we have seen that the full measure of protection was afforded by the statute of descent and distribution, we shall not give these words a construction that will imply that from the time of the death of the testator until that of his wife, an interval of more than 23 years, the fee to this land was suspended, when the theory of our laws respecting real property is that the moment the ancestor dies the fee descends to and is vested in the heirs. That construction that vests the fee in some person must prevail in every case in which the language of the conveyance and the relation of parties to the land will justify it. This rule of construction has become a dogma of the law, and grows out of the abhorrence with which the abeyance of the fee is always and everywhere regarded. Take the cases where lands are devised to heirs, but certain restrictions are placed on alienation as to the time within which they cannot sell, and the weight of modern authority is that such restraints are of no validity. Oxley v. Lane, 35 N. Y. 340; Mandlebaum v. McDonell, 29 Mich. 78; Twitty v. Camp, Phil. Eq. 61.

say so. If this declaration will give the di- "in that event," referring to the death of rection to the transmission of this estate that Nancy, the life-tenant. Neither is it mateit was the intention of the testator to give, rial that "descend" means "vest," because as the rules of construction require us to say so. the controlling desire of the testator was, acThere is a well-settled rule of law that a de-cording to the theory of the plaintiff in error, vise to an heir of the same estate in nature to protect the interest of the absent, and as and quality as that to which he would be entitled by descent is void. In such cases the heir takes by descent, and not as a purchaser. If this rule applies to the present case, then it would follow that the gift over to the heirs at law would fail as a remainder, so that their title would not depend upon the rules governing estates of that nature. This rule is not affected by carving out of the fee a prior particular estate. All that is necessary to the operation of the rule is that when the estate vests in the heirs they shall hold it by the same tenure and in like manner as if the devise had never existed. Hurst v. Earl of Winchelsea, 1 W. Bl. 187; Cros. Wills, 101; 4 Kent, Comm. 507; Ellis v. Page, 7 Cush. 161; Reading v. Royston, 1 Salk. 242; Reading v. Rawsterne, 2 Ld. Raym. 829; 6 Cruise, Dig. tit. 32, c. 8, §§ 9, 10. The rules of construction of the word "heirs" in a will is usually construed to mean those who are such at the time of the testator's death, and that estates created by devise are to be held to be vested, rather than contingent, must give way to the controlling rule of interpretation that the intent of the testator is to govern, if it does not conflict with the rule of law. Richardson v. Wheatland, 7 Metc. 169;| Olney v. Hull, 21 Pick. 314. And, if it be found to conflict, it does not change the rule of construction. The will must fail of effect so far as it violates the rules of law, not because the intent of the testator does not control in its construction, but because the law will not permit his intent to be accomplished. Church v. Grant, 3 Gray, 158; Hall v. Priest, 6 Gray, 22. The title by descent has, in such a case, precedence to the title by devise. The mandate of the law-making power is higher than the will of the individual. In order to have a fixed rule of property, it cannot be permitted that a grantor or testator shall prescribe a different qualification to heirs than the law prescribes, when they take in the character of heirs. Neither can If the construction contended for is adoptthey be permitted to decide what shall be a ed, and we should hold that only such heirs descent or purchase. A man is not permit-of Michael Bunting as were living at the ted by will to antagonize the legislative policy of the state, or to change the nature of property, or to create a perpetuity, or to create an estate commencing in futuro, nor should he be allowed, by the use of loose and conjectural words, to counteract the force and effect of the well-settled and generally-ance. understood meaning of statutory expressions, or suspend the operation of laws, or so obscure the fee to land that the most vigilant creditor, or the collecting attorney with a contingent fee, cannot find it.

From these considerations it is apparent that we cannot give the word "then," as used in this will, the construction desired by the plaintiff in error. It means, as used,

It is true that the fee in such cases is definitely located, and yet all these things demonstrate the policy of the law in favor of the utmost freedom to the owner of the highest interest in lands and tenements. The possibilities of the case as to the death or life of the absent son does not make the remainder contingent. If he is alive at the death of the testator, the presumption is that his mother, being the eldest, would die before he did in the usual course of natural events, and the remainder in his favor might take effect at any time upon the termination of the life-estate. Kemp v. Bradford, 61 Md. 330; McArthur v. Scott, 113 U. S. 349, 5 Sup. Ct. Rep. 652; Weston v. Weston, 125 Mass. 268; Moore v. Lyons, 25. Wend. 144; Com. v. Hackett, 102 Pa. St. 505.

death of Nancy could take the fee, and with it the possession of the estate, the controlling intention of the testator, as alleged in support of such construction, would be defeated, if a child of the absent son, born after the death of the old lady, should now make an appearUnder the construction we give, the rights of the father would descend to and be vested in his heirs at his death. Moore v. Lyons, 25 Wend. 119; Bailey v. Hoppin, 12 R. I. 560; Faber v. Police, 10 S. C. 376; De Lassus v. Gatewood, 71 Mo. 371. This is true in all cases in which a remainder-man is in existence at the time of the vesting. Stonebraker v. Zollickoffer, 52 Md. 154. In case of a gift to a class such as "children" or

"heirs," all of the class need not be in exist- | vise to A. and his heirs, the statute preence in order that the remainder may vest in scribes that A. takes the life-estate, and the any. The remainder may vest in those who remainder is vested in fee in his heirs. We are in existence, subject to open and let in now say that the rule shall be the same in a those who afterwards come within the class. devise to A., with remainder to the heirs of In re Lechmere, L. R. 18 Ch. Div. 524; Far- the testator. Whether some other rule would row v. Farrow, 12 S. C. 168; Stonebraker v. be better is not for us to inquire. The legislaZollickoffer, supra. ture fixed the policy by enacting the law. We The theory of our statutes on conveyances, follow it because it is the law, and it is our descent and distribution, and other subjects, duty to obey it, and because we cannot distinaffecting in any manner the title to real prop-guish the cases and withdraw this one from erty, is that on the death of a person who its operation, and because of the importance dies seised in fee of lands, the fee descends of fixed and uniform regulations respecting and immediately vests in his heirs. Even real property. We hold that the will of equitable interests in real property are sub- Michael Bunting passed to his heirs living at ject to levy and sale. In a word, almost every his decease a fixed right to the future enjoyeffort has been made by the legislature of this ment of the estate at the termination of the state to relieve the title to real property with- life-estate of Nancy; that the father of the in our borders from all perplexing entangie- plaintiff in error was the only legal heir of ments, and to produce a system whose opera- Michael Bunting at the time of Michael's tions are safe and natural, and easily under- death; that, as such, the remainder in fee stood by the ordinary mind. The great body vested in him at the death of the testator; of the lands but a few years ago was owned that he conveyed this interest in his life-time; by the government. Our titles are derived and that the plaintiff in error is not entitled principally from the operation of the home- to recover the possession of the land. stead and pre-emption acts. The process by We are not disposed to disguise the fact which the title is acquired from the govern- that, in holding this to be a vested remainment is prescribed by acts of congress, ex- der, we are not in the current of the adjudipressed in plain language, and unusually free cated cases, for most of them have been govfrom doubtful meaning. These titles have erned by the rules that arose out of that exall been acquired in less than one-third of a cessive refinement respecting estates in recentury, but in that time our people have be- mainder that has been the cause of so much come habituated to the use of a few simple, complaint, but by this ruling we add our plain requirements as to the conveyance of mite to the attempt to simplify the differland and evidences of title, and we do not ences and multiply the cases in favor of vestpropose to engraft on such a system rules of ed remainders. Whether the rule we have construction that will cause that uncertainty now established in this state will make the and doubt about ownership, heirship, and distinction ordinarily plain and easily comcontrol of real property that seems to be gen-prehended, and at the same time operate erated by the hair-splitting warmth of a dis-equitably upon all persons affected thereby, cussion about vested and contingent remain- and harmonize with the general aim and ders. Especially is this so when each state has definite policy of our laws respecting real seemed to have adopted such rules as are best property, time alone can determine. suited to the condition of its people, and when a remainder would be held to be vested in one state, and contingent in another, in cases in which the words used in the conveyance are identical. It accords better with the policy of our state, with the condition of our people, and the simplicity of our titles to hold that in VALENTINE, J., (concurring.) The only all cases, either by deed or devise, where land question involved in this case is, what is the is granted to a person for life, with remainder true construction or interpretation of the to his or her heirs, or to the heirs of the gran- following words, found in the last will and tor or devisor, and at the time the deed or testament of Michael Bunting, deceased? devise takes effect the grantor or devisor has The words are: "Then they are to descend heirs then living, they shall be deemed to take to my legal heirs." The clause of the will a vested remainder in fee in all cases, except in which these words are found reads as folin a conveyance where the intent to create a lows: "Second. I will and bequeath to my remainder contingent on the happening of beloved wife, Nancy Bunting, after all my some future event is plainly expressed. This just debts and liabilities are paid, all the rest ruling is in harmony with the legislative in- of my estate, real and personal, to have and tent, as is expressed by section 52 of the hold them, together with all rights and privchapter on wills, and only applies the rule ileges thereto belonging, during her life-time, therein expressed to govern a devise to the and then they are to descend to my legal grantee and his heirs and the heirs of the heirs." When Michael Bunting died, of grantor. If we do not adopt this view, then course all his interest in his land passed from we permit a different rule of construction him, and the title thereto necessarily went to be applied to the same language, and somewhere else. Vining v. Willis, 40 Kan. like interests, in real property. In a de- 20 Pac. Rep. 232. A life-estate passed

It is recommended that the judgment of the court below be affirmed.

PER CURIAM. It is so ordered; HORTON, C. J., concurring.

to his widow, but where did the remainder | reads as follows: "It is true that in every go? The remainder in fee is still to be ac- case where a consignment or remittance is counted for. The testator says in his will made with orders to pay over the proceeds to that it is "to descend to my legal heirs." a third person the appropriation is not absoWho were intended by the words, "my legal lute; for it amounts to no more than a manheirs?" Did Michael Bunting mean by date from a principal to his agent, which can these words his then living children, who, give no right or interest to a third person in he probably expected, would be alive when the subject of the mandate. It may be rehe died? and his death was expected soon; voked at any time before it is executed, or at or did he mean whomsoever might be his least before any engagement is entered into legal heirs his children, his grandchildren, by the mandatary with the third person to or his collateral relations—at the time of the execute it for his benefit, and it will be redeath of his widow? If he meant the for- voked by any prior disposition of the property mer, then a vested remainder in fee passed inconsistent with such execution; but if no to his living heirs at the time of his death; revocation is made, and the mandate continbut, if he meant the latter, then only a con- ues in full force, the trust of such continues tingent remainder was created; and no one for the benefit of such third person who, could tell at that time where the fee might after his assent thereto notified to the maneventually go. Now, contingent remainders datary, may avail himself of it in equity withare never favored in law; and words are out any reference to the assent or dissent of never construed as creating a contingent re- the mandatary upon such notice, for his remainder if by any fair and reasonable con- ceipt of the property binds him to follow the struction they can be held to create some orders of his principal." We find in volume other interest or estate. The foregoing 3 of Pomeroy's Equity Jurisprudence the words in the will of Michael Bunting, de- rule to be declared as follows: "Although, ceased, can fairly and reasonably be con- whenever a debtor, in the manner above destrued as creating a vested remainder in fee scribed, makes to his creditor an equitable in his legal heirs living at the time of his assignment of a specific fund or debt in the death, and need not necessarily be construed hands of or owing by a third person, the asas creating a contingent remainder, with the sent of such third person is not requisite to estate in fee to go no one could tell where, the effect of the transfer in equity; yet the and therefore they ought to be construed as assignment, appropriation, direction, or order creating a vested remainder. I concur in af- is not absolute, but may be revoked by the firming the judgment of the court below. debtor-assignor at any time before the creditor-assignee has been notified of it, and has expressly or impliedly assented thereto. In such a case, notice to and assent by the creditor-assignee are essential to an absolute assignment." Section 1281. "In all cases, even when the assignee was not a creditor of the assignor, the order must be delivered to the intended payee, or he must be notified of it by the drawer's procurement, in order that it may operate as an equitable assignment. A mere letter, communication, or other mandate to the agent, depositary, or debtor, directing him to pay the fund to a designated person, will not of itself operate as an assignment; but it may be withdrawn or revoked at any time before the arrangement is completed, by information given to the intended payee by or on behalf of the drawer. What shall amount to the present appropriation which constitutes an equitable assignment is a question of intention to be gathered from all the language, construed in the light of the surrounding circumstances. For example, while it is not essential to the existence of an equitable assignment of a fund that the debtor, agent, or depositary should be expressly directed to pay over the money to the assignee, the absence of such a direction may tend to show an intention not to transfer a present interest in the fund, but that the arrangement is wholly executory and prospective." Section 1282.

JOHNSTON, J. I concur in the conclusion reached and in the judgment of affirmance.

(40 Kan. 744)

BROCKMEYER v. WASHINGTON NAT. BANK. (Supreme Court of Kansas. April 5, 1889.)

BANKS AND BANKING-RIGHT TO DEPOSIT. Where a bank delivers to another bank money and securities to pay a creditor, and the account is kept in the name of the depositing bank or its owner absolutely, and not as trustee for the creditor, the bank making the deposit may withdraw it at any time before the creditor has notice of the

transaction.

On motion for rehearing.

A. S. Wilson, for plaintiff in error. Powell, for defendant in error.

Omar

PER CURIAM. The opinion heretofore filed in this case is seriously disputed. 40 Kan. 19 Pac. Rep. 855. It is again claimed that although Brockmeyer had no knowledge or notice of the deposit of moneys, drafts, etc., in the Washington National Bank to pay the liabilities of the German Savings Bank, that Knowles, who was in fact the German Savings Bank, had no authority to withdraw the deposit, or revoke the order given to the Washington National Bank to pay the claims of the German Savings Bank. Notwithstanding the cases cited and referred to, we think the views expressed in our former opinion do not require modification or change. In the former opinion a portion of section 1045, 2 Story, Eq. Jur., was quoted, and section 1046

In support of the rehearing, several cases are cited that an irrevocable trust may be created for the benefit of a third person, with

(8 Mont. 328)

TERRITORY v. WILLARD et al. (Supreme Court of Montana. Jan. 17, 1889.) FORMER JEOPARDY.

Crim. Laws Mont. div. 4, §§ 73, 74, define burglary as the entering any building, etc., with intent convicted under an indictment for larceny has not to commit larceny or any felony. Held, that one been in jeopardy for the crime of burglary, as larceny is the felonious taking of goods with intent to deprive the owner, and to convert them; and as under section 188, Crim. Laws, div 4, forbidding an indictment to charge more than one offense, he could not have been convicted in the former case of burglary.1

Appeal from district court, Silver Bow county.

Henry Willard and others being indicted for burglary pleaded former jeopardy, which plea being sustained the territory appeals.

W. E. Cullen, Atty. Gen., for the Territory. McBride & Haldorn, for appellees.

out his knowledge at the time, but most of the creditors. We think, as was stated in the the cases are conveyances of real estate, in former opinion, that the German Savings which the consent of the grantee or benefi- Bank, or its owner, Knowles, had the auciary is presumed until he expresses his dis-thority to revoke his arrangement with the sent or refusal. See Skipwith v. Cunningham, national bank about paying the creditors of 8 Leigh, 271; Field v. Arrowsmith, 3 Humph. the German Savings Bank at any time before 442; and Shepherd v. McEvers, 4 Johns. they had knowledge or notice thereof. The Ch. 136. In all of these cases the deed passed motion for rehearing will be overruled. the legal title of the estate to the trustee, and it was decided that the law presumes every estate given by will or otherwise is beneficial to the party to whom it is given until he releases it; that therefore the assent of the grantee is implied in all conveyances-First, because of the supposed benefits; secondly, because it is incongruous and absurd that when a conveyance is completely executed on the grantor's part the estate should continue in him; and, thirdly, to prevent the uncertainty of the freehold. In the other cases referred to the debtor-assignor had parted with all control of the specific fund, money, or property assigned or transferred. If we should approve all of these decisions, it would not necessarily follow that Brockmeyer was entitled, after the revocation of the order to the Washington National Bank, to recover of that bank any part of the deposit which had been withdrawn. The petition shows that Knowles kept two accounts with the Washington National Bank: "One in the name of E. C. Knowles, and one in the name of the LIDDELL, J. This is an appeal by the terGerman Savings Bank; that amounts of ritory from a ruling of the district court in $2,450.15 and $4.073.35 were placed to the sustaining the plea of autre fois convict upon credit of the account kept in the name of the an indictment for burglary. From undisGerman Savings Bank; that on the 17th day puted facts it appears that the accused burgof June, 1884, the account of the German larized a saloon in the city of Butte on the Savings Bank with the Washington National 2d of July, last, and stole therefrom a lot of Bank showed a balance in favor of the Ger- cigars and wines. Two indictments were man Savings Bank of $6,126.82, which was found against them, one for larceny and the $1,951.93 more than was necessary to pay other for burglary. They were first tried the claims against that bank; and that on the and convicted of larceny, and, upon being 17th day of June, 1884, the Washington Na- arraigned for trial on the burglary charge, tional Bank transferred the balance due the they pleaded the former conviction in bar. German Savings Bank to the account kept in On the trial of the plea it was admitted by the name of E. C. Knowles." It is conceded the prosecuting attorney that the defendants that E. C. Knowles was the owner of the are the same; the saloon from which the German Savings Bank, and therefore as the goods described in the larceny indictment money, drafts, notes, etc., of the German were taken is the same set forth in the burgSavings Bank were deposited in the Wash-lary indictment; and that the goods deington National Bank in the name of the German Savings Bank, Knowles never placed himself in such a position that he could not revoke his order to the national bank to pay the claims of the German Savings Bank, if the revocation was made before Brockmeyer was notified of the deposit; hence, we think this case is very different from the cases referred to in the decisions concerning real estate, where the legal title became vested in a trustee, and from that moment the title was beyond the power of the grantor. If the deposit or transfer by the German Savings Bank to the Washington National Bank had been intended to be absolute, the account would have been kept, in the name of the Washington National Bank, as trustee for the creditors of the German Savings Bank, or the deposit would have been placed in the name of

scribed in the larceny indictment are the identical goods which, in the burglary indictment, it is charged the defendants intended to steal. Burglary is defined by the statute to be the entering of any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other buildings, tent, steam-boat, or rail-car, with intent to commit grand or petit larceny, or any felony. The commission of the crime in the night-time constitutes burglary in the first degree; to perpetrate the offense in the day-time is burglary in the second degree. See sections 73, 74, div. 4, Crim.

1 Concerning what will support a plea of former jeopardy, in general, see Ruble v. State, (Ark.) 10

W. Rep. 262, and note; Willis v. State, (Tex.) 6 S. W. Rep. 857, and note; People v. Carty, (Cal.) 19 Pac. Rep. 490, and cases cited.

Laws Mont. Larceny is the felonious taking of the goods or property of another, with intent to deprive the owner thereof, and to convert the same to the taker's use.

of the trial court must be reversed, and it is so ordered.

MCCONNELL, C. J., and BACH, J., concur.

(78 Cal. 516)

DURFEE v. GARVEY. (No. 12,771.)

EASEMENTS-DRAINAGE-SERVIENT ESTATE.

The easement of a ditch for drainage purposes over the pasture land of another does not impose upon the owner of the servient estate any liability for damage done to the ditch by his cattle in crossing over it, and in caving in its sides while feeding near it. The burden of keeping the ditch clear rests upon the owner of the easement.

Commissioners' decision. In bank. Appeal from superior court, Los Angeles county; A. BRUNSON, Judge.

Action of trespass brought by James D. Durfee against Richard Garvey. Verdict and judgment for plaintiff, and defendant appeals.

It is plain from the definitions that they are two distinct crimes, and the larceny is not necessarily included in the burglary. In order to sustain the indictment for burg-(Supreme Court of California. March 30, 1889.) lary it would only be essential to prove the felonious entry with the intent, while to convict on the charge of larceny it becomes necessary to show the taking, for the entry may have been without any felonious intent. Burglary, on the other hand, may, as it frequently does, exist without actual theft, and larceny may be committed without burglary. Therefore, in making out the case of larceny, the prosecution need not have shown any burglarious intent or entering; it became only necessary to prove the usual elements of theft, that is, the venue, the identity of the accused, the felonious taking, the intent to convert to the taker's use, the property stolen, its value, the ownership, and that the offense occurred within the time limited for such prosecutions. The burglary need not have been offered to make out the case of larceny, and, if it was so offered, the prosecution was entirely unnecessary. Nor could the two offenses have been included in the same indictment without violating the statute, (section 188, div. 3, Crim. Laws Mont.,) which declares in unmistakable language that an indictment shall charge but one offense. The case of Territory v. Fox, 3 Mont. 440, affirms this view of the law, and virtually disposes of the case under consideration.

Smith & Clark and Shaw & Damron, for appellant. Bicknell & White and Barclay, Wilson & Redick, for respondent.

BELCHER, C. C. The plaintiff and defendant are owners of adjacent tracts of land in Los Angeles county, the defendant's land lying to the south-west of the plaintiff's. Plaintiff's land is nearly level, and a large portion of it is swampy and unfit for cultivation without artificial drainage. It has a slight inclination towards the south-west, and commencing on defendant's land about six or seven hundred yards from plaintiff's line is a well-defined channel, called the "Arroyo Honda," which leads off to the south-west. From plaintiff's line to this arroyo was a slight depression, through which, about the year 1870, the then owner of a part of plaintiff's land, with the consent of the then owner of defendant's land, constructed a ditch some three feet deep and three feet wide at the top. Leading to this ditch other ditches were constructed around and through plaintiff's land, and when all of these ditches were clear and unobstructed the land was drained, so that it could be cultivated, and good crops raised upon it. Grasses and weeds grew up quickly in the ditch leading to the arroyo, and up to 1882 plaintiff was accustomed to clean out this ditch at least twice every year, no one objecting to his doing so. Prior to 1882, a part of defendant's land was cultivated, but in that year he ceased to cultivate it, and has since used it only for pasturing stock. He has kept on it horses, mules, and cattle, and these animals, by feeding along the ditch, and frequently passing over it, have broken in its sides, and have thereby filled it up and obstructed the flow of water through it. This obstruction interfered with After a careful examination of the author- the drainage of plaintiff's land, and preities relied on by the defense, we are con- vented his cultivating 20 to 25 acres of it on strained to hold that under the statutes of which he could otherwise have raised good Montana the defendants have never been in crops. In 1885, and again in 1886, defendjeopardy for the crime of burglary, and there-ant's cattle broke into plaintiff's inclosure fore the plea is not well taken. The ruling and damaged his growing crops.

The defendants were never on trial for burglary, nor, while being tried for larceny, were they in any danger of conviction for the former crime. Wharton, in his work on Criminal Law, (6th Ed. vol. 1, § 563,) states the rule to be, that "if on a trial of the major offense there can be a conviction of the minor, then a former conviction or acquittal of the minor will bar the major.". And again, in section 565, we find him announcing another rule by which the correctness of the plea can be tested. He says: "Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good, but not otherwise." In effect, these rules are the same as that provided in section 313, div. 3, Crim. Prac. Act, which declares that the defendant acquitted or convicted shall not again be tried for the offense charged in the former indictment, or for any lower degree of that offense, or for any offense necessarily included therein. The law carries with it the implied permission to prosecute for any offense not necessarily included in the former charge.