The correctness of each of these conclusions of law is challenged by appellants.

securing said William as surety on said, William Pape, deceased, to wit, Estella Pape, notes. Said Charles well knew at the time Roy Pape, Carl Pape, Clarence Pape, and of the assignment so written by him that Gladys Pape, are entitled to a judgment for said policy was not assignable, and well costs against the defendants Charles G. Pape, knew that said William could not read or Albert O. Pape, Walter Pape, Edward A. write English and that William and C. re- Pape, and Edna Helen Shober. lied on him (Charles) to select the policies that were assignable, and William, relying | upon the conduct of Charles, and induced by his conduct as to this policy, before set out, became surety upon the renewals of said notes for said C. and said mill company to the extent above referred to, and he did so believing that C. had the right to assign the same, and having no notice or knowledge that Charles G. had or claimed any right intention is based on appellants' construction said policy.

By reason of becoming surety on said notes. William has been compelled to pay for said C., and for said company, $8,953.31, and is now obligated to pay between $10,000 and $12,000, and there are no assets of the estates of said C. or said company from which he can be reimbursed.

[1] It is contended that the court erred in its third and fourth conclusions of law and in each thereof because the application and policy set out in the finding of facts show that the only persons entitled to participate in the proceeds of the policy are the five children of C. by his second marriage. This con

of the words "their children" in the policy.

In the case of Lehman v. Lehman (1906) 215 Pa. 344, 64 Atl. 598, a widower with six children married a widow with one child and had by her two children. After this marriage he took out a policy of insurance upon his life, whereby the insurer promised to pay the amount of the policy to his wife, "in

The conclusions of law stated by the court trust for herself and their children, in equal are, in substance, as follows:

(1) That said William Pape has an interest in said policy to the amount of the premiums advanced by him on said policy, viz. $154.29; and said William has, in addition thereto, the interest of the defendant Charles G. Pape, the same being one-tenth of said $3,049, and one-tenth of the accrued interest thereon.

(2) That said Charles Pape is estopped by his conduct to claim any interest in said policy, and should have and recover nothing herein, and judgment should be against him for costs on his cross-complaint.

(3) That Albert O. Pape, Edward A. Pape, Walter O. Pape, Edna Helen Shober, Louise Isreal, Henry Pape, Emilie Pape, and Sophia

Buuck are entitled to and should receive each one-tenth; that the children of William Pape, deceased, the son of the assured, to wit, Estella Pape, Roy Pape, Carl Pape, Clarence Pape, and Gladys Pape are entitled to and should receive each one-fiftieth of the proceeds of said policy of insurance and the accrued interest thereon in the hands of * * * trustee : that the said

trustee be ordered and directed to pay said money and the interest earned thereon as follows, to wit: To the plaintiff, William Pape, one-tenth; to Albert O. Pape, onetenth; to Edward A. Pape, one-tenth; to Walter O. Pape, one-tenth; to Edna Helen Shober, one-tenth; to Louise Isreal, onetenth; to Henry Pape, one-tenth; to Emilie Pape, one-tenth; to Sophia Buuck, one-tenth; to Estella Pape, one-fiftieth; to Roy Pape, one-fiftieth; to Carl Pape, one-fiftieth; to Clarence Pape, one-fiftieth; and to Gladys Pape, one-fiftieth.

(4) That the plaintiff William Pape and the defendants Louise Isreal, Henry Pape, Emilie Pape, Sophia Buuck, and the heirs of

shares." The question arose whether his children by the first marriage were entitled to participate in the insurance. The Supreme Court of Pennsylvania affirmed a judgment in favor of said children upon an opinion in which it was said, on pages 349, 350, and 351 of 215 Pa., page 599 of 64 Atl.:

"There is nothing in the context to aid the appellant's construction of the words 'their children' in the beneficiary clause of the insurance policy. Nor are any circumstances shown which it may be inferred would have been likely to influence the insured to prefer one set of his children over the other. The suggestion that naturally he would be concerned especially for the children of his second wife because they were younger would not be without force if there were any evidence that at the time he took the policy the children by his first wife were not dependent members of his household or that all of them had reached an age when it might be presumed they were self-supporting But the record conor soon would become so. tains no evidence of that kind, and there is no ground for surmise even that there was such a difference between the ages of his youngest children by his first wife and the age of his oldest child by his second wife as would naturally incline him to discriminate in favor of the latter. There is also a total absence of evidence that at the time the policy was issued the children of his first wife owned any property in their own right or that the insured had made or had the ability to make any other provision for them. * * In short, there is nothing in the context, or in the circumstances under which the policy was taken, or in the subsequent conduct of the insured to aid the appellant's contention that the insured intended to exclude his children by his first wife. It must be sustained, if at all, because that is the absolute meaning of the words used in the beneficiary clause. But the words 'their children' may be used in one connection to designate the children having a common parentage on both sides and in another connection to designate the children of the husband and the children of the wife spoken of. Neither law nor common usage has affixed such unvarying meaning to the word latter purpose. 'their' as to prevent its appropriate use for the In determining the sense in which they were used in a contract or in a will

*

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regard must be had to the subject-matter. event of her predeceasing him, for her chil* Here the insured, in making a pro- dren, he could have done so by using the first vision to take effect upon his death for those dependent upon him, used words which, without phrase suggested by the very question that he violence to the sense in which they are commonwas answering, viz. “her children." Instead, ly used, may be construed to include all those he used words reasonably susceptible of a coming equally within the reason of the provi- construction broad enough to include all his sion, and there is nothing in the context or in the extraneous circumstances from which the children of both marriages, and the compaintention to exclude any may be safely inferred. rative ages of the two sets of children being He must have known that his words were sus- such as to bring both sets equally within the ceptible of this construction, and therefore it reason for the provision of insurance, and, may be safely assumed that if he had intended to restrict the benefits of his provision to his no reason appearing why he should make any children by his second wife he would have been distinction between the children of the two careful not to choose words that were easily sus- wives, it may be safely assumed that had he ceptible of a broader construction." intended to restrict said provision to his children by the second marriage he would not, under the circumstances, have used words so easily susceptible of a broader construction. See, also, Stigler's Ex'x, etc., v. Stigler et al., 77 Va. 163; State Life Ins. Co. v. Redman, 91 Mo. App. 49. Also an unreported New York case discussed in Bliss on Life Ins. (2d Ed.) § 345.

We think that these remarks are applicable to the case at bar. It can hardly be contended that the words "their children" have any such fixed meaning that they could not be construed to mean the children of the husband and the children of the wife, rather than the children having a common parentage only, nor do the facts found by the court necessitate such a construction. From the findings it appears that when the insured applied for the policy in suit his oldest child by his first marriage was a female about 20

years of age, and his youngest child by that marriage was about 7 years old, and that he then had two children by his second marriage who were respectively 2 and 4 years old. It is not likely, in view of their ages, that he would have preferred the children of the second over those of his first marriage.

It is contended, however, that said conclusions of law are erroneous even if said children of said first marriage are entitled to participate in the insurance, in that said conliam Pape, the deceased son of C., to participate therein, to the extent of the interest which said William would have had, if he had survived the insured. Apparently, this question has never been decided in this state.

clusions would allow the heirs of said Wil

the policy, said William took an interest therein contingent upon both his and C.'s surviving Caroline. This contingent interest of William would have terminated had he predeceased Caroline, the primary beneficiary, in which case his heirs would have had no interest in the insurance. Burnett v. Mutual Life Ins. Co., 114 N. E. 232, 235.

[3] The policy in suit contained no proviCaroline sion for a change of beneficiary. therefore took a vested interest therein, which terminated upon her predeceasing C. Burnett v. Mutual, etc., Co., supra; Indiana, etc., Ins. Co. v. McGinnis, 180 Ind. 9, 101 N. E. 289, 45 L. R. A. (N. S.) 192.

But appellants urge that the answer to [2] The findings show that C.'s son William question "3. D." in the application set out in survived his mother, Caroline Pape, the prithe finding of facts, supra, show that the in- mary beneficiary, and predeceased C., the insured intended that, should his wife prede-sured. Upon the delivery and acceptance of cease him, only his children by her should participate in the insurance. It is insisted by appellants that if C. had desired the children of both his marriages to participate in the insurance he would have adopted that form of answer indicated in the question "3. D.," supra, by the words "his children." But if he could aptly have designated all his children by both marriages by the phrase "his children," so, too, under the circumstances, could hẹ aptly have designated the children of the last marriage by the phrase "her children." Had the insured used the phrase contained in said question, "the children of the two," appellants' contention would present a more serious question. The fact that he did not [4] Upon Caroline's death, the children of use this phraseology where it was desired to C. who survived her, including said William make the children of the common parentage Pape, took vested interests in said policy, and only the beneficiaries, but used instead the upon William's subsequent death his heirs more comprehensive words "their children," succeeded to his interest, and were entitled, is in our judgment significant. We think it upon the death of the insured, to their disreasonable to assume that his refusal or fail-tributive shares therein. Harley, Adm'r, v. ure to adopt such answer in all probability resulted from the fact that he understood the phrase "the children of the two" to mean only those having a common parentage, and that by the phrase "their children" he intended to designate all his said children as distinguished from those of the second marriage only.

As before stated, had he intended to provide first for his wife, and then, in the

Heist, 86 Ind. 196, 44 Am. Rep. 285; Lerch v. Freutel, 36 Misc. Rep. 581, 73 N. Y. Supp. 1078; Walsh v. Mutual, etc., Ins. Co., 133 N. Y. 408, 31 N. E. 228, 28 Am. St. Rep. 651; U. S. Trust Co. v. Mutual Benefit, etc., Ins. Co., 115 N. Y. 152, 21 N. E. 1025; Millard v. Brayton, 177 Mass. 533, 59 N. E. 436, 52 L. R. A. 117, 83 Am. St. Kep. 294; Michigan, etc., Ins. Co. v. Basler, 140 Mich. 233, 103 N. W. 596;

Smith v. Ætna, etc., Ins. Co., 68 N. H. 405, 44 Atl. 531; Mutual Life Ins. Co. v. Spohn, 170 Ky. 721, 196 S. W. 633.

For the reasons indicated, we think that the conclusions of law are not open to the objections indicated.

[5] Appellants say that the first and second conclusions of law, that Charles G. Pape should be estopped to claim any interest in said policy of insurance, are erroneous because there are no findings that Charles G. Pape's conduct contained any of the elements of fraud. We think this contention is based

on an erroneous conception of the nature of the estoppel sought to be asserted. The findings show that Charles G. Pape was the manager of said Ft. Wayne Windmill Co., and that said William Pape was willing to in

sought to be estopped. It is enough if when he asserts his claim it would be inequitable and unjust to allow it to prevail against the purchaser. The falsehood and moral wrong which the law denominates fraud appears when the claim is asserted. And this is true whether a party knowingly remains silent or so negligently conducts himself with reference to his rights as to mislead another. Duckwall v. Kisner, 136 Ind. 99 [35 N. E. 697]; Anderson v. Hubble, 93 Ind. 570 [47 Am. Rep. 394]; Fletcher v. Holmes, 25 Ind. 458; Gatling v. Rodman, 6 Ind. 289." (Italics inserted.)

The findings in the case at bar show that Charles G. Pape did more than merely “stand by" and fail to assert his rights in said policy. They show that he produced said policy as one which could be assigned, and wrote the memorandum of assignment. By this conduct he helped to create the situation which placed upon him the duty to assert

his rights.

dorse the renewal notes of C. and of said company upon the condition that the policies Appellants say that there is no finding of of insurance upon the life of said C. be asa misrepresentation of existing facts by said signed to him; that William was ignorant Charles, but merely an expression of opinof the fact that the policy in suit was not asion as to his rights, which does not create signable, and that C.'s son Charles had any an estoppel. See McGirr v. Sill, 60 Ind. 249; rights therein; that William relied on Charles Ross v. Banta, 140 Ind. 120, 34 N. E. 865, to select policies that were assignable; that 39 N. E. 732; Mitchell v. Fisher, 94 Ind. 108. Charles knew these facts and knew his rights In answer to this, it may be said that the in said policy, and so knowing produced this findings do not show that said Charles exand two other policies as policies that could be assigned, and drafted a written assignment made any positive representations concernpressed any opinion whatever, or that he thereof, and, without disclosing to William the fact that said policy was not assignable, do show that he was cognizant of and asing the policy, but, as before indicated, they and that he (Charles) had rights therein, per-sisted in the consummation of the transfer mitted William to accept the assignment of and assignment of a policy of insurance in the same in consideration of his indorsing said notes; that William was induced by said conduct of Charles to become surety upon said notes, and by reason thereof had been compelled to pay $8,953.31, and was obligated

to pay in addition $10,000 or more.

Because Charles was silent as to his rights in said policy when the assignment was made, he should now be estopped to assert those

rights. In the case of Kiefer et al. V. Klinsick, 144 Ind. 46, 54, 55, 42 N. E. 447, 450, it is said:

which he now asserts an interest; that he knew that such assignment and transfer was being made by his father, the assignor, to induce his father's brother to sign as surety the father's notes; that he then knew

that such policy was not assignable and that that he had an interest in said policy; and his father and uncle could not read or write English, and that they trusted and relied on his father as were assignable" and to inform him "to select such policies on the life of them of the nature of said policies. Appellant Charles, under the circumstances indicated, having remained silent as to his known interest in said policy, at the time of said assignment, to permit him now to assert and obtain an interest in said policy against the claim of his uncle would operate as a fraud on the uncle, which the law will not permit.

"He who by his language or conduct leads another to do what he would not otherwise have done will not be permitted to subject such person to loss or injury by disappointing the expectations upon which he acted. A change of position by the first party would involve both fraud and falsehood, and the law abhors both. The principles of estoppel in pais have been applied to a great variety of cases. The doctrine has no application where everything is equally known to both parties, or where the [6] Appellants say also that William Pape party sought to be estopped was ignorant of the facts out of which his rights sprung or was not diligent in learning the nature of where the other party was not influenced by the policy assigned to him. In cases of estopthe acts asserted in estoppel. But if one stand pel by silence it has been held that the perby and see another purchase property without disclosing his interest to the person about to son relying on the silence must not have had purchase, he cannot afterward set up a claim the means of knowing the true state of facts, of which the purchaser had no notice. Nor was as, e. g., by reference to the public records, it necessary that the person sought to be es- and it has been said that in this respect topped be present at the time the sale is consummated. If he have knowledge of the consuch estoppel differs from the class of estop. templated sale and of the fact that the pur- pels resulting from affirmative acts or conchaser is ignorant of his rights it is his duty duct. 10 R. C. L. 694, and note 15. The to disclose his interest to such purchaser. Nor is it necessary that there should exist a design whole course of Charles' conduct, as shown to deceive or defraud on the part of the person by the findings-his producing said policy as

one that could be assigned, his writing the the time this policy "was signed over that we assignment thereof, and his failure to assert couldn't get the money." his rights therein-was more than mere passive silence. It was affirmative conduct, reasonably calculated to mislead William Pape, and he (Charles) should not now be heard to say that William was not diligent because he relied thereon. The findings further show that William was not able to read or write in English, and that the policy was not delivered to him until more than four months after the assignment took place. Under such circumstances it cannot be said that he was not diligent.