Franklin z. Franklin.

John Armfield Franklin, recover this amount with interest from the date it came to the hands of defendant as executor of John Armfield. He will recover interest because there was nothing to prevent a payment of that fund at that time, as there was a party in existence capable of receiving itthe representative of John Armfield Franklin's estate.

After it is received, complainant, as legatce, has an interest, but what that interest is can only be ascertained after settlement of expenses of of the estate incurred in litigation-it seems there are no debts or other charges against the estate. But it is obvious that large expenses have been incurred in establishing the will and prosecuting this cause, and it is only out of the net surplus that the legacy is to be settled. Of whatever this may be, complainant will be entitled to a life estate, and defendant to a set-off as to this, on account of his debts established as decreed by the Chancellor.

The corpus of the fund remaining after settlement of expenses and charges indicated, will, on the expiration of the life estate of Ed N. Franklin, belong to his surviving children, who take as a class under the will, the bequest being to a class of persons subject to fluctuation by increase

or

diminution of its number in consequence of future births or deaths, and the time of payment or distribution of such fund being fixed at a subsequent period on the happening of a designated event, and the bequest being of an aggregate fund

Franklin 2. Franklin.

given to the children as a unit and passing a joint interest. 7 Yer., 606; 11 Hum., 58, 478; 2

Sneed, 9.

The word "heirs" used in the will is manifestly used in the sense of children.

The cause will be remanded for an account to ascertain the amount, if any, which may be the subject of set-off in favor of defendant.

The costs of the cause accrued below will be paid two-thirds by defendant and one-third by complainant; that of this Court will be equally divided between them, both having appealed and assigned errors. The amount charged to complainant may be paid out of the fund recovered to be administered.

Insurance Co. v. Trustees C. P. Church.

INSURANCE Co. v. TRUSTEES C. P. CHURCH.

(Nashville. January 16, 1892.)

1. CHARGE OF COURT. Requirement of written charge upon request in civil case mandatory.

The statutory requirement is mandatory that the trial Judge shall, upon the request of either party to a civil case, "reduce every word in his charge to writing before it is delivered to the jury," etc.; and the Court's failure to comply strictly with such request constitutes reversible error, although it does not appear that exception was taken on that account in the lower Court, or that any injury thereby resulted. Code construed: 3672 (M. & V.).

2. SAME. Same. Example of violation of statute.

And it constitutes a violation of this statutory requirement, for which the case will be reversed, where the Court, before reading his charge to the jury, said to them orally: "Gentlemen of the jury: You are to try this case upon the sworn testimony of the witnesses who have been introduced; if you know any thing about the matter in controversy between the parties, or any thing in relation to any matters about which any witness has testified, you will not communicate any such matter to any of your fellow-jurors; nor will you allow any thing which you may know about the matter of your own knowledge to influence your verdict in the case. You must try the case alone upon the sworn testimony of the witnesses and other proof introduced before you, and the charge of the Court which I will give you in writing; and you are not to suffer any one to talk to you about the cause." Such language is appropriate for the charge, and must be written.

FROM RUTHERFORD.

Appeal in error from Circuit Court of Rutherford County. ROBERT CANTRELL, J.

Insurance Co. z. Trustees C. P. Church.

C. A. SHEAFE and STOKES & STOKES for Insurance Co.

MCLEMORE & RICHARDSON and H. E. PALMER for Trustees C. P. Church.

LEA, J. Upon the trial of this cause, before any evidence was submitted to the jury, the plaintiff in error requested the Court to deliver his charge to the jury in writing. After the argument of the case had closed, the Judge said orally as follows: "Gentlemen of the jury: You are to try this case upon the sworn testimony of the witnesses who have been introduced; if you know any thing about the matter in controversy between the parties, or any thing in relation to any matters about which any witness has testified, you will not communicate any such matter to any of your fellowjurors; nor will you allow any thing which you may know about the matter of your own knowledge to influence your verdict in the case. You must try the case alone upon the sworn testimony of the witnesses and other proof introduced before you, and the charge of the Court which I will give you in writing; and you are you are not to suffer any one to talk to you about the cause."

He then proceeded to give his written charge to the jury. The request for a written charge was made under the Act of 1875 (M. & V. Code, $3672), which is as follows: "On the trial of civil cases in the Courts of this State, it shall be the

Insurance Co. v. Trustees C. P. Church.

duty of the Judge before whom the same is tried, at the request of either party, plaintiff or defendant, to reduce every word in his charge to writing before it is delivered to the jury, and all subsequent instructions which may be asked for by the jury, or which may be given by the Judge, shall in like manner be reduced to writing before being delivered to the jury."

This section is nearly the same as $6052 of the Code (M. & V.) in regard to felony cases, only in all felony cases it is made the duty of the Court to reduce every word of the charge to writing, while this section imposes the same duty upon the Judge when the charge is requested in writing. This Court in several cases have passed upon the felony statute, and have declared that it was imperative; that the charge must be given in writing, and upon failure this Court would reverse; and that we could not even inquire if the party was in any manner injured thereby. This statute, when a plaintiff or defendant requests that the charge be in writing, is as imperative as the felony statute. It provides that when a written. charge is requested, that the Judge is "to reduce every word of his charge to writing before it is delivered to the jury." But it is insisted that what was said orally were directions and cautionary instructions to the jury, and not a charge; that a charge, as defined by Bouvier, is "the exposition by the Court to the jury of those principles of the law which the latter are bound to