BLACK, C. J. I am inclined to agree with the conclusion reached by ROBY, J., in the foregoing opinion, but, the majority adhering to the original decision, the petition for a rehearing is overruled.

(27 Ind. App. 198)

CAIN v. ROBERTSON et al. (Appellate Court of Indiana. June 25, 1901.) WILLS-CONSTRUCTION-LIFE ESTATE-REMAINDER-EXECUTORY DEVISE

LAND-PERSONALTY.

1. Where testator devised to his wife certain described land, "all of said lands during her natural life," she took a life estate therein.

2 Where testator devised the remainder, after a life estate in his wife, to his son and daughter and their heirs forever, and if either of them should not survive the testator or his wife, and should die without issue, the survivor to take the land devised, the daughter took the whole interest on the son's death without issue before his mother, the failure of issue being a definite one; the death of the mother fixing the limit of time within which it must have occurred.

3. Where a testator gave his wife all of his lands during her life, "also" all of his personal property "not otherwise disposed of," his son and daughter to take the personalty remaining "unconsumed" at her death, the wife took the personalty absolutely.

Appeal from circuit court, Jefferson county; Perry E. Bear, Judge.

Action to construe a will by George V. Cain as guardian against James D. Robertson and others. From a judgment constru

ing it, plaintiff appeals. Reversed.

Wm. F. Friedley, George W. Lawrence, and George V. Cain, for appellant. Van Osdol & Francisco, for appellees.

ROBY, J. Archibald Cain, of Jefferson county, made his last will July 11, 1879, and departed this life in 1881, the owner in fee of the real estate described in his will. He left surviving him his widow, Mary A. Cain; two children, viz. John M. and Nancy E. F. Cain; three grandchildren, viz. George V. Cain, Norman Cain, and Emily Ashlock, children of Marcellus Cain, deceased; four other grandchildren, viz. Mary E. White, Samuel Cutshall, Belle Cutshall, Archibald Cutshall, children of Mary Cain Cutshall, deceased; and one other grandchild, Florence

Cain, a daughter of James Cain, deceased. These survivors were his only heirs at law. His will, which was duly probated, is in the words and figures following: "In the name of the Benevolent Father of All, I, Archibald Cain, of Jefferson county and state of Indiana, do make and publish this, my last will and testament: Item 1. It is my will that my just debts and charges be paid out of my estate. Item 2. I give and devise to my son, John M. Cain, and my daughter, Nancy Ellen F. Cain, one undivided half of lot number 7 (and other real estate described), all to be theirs jointly and equal. Item 3. I give and devise to my beloved wife, Mary Ann Cain, in lieu of her interest in my lands, the farm on which we now reside, situated in the county of Jefferson and state of Indiana, described as follows: The south half of the southwest quarter of section 30, town 4 north, of range 8 east, and also forty acres in section thirty-one, in town and range aforesaid, described," etc., "all of said lands during her natural life; and also all of the balance, not otherwise disposed of as aforesaid, of stock, household goods, furniture, provisions, and all other goods and chattels, of every description whatever, that I may own at the time of my decease, or in which I may have any interest, she, however, selling so much thereof as may be necessary to pay my just debts. Item 4. At the death of my wife, the real estate aforesaid, as described in item 3, I give and devise to my son, John M. Cain, and my daughter, Nancy E. F. Cain, and their heirs, forever, and also all the said personal property that may be left unconsumed by my wife; they, however, selling thereof as may be sufficient to pay her just debts and funeral expenses. If either my son or daughter aforesaid should not survive me or my said wife, and should die without issue, then I devise and bequeath the property aforesaid to the survivors of them. Item 5. I do hereby nominate and appoint my beloved wife executor of this will and testament, hereby authorizing and empowering her to compromise, adjust, release, and discharge, in such manner as she may deem proper, the debts and claims due me. I do hereby revoke all former wills by me made. Archibald Cain." John M. Cain died next after his father, intestate, unmarried, and without issue, leaving his sister, Nancy E. F. Cain, his mother, Nancy A. Cain, and the aforesaid grandchildren of his father, surviving, his only heirs at law. Nancy E. F. Cain died next, intestate, leaving a husband, Joseph Eppley, and two children, Ehrman and Muriel Eppley. The appellant brings this action, as the guardian of said children, to obtain a construction of said will. The aforesaid grandchildren of her father also survived Mrs. Eppley. Mary Ann Cain qualified as executrix of said will, and made final settlement, and was discharged in August, 1892. The personal estate of the testator consisted

of live stock, farm implements, and household goods inventoried at $867. The debts amounted to $62.75, leaving a balance of $804.25. The final report showing these amounts contained the following: "That the will of her husband, Archibald Cain, gives to said executrix all the personal property, after paying the debts, and that the above $62.75 is all the debts of said decedent, and that as said executrix she does hereby turn over to herself all the personal property, except said $62.75, as shown in this report of debts." This report was approved, and the following entry made: "It is therefore ordered by the court that said executrix be fully and finally discharged from her said trust." Mary Ann Cain elected to take under her husband's will. She took possession of the personal property; used it all; consumed a part of it,-the remainder, quantity not shown, being in the hands of James D. Robertson, her administrator with the will annexed, who is a party to this proceeding in such capacity. She died testate in 1898, and by her will, which was duly probated, devised and bequeathed all her property to the grandson and appellee, Archibald Cutshall. The construction placed by the Jefferson circuit court upon item 2 of said will is correct, and is acquiesced in by the parties.

The questions argued arise under items 3 and 4, and are as follows: First. What estate in the land was devised to Mary Ann Cain? Second. What interest in said real estate was devised to John M. and Nancy E. F. Cain? Third. What was the effect of the limitation over to the survivor as contained in item 4, in the light of facts heretofore set out? Fourth. What interest in the personal property did the widow take? Fifth. What was the effect of the judgment approving the final report of the executrix, as regards said personal property? Sixth. What interest, if any, did John M. and Nancy E. F. take in the personal property?

Technical rules must give way to the intention of the testator, if that can be determined from the provisions of the will. Cooper v. Hayes, 96 Ind. 386, 395; Ridgeway v. Lanphear, 99 Ind. 251. The intention of the testator was that his wife should have an estate for her own life in the land described in item 3. The introductory words, "I give and devise to my beloved wife," are to be read in connection with the later phrase, "all of said lands during her natural life." A life estate is thus created by clear and express terms. The remainder in said lands was devised to John M. and Nancy E. F. by the first clause of item 4: "At the death of my wife the real estate aforesaid, as described in item 3, I give and devise to my son, John M. Cain, and my daughter, Nancy E. F. Cain, and their heirs, forever." Had they both been living at the time of their mother's death, they would have taken in fee simple, as tenants in common. "If

either my son or daughter aforesaid should not survive me or my said wife, and should die without issue, then I devise and bequeath the property aforesaid to the survivors of them." It is earnestly and learnedly contended by counsel for appellee that the words, "should die without issue," mean an indefinite failure of issue, and that the remainder in fee was thereby cut down to what would have been an estate tail at common law; that the limitation over as an executory devise, being predicated upon an indefinite failure of issue, is void. "A definite failure of issue is when a precise time is fixed by the will for the failure of issue, as in the case where there is a devise to one, but if he dies without issue or lawful issue living at the time of his death, etc. An indefinite failure of issue is the period when the issue or the descendants of the first taker shall become extinct, and when there is no longer any issue of the grantee, without reference to any particular time or particular event. Huxford v. Milligan, 50 Ind. 542. The doctrine of the books seems to be that whenever it appears in the instrument creating the estate that it was intended that the issue of the first taker should take by inheritance in a direct line, and in a regular order and course of descent, so long as his posterity should endure, and an estate in fee or in tail is given in remainder, upon an indefinite failure of issue, then the estate first created will be construed to be an estate tail. But it is well settled, on the other hand, that if it appears from the deed that the limitation over was not postponed until an indefinite failure of issue, but on failure of children only, or on failure of issue within a given time, the estate will not belong to the class known as estates tail." Outland v. Bowen, 115 Ind. 150, 17 N. E. 281, 7 Am. St. Rep. 420. The failure of issue referred to in the will must have occurred during the life of either the testator or his wife. The failure of issue was therefore a definite failure, and the estate created was not an estate tail. The death of the mother fixed the limit of the time within which it must have occurred. It follows that neither Mary A., the widow, nor the grandchildren, inherited any part of the remainder of said real estate upon the death of John M., and that the will of said Mary A. passed no title thereto. There is no rule of law preventing the testator's intention that his daughter should take said real estate, in the contingency which has arisen, from being given effect.

Item 3 gives to the wife the personal property referred to, with unlimited power of consumption. "Not otherwise disposed of" is an expression which recognizes her right to sell. The word "consume" is broad, and implies absolute power. No restriction is made to any specific use, such as maintenance or support. The life estate given to her is in terms limited to the real estate. Where the first taker has an absolute power of sale,