In the connection in which this language was used it manifests an intention to provide for the contingency of the death, after the will was made, of a child to whom the will gave a share of the residue of the testator's estate. The preceding part of the clause in which this language is found stated the name of each of the testator's children to whom such share was to go if that child survived the testator. The will does not show that the appellant's mother would have taken a share if alive. There is an absence of any indication of an intention to provide for the consort or issue of a child who already was dead when the will was made. The testator identified the persons intended to be described by the words "my children" by setting out their names. The last quoted provision had the effect of substituting the surviving consort and issue in the place of any previously named beneficiary who might die during the testator's lifetime. To say the least, the language used is inappropriate to describe the surviving husband and issue of one for whom the will made no provision in any event. That the words "my children," as used in the last-quoted provision, were intended to include only the previously named children who were living at the time the will was made is further indicated by the terms of the seventh paragraph of the will, which made provision for any child of the testator that might be born after the execution of the will or after the testator's death. That clause provides that such subsequently born child should "share equally with my other children and my wife above named, each devisee contributing ratably to make up the share of such child." This plainly indicates the testator's understanding that only his previously named children and wife were to be the devisees of the residue of his estate, if they survived him and no other child was born after the will was made. For the reasons above indicated the conclusion is that the language of the will is not fairly susceptible of the construction contended for in behalf of the appellant. Even if it was capable of a construction that would permit the appellant to share in the estate, it is questionable whether, on the ground that there was an absence of any reason or explanation of the testator's exclusion of his granddaughter from sharing in his estate, such a construction should be preferred to one more consistent with what the language employed indicates was the testator's intention. The circumstances existing when the will was made were such that it well might be inferred that the testator did not give the appellant a share in his estate, because he thought that she otherwise would be adequately provided for. Affirmed. MOORE & McCORMACK CO., Inc., v. HESSLEIN et al. No. 26. SHIPPING 104 CONTRACT OF AFFREIGHTMENT-SUBSTITUTION OF VESSELS. Under a contract by managers of a steamer line to carry cargo by one of its steamers, "or by a steamer or steamers to be named later," the shipper was entitled to carriage by a steamer of such line, and not required to accept as a substitute a naval transport of a foreign government on which the managers, as brokers, had engaged cargo space. Appeal from the District Court of the United States for the Southern District of New York. Suit in admiralty by the Moore & McCormack Company, Incorporated, against Edgar J. Hesslein and another. Decree for libelant, and respondents appeal. Reversed. Gustave Lange, Jr., and Frederick R. Graves, both of New York City, for appellants. Kirlin, Woolsey & Hickox, of New York City (Mark W. Maclay, Jr., and John M. Woolsey, both of New York City, of counsel), for appellee. Before WARD, ROGERS, and HOUGH, Circuit Judges. WARD, Circuit Judge. Moore & McCormack Company, Incorporated, managing agents of the Commercial South American Line, which was the trade-name for a line of steamers owned or operated by them, filed this libel against Neuss, Hesslein & Co., to recover damages for breach of a contract, the material provisions of which are as follows: Moore & McCormack Co., Inc., Managers. Commercial South American Line Brazilian Ports, River Plate Ports. (Flag bearing initials 'M. & McC'.). West Indies, Mexican-Cuban ports. Central American and North Coast South American Ports. Managing Agents: Clinchfield Navigation Co., Inc., U. S. Atlantic and Gulf Service. NoticeThe company assumes no responsibility for any refusals given that are not issued on this refusal form, and that are not signed by one of the company's officers. New York, April 10, 1916. Messrs. Neuss, Hesslein & Company, 43 White Street, New York, N. Y.Dear Sirs: We confirm contract for freight room under deck cargo as stated below, for shipment on the steamer Mooremack, or by a steamer or steamers to be named later, shipment in whole or part cargo, via port or ports in or out of customary order, at steamer's option. Cargo as follows: One thousand (1,000) compressed bales cotton at four and one-quarter cents (44 c.) lb. landed. New York Rio Janeiro It is expressly understood and agreed that all shipments are made subject to the terms and conditions of the Moore & McCormack Company, Incorporated, form of shipping receipt and bill of lading, and the conditions contained therein are made a part of this contract. All lighterage at risk and expense of the cargo. Freight to be prepaid on the signing of bills of lading, at New York and earned, steamer and/or goods lost or not lost at any stage of the transit. * For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Lay days, if required by shippers, not to count before April 29, 1916. Shippers option of canceling, if steamer not ready to receive cargo by 6 p. m. on May 31, 1916. The Moore & McCormack Company, Incorporated, has the option of designating loading and/or discharging berths. If the Moore & McCormack Company, Incorporated, does not avail itself of this option, the consignor and/or consignee to supply berths, immediately upon the readiness of steamer to load and/or discharge. Yours very truly, We accept and confirm the contract. Moore & McCormack Company, Inc., Neuss, Hesslein & Co., per M. J. Cuffe. New York, April 10th, 1916. May 10, 1916, as the steamer Mooremack could not arrive in time to load before May 31, the libelant designated the steamer Sargento Albuquerque as a substitute. This steamer was loading general cargo, and was not one of the Commercial South American Line, nor owned nor operated by Moore & McCormack Company, Incorporated. May 11, the respondents declined to ship on her. It is contended that the only reason given by the respondents was that the Sargento Albuquerque did not have the requisite rating, and therefore that this is the only defense upon which they have a right to stand. But the answer alleged, among other things, that she was not a proper steamship in accordance with the terms of the agreement, which said nothing about ratings. Besides, at the trial, the respondents testified that they had objected to the steamer because they were dealing with the Moore & McCormack Line, and also produced testimony of custom that under such a line contract a substituted vessel must be one of the same line. We think they have a right to rely upon this defense also. The first question, therefore, is whether under this contract the tender of freight room on a steamer loading general cargo, not one of the Commercial South American Line, and not owned or operated by the Moore & McCormack Company, was good. What the Moore & McCormack Company did was to get, as brokers, an option for shipping the respondents' cargo on the Sargento Albuquerque; that steamer being liable to them for brokerage if the goods were shipped. We think the tender was not good. The Moore & McCormack Company were acting, not as brokers, with Neuss, Hesslein & Co., but as principals. The contract executed is on the printed form of their line, and provides that the shipment is to be subject to the terms and conditions of the Moore & McCormack Company form of bill of lading and shipping receipt, which are made a part of it. The bill of lading describes it as a "regular line of steamers for Brazilian ports," and refers to "all vessels of this line" and to the "customary ports of this line." We have no doubt that the contract is to be construed as one for shipment on a steamer of the line. If it had been made with either the American, French, Cunard, White Star, or any other regular wellknown line of steamers, no one would have pretended that such company would fulfill it by engaging freight room on a general ship not owned or operated by it. But if it were to be held that such a vessel could be substituted, we think that the particular steamer Sargento Albuquerque should not be considered a proper tender. She was a transport of the Brazilian navy, commanded by a lieutenant of that navy. The shipment, if made, would have been in the possession of the Brazilian government, and if it had been damaged or lost the respondents could not have proceeded against the Brazilian government, it being a sovereign, in personam, nor against its steamer, in rem. The fact, also, that the steamer was getting very much lower rates of freight than the market rates may very well have reflected to some extent the views of commercial people on this point. We need not consider the questions discussed in respect to the measure of damages. The decree is reversed. In re BITNER. KEEL v. LIGHTBODY. (Circuit Court of Appeals, Seventh Circuit. September 3, 1918.) 1. BANKRUPTCY No. 2559. 396(1)-EXEMPTION-STATE LAW. State law controls as to nature and amount of exemption. 2. HOMESTEAD 128-EXEMPTION. Where an Illinois homestead was worth less than $1,000 over and above incumbrances, there is no question of setting off the whole or any, preliminary to sale on execution, and no valid sale can be made under execution; but the owner, despite sale or judgment, may dispose of his interest free from judgment liens, etc. 3. BANKRUPTCY 396(5)-TRUSTEE-RIGHTS OF HOMESTEAD. Where, under the state laws, the bankrupt's equity in a homestead was completely exempt, no interest passed to the trustee. 4. BANKRUPTCY 400(1)-SETTING ASIDE EXEMPTIONS-CLAIM. Where, under the state laws, the bankrupt's equity in a homestead was wholly exempt, so no title passed to the trustee, held, that title passed to the mortgagee, to whom the bankrupt conveyed his interest, and, the bankrupt having later conveyed to the trustee, the mortgagee was not required to assert his title; General Order No. 17 (89 Fed. viii, 32 C. C. A. xix), relating to setting aside exemptions, being inapplicable. Appeal from the District Court of the United States for the Northern Division of the Southern District of Illinois. In the matter of Charles Bitner, bankrupt. George W. Keel appeals from orders of the District Court, affirming orders of the referee granting the petition of Leslie Lightbody, trustee in bankruptcy, for the sale of real estate, and denying appellant's petition to set the order aside. Reversed and remanded. Robert H. Lovett, of Peoria, Ill., for appellant. Before MACK and EVANS, Circuit Judges. MACK, Circuit Judge. The question raised on this appeal is a very narrow one. What rights, if any, has a trustee in bankruptcy in and to the equity of a bankrupt in an Illinois homestead estate, concededly For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes worth less than $1,000. over and above the incumbrances, at the time that the voluntary petition in bankruptcy was filed, homestead exemption having been claimed in the schedule filed by the bankrupt? Title to the property in question stood in the bankrupt at the date of the filing of the petition. Subsequently he and his wife conveyed the property to the mortgagee, and some months later they again conveyed it to the trustee in bankruptcy. [1, 2] The state law controls as to the nature and amount of exemption, and in Illinois it is clearly settled, not merely that a homestead to the extent of $1,000 is exempt, but that, if the homestead premises are worth, over and above incumbrances, less than $1,000, the property itself is absolutely free from claims of creditors. In such a case there is no question of setting off the whole or any part of the property on account of the homestead interest preliminary to a sale on execution. No valid sale can be made; if made, it is a nullity, and no title whatsoever passes thereunder. Despite such a sale, despite any judgments, the owner may dispose of such homestead interest as he pleases free of judgment liens. Brokaw v. Ogle, 170 III. 121, 48 N. E. 394; Garwood v. Garwood, 244 Ill. 582, 91 N. E. 672; Sheahan v. Madigan, 275 Ill. 379, 114 N. E. 135. [3] It follows, therefore, that, as the equity was exempt from creditors' claims, no interest therein passed to the trustee by virtue of the bankruptcy proceedings. The title remained in the bankrupt. His right to dispose of it was unrestricted. Whether he sold it, or gave it away, or granted it to one or more of his creditors, with or without a consideration, was a matter that did not in the slightest degree concern the trustee in bankruptcy or any creditor, inasmuch as under no circumstances had they or any of them any interest therein. No question arises here as to the jurisdiction of a court of bankruptcy to determine whether or not the equity equaled or exceeded $1,000. When it was expressly determined that, as stated in the schedules and as found by the appraisers, the value of the equity was less than $1,000, the court should have decreed that the trustee had no interest therein by virtue of the bankruptcy proceedings; and inasmuch as the conveyance by the bankrupt and his wife vested title in appellant, the mortgagee, the later conveyance to the trustee was ineffective for any purpose whatsoever. [4] The trustee's report, rendered some nine months after the petition in bankruptcy was filed, and shortly after the second deed was executed, that thereby the bankrupt had waived his claim of exemption, imposed no duty upon appellant, the real owner of the legal title, to assert that title in the bankruptcy court. General Order No. 17 (89 Fed. viii, 32 C. C. A. xix), which requires a trustee to set off exempt articles within 20 days, and creditors to take exceptions to the trustee's report within 20 days, has no application, because here there were no exemptions to be set off by the trustee. The trustee merely made an ex parte erroneous report and claim of title; appellant, as owner, was under no obligation to except thereto. This case is totally unlike the cases cited by appellee, involving claims of homestead rights as distinguished from homestead estates, or claims 255 F.-4 |