ticular will, with the view of ascertaining through their meaning the testator's intention. In applying this principle, the supreme judicial court of Massachusetts, in the case of Metcalf v. Framingham Parish, 128 Mass. 370, 374, speaking by GRAY, C. J., said: "The decision of this question doubtless depends upon the intention of the testator, as manifested by the words that he has used, and an omission to express his intention cannot be supplied by conjecture; but if a reading of the whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words, the court must supply the defect by implication, and so mould the language of the testator as to carry into effect, so far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared. Ferson v. Dodge, 23 Pick. 287; Towns v. Wentworth, 11 Moore, P. C. 526; Abbott v. Middleton, 7 H. L. Cas. 68; Greenwood v. Greenwood, 5 Ch. Div. 954." Looking into the present will, therefore, for that purpose, we find it evident that the testator did not intend by the third subdivision of his will to give to his widow an interest in his estate beyond her life. This conclusion is not based on any distinction between a bequest of the income of the estate and a bequest of the body of the estate itself; nor do we lay any stress on the declaration in that clause, "she having the right to spend the same, but not to have it accumulate for her heirs," although that language does afford an indication in support of the conclusion. But whatever force, standing by itself, the third subdivision might have, it is clear that the testator intended, in the event that his sister, Ann Smith, and Eleonora Cummings Robison should survive both himself and his wife, that they should have an estate for life, beginning at the death of his widow. That would necessarily limit the widow's estate to her own life. But as the estate given by the fourth clause to Ann Smith and Eleonora Cummings Robison for their lives was contingent on the event that one or the other of them should be living at the death of the wife, the question remains whether that contingency also entered into the bequest in remainder to the defendants. The fact that Ann Smith and Eleonora Cummings Robison died before the testator, whereby the legacy to them lapsed altogether, is not material, because, if property be limited upon the death of one person to another, and the first donee happen to predecease the testator, the gift over would, of course, take effect, notwithstanding the failure, by lapse, of the prior gift. And this applies also whether the gift over of the legacy or share is to take effect on the death of the prior legatee generally, or on the death under particular circumstances, and whether the legacy be immediate or in remainder. It was so held in Willing v. Baine, 3 P. Wms. 113, where the bequest was to A., but if he died under 21, to B. In Humberstone v. Stanton, 1 Ves. & B. 388, it was said: "It seems formerly to have been a question whether a bequest over, in case of the death of the legatee before a certain period, could take effect where he died during the testator's life, though before the period specified. In the case of Willing v. Baine, legacies were given to children, payable at their respective ages of twenty-one; and if any of them died before that age, the legacy given to the person so dying to go to the survivors. One having died under twenty-one in the life of the testator, it was contended that his legacy lapsed, and did not go over to the survivors. The argument was that the bequest over could not take place, as "there can be no legacy unless the legatee survives the testator, the will not speaking until then; wherefore this must only be intended where the legatee survives the testator, so that the legacy vests in him, and then he dies before his age of 21. It was, however, held, and is now settled, that in such a case the bequest over takes place." It follows, therefore, that unless it appear on the face of the will that the gift to the defendants was not intended to take effect unless the prior gift to Ann Smith and Eleonora Cum mings Robison took effect, the former must be considered as taking effect in place of and as a substitute for the prior gift which, by reason of the contingency, has failed. The scheme and intention, therefore, of the present will seems to us, considering the third and fourth subdivisions together, to be this: An estate for life to the testator's widow; an estate over for life to Ann Smith and Eleonora Cummings Robison, contingent on one of them surviving the widow, with the ultimate remainder in fee as to the real estate, and absolutely as to the personalty, in the defendants. The language of the contingency in the fourth clause, in our opinion, affects only the intermediate life-estate of Ann Smith and Eleonora Cummings Robison; it being, we think, the plain intention of the testator to give to his widow the estate in question only for her life, and not to die intestate as to any portion of the estate, and to limit the contingency only to the gift to Ann Smith and Eleonora Cummings Robison. It is true that the ultimate gift to the defendants is described as commencing "at their death," that is, at the death of Ann Smith and Eleonora Cummings Robison; but that language is evidently used only as indicating the expectation of the testator, which he would naturally indulge, that the beneficiaries named would live to receive the gift intended. Certainly, those words are not to be construed so as to require that the gift to the defendants shall take effect at the death of Ann Smith and Eleonora Cummings Robison, irrespectively of the prior decease of the widow. The limitations in the two subdivisions of the will are to be taken in connection with each other as a complete disposition in the mind of the testator of his estate, giving to the widow an estate for life, with an estate over for life to Ann Smith and Eleonora Cummings Robison, contingent upon one or the other of them surviving the widow, with the ultimate remainder to the defendants. The decree of the circuit court is accordingly affirmed. ETNA LIFE INS. CO. OF HARTFORD v. DAVEY.1 1. INSURANCE-FORFEITURE-ANSWERS IN APPLICATION-USE OF STIMULANTS. was not erroneous. 2. SAME. A life insurance policy provided that it should be void if the insured "shall become so far intemperate as to impair health, or induce delirium tremens." The court, in effect, instructed the jury that the impairment of health was not the indisposition arising from a drunken debauch, but such as arose from such frequency of use as indicated an injurious addiction to the practice. Held, that it was error, and it was for the jury to decide if the death of the insured was caused by excessive use of alcoholic stimulants. In Error to the Circuit Court of the United States for the District of New Jersey. By its policy, issued July 16, 1878, the Ætna Life Insurance Company insured the life of William A. Davey in the sum of $10,000, payable to his wife, the present defendant in error, within 90 days "after due notice and proof of the death" of the insured, during the continuance of the policy. Among the questions in the application for the policy were the following: "(5) Are the habits of the party sober and temperate? (6) Has the party ever been addicted to the excessive or intemperate use of any alcoholic stimulants or opium, or does he use any of them often or daily?" To the first question the 'Reversing 20 Fed. Rep. 482, 494. answer was "Yes;" to the second, "No." The application, which by agreement was made the basis of the contract, contained a warranty of the truth of the answers to the above and other questions, and that the policy should be void if they were in any respect false or fraudulent. The policy was issued and accepted upon the following, among other, conditions: (1) That the answers, statements, representations, and declarations contained in or indorsed upon the application, made part of the contract, are warranted to be true in all respects, and that the policy should be absolutely null and void if obtained by or through any fraud, misrepresentation, concealment, or false statement; (2) that if the insured "shall become so far intemperate as to impair his health or induce delirium tremens, or if his death shall result from injuries received while under the influence of alcoholic liquor," the policy should be null and void, except as provided in the eighth section of the conditions. The latter section is in these words: "In every case when the policy shall cease, be or become void, (except by fraud, misrepresentation, concealment, or any false statement,) if the premiums for three entire years shall have been paid, the amount which by the seventh section of these conditions would be applied to the purpose of a paid-up policy, shall not be forfeited to the said company, but the same shall be due and payable in ninety days after due notice and proof of death of the said insured." The insured died August 6, 1881, while on a visit at Alexandria Bay. The company having received due notice and proof of his death, and having refused to pay the amount named in the policy, this action was brought by his widow. The company, besides pleading the general issue, made these special defenses: That, contrary to the statements made in his application, the insured, for a long time prior to the issuing of the policy, was addicted to the excessive and intemperate use of alcoholic stimulants, and had used them often and daily; and that, in violation of one of the conditions of the contract, he became, after the issuing of the policy, so far intemperate as greatly to impair his health and to induce delirium tremens. At the trial, evidence was introduced tending to establish both of these special defenses. But there was also evidence tending to show that the insured was not, prior to the issuing of the policy, addicted to the excessive or intemperate use of alcoholic stimulants, and that he did not, after that date, become so far intemperate as to impair his health or induce delirium tremens. There was a verdict and judgment for the plaintiff for the sum named in the policy, with damages to the amount of $1,419.82. Theron G. Strong, for plaintiff in error. John Linn, for defendant in error. Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court. Upon the issue as to the truth or falsity of the answer to the sixth question in the application for the policy, the court instructed the jury, in substance, that they could not find the answer to be untrue, unless the insured had, prior to the issuing of the policy, been addicted to the excessive or intemperate use of alcoholic stimulants or opium, or at the time of the application habitually used some of them often or daily. The charge, upon this point, followed almost the identical words of the question propounded to the insured, and is unobjectionable, unless, as is contended, the court erred in using the word "habitually;" implying thereby that the answer of "No" was a fair and true one, if the use by the insured of stimulants, at the time the policy was issued, was not so frequent or to such an extent as to indicate, in that respect, a fixed, settled course or habit of life. We are of opinion that the question put to the insured was properly interpreted by the court. The inquiry as to whether the insured had ever been addicted to the excessive or intemperate use of alcoholic stimulants, and whether, at the time of the application, he used alcoholic stimulants "often or daily," was, in effect, an inquiry as to his habit in that regard; not whether he used such stimulants or opium at all, but whether he used any of them habitually. If he was addicted to the excessive use of them, he was habitually intemperate; and to use them often or daily is, according to the ordinary acceptation of those words, to use them habitually. That this is the correct interpretation of the words is partly shown by the fifth question,-"Are the habits of the party sober and temperate?" But we are of opinion that the court below erred in its interpretation of the words in the policy which refer to the use of strong drinks by the insured after he obtained it. Having secured his agreement and warranty that he was not at that time, nor ever had been, habitually intemperate, the company sought to protect itself against an improper use by him, in the future, of alcoholic stimulants, by the provision that the policy should become null and void "if he shall become so far intemperate as to impair health or induce delirium tremens." The court instructed the jury: "The impairment of health contemplated by this condition of the policy is not necessarily permanent or irremediable, nor is it the temporary indisposition or disturbance usually resulting from a drunken debauch; but it is the development of disease or the impairment of constitutional vigor by the use of intoxicating beverages in such a degree and for such a time as is ordinarily understood to constitute intemperance. The defendant then asked the court to say to the jury that the words in the policy, "become so far intemperate as to impair health," do not necessarily imply habitual intemperance, and that an act of intemperance, producing impairment of health, was within the conditions of the policy, and rendered it null and void, except as provided where the premiums for three entire years. had been paid, and the policy had ceased upon other grounds than fraud, misrepresentation, concealment, or false statement of the insured. The court declined to so instruct the jury, and said: "The words of the condition are to be expounded according to the common and popular acceptation of their meaning. In this sense of them a single excessive indulgence in alcoholic liquors is not intemperance; but there must be such frequency in their use, continued for a longer or shorter period, as indicates an injurious addiction to such indulgence." The effect of these and other instructions was that the condition that the policy should be void if the insured became so far intemperate as to impair his health, was not broken unless intemperance became the habit or rule of his life after the policy was issued. The jury may have believed, and there was some, we do not say conclusive, evidence to justify them in so believing, that the efficient, controlling cause of the death of the insured was an excessive and continuous use of strong drinks for several days and nights immediately preceding his death; yet they were not at liberty, under the instructions, to find that he became so far intemperate as to impair his health, unless it further appeared that his intemperance in the use of alcoholic stimulants covered such a period of time as to constitute the habit of his life.. This construction of the contract is, in our judgment, erroneous. If the substantial cause of the death of the insured was an excessive use of alcoholic stimulants, not taken in good faith for medical purposes or under medical advice, his health was impaired by intemperance, within the meaning of the words, "so far intemperate as to impair his health," although he may not have had delirium tremens, and although, previously to his last illness, he had not indulged in strong drink for such a long period of time or so frequently as to become habitually intemperate. Whether death was so caused is a matter to be determined by the jury under all the evidence. It is supposed by the plaintiff that the instructions of the court are sustained by Insurance Co. v. Bank, 122 U. S. 502, 7 Sup. Ct. Rep. 1221. In that case the insured answered "Yes, occasionally," to the question whether he then was or had ever been "in the habit of using alcoholic beverages or other stim ulants;" and stipulated, in the application, that he was not then, and would not become, "habitually intemperate." The policy contained a provision, not fully set out in the report of the case, that it should be null and void if the insured "shall become either habitually intemperate or so far intemperate as to impair health or induce delirium tremens." No question was made or could have been made in this court in respect to the meaning of the words, "so far intemperate as to impair health," because the jury were instructed, at the request of the company, that if the insured, Comstock, became so far intemperate as to impair his health, they must find for the defendant. The contest in this court was as to what constituted habitual intemperance, and as to the rulings in the court below upon that point. Indeed, it was assumed at the trial of that case, as well as in this court, that there was, or might be, a difference between habitual intemperance and intemperance that impaired health. There was, consequently, no occasion for this court, in that case, to decide what construction was to be put upon the words "so far intemperate as to impair health," when standing alone in a policy. The jury having found, under proper instructions, that the insured had not become so far intemperate as to impair his health, that finding was not open to review here. It is clear, therefore, that there is nothing in Insurance Co. v. Bank that concludes the present case, or that militates against our interpretation of the policy here in suit. Other questions have been discussed by counsel; but, as they may not arise upon another trial, or in the precise form in which they are now presented, we will not consider them. For the reasons stated, the judgment must be reversed, with directions for another trial in accordance with the principles of this opinion. It is so ordered. RADFORD et al. v. FOLSOM et al.1 APPEAL REQUISITES-DOCKETING. Complainant sued to foreclose a mortgage securing several alleged debts. In April, 1884, the bill was dismissed on its merits as to some of the debts, and as to the balance was referred to a master. Complainant appealed, but it was never docketed in the supreme court. October 10, 1885, the court entered a second decree, and allowed an appeal, but did not fix the amount of the bond. The court fixed the bond February 8, 1886. March 8th complainant asked to have it reduced, and June 1, 1886, filed an appeal-bond, approved by the court, and the case was docketed October, 1886. No citation was ever served. Held, that the first appeal was inoperative because not docketed before the end of the October term of 1884, and the second because not docketed before the end of the October term of 1885, and the appearance of counsel to move a dismissal was no waiver of the citation. Appeal from the Circuit Court of the United States for the Southern District of Iowa. George W. Radford, assignee, and others brought suit against Agnes Folsom, administratrix, and others, defendants, to foreclose a mortgage. The bill was dismissed on the merits as to a portion of it, and, upon a decree in their favor on the balance, complainants appealed. Jos. G. Anderson and Frank Hagerman, for defendants. Walter H. Smith, for complainants. W. F. Sapp and WAITE, C. J. This suit was brought to foreclose a mortgage given to secure several alleged debts. On the second of April, 1884, the bill was dismissed on its merits as to the principal one of the debts and some others, but as to the rest, and as to matters contained in a cross-bill of the defendants, the cause was referred to a master to find certain facts and state certain accounts. The complainant on the same day prayed an appeal to this court, 1 See 14 Fed. Rep. 97. |