city of Portland, and in block 187, belonging bility, but should ascertain, if possible, were two lots or parcels of ground in the In Moreland v. Brady, 8 Or. 303, 34 Am. Rep. 581, the testator devised to Margaret McGill "a certain parcel of ground or lots in the city of Portland and numbered as follows, to wit: No. block, 187, lot No. 2; to Esther Brady, "that lot or parcel of ground, in the city of Portland, lot 1, in block 187." The testator did not own or claim any interest in said lots when he made his will or at the time of his death, but did own lots 3 and 4 in said block. The court at pages 313, 314, 8 Or. pages 583, 584, 34 Am. Rep. said: "Then we apprehend there can be no question of the admissibility of extraneous oral evidence to show the state and extent of the testator's property, in order to place the court in the same position the testator was in at the time he made the will in question. This, we think, is unquestionably the rule established by the decided cases. This be ing done, it appears that the testator had no such lots as those described as lots 1 and 2 in the particular block named. This renders it certain that the lots named were erroneous, and the words describing them can have no possible operation, and must be rejected. The devise is the same as if the numbers of the lots had not been mentioned at all, or had been named and the numbers left blank. We are then compelled to fall back upon the remaining portion of the description, to wit: 'A certain parcel of ground or lots in the city of Portland in block 187;' also 'that lot or parcel of ground in the city of Portland in block 187. And by thus placing ourselves in the position of the testator, by oral evidence, at the time of the execution of his will, we find that there In Cruse v. Cunningham, 79 Ind. 402, the land was described in the will as follows: "Part of the donation of lot number 158, in township number 3 north, of range 8 west, containing 200 acres." It was claimed by the heirs of the testator that the description was so uncertain that the devise was void. The court said at page 405: "In the case at bar the testator had no heirs except his father and one brother. He bequeathed nearly all his real estate, including the land in controversy, to Charity Lodge, No. 30, of Free and Accepted Masons, in Washington, Daviess county, for the purpose of building a Masonic lodge on certain specified lots, with power to sell all the other lots. The parol evidence, which was admitted over appellant's objection, showed that donation lot No. 158 in town 3 north, of range S west, was estimated to contain about 400 acres, in fact, it contained 418 acres, of which 10 acres were in the river; but it appeared that one half of it was called 200 acres, and one fourth of it 100 acres, and that Joseph Cruse, in his lifetime, was in possession of 200 acres of said donation lot 158, claiming to own it. Some of the witnesses said he claimed 200 acres, or perhaps one half of the donation lot; one witness said Joseph never claimed more that half the lot; and the evidence . . also showed that the other two quarters of said donation lot were owned by other parties. Under the authority of the cases hereinbefore cited, the parol evidence was properly admitted, and it showed very clearly that the property devised by Joseph Cruse to Charity Lodge, No. 30, was the same half of said donation lot which is sought to be recovered in this suit. The court committed no error in admitting the will in evidence, nor in admitting the parol evidence in explanation of it." In Groves v. Culph; 132 Ind. 186, 31 N. E. 569, the third item of the will gave to the widow "the house and lot on which I now reside, being parts of lots number fifteen and sixteen in the city of Rising Sun," for life. The fourth item was as follows: "I further give and devise the same lot number fifteen so devised to my said wife during her lifetime, together with all the appurtenances thereto belonging, to my youngest daughter, Eliza Jane Carpenter, and to her heirs in fee simple forever." There was no other reference made to lot 16 in the will, except in the item designated. This court held that extrinsic evidence was admissible, and that the testator intended to devise to his daughter in fee what he devised to his wife for life, and that the same passed to the daughter under the devise to her, although lot 16 was not named in the devise to her. From the many other cases to the same effect we cite the following: Seebrock v. Fedawca, 33 Neb. 413, 29 Am. St. Rep. 488, 50 N. W. 270; Vestal v. Garrett, 197 Ill. 398-406, 64 N. E. 345; Hawkins v. Garland, 76 Va. 149, 44 Am. Rep. 158; Willard v. Darrah, 168 Mo. 660, 90 Am. St. Rep. 468, 68 S. W. 1023; Wood v. White, 32 Me. 340, 52 Am. Dec. 654; Howard v. American Peace Soc. 49 Me. 288; Flynn v. Holman, 119 Iowa, 731, 94 N. W. 447; Chambers v. Watson, 60 Iowa, 339, 46 Am. Rep. 70, 14 N. W. 336; Severson v. Severson, 68 Iowa, 656, 27 N. W. 811; Button v. American Tract Soc. 23 Vt. 336; Black v. Hill, 32 Ohio St. 313; Peters v. Porter, 60 How. Pr. 422; Smith v. Smith, 4 Paige, 271, 27 Am. Dec. 75; Pond v. Bergh, 10 Paige, 140, at page 152; Trustees of Episcopate Fund v. Colgrove, 4 Hun, 362; Du Bois v. Ray, 35 N. Y. 162; Taylor v. Tolen, 38 N. J. Eq. 91; Mitchell v. Donohue, 100 Cal. 202, 38 Am. St. Rep. 279, 34 Pac. 614; Lutz v. Lutz, 2 Blackf. 72; Kurtz v. Hibner (Ill.) 3 Alb. L. J. 263-267, and note thereto by Judge Redfield, in 10 Am. Law Reg. N. S. 97-101. The rule is thus stated in Wigram, Wills, 2d Am. ed. by O'Hara, pt. 1, pp. 144-147: "If the description in the will is incorrect, evidence that a subject-having such marks upon it-exists, must be admissible, that the Court may determine whether such subject, though incorrectly described in the will, be that which the testator intended. So a description, though false in part, may, with reference to extrinsic circumstances, be absolutely certain, or at least sufficiently so as to enable a Court to identify the subject intended, as where a false description is superadded to one which by itself would have been correct. Thus, if a testator devise his black horse, having only a white one, or devise his freehold houses, having only leasehold houses, the white horse, in the one case, and the leasehold houses, in the other, would clearly pass. In these cases the substance of the subject intended is certain, and, if there be but one such substance, the superadded description, though false, introduces no ambiguity; and as, by the supposition, the rejected words are inapplicable to any subject, the court does not alter, vary, or add to the effect of the will by rejecting them. To such cases, the maxim, Falsa demonstratio non nocet, may with propriety be applied." By the words "inapplicable to any subject" the author means inapplicable because the subject is not in existence or does not belong to the testator. It is said in Page, Wills, p. 976, § 819: "Where [a] testator describes the property devised by township, range, section, and quarter section, but does not locate it in the correct section or range, or the like, the weight of authority is that extrinsic evidence is admissible to show exactly what real estate the testator owned. Under this view, if he owns any real estate which corresponds in part to the description in the will, the court will reject the incorrect part of the description, and will pass the realty conveyed by the correct description." The cases of Moreland v. Brady, 8 Or. 303, 34 Am. Rep. 581, and Riggs v. Myers, 20 Mo. 239, referred to above, were cited with approval by this court in Black v. Richards, 95 Ind. 184, 190. The court said at page 190: "From the earliest period in the history of testamentary law, there has been manifested a disposition to apply a more favorable construction to wills than to ordinary legal instruments. Regret has sometimes been expressed at the disposition thus manifested, but the courts have nevertheless continued to countenance that line of judicial policy. It must therefore be accepted and acted upon as an established rule of construction at the present time. Riggs v. Myers, 20 Mo. 239; Wilkins v. Allen, 18 How. 385, 15 L. ed. 396; Cleveland v. Spilman, 25 Ind. 95; Brownfield v. Brownfield, 12 Pa. 136, 51 Am. Dec. 590; Moreland v. Brady, 8 Or. 303, 34 Am. Rep. 581." There are some cases which seem to hold that when the evidence of the circumstances, situation, surroundings, and property owned by the testator at the time he made his will shows that the testator did not own the land as described in his will, but owned other land to which a part of the description might properly apply, no latent ambiguity was disclosed, unless the words "my land," or other words stating in effect that the testator owned the land devised, are contained in the will. The rule established by the weight of the authorities, and The 20-acre tract in controversy is described, "20 acres off the northwest quarter of section 29, town 18, range 9, in Henry county, Indiana." The agreed statement of facts shows that the testator owned no land the better reason, however, is that such evi- | Young, 170 Ill. 290, 296, 49 N. E. 570; dence does disclose a latent ambiguity, Lindgren v. Lindgren, 9 Beav. 358, 361. Apwhether words stating, in effect, that the plying the rules applicable to such descriptestator owned the lands devised are used tions, there can be no doubt of the identity or not; and if, by rejecting the false de- of the 30 acres devised to appellee. scription or the false part thereof, sufficient remains, when considered from the position of the testator, to identify the land intended with reasonable certainty, the same will pass under the will to the devisee. It is true that, after rejecting the false description or the false part thereof, the words "my real estate.” or words of like import, if used by the testator in making the devise, would be of great force in identifying the land intended, and might, alone or in connection with the true part of the description, if any, pass the land to the devisee in cases where, if the words were not used, the devise would fail for want of a description sufficient to identify the land. The enforcement of this rule does not reform or add any words to a will, for this cannot be done, but enables the court to construe the will after rejecting the false part of the description, and thus carry into effect the intention of the testator as expressed therein. The 30-acre tract is described in the will as follows: Thirty acres of land off the south end of the east half of the south quarter of section 29, town 18, range 9, in Henry county, Indiana. Said section 29 contains two parts which answer to the description "south quarter"-the southeast quarter and the southwest quarter. When there are two things equally answering the description in a will, the ambiguity may be removed by evidence. 1 Bigelow's Jarman, Wills, 6th ed. 434, 435; Underhill, Wills, $ 910; Black v. Richards, 95 Ind. 184, 189, 190; Cruse v. Cunningham, 79 Ind. 402; Skinner v. Harrison Twp. 116 Ind. 139, 141, 2 L. R. A. 137, 18 N. E. 529; White v. Patch, 117 U. S. 217, 29 L. ed. 860, 6 Sup. Ct. Rep. 617, 710. The agreed statement of facts in this case shows that the testator owned 30 acres off the south end of the southwest quarter of said section, and owned no other real estate in either of said quarter sections. The presumption is that the testator intended to devise his own real estate, and not real estate owned by another. 2 Underhill, Wills, p. 1008; Redf. Wills, 3d ed. *123; Patch v. Whitc, 117 U. S. 210, 216, 220, 29 L. ed. 860, 864, 865, 6 Sup. Ct. Rep. 617, 710; Moreland v. Brady, 8 Or. 303, 314, 34 Am. Rep. 581; Stewart v. Stewart, 96 Iowa, 620, 625, 65 N. W. 976; Flynn v. Holman, 119 Iowa, 731, 94 N. W. 447, 44S; Decker v. Decker, 121 Ill. 341, 355, 12 N. E. 750; Huffman v. in the northwest quarter of said section, but did own 20 acres off the northwest quarter of section 28, town 18, range 9, adjoining the 160 acres in the northeast quarter of section 28 devised to appellee. The testator did not own any other 20-acre tract of land. in the will as 20 acres. The quarter section, should have been 28. Rejecting the number ruled. The conclusion we have reached renders the determination of the question of the estoppel of Warrington and Thompson unnec essary. Judgment affirmed. Mary DELANEY v. IOWA SUPREME COURT. MODERN ACCIDENT CLUB, Appt. (........Iowa... ..) 1. A misstatement in an application for a benefit certificate that applicant is a member of the fraternal association with which the benefit association is connected will not avoid the certificate if the facts are known to the agent soliciting the application, and applicant becomes a member of the association before any obligation accrues upon the certificate. 2. A benefit certificate to which by its terms only a member of a particular association is entitled, is not void because at the time the application is made the applicant is not a member of the association, if the agent soliciting the application agreed that the certificate should become binding when applicant was admitted into the association, and he was in fact admitted before any liability arose under the certificate. 3. An agent having general authority to solicit applications for certificates in a mutual benefit association connected with a particular secret society has authority to take applications for certificates from persons not members of the society, to become binding when the applicants shall become members. 4. Death caused by blood poisoning received through a slight wound on the hand is the result of an accidental injury, within the meaning of an accident insurance policy, whether the poison was introduced into the wound by the instrument which inflicted it or from other sources. (October 24, 1903.) APPEAL by defendant from a judgment of the District Court for Iowa County in plaintiff's favor in an action upon a mutual benefit certificate. Affirmed. Statement by McClain, J.: Action in equity against the defendant, a mutual benefit association organized under the laws of Iowa, to compel an assessment on account of the accidental death of George L. Delaney, a member of said association, holding a certificate in which plaintiff is named as beneficiary, and to require the payment of the proceeds of such assessment, not exceeding the sum of $1,000, to plaintiff, under the provisions of the certificate. NOTE. As to what constitutes an accident within the meaning of an accident insurance policy, see aiso note to Fidelity & C. Co. v. Johnson, 30 L. R. A. 206; also the later cases in this series of Modern Woodmen Acci. Asso. V. Shryock, 39 L. R. A. 826; Kasten v. Interstate Casualty Co. 40 L. R. A. 651; Western Commercial Travelers' Asso. v. Smith, 40 L. The defenses interposed were that the certificate was invalid because George L. Delaney was not a member of the Modern Woodmen of America at the time the certificate was issued to him,-such being the requirement of the articles of incorporation of the defendant association, and also that the death was not the result of an accident, within the terms of the certificate. A decree was rendered for plaintiff, and defendant appeals. Messrs. Remley & Ney and Hart & Zmunt for appellant. Messrs. Thomas Stapleton and J. M. Dower, for appellee: Where an insurance policy contains condi. and this is known to the insurer when he tions that render it void at its inception, issues the policy, he thereby waives the condition. Quigley v. St. Paul Title Ins. & T. Co. 60 sota Farmers' Mut. F. Ins. Co. 36 Minn. Minn. 275, 62 N. W. 287; Wilson v. Minne112, 1 Am. St. Rep. 659, 30 N. W. 401. One taking applications and soliciting insurance is the agent of the company notwithstanding anything contained in the application or the policy. Key v. Des Moines Ins. Co. 77 Iowa, 174, 41 N. W. 614; Jamison v. State Ins. Co. 85 Iowa, 234, 52 N. W. 185; Fred Miller Brewing Co. v. Council Bluffs Ins. Co. 95 Iowa, 31, 63 N. W. 565. The doctrine of ultra vires will be applied to the contracts of a corporation only when such contracts remain wholly executory. Thompson v. Lambert, 44 Iowa, 239; Beach, Priv. Corp. § 423; Matt v. Roman Catholic Mut. Protective Soc. 70 Iowa, 455, 30 N. W. 799; Denver F. Ins. Co. v. McClelland, 9 Colo. 11, 59 Am. Rep. 134, 9 Pac. 771; Mutual Guaranty F. Ins. Co. v. Barker, 107 Iowa, 148, 70 Am. St. Rep. 149, 77 N. W. 868; Tash v. Adams, 10 Cush. 252; Cooley, Taxn. 573; Mutual Ben. Asso. v. Hoyt, 46 Mich. 473, 9 N. W. 497. The company is estopped from pleading the defense of ultra vires, and from assailing the validity of a policy. Parno v. Iowa Merchants' Mut. Ins. Co. 114 Iowa, 132, 86 N. W. 210; 28 Am. & Eng. Enc. Law, p. 477; Van Shaack v. Robbins, 36 Iowa, 205; Beach, Priv. Corp. § 425. R. A. 653; Feder V. Iowa State Traveling The microbes that infected the wound with this understanding, Delaney signed the were imparted thereto and implanted there-application for membership, which conin by the knife that inflicted the wound. The death was therefore one within the policy. Martin v. Manufacturers' Acci. Indemnity Co. 151 N. Y. 105, 45 N. E. 377; Fitto v. Accidental Death Ins. Co. 17 C. B. N. S. 122; Smith v. Accident Ins. Co. L. R. 5 Exch. 302. All the appellee had to establish was the infliction of the wound substantially as alleged, that blood poisoning ensued, and that death followed as a result of such blood poisoning. Prader v. National Masonic Acci. Asso. 95 Iowa, 159, 63 N. W. 601; Sutherland v. Standard Life & Acci. Ins. Co. 87 Iowa, 505, 54 N. W. 453; Standard Life & Acci. Ins. Co. v. Thomas, 13 Ky. L. Rep. 593, 17 S. W. 275; Freeman v. Mercantile Mut. Acci. Asso. 156 Mass. 351, 17 L. R. A. 753, 30 N. E. 1013; Miner v. Travelers' Ins. Co. 2 Ohio N. P. 103; Omberg v. United States Mut. Acci. Asso. 101 Ky. 303, 72 Am. St. Rep. 413, 40 S. W. 909; Travelers' Ins. Co. v. Mi ray, 16 Colo. 296, 25 Am. St. Rep. 267, 26 Pac. 774. tained the recital that he was a member of the Modern Woodmen, and that he was admitted to membership in the Parnell Camp of the Modern Woodmen a week after the date of his certificate of membership. His death occurred several months after the date of his certificate, and while he was a member in good standing of the Modern Woodmen. The misstatement in the application that Delaney was at the time a membed of the Modern Woodmen was immaterial, for Burke, the agent of defendant taking the application, was fully advised as to the facts, and the company was not, therefore, misled or imposed upon. Nor can it be urged that Delaney was not entitled to be a member of the defendant association at the time of his death, for at that time he was a member of the Modern Woodmen. But the real question is whether the certificate was void from the beginning, on the ground that, at the time it was issued, Delaney was not such a person as could, under the articles of the association, be a member. It may be conceded that, by the terms of the certificate, Delaney was bound to take notice of the provisions of the arti McClain, J., delivered the opinion of the cles, and that these terms could not be court: waived by the officers and agents of the association so as to entitle one to the benefits of a certificate in the association without his being a member of the Modern Woodmen. It may be that if, after Delaney be came a member of the Modern Woodmen, the defendant association had received dues from him on account of his certificate of membership, the defendant would be estopped from objecting that he was not eligi ble to membership when the certificate was The defense that the certificate was void when issued is predicated on the fact that it is provided in the articles of incorporation of defendant association that "no person shall be eligible to membership in this association.. who is not at the time of receiving his certificate of membership a member in good standing of the Modern Woodmen of America, a fraternal organization organized under the laws of the state of Illinois;" that by the certificate of mem-issued to him, but we find no evidence of bership in defendant association it is provided that compliance by George L. Delaney with the laws, rules, and requirements of the defendant association and of the Modern Woodmen of America is made an express condition of the contract, and that George L. Delaney, in his application, represented that he was a member of the Modern Woodmen of America, and the Parnell Camp thereof; and that this representation was false. It appears, however, without controversy, that one Burke, the agent of the defendant association, solicited Delaney and others in the town of Parnell to join the defendant association, and when the objection was raised by them that they were not eligible to membership, not being Modern Woodmen, he assured them that they might become members of the Modern Woodmen, and when they did so their certificates of membership in the defendant association would be valid. It further appears that, the subsequent payment of any dues to defendant. We think, however, that the defense relating to the validity of the contract can be disposed of on a single proposition. The burden is on the defendant, in order to defeat recovery on the certificate on account of breach of condition, to show that a condition of the contract was broken; that is, specifically, that, at the time Delaney received his certificate of membership in the defendant association, he was not a member of the Modern Woodmen. Burke, as defendant's agent, had undoubtedly authority to contract that a certificate should be issued to Delaney when he became a member of the Modern Woodmen; and although, as a matter of fact, the application was taken before Delaney was such member, if, after the condition was complied with, the certificate was actually delivered, the defendant should not object that its officers did not know at the time the |