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Such assent is effective and justifies the trustee's acts only so far as the interest of the person assenting is concerned: Ryder v. Sissou, 7 R. I. 341.

SUTHERLAND v. SUTHERLAND.

[102 IOWA, 535.]

PLEADING-REFERENCE TO COURT FILES.-For the purpose of abbreviating the record, portions of the court files may, by specific averment, be referred to, and incorporated in, the pleadings; and this practice is unobjectionable where no confusion or other harm results.

APPEAL-PLEADING-MAKING A WILL PART OF AN ANSWER-REFERENCE WITHOUT EXHIBIT.-If the defendants in an action rely upon a probated will and, in express terms, make it a part of their answer, and refer to it as a part thereof, they will not be heard, on appeal, to say that the will is not a part of the answer, even if the will is not set out in the answer or as an exhibit thereto.

DOWER-WHEN WIFE'S ACCEPTANCE OF DEVISE IS NO BAR.-If a husband devises a life estate to his wife without any express provision in the will that such estate shall be in lieu of dower, her acceptance of the devise does not bar her right to a distributive share of his estate owned by him at the time of his death.

PLEADING-DEMURRER-ADMISSION OF FACTS.-An allegation in a pleading that a devise was intended to be in lieu of dower is a mere conclusion, and nothing is admitted by a demurrer where no facts are stated to sustain such conclusion.

Action for a distributive share of real estate. The plaintiff, Nancy Sutherland, widow of Donald Sutherland, asked that her share of certain real estate of which her husband died seised be set apart to her. The defendants, Nathaniel Sutherland and others, heirs at law of the deceased, answered that Donald Sutherland died testate; that his will was duly probated; that in it he bequeathed to plaintiff the real estate described in her petition, to have and to use during her natural life, with remainder to the defendants, "in lieu of her dower or statutory rights in said land." They also made the will and other portions of the court files, records, etc., a part of the answer, and referred to them as such. The defendants asked that the prayer of the petition be denied. The plaintiff demurred on two grounds: 1. That the facts of the answer did not entitle the defendants to the relief demanded; 2. That the facts stated in the answer, and the provisions of the will referred to therein and made a part thereof, failed to show that the plaintiff was not entitled to the relief demanded. The demurrer was sustained, and, the defendants electing to stand upon their answer, a default was entered, and

a decree rendered, as prayed for in the petition. The defendants appealed.

Welch & Welch, for the appellants.

F. O. Ellison, for the appellee.

537 GIVEN, J. 1. Appellants insist that, as the will is not set out in nor as an exhibit to their answer, it should not be considered as a part thereof in passing upon the demurrer. As under the admissions in their answer the only defense they have rests upon the provisions of the will, we do not discern why appellants desire to withhold the will from consideration. In Wishard v. McNeil, 78 Iowa, 48, this court said: "It is not uncommon for the pleadings to refer to and incorporate therein portions of the court files by specific averment. Such practice tends to abbreviate the record, and where confusion or other harm does not result we do not think it objectionable. The practice would be subject to control of the court in the exercise of a sound legal discretion." Appellants, as we have seen, in express terms "make the will . . . a part of this answer and refer to the same as part of this answer." Surely, in the face of this, they should not now be heard to say that the will is not a part of their answer.

2. In Howard v. Watson, 76 Iowa, 230, it is said, "The devise to the defendant is an estate for life, and it has been held that a widow 'may take dower, notwithstanding a devise to her in the will, unless there is an express provision in the will to the contrary, and the claim for dower be inconsistent with and will defeat some provision of the will," citing Daugherty v. Daugherty, 69 Iowa, 677. It also said: "And in Metter v. Wiley, 34 Iowa, 214, it was held that the devise of a life estate would not 538 bar the right of a widow to a distributive share of the real estate owned by her husband at his death." The answer shows on its face that the devise is of a life estate, and fails to show that there is an express provision in the will that that estate shall be in lieu of dower. The allegation that it was so intended is the statement of a mere conclusion, and one that is not warranted by what is said as to the devise. We think that the matter stated in the answer itself does not show a defense to plaintiff's cause of action. The provisions in the will are these: "1. It is my will that my wife, Nancy Sutherland, shall have, after my death, the possession and use of my property, real and personal, until her death; 2. After her death the remaining property, real and personal, shall be ap

praised, and sold and divided among our children in the following portions." Then follow the names and portions of the children. We think it entirely clear, under the cases cited, that the demurrer was properly sustained. The judgment of the district court is therefore affirmed.

PLEADING EXHIBITS - REFERENCE TO DOCUMENTS ESTOPPEL.-A PAPER cannot be incorporated in a pleading by reference to it. If it is desirous to show to the court the contents of a paper, this may be done by exhibiting it, or by averring the legal effect of its contents: Hanover Fire Ins. Co. v. Brown, 77 Md. 64; 39 Am. St. Rep. 386. Short pleadings, when applicable, are to be encouraged: Harlan v. Bernie, 22 Ark. 217; 76 Am. Dec. 428; but, while written evidence may be filed as exhibits, and referred to as part of the pleading, good pleading requires that the substance of such evidence shall be set forth by proper averments: Harvey v. Kelly, 41 Miss. 490; 93 Am. Dec. 267.

APPEAL-ESTOPPEL-ALLEGATION IN

PLEADINGS.-A

party is estopped by the allegations in his own pleading: Knoop v. Kelsey, 102 Mo. 291; 22 Am. St. Rep. 777; Lowry v. Erwin, 6 Rob. (La.) 192; 39 Am. Dec. 556.

PLEADING-DEMURRER-ADMISSIONS BY.-A demurrer admits only such facts as are well pleaded. It does not admit conclusions of fact or of law: McPhail v. People, 160 Ill. 77; 52 Am. St. Rep. 306, and note; American Water Works Co. v. State, 46 Neb. 194; 50 Am. St. Rep. 610, and note.

DOWER-WILL.-A widow may take a life estate under her husband's will without defeating her right of dower. She may take in both ways if there is no express provision prohibiting the taking of dower, and such taking is not inconsistent with the will. Hence, her acceptance under the will is no bar to her right of dower: Hunter v. Hunter, 95 Iowa, 728; 58 Am. St. Rep. 455, and note.

BEECHLEY V. MULVILLE.

[102 IOWA, 602.]

DEFINITIONS “COMMODITY" IS THAT which affords advantage or profit.

DEFINITIONS-INSURANCE IS A "COMMODITY" within the meaning of a statute which prohibits any pool, trust, agreement, combination, or confederation with any partnership, corporation, or individual to regulate or fix the price of oil, lumber, coal, grain, flour, provisions, “or any other commodity or article whatever."

CONSPIRACY TO FIX RATES OF INSURANCE-FORBIDDEN COMBINATIONS.-A compact between local insurance agents of different cities to fix the rates upon all risks therein, and which imposes certain penalties for the taking of risks at less rates than those fixed by the compact, comes within the prohibition of a statute which forbids the formation of combinations or confederations to regulate or fix the price of any commodity.

CONSPIRACY AS A SUBJECT OF CIVIL ACTION.-A conspiracy cannot be made the subject of a civil action, unless something is done which, without the conspiracy, would give the right of action.

CONSPIRACY-FIXING RATES OF INSURANCE-UNLAWFUL TRANSACTION.-If local insurance agents form an unlawful combination or compact to regulate and fix rates of insurance, with certain rules, regulations, and penalties, an agent, who is a member of the compact, and who represents companies, not members of it, but which have a right to discharge him at pleasure, cannot, after his violation of the terms of the compact, and the revocation of his agencies, by the compact and companies represented by him, because of his refusal to observe the terms of the combination, recover damages, either from the members of the compact or from such insurance companies, for the loss occasioned to him by such revocation, especially where the agencies came to him as a member of the compact, upon an agreement to do business under its rules; and it makes no difference that the members of the compact and such insurance companies acted together to enforce the rules and regulations of the combination. The transaction, in its entirety, is unlawful.

Action for damages because of a conspiracy to destroy the plaintiff's business as an insurance agent. There was a judgment for the plaintiff and the defendants appealed.

Jamison & Burr and A. R. West, for the appellants.
Smith & Smith and C. J. Deacon, for the appellee.

Charles T. West The plaintiff was and on the four

G03 GRANGER, J. 1. The defendants are, besides John Mulville and Henry Bennett, the Detroit Fire and Marine Insurance Company of Detroit, Michigan, and the Phoenix Insurance Company of Hartford, Connecticut. was named as a defendant, but not served. an insurance agent at Cedar Rapids, Iowa, teenth day of November, 1883, he became a member of the "compact" or organization styled the Cedar Rapids and Marion Underwriters' Union. The agreement is embraced in a writing, denominated "Compact," the first division of which is as follows:

"Compact.

"The Cedar Rapids and Marion Underwriters' Union.

"We, the undersigned, local agents of Cedar Rapids and Marion, Iowa, agree to enter into the following compact, with Henry Bennett, as manager, who shall be required to give a good and sufficient bond in liquidated damages not to engage in the business of fire insurance as a local agent, directly or indirectly, in Cedar Rapids or Marion, for a period of not less than three years from the date of his vacation of office, the expense of such compact and manager to be paid by the companies on a pro rata basis of receipts. The duties of said manager to be as follows: 1. To fix rates upon all risks in Cedar Rapids and Marion and vicinity of each, which he shall promulgate and furnish to all agents at once; 2. He shall pass upon and approve by

his official stamp (which shall bear no erasures or alterations) all the monthly accounts, abstracts, and daily reports, reports of transfers of location of risks, and indorsements, and mail same to various companies or general agents; also, all policies, renewal receipts, or certificates of insurance on which a return premium is charged to 604 the company, or allowed by the agent; 3. He shall investigate all irregularities which may come under his notice, and have power to examine the books and papers, and take the written statement of any agent, under oath, and enforce such penalties for violation as are hereinafter prescribed in this agreement; and in case of failure or re-fusal of any agent to pay any penalty assessed under this clause, within ten days, the manager shall have power, and it shall be his duty, to take possession of the books and papers of the company or companies in such agency, providing the manager shall first obtain from such company or companies a written order therefor, and hold the same subject to their order, it being conditioned only that the infliction of a money penalty on an agent or agents shall cover all offenses prior thereto, except that nothing herein shall prevent the manager from peremptorily ordering canceled any policy or policies theretofore issued in violation of this compact and pledge, and prohibiting such agent or agents from writing upon the risk or risks for one year thereafter; and any risk shall be considered as an offense, irrespective of the number of policies issued thereon. Now, therefore, in consideration of the appointment of such manager, we, the undersigned local agents, do hereby agree to and associate ourselves together, under the name of the Cedar Rapids and Marion Underwriters' Union, with the following organization, pledge, and penalties.'

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The other divisions of the compact are under the headings "Organization," "Pledge," and "Penalties." After some provisions as to organization is the following, as a part of the pledge: "We also agree strictly and honorably to adhere, both in letter and spirit, to the following pledge, viz.: Section 1. That we will not write a risk until a rate has been fixed by the manager, and will adhere to all the rates fixed by him; 005 that we will not issue a policy ourselves or cause insurance to be written by any company at less than said fixed rates; and, in the event of binding an unrated risk, we will submit an application for rating thereon to the manager, upon the same or next succeeding business day to that on which such risk was bound." After other pledges is the subject of penalties, under

AM. ST. KEP., VOL. LXII.-31

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