text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    HAWKINS v. BARROW.

      Devise by husband to widow — Death of widow before election—

    1, Where a husband,by his last will and testament,devises all of his property, real and personal, to his wife who survives him, and such will is duly and promptly presented to the proper court for probate, and continued for hearing, and before it was admitted to probate, (as was afterwards done), the widow departed this life, intestate, such real estate so devised to her, descends to her heirs at law, subject to the payment of the debts of the- testator and the intestate, and not to the heirs at law of the testator — and this is the case though no election in fact to take under the will was made by such widow by her acts and conduct.
    Same—
    2. In such ease the provision made for the widow, being in addition to dower, she would retain her dower right free from the claims of creditors, and there can be no controversy but that the provision made for her by the will, is better than that made for her by the law.

      Same — When land devised passes to widow’s heirs—
    3. The provisions of sec. 5964, Bev. Stats.,that if the widow or widower shall fail to make the election provided for in sec. 5963, after the probate of the will, and after being cited to do’so,she’or he shall retain dower and such share of the personal estate of the deceased consort,as he or she would have been entitled to by law, in case the deceased consort had died intestate leaving children, do not apply to a case where the will is not probated at the time of the death of the widow or widower.
   Smith, J.

The facts in this case, briefly stated, are these: William Barrow, late of this county, died Oct. 31, 1894, seized in fee simple of the real estate in question. He left surviving him a widow and eight children, the issue of his marriage with her, and one child the issue of a former marriage. He left a last will and testament which was duly admitted to probate,and record in this county,December 12,1894,and by which he devised all of his estate, real and personal, to his wife, absolutely. Before the will was admitted to probate, viz: November 19, 1894, his widow was killed by a train of cars, and of course,she never made any election in the probate court to take the provision made for her by the will of her husband, as it was not probated until after her death.

It appeared that on the death of the husband, there was some dissatisfaction on the part of the children as to the terms of the will. It is shown that an oral agreement was entered into between the widow and her eight children, by which it was arranged that she was to convey to her said children, all of the real estate in question devised to her by the will of her husband, retaining and reserving therein a life estate to herself. And such a deed was prepared by the attorney of the parties, but was never executed by her, either on account of her sudden death, or for some other reason. At the time of the death of the husband, he and his wife were living in Sharon, and not on the land in question. After his.death she removed to the farm, and was living there at the time of her death, andj?no|?objection to this was made by anyone. The evidence tends to show, that owing to the controversy which had'arisen in the family, the widow was hesitating whether she would take the provision made for her by the will of her husband, and a few days before her death, said to some one that she would take under the law.'

On the death of the widow, the plaintiff, the child of Barrow by his first marriage, filed this petition, averring that she and each of the' other eight children,were seized of the one equal ninth part of the real estate, and asking that partition of the same be made accordingly. All of the eight children of Wm. Barrow, with one exception, deny that the plaintiff has any interest in the land, and claim that the eight children of Mrs. Barrow own the same in fee. And this is the question submitted to this court. It is conceded that the will of William Barrow, gave to his widow his whole estate absolutely. Unless, therefore, the failure of the widowlto have the will probated during the“®time she survived her husband, and to elect to take the provision made for hereby the will, deprived her of the benefit of the devise so made to her, it is evident, that on her death intestate,"the whole of the estate, remaining after the payment of the debts of her husband, and her debts, would go to her children, and the plaintiff would have no interest whatever in this reaUestate. What then, is the effect of her death without having made the election in court, to take the provisions made^for her by the will?

Sec. 5963, Rev. Stats, in effect provides, that if any provision be made for a widow or widower in the will of the deceased consort, the probate court shall forthwith, after the probate of such will, issue a citation to such widow or widower, to appear and elect whether to take such provision, or to be endowed of the lands of the deceased consort, and take the distributive share of the personal estate — '“but the widow or widower, shall not be entitled to both dower and the provisions of the will in her favor, unless it plainly appears by the will that the widow or widower, should have such provision in addition to the dower and such distributive share.” And sec. 5964 provides, that if the widow or widower shall fail to make such election, he or she shall retain the dower and such share of the personal estate of the deceased consott, as he or she would have been entitled to by law, in case the deceased consort had diedjintestate leaving children.

If any part of this estate had been given to any other person than the widow, or any limitation as to her interest therein made by the will, as for instance, if she was only to have it for life, or during her widowhood, it would seem from these provisions of the statute, as a general rule, that to entitle her to the provisions made for her by the will of her husband, an election made by her to take such provision is essential, at least where the will has been admitted to probate in her life time, and she is duly cited under sec. 5963,Rev.Stats. And that without such election,she is remitted to her statutory rights as widow of her husband. And it is clear,too,in such case,that the election must be made.by her personally, and can not be exercised for her after her death by her heirs or legal representatives,^though it may be entirely certain that the provision made for her by the will, was much greater in amount than what she would receive under the statute if she declined to take under the will. It is true that there may, in the absence of an election by her in court in the mode pointed out in the statute, be an election in fact, by acts done by her, which clearly show that she had decided to take the provisions made for her by the will, and had in some way carried this intention and purpose into effect; and particularly is this so where the other parties interested in the estate have knowledge of this, and make no objection and act accordingly. Lessee of Thompson v. Hoop, 6 Ohio St., 481; Baxter v. Bowver, 19 Ohio St., 491; Stockton v. Wooley, 20 Ohio St., 184. In such case, to some extent at least, the doctrine of estoppel applies.

The evidence in this case as to an election in fact by this widow, is not of a very satisfactory character, either for or against it. Looking at the terms of the will itself, it would seem that if she looked alone to her pecuniary interest, she could not hesitate. The will gave to her the whole estate, real and personal, after the payment of the debts of the testator, absolutely. She had the full and undisputed right to dispose of it during her lifetime, or by will at her death. The devise to her including her dower, it was equivalent to a provision in addition to dower, and even if the land had been liable to sale for the debts of her husband, in the event of an election by her to take under the will, she'would have held the dower right free from the claims of creditors of the estate. Baxter v. Bowyer, supra. So that there was no room for choice as to what would be best for her to do in a pecuniary view. And yet the evidence tends to show, and perhaps does show, that shortly before her death, she expressed her intention of taking under the law, for what reason does not appear. On the other hand, the evidence shows, that after her husband’s death she removed to the land given to her by the will, and made a parol contract with her own children to convey the land to them in fee simple, reserving to herself a life estate therein. It is true that this deed was not executed though drawn up 'by the attorney of all the parties and submitted to them, and of course,the parol contract could not be enforced against her or her representatives, but is goes far to show her election in fact.

But the question most discussed in this case, is, whether where a husband, as in this case, gives the whole of his estate after the payment of his debts, absolutely to his widow, and she dies, shortly thereafter, before the probate of the will, and without negligence on her part, (for the will had been promptly offered for probate, and continued for hearing), or even after the probate of the will and being cited, fails to elect within the year given tojher, she loses all the benefit of the provision made for her thereby, and is remitted to her statutory rights as his widow. The question is certainly one of great importance, and it must be conceded, that on the language of the statute, it is a doubtful one. If a husband or wife, relict of a deceased consort, under whose will he or she would be entitled to the whole of the estate, and which provision is of far more value than would be the right under the statute, is to lose the benefit of the testamentary provision made for her thereby, without any fault or negligence on his or her part, simply because the <?ill not being probated^before her death, she can not elect to take such provision; or after probate and citation she is prevented by some reason from doing so, great injustice may be done to her. It would seem, therefore, that the courts should not so hold unless it is manifest that such is the clear law.

It is clear, as before stated, that the courts of this state have made an exception to the general rule of the statute, that the election, to be valid, must be made in the probate court in the mode pointed out in the sections of the law which we have quoted. This is shown by the decisions already referred to. And the claim is made by the counsel for the defendant, that where everything has been given by the will to a widow or widower by the will of the deceased relict, that no election in court is necessary in such a case, and on failure to do so, that he or she takes the whole estate so devised, subject of course to the rights of creditors of the estate.

We know of no decision of the courts of any state under a statute similar to ours which holds- that such is the case. The case of Baxter v. Bowyer, 19 Ohio St., 490, before cited, comes nearer tc it than .any we have seen. It was there hold in the 4th and 5th subdivisions of the syllabus:

“Where the provision in a will for the widow includes the dower, it is equivalent to a provision in addition to dower, and she holds the dower right free from the claims of creditors of the estate,” and “in such case, if the widow actually accepts the provision, and then dies without making her statutory election in court, and without being cited to appear in court for that purpose, she will be held to have taken under the will.”

In that case, the testator had devised all his estate to his wife for her life, and for her support during her life, with power of sale for the benefit of the estate, and on her death, what remained was to go to other parties named in the will. And in the statement of the case it is said:

“The testator’s wife survived him and took possession of the property, which consisted of some ten thousand dollars worth of real estate..and personal property to the amount of twenty-five hundred dollars. She possessed and used the entire property during her life, and died in less than one year after the death of her husband, without making any election in court to take unfler the will, and without being cited to appear in court -f.or that purpose.” .

Judge Welch in delivering the opinion of the majority of the.court, says:

“We are unanimous, however, in the opinion, that under the circumstances of' this case, the widow must beheld to take under the will,and that, therefore, the representatives are entitled to no part of the personal estate. The circumstances I allude to are these: 1st. The provision made for her by the will includes her dower, and is therefore tantamount to a provision in addition to dower, and entitles her to hold the dower interest freed from the claims of testator’s creditors. 2nd. She,in fact,accepted and en-' joyed the provision, though she never made the statutory election in court. 3rd. She was never cited to appear in, court, and died within the time allowed for that purpose. What would be our holding as to the effect of the widow’s non-election in a case where either, or any of those circirumstances should be wanting, we do not at present undertake to say. ”

John Coffee, for Plaintiff.

Chas. J. Hunt, Von 8eggern,Phares & DeWald, contra.

We understand from this, that the effect of a non-elec tion in court, in a case like the present, where there was not an election in -fact, is not decided.

In a case like that before this court, where the fact of an election by conduct and acts, is, to say the least, not clearly shown, but where the provision made by the will was clearly in addition to her dower, and manifestly better than what the law would give her, we would greatly hesitate to hold that, even if the will had been probated in her life-time, and she duly cited, but by some casualty had been prevented from an election in court, she would be deprived of the provision made for her by the will, and be remitted to her rights as a widow, under the statute. But the case before us is much stronger in favor of the defendants than the one supposed. Here the will had not been probated at the time of her death. She had no opportunity to make her election, The will made a provision for ]per much greater than her share as a widow under the law would have been. The statute makes no provision that in such a case she shall simply take her statutory rights. The sections quoted, only pro-' vide for this in case the will is probated, and she is cited, and fails for one year to máke her election in court. As there is no provision that in case she dies before the probate of the will, that the effect should be the same, we think that it does not have such effect, but that the provision made for her by the will stands.

We hold therefore, that bn the death of Mrs. Barron intestate, she held the title to this land in fee, and that it descended to her eight children, and that the plaintiff has no interest therein.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1897.)
    Before JDay, Price and Norris, J.T.
    CHARLES M. STEEL v. JOHN F. POGUE, et al.

      Title by delinquent tax sale — Strict compliance with statutory requirements necessary—

    To accomplish a valid sale of lands or lots, at delinquent tax sale, so as to vest the legal title in the purchaser, it is essen7 tial that all the requirements of the statutes with reference to the proceding of levying and collecting taxes, be strictly followed by all officials having any duty to perform in relation thereto.
    Same—
    A failure to comply with any one of such statutory requirements, is an irregularity that will invalidate the sale.

      Invalid tax sale — What purchaser i§ entitled to—

    After two years from the day of such tax sale, the provisions of sec. 2880, R. S. apply an govern; and in such situation, the purchaser at an invalid tax sale is only entitled to recover against the owner of such land or lot, the aggregate sum of the original purchase and taxes subsequently paid, with interest thereon from the date of payment but no penalty and no'costs incurred in the sale.
    Appeal from the Court of Common Pleas of Hancock county.
   Day, J.

Plaintiff's action is to procure an order of the court quieting his title to certain real estate, described in the petition, as against the adverse claims of the defendant Pogue. As a defense, and for a cross-action entitling him to affirmative relief, defendant, Pogue, asserts title and right of possession of the said real estate in himself, by virtue of an auditor’s deed therefor, of date January 17, 1895, based on, as he asserts, a valid proceeding and sale to him, at a delinquent tax sale duly made on the 17th of January, 1898. Defendant shows that at the last named date he paid the taxes, interest and penalty then due thereon and unpaid, in the sum of $600.00, and has since paid current taxes in the aggregate sum of $177.00. That after the expiration of two years from the day of sale, the owner not having redeemed the said land, the auditor of the county duly executed and delivered to him, a proper deed, conveying the said real estate, which.deed was duly accepted, filed for record, and recorded. Defendant asserts the validity of the said sale and deed, and claims to have the legal title and right of possession to the said real estate by virtue thereof, and prays in the alternative: First, a judgment establishing the validity of his title and right of possession; and if that cannot b'e properly done, then, second, that the said lands be ordered sold on his tax lien, and out of the proceeds, he be paid the several sums paid by him as taxes, etc., with penalty and interest thereon according to law, and also any sums paid by him as costs and expenses of the sale and transfer on the duplicate, in all a total sum of $1125.00. In a reply the plaintiff specifically admits the non-payment of taxes — the sale at delinquent tax sale to Pogue,and the subsequent payment of taxes by him in the sums stated; the failure of the owner to redeem; the execution and delivery of the deed by the auditor, and its record; but denies the regularity of the proceedings leading up to the sale, and the validity of the sale and the efficiency of the auditor’s deed to cast title in Pogue. It is conceded there is an amount due, as stated, on account of the sale and the' subsequent payment of taxes and lawful interest thereon; but it is denied that Pogue is entitled to payment of any penalty at all, or re-payment of any expense for certificates, transfers or other expenses incurred in the matter.

While there is an issue of fact arising on the claimed validity of the tax sale and the efficiency of the tax deed to cast title on the purchaser, yet it is conceded as a’fact that an official having a duty in connection with the levy and collection of taxes, the county treasurer perhaps omitted to do a necessary thing, neglected to make and enter on the record a certain certificate required by the law to be made and entered; and so there are no disputed facts in the case. The parties are in agreement as to what the facts are, and the issues arising and over which they are at variance, are questions of law pure and simple. ■ And the questions are: 1. Is an auditor’s deed for lands sold at a delinquent tax sale, where the antecedent proceeding is defective — where all the requirements^ of the statute have net been complied with — valid and effective to cast the legal title thereof on the purchaser at such sale? If not, and, in lieu of such paramount title, the purchaser-has acquired the right and lien of the state on the land, for the payment of taxes, then, 2. Has such purchaser a legal right to exact and collect a penalty of twenty-five per centum, or any penalty, on the original purchase money and taxes subsequently paid, and any expense incident to the purchase?

1. That irregularity and neglect to take all the preliminary steps required by the statute in the proceeding leading up to and culminating in-a delinquent tax sale, will render the sale invalid and ineffectual to transfer the legal title to the purchaser, is not an open question in this state. The proposition is stare decisis. All the decisions of all the courts on that question, are of the purport and substance, that any irregularity or defect in the antecedent proceeding —any'neglect or omission, even if quite technical, if it amounts to a substantial departure from the strict provisions of the statute, is held to render the proceeding and sale defective and invalid as a sale. . It is also well settled that a purchaser at an invalid tax sale, acquires no title to the real estate sold as against the holder of the legal title, but by express provision of the statute does acquire all the rights of the state to enforce payment of taxes, and a lien on the property sold to secure the repayment of the purchase money and taxes subsequently paid,' with such interest, penalty and expense as the statute provides. The conceded fact, of omission to make and enter on record a required certificate, settles the one issue in this case in favor of the plaintiff. The proceeding was irregular and defective, and the sale manifestly invalid, so that the auditor’s deed made in pursuance thereof, was inefficient, and conveyed no title to the purchaser.

2. Has the purchaser at an invalid tax sale, having thereby acquired the rights of the state to collect taxes, in that particular case, a legal right to exact and collect a penalty on the original purchase money and taxes subsequently paid,and also the expenses or costs incident to the purchase? The answer to this question must necessarily be in the alternative. In some circumstances and conditions, yes; in others, no; the proper answer depending altogether upon the provisions of the statute touching the matter, considered and applied in connection with the peculiar facts in each particular case; and an affirmative answer in every case depending upon the presence of the material fact that the holder of the legal title is seeking to redeem his lands from such tax sale. Sec. 2890 Rev. Stat. provides that lands sold at delinquent tax sale may be redeemed by the owner, and fixes the time within which redemption must be made, at two years from the day of sale. After the expiration of such two years, there is no provision of law enabling owners to redeem, as matter of right. After such time, it seems, the purchaser is entitled to a deed for the lands purchased, and the owner has only the chance of regaining his property if a valid sale has not been accomplished. Section 2891 Rev. Stat. provides for a penalty and costs as follows:

“Any person desiring to redeem any land or town lots sold at delinquent*sale, may do so within one year from and after the sale thereof, by depositing with the county treasurer, upon the certificate of the auditor, an amount of money equal to that for which such land or lot was sold and the taxes subsequently paid by the purchaser, together with interest and fifteen per centum penalty on the whole amount paid, including costs, and one dollar to pay the expense of advertising as provided.”

After the expiration of one. year, and before the expiration of two years, the same section 2891, provides, the owner may make a deposit, with the treasurer, upon the certificate of the auditor, of an amount of money equal to the amounts paid by the purchaser, with interest and twenty-five per centum penalty on the whole amount paid, including costs, and one dollar for cost of advertising as provided.

It will be observed, the penalty and costs paid on the purchase for certificates and transfers, 'contended for by Pogue, are provided for by section 2891, just quoted from, but only in case the owner seeks to redeem his lands’or lots within the two years provided for such redemption by sec. 2890; and not under any other circumstances. In this case, the owner did not seek or attempt to redeem, but allowed the law to take its course, he assuming the risk of loosing his entire estate if the tax sale happened to be not invalid; so it would seem the provisions of sec. 2891, do not apply, or in any way refer to the fads we have here, and cannot be made available by defendant. In case the sale is invalid by reason of irregularity in the proceeding leading up to it, the rights of the owner and purchaser are defined and regulated -by another and different section of the statute. . Section 2880, Rev, Stat. provides:

■ “Upon the sale of any land or town lot for delinquent taxes, th.e lien which the state has thereon for taxes then due shall be transferred to the purchaser at such sale; and if such sale should prove to be invalid on account of any irregularity in the proceeding of any officer having any duty to perform in relation thereto, the purchaser at such sale shall be entitled to receive from the proprietor of suc-h land or lot the amount of taxes, interest and penalty legally due thereon at the time of such sale, with interest thereon from the time of payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such sale; and such land or lot shall be bound for the payment thereof.”

This section fixes and defines the rights of a purchaser at a delinquent sale and 'the liabilities of the owner of the land sold, in case the sale is invalid by reason of irregularity; while sec. 2891, providing for payment of penalty and costs in addition to the taxes actually paid, with interest, fixes and defines the rights and liabilities'of the purchaser and owner when the owner, within the time fixed by sec. 2890, seeks to redeem his land from a delinquent sale. Clearly, we think, the provisions of sec. 2880 are applicable and govern in the case before us,- and it appearing the saléis invalid by reason of irregularity, it follows the defendant is only entitled to receive such sums in re-payaient, as is provided by it. The provisions of the section are very plain and explicit, and no doubt can possibly arise as to what the rights of the defendant are; he can only recover back the money paid by him, with interest from the date of its payment. This view has been enforced by the supreme court a number of times; first, in the case of Johnson v. Stewart, 29 Ohio St., 498. In that case the supreme court says:

“A purchaser at an invalid tax sale can only recover from the owner, or enforce a lien against the land for the taxes paid, with interest, and without penalty.”

This holding was approved and followed in Younglove v. Hackman, 43 Ohio St., 69. This ruling has not been reversed or modified,' but has been approved - and followed in still later decisions by the supreme court.

On the authority of sec. 2880 Rev. Stat., and the decisions of the supreme court noted, we hold the defendant is entitled to receive from the plaintiff, the amount of the original purchase,and taxes subsequently paid, with interest from the date of payment, but no fees for certificates or transfers, and no penalty. The amount may be ascertained, and when discharged by plaintiff, there may be a decree entered quieting plaintiff’s title as against all claims of the defendant. If not paid within a short time, an order of sale may issue.

Jason Blackford & Byal, for Plaintiff.

J. A. &. E. V. Bope, for .Defendant.


author: Wilson, J.

text:
    (Second Circuit — Montgomery Co., O., Circuit Court
    Dec. 1897.)
    Before Shearer C. J. and Summers and Wilson, J J.
    MADISON MUNDY’S EXECUTORS v. BERNICE M. MUNDY et al.

      Will — Revocation by subsequent marriage.

    1. The common law rule that marriage alone does not revoke a will of the husband made before marriage is not abrogated in this state by reason of the statute of descent making husband and wife heirs to each other.
    On appeal from the Court of Common Pleas of Montgomery county.
    The facts necessary to the determination of this case are the following:
    The will of Madison Munday, deceased, was admitted to probate May 29, 1879, devising one-half of his real estate, in trust,to his son. James M. Munday. On the 2nd day of May, 1890, James M. Monday executed his will, by the terms of which he devised the whole of his estate to his sister, Sarah Decker, who has since deceased, and her heirs are made parties defendant in this action. On the 11th day of May, 1893, he married the,defendant, Berenice M.'Mun-day, who is now his widow, He died September 19, 1893, without issue, and without making any provision for his wife. His will was admitted to probate September 25, 1893, and the real estate, bequeathed to him by his father, was held in trust by the executors of the father’s estate, the rentals alone, being made payable to him until the happening of some certain event. Both the widow, of James M. Munday, and the heirs of Sarah Decker, deceased, claim the right to receive the rents from said real estate. The executors of Madison Munday, deceased, bring this action under sec. 6202, Rev. Stats., asking to be instructed concerning the administration of their trust in that behalf. The only question involved is, whether, under the circumstances, the marriage of James M. Munday, after the execution of his will, revoked the same.
    A decree was rendered in the common pleas court, in favor of the heirs of Sarah Decker, deceased. The widow, Berenice M. Munday, appeals.

      A. W. Kumler, for appellant,
    cites Tyler v. Tyler, 19 Ill., 151; Board of Foreign Missions v. Nelson, 72 Do., 565; Duryea v. Duryea, 85 Do., 50; Brown v. Scherrer, 5 Col. App., 255; 77 N. C., 435; Sneed v. Ewing, 5 J. J. Marsh, 460; Garret v. Dabney, 27 Miss., 335; Tiedman on Real Prop., sec. 888; Swan v. Hammond, 138 Mass., 45; Stokes v. O’Fallen, 2 Mo., 29; Doyle v. Doyle, 50 Ohio St. 330; 37 W. L. R. 265, 306, 327, 344, 364.

      Kennedy & Hunger, for appellees,
    cite, 1- Jarman on Wills, (5th Ed.) 270; 20 Encyc. of Law, 316; Hoitt v. Hoitt, 63 N. H., 476; Bowers v. Bowers, 53 Ind., 430; Re Estate of Hulett (Minn. Supreme Court); 34 L. R. A. 384; Goodsell’s Appeal, 55 Conn., 171; Morgan v. Davenport, 60 Texas 230; Fuller v. Coates, 18 Ohio St., 350.
   Wilson, J.

At common law the rule is, marriage and the subsequent birth of a' child, amount to a revocation of a will of the husband made before marriage; but that a subsequent marriage, or the birth of a child, is not a revocation- — -they must conjoin. This rule was taken from the Civil Law, based upon “a presumed alteration of the intention of the testator arising from the occasion of new moral duties.” But in the case of Doe d. Lancashire v. Lancashire, 5 Term Rep., 49, Lord Kenyon says:

“Perhaps the foundation of the principle is not so much an intention to alter the will arising from these circumstances happening afterwards, as a tacit condition annexed to the will itself, at the time of making it, that the party does not intend it should take effect if there should be a total change in the relations of the family.”

In the case of Rush v. Wilkin, 4 Johnson’s Ch., 506,Chancellor Kent says:

“The claim of the wife to the benefit of this presumption in the case'of a devise of land, is admitted not to be very strong, because, if she was let in, the land would still descend to the heir, and the law has secured to her, in every event, a provision for life, out of the real estate. Her claim to a provision from the personal estate, rests on higher ground, for in respect to that portion of her husband’s property, she is left entirely at the control of his will and pleasure; but her pretension is here also weakened from the consideration of the provision by dower, which the common law has already secured to her.”

These conditions have been modified by statute, in this state, to the extent that the wife is now the heir of the husband, both as to real estate and personal property, when there are no children, or their descendants, surviving; preserving to her only, the right of dower, if there be children. Provision is also made for her out of the personal estate of the husband, consisting of a year’s support, and one-half of the first four hundred dollars, with one-third of the remainder, after the debts are paid; also her homestead and other exemptions.

The question is, whether, under the law as thus modified, and by reason of such modification, the common law rule, that subsequent marriage alone, does not revoke a will of the husband, is abrogated.

In Tyler v. Tyler, 19 Ill., 151, it is held:

“In Illinois, where the statute makes the husband and wife heirs to each other when there is no child or descendant of a child, in the absence of facts arising subsequent to marriage, showing an intention to die testate, a revocation of a will made by a husband prior to his marriage, by which he disposes of his whole estate, without making any provision in contemplation of the relations arising out of his marriage, will be presumed.”

No reason is given for the rule, in this case, other than the change in the statute of descent, making the wife the heir of the husband, The law. of the case, however, was twice subsequently attacked, in the supreme court of that state, and the court as often refused to reconsider it, for the reason that it had become a rule cf property, and further, it having since been incorporated into the statute law of the state, a reversal would only have a retroactive effect. The American Board of Foreign Missions v. Nelson, 72 Ill., 564; Duryea v. Duryea, 85 Ill., 50.

In the case of Swan v. Hammond, 18 Mass., 45, is found an obiter dictum to the effect that:

“Marriage alone, in the case of a man or woman, would seem to be a sufficient change in condition and circumstances to cause an implied revocation of a will previously made. A will made before marriage, and taking effect after marriage, must take effect in a very different manner from that in the mind of the testator when the will was made. The rights of the husband or wife, must greatly modify its provisions, and it can hardly be supposed, that an unmarried person would make the same will he or she would make after marriage.”

This would seem to be a wholly inadequate ground upon which to raise the implication, that a will, devising real estate in this state, should be revoked by marriage alone, The only effect of marriage upon the devise, would be to burden it with the right of dower, and the law places this incumbrance upon the devise, whether the will be made before, or after marriage. There is, therefore, no cogent reason why the will should be changed after marriage, unless it be intended to change the devise. . The statute law of this state, does not undertake to change the devise directly, by a limitation put upon the power of testamentary disposition after marriage, and it would seem to follow, that it should not be done indirectly, by an implied revocation of his will, because of marriage.

In the case of Brown v. Scherrer, 5 Col. App., 255, it is held: “Marriage, although without issue, operates in this state to revoke a will.” This case, however, is distinguishable from the case at bar, by reason of the statutory limitation upon the right of either the husband or the wife, to make a testamentary disposition of an aliquot part of his or her, real estate, as against the right of inheritance in the other. And, inasmuch as the will, made before, is destructive of this right, it is held to be revoked by the marriage, in order that the right may - be protected. The court supports this conclusion by the argument, that in England, a will made before marriage, is revoked as to realty only when a male heir is born, who can inherit under the law of primogeniture, and in that event, the father not having, the power to defeat the statutory right of inheritance, the will is revoked ex necessitate.

So, in the case of Garrett v. Dabney, 27 Miss., 335, under the married woman’s act in that state, which secured to the husband an estate in fee, if the wife died without issue, her will made before, was held to be revoked by marriage, because it deprived her .of the power to change her will, which was obnoxious to’ her husband’s right in the real estate, vested at the time of marriage. Under the statutes of Ohio, the power of the husband to dispose of his real estate, is the same after marriage as before, leaving to the wife only the statutory right of dower, which attaches in any event. The same reason for revocation, therefore, because of marriage, does not exist in this state.

In 37 W. L. B., pp. 265 et seq., is a series of articles on the subject of common law and statutory revocation of wills, by marriage, by birth of child, by both, written, by E. J. Marshall, of the Toledo Bar, in which the writer collates the authorities on the subject, and reaches the conclusion, that the reason for the common law rule, that marriage and birth of a child are both necessary to a revocation, no longer exists in Ohio. The other authorities, cited by appellant’s counsel, do not present any new or additional phase of the question.

In Connecticut, where by statute the wife inherits as heir to her husband, it was held in Goodsell's appeal from Probate, 55 Conn., 171, that ‘‘A will is revoked by marriage and the birth of a child, but not by marriage alone.” Citing, 1 Redfield on Wills. (4th Ed.,) 298; Brush v. Wilkins, 4 Johns. Ch., 506; Warner v. Beach, 4 Gray, 162; Jarman on Wills, (5th Am. Ed.,) 272. To the same effect are Hoitt v. Hoitt, 63 N. H., 475; Bowers v. Bowers, 55 Ind., 430, which are well considered cases.

In the case of Re Estate of Hulett, (Minnesota Supreme Court), 34 L. R. A., 384, it is held: ‘‘The fact that under our statutes a wife may inherit from her husband, has not changed the common law rule that the will of a man is not revoked by the subsequenCmarriage alone, without the birth of issue.” This ease would seem to be directly opposed to Brown v. Scherrer, supra. The same statutory provisions as to inheritance by the wife from the husband, and a similar limitation of the testamentary power of the husband, as against the wife’s right of inheritance, are found in each case; so that the cases can not be reconciled or distinguished, on principle. In Re Estate of Hulett, all the statutory provisions, changing the relations of^husbond and wife, as touching their effect on the common law’rule of revocation, are made to yield to the argument, that,

.“The main reason why, at common law, marriage and the birth of issue were deemed such a change in the conditions or circumstances of the husband, as would work an implied revocation of his prior will, was, that otherwise, his issue would be wholly unprovided for, — a thing which was not to be supposed to have been in the contemplation of the testator; whereas, under our statute, and we assume without special examination under the statutes of those states in which the decisions cited were rendered, even if the will stand, very liberal provision has been made for the widow independently of any act of the husband;” and “The mere fact that she may now under the statute in certain contingencies inherit from her husband is not sufficient to warrant us in holding that the common law rule has been so changed, that marriage alone, is such a change of condition or circumstances, as will work an implied revocation of the prior will of the husband.”

This question, however must be determined largely by the provisions of the statute law in Ohio. It is the province of the legislature, and not of the courts, to change the rule of the common law. The question, therefore, is whether or not such legislative intent can be gathered from the statutes effecting the numerous changes in the relations of husband and wife. In England and many of the states, it is expressly provided by statute, that marriage alone, shall revoke a will. There is no such express provision in the statute law of Ohio. That being so, sec. 5953, Rev. Stat., which provides in what manner a will may be revoked, would seem to be exclusive.' The revocations implied by law, included in the saving clause of that section, must be held to be such, and such only, as were recognized at common law, at the time the statute was enacted. Hence, we have not only the absence from the statutes of the express provision found in'other states, that marriage alone shall revoke a will, but a provision, which by its terms, must be held to exclude a revocation upon that ground. It is significant also, that sec. 5959, Rev. Stat., which provides. when revocation by the birth of a child shall take effect, does not deem subsequent marriage of sufficient importance to be mentioned as a constituent part of the cause of revocation; and that sec. 5961 provides, that revocation shall not take place by reason of the birth of a child, if the testator have a child, or children, at the time the will is executed. The policy of the law seems to be to limit, rather than to enlarge, the rule of revocation. Sec. 5958, Rev. Stat., provides: “A will executed by an unmarried woman, shall not be deemed revoked by her subsequent marriage;” and this, notwithstanding the statute of descent, makes the husband the heir of the wife under the same circumstances, as under which the wife is made the heir of the husband. To say that by implication, a subsequent marriage will revoke the husband’s will, for the reason that she is his heir, in the face of the provision that it will not revoke the wife's will, he being her heir, is to establish an inequality between them, which is repugnant to the whole trend of the statutes, making them equal before the law. On the other hand, to allow the common law rule, that subsequent marriage alone, will not revoke the husband’s will, to stand, is to establish equality between them; and this, we may conclude, was the object of the section, providing that a woman’s will shall not be revoked by marriage.

We therefore conclude, that the change in the law of descent, making husband and wife heir to each other, under certain contingencies, does not abrogate the common law rule. The record does not disclose whether or not all of the parties in interest are sui juris. The court therefore has not considered what effect the probate of the will and the failure to contest the same within the two years’ limitation would have upon the right to raise the question passed upon.

We find the right to the rents in question to be in the heirs of Sarah Decker, deceased, and a decree may be en: tered accordingly


author: Shearer, O. J.

text:
    (Second Circuit — Clark Co., O., Circuit Court
    Dec. Term, 1897.)
    Before Shearer C. J., and Summers and Wilson, JJ.
    THE STATE OF OHIO EX REL. FRANK S. MONNETT, ATTORNEY GENERAL v. JAMES C. McMILLAN.
    1. A councilman, during- his term of office, is ineligible to the office of member of a board of education.
    2. Section 1717 R. S. construed.
    QUO W ARRAU TO.
    The petition reads as follows:
    “Frank S. Monnett, Attorney General of the state of Ohio, comes here into court, and gives the court to understand and be informed that the defendant, James 0. Mm Millan, is a resident and elector of the' incorporated village of South Charleston, in Clark county, Ohio, and has been such resident and elector thereof for more than six years last past: that the said incorporatéd village of South Charleston is duly organized under the laws of the state of Ohio, and as such village is duly authorized by law to elect members of the village council, who are duly authorized and empowered by law to pass such ordinances and do all other things within their statutory power for the regulation, management and control and government of such village.
    “That said village of South Charleston is located within the limits of the special school district of South Charleston, and is part of the same, and said special school district includes all the territory of the incorporated village of South Charleston aforesaid.
    “That in pursuance of law and in accordance with the statute, the said incorporated village of South Charleston, on the first Monday of April, 1895, duly elected said defendant, James C. McMillan, as a member of the council of said incorporated village of South Charleston, for the period of two years next ensuing, and thereupon the said James C. McMillan duly qualified and entered upon his duties as such member of council and continued to hold such office for said term of two years: that on the first Monday of April, 1896, while the said James C. McMillan was then acting as a duly qualified member of the incorporated village council of South Charleston as aforesaid, he was by the qualified electors of said special school district of South Charleston, elected to the office of member of the school board of such special school district of the incorporated village of South Charleston, for the term of three years next ensuing, and thereupon the said James C. McMillan assumed to qualify and act in the capacity of such member of the school board. That afterwards, to-wit, on the first Monday of April, 1897, and at the expiration of his term as councilman for said incorporated village of South Charleston, he, said James C. McMillan, was by the qualified electors of said incorporated village of South Charleston aforesaid, elected to the said office of member of the village council for the full term of two years next ensuing, and he thereupon duly qualified and entered upon the' duties of said office and is now acting in such capacity.
    “The relator herein says that James C. McMillan is now the duly elected, qualified and acting member of council of the incorporated village of South Charleston, but that said defendant James C. McMillan has usurped and unlawfully holds and exercises said office of member of school board of said special school district of South Charleston, and as such officer assumes to do and perform all and singular the duties pertaining to such office as member of school board as aforesaid under the claim that he is eligible to hold said office of member of the school board while acting in the capacity of councilman of the incorporated village of. South Charleston, duly elected and qualified as aforesaid.
    “Relator further says that said James C. McMillan was at the time of his alleged election to the office of member of school board,ineligible to hold such office, and is still ineligible to act in such capacity.
    “Whereupon relator prays that the defendant, James C. McMillan, be required to answer by what warrant he claims to have used, to exercise and enjoy said office of member of school board of special school district of South Charleston" and that he be adjudged not entitled thereto, and that judgment of ouster therefrom may be pronounced against him and for all proper relief in the premises.

      The defendant demurs to said petition upon the ground, that the facts therein stated do not constitute a cause of action against him.
   Shearer, O. J.

The question presented by the demurrer is to be determined by the construction of sec. 1717 of the Rev. Stat., which provides, among other things, that “no member of council shall be eligible to any other office, or to a position on any board provided for in this title, or created by law, or ordinance of the council, except as provided in the .seventh division of this title.”

The seventh division concerns boards of improvements, boards of administration and the like, and in no way affects the question before us.

It is argued that this section, properly understood, forbids the election or appointment of a councilman to membership of a board of education, or to any other board cre'ated by law; that boards of education are created by law and, that therefore a councilman is not eligible thereto.

For the defendant it is insisted that his election to the school board did not violate sec. 1717; that the meaning of the section is that no member of council shall be eligible to any other office, or to any board created by law or ordinance of council — that is created by law of the council, or by ordinance of council. That this must be so because the offices are not incompatible; that they are not .within the prohibition of section 18 of the Revised Statutes,nor do the duties of boards of education in any way conflict with or affect the duties óf municipal councils.

It is also claimed that sec. 1717 applies only to such boards the members of which are selected or appointed by council. ‘

At common law, the acceptance by an officer of another office incompatible with the first,ipso facto vacated the first.

But the appointment of a councilman to another office which he is ineligible to fill is absolutely void. State ex rel. v. Kearns, 47 O. S., 560. If, therefore, under the provisions of section 1717 a councilman is ineligible to the office of member of a board of education, the defendant’s election to that office is void and he should be ousted, and it becomes unnecessary to determine whether -or not the offices are incompatible.

The provision of section 1717 now under review was introduced into the|statute|by an act to amend the municipal code passed April 18, 1870 (67 0.[;L. 69) and reads and is punctuated as follows:

“No member of^[council shall be eligible to any other office, or to any position on any board provided for in this chapter, or created by any law or ordinance of council save as provided in chapter 46 of this act.”

In the present section there is a comma between the words “law” and “or”,[which is not found in the old section; and it~is argued^from this circumstance that the legislature intended^to confine the prohibition to boards created by a law or.an ordinance^passed by council; that the comma is an interpolation and should not be regarded in the construction of the new section.

Councils do not paes^Maws” but express Iheir legislative will by ordinances and resolutions; and a reasonable construction ofJ:he¿]anguage of the'original section is that the ineligibility therein declared extends to any board created by a law of the[state or by an ordinance of a,mnnicipal corporation.'

Doubtless the commissioners of revision; in compliance with the duty imposed upon them by the act providing for the consolidation and revision of the statutes, introduced the comma into the new section to relieve it of any ambiguity which might have been supposed to exist in the original enactment (72 O. L.[87), and the general assembly for the same reason®permittedj¡the comma to remain when the revision was adopted by that body. With the propriety of the law we have nothing to do. It is an act which the general assembly were empowered to enact- — and thus the law is written.

H.S.Monnett,Attorney General,and Horace W.Stafford, Prosecuting Attorney, for Relator.

Marcus Shoup, for Defendant.

The authorities cited by counsel do not seem to be in point and are not helpful in the solution of the question herein considered.

We are of opinion, that the defendant was ineligible to election as member of the board of education, by reason of his membership of the council of the incorporated village of South Charleston at the time of .such election.

Judgment of ouster.


author: Caldwell, J.

text:
    (Eighth Circuit, Cuyahoga Co., Circuit Court,
    Oct. Term, 1897.)
    Before Hale, Marvin and Caldwell, JJ.
    J. W. CALDWELL v. THE BOARD OF COUNTY COMMISSIONERS OF CUYAHOGA COUNTY et al.

      The act for suppression of Mob Violence unconstitutional.

    1. The statute, 92 O. L., 136, for the suppression of mob violence provides that the party complaining shall recover a deflnite sum regardless of the actual damages he has suffered. ■
    2. In so far as the damages awarded by the statute exceed the actual damages suffered by the complaining party, the county is taxed for private interests.
    3. The state has no power to tax the public for purely private interests.
    4. The power of the legislature, under the provisions of the constitution, to levy taxes is not without limitations,and such powers are not only grants, but limitations.
   Caldwell, J.

The case of J. W. Caldwell v. The Board of County Commissioners of Cuyahoga county et al. comes on error into this court,^the demurrer havingj^been^sustained to the-petition, and final judgment entered.

The question arises under the act found in 92 O. L., page 136, an act for the suppression of mob violence.

The plaintiff claims that he was working at the Brown Hoisting Works during the strike that occurred a little over a year ago, and while so engaged in working, while going from the works, a mcb did him personal violence, and he brings his action under this statute, to recover damages for such violence. The first section of this act defines “a mob,” and defines what “lynching” is, as follows:

' “That any collection of individuals, assembled for any unlawful purposes intending to do damage or injury to any one,or pretending to exercise correctional power over persons by violence, and without authority of law, shall for the purposes of this act be regarded as a ‘mob’, and . any act of violence exercised by them upon the body of any person, shall constitute a ‘lynching’ ”.

“Serious injury” is defined in section 2.

“The term ‘serious injury’, for the purposes of this act, shall include any such injury as shall permanently or temporarily disable a person receiving it from earning a livelihood by manual labor. ”

Section 3. — “Any person who shall be taken from the hands of the officers of justice in any township by a mob, and shall be assaulted by the same with bricks, clubs, missils, or in any other manner, shall be entitled to recover from the county in which such assault shall be made, the sum of one thousand dollars as damages, by action as hereinafter provided,”

Section 4 — (and the question here arises largely on this section):

“Any person assaulted by a mob and suffering lynching at their hands, shall be entitled to recover of the county in which such assault is made, the sum of five hundred dollars; or if the injury received is serious,the sum of one thousand dollars; or if it result in permanent disability to earn a livelihood, the sum of five Ihousand dollars.”

Section 5 provides how this money is to be disposed of. In certain cases it creates a trust for the family, and specifies how it shall be distributed.

Section 6 — “Actions for the recoveries provided for in this act may be begun in any court having original jurisdiction of an action for damages for malicious assault, within two years of the time of such lynching.” That is the limitation.

Section 7 provides:

“That when the judgment is given by the court, it is to include an order upon the county commissioners or county officers to include that in the next tax levy.”

Section 8 provides:

“Any person entitled to a share in any recovery under-this act who shall consent to a release or compromise of such claim in consideration of the payment of any sum less than the full aftiount of said recovery, shall be liable to indictment for a misdemeanor, and punished, at the discretion of the court, as in other misdemeanors.”

Section 10 provides:

“The county in which any lynching shall occur,shall have a right of action to recover the amount of any judgment rendered against it in favor of the legal representatives of any person killed or seriously injured by a mob, including costs, against any of the parties composing such mob. Any person present at such' lynching.shall be deemed a member of the mob, and shall be liable in such action.”

Section 11 provides for one county recovering from another.

Section 12 says:

“That a recovery under this act-shall not bar a prosecution for homicide or assault for engaging therein.”

The first question is whether section 4 makes a minimum amount that the party can recover.

“Any person assaulted by a mob and suffering lynching at their hands shall be entitled to recover of the county in (which such assault is made, the sum of five hundred dollars; or if the'injury received is serious, the sum of one thousand dollars; or if it result in permanent disability to earn a livelihood by mauual labor, the sum of five thousand dollars.”

We think the court below construed that section correctly. And the court below construed that section to mean that if a person is assaulted, he can have five hundred dollars, and this does not depend upon what'injuries he received; that if any person is assaulted by a mob and suffers lynching at their hands, it means simply an act of violence exercised by them upon the body of that person, that is a lynching; then he ‘íshall be entitled to recover of the county in which the assault is made, the sum of five hundred dollars.” That is a prescribed minimum by this statute, we think. ‘‘Or if the injury received is serious, the sum of one thousand dollars;” that is another part of the section, and the party so injured will recover that anyhow, regardless of what his injuries are.

It is contended that the difference between the actual injury and what the injured party is permitted here to recover by this statute, is a mere gift to the party on behalf of the county, and that it is, therefore, levying or taxing the public simply for private interests — not for public good, but simply for private interests.'

There is, perhaps, a moral obligation, at least, upon a county, and it is held constitutional for the legislature to determine whether or not a county shall or shall not respond to a person who loses his property by mob,or who suffers in his person by a mob.

The legislation has been upheld where it has been introduced in any state, as to the losing of property by a mob, making the county respond in damag'es for the amount of property lost. We know of no legislation where the county has been made to respond for any injury to

persons such as this act specifies; but the question is not before us as to whether the county may be made* to respond in the actual amount of damages, for we have no such law. But it is contended, that all that the party receives above what he has actually suffered is a gift to the party, and is taxing the people for a private individual to whom the county owe no duty or moral obligation whatever. The county, however, may owe a moral obligation, and if that moral obligation exists, it may be sufficient to' sustain a statute; but the moral obligation of the county can extend no further than to the actual amount of damages suffered. Beyond that there is no moral obligation. Hence, it is contended that beyond that, there can be no legal obligation — there can be no legal obligation created by statute, and the difference between the actual damage and the minimum amount prescribed by statute is a mere gift to the party injured. And that is met on the other side, by saving that in Ohio no legislative act is unconstitutional unless it is prohibited by the constitution, and there is no prohibition on the taxing power of the legislature.

We refer to the case of the Board of Education against The State, 51 Ohio St. page 531. That was a case where the legislature undertook to provide for the board of education to pay a debt, which debt the board of education disputed; and the legislature constituted itself a court far enough to decide whether the board of education ought to pay, and then provided that the board of education should levy a tax to pay it. The court held that the legislature had no authority, in the first place, to order the payment of the debt to a private person; and in the second place, to determine the amount i.t should pay.

This determines both. It determines that any person who is assaulted, shall recover so much money. The legislature determines the amount of damages — the actual amount of damages.

We think the case in 51 Ohio St. is decisive in this action; that the legislature cannot proceed to legislate in this manner.

Suppose one individual had been mobbed,and the legislature had proceeded to find that fact, and then required the county to levy a tax to pay the individual five hundred dollars; that would bring the facts within the case I have cited in the 51 Ohio St. But the question is, whether or not there is a limitation upon the taxing power of the legislature, in the constitution.

The supreme court in this case cite a case found in the 28 Ohio St., 521, as follows:

“That the provisions of article 12 of that instrument,” (that is,of the constitution) “though they relate to finances and taxation, are limitations upon rather than grants of powers of taxation. ”

# And there is more added. And that is what Judge Bradbury in his opinion says that the court decided in this case of The Western Union Telegraph Company versus Meyer, as I have already stated, found in 28 Ohio St., 521.

And Judge Bradbury says this is clearly established by the great weight of authority as well as of reason, that the power is not unlimited; that in doubtful cases the courts should not interfere with the exercise of this legislative discretion, and that in all cases the legislative determination is entitled to great respect; but still, that the power “is not unlimited is, we think, clearly established by the great weight of authority as well as of reason.” — State ex rel. versus Commissioners, 35 Ohio St., 468. Then he cites 27 Iowa, 28; 19 Wis., 64; and 25 Am. & Eng. Ency. of Law, 89 and 90. Then he adds to that:

“The power of taxation is given to the general assembly as an indispensable means of providing for the public welfare. Government could not be carried on without such power, and the power should be commensurate with the objects to be attained; but no good reason can be assigned for vesting it with power to take portions, large or small, of the property of one or a number of persons,and granting it as a benevolence to another. Where, a legislature attempts this, directly or indirectly, it passes beyond the bounds of its authority, and the parties injured may appeal to the courts for protection. The same constitution which grants the power of taxation to the general assembly, recognizes the sanctity of private property, and declares that the courts shall be open for the redress of injuries.”

Willis Vickery, and Albert Holmes, for Plaintiff in Error.

P. B. Kaiser, for Defendant in Error.

And again the judge says:.

‘‘This limitation of the legislative power of taxation is generally recognized by the authorities. The rule supported by a long array of adjudicated cases is laid down in 25 Am. & Eng. Ency. of Law, 74, as-follows: ‘it is within the province of the courts, however, to determine in particular cases, whether the extreme boundary of legislative power has been reached and passed.’ ”

‘‘In Weismer versus Village of Douglas, 64 N. Y., 99, Folger, J,, says: ‘But to tax A and the others to raise money to pay over to B, is only a way of taking their property for that purpose. If A may of right resist .this, as surely he may, how is he to make resistance effective and peaceable save through the courts which are set to be his guardian? How may the courts guard and aid him, unless they have the power upon his complaint to examine into the legislative act and to determine whether the extreme boundary of legislative power has been reached and passed?’ We think, however, that whenever a contention arises between an individual and some public body respecting the existence of a claim against the latter, the controversy falls within the province of the judiciary.”

Then there is a limitation upon the powers of the legislature to tax the county, and we think the legislature has exceeded its power in this case. .

Many of the details that I should state in this case I will not, because of the very complete and able opinion of Judge Dissette in his disposition of the case below, reported in 4 Nisi Prius Reports, 249.

We affirm the judgment of court below.


author: Marvin, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Hale, Marvin and Caldwell, JJ.
    JOSEPH DAVIS, EXECUTOR, v. MARY HUTCHINGS.

      Proceeding for the proper construction of will under sec. 6202 B. S. applicable to the determination of rights of legatees.

    (1.) Although the rights of legatees under a will may be determined in proceedings under secs. 6198-9 and 6200 R. S., yet the means provided by sec. 6200 R. S. are not exclusive for the determination of the rights of legatees, and an executor may bring an action also under sec. 6202 R. S. asking the direction of the court as to the proper construction of the will, involving the determination of the rights of legatees.
    “Balance” equivalent to “residue. ”
    (2.) The word “balance”, as used in the will in his case, is equivalent to ‘‘residue”.

      Void bequests — Objection may be made by any party interested.

    (3.) Bequests in a will which turn out to be void for any reason, will go to the residue of the estate where there is a clause in the will bequeathing the residue of the estate to parties named therein.

      Void bequests inure to benefit of residuary legatee, not to heir-at-law.

      (L ) Where bequests to charitable institutions are void because made within a year of testator’s death and an heir-at-law is living, tinder sec. 5915, R. S., the heir-at-law is not the only party who may object to such bequests, but any party interested in the estate may do so. And such bequests will not inure to the benefit of the heir-in-law, but go to the residue of the estate, and inure to the benefit of the residuary legatee.
    Appeal from the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

The case of Joseph Davis, executor of the will of William Hutchings, deceased, against Mary Hutchings and others, is a case commenced by a petition filed in the court of common pleas by Joseph Davis as such executor, asking for the instruction of that court as to his duties under the will of which he is executor.

The petition was filed under the provisions of sec. 6202 of the Revised Statutes, which reads:

“An executor, administrator, guardian, or other trustee, may maintain a civil action in the court of common pleas against creditors, legatees, distributees, or other parties asking the direction or judgment of the court in any matter respecting the trust, estate, or property to be administered, and the rights of the parties in interest, in the same manner and as fully as was formerly entertained in courts of chancery.”

And then follows a provision that if the trustee is requested to bring such action — to file such petition, by certain parties, he shall do so.

A demurrer was filed to this petition.

The petition sets forth that the plaintiff is the executor, duly qualified, of the will of William Hutchings, deceased, and then he quotes from the will various provisions. He says that different parties make a claim to the same parts of the estate, and he asks the direction of the court.

Very little was said in the hearing, as to this demurrer.

The cases of The First Presbyterian Society against the First Presbyterian Society, 25 Ohio St., at page 128; Merrick against Merrick, 27 Ohio St., page 126, and Bowen against Bowen, 38 Ohio St., page 426, are all to the effect that a state of facts such as the petition in this case discloses, warrants the filing of such a petition. Attention is called to the case-of Bowen against Bowen, supra, for the reason that in that case, although it is held that the rights of legatees under a will may be reached by virtue of the provisions of secs. 6198, 6199 and 6200 of the Revised Statutes, yet the court, on page 429, says:

“The executors have the right, under the statute, to protect themselves by obtaining the direction and judgment of the court upon the meaning or effect of the will-”

Section 6198 provides that proceedings may be Lad in the probate court by parties who claim to be entitled to a distributive portion of an estate, whether they be legatees, heirs, or other distributees, by which their rights may be determined; but that can only be done after a general order of distribution has been made, the executor having filed his account showing the amount in his hands after the payment of debts, costs and expenses, and any legacies which he has paid; and, if thirty days thereafter he has failed to pay any one who claims to have the right to a distributive portion, such person may commence proceedings either in the probate court or.in the court of common pleas, and if commenced in the probate court, the court shall, on motion of either party, send the case to the court of common pleas, and the parties may all be brought in- and their rights determined in that action.

It seems to us clear, that the means provided in sec. 6198 and the sections immediately following, are not the exclusive means by which the rights of legatees in a case like the present may be determined, but that the course pursued by the executor in filing his petition in this case is clearly authorized, and that it is the preferable course to pursue. The demurrer is overruled.

We come then to what construction is to be given to this will.

William Hutchings executed his will on the 24th day of November, 1893, and died on the 12th day of September, 1894 — -less than one year after the execution of the will.

He had but one heir-at-law, an adopted daughter by the name of Isolena Davis.

By his will he provided for the payment of his debts, and the costs and expenses of settling his estate.. He then bequeathed property as follows:

To his daughter, Isolena Davis, $500.00;

Then to quite a number of other people, some relatives of his and some relatives of his wife, sums amounting in the aggregate to $2,800.00.

He then follows with bequests as follows: “$1,000.00 for the county pcor-house for Cuyahoga county; $1,000.00 to the Congregational church at Chagrin Falls, Ohio; and $500.00 to The Bible Christian Conference in England — in the aggregate, $2500.00. Then (after directing that his real estate be sold) he says:

“And further the proceeds arising therefrom, with all from any and all sources, due to me from mortgage, bank, or bills unpaid at the time of my death, be used in paying all before specified as my indebtedness to my legatees and charities, and the balance divided between the children living at my death of the hereinafter- named brothers and sisters of my late wife and myself,” — naming them.

The contention here is on the part of Isolena Davis; she being, as I have already said, the only heir-at-law, being an adopted daughter of the testator,

It is contended on her part that, as the bequests made to these charities, by virtue of the statute, sec. 5915, are void he died intestate as to that $2,500.00; and therefore, his daughter, as heir-at-law,is entitled to have that amount paid to her; while on behalf of the people named as those who are to have the “balance, ” it is claimed that such $2,500.00 goes to them as a part of the residue of the estate not already disposed of in the will.

Something was said on the hearing, as to this language: ‘•‘The balance be divided between the children living at my death of the hereinafter named brothers and sisters of my late wife and myself;” that that was not equivalent to saying “the residue be divided” among these people, or is bequeathed to these people.

It seems to us that the word “balance,” as used here, is 'equivalent to saying that the “residue” be divided between these people; that what he meant to do was to give what was left after the payment of the bequests preceding this, to these people; and if that is so, we can see no distinction to be made between using the word “ balance, ” and the word “residue”.

The authorities are almost uniform that bequests in a will, which turn out for any reason to be void, will go with the residue where there is a clause in the will bequeathing the residue of the estate to people named in that clause of the will.

In some of the jurisdictions there is a distinction made between devises of real estate and bequests of personal property. And it is held in some jurisdictions — not as uniformly now as earlier — that a devise of real estate to a residuary devisee will not include a devise made in a will which lapses or becomes void; but the cases which so hold do not hold, that the same is true as to personal property.

There is a case in 6 Conn., page 293 — the case of Greene v. Dennis, in which it is held that a devise of the residue of real estate after certain devises had been made, and where, among the devises made, there were some which had lapsed — that the devise of the residuum would not carry that part of the real estate included in the void devise, but in that case, the court say in the opinion, on page 304, that if it were a bequest of personal property, the rule would be different,and that the residuum would include the void bequest.

In the case in 9 Allen, page 283, Thayer v. Wellington, the court go into an elaborate discussion of the effect of a bequest of a residuum of the estate — where any bequests' named in the will are void or have lapsed from any cause, and they say that the rule is universal in its application, or that the courts are uniform in holding, that the'bequest of the residuum takes not only all that is not bequeathed otherwise in the will,but all that is not well bequeathed — so bequeathed as that the legatee can take it.

In the argument, we were cited by counsel representing the heir-at-law, to a case in 20 Wendell, 457, Van Kleeck v. The Minister and Officers of the Reformed Protestant Dutch Church of the city of New York, as holding a contrary doctrine. An examination of that case shows it was a devise of real estate,and not a bequest of personal property, and the court say, that if it were a bequest of personal property, the rule would be otherwise, and that the legatee of the residuum would take the bequest which had lapsed or become void.

Another case upon which counsel for the heir-at-law seem greatly to rely,is the case of Kerr v. Dougherty, in 79 New York, page 327.

In his brief, the counsel for the heir-at-law makes copious extracts from the opinion in this case (Kerr v. Dougherty). The judgment was rendered by a divided court' — two judges dissenting — and in that case the judge delivering the opinion for the majority announced the general rule, that a residuary bequest will include such parts of the property as were not so bequeathed as that the legatee could take under the bequest; but the court — satisfactorily to itself' — 'made a distinction between that case and the ordinary bequest of the residuum. That case has been considered in the state of New York a good many times since — In the 96 N. Y., page 499, in the matter of Benson, guardian; in 113 N. Y, 115, Ricker v. Corvince; in the 88 N. Y., 568 in the case’ of Floyd v. Carow; in the 18 N. Y., 243; 46 Hun, 509; 126 N. Y., 215, Booth v. The Baptist Church — each one of these cases comments on the case of Kerr, executor, v. Dougherty, supra; and in each it is stated that the doctrine in New York, as well as in other jurisdictions, is that a bequest of the residuum of personal property carries to the reiduary legatee not only all that is not otherwise bequeathed, but also such as is undertaken to be disposed of under void bequests, and that no other doctrine was.intended to be announced in the Kerr v. Dougherty case, although the language used in the opinion might be understood otherwise.

It was urged, in the argument, that the manifest purpose of sec. 5915 of the statutes was to protect the heir-at-law, and that since but for the fact of the adopted daughter, Isolena Davis, being alive, the bequests to the several charities would be good, she and she alone should profit by the fact that such bequests were made void by the statute; that is, that whoever takes that included within the void bequests, does so because the daughter is alive, and that it would be unreasonable to say that these residuary legatees shall take this when the only reason that any one can take it from those named in the void bequests, is because she is living; that certainly she should be the one benefited by the bequests becoming void.

E, P. Wilmot, and A. W. Jones, for Plaintiff.

C. OolHster, and Judge Jones, for Defendant. .

A similar argument was used in the case of Patton'v.Patton, 39 Ohio St., 590, and the court, in considering it in ,the opinion, on page 596, use this language:

“This contention is based on the assumption that lineal heirs alone might object to such bequest,as the proviso was for their protection alone. But this assumption is not authorized by the statute. We can see no reason why any ■one interested in the descent and distribution of the estate might not assert the invalidity of the bequest. True, the •invalidity of the bequest depends on the existence of lineal ■descendants, natural or adopted, at the death of the testator; ■but no use of the void bequest is preserved to lineal descendants. ”

We find nothing in this case to indicate that the testator intended that his daughter should receive more than the $500.00 bequeathed to her. She was not overlooked at the time the will was made, and it would seem that the testator had no desire or intention that she should receive more than the amount named in the bequest to her.

We, therefore, conclude that the money named in the bequests to charities is to be treated as a part of the residuum of the estate to be distributed to those named as taking “the balance,” and the decree will be entered accordingly.


text:
    (First Circuit Hamilton Co., O., Circuit Court
    Jan. Term, 1897.)
    Before Day, Price and Norris, JJ.
    (The judges of the Third Circuit sitting in the First Circuit.)
    H. M. DUNLAP v. DOUTHET et al.

      Judgment of court of other state — Proof of—

   Day, J.

The law of Pennsylvania, constituting and conferring jurisdiction on the court of common pleas of Allegheney county, Pennsylvania, having, without objection, or exception, been proven, a duly attested and certified transcript of the record of a judgment of that court, is competent evidence to establish the fact of such judgment.

Judgment affirmed.


author: King, J. Caldwell, J'. Makvin. J.

text:
    (Eighth Circuit — Cuyahoga Co., O. Cir. Court
    Dec. Term, 1897.)
    'Before Caldwell, Marvin and King, JJ.
    (King, J. of the Eighth Circuit taking the place of Judge Hale.)
    THE EAST CLEVELAND RAILWAY CO. v. SYLVESTER T. EVERETT.

      Private corporation — Sale of bonds — Power of selling committee to employ broker—
    1. ^A committee, duly empowered by a corporation to negotiate for purchasers and to sell an issue of bonds, have power to employ a broker to sell such bonds.

      Same — Compensation of broker employed—

      % A broker so employed and rendering services under such employment may recover of the corporation the reasonable value of such services.

      Sale at less than par not without express authority of Board of Directors—
    3. The Board of Directors not having authorized its said committee to sell the bonds at less than par, the committee could not authorize a broker to secure purchasers for ninety-five per cent of par.

      Evidence — Hypothetical question must apply to facts of case—
    1. In proving the value of the services^of such a broker by the testimony of experts, it is improper to include in a hypothetical question the statement that such broker was authorized to sell the bonds at ninety-five cents on a dollar.
   King, J.

(In place of Hale, J.)

The plaintiff m error was plaintiff below, and brought its action to recover the value of fifteen (15) bonds, it alleged that the defendant had converted' to. his own use,of the value of $15,000.' Defendant in his answer denied the conversion, alleged that the bonds, with others, were placed in his hands as a broker to negotiate a sale thereof, and, as a second defense, alleged that he rendered services pursuant to an employment by the railroad company in the sale of an issue of $1,000,000 of bonds, which entitled him to a commission as compensation in the sum of $25,000.

The trial resulted in a verdict and judgment for the defendant in the sum of $4,750.

The first objection, and one argued at length, is that the only authority shown for the services defendant alleges he rendered, is pursuant to a written agreement set forth in the ¿nswer, purporting to have been, made with the plaintiff, but in fact, plaintiff says it was made with the president and assistant secretary of the corporation, and without the knowledge or consent of the board of directors, and, it is argued, was beyond the power and authority of these officers to make.

It appears from the record, that the defendant has for many years been interested and engaged in owning, negotiating, buying and selling securities of the character described in this case; that the president of this railroad company was his brother, the secretary thereof, a relative, and he himself was a stockholder; that on January 12th, at a stockholders’ meeting, a resolution was adopted authorizing the board of directors to mortgage the railway property for $1,000,000, and to execute bonds for that sum bearing interest at five per cent, and due in eighteen years, and to dispose of the same and use the proceeds in payment of an existing mortgage and certain floating indebtedness; and defendant claims, that, thereafter, the president and secretary directed him, verbally, to investigate the bond market. That he had repeatedly been engaged in negotiating loans for the plaintiff, and these officers called on him again. That he visited eastern cities where such bonds are usually sold, and made efforts to sell and place them.

Before any bonds were actually sold, the board of directors,on the 12th day of March, passed a resolution authorizing the president and secretary of the corporation to cause the bonds to be printed, to properly execute a mortgage upon the property securing the same, and to dispose of the bonds and pay the indebtedness before referred to

On the 2nd of March, ten days before the passage of this resolution, the contract which the defendant alleges is the written evidence of his employment was entered into actually between the president and the assistant secretary of the corporation on one hand, and Sylvester T. Everett on the other hand, but apparently was entered into by the railroad company through said officers.

The evidence seems to satisfactorily show that beyond the knowledge of the president, secretary, assistant secretary, and one other director, the other directors ’ as individuals and the board of directors as a body had no notice or knowledge of any kind that this employment or contract had been entered into. And these directors, outside of the four mentioned, testified that they had no knowledge that Mr. Everett was engaged in the performance of services for this railroad company.

We do not think, however, in order to sustain the defendant’s claim, that it was necessary to show a contract with the corporation, although on that point the court charged the jury that it was necessary to either show a contract with the board of directors, or a ratification by them of one already made.

Without extensively quoting, reference may be made to 3 Thompson’s Law of Corporations, sec. 3945, and the case there cited, 11 Metcalf, Mass., 167.

Same author, sec. 3955, says:

“The execution of the necessary written instruments to effectuate the powers thus possessed by such committee, being a mere ministerial act, the committee has, no doubt, the power to appoint an attorney in fact or sub-agent to execute such instruments.”

And the same author, vol. 4, sec. 4659, refers to numerous acts which have been held valid on the part of the president of the corporation without express authority, Among others, “to employ a broker to sell certain stock which the bank has taken to secure a loan.”

Section 5866, refers to the powers of the president, or secretary or managing officer, to employ an attorney to prosecute or defend litigation, and referring to authorities in 9th Paige, 496; 5 Denio, 355; 61 Missouri, 89-94; 2 Metcalf, Ky., 240. Also sec. 4970, referring to a case in 13 Col., 534, And as to the general doctrine upon this subject, I refer to the same author, sec. 4881:

The stockholders in this case bad conferred upon the board of directors the power, not only to make out the evidences of debt and execute them, but to negotiate and sell them. The board conferred upon its president and secretary practically the same power. Hence we think the president and secretary might authorize one engaged in the business of negotiating for purchasers of such securities, to negotiate for the sale of these, and that, if the defendant, pursuant to this authority, verbally in the first instance, but afterwards reduced to writing, performed services, and on March 12th. the power of the president was confirmed by the resolution of the board, then he might recover what those services were reasonably worth.

It is urged in the second place, that the charge of the court is erroneous in this respect, that the court said to the jury, “the testimony of experts in the form of an opinion as to the value of such services, based upon an assumed state of facts — a supposed state of facts — is entitled to little weight if the facts assumed, or any material part thereof, as the basis of their opinion, are not true.” There is a little more in the charge to the same effect. And we think that this portion of the charge is not supported by the authorities, especially a case in the 7th Circuit Court Reports, 328 and 332; also 28 Ohio St., 547. We should be obliged to hold this was erroneous, but curiously enough, before the court proceeded to give its general charge, the plaintiff requested certain matters to be given in the charge to the jury, and, among others,-the following:

”14. Testimony of experts in'the form of opinions based upon an assumed state of facts, is entitled to but little weight if the facts assumed, or any material part thereof, as the basis of their opinions, is not true.”

According to our analysis of this request and the charge upon that subject, they are substantially identical in form and effect, and the plaintiff having requested the court to give that to the jury, carl hardly take advantage of it by exception or objection now after the court has given it.

3rd. Passing from the charge upon the subject of expert evidence, there are numerous objections to the form of questions and the character of the testimony given in response thereto, throughout the record. On page 250, is the first of these, and it contains, as a fact, one statement that is carried into very many of the questions in this record, and may be disposed of in passing upon this single question. The witness is inquired of, in substance, what would be a fair commission for selling SI,000,000 of five per cent, bonds running eighteen years and conditioned upon the paying off of a prior 1500,000 mortgage and cancelling certain floating indebtedness? The attorney, in a second question, says, you would have to take it for granted that the company placed a minimum limit of 95 and that the bonds, in point of fact, were placed at from 98 to par. Again, the attorney says before the answer comes in, placing them at from 98 to par, the minimum price for the sale of the bonds by the company being 95. To all of this there are proper objections, and the witness answers, that the commission, under these circumstances, would be 3-J- to 5 per cent.

The difficulty with this question arises from the assumption that the company had authorized the sale of these bonds at 95. From first to last of this record,'there is produced no action of the company fixing the minimum price at which these bonds were to be sold, no action of the company fixing any price at which they should be sold, no action by the company, by its board of directors or stockholders, authorizing any committee of its own numoer to fix a price at which these bonds should be sold, no resolution authorizing the president and secretary to fix such price, and we are constrained to hold that upon the proposition of the power to fix a price less than par, that the president or secretary or other officer or person having only a general authority to negotiate for the sale of bonds, has no power to sell the same at less than par without the concurrence of the board of directors in his act, and hence, that the minimum price fixed for these bonds at ninety-five cents on the dollar is an assumption not supported by the proof. The only ground for that arises in the written contract set forth in defendant’s answer, in which the defendant is authorized to negotiate these bonds at a price not less than ninety-five cents on the dollar; but, as I have suggested, the president had not any authority to fix the price, and, consequently, had no authority to authorize the defendant to fix that price as a minimum, and hence, it was an improper fact to put into a hypothetical question.

A reading of these questions and the answers thereto, indicate that the witnesses generally gave considerable.importance to the fact that the company was willing to sell these bonds at ninety-five cents on the dollar, and that this broker had negotiated their sale at ninety-eight cents or par, and it had, in our judgment, considerable effect in determining the amount of commission testified to by these various witnesses.

On page 287 of the record a. hypothetical question is asked, substantially in this form: “What would be a fair compensation for the sale of these bonds, running eighteen years, bearing five per cent, interest,the sale being made at 98,- and from the proceeds pay off a mortgage of $500,000, Mr. 'Sylvester T. Everett managing all the details of the transaction and paying his own expenses?” We think thatjiB an unfair assumption. The question should state the precise facts, whether these are but few in number or many, which it is claimed the evidence tends to prove were the acts performed in the sale of these bonds and the earning of this commission, and to inject into the question “managing all the detail of the transaction,” is meaningless, or if it has a meaning,may well be misleading, and the question should not have been allowed.

On pages 377 and 378 of the record are questions asked of the witness Lamprecht, in one of which is stated this hypothesis

“Before going east he executes one note signed by himself for $100,000 endorsed by the East Cleveland Railway Company, endorsed another note • executed by the East Cleveland Railroad Company to raise money to pay off the $200,000 with accruing interest on the note secured by mortgage for $500,000 in the east.”

We think these facts should have been omitted from that question, and that the question was incompetent in the form in which it was made.

Defendant’s cause of action is not for commissions earned in endorsing paper, and, so far as anything in this record is concerned, there is nothing to show but that this was always an accomodation on the part of the defendant, and there was no understanding or agreement with the president or. any other officer of the corporation that the ^defendant was: to be paid for such endorsements, and that should have been omitted from the question.

All of these questions, then, to which special reference has been made, were erroneous, and we think their answers had considerable effect upon the verdict in this case.

áth. Considerable has been said about the charge of the court upon the subject of ratification.

We do not think anything in the charge of the court is erroneous upon that subject unless it may be said, that the court gave too great prominence to that question and the charge is thereby misleading. There is, in our judgment, no evidence in this case, upon the subject of ratification. Defendant was entitled to recover, if at all, upon his contract ■ of employment. He has certainly shown no ratification of' the contract that would authorize him to recover. We do not discuss, or think it necessary to discuss, whether he should have pleaded that or not. But the court might well have omitted considerable in the charge, upon the subject of' ratification.

5th. We believe and are constrained to hold that this verdict is erroneous as to the amount of it. We think the weight of the evidence indicates that the defendant was not entitled to recoveras his compensation for the services rendered, in any event, a sum exceeding the amount of the proceeds of the bonds he admitted he had received.

Shortly after the time when defendant alleged he performed the services, the president called upon him for his bill, and he made a' written statement to the railroad company in which he charged the company for various services performed by him, for various sums of money paid to and for its use, and charged himself with the receipt of the $15,000 worth of bonds as well as others balancing the account and so far as his act goes, satisfying his claim against the company by the receipt and credit of $15,000. That was an important act, and the jury ought to have been instructed that it was entitled to great weight,and we think it is fair to say that from all the evidence, plaintiff ought not to recover a new and greater amount than that which he accepted, received, and notified the company was a full payment from it. It has more weight than a mere account; it has the effect of a receipt in full to the company; and, while a receipt may be explained, there seems to be nothing here explaining it, or no explanation other than that the amount credited was not as much as the services were worth in the pinion of the witness given at this trial.

J. M. Jones and W. W. Boynton, for Plaintiff in Error.

. Dickey, Brewer & McGowan; Everett, Weed, Meals & Sluss, for Defendant in Error.

We conclude, therefore, that because the amount of the recovery of the defendant is in excess of the amount he is entitled to receive, and because of the introduction of this' evidence based upon improper, hypothetical questions as referred to, that the judgment in this case must be reversed.

Caldwell, J'.

The court below, on the question of the authority of the committee appointed to negotiate these bonds — -on the authority of the president to appoint Sylvester T. Everett to aid and assist the committee, charged the law in such manner that the plaintiff in error is not complaining of it, and there is no cross-petition in error, so that the law, as charged by the court below, is not involved in this case in the trial here and, not being involved, I do not want it understood that I am committed to that proposition of law.

Makvin. J.

I concur in the opinion as read.