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Fletcher v. Crist et al.

her challenges for cause as to the jurors, Tyner and Dawson, in this, that she was thereby compelled, as we assume, to use two of the peremptory challenges allowed her by law for other purposes, to relieve herself, as far as she could, from the erroneous rulings of the court on her challenges for cause."

In Chandler v. Reubelt, supra, the appellant was an applicant for a license to retail intoxicating liquors, which had been refused by the board, and he appealed. A juror called in that case said, in answer to a proper question, that he did not think a moral man would sell liquor; but, notwithstanding his prejudice, he believed he could render a verdict according to the law and the evidence. This court held such juror not impartial, and therefore an incompetent juror.

The answers of the juror Bain brought him within the rule here laid down, and show that he was not an impartial juror, that he had prejudged one feature of the case. The morality of the applicant was directly involved in the controversy, and his opinion was that it was evidence of immorality for a man to engage in the sale of intoxicating liquors. Appellant's application showed that he was willing, to so engage, and would do so if licensed. According to the juror's answers he must necessarily believe that fact evidence of appellant's immorality. This juror served in the cause. We are of opinion that both jurors were, under the decisions cited, incompetent, and that the court erred in overruling the appellant's challenge of them for cause.

As a new trial will necessarily result from what we have said, it is unnecessary to decide the other questions discussed, as they are not likely to arise on another trial.

The judgment is reversed, and the cause remanded, with instructions to sustain the motion for a new trial. Filed Oct. 31, 1894.

139 128 141 321 139 128 147 427

The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

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No. 17,226.

THE BOARD OF COMMISSIONERS OF RUSH COUNTY ET AL. v. DINWIDDIE ET AL.

WILL.-Trust.-Home for Unfortunates.—Board of County Commission-
ers Competent to Act as Trustee.-A board of county commissioners
in this State is competent to act as a trustee under the will of an
individual, where the object of the trust is to establish a home for
worthy, unfortunate persons and orphan boys.

SAME.-Beneficiaries.—Selection in Discretion of Trustee.-A failure in
the will to confine the beneficiaries of the trust to residents of the
county does not invalidate the trust, and certainly not where the
board of commissioners is made the judge of everything that is
necessary relating to the trust, and is given full discretion in the
selection of the beneficiaries from the class of persons named.
SAME.-Bequest of National Bank Stock.—Right to Hold.-Perpetuities.
-A bequest to a board of county commissioners, as trustee, of
stock in a National bank "to be kept as a perpetual fund, to remain
in said bank while it exists," does not invalidate the gift, even
though, under the banking laws, a corporation can not hold such
stock, where the will invests the trustee with discretion as to what
is necessary to be done. Nor does this provision violate the statute
against perpetuities.
SAME.-Church.-Provision Requiring Trustee to Build.—A trust created
by will in a board of county commissioners whereby a home is to
be provided for worthy, unfortunate persons and orphan boys is
not rendered invalid by a provision requiring a church to be built
in connection with the home.

SAME.-Partial Intestacy.-Presumption Against.-Meaning of Testator.
-In interpreting wills the presumption is always against partial in-
testacy, and the meaning of the testator must be sought from the
whole instrument.

SAME.-Disposition of Entire Estate.-Construction of Will.-A testa-
trix after disposing of her home farm to a board of county com-
missioners, as trustee, and providing for the establishment of a home
by them for the benefit of a class of persons, then devised to named
persons in trust "all my remaining estate to be managed by them
as by me directed." The directions being to handle the property
without sacrifices, and, when they were through with the trust, to
"turn all over to the commissioners
for the benefit of the
needy with as little cost as possible."

Held, that the will disposes of all of the testatrix's property.

The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

From the Rush Circuit Court.

B. L. Smith, C. Cambern, G. H. Puntenney, H. E. Barrett, W. J. Henley and L. D. Guffin, for appellants. J. C. Blacklidge, C. C. Shirley, B. C. Moon, D. S. Morgan, D. Morris, G. W. Morgan and S. L. Innis, for appellees.

HOWARD, J.-The appellees filed their complaint in two paragraphs, in each of which they alleged that, as sole heirs at law of Maria Dinwiddie, deceased, they were the owners in fee simple as tenants in common of certain described real estate, praying that their title be quieted and for partition.

To this complaint the appellants answered jointly in two paragraphs, and the board of commissioners also separately in two paragraphs. In each paragraph of both answers was set up a copy of the last will of the said Maria Dinwiddie, under the terms and provisions of which it was averred that the appellant, board of commissioners, was the owner of the lands described in the complaint.

The appellees demurred to each of the answers, and the demurrers were sustained by the court. The correctness of this ruling is brought here for decision. To decide the question so raised, it becomes necessary to pass upon the validity of the last will of Maria Dinwiddie, in so far at least as relates to the lands devised by her.

No question is raised as to the competency of the testatrix to make her will, or to the due execution of the same, the sole question being whether the will is sufficient to effect the purposes intended by her.

The will was written by the testatrix herself. It is wholly unpunctuated, and without division of sentences by capitals. So far as need be set out, it is as follows: VOL. 139-9

The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

"I give to the county commissioners of Rush County State of Indiana and their successors in office my farm containing one hundred and sixty acres situated in Jackson Township Rush County known as the Dinwiddie farm on which to establish a home for the benefit of worthy persons who have no home and orphan boys where they can be learned to work and be made self supporting the home limited in number to as many as the farm will comfortably support it is not to be called a poor house but a home where worthy unfortunate persons can be enabled in a measure to support themselves The home to be called the Dinwiddie Home I also give to said Commissioners my bank stock in the Rushville National Bank to be kept as a perpetual fund to remain in said. Bank while it exists after such Bank ceases to exist said Commissioners or their successors shall invest the fund in some safe way where the most interest can be secured all of the interest accruing from said fund to be used for the benefit of the home in the way of building and other necessary repairs and furnishing stock and implements necessary to carrying on said farm the Coms being the judges of what is necessary they to be held by the County responsible for the judicious management of all trust committed to them No dissipated wicked persons are allowed the benefit of the home

"in the second place I leave in the hands of my nephew William A. Smith and Thomas M. Green in trust all my remaining estate to be managed by them as by me directed they not being required to give bond believing they will faithfully and honestly discharge the trust committed to them"

Next follow numerous special bequests concerning which there is no dispute, after which the will continues:

"all bequests herin named are to be paid out of money on deposit and promissory notes held by me my trustees

The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

to hold my business houses not disposed of collecting the rents and keeping up necessary repairs the residue used in complying with my wishes providing there are sufficient which I think there will be I desire to have a substantial church built on the Home Farm after I am called away if such is not built while I remain the church to be a plain substantial structure not to cost over three thousand dollars the foundations to be stone the walls brick with slate roof plainly and substantially finished inside it is not to be sectarian all denominations permitted and requested to hold religious services as often as convenient if there should be any means left after all requirements are fulfilled the same can be kept in some safe investment the income used in keeping the church supplied with preaching and other religious exercises.

"My Trustees are allowed ample time to make arrangements without any sacrifices I would say ten years, if necessary if needed when they are through with the trust they can turn all over to the county commissioners and their successors if all parties think it would be best for the estate to retain the houses and lots they can do so my wish is that the uses be made of the estate for the benefit of the needy with as little cost as possible. "July 10, 1891.

"Witnesses

MARIA DINWIDDIE.

(J. W. SMELSER.

JAMES T. KITCHEN.

"this is my own Will written by my own hand."

It is first contended that the devise and bequests to the commissioners are void, for the reason that the county board is not competent to take the same.

By section 2726, R. S. 1894 (section 2556, R. S. 1881): "All persons, except infants and persons of unsound mind, may devise, by last will and testament, any interest, descendible to their heirs, which they may have in

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