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United States Court of Appeals 

for the 

District of Columbia Circuit 



TRANSCRIPT OF 
RECORD 



TRANSCRIPT OF RECORD. 


Court of Appeals of the District of Columbia. 


APRIL TERM, 1914. 


No. 2661. 


No. 3 Special Calendn 
OctoDpr Term 'HJ4 


No. 8, SPECIAL CALENDAR. 


HENRY J. RUPPERT, EXECUTOflf>F 'ft wStE OF 
KATE FRANCE, 1)ECEAS Elj A P a\L^ 

VS. 

THOMAS E. McARDLE, EXECUTOR OF THE ESTATE OF 
APPOLONIA STUNTZ, DECE ASED. _ 

AND I No. H. Special C 


AND I No. a. Special Calend 

No. 2662. October Term 9 K 

No. 9, SPECIAL CALENDAR. 

THOMAS E. McARDLE, EXECUTOR OF THE ESTATE OP 
APPOLONIA STUNTZ, DECEASED, APPELLANT, 

VS. 

HENRY J. RUPPERT, EXECUTOR OF THE ESTATE OF 

KATE FRANCE, DECEASED. 


APPEALS FROM THE SUPREME COURT OF THE DISTRICT OF 

COLUMBIA. 


FILED MARCH 5, 1914. 
PRINTED APRIL 6, 1914. 




Court of Appeals of the District of Columbia 


APRIL TERM, 1914. 


No. 2661. 


No. 3 Special Calends 

October Term ! 9)4 


No. 8, SPECIAL CALENDAR. 

HENRY J. RUPPERT, EXECUTOR OF THE ESTATE OF 
KATE FRANCE, DECEASED, APPELLANT, 

V8. 

THOMAS E. McARDLE, EXECUTOR OF THE ESTATE OF 
APPOLONIA STUNTZ, DECEASED. 


AND 


No. 2662. 


No. Special Calend. 
October Term '9U 


No. 9, SPECIAL CALENDAR. 

THOMAS E. McARDLE, EXECUTOR OF THE ESTATE OF 
APPOLONIA STUNTZ, DECEASED, APPELLANT, 

V8. 

HENRY J. RUPPERT, EXECUTOR OF THE ESTATE OF 

KATE FRANCE, DECEASED. 


APPEALS FROM THE SUPREME COURT OF THE DISTRICT OF 

COLUMBIA. 


INDEX. 

Original. Print 

Petition of Henry J. Ruppert. 1 1 

Answer of Thomas E. McArdle to petition. 2 2 

Replication of Henry J. Ruppert. 6 4 

Rejoinder . ® ® 

Order and appeal. ® 5 

Appeal of Thomas E. McArdle. 10 6 

Memorandum: Appeal bond of Henry J. Ruppert approved. 11 6 

Memorandum: Appeal bond of Thomas E. McArdle approved. 11 6 

Assignment of errors by Thomas E. McArdle. 12 6 

Assignment of errors by Henry J. Ruppert. 13 7 

Designation of transcript. 15 7 

Designation of record by Henry J. Ruppert. 16 8 

Further designation of record on appeal of Thos. E. McArdle... 17 8 

Certificate of register of wills. 18 9 

Judd & Detweiler (Inc.), Printers, Washington, D. C., March 30, 1914. 















In the Court of Appeals of the District of Columbia. 


No. 2661. 

Henry J. Ruppert, &c., Appellant, 

vs. 

Thomas E. McArdle, &c. 
and 


No. 2662. 

Thomas E. McArdle, &c., Appellant, 

. vs. 

Henry J. Ruppert, &c. 


1 In the Supreme Court of the District of Columbia, Holding 

a Probate Court. 

Administration No. 10,157. 

In re Estate of Appolonia Stuntz, Deceased. 

The petition of Henry J. Ruppert, executor of the last will and 
testament of Kate France, deceased, respectfully represents to the 

1. That on the nineteenth day of April, A. D. 1901, Appolonia 
Stuntz departed this life, leaving a last will and testament, in which 
Kate France was given a life estate in all the property, both real 
and personal, of said Appolonia Stuntz and was authorized to carry 
on for her use and benefit the business of dry goods, notions and 
toys left by said testatrix; said last will and testament having been 
duly admitted to probate and record by this Honorable Court. 

2 That the inventory of the estate of said Appolonia Stuntz, 
deceased, showed the stock in trade of said business to have been 
worth three hundred dollars ($300) and the^counters, shelving and 
fixtures to have been worth fifty dollars ($50) at the time of her 

dmt n , 

3. That on the twenty-fifth day of August, A. D. 1913, said Kate 
France departed this life, leaving a last will and testament, in which 
your petitioner was appointed executor, which last will and testa¬ 
ment was duly admitted to probate and record, on the thirtieth day 
of September, A. D. 1913. 

1—2661a 



9 HENRY J. RUPPERT, &C ., VS. 

4 That on the fifth day of September A. f ,191 ^ a “ «' rde -, r 
was signed by this Court authorizing and directing Ihomas E. 

Me A rdle executor of the estate of said Appolonia Stuntz, deceased, 
to sell the stock, counters, show cases, shelving, fixtures and othe 

personal property contained in the store which had been con- 
o ducted bv said Kate France at the time ot her death, and 

pav over* to petitioner, upon his qualifying as executor of the 
estate of said Kate France, such amount of the proceeds of said su e, 
if anv which he might be entitled to receive. 

5 ‘Th u pursuant to said order said Thomas E. McArdle sold sai 
personalty ^pubhc auction and received for said stock the sum of 
hundred and seventy-five dollars ($075) and for.*ud , coun g* 
showcases, shelving and fixtures the further sum of s xty-five dollars 

making a total of seven hundred and forty dollars ($<40). 
g fhat while said Kate France conducted said business she 
ereatlv increased the amount of stock therein by purchasing with 
her own means more goods than were necessary to keep ‘lie same 
ivnleui-hed and likewise increased the amount of fixtures by pul 
chasing showcases and so forth with her own means, and as the result 
of the«e expenditures of her own funds said stock and fixtures 
brought at said sale, as above stated, a total of seven bundled and 
forty dollars ($740). or three hundred and ninety dollars ($390) 
Kxcess d the value of the stock and fixtures which were left by 

*aid Appolonia Stuntz at the time ot her death. f 

7 That petitioner, as executor of the last will and testament o 
said Kate France, is justly entitled to said excess ot three hundre 
n d ninety dollars ($390), less a proportionate share of the expense 
ofseS said pr^i-ty and has made demand therefor upon said 
Thomas E. McArdle, ekecutor of the estate of said Appoloma Stuntz, 
deceased, but payment thereol has been refused. 

1 V ThSifThoms E a: McArdle, executor of the estate of said 
Appolonia Stuntz, deceased, be authorized and directed to account 
to netitioner for said excess of three hundred and ninety dollars 
($390) less a proportionate share of the expense of selling sard 

property.^ ^ ^ may have 5UC h other and further relief 
as Ike nature of this P^may jeqmre.^ 

Executor of the Last Will and Testament 

of Kate France, Deceased. 

FRANCIS L. NEUBECK, 

Attorney for Petitioner. 

District of Columbia, ss: 

Henrv J Ruppert, being first duly sworn according to law, deposes 
and £vs Thai he has read the foregoing petition and knows the 
contents thereof; that the statements therein made as of his own 
knowledge are true, and those made upon information and belief 

he believes to be true. HENRY J. RUPPERT. 









THOMAS E. MC ARDLE, AC. « 

Subscribed and sworn to before me this 20th day of November, 

[notarial seal.] BESSIE B. SHEEHY, 

Notary Public, D. C. 

(Endorsement: Petition; Filed November 26, 1913; James Tan¬ 
ner, Register of Wills, D. C. Clerk of Probate Court.) 


4 Anmer of Thomas E. McArdle to the Petition of Henry J. 

Ruppert, Filed in the Above Entitled Came. 

Your respondent admits paragraphs one, two, three, four 
of said petition, but further says that immediately after the death ot 
Kate France he had the stock of goods and fixtures in said store 
inventoried and that they were inventoried as follows: Stock and 

goods, $345.50. Fixtures, $83.75. 

Second. In answering the sixth paragraph of said petition re¬ 
spondent says: that at the time of the death of Appolonia Stuntz 
the said store was well stocked with goods and that he, as executor 
under said will, permitted the said Kate France the life tenant to 
keep possession of said stock and run said store during her life, t a_ 
he did not exact any bond from her. and that it was understood 
that the said stock in' said store was to be kept up and the store run 
as a going business, and respondent says that this is all that the 
said Kate France did and respondent further says that he has no 
knowledge of anv of the stock in the store or fixtures belonging to 
the said Kate iVance, but that after the death of the said Kate 
France all of the household goods that were purchased by said Kate 
France were delivered to the petitioner and respondent says that in 
law the said goods in said store and the said fixtures belong to him, 
as executor of the said estate of Appolonia Stuntz at the death ot 
the life tenant. Respondent further says that the fixtures in said 
store at 1207 New York Avenue were at the tune of the death ot 
Kate France only the ordinary fixtures necessary to carry on sard 
business and upon information and belief he says that nearly all, 
if not all of said fixtures were in said store at the time of the aeath 
of Appolonia Stuntz and respondent further says that some of the 
fixtures left by Appolonia Stuntz may have been replaced by the life 
tenant, but they belonged to the estate of Appolonia Stuntz 

5 and not to the life tenant. , 

Third. In answering the seventh paragraph ^re>ponclent 

savs that the said stock in said store at the death of Kate France 
belonged to him as executor of the said estate of Appolonia Stuntz 
and not to the petitioner and that the petitioner has no right, title 

Having fully answered the said petition respondent prays that said 
petition be dismissed. owimak V . Mo ARDLE. 






4 


HENRY J. RUPPERT, AC., VS. 


City of Washington, 

District of Columbia, ss: 

Thomas E. McArdle, being duly sworn, deposes^Td^nows 
has read over the foregoing answer by him suhbenbed 
the contents thereof; that the matters and things therein stogdof 
his own personal knowledge are tine and those stated on into 

tion and belief he believes to be true. THQMA g E McARDLE. 

(Endorsement: Answer of Thomas E ^f D^^Cle^of^ro- 
Dec. 5, 1913; James Tanner, Register of W ills, D. C., Uerk 

bate Court.) 

6 The Replication of Henry J. Ruppert to the Armoer of 
Thomas E. McArdle Filed in the Above-entitled Came. 

Your petitioner admits that immediately after the deatti R 
France the stock of goods in said store were inventon^ at $34^50 
and thp fixtures therein were inventoried at $83.75, nu y 
said inventory values did not represent the true value of ftoc 
fnd fixtures a* shown by the fact that said stock sold for $675.00 
and Sd toures sold for $65.00. and that said inventory values are 
therefore immaterial to the issues here involved. DOSsess ion 

was to be kept up bv said Kate France, and says that it was further 
understood bv and between said Kate France and respondent that 
at hefdeath her estate should be accountable to respondent as exee- 
ntnr of the estate of said Appolonia Stuntz for goods only of the 
utor °f the e on „ ,nd no less, and that said respondent 

Ltatlv alS s^id Kate France that at her death her estate 
should not be liable to respondent as executor as aforesaid for more 
lhan $300 00 worth of goods. Your petitioner further admits that 
/f n fv, nf said Kate France all of the household goods which 

haTw nutto^ by her ^rT delivered to petitioner, and says 
Ihat ^id household goods rightfully belonged to the said Kate 
France absolutelv, and further says that the household « 0< ’ ,E 

had been purchased by Appolonia Stuntz and which had 
7 been worn out by ordinary' usage were retained by the re¬ 
spondent. Petitioner says, however, that the dls P°? ltl0 £ °. f 
aaid household goods is immaterial to the issue here printed. Peti¬ 
tioner denies that in law the goods and fixtures in said store at 


THOMAS E. MC ARDLE, &C. 


6 


time of the death of said Kate France belonged to respondent, but 

says that respondent w ^ ^ tit t ^ i i * j* 11 j 11 

in value to those which were in said store at the time of the death 

of Appolonia Stuntz, which goods and fixtures were worth only 
$300.00 and $50.00, respectively, or a total of $3o0.00, whereas the 
goods and fixtures in said store at the time of the death of said Ka e 
France were worth and sold for $675.00 and $6o.00, respectively, 
or a total of $740.00, and petitioner says that he is entitled to the 
difference between said two total sums, or the sum of $390.00 les^ 
the reasonable proportionate share of the expense incident to their 

sale - IIENRY T. RUPPERT. 

FRANCIS L. NEUBECK, 

Attorney for Petitioner. 


District of Columbia, ss: 

Henrv J. Ruppert, being first duly sworn according to law, deposes 
and savs: That he has read the foregoing replication by him sub¬ 
scribed and knows the contents thereof; that the statements therein 
made as of his own knowledge are true, and those made upon in¬ 
formation and belief he believes to be ENRy y RU ppER T . 

Subscribed and sworn to before me this 18th day of December, 

A. D. 1913. 


[notarial seal.] 


BESSIE B. SHEEHY. 

Notary Public, D. C. 


(Endorsement: Replication. Filed Dec. 19, 1913. James Tan¬ 
ner, Register of Wills, D. C. Clerk of Probate Court.) 


g Rejoinder. 

Now comes Thomas E. McArdle, Executor of the Estate of Appo¬ 
lonia Stuntz, deceased, by his attorney, Daniel \\ . Baker, and joins 

issue on the replication filed in the al^^entitled cause^ 

DANIEL W. BAKER, 

Attorney for Executor. 


(Endorsement: Rejoinder. Filed Dec. 19, 1913. James Tan¬ 
ner, Register of Wills, D. C. Clerk of Probate Court.) 


9 


Order. 


On consideration of the petition of Henrv J. Ruppert, Executor 
of estate of Kate France, and the several pleadings filed therein, 
it is this fifth day of January, 1914, by the Court, 

Adjudged, ordered and decreed that Thomas E. McArdle, Ex¬ 
ecutor of the Estate of Appolonia Stuntz pay over to the Mid Henry 
J Ruppert, Executor as aforesaid, the sum of seventy-nine dollars 



HENRY J. RUPPERT, &C. y VS. 


and twentv-five cents ($79.25), the same being the difference be- 
Uveen the inventory of the stock of goods and fixtures at premises 
1207 New York Avenue, Northwest, the property of the Estate of 
Vppolonia Stuntz, made at the time of lier death, and the inventory 
made of the stock of goods and fixtures at said premises aforesaid at 
the time of the death of Kate F ranee, the life tenant. 

Bv the Court: WENDELL P. STAFFORD, Mice. 

From the foregoing order an appeal is noted in open Court, and 

the anneal bond is fixed at Fifty Dollars to cover costs. 

the appeal oona n WENDELL P. STAFFORD, Justice. 

(Endorsement: Orders. Filed Jan. 5—1914. James Tanner, 
Register of Wills, D. C., Clerk of Probate Court.) 

10 Thomas E. McArdle, Executor for the Estate of Appolonia 
Stuntz appeals in open court from the decree ordering him 

to pay to Henry J. Ruppert, Executor of the Estate of Ka‘e France 
thp <mni of Seventy Nine Dollars and 50 cents, ($79.50), the saia 
decree'being dated on the 14th day of January. 1914 and the court 
orders the bond on appeal for costs to lie in the penal sum o 
Dollars, ($50.00). 

By the Court: WENDELL P. STAFFORD, Justice. 

(Endorsement: Appeal in open Court and Order fixing amount 
of Bond. Filed Jan. 14, 1914. James Tanner, Register of Mill., 
D. C. Clerk of Probate Court.) 

11 Memorandum.— Appeal Bond of Henry J ^ u Pl*rt (Ex¬ 
ecutor of estate of Appolonia Stuntz, deceased,) $50.00, ap- 

proved January 22. 1914. 

Memorandum.— Appeal Bond of Thomas E. McArdle, $50.00, ap- 
proved January 29, 1914. 

12 Assignment of Errors by Thomas E. McArdle ^Decree 

Directing Payment of Certain Money to Henry J. Ruppert, 
Executor. 

1. The Court erred in dismissing the petition of Henry J. Rup¬ 
ert Executor of the Estate of Kate F ranee. . — 

^2. The Court erred in holding that the Estate of Appolonia Stuntz 

indebted to Flenry J. Ruppert. 

3 The Court erred'in decreeing that Thomas E. McArdle, execu¬ 
tor should pay to Henry ,T. Ruppert executor, the sum of Seventy- 
Nine Dollars and Twenty-five cents ($7R25)^ ^ g AKER) 

WM. E. LEAHY, 

Attorneys for Plaintiff. 




THOMAS E. MC ARDLE, AC. 


7 


(Endorsement: Assignment of Errors. Filed Jan. 30, 1914 
James Tanner, Register of Wills, D. C. Clerk of Probate Court.) 


13 Assignments of Error by Henry J. Ruppert. 

Now comes Henrv J. Ruppert, executor of the estate of Kate 
France, deceased, by his attorney, and assigns errors committed by 
the Court in its order entered on January 5, 1914, as follows: 

1 i n holding that the value of the stock and fixtures in question 
at the time of the death of Kate France should be determined by the 

inventory thereof. . . 

2. In holding that the value of the stock and fixtures in question 

at the time of the death of Kate France should not be determined 

by the amount realized from their sale. 

3. In holding that the increase in the value of the stock and 
fixtures between the time of the death of Appolonia Stuntz and the 
time of the death of Kate France was the difference between the 
inventory returned upon the death of Appolonia Stuntz and the 
inventorv returned upon the death of Kate F ranee. 

4. In holding that the increase in the value of the stock and 
fixtures between the time of the death of Appolonia Stuntz and the 
time of the death of Kate France was not the difference between the 
inventory returned upon the death of Appolonia Stuntz and the 
amount realized from their sale. 

5 In holding that the petitioner, Henry J. Ruppert, executor ot 
the estate of Kate France, deceased, was entitled to receive from 
Thomas E. McArdle, executor of the estate of Appolonia Stuntz. 
deceased, no more than $79.25. 

6. In holding that petitioner, Henry J. Ruppert, executor of 
the estate of Kate France, deceased, was not entitled to receive 
14 from Thomas E. McArdle, executor of the estate of Appolonia 
Stuntz, deceased, the sum of $35<.6/, which sum i& the dif¬ 
ference between the amount of the inventory returned upon the 
death of Appolonia Stuntz and the amount realized from the sale of 
the stock and fixtures on hand at the death of Kate France, less a 

proportionate share of the expense of such sale. 

P P FRANCIS L. NEUBECK, 

Attorney for Henry J. Rwppert, Executor 

of the Estate of Kate France, Deceased. 


(Endorsement: Assignments of Error. Filed Feb. 24, 1914. 
James Tanner, Register of Wills, D. C., Clerk of Probate Court.) 

15 In the above entitled cause, the clerk will please designate 

the following record for the Court of Appeals of the District 

of Columbia: . 

(1) Petition of Henry J. Ruppert for accounting, filed Nov. 23, 

1913. 

(2) Answer of Thos. E. McArdle, Ex., filed Dec. 5, 1913. 

(3) Replication of Henry J. Ruppert, “ “ 19,1913. 

(4) Rejoinder of Thos. E. McArdle “ “ “ “ 



8 


HENRY J. RUPPERT, &C. } VS. 


(o) Order signed Jan. 5, 1914 . fi i i p v 94 

( 6 ) Assignments of Error by Henry J. Ruppert, filed Feb. 24, 

1914 ‘ FRANCIS L. NEUBECK, 

Att’y for Henry J. Ruppert. 
DANIEL W. BAKER, 

Attorney for Thos. E. McArdle. 

(Endorsement: Desigation of transcript Filed ’ | 9U ' 

James Tanner, Register of W ills, D. C., Clerk of Probate Cou .) 


16 


Dmgnation of Record by Henry J. Ruppert. 


The Clerk, in making up the record on appeal in the above- 
pntitlpd pau^e will please include the following: 

1 Memorandum of filing of appeal bond by Henry J. Ruppert 

““ITtesignahoiffiTed by both parties February 28, 1914. 

3. This designation. FRANCIS L. NEUBECK, 

Attorney for Henry J. Ruppert, Executor. 

1 accept service of the above designation. 

D. W. BAKER, „ t „ _ 

Attorney for Thomas E. McArdle, Executor. 

(Endorsement: Designation of Record by lle^ry J. 

Filed Mar. 2, 1914. James lanner, Register of Wills, D. 0., Ole 

of Probate Court.) 

17 In making up record on appeal of Thomas E. McArdle the 

Register will include besides the papers already designated 

th FiS° Nofice ^ Appeal of Thomas E . McArdle Executor filed 

Ja Second 19 Memo. of filing and approval of Appeal Bond and date 

^ Third. Assignment of Errors of Thomas E. McArdle filed Janu- 
ary 30, 1914. 

Fourth. This designation. D w BAKER, 

Service accepted. 

FRANCIS L. NEUBECK, 

Att’y for Henry J. Ruppert. 

< 17n, Imminent ■ Further designation of record on appeal of 
Th ( omas E. McArdle Filed Mar. 4, 1914. James Tanner, Register 
of Wills, D. C. Clerk of Probate Court.) 







THOMAS E. MC ARDLE, &C. 9 

18 Form No. 94. 

Supreme Court of the District of Columbia, Holding a Probate Court 
District of Columbia, To wit: 

I, James Tanner, Register of Wills for the District of Columbia, 
Clerk of the Probate Court, Do Hereby Certify the foregoing pages, 
numbered from 1 to 1/, inclusive, to be true copies ol the originals 
of certain papers on file in the office of the Register of \\ ills, Clerk 
of the Probate Court, in case No. 10,157, estate of Appolonia Stuntz, 
deceased, wherein Henry J. Ruppert, Executor of the Estate of Kate 
France, deceased, is appellant and Thomas E. McArdle, Executor of 
the Estate of Appolonia Stuntz, deceased, is appellee, and Thomas 
E. McArdle, Appellant, and Henry J. Ruppert, Appellee, the saine 
constituting a full, true, and correct transcript of record of proceed¬ 
ings had in said cause according to the Designations of counsel filed 
therein and made a part hereof. 

I Further Certify, That the bond for appeal, in the penalty of 
Fifty dollars, was duly filed by said appellants, and approved by said 
Court on the 22nd and 29th days of January, A. D. 1914. 

In Testimony Whereof, I hereunto subscribe my name and affix 
the seal of the said Probate Court, this 5th day of March, A. D. 1914. 

[Seal Supreme Court of the District of Columbia, Probate 

Jurisdiction.] 

JAMES TANNER, 

Register of Wills for the District of Columbia, 

Clerk of the Probate Court. 

Endorsed on cover: District of Columbia Supreme Court, No. 
2661. Henrv J. Ruppert, &c., appellant, vs. Thomas E. McArdle, 
&c., and No.*2662. Thomas E. McArdle, &c., appellant, vs. Henry 
J. Ruppert, &c. Court of Appeals, District of Columbia. Filed Mar. 
5, 1911. Henry W. Hodges, clerk. 


2 — 2661 a 






DISTRICT Or COL^.MGt 
F i u £ D 


Thomas E. McArdle, Executor of the Estate of Appolo- 
nia Stuntz, Deceased, Appellant, 


Henry J. Ruppert, Executor of the Estate of Kate 
France, Deceased, Appellee. 


BRIEF FOR APPELLANT IN NO. 2662 AND FOR 
APPELLEE IN NO. 2661. 

f ' * c ^ t 1 . . ,1 * . v? • \ % 


Daniel W. Baker, 

Wm. E. Leahy, 
Attorneys for Appellant 
















IN THiE 


Court of Appeals, Siatrirt of Columbia 

No. 2662. 

Thomas E. McArdle. Executor of the Estate of Appolo- 
nia Stuntz, Deceased, Appellant, 

vs. 

Henry J. Ruppert, Executor of the Estate of Kate 
France, Deceased, Appellee. 


BRIEF FOR APPELLANT IN NO. 2662 AND FOR 
APPELLEE IN NO. 2661. 


This cause is before this Court on appeal from a decree 
of the Supreme Court of the District of Columbia, order¬ 
ing appellant herein, Thomas E. McArdle, executor of the 
estate of Appolonia Stuntz, to pay over to Henry J. Rup¬ 
pert, executor of the estate of Kate France, deceased, the 
sum of Seventy-nine Dollars and Twenty-five Cents 
($79.25). 

The aforesaid order of the Supreme Court was passed 
after consideration and hearing, had in Administration No. 
10157, upon the petition of Henry J. Ruppert, answer, and 



2 


replication setting forth substantially the following. fact . 

On the 19th of April, 1901, Appolon.a Stuntz, the ap¬ 
pellant's testatrix, died in the city of Washington, Distort, 
of Columbia, possessed of certain real estate an P ers ° n 
property among which latter was a small dry-goods busi¬ 
ness, consisting of a stock of notions, toy®, etc, an 
good-will thereof, which said business, together with the 
said stock aforesaid, was given for life to one Kate France 
and after her death over. Upon the appointment and qual¬ 
ification of the appellant as executor of the estate o p- 
polonia Stuntz, the stock in said store aforesaid was inven¬ 
toried by the proper appraisers of the Supreme Cou o 
the District of Columbia, and found to be of the appraised 
value of Three Hundred Dollars ($300.00), and the coun¬ 
ters, shelving fixtures, etc., therein to be of the appraised 
value of Fifty Dollars ($50.00). Under the will of appel¬ 
lant's testatrix, Kate France was to carry on the business 
in this store for life and enjoy the benefits thereof,—all of 
which she did until on the 25th day of August. 1913. when 
the said Kate France died. Upon the appointment and 
qualification of Henry J. Ruppert as executor of her estate, 
another appraisement and inventory was had of the same 
said store and business aforesaid by proper appraisement o 
the same Court, and upon this appraisement and inventory 
the value of the stock and goods was found to be Three 
Hundred and Forty-five Dollars and Fifty Cents ($345.50), 
and the shelving, show cases, etc., in said store to be of the 
value of Eighty-three Dollars and Seventy-five Cents 


($83.75). 

Subsequent to this appraisement and inventory, on the 
5th day of September, 1913, the Supreme Court of the Dis¬ 
trict of Columbia passed an order which authorized and di¬ 
rected the appellant herein to sell the stock, counters, show 
cases, etc., and other personal property contained in said 










store and conducted by the said Kate France during her life, 
as aforesaid, and to pay over to the appellee such amount of 
the proceeds of said sale, if any, which he, the said appellee, 
might be entitled to receive. Acting in pursuance of this 
order, the appellant sold, at public auction, the stock of 
goods, counters, shelving, etc., all of which brought the 
gross sum of Seven Hundred and Forty Dollars ($740.00), 
of which the stock brought Six Hndred and Seventy-five 
dollars ($675.00), and the counters, show cases, etc., 
Sixty-five Dollars ($65.00). 

Subsequent to the said sale, the said Henry J. Ruppert 
filed in the Supreme Court, under administration number 
aforesaid, as executor of the last will and testament of Kate 
France, his petition which presented to the Court substan¬ 
tially the facts stated aforesaid, and prayed that the appel¬ 
lant, as executor of the estate of Appolonia Stuntz, deceased, 
be authorized and directed to account to him for the said ex¬ 
cess of Three Hundred and Ninety Dollars ($390.00), less 
the proportionate share of the expenses of selling the said 
property, and such other and further relief as the nature of 
his cause might require. The answer of the appellant to 
said petition admitting the life estate in Kate France of the 
propertv hereinbefore mentioned and the inventories and 
sale as herein set forth, denied that the petitioner, the ap¬ 
pellee herein, had any right to the excess Three Hundred and 
Ninety Dollars ($390.00) aforesaid, or to any part thereof, 
and maintained that, as matter of law, the said excess be¬ 
longed to and became part of the assets of the estate of Ap¬ 
polonia Stuntz and therefore was, as matter of law, the prop¬ 
erty of the executor, Thamas E. McArdle, of the estate of 
Appolonia Stuntz, and appellant herein. 

The issues being joined on the replication to this an¬ 
swer, hearing was had and the aforesaid order of the Court 
passed wherein it was found that the sum of Seventy-nine 




4 


Dollars and Twenty-five Cents ($79.25), which represented 
the difference between the inventory of the stock of goods 
and fixtures in the store at the time of the death of Appolo 
„ia Stuntz and the inventory of the said stock and fixtures 
at the death of Kate France, should be paid over to the said 
Henry J. Ruppert, executor of the estate of Kate France, 

deceased. n 

From this order cross-appeals were taken in open Court, 

and your appellant assigned in this appeal as error the 

ruling of the Court in not dismissing the petition of Henry 

T Ruppert. in holding the estate of Appolonia Stuntz was 

indebted to Henry J. Ruppert, and in decreeing that Thomas 

E. McArdle (executor of the estate of Appolonia Stuntz, 

should pay to Henry J. Ruppert, executor, the sum of 

Seventy-nine Dollars and Twenty-five Cents ($79.25). 


Assignments of Error. 

The Court erred in decreeing to Henry Ruppert the sum 
of $79.25. 

The Court erred in not holding that there was a confu¬ 
sion of goods and that all the property belonged to Thomas 

E. McArdle. . . 

The Court erred in not dismissing the petition of Henry 

J. Ruppert. 


Argument. 

The question presented is whether the stock of goods, 
shelving, fixtures, etc., in the store which Kate France re¬ 
ceived as life tenant under the will of Appolonia Stuntz 
should under the facts in this particular case, be handed 
back to, as it was received from, the estate of Appolonia 

Stuntz, in mass. 

That the life tenancy in a stock of goods such as set 


forth in the facts before mentioned ordinarily demands the 
life tenant to keep up said stock can not be questioned. 

2 Woerner American Law of Administration, Sec¬ 
tion 456, page 1001. 

Philips vs. Beal, 32 Beav., 25. 

Cocayne vs. Harrison, L. R., 13 Equity Cases, 432. 

But it is submitted there is no question with regard to 
this point raised herein, as it is a matter of ownership of 
the increase in this particular stock, if any, contributed by 
the life tenant, and not her failure to keep up the stock at 
all. Nor is there any question here with regard to the 
quantum of the estate of the life tenant. In accordance 
with the facts of record, Kate France received this store as 
a going business, and the shelving, fixtures, etc., in said 
store, for her life from the executor of the estate of Ap- 
polonia Stuntz; that at that time said executor had an ap¬ 
praisement of the stock, shelving, etc., in the ordinary way, 
and that the appraisement showed a certain valuation; that 
Kate France took the store, stock, shelving fixtures, etc., 
and all in mass, giving no bond therefor, and making 
neither herself nor her estate liable for the value or return 
thereof to the estate of Appolonia Stuntz other than the 
general liability she incurred by law by her act of receiv¬ 
ing the same from the estate of Appolonia Stuntz, afore¬ 
said; that she enjoyed the same during her life; that the 
very nature of the business in which she held a life estate 
demanded and required that the stock should be constantly 
depleted and replenished; that perhaps by constant use cer¬ 
tain fixtures, utensils and other articles necessary in carry¬ 
ing on the business should be, by ordinary wear and tear, 
worn out and replaced by other new such fixtures, articles, 
etc.; that the business was carried on for a long period of 
time in this manner; that upon Kate France’s death there 



6 


was found to be in said store a stock of goods which, upon 
appraisement and inventory had in a similar manner to the 
former inventory and appraisement at the time when the 
said store was taken over by her, as the life tenant, was o 

a value almost exactly equal. 

It cannot be questioned that Kate France as life tenan 

was bound to return to the estate of Appoloma Stuntz the 
store and fixtures which she received therefrom. That this 
store upon her death brought at public auction the sum of 
Three Hundred and Ninety Dollars ($390.00), in ex¬ 
cess of the sum which the store, as she received it from the 
estate of Appolonia Stuntz, was appraised at, should and 
cannot be involved in the decision of this question. There 
is no way of ascertaining what sale value the store had at 
the death of Appolonia Stuntz. Kate France received 
that store valued and based not on what it would 
bring at a public auction, but on what it was worth on ap¬ 
praisement and inventory by the appraisers of the Supreme 
Court, and now when her estate in law is bound to return 
the store back to the estate from which it received it, it 
cannot and should not be permitted to set up a different 
basis of valuation from that at which it received it . If the 
excess in value is involved in this question at all, the basis 
of that value must be the appraisement and inventory had 
in the exact manner and by exactly the same Court as gave 
forth the original appraisement of valuation, and such a 
question as whether the appraisement is prime facie or con¬ 
clusive evidence of the true value cannot be considered here 
when the means of ascertaining the true value of the store 
in the original instance have now become impossible to de¬ 
termine not only by reason of the lapse of time but also 
by reason of the fact that the decedent’s appellee herein 
accepted the original method and the value of the store on 
appraisement without question or denial. 



7 


It is therefore submitted that the just and proper value, 
if the value of the store at this time is in question, is not 
the sale value but the appraised value, as was determined by 
the Supreme Court after full hearing had, as set forth in 
its order hereinbefore mentioned. 

But it is asserted that the value of the store at the time of 
the death of Kate France, as compared with the value of the 
store at the death of Appolonia Stuntz, has no place in this 
discussion. Kate France received the store in mass, and 
with it the liability to return that store and stock, shelving, 
fixtures, etc., at her death back to the estate from which she 
received it. She had the right to enjoy the usufruct there¬ 
of during her lifetime. She charged herself with no exact 
amount in dollars and cents to be returned, but, without 
giving bond to the estate of appellant s testatrix, volun¬ 
tarily took over in mass the store which she knew she must 
return. She, being dead, it now devolves upon her per¬ 
sonal representative, and in this instance upon the appellee 
herein, to determine what special property in said store be¬ 
longs to her estate, if any such there is. It is his duty, as 
executor of her estate, when now denying the right of the 
appellant to the store in mass which said appellant many 
years ago turned over in mass to the estate of Kate France, 
to state what specifically belongs to him, as executor of the 
estate of Kate France, or else to admit that that which now 
exists in mass, should be returned in mass as it was so taken. 
If the executor of the estate of Appolonia Stuntz turned 
over to Kate France as life tenant, a store to be conducted 
for her life, and with fixtures therein for conducting the 
business, and if she, as life tenant, voluntarily and willing- 
lv, with full knowledge of her legal liability to make a re¬ 
turn thereof, promiscuously added and placed therein prop¬ 
erty of her own which can not now be distinguished from 
the general mass which she received as belonging to another 
and in trust for another, the loss, if any there must be, must 




8 


fall upon her estate and no demand can be made for any 
excess sum which the store itself may have brought at 
public auction, since no means now exist to determine what 
it would have brought when she as life tenant received rt. 
Having confused her own goods during her life time with 
the goods of another, the result of that confusion if it re¬ 
sults in loss must be borne by the appellee, and the appe - 
lant, executor of the original testatrix, has the right not 
only to a sum equal to the original appraisement and inven¬ 
tory of said store at the time of the death of his testatrix, 
but the right to the store as it exists now at the time of 
the death of the life tenant. 

Thus in the case of Diversey, Adx„ vs. Johnson, Adx., 
reported in 93 Ill., 547. Diversey, as surviving partner, had 
purchased the control of the stock, business and concern of 
the firm of Diversey & Johnson. That firm had an account 
with a brewery for ale, in which Diversey was also a part¬ 
ner Johnson having died, Diversey continued to purchase 
ale from the brewerv. and continued to charge same to the 
account of the firm of Diversey & Johnson without in any 
way distinguishing the account for the ale purchased by 
him. as surviving partner, from that purchased by the 
original firm, and without accounting to the administratrix 
of Tohnson for the proceeds of the ale purchased subse¬ 
quent to the death of Johnson. The case was before the 
court on an accounting, and in the course of its opinion, 
the Court, speaking through Judge Baker, on page 568, 

said: 

“It is possible, perhaps probable, that the books of 
Diversey & Johnson do not show all the ale obtained 
bv them. But how can we right that matter? Even 
if the amount charged the firm on the brewery books 
was definitely ascertained, the books shown to be 
otherwise correct, then it is clear that the amount 


I 




9 


would include not only the ale that would be properly 
charged herein, but also the other ale that never went 
to swell the partnership fund, but that by the direc¬ 
tion and acquiescence of appellant's intestate was en¬ 
tered along with such proper charges, and the two so 
commingled that it is now impossible to say how much 
of this charge of $9,000.00 or $10,000.00 or $12,000.00 
or whatever else it may be shown to be should be here 
taken into account. If we admit one party must suffer 
the loss, which must it be? Shall it be the appellee, 
who as early as 1860 sought to obtain from Diversey 
settlement of these accounts? Or shall it be the estate 
of him, who disregarding the trust in him reposed, re¬ 
fused to render an accounting and who is responsible 
for this mixture of accounts? 

If the party having charge of the property of an¬ 
other so confounds it with his own, that the line of dis¬ 
tinction cannot be traced, all the inconvenience of the 
confusion is thrown upon the party who produces it, 
and it is for him to distinguish his own property or lose 
it, and this principle also holds in matters of account. 
Hart vs. d en Eyck, 2 John Chancery Rep., 108; Lup- 
ton vs. White, 15 Vesey, Jr., 432; Attorney General 
vs Fullerton, 2 Vesey & Beams Chy. R., 264; White 
vs. Lady Lincoln, 8 Vesey, Jr., 364; and I story, Eq. 
Jur., 468. The rule is applied both at law and in equity 
to all cases of a confusion produced by the person who 
has charge of the property of another. Brackenridge 
vs. Holland, 2 Blackford, 377. He has so confounded 
that which was a liability of the firm with the personal 
liability of his own, that it is impracticable to tell or 
even approximate what of this whole amount is a debt 
chargeable to him alone, and what is a debt against 
the trust fund of which he had control. The conse¬ 
quence of the confusion must be thrown upon him as he 
occasioned it, and it is for him to show what propor¬ 
tion of the whole is chargeable to the partnership fund. 
This he has not done, his acts, his conduct, his laches, 
have occasioned the dilemma, and on him, and his 
estate, must the loss, if any there be, fall.” 




10 


To the same effect is Beach, et al„ vs. Schmaltz 20 Ill., 
190 This was an action of replevin for cargo of lumber, 
brought by Schmultz against Beach, et al„ in his capacity ias 
sheriff, for wrongfully taking possession of the said lumber, 
and alleged that he. Schmultz. was the owner of the said 
cargo. Beach pleaded property in one Gray, and that by 
virtue of a writ of attachment against the goods of said 
Grav, he seized the property in question as the property o 
the said Gray. Issue having been joined, the evidence in 
the case showed that Gray owned part of the lumber and 
Schmultz the other part, but that Gray was unable to state 
what portion belonged to each separately; that the cargo 
in question was made from logs owned by Schmultz, Gray 
and others, and consisted of planks, boards, shingles, etc. , 
that Grav was the owner of the shingles, but Schmultz and 
Gray together owned the balance of the lumber, in equal 
shares; that Gray could not tell the number of feet belong¬ 
ing to him, and no one could identify Schmultz’s lumber 
from Gray's on the vessel. In commenting on the evi- 
dence, the court said: 


“The question of real moment in the case brings up 
the doctrine of confusion of goods, and so far as the 
principal cargo is concerned, which proof shows con¬ 
sisted of different kinds and qualities of lumber, and 
different grades—‘plank, boards and scantling, and 
some shingles. As to the lumber, Gray swears that 
he owned one-half, and Schmultz the other half, sepa¬ 
rately, and were so mixed together as that the several 
parts were incapable of identification. d ere 

are circumstances in the case tending to show an in¬ 
tention on the part of Gray to dispose of the cargo at 
Milwaukee, and thus defraud Schmultz; and for this 
bad purpose the several portions belonging to Schmultz 
and Gray, and that borrowed, were mixed up without 
the knowdedge and consent of Schmultz, so as to de ' 
prive him of his share, as it would appear. The doc- 




trine in this subject is this stated by Blackstone at page 
405, Vol. 2, of his Commentaries. After treating of 
the title of goods by accession, he says, ‘But in the 
case of confusion of goods where those of two persons 
are so intermingled that the several portions can be 
no longer distinguished, the English law partly agrees, 
and partly differs from the civil, and if the intermix¬ 
ture be by consent, I apprehend that in both laws, the 
proprietors have an interest in the common proportion 
to their respective shares. But if anyone wilfully inter¬ 
mixes his money, corn or hay with that of another 
man, without his approbation or knowledge, or casts 
gold in like manner into another’s melting pot or cru¬ 
cible, the civil law, though it gives the sole property of 
the whole to him who has interfered in the mixture, 
yet allows the satisfaction to the other for what he 
so improvidently lost. But our law, to guard against 
fraud, gives the entire property without any account 
to him whose original dominion is invaded and en¬ 
deavored to be rendered uncertain without his own 
consent.’ 

This doctrine, as thus laid down, is not disputed 
anywere in the courts where common law is the rule 
of decision. 

Gray, then, having wrongfully produced this confu¬ 
sion, by an unauthorized intermixture, necessarily for¬ 
feited his right to the whole, and the plaintiffs in error, 
his creditors, can have no right or claim to levy an 
attachment upon it. The court could do no otherwise 
than to find for Schmultz, the defendant in error, that 
it was his property.” 

See also 

Winter vs. Atkinson. 92 Ill. App., 165. 

Wingate vs. Smith, 20 Me., 287. 

Hesseltine vs. Stockwell, 30 Me., 237. 

State vs. Goll, 32 N. J. L., 285. 

Samson vs. Rose, 65 N. Y., 411. 

Tenkins vs. Stenka, 19 Wise., 126. 

Shoe Company vs. Sally, 114 Mo. Ap., 222-226, 




It is not necessary that the innocent party should prove 
that the mixture was actually made with wrongful intent. 
Rust Land & Lumber Co. vs. Isom. 70 Ark., 99-104. 

The burden of identification rests upon the party caus¬ 
ing the mixture, and so in this case appellee's testatrix hav¬ 
ing so mixed her goods with the goods of those belonging 
to^the estate of Appolonia Stuntz, the burden of identifying 
or of aggregating her particular goods from the indis¬ 
tinguishable mass now rests upon her. and failing in being 
able so to distinguish or aggregate, the loss if any falls upon 
the estate of appellee's testatrix and not upon the estate of 

Appolonia Stuntz. . 

For these reasons it is respectfully submitted that the 

Court erred 

1 st. In decreeing to Henry J. Ruppert the sum of $79.25. 
2nd. In not holding that there was a confusion of goods 
nnd that all the property belonged to Thomas E. McArdle. 
3rd. In not dismissing the petition of Henry J. Ruppert. 

Daniel W. Baker, 
William E. Leahy, 

! Attorneys ... 


COURT ocr 

DISTRICT CF colics 


P(Le Otu.v; SlA 




GOT.-3-I si I 


in the 

Court of Appeals of the 7 DistrictJ 

of Columbia 


No. 2662 


Thomas E. McArdle, Executor of the Estate of 
Appolonia Stuntz, Deceased, Appellant, 

Z’S. 

Henry J. Ruppert, Executor of the Estate of Kate 
France, Deceased, Appellee, 


BRIEF ON BEHALF OF APPELLEE. 


The statement of facts by appellant is correct, except 
where it is stated that the goods and fixtures found in 
the store upon the death of Kate France were appraised 
and sold after appellee qualified as executor of her estate. 
As a matter of fact her will was not admitted to probate 
until after the appraisement and sale, and it was because 
of the delay in probating her will that appellee consented 
to the sale being made by appellant instead of by appellee. 

The appellant herein bases his argument in the main 
on alleged error on the part of the lower Court in not 
holding that there was a confusion of goods and that by 
reason thereof all the property belonged to appellant. 
Although no such assignment of error was filed in the 



Court below and this question is therefore not properly 
before this Court, it will nevertheless be considered in 

this brief. 

The appellant’s position is that on the death of the life 
tenant he became entitled to receive from her estate goods 
and fixtures equal in value to those which he delivered 
to her upon the death of Mrs. Stuntz; that if the goods 
and fixtures decreased during the time that the life tenant 
conducted the business her estate became liable for such 
decrease, but if there was any increase her estate was not 
entitled thereto, but it became the property of the appel- 
lant. 

A number of cases are cited in appellant’s brief on the 
question of confusion of goods, but upon examination 
it will be found that all of them involved a wrongful 
commingling, and not one of them supports the conten¬ 
tion of the appellant that, where the commingling was 
by consent of the parties, there should be a forfeiture. On 
the contrary, the authorities cited in appellant’s brief, 
beginning with Blackstone, agree that the doctrine of 
forfeiture on account of confusion of goods does not 
apply where the commingling was by consent of the par¬ 
ties. 

On page 11 of appellant’s brief appears this citation 
from Blackstone’s Commentaries, Volume 2, page 405; 

“If the intermixture be by consent, I appre¬ 
hend that in both laws (English and civil) the 
proprietors have an interest in common in pro¬ 
portion to their respective shares.” 

The will of Mrs. Stuntz expressly authorized Kate 
France to carry on for her use and benefit the business 


2 





of dry goods, notions and toys left by the testatrix. How 
was the business to be conducted without commingling 
the original stock with goods purchased by the life ten¬ 
ant? In keeping the stock replenished she could not have 
been expected to purchase a needle or marble every time 
she sold one, or to limit her purchases to the extent of 
her sales. She was reasonably required to keep up the 
stock only in general; that is to have on hand stock and 
fixtures equal in gross value to those which she received 
from the appellant, and if she purchased more than were 
necessary to fulfill this obligation such excess belonged 
to her and did not have to be kept separate from the 
remainder. 

It is therefore clearly apparent that the will of Mrs. 
Stuntz necessarily contemplated the commingling of 
the goods. 

Both of the elements which are necessary to the appli¬ 
cation of the rule of forfeiture on account of confusion 
of goods are here lacking. Before this harsh rule can be 
invoked it must appear, first, that the commingling was 
fraudulent, and, second, that the interests of the parties 
in the goods are incapable of apportionment. 

Sutherland on Damages, page 163. 

Jewett vs. Dringer, 30 N. J. Eq., 291. 

If the goods have been commingled without fraud, the 
party who has commingled them is entitled to his share 
or the value thereof. 

Claflin vs. Continental Jersey Works, 85 Ga., 27. 

Wetherbee vs. Green, 22 Mich., 311. 

Stone vs. Quaal, 36 Minn., 46. 


Brown vs. Bacon. 63 lex., 595. 

Keweenaw Assn. vs. O’Neil, 120 Mich., 270. 

Denver Fist National Bank vs. Scott, 36 Neb., 607. 
Adams vs. Myers, 1 fed. Cases, 137. 

As already stated, this was not a fraudulent or wrong¬ 
ful commingling of goods, but they were commingled 
with the express authority and consent of the owner 
of the original stock. 

Nor can the appellant assert that the respective inter¬ 
tests of the parties in the goods are impossible of ascer¬ 
tainment. He had the goods and fixtures inventoried 
when he delivered them to the life tenant; he swore to 
the correctness of such inventory, both in the inventory 
itself and in his administration account, and thus led the 
life tenant to believe that the amount of such inventory 
was the extent of her liability. Having thus ascertained 
and stated under oath that he delivered to the life tenant 
goods and fixtures worth $350.00, he knows how much 
he should receive from the general mass, and the remain¬ 
der necessarilv belongs to the life tenant s estate. 

Suppose the life tenant had sold the entire stock and 
fixtures and converted the proceeds. Could the appellant 
have recovered more than $350.00 from her estate with¬ 
out offering evidence to show that they were worth more 
than that sum? If it developed that 12 years later the 
life tenant’s vendee sold out for $/40.00, would this be 
evidence to prove that different goods and fixtures, pur¬ 
chased 12 years before, were worth $740.00? 

The case of Rust Land and Lumber Co. vs. Isom, 70 
Ark., 99, cited on page 12 of appellant’s brief, not only 
fails to support appellant’s contention that it is not nec- 


essary to prove that goods have been commingled with 
wrongful intent, but, on the contrary, upholds the posi¬ 
tion of the appellee that where property has been com¬ 
mingled innocently or by consent it should be divided. 

This case comes within the principle which governs the 
rights of life tenants and remaindermen in respect to live 
stock, the rule being that where property is consumable, 
but also reproductive, the life tenant is entitled to the 
increase, but must keep up the original stock. 

11 Cyc., 620 and 622. 

Lewis vs. Davis, 3 Mo., 133; 23 Am. Dec., 698. 

Horry vs. Glover, 2 Hill Eq., (S. C.) 515. 

Poindexter vs. Blackburn, 36 N. C., 286. 

Perry vs. Terrel, 21 N. C., 441. 

In the case of Horry vs. Glover, supra, the Court said: 

“Plaintiffs (remaindermen) are also entitled 
to the value of the cattle hogs and sheep. * 

* * A specific bequest of property strictly con¬ 

sumable in the use, such as corn, wine, etc., gives 
the absolute property. But of a flock or herd, 
which is capable of increase, the tenant for life 
taking the increase, is bound to keep up the num¬ 
ber of original stock.” 

The representative of a tenant for life is entitled to 
be paid for increased value of stock or personal property 
of the estate during the existence of the life estate. 

Woods vs. Sullivan, 31 Tenn., 507. 

In the last named case the Court said: 

“Where the will indicates the intention of the 
testator that the tenant for life should enjoy the 


5 



property in specie—no sale can be made (by the 

executor)—and the remainderman is entitled 

only to such part of the property originally given 
as may remain after the life tenant shall fall. 
If the tenant for life has wasted or converted 
any part of the chattels, his estate will he liable 
for the amount so wasted or converted. But it 
it be consumed in the use intended to be made ot 
it, or perish by time or death of animals, or wear 
and tear of furniture and fanning tools, the 
rights of the remainderman are defeated and he 
is entitled to nothing except what may remain 
of the original stock. The accessions—-crops, 
young animals, the offspring of those originally 
given, new furniture, tools, etc., constructed by 
the labor of the property given ,, all belong to the 
owner of the particular estate. 

From the above authorities it is clear that a life ten¬ 
ant is accountable to the remainderman only for the 
value of the property as he received it. If it has depre¬ 
ciated in value he is chargeable with the deficiency, and, 
on the other hand, if, through the expenditure of his 
money and labor, the property has increased in value, 
he or his estate is entitled to the value of such increase. 
To hold otherwise in this case would be to defeat the 
intention of the testatrix, who authorized the life tenant 
to conduct the business for her benefit, and not for the 
benefit of the remainderman. 

Respectfully submitted, 

Francis L. Neubeck. 

Attorney for Appellee.