ter v. Bradley, 163 Ind. 311, 316, 71 N. E. 903; In re Grotrian's Estate, 30 Misc. Rep. 23, 62 N. Y. Supp. 996; Stevens v. Flower, 46 N. J. Eq. 340, 19 Atl. 777. We therefore conclude that appellant is the owner in fee simple of the real estate described in her complaint, and that the same is not charged with the payment of any part of the legacies provided in items 2 and 3 of the will by which she obtains her title. We therefore hold that the court erred in sustaining the demurrer of appellees to appellant's complaint.

cific descriptions of the real estate, is held | rall, 33 Ind. App. 49, 55, 68 N. E. 699; Coulonly to indicate the. location and extent of the testator's real estate owned by him at the time the will was executed, and is not a limitation upon the preceding devise. The will speaks from the death of the testator, and he is presumed to make his will with reference thereto, unless the provisions indicate a limitation upon the property devised by the general grant. Durboraw v. Durboraw, 67 Kan. 139, 72 Pac. 566; Luers v. Luers, 145 Iowa, 600, 124 N. W. 603, 139 Am. St. Rep. 453; 40 Cyc. pages 1556-1568; In re Smith, 6 Ontario, 390; In re Foote, 39 Mass. (22 Pick.) 299-302; Mueller v. Buenger, 184 The judgment is reversed, with instrucMo. 458, 83 S. W. 458, 67 L. R. A. 648, 105 tions to the lower court to overrule the deAm. St. Rep. 541-553; Brown v. Hamilton, murrers, and for further proceedings not 135 N. C. 10, 47 S. E. 128, 102 Am. St. Rep. | inconsistent with this opinion. 526; Teel v. Hilton, 21 R. I. 227-230; In re Russel, 30 Weekly Rep. 454, 51 Law Journal, 401; Mills v. Mills, 58 Eng. Rep. 868; Miles v. Miles, 35 Beran's Rep. 191; Saxton v. Saxton, 45 Law Journal (Chancery) 128; Williams v. Brice, 10 Pa. Dist. R. 721; 1 Jarman on Wills (6th Ed.) pages 638-761; 1 Schouler on Wills, § 486. The phrase "all my real estate" is not limited by the descriptions of real estate which follow it. We therefore hold that all the real estate owned by the testator at the time of his death is devised to appellant by the fourth item of his will.

[7] This being true, we must next determine whether it is charged with payment of the legacies bequeathed by the second and third items of the will. The averments of the complaint show that the testator had ample funds in the form of United States money out of which to pay the legacies when the will was executed, and for the purposes of this decision the demurrer admits the truth of such averments. If there was personal property sufficient to pay the legacies when the will was executed, its subsequent loss or investment in real estate will not

warrant the presumption that the testator intended to charge the land with the payment of such legacies. There is nothing in the will or the facts averred in the complaint, with reference to the conditions and circumstances at the time the will was executed, which warrants the inference that the testator intended to make the legacies a charge upon his real estate.

Unless it is shown by express provisions of the will, or by necessary implication from its provisions, that the testator intended to charge his real estate with payment of such legacies, the general rule applies, which is that legacies not otherwise provided for are payable out of the personal estate of the decedent. Duncan v. Wallace, 114 Ind. 169, 171, 172, 16 N. E. 137; American Cannel

Coal Co. v. Clemens, 132 Ind. 163, 165, 167, 31 N. E. 786; Davidson v. Coon, 125 Ind. 497, 499, 25 N. E. 601, 9 L. R. A. 584; Lindsey v. Lindsey, 45 Ind. 552, 562: Clark v. Wor

CALDWELL, C. J., and MORAN, Mc-
NUTT, and HOTTEL, JJ., concur.
IBACH, J., dissents.

(62 Ind. App. 55)
AULT v. CLARK et al. (No. 9351.)
(Appellate Court of Indiana, Division No. 1.
May 17, 1916.)

1. APPEAL AND ERROR 301-PRESENTATION
OF GROUND OF REVIEW-MOTION FOR NEW
TRIAL-DIRECTION OF VERDICT-PEREMPTO-
BY INSTRUCTION.

The action of the trial court in giving a peremptory instruction for appellee is not ground for independent assignment of error, but is signed as one of the grounds of motion for new properly presented by appellant by being astrial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. 301.]

2. QUIETING TITLE 47 (1)-DIRECTING VER

For other cases see same topic and KEY-NUMBER in all key-Numbered Digests and Indexes

6. EVIDENCE 461(3)-PAROL EVIDENCE- but only questions the effect intended to be givDESCRIPTION IN DEED. en to its express words.

Where two conflicting or contradictory descriptions of the same tract or parcel of real estate appear in a deed, or where the description is vague and obscure, uncertain and indefinite, resort may be had to extrinsic facts or oral evidence to aid in ascertaining, if possible, the intent of the parties.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2131; Dec. Dig. ~461(3).] 7. EVIDENCE 461(3)-PAROL EVIDENCEDESCRIPTION IN DEED.

Where the description in a deed is not ambiguous, but certain and complete, there is no occasion to resort to extrinsic evidence to ascertain the intent of the parties as to the land intended to be conveyed, and in the absence of an issue tendered directly attacking such description, making a correction or reformation thereof proper and material, resort to extraneous evidence is not proper.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2131; Dec. Dig. 461 (3).]

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1449-1455; Dec. Dig. 349(2).

For other definitions, see Words and Phrases, First and Second Series, Collateral Attack.] 13. APPEAL AND ERROR 854(5)-REVIEW

REASON FOR DECISION.

If the evidence in a case warrants the court in peremptorily instructing the jury to return a verdict for appellees, it is not necessary that the court give a correct reason, or any reason, for its action.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3417-3419; Dec. Dig. 854(5).]

Appeal from Circuit Court, Lake County; W. C. McMahan, Judge.

Action by John A. Ault against Edith Clark and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Otto J. Bruce and W. Vincent Youkey, both

8. CONTRACTS 147(2)-CONSTRUCTION-IN- of Crown Point, for appellant. Schuyler C. TENTION OF PARTIES.

Where a writing is unambiguous, it should be so interpreted as to carry into effect the intention of the parties expressed by the language employed.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 730; Dec. Dig. 147(2).] 9. EVIDENCE 461(2)--PAROL EVIDENCEJUDICIAL DEEDS.

Dwyer and J. Will Belshaw, both of Lowell, and Bomberger, Curtis, Starr & Peters, of Gary, for appellees.

HOTTEL, J. Appellee has filed a motion to dismiss this appeal. Our examination of this motion and the record convinces us that the case may be affirmed on its merits, and that a consideration of such motion is not important or necessary.

The complaint herein is in two paragraphs. In the first paragraph, which is in the usual short form to quiet title, appellant seeks to quiet title to the following real estate in Lake county, Ind., viz.:

Rules allowing extrinsic evidence to aid in determining the intent of parties as to land to be conveyed by an ambiguous deed have no application to a conveyance made pursuant to judicial order or decree, but such determination must be made from the terms of. the deed itself. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2130; Dec. Dig. 461(2).] 10. DEEDS 114(5)-CONSTRUCTION-PARTIC"A part of the east half of the southwest quarULAR DESCRIPTION-SPECIFIC QUANTITY DE-ter of section twenty-three (23), township thirtySCRIBED AS PART OF LARGE TRACT. three (33) north, range nine (9) west of the second principal meridian, and more particularly described as commencing at a point in the center of the county road (now street) one hundred ninety-eight (198) feet west of the northwest corner of lot 1 in Clark's addition to the town of Lowell, in said county and state; thence south eighty-nine and three-fourths feet (894); thence west to the creek; thence northerly along the creek to the center of the said county road (now street); thence east along the center of the said county road (now street) to the place of beginning."

A description of land as "11 acres off of the south part of the southeast quarter of the southwest quarter" of a section, means 11 acres extending across the entire south end of the east half of the quarter section, or a strip of land 22 rods wide extending entirely across the south end of that 80.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 329, 388; Dec. Dig. 114(5).] 11. QUIETING TITLE 47 (1)-DIRECTION OF VERDICT FOR DEFENDANT - INSUFFICIENT COMPLAINT.

In a suit to quiet title, with no averments in the complaint of mistake in description, a peremptory instruction for defendant is proper, where plaintiff's title as disclosed by deeds set forth in the complaint does not cover the land sued for, or where the description in such deeds of the land conveyed thereby is so indefinite and uncertain that the land attempted to be described could not be located by a surveyor.

[Ed. Note. For other cases, see Quieting Title, Cent. Dig. §§ 95, 96; Dec. Dig. 47(1).] 12. EXECUTORS AND ADMINISTRATORS 349(2)-ORDER OF SALE "COLLATERAL ATTACK."

In a suit to quiet title, where plaintiff claims title under an administratrix's deed authorized by a court. defendant's claim that the title described in the deed does not cover the land sued for is not a "collateral attack" on the court's order, as it does not attack its validity,

The second paragraph seeks to recover possession of the same real estate, and alleges that defendants (appellees) now hold possession thereof without right, to appellant's damage in the sum of $100.

There was a trial by jury, and at the close of the evidence the court peremptorily instructed the jury as follows:

"Gentlemen of the jury, this has resolved itself into a law question. The court is required to construe a description in a deed which described the land conveyed as being 11 acres off the south end of the east half of the southwest quarter of the section. The court construes that as a matter of law to mean 11 acres extending across the entire south side of it, or a strip of land 22 rods wide, extending entirely across the south end of the 80. The evidence in this case discloses and shows that no part of the land described in this complaint falls with

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in that eleven acres described in that deed. That being true the plaintiff has shown no title in himself. Therefore your verdict must be for the defendants." (Our italics.)

Pursuant to this instruction a verdict was

returned in appellees' favor. A motion for new trial filed by appellant was overruled, and judgment was rendered on the verdict. Proper exceptions were saved by appellant to the action of the court in giving said instruction, and to the ruling on his motion for new trial, and each of said rulings is assigned as error in this court and relied on for

reversal.

[1] The action of the trial court in giving such instruction is not ground for independ

cover any part of the lands described in his complaint; but appellant asserts in effect that by verbal testimony he has identified

the lands, viz., that he showed that the description contained in the deed to Foote in fact described 11.16 acres, and that such tract was the only tract of land in section 23, township 33 north, range 9 west, ever owned by Foote.

[2] Upon this evidence it is insisted by appellant that he has shown a complete record title, or at least made a prima facie case, which entitled him to have the question of his title submitted to the jury. Of course,

if there was any proper evidence from which ent assignment of error, but is properly pre- the jury might have reasonably inferred that sented by being assigned as one of the appellant was the owner of the land describgrounds of the motion for a new trial. White ed in his complaint, the instruction was imv. State ex rel. (Sup.) 109 N. E. 905, 907, and proper, as the right to direct a verdict in cases cited. While the other grounds of such such a case "can only be upheld where it motion challenge the verdict as not being sus-sufficient to establish one or more facts escan be said that the evidence was clearly intained by sufficient evidence and as being contrary to law, a disposition of the question sential to plaintiff's cause of action." West presented by the action of the trial court in V. National Casualty Company, 112 N. E. 115, and cases cited; Barker v. Chicago, etc., R. giving said instruction will in effect dispose of the appeal. To show title to the land de- Co., 51 Ind. App. 669, 671, 99 N. E. 135; Sullivan v. Indianapolis, etc., R. Co., 55 Ind. scribed in his complaint appellant offered in evidence a patent from the United States App. 407, 414, 103 N. E. 860. In support of his contention appellant relies on certain and numerous consecutive conveyances, rules applicable in proper cases to the conthrough which, as claimed by appellant, title struction and interpretation of deeds, which to said real estate was finally conveyed to Nathaniel H. Foote on August 21, 1862. Ap-may be stated as follows and are supported pellant then offered certain record evidence showing the death of Nathaniel H. Foote, the appointment of his widow as administratrix of his estate, the filing of a petition by her to sell certain described lands of decedent to pay his debts, an order authorizing the sale of such lands, the sale thereof, the report of sale, the approval thereof, and the deed made thereunder. Among other lands, set out by such administratrix in her petition

as lands owned by decedent and sought to be
sold to pay his debts, was the following:
"The undivided two-thirds of 11 acres of land
off of the south part of the southeast quarter
of the southwest quarter of section twenty-three
(23), town thirty-three (33) north, of range nine
(9) west."

This same description appears throughout such proceedings, including the report of sale and the deed made by such administratrix. Appellant then offered the quitclaim deed of the widow of said decedent for her undivided one-third of the same lands sold by her as administratrix, and in her deed appears the same description above indicated. The deeds of said administratrix and widow of Nathaniel H. Foote to Nichols, dated May 2 and May 5, 1864, respectively, constituted a necessary link in the chain of title upon which appellant relies as proof of his title to the lands described in his complaint, and it is conceded by both him and appellees that it was to these deeds that the trial court referred in its peremptory instruction, supra. It is also in effect conceded by appellant that the description in said deeds does not in fact

by the authorities cited after each.

deed of conveyance to identify the land intended to be conveyed, but to furnish the 73 Ind. 396; Scheible v. Slagle, 89 Ind. 323;

[3] It is not the office of a description in a

means of identification. Rucker v. Steelman,

Hannon v. Hilliard, 101 Ind. 310; Trentman v. Neff, 124 Ind. 503, 24 N. E. 895; Collins v. Dressler, 133 Ind. 290, 32 N. E. 883; Edens v. Miller, 147 Ind. 208, 46 N. E. 526;

Elsea v. Adkins, 164 Ind. 580, 74 N. E. 242, 108 Am. St. Rep. 320; Warner v. Marshall, 166 Ind. 88, 107, 75 N. E. 582.

[4] The rule as to construction of the description of premises in a deed is very liberal, to the end that "the intent of the parties, if it can by any possibility be gathered from the language employed, will be effectuated." Key v. Ostrander, 29 Ind. 1, 6; Hannon v. Hilliard, 101 Ind. 310; Roehl v. Haumesser, 114 Ind. 311, 15 N. E. 345; Peck v. Mallams, 10 N. Y. 509, 532.

[5] Extraneous and parol evidence is competent to apply the terms of a deed to the subject-matter. Warner v. Marshall, supra, and cases cited.

[6] Where two conflicting or contradictory descriptions of the same tract or parcel of real estate appear in a deed, or where the description is vague and obscure or uncertain and indefinite, resort may be had to extrinsic facts or oral evidence to aid in ascertaining, if possible, the intent of the parties. Hornet v. Dumbeck, 39 Ind. App. 482, 78 N. E. 691.

[7] There can be no doubt about the cor

the peremptory instruction "was inaccurate defendant appeals. and incorrect in point of fact." The questions.

tion suggested is not material, if our conclu- Sheehan & Lyddick, of Gary, for appelsion, supra, on the main proposition, is cor- lant. Robert M. Davis, of Gary, for appellee. rect. If the evidence warranted the court in peremptorily instructing the jury to return a verdict for appellees, it was not material whether it gave a correct reason for so doing. Indeed, it was not necessary that it give any reason therefor.

We find no error in the record, and the for the first time in this court. The suit was judginent below is therefore affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes