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Allen v. McGee.

son, it was held to be a trust in the widow, the income of one-half for her own benefit and of the other half for the support of her son.” 1 Perry on Trusts, (5th ed.) $117.

A mere declaration of motive, as a grant to A that he may

maintain his children, will not create a trust (Bryan v. Howland, 98 Ill. 625); but in the case at bar the statement of the will is that the devise to the testatrix's sons and their wives is "for the use, benefit and support of said legatees and their children."

In the case of Loring v. Loring, 100 Mass. 340, we find the following language: "To give property to one person, for the purpose of another, is certainly sufficient to show that a trust is intended in favor of the latter. The language is not 'to enable her to support or 'that she may support the son, but ‘for her benefit and support and support of my son.' We also find in the case last cited the following reasoning that is applicable here: "Nor is the support confined to the son's minority, while he would remain under his mother's care. It is unlimited as to time in relation to him as much as to her."

It is our conclusion that a trust was intended by the testatrix, but it remains to determine whether the trust is so far practicable as to be capable of being enforced. A trust will not be executed if the precise nature of it, and the particular persons who are to take as cestuis que trust, and the proportions in which they are to take, cannot be ascertained. 1 Perry on Trusts $116. We perceive no serious difficulty on this account. We think that the interest of the testatrix's grandchildren is not limited to a mere right of support, but is an actual jus in re. In our opinion, each grandchild was entitled under the will to at least a share equal to that that either of his parents would take by virtue of the devise. As to whether the parents each take a share, or whether they together take one share, we do not determine. If other children are born to the parents of a particular branch, the estate will open up to let in such new born children. See,

Allen v. McGee.

as relating to one or more of these propositions, Loring v. Loring, supra; McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015. Whether, as a child becomes of age, the trust becomes a dry trust as to him, that the statute will execute, is a question that we suggest, but do not determine. See $3403 Burns 1901, $2981 Horner 1901. Our conclusion is that this is not a case where the effort to create a trust works its own destruction, by vesting an uncontrollable discretion in the trustee, but that it is a case where the court can determine the rights of the beneficiaries, and set bounds upon the authority of the trustees.

Counsel for appellant contend that we should look to the four corners of the will for its meaning, and we agree with them that it is the court's duty to examine the whole instrument. After doing so, however, we have reached the conclusion indicated above. The construction that the court puts upon the will makes it a consistent whole. The plan of the testatrix, relative to her real estate, was to vest a one-third interest in each son and his wife, to hold “for the use, bene fit, and support of” said husband and wife and their children. To accomplish partition, she gave her trustees power to divide the real estate, and she further provided that the divided real estate should be held by each husband and wife, in trust, nevertheless, as indicated, as tenants by entireties. We can conceive of no objection to this construction, when looked at from the standpoint as to whether we have ascertained the testatrix's desire. It might be urged that a husband and wife could not be trustees for themselves, but, while this is true, the only result would be that as to their interests they would hold the united legal and equitable estates. We have found a number of cases of this kind in the books, where the feature of the trust that related to a child or children was enforced. See notes to 1 Perry on Trusts, $117, supra. On the other hand, to adopt the construction contended for by appellant's counsel would require the court absolutely to discard the words "for the use,

Board, etc., v. Gibson.

benefit and support of said legatees and their children.” We perceive no reason for so doing.

The grandchildren of the testatrix, who answered by guardian ad litem, had an equitable interest in the land, and therefore the trial court properly found against appellant on his complaint to quiet title.

The judgment of the trial court is affirmed.

THE BOARD OF COMMISSIONERS OF FULTON

COUNTY v. GIBSON.

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471

(No. 19,459. Filed May 14, 1902.) APPEAL AND ERROR.—Motions.Record.—A motion to make a com

plaint more specific is not a part of the record on appeal by order of court without a bill of exceptions, where it does not appear that the order of court was made on the motion of either party, and the motion was not spread on the order book as a part of the

court's order. pp. 477, 478. COUNTIES.Contracts. —Notice.-Ultra Vires.—Where in the course of

158 168

the construction of a court-house an unforeseen emergency con-
fronted the board of commissioners, necessitating the construction
of a subbasement, not provided for in the original contract, a
contract entered into for the construction thereof is not ultra vires
because of the failure of the board to comply with 984243, 4244

R. S. 1881. pp. 478–480.
ASSUMPSIT.-Special Contract.Counties.-A complaint in general as-

sumpsit against a county for extra work in the construction of a
court-house is not bad because it discloses that there was a special
contract therefor, especially where the alleged special contract

merely fixed the maximum price. pp. 480–484. COUNTIES.—Contract for Construction of Court-House. Action for Bill of Extras.-

Pleading.–Where a complaint to recover for extra work and material in the construction of a court-house alleged that the work and material had been furnished in addition to what the contract required, and, that subsequent to the execution of the original contract, the board of commissioners had directed plaintiff to do such additional work and furnish such additional material, “at such reasonable and just expense as the performance of the work in a proper manner, both as to work and material used, would call for," an answer merely alleging the execution of the original contract between the parties, and making a copy of it an exhibit, does not state facts sufficient to bar the action. pp. 484, 485.

Board, etc., v. Gibson.

CONTRACTS.—Construction by Parties.—Where in a suit growing out

of the building of a court-house for extras in the construction of a subbasement thereunder there is some doubt and uncertainty as to whether the extra work, or a part thereof, was included in the original contract, the construction placed upon the contract by the parties themselves is entitled to great weight by the court in in.

terpreting the contract. p. 485. COUNTIES. — Action for Bill of Extras in Construction of Court-House.Market Value.

Where the contract for the construction of a courthouse provided that the amount to be paid for extras should be based upon the same prices at which the contract was taken and agreed upon before commencing the additional work, and there was no agreement as to the amount that should be paid for extras, except that a maximum amount was fixed, and the contract was let for the entire building at an aggregate price, it was not error, in an action to recover for extras, to admit in evidence the market

value of the extra material and labor furnished. pp. 485–487. SAME.—Construction of Court-House. --Action for Extra Work.—Assump

sit.—The failure of a building contractor to procure the certificate of the architect as to the value of extra work, as required by the contract, cannot affect his right of recovery for extras in an action

in assumpsit. p. 487. CONTRACTS. — Construction. Counties. Arbitration by One Party. -A

provision in a contract for the construction of a court-house that if any dispute shall arise as to the true construction of the con. tract, or as to what is extra work, the matter shall be determined by the architect and the board, and their decision shall be final and conclusive, is invalid, since the law will not permit a party making a contract to provide that he shall arbitrate his own

cause, and that his decision shall be final. pp. 487, 488. ASSUMPSIT.-Extra Work in Constructing Court-House. --An action in

assumpsit for extra labor performed and material furnished in the construction of a court-house will not be defeated because of the alleged informality of the board meeting at which such matters were agreed to, where the individual members of the board actively engaged in superintending the work. p. 488. TRIAL. —Evidence.Objection.Offer to Prove. --Available error cannot be predicated upon the action of the court in excluding offered testimony, where the offer to prove was not made until after the

court had ruled on the objection to the question. p. 488. APPEAL AND ERROR.-Instructions.

Record.—Where the instructions are brought into the record by marginal notations under $544 Burns 1901, without a bill of exceptions, an order book entry, set out in the transcript, showing that both parties requested the court to instruct the jury in writing, and that “the court there. apon instructs the said jury, which said instructions of the court are in writing, and are filed herein, and are in these words, to

Board, etc., v. Gibson.

wit," followed by the instructions, does not sufficiently show that

all of the instructions given are in the record. pp. 489, 490. APPEAL AND ERROR.-Instructions.- When Not All in Record.—A cause

will not be reversed because of the alleged error of the court in giving instructions and refusing certain instructions tendered, where it is not affirmatively shown that all of the instructions given are in the record. p. 490. From Kosciusko Circuit Court; H. S. Biggs, Judge.

Action by Jordan E. Gibson against the board of commissioners of Fulton county for extra work performed and material furnished in the construction of a courthouse. From a judgment for plaintiff, defendant appeals. Affirmed.

G. W. Holman, R. C. Stephenson, E. Myers and J. D. Widaman, for appellant.

L. W. Royse, B. Shane, I. Conner, J. Rowley, W. C. Bailey and C. A. Cole, for appellee.

GILLETT, J.—The complaint in this action is in two paragraphs, both declaring on the quantum meruit, for extra work done and extra material furnished in and about the construction of a subbasement to a court-house, which said appellant caused to be built at Rochester, Indiana, for the county of Fulton. While this is the first appeal of this particular action, yet the subject matter of the controversy here involved has been twice before this court. See Myers v. Gibson, 147 Ind. 452; Myers v. Gibson, 152 Ind. 500. The appellant, after taking the various preliminary steps required by statute for the building of a court-house, awarded a contract therefor to appellee at and for the price of $76,073. The appellee sought by this action to recover the additional sum of $19,996.42. He recovered a judgment below in the sum of $11,595.81, and from said judgment the appellant prosecutes this appeal.

According to the testimony of the appellee, after the execution of the original contract, and after he had torn down the old court-house, the board of commissioners and the architect proceeded to locate the new building, and fixed a

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