by will the remaining two-thirds; and that, if she should die intestate, the husband surviving her, two-thirds of her estate should descend to her next of kin, the husband to have no interest therein. The paramount object in construing a will is to express the true intention and meaning of the testator; and to arrive at the true meaning of a particular clause the court will look to the whole will, if any light will thus be thrown on the clause to be construed. It is also settled that, if the testator's intention is doubtful, or the language used is ambiguous, the court will adopt the construction which will cast the property as the law would have cast it had no will been made. If a division is to be made among near and remote heirs, the law favors a distribution per stirpes in preference to per capita. If the division is to be made among persons standing in the same degree of relationship, the distribution will be per capita. See Cox v. Cox, 44 Ind. 368; Blake v. Blake, 85 Ind. 65; Baker v. Bourne, 127 Ind. 466, 26 N. E. 1078; Kilgore v. Kilgore, 127 Ind. 276, 26 N. E. 56; West v. Rassman, 135 Ind. 278, 34 N. E. 991; Henry v. Thomas, 118 Ind, 23, 20 N. E. 519. The law in the case at bar would have made the distribution per stirpes, each family of children other than John's, taking an equal share with him. But in the residuary clause the testatrix had in view only one class of legatees, all bearing to her the same degree of relationship. There can be no doubt as to her intention in this respect, because she names but one class. The rule is not different whether she designates them as the children of certain of her brothers or designates each by name. She does name the nieces Hannah and Sarah, with the intention, no doubt, to exclude their half-brother. She designates the legatees in the residuary clause in the same way that she designates most of them in the specific legacies. She intends the basis for division shall be nieces and nephews only. The children of the deceased niece, Ettie, shall take a niece's part, and, if the niece Sarah die, the niece Hannah shall have two parts. These nieces and nephews are "to have and share the same in equal parts, the children of Ettie, daughter of Jacob, taking jointly their mother's one part." It cannot be said that the specific legacies are given by families. The testatrix did not treat the children of David nor the children of John as a family. David's son is given only one-tenth as much as each of his two half-sisters, and six of John's children are entirely omitted in the specific legacies. In the residuary clause she omits the nephew and includes John's children, who were omitted. It is true, the testatrix confines the residuary clause to children of three families, but manifestly she is now considering them individually. All her brothers and sisters, except John, were dead. made provision for him by a specific bequest. He is still living, and could have no represen She tatives. He is omitted in the residuary clause. When the testatrix came to this clause, the only objects of her bounty were nieces and nephews and the children of a deceased niece. She expressly provides that these children shall take their mother's one part. We fail to see any ambiguity in the residuary clause. The distribution under that clause should be per capita. Judgment reversed. (27 Ind. App. 320) LAYMAN et al. v. BUCK et ux. (Appellate Court of Indiana, Division No. 2. Oct. 1, 1901.) APPEAL-RECORD-SUFFICIENCY. Where counsel for appellant asserts that the action appealed from is to quiet title and for possession, and counsel for appellee contends that it is to quiet title only, and it appears that, if the action is to quiet title, it is barred by limitation, so that the judgment below should be affirmed, and neither the pleadings nor the evidence are in the record, the judgment below, in view of the meagerness of the record, will not be disturbed. Appeal from circuit court, Greene county; W. W. Moffett, Judge. Action between James T. Layman and others and Isaac V. Buck and wife. From a judgment in favor of Buck and wife, Layman and others appeal. Affirmed. James B. Filbert, for appellants. Van Buskirk & Slinkard, for appellees. PER CURIAM. Neither the pleadings nor the evidence is in the record. Counsel for adversary parties differ as to the theory of the complaint and the action. Counsel for appellants assert that the action is to quiet title and for possession; for appellees, that it is to quiet title only. Appellants were plaintiffs below. The error assigned is that the court erred in its conclusions of law. If the action is to quiet title, it should fail because not brought within the 15 years fixed by the statute, and the judgment should be affirmed. Upon a record so meager, this court is not justified in disturbing the judgment of the trial court. Judgment affirmed. ey borrowed to discharge a lien thereon, is valid. 4. Where a married woman executed a mortgage to secure the repayment of money borrowed to discharge a lien on her separate property, to which coverture might have been a defense, but which she treated as valid, she was not entitled, in a suit to foreclose, to set up coverture to show that the first lien was in fact invalid, and the consideration for the second mortgage therefore bad. Appeal from circuit court, Dekalb county; E. D. Hartman, Judge. Action by Sarah Collier against Margaret Till and husband. From a judgment in favor of plaintiff, defendant Margaret Till ap peals. Affirmed. L. J. Blair and P. V. Hoffman, for appellant. F. S. Roby and Samuel A. Harper, for appellee. HENLEY, J. This was an action upon a note, and to foreclose a mortgage given by appellant, Margaret Till, to appellee, Sarah Collier, to secure the debt. The note was, upon its face, the separate note of appellant. The mortgage was signed by appellant and her husband. The name of the husband does not appear in the body of the mortgage. This omission, the complaint avers, was by the mutual mistake of both parties. The prayer of the complaint includes a demand that this mistake be corrected, and the mortgage reformed and foreclosed. Appellant, with her husband, who was a party in the trial court, jointly answered, pleading appellant's coverture, and that the note and mortgage were given to secure the debt of her husband and son, and that she received no part of the money so obtained. Appellant and husband also filed their joint cross complaint against appellee, alleging the identical facts stated in the answer, upon which facts they asked that the mortgage be canceled. Neither the answer nor cross complaint was tested by demurrer. Appellee answered appellant's cross complaint in two paragraphs, and replied to appellant's answer in two paragraphs. The first paragraph of both the answer and reply was a general denial. The second paragraph of both the answer and reply stated the same facts, which were substantially as follows: at the time the note and mortgages were executed, appellee was an unmarried woman, illiterate, and unskilled in the transaction of business; that she was on friendly terms with appellants. and believed them to be honest; that prior to the execution of the note and mortgage both husband and wife visited her at her home, and solicited a loan from her, giving as the reason that one Mrs. Fisk held a mortgage upon the property owned by appellant and described in the complaint, and that they were paying Mrs. Fisk 8 per cent. interest, which they wished to reduce to 6 per cent. by borrowing the money of appellee, and paying Mrs. Fisk the debt due her; that appellee, being a resident of Waterloo, and desiring to protect her in That terests, spoke to a lawyer at the county seat relative to drawing up the necessary papers and examining the title to the real estate; that, when the loan was made, appellant objected to the employing of a lawyer at Au burn, the county seat, and insisted that she get a lawyer at Waterloo to do the necessary work, saying to appellee that the work would thereby be done as well with less cost; that they insisted that she should procure one McDonald, who was a son-in-law of appellant, and to which agreement appellee consented, and thereafter relied upon McDonald, and in all she did accepted his statements and advice; that McDonald did not act for appellee, but acted for appellant, and enabled appellant to obtain an unconscionable advantage over appellee, and advised that he had examined the title to said real estate, that the title was all right, that the loan appellee was about to make and the security she was taking was in every way good; that appellant told appellee that the Fisk mortgage was a valid lien upon the real estate; that appellee relied upon said statement of appellant, and furnished the money to pay off the Fisk mortgage, and that the money furnished by appellee upon the note and mortgage sued upon was all used by appellant to pay off and cause to be released of the debt and mortgage held by Mrs. Fisk upon appellant's real estate, which appellant informed appellee was a valid lien thereon; that in all appellee did she relied upon the statements made by appellant and her said lawyer, McDonald, and believed these statements to be true; that the statements made to her by appellant and McDon ald were all and singular false and fraudulent, and were made by them for the purpose of cheating appellee by inducing her to loan her money to appellant and take worthless security therefor; that, but for said acts and representations, appellee would not have made the loan. Appellee pleads the foregoing facts by way of estoppel. The trial court overruled appellant's demurrer to appellee's second paragraph of reply and to the second paragraph of answer to the cross complaint. The court, by request of the parties, made a special finding of facts, and stated conclusions of law thereon. Judgment was rendered in favor of appellee for the amount of the note and for a foreclosure of the mortgage and sale of the real estate. Appellant has assigned as error: First, error of the court in overruling appellant's demurrer to the second paragraph of answer to the cross complaint; second, error of the court in overruling appellant's demurrer to the second paragraph of reply; third, error of the court in its conclusions of law upon the facts found. Counsel for appellant waived the first two specifications of the assignment of errors by a failure to discuss them. Counsel, in their brief, say: "The only question necessary to consider is whether the special finding of facts warranted the conclusions of law of the court below." The finding of facts and conclusions of law, omitting the copies of the note and mortgage which are found therein, are as follows: "(1) That the defendant Margaret Till is, and at all times herein named was, the owner in fee of lot 137 in Hornberger's First addition to the town of Waterloo, Dekalb county, Indiana, and that during all said time she was a married woman, the wife of her co-defendant. (2) That on the 6th day of January, 1894, the defendant Margaret Till borrowed $250 of one Mary A. Fisk, and executed her note therefor, together with a mortgage upon said real estate above described to secure the same; that her husband joined in the execution of said mortgage; that the proceeds of said loan were delivered to said Margaret by said Fisk; that $150 thereof were afterwards used by the defendant Richard to pay for a saloon license, and that the remaining $100 was applied to the payment and discharge of a mortgage for $100 then on said lot 137, and held by one Goodwin; that the said $100 had been borrowed by the defendant Margaret, and given to her son to start in the business of a merchant tailor, of which facts said Goodwin had knowledge at the time of said loan; that the defendant Margaret stated and represented to said Fisk in writing in said mortgage at the making of said loan that the $250 borrowed from her was for the sole and separate use of said Margaret, and that said Fisk in good faith made the loan upon such representations, believing them to be true, and having no notice that they were not true. (3) That at the time said Mrs. Fisk loaned said money and took said mortgage her husband, Royal J. Fisk, was not present when said mortgage was prepared and said money paid over to said Margaret, and had nothing to do with the preparation of said mortgage or the paying over of said money, but he had theretofore, in behalf of his said wife, spoken to several persons, and among them Richard Till, about the loaning of his wife's money, including the amount of the aforesaid loan, and that a short time before said loan was consummated, in a conversation with said Richard Till, he was told by said Till the purpose for which said loan was to be procured by his wife, Margaret, as stated in foregoing finding; that said Mrs. Fisk, at the time of said loan, lived within a few yards of said Richard and Margaret Till, and knew the business said Richard was engaged in; that said mortgage was executed at the residence of said Mrs. Fisk, and the money there paid to said Margaret Till; and that said Mrs. Fisk made no inquiry of said Margaret Till and her husband, or either of them, as to the purpose for which said money was being borrowed, and that, if she had made such inquiry, she could have readily learned the purpose for which it was borrowed. (4) That said Fisk note bore eight per cent. interest; that defendant Margaret paid the annual interest thereon twice; that thereafter, for the avowed purpose of reducing the rate of interest upon her indebtedness by paying said Fisk note and mortgage, the defendant Margaret, with the assistance of her husband, negotiated a loan of $250 from Sarah Trail, who has since married, and whose present name is Collier, she being the plaintiff herein. (5) That the defendants represented to plaintiff that if she would loan said $250 that they would secure her by a mortgage upon said lot 137, and that the same was good security for such loan; that thereafter such loan was made, and the defendant Margaret executed her note for $250 to plaintiff, which note is the one sued on, and is in the words and figures following. (Omitted.) (6) That at the same time, and as a part of the same transaction, the defendants executed their mortgage upon said lot to secure the payment of said note, which mortgage was in the words and figures following. (Omitted.) That said mortgage was duly recorded. (7) That the said note and mortgage were prepared by one W. X. X. McDonald, an attorney, and a son-in-law of the defendants, who was employed by and acting for defendants therein; that the plaintiff desired to employ another lawyer, but at the request of defendant Richard did not do so, but relied upon said McDonald; that said McDonald informed plaintiff that he had examined the records, and knew that they were all right, and that the loan would be perfectly safe in every way; that the plaintiff believed said representations, and relied upon them, and had no notice that they were not true. (8) That the plaintiff, while she was informed that the money was borrowed on this mortgage in suit to pay said mortgage to Mrs. Fisk, did not inquire as to what the consideration of said mortgage to Mrs. Fisk was, and that, if she had made such inquiry of defendants, she could have readily ascertained the true consideration of the said mortgage to Mrs. Fisk; and that the defendant Margaret Till never made any statements to plaintiff as to what the consideration for said mortgage given to said Mrs. Fisk was, and was never asked to state what it was. (9) That the $250 so secured from plaintiff was by the defendant used to pay off and discharge the Fisk note and mortgage, and was paid to Mrs. Fisk, who thereupon delivered up her note and discharged her mortgage. (10) That the defendant Margaret never claimed any defense to the Fisk note, and paid the same voluntarily with the money borrowed from plaintiff, and that the same purported to be a valid and subsisting lien upon the property of said Margaret, and when so paid there was due thereon said sum of $250; that a reasonable attorney's fee herein is $26.16; that said note, principal, interest, and attorney's fee, amounting to $287.82, is due and unpaid; that the intention of the parties was that the name of Richard Till should appear in the body of the mortgage, but by mistake of the scrivener, said McDonald, it was omitted therefrom. "The court concludes the law upon the facts to be as follows: (1) That the said mortgage should be reformed by the insertion of the name of Richard Till in the body thereof. (2) That the plaintiff should recover of the defendant Margaret Till $287.S2 and the costs of this action, and that said mortgage, as reformed, is a first and valid lien, and should be foreclosed, and the premises therein described sold. That the proceeds should be applied to pay the costs, and, second, plaintiff said note, and, third, the residue to Margaret Till. (3) That the defendants take nothing of the cross complaint. E. D. Hartman, Judge." It seems to us that the facts found clearly establish appellee's right to recover. Under our law a married woman is bound by an estoppel in pais the same as if she were unmarried. The facts found show the Fisk mortgage to have been a valid lien. Appellant signed a written statement, made a part of the mortgage given to Mrs. Fisk, that the $250 borrowed from her was for the sole and separate use of appellant, and Mrs. Fisk in good faith made the loan upon the representations, believing them to be true, and having no notice that they were not true. This finding fixes the legality of the Fisk mortgage, which appellee's money went to discharge and satisfy. Wertz v. Jones, 134 Ind. 475, 34 N. E. 1; Bonvey v. McNeal, 126 Ind. 541, 26 N. E. 396; Maxon v. Lane, 124 Ind. 592, 24 N. E. 683. It is settled law that, where money is borrowed by the wife, or by the husband and wife, or by either of them, for the purpose of discharging liens on the wife's separate property, a mortgage executed to secure the repayment of the money so borrowed is a valid incumbrance upon the property. Noland v. State, 115 Ind. 529, 18 N. E. 26; Cochrar v. Benton, 126 Ind. 58, 25 N. E. 870; Johnson v. Jouchert, 124 Ind. 108, 24 N. E. 580, 8 L. R. A. 795. But, going further, coverture is a personal defense. The Fisk mortgage was, upon its face, a valid lien. Appellant so treated it, and took the money she procured from appellee and discharged the debt. Appellant cannot now be permitted to defend against appellee's claim by averring that she used the money to discharge a lien which was valid upon its face, and which could only be defeated by affirmative action upon her part. The judgment is affirmed. 7 Ind. App. 301) SUTHERLIN v. SUTHERLIN. (Appellate Court of Indiana, Division No. 1. Oct. 1, 1901.) MANSLAUGHTER-INFAMOUS CRIME-GROUND OF DIVORCE. Burns' Rev. St. 1894, § 1044, subd. 7, pecifies as a ground of divorce the conviction, subsequent to marriage, of an infamous crime. Section 1642 denominates crime punishable by imprisonment in state's prison a felony. Held, that a conviction of manslaughter, being a conviction of a felony, was a ground for divorce, notwithstanding Rev. St. 1843, c. 54, § 79, repealed by Rev. St. 1852, c. 92, § 1, in defining infamous crimes, mentions murder, but omits manslaughter. Appeal from circuit court, Marshall county; A. C. Capron, Judge. Action by Edith Sutherlin against William Sutherlin. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Martindale & Stevens, for appellant. J. C. Capron, for appellee. HENLEY, J. This was an action for divorce. It is averred in the complaint as the sole ground for divorce that the appellant has since his marriage with appellee been convicted in the Marshall circuit court of the crime of manslaughter, and has been sentenced to the penitentiary of the state of Indiana for a term of 20 years, and was at the time of the filing of the complaint confined in said prison under such judgment of the court. Appellant demurred to the complaint for want of facts. His demurrer was overruled, and upon trial appellee was granted a divorce. The only question discussed upon appeal arises from the action of the trial court in overruling appellant's demurrer to the complaint. Counsel for appellant contend that the crime of manslaughter is not an infamous crime, within the meaning of section 1044, Burns' Rev. St. 1894. With this contention we are unable to agree. Manslaughter is a felony, and we think that the legislature intended that the conviction of either party, in any country, after the marriage, of any crime the punishment for which was death or imprisonment in the state prison, should be a sufficient cause upon which to decree a divorce to the innocent party. In this state all crimes and public offenses which may be punished with death or imprisonment in the state prison are denominated felonies. Section 1642, Burns' Rev. St. 1894. In 1 Greenl. Ev. § 372, it is said, in speaking of what are infamous crimes, "The usual and more general enumeration is treason, felony, and the crimen falsi." It was also held in U. S. v. Field (C. C.) 16 Fed. 780, that "infamous crimes are convertible with felonies"; and to the same effect see Whart. Am. Cr. Law, § 561. By section 79, c. 54, Rev. St. 1843, it is provided that "every person, who may hereafter be duly convicted of the crimes of treason, murder, rape, arson, burglary, robbery, manstealing, forgery or willful and corrupt perjury, shall ever after such conviction be deemed infamous," etc. Without deciding that manslaughter might be included within the crime of murder as designated in the above statute, it is sufficient to say that this statute is repealed, and is no longer the law in this state. See section 1, c. 92, Rev. St. 1852. There is no error. Judgment affirmed. (27 Ind. App. 327) NORTHWESTERN BENEV. SOC. OF ACCIDENT INSURANCE-INTENTIONAL INJURY 1. One may become so intoxicated as to be incapable of having an intention, so as to authorize a party injured by such person while in such intoxicated condition to recover on an accident policy declaring against a recovery thereon where the injuries were inflicted intentionally. 2. Where, in an action on an accident policy, the court found that a notice of the injury and certificate of a physican, which complied with the requirements of the policy, were served on defendant, and that no further notices, certificates, or proofs were requested or required by defendant, a contention that there was no finding that any proofs of injury were made by plaintiff or received by defendant is without merit. 3. Though payment of the membership fee was an ultimate fact which should have been found, in an action on an accident policy, where payment appeared from the record to have been treated as an admitted fact, it was unnecessary to make such finding. 4. In an action on an accident policy, a finding that the person who assaulted plaintiff was intoxicated at the time of the assault to such a degree that he did not realize that he was doing so, and did not know that he had inflicted an injury on the plaintiff, is equivalent to a finding that the injury was commit ted unintentionally. 5. Plaintiff and O. became involved in a dispute in a saloon. He testified that he was not intoxicated, but that O. had been drinking, and that he attempted to go out, when O. followed, and in an altercation which ensued plaintiff's thumb was bitten. O. testified that he was "too full" to know what he was doing, and that he did not intend to inflict the injury on plaintiff. On examination he stated that he had had two drinks of whisky when the altercation occurred. He related the particulars of the dispute, and the circumstances which occurred up to the time the actual altercation began. There was evidence that, after plaintiff and O. were separated, the latter stated that he did not want it to get out how he got the blood on his face. The evidence was conflicting as to whether he himself washed his face after the altercation and as to whether he was drunk. Held, that the evidence was not sufficient to show that the injury was unintentionally inflicted, so as to authorize a recovery on an accident policy held by the plaintiff. Appeal from circuit court, Sullivan county; W. W. Moffett, Judge. Action by Oliver J. Dudley against the Northwestern Benevolent Society of the City of Duluth. From a judgment in favor of the plaintiff, defendant appeals. Reversed. Orion B. Harris, for appellant. John S. Bays and Lee Fenton Bays, for appellee. COMSTOCK, J. The complaint is in one paragraph. It alleges the issuing of a policy to appellee (who was plaintiff below). The By policy is made a part of the complaint. its provisions appellee became entitled to certain indemnity in the event of total disability by reason of bodily injury effected solely through external, violent, and accidental means. The appellee did receive an injury while the policy was in force, occasioned by the biting of his thumb by another person without the fault of appellee; that the person who bit the thumb "was in a state of intoxication to such an extent that he did not know that he was inflicting such injury, and by reason thereof said injury so inflicted * upon said plaintiff was not in any manner intentional, but was wholly unintended and accidental." The application is, by the terms of the policy, made a part thereof. It provides that the benefits of membership in the appellant society "shall not extend to nor cover disability or death resulting wholly or partly, directly or indirectly, voluntarily or involuntarily, accidentally or otherwise, from any of the following causes, to wit: Intentional injuries * * inflicted by the insured or any other person (burglars and robbers excepted)." The cause being at issue, it was submitted to the court. Upon proper request, a special finding of facts was made, conclusions of law stated thereon, and judgment rendered in favor of appellee for $180. The errors assigned are the action of the court in overruling appellant's demurrer to the complaint, in overruling its motion for judgment on the special finding, in its conclusions of law on the special finding, in overruling appellant's motion for a new trial. It is contended by appellant's counsel that the special finding of facts is in several particulars not sustained by sufficient evidence. It is not necessary to consider all the questions raised. In denying the sufficiency of the complaint, counsel for appellant admit that, had the complaint charged that the injury was inflicted unintentionally, without stating the facts on which the statement was based, the pleading would have been good; but insist that the facts set out do not show the want of intention. Granting, as counsel claim, that the inference pleaded of a want of intention adds no strength to the pleading, yet the general averment remains that the infliction of the injury was unintentional. The rule for which counsel contend, that "every drunken man intends to do the thing he does at the time he performs it," is not supported by the authorities. While drunkenness is no excuse for crime, the law recognizes, both in civil and criminal proceedings, that one may become so intoxicated as to be incapable of having an intention. Aszman v. State, 123 Ind. 347, 24 N. E. 123 (see authorities collected in footnotes to this case in 8 L. R. A. 34); People v. Harris, 29 Cal. 678; People v. Eastwood, 14 N. Y. 562. The complaint is sufficient. In support of the second specification of error it is claimed that there is no finding |