ment. ber, 1889"; thus presenting direct and positive testimony against the presumption arising from the recital in the judg The plaintiff produces no such testimony in this case, but simply facts from which presumptions may be drawn adverse to that which arises upon the face of the record. In the case of Squires v. Jeffrey, 101 Iowa, 677, there was positive evidence that no notice had been served. The fact that no effort was made to enforce this judgment until 1898 was because Martin Boone had no property subject to execution until the death of his mother. Our conclusion is that plaintiff has failed to show herself entitled to the relief demanded, and the judgment of the district court is therefore AFFIRMED. 107 636 1108 596 108 597 107 636 133 224 133 350 HENRY KLING, Executor of the estate of Henry Schnellbecker, v. JOHN SCHNELLBECKER, Appellant, ADAM GERMAN, MARY KLING, BARARA SILBHER AND CATHERINE SCHORSOII. Wills: CONSTRUCTION. Where a testator directs that his estate be 1 equally divided between his wife and his wife's sisters and brothers devisees take per capita and not per stirpes. Appeal from Jasper District Court.-HoN. BEN MCCOY, Judge. WEDNESDAY, APRIL 5, 1899. PROCEEDINGS for the construction of the will of Henry Schnellbecker, deceased. The question is whether the devisees take per stirpes or per capita. The trial court found that they took per capita, and John Schnellbecker, one of the devisees, appeals.-Affirmed. A. M. Harrah for appellant. Geo. C. Kipp and W. G. Clements for appellees. DEEMER, J.-The testator died in the year 1894 without direct issue. His wife died about the year 1890, leaving no estate and no direct heirs. At the time of the execution of the will, which was in the summer of 1894, testator had one sister living, who was his only heir. This sister died in the year 1897, leaving appellant, her son, as her only heir. Testator's wife left one brother and two sisters as her only surviving heirs; and they, with Mary Kling, a devisee, are the appellees in this case. The will was admitted to probate in February of the year 1897. After making certain specific bequests, the will read as follows: "All the remainder of my estate must be equally divided between my sister and my wife's sisters and brothers." A codicil to the will makes the following provision: "This certifies that on the 31st. day of May, A. D. 1894, I, Henry Schnellbecker, executed my last will and testament in the presence of Geo. P. Kipp and another witness, whose name I do not remember; and in the said will I made the following bequests, to-wit: One hundred dollars each to the three grandchildren of George Phiffer, residing in Germany. This bequest I hereby annul and rescind, and the three hundred dollars must be equally divided between my brothers and sisters and my wife's brothers and sisters, in addition to the amount bequeathed to them in my will of May 31, 1894, and my bequest in said will to Mary B. Kling. I direct that the foregoing be added to my said will when the same is probated." Appellant contends that the property devised by the will and codicil "should be divided per stirpes, to two classes, one class being the testator's sister, now represented by her son and only heir, John Schnellbecker; the other class being his deceased wife's two sisters and brother"; while appellee contends, and the trial court found, that it should be divided per capita. While the intention of the testator is the polar star in all inquiries involving the interpretations of wills, yet certain phrases found in such instruments have received a judicial construction which the testator is presumed to have had in mind. One of these canons of construction is that when an estate is devised to be divided equally between certain persons, whether specifically named, or designated by more general terms, as the children or heirs of certain persons, the language imports the taking of an equal share by each legatee, in the absence of other provisions showing a contrary intention. In other words, they take per capita, and not per stirpes. Smith v. Curtis, 29 N. J. Law, 345; Purnell v. Culbertson, 12 Bush. 369; Johnson v. Knight, 117 N. C. 122 (23 S. E. Rep. 92); Pitney v. Brown, 44 Ill. 363; Jackson v. Luquere, 5 Cow. 221; Farmer v. Kimball, 46 N. H. 435; Weston v. Foster, 7 Metc. (Mass.) 297. Much is made in the argument of the word "between," and it may be conceded that, strictly speaking, it implies a division between two parties, or classes; but the reference may be to more than two parties. Haskell v. Sargent, 113 Mass. 343. When the words "between" and “among” follow the verb "divide," their general significance is very similar, and in popular use they are snynonymous, though "among" connotes a collection, and is never followed by two of any sort, while "between" may be followed by any plural number, and seems to refer to individuals of a class, rather than to the class itself. Senger v. Senger's Ex'rs. 81 Va. 698; Ward v. Tomkins, 30 N. J. Eq. 4; Lord v. Moore, 20 Conn. 122; Myers v. Myers, 23 How. Prac. 410. In the case of Farmer v. Kimball, supra, the court, in referring to the use of the word "between," said: "If in this case the residue of the estate had been given to the cousins and the children of the mother's cousins, to be equally divided among them, the devisees would have taken per capita, unless something in the will indicated a different intent. This construction is not controlled by the use of the word "between," or by the fact that the divisees are not each named individually. Upon the whole, we think that any inference of an intention to divide the residue by classes is merely conjectural, and quite too uncertain to prevent the application of the wellsettled general rule. With a definite rule of construction for the words used by the testator, and with nothing to indicate a different intent on his part, the question presented is not difficult of solution. It will be noticed that the devise is not to the heirs of certain brothers and sisters, but directly to the brothers and sisters, as individuals. In this respect the case differs from Fissel's Appeal, 27 Pa. St. 55; Young's Appeal, 83 Pa. St. 59, and other like cases relied upon by appellant. Here the reference is to individuals, and not to a class of persons, as in Bassett v. Granger, 100 Mass. 348, and Holbrook v. Harrington, 16 Gray, 102. The case is more nearly like Crow v. Crow, 1 Leigh, 74, and Hoxton v. Griffith, 18 Grat. 577. Notice should also be taken of the fact that the gift is not substitutional, as to several or their children, as in Congreve v. Palmer, 16 Beav. 435, and cases holding to the same doctrine. Appellant further contends that the bequest to Mary B. Kling was revoked and annulled by the codicil. That question does not seem to have been presented to the lower court, and therefore cannot be considered on this appeal. The trial court correctly interpreted the will, and its decree is AFFIRMED. E. J. LOUGHRAN V. DES MOINES STREET RAILWAY COMPANY et al., Appellants. 1 Appeal: ERROR: Pr sump ion of pr judice. A presumption that an erroneous instruction is prejudical prevails unless the evidence is such as to overcome it. Appeal from Polk District Court.-HON. W. A. SPURRIER, Judge. WEDNESDAY, APRIL 5, 1899. ACTION for malicious prosecution. Judgment for plaintiff, and the defendants appealed.—Reversed. N. T. Guernsey for appellants. C. C. Cole for appellee. GRANGER, J.-This is an action for damages for malicious prosecution. The plaintiff is a citizen of Des Moines, and his business is that of a brass founder and a worker in metals. The defendant company uses copper wire in the operation of its railway lines. Some of its wires on a part of its lines was missing, and a quantity of it was found in possession of the plaintiff by an officer with a search warrant. This, with other information, led to his arrest on an information charging petit larceny, filed by defendant Scholes, who was in the employ of the defendant as a detective. It appeared that the wire was taken by some boys, and was purchased from them by plaintiff, and the theory of the prosecution was that plaintiff had so acted as to be criminally liable. On the trial of the information the plaintiff was acquitted, and this action is for damages on the ground that the prosecution was instigated by the defendants maliciously and without probable cause. On the question of probable cause, the court instructed the jury that the burden was upon the defendants to show that they had probable cause for believing the plaintiff was guilty of the crime of larceny. This cause was tried in the district court before Philpot v. Lucas, 101 Iowa, 478, was determined in this court; and, in view of that case, it is conceded that the instruction of the court is erroneous, but it is urged that the error is without prejudice. From the error in the giving of the instruction, prejudice is presumed, and the record is not such as to overcome that presumption. In fact, the separate readings given the case in this court show a decidedly contrary impression from the evidence, and we readily concur in the conclusion that the error was prejudicial. We discover no other reversible error.-REVERSED. |