Quinn v. Shields.

stitution to be chosen or named by a trustee or executor. In that case, there is no uncertainty of the beneficiary, for the courts, when called upon to enforce the testament, will be advised of the direction of the charity by the act or declaration of the trustee or executor. Wills providing for the distribution and appropriation of charities in this manner are always upheld by the courts. Perry Trusts, § 731; 2 Redf. Wills (2d. ed.), 530-535; Hesketh v. Murphy, 35 N. J. Eq. 23; and see cases cited in note by reporter; Wells v. Doane, 3 Gray, 201; Brown v. Kelsey, 2 Cush. 243; Saltonstall v. Sanders, 11 Allen, 446; First Universalist Society of North Adams v. Fitch, 8 Gray, 421; Going v. Emery, 16 Pick. 107; Miller v. Teachout, 24 Ohio St. 525; Am. Tract Soc. v. Atwater, 30 id. 77; DeBruler v. Ferguson, 54 Ind. 549; Com. of Lagrange Co. v. Rogers, 55 id. 297; Pickering v. Shotwell, 10 Penn. St. 23; Witman v. Lex, 17 S. & R. 88; Beaver v. Filson, 8 Penn. St. 327; Perin v. Carey, 24 How. 465; Loring v. Marsh, 6 Wall. 337.

An elaborate note to Hesketh v. Murphy, supra, by the reporter and another, found in 21 Am. Law Register (N. S.), 660–666, cite scores of cases holding that similar dispositions of charities by will are valid. It also gives quite a number that may be cited against the doctrine. We doubt not however that the conclusion we reach is supported by the great weight of authority. The facts of this case distinguish it from LePage v. McNamara, 5 Iowa, 124.

We reach the conclusion that the will is not void for uncertainty of the beneficiaries of the charity.

We are to inquire whether there is a trustee named in the will, whose act or designation will render certain the beneficiaries of the charity. This may be admitted, for the purposes of the case, without so deciding, to be necessary. Counsel for plaintiffs insist that the will provides for no such trustee. We think the contrary clearly appears, and that the instrument in the plainest terms names Mary T. Shields as such trustee. The language of the will following that last quoted is as follows: "She [Mary T. Shields] is charged with the duty of making such disposition of said means as is herein provided, by will properly executed before her death, it being my intention that so much of the funds herein intrusted to said Mary T. Shields for her use and benefit during her natural life, as may remain at her death, shall not descend to her heirs, but go as above provided, to some Catholic institution or institutions."

Quinn v. Shields.

It cannot be doubted that if the words "by will properly executed before her death" had been omitted, the language would have clearly indicated the creation of a trust, and directed its execution. But counsel for plaintiff urge, that as these words limit the power of Mary T. Shields to make the appropriation of the charity and designation of the beneficiaries by will, she cannot therefore be regarded as a trustee. There is no force in this position for these reasons: Suppose Mary T. Shields should waive her life estate and interest in the property, can it be doubted that she could then indicate the beneficiaries to receive the charity? Or can it be doubted that she has the right and power to surrender her life estate? In case she should do so, the trust could be executed by her in her lifetime. Can it be said that she will not do so? Surely chancery will entertain no such presumption.

But we are able to discover no reason why the trust may not be executed by a will, as permitted or contemplated by the language of the testament before us. Indeed the provision seems to have been suggested by common sense, seeking to effectuate the intention of the decedent. She intended that Mary T. Shields should enjoy the property during her life, and she further intended that the same power should direct the charity to the beneficiaries who should finally receive it. When Shields' rights shall cease she will be no more in life, and will therefore be incapable of then naming the beneficiaries. But property may be disposed of by will, and the decedent, in the exercise of good common sense, chose that character of disposition on the part of Shields which would perfectly carry out the intention of the testator. We know of no legal principles which will defeat the will on this ground, and have been referred to no authorities so holding. The authorities hold, we think, that a power relating to a trust may be executed by a will where the power creating the trust so provides. See 4 Kent Com. *330; 2 Hillard Real Prop., p. 563, § 41; 2 Greenl. Cruise Real Prop., p. 534, § 16; 1 Jarm. Wills, 547; 1 Story Eq. Jur., § 173, and notes. These authorities go to the extent of holding, that when no form for the execution of the power is prescribed it may be executed either by deed or will.

It is urged that Shields may not execute a will, and in that case the court cannot enforce the will for the reason of the uncertainty that will exist as to the beneficiaries of the charity. We cannot presume that the trustee will neglect to discharge the duty imposed VOL. XLIX - 19

State v. Shoemaker.

upon her of naming by will the beneficiaries, but on the contrary must presume that she will, in the discharge of her duty, indicate by testament the objects to which the charity shall be appropriated. But at all events that question cannot now be anticipated. It will be time enough to meet it when Shields dies without making the disposition of the property by will, if such a thing should happen. The foregoing discussion. disposes of all questions necessary to be considered in the disposition of this case, and brings us to the conclusion that the judgment of the District Court ought to be Affirmed.

STATE V. SHOEMAKER.

(62 Iowa, 843.)

Bastardy-liability for support.

A man marrying a woman, known by him to be pregnant by another, is alone liable for the support of the child.

P

ROCEEDING to charge defendant with support of a bastard. The opinion states the case. The defendant had judgment

below.

H. B. Hendershott, Samuel Jones and Smith McPherson, attorney-general, for State.

Stiles & Beaman, for appellee.

BECK, J. The undisputed testimony as disclosed by the evidence for the State established the following facts:

1. The child was begotten by the defendant, and was born on the 13th day of August, 1882. 2. Prior to its birth, on the 1st day of June, 1882, the mother, the prosecutrix, married another man named Getz. 3. At and before the marriage, Getz was informed by the prosecutrix that she was enceinte; her condition was apparent from her appearance. Upon these facts, the District Court held that plaintiff could not recover, and directed the jury to return a verdict for defendant.

Under chapter 56, title 25 of the Code, a father may be charged

State v. Shoemaker.

with the maintenance of his illegitimate child. The proceeding thereunder is entitled as an action in the name of the State against the alleged father, and may be prosecuted upon the complaint of the mother. It is a civil action of a summary nature, Holmes v. State, 2 G. Greene, 501; Black Hawk County v. Cotter, 32 Iowa, 125, and is intended to secure the maintenance of the bastard, to the end that in no event shall the public become chargeable therewith. Of course, if one stands in the relation to the child which will cause the law to esteem him liable as its father for its support, being in loco parentis, the proceeding cannot be prosecuted against another who is in fact the natural father. The one whose relations are such that he stands in loco parentis the law esteems the father, and will not, for various reasons, inquire by whom the child was begotten. One who marries a woman known by him to be enceinte is regarded by the law as adopting into his family the child at its birth. He could not expect that the mother upon its birth would discard the child and refuse to give it nurture and maintenance. The law would forbid a thing so unnatural. The child, receiving its support from the mother, must of necessity become one of her family, which is equally the family of the husband. The child then is received into the family of the husband, who stands as to it in loco parentis. This being the law, it enters into the marriage contract between the mother and the husband. When this relation is established, the law raises a conclusive presumption that the husband is the father of his wife's illegitimate child. We must not be understood to hold that this rule prevails in cases involving questions of heirship and inheritance. In these cases the rights of others besides the husband and bastard arise. In this case, the rights and liabilities of the husband and child are alone involved, they rest upon the relations which impose upon the husband the duty of maintaining the child. Our conclusion is supported by public policy, and considerations which work for the peace and well being of families. A husband who, in the manner we have indicated, has put himself in loco parentis of a bastard child of his wife, ought not to be permitted to disturb the family relation, and bring scandal upon his wife and her child, by establishing its bastardy, after he has condoned the wife's offense by taking her in marriage.

The conclusion we reached in this case is supported by State v. Romaine, 58 Iowa, 46, and cases therein cited.

Thomas v. Stetson.

Many of the cases cited by defendant's counsel, Wright v. Hucks, 15 Ga. 160; Cross v. Cross, 3 Paige, 139; 23 Am. Dec. 778; Goodright v. Saul, 4 Tenn. 356; Lomex v. Holmden, 2 Str. 940; Hall v. Commonwealth, Hardin (Ky.), 486; State v. Pettaway, 3 Hawks, 623; Commonwealth v. Wentz, 1 Ashm. 269; The King v. Inhabitants of Kea, East, 132; The King v. Inhabitants of Maidstone, 12 id., 550; Shelly v. , 13 Ves. 56; State v. Broadway, 69 N. C. 411; Stegall v. Stegall's Adm'r, 2 Brock. C. C., 256, involve questions of heirship or inheritance, and in this respect differ from the case before us. The distinctions between those cases and this, based upon this ground, are obvious. We have above pointed them out. Other cases cited by counsel are also distinguished by these facts from this case. It is our conclusion that the judgment of the District Court ought to be

Affirmed.

THOMAS V. STETSON.

(62 Iowa, 537.)

Partnership-paying individual debt with firm property.

One partner, individually indebted to a person owing the firm, may not apply the debt due the firm to the payment of his own debt, without consent or ratification by his copartners, and the debtor to the firm is still liable therefor.*

A

CTION for goods sold and delivered. The opinion states the case. The plaintiff had judgment below.

Gregory & Bailie, for appellant.

Lot Thomas, for himself.

ADAMS, J. The facts as shown by the answer are that the goods in question were purchased by the defendant of one J. F. Doty & Co., the plaintiff's assignor; that this firm consisted of J. F. Doty and James R. Day, and was engaged in selling lumber and coal at Storm Lake; that Doty resided at Storm Lake and was the active

*To same effect, Cotzhausen v. Judd (43 Wis. 213), 28 Am. Rep. 539.