author: HAYNES, J.

text:
    SCHOOLS.
    [Wood (6th) Circuit Court,
    November 25, 1906.]
    Haynes, Parker and Wildman, JJ.
    Bowling Green School District (Bd. of Ed.) v. Edward Beverstock.
    "Teachers Employed within Three Months aeteb Close oe Teacher’s Institute may Recover Salary under Rev. Stat. 4091 (Lan. 6683).
    Under favor of Rev. Stat. 4091 (Lan. 6683), which provides for the payment of their regular salary to public school teachers in any county in which a teacher’s institute is held, while in attendance thereat, not only those teachers who have already been employed for the ensuing year but whose schools do not open until after the holding of the institute are entitled to a payment of such salary, but also those who, at the time of the institute, have not yet been, but are thereafter engaged within three months after the close of the institute.
    [Syllabus approved by the court.]
    Error .to Wood common pleas court.
    J. O. Troup and J. W. Gabriel, for plaintiff.
    Edward Beverstock, for defendant-.
   HAYNES, J.

A petition in error is filed by the board of education of the Bowling Green city school district, which was defendant below, against Edward Beverstock, a taxpayer, who was plaintiff below, to reverse a judgment of the court of common pleas of Wood county. The case was heard in that court upon a demurrer to the petition, and the defendant not desiring to plead further, final judgment was entered upon the overruling of the demurrer. The points of error cited in the petition here are that the court erred in overruling the demurrer, and erred in rendering judgment in favor of the plaintiff in said cause.

The action grows out of the fact that the board of education of the city of Bowling Green was about to pay the teachers of the schools of the district for the time that they spent in attending the teachers’ institute of Wood county which was held sometime in August of the current year, I believe.

Teachers’ institutes, as it is known, are conducted under an act of the state of Ohio and are county institutions and are held for the purpose of instructing persons who expect to become, or are already teachers of schools, the purpose being to make a more efficient corps of teachers. Revised Statutes 4091 (Lan. 6683) recognizes those institutions and provides for teachers of the schools attending the same; the language of the statute being as follows: “All teachers of the public schools within any county in which a county institute is held may dismiss their schools for one week for the purpose of attending such institute, and when such institute is held while the schools are in session the boards of education of all school districts are required to’pay the teachers of their respective districts their regular salary for the week they attend the institute upon the teachers presenting a certificate of full regular daily attendance at said institute signed by the president and secretary thereof; the same to be paid as an addition to the first month’s salary after said institute (by the board of education by which said’ teacher is then employed, or in ease he is unemployed at the time of the institute, then by the board next employing said teacher, provided the term of said employment begins within three months after said institute closes.”

The petition in this case to which we are to look for the facts sets forth that the city of Bowling Green is a school district, and that it has a board of education, created- and acting under and by virtue of the laws of Ohio. That annually in the month of August of each year there is, held-in Wood county a county institute at which a great many of the-teachers employed throughout the county, attend for the purpose of more efficiently preparing themselves for the occupation of a teacher; that said county institutes are usually held from the twentieth day of August to the twenty-fifth day of August of each year. That prior to the twentieth day of August of each year the board of education of the Bowling Green city school district of Wood county, Ohio, employs and hires all teachers,- superintendents and principals necessary for the instruction of the pupils 'in the schools in said district for the year beginning the first Monday in September, following the holding of said county institute in August. That on August 21, 1905, the board of education of the Bowling Green city school district of Wood county, Ohio, authorized the defendant, Newton R. Harrington, as clerk of said board, to issue an order to all teachers who presented certificates of attendance at the institute held August-21, 1905, for the payment of such sum due them for one week’s pay according to the rate for which said board hired them for the ensuing year, and also authorized the clerk to issue orders to such of the teachers as presented certificates for attendance at the institute held in August, 1904. That at the time of the holding of said county institute the schools in the Bowling Green city school district of Wood county, Ohio, were not in session and had not been in session for more than two months prior thereto, and for the year 1904 did' not convene for about two-weeks thereafter; and that said schools within said district were not dismissed for the purpose of attending such institute, and that' all the teachers who are proposed to be paid by the order of the board of education so passed on August 21, 1905, were at the time of attending said institute duly and regularly employed, as teachers by the board of education of the Bowling Green city school district of Wood'county, Ohio, both during the time of the institute held in August, 1904, and during the time of the institute being held in August, 1905. That the payment of said teachers so authorized by the said board of education is illegal and contrary to law and is a diversion and misappropriation of the funds raised by taxation for the purpose of conducting the schools of said •district, and that unless 'restrained by this court, said funds will be so unlawfully withdrawn from the treasury and so diverted and misappropriated to the irreparable damage, loss and injury to this taxpayer ■and the other taxpayers of said district. That this action is brought on behalf of plaintiff as a taxpayer of said district and of the other taxpayers of said Bowling Green city school district of Wood county, Ohio. That by the action of said board of education there will be paid out of the funds so raised by taxation, unlawfully and without authority of law, about eight hundred dollars. Wherefore the plaintiff prays that the clerk may be enjoined from, issuing any order or paying any moneys out of the treasury upon the order of said board and that upon final hearing the injunction may be made perpetual, etc.

Revised Statutes 4091 (Lan. 6683) as has been stated by counsel is not very clearly drawn, but we think we may fairly and easily deduce certain facts from .it in regard to this matter that will be governing in the decision of the case.

• We think that in the classification of this statute, there are two classes of persons designated. There are teachers in schools that are teaching at the time the institute is to be in session, and in order to attend the sessions of the institute it becomes necessary for thiem to dismiss their schools for the period of a week. And there are another class who -are unemployed at the time of attending the institute, and who are to be paid by the school district that may thereafter employ them; the •statute reading: “All teachers of the public schools within any county in which a county institute is held may dismiss their schools for one week for the purpose of attending such institute, and when such institute is held while the schools' are in session the boards of education of all school districts are required to pay the teachers of their respective districts their regular salary for the week they attend the institute upon the teachers presenting a'certificate of full regular daily attendance at said institute signed by the president and secretary thereof; ” * * * That relates of course to persons who are actually employed in teaching-at the time. # * * “The same to be paid as an addition to the first month’s salary after said institute by the board of education by which, said teacher is then employed, or in case he is unemployed at the time-pf the institute,” * * * Certainly that relates to .another class of persons * * * “then by the board next employing said teacher,, provided the term of said employment begins within three months after said institute closes.”

It seems to be the custom to have these institutes held during the vacation of the schools. We gather from this petition that the terms of the schools are from a period in September until the school term closes the next year, — usually in May or June, and that there is a period between the termination of the preceding year and the commencement of the next school year in which there are no school sessions, and in which the teachers are not hired or paid; it is a period of vacation, so to speak. Now the claim is that these teachers, that have been, it is said, employed prior to the twentieth of August, are not employed within the meaning of the statute as teachers of a school district, and the sessions' of the institute being held during vacation they did not dismiss, nor could they dismiss their schools, for the reason that their schools were not in session.

Well, now we think a fair and liberal construction is to be given to the statute. The matter of education in the state of Ohio is one that has always met with favorable consideration. In the very organization of the state a large amount of property was sold and the money received therefor placed in the treasury, and the state of Ohio has been paying interest on it ever since for the support of the schools, and liberal provision of money has been made to improve the standing and efficiency of teachers. And in furtherance of this idea, institutes have been established and the teachers encouraged to attend them, the provision being that the teachers may dismiss their schools for that purpose, if necessary.

In regard to the other class.I have referred to, it is claimed that because they were hired that they were employed at the time, and were in the employ of the school board but as they did not dismiss their schools at that time, they are not entitled to recover anything for institute attendance. We are unable to take that view of the case. We think that these teachers although they are named to teach on terms to-commence in a future time, they are not employed as teachers in the-school until the second of September, when they actually go to work, and when their pay commences. There is no school. These teachers who-have been appointed to places are employed during the vacation in other ways; their time is their own; they are following their own business matters and own interests and áre employed! in that way, and they are not employed at actual teaching; they are unemployed as teachers; they are not engaged in teaching, hence they come under that class who are unemployed and are to be paid by the board next employing them, provided the term of said employment begins within three months after said institute closes.

If the teachers who were employed or named by the board prior to the twentieth, the date of the institute, had been re-employed or named by the board as teachers after institute closed on the twentj-fifth, they certainly would have been re-employed teachers at the time of the institute, and, as we hold entitled to.be paid for the time they attended the institute. Why should their claims for payment be better than those named or employed prior to the twentieth. Their situation in reality is the same. They are named during vacation to teach upon the opening of the schools. They are in fact, teachers not employed or engaged in teaching, and will not be so employed or engaged until school opens. They are unemployed because their term has not commenced and they are not engaged in teaching, their terms have not commenced.

Now the time of payment is not a matter material here. The question is whether they are entitled to be paid and we think clearly that they are so entitled under the statute. We think that is a just and fair construction of the statute and carries out the idea of the legislature in enacting it; that it was their purpose to get teachers who are competent and efficient in carrying on the profession of teaching schools.

The petition of the plaintiff will be dismissed. We think we may reverse this judgment and proceed to render the judgment that the court of common pleas ought to have rendered dismissing the petition, and it is so ordered.

Parker and Wildman, JJ., concur.


source: Caselaw Access Project

author: JELKE, J.

license: Public Domain

text:
    EVIDENCE — EXECUTORS AND ADMINISTRATORS — TRUSTS.
    [Hamilton (1st) Circuit Court,
    December 19, 1905.]
    Jelke, Swing and Giffen, JJ.
    John Wentzel (Exr.) v. Charles R. Chesley et al.
    Executob can Maintain Action for Restitution of Assets of Trust Estate which he has Erroneously Conveyed away-, without Consideration.
    If there are no intervening equities, an executor can maintain an equitable action to have restored to the trust estate, a portion of its assets which he has, by mistake as to his authority under the will, conveyed away without consideration; and the burden of proof will be upon those endeavoring to set up facts and reasons by way of consent or estoppel why this should not be done.
    [Syllabus approved by the court.]
    Appeal from Hamilton common pleas court.
    John Wentzel,'for plaintiff-.
    H. L. Gordon and G. A. Ginter, for defendants.
   JELKE, J.

On December 18, 1883, Henry Wentzel died testate, making John Wentzel executor and trustee of his will, the portions of which will involved in this case are as follows:

“Second. I,will and bequeath to my son, John, all my real and personal estate in trust for the use and benefit of my beloved wife, Margaret Wentzel, during her natural life, if so long she remain unmarried.
“Third. In ease my wife shall remarry, I will and bequeath to her one-third (1-3) absolutely of all my real and personal estate; the remaining two-thirds (2-3) to be equally divided between my four children, John, Lizzie, Therese and Anna.
“Fourth. I will my beloved wife the privilege, power and prerogative to dispose of, by will at her death, a one-third interest in all the real and personal estate.
“Fifth. If my wife elects and takes against this will, I will and bequeath that the remaining portion of all my property be equally divided between my four children, John, Lizzie, Therese and Anna.
“Sixth. I will and bequeath, at the death of my beloved wife, Margaret Wentzel, all my real and personal property — except the one-third above mentioned — shall be equally divided between my four children, John, Lizzie, Therese and Anna.
“Seventh. I will that when money, which I have loaned, becomes due and the money due at my death on Policy 72,619 issued by the Connecticut Mutual Life Insurance Company of Hartford, shall be collected and invested and reinvested, on good security, by my son John; the interest to be paid to my beloved wife.”

In March, 1885, said. John Wentzel, the executor and trustee as aforesaid, invested of the funds of said estate the sum of $2,080 in a certain lot of land situate on the south-west corner of Wheeler and McMillan streets, Cincinnati, Ohio, and subsequently $8,000 in building a brick house thereon, making a total expenditure of about $5,000.

Christina Chesley was the daughter of the widow Margaret Wentzel by a former husband and the stepsister of John, Lizzie, Therese and Anna Wentzel.

With the knowledge and the approbation, at the time it seems, of the widow Margaret Wentzel and her daughter Anna, John Wentzel, the executor and trustee, took the title of this property in the name of Christina Chesley where the title to said property has remained ever since.

Christina Chesley has died and the property apparently by inheritance passed to Charles R. Chesley.

Margaret Wentzel and Anna Wentzel, now Anna M. Hawkins, •claim that they did not fully understand the transaction by which said •title was taken in the name of Christina Chesley. Action is herein maintained by the said John Wentzel, executor and trustee, to recover and have brought back into the assets of the estate of Henry Wentzel, •deceased, this property. It is manifest from a reading of the will that in doing as he did, the said John Wentzel as executor and trustee had no right, power or authority under the will so to do. This is admitted by counsel for defendant, but it is claimed that it was done with the .knowledge and the consent of the widow and children of Henry Went-zel, deceased, and that the same has been acquiesced in now so long that the transaction cannot be disturbed. We do not think that this is so. This action is in no way barred by any of the provisions of the statutes ■of limitation. This property was clearly bought with the funds of said ■estate, and unless there is some estoppel, we see no reason why it should not in equity be restored. Neither Christina Chesley nor her son, Charles, ever paid one dollar on account of said property, but on the •contrary have had the use and enjoyment of the same from 1885 to the' present time without paying rent of any kind therefor.

It is extremely doubtful whether the widow, with the children of Henry Wentzel, could' ratify and approve this unauthorized act of the ■executor and trustee by verbal consent or tacit acquiescence. It seems "to us that if they had any power at all, which'is extremely doubtful, during the life of Margaret Wentzel, to confirm this act, it ought to have been by deed. The power of Margaret Wentzel over the estate of Henry Wentzel or any part thereof, is clearly indicated in items fourth,, fifth and sixth of said will, and her power of disposition over the same-could be exercised in no other way. A reading of the will would rather disclose that the object of the testator was to provide against the impulses of maternal generosity on the part of Margaret Wentzel and the-importunities of any of her children, and to insure the conservation of the estate so as to furnish her an income as long as she lived.

Mrs. Therese Hirsch and Mrs. Lizzie Paine (both nee Wentzel),. testified that they did not know of the transaction at the time it was made, and that immediately upon discovery of the same and ever since-they have objected to and protested against the same; Mrs. Anna M. Hawkins, nee Wentzel, testifies that she knew of the transaction and rather procured her brother to make the same, always with the understanding, -however, that it was a gift by the mother, Margaret Wentzel,. out of her third to her daughter Christina, the said Anna’s stepsister, and that she had no knowledge of the lack of power in the said John Wentzel, executor and trustee; that since she learned that the same was being taken out of the general assets of the estate, and that her mother had no power under the will to take this in this manner specifically out of her third, she objected and has ever since and does now object. The said John Wentzel testifies that he simply blundered.

In the face of the will and the admitted facts, the burden of proof to show the fact of consent, be that of such legal significance as it may, is on the defendant. The preponderance of proof, however, is plainly against the defendant in favor of the plaintiff. We see no reason for any estoppel. Neither Christina Chesley nor her son, Charles, have ever parted with anything on account of this property, neither have they been induced to change their legal relation or incur any obligation or liability on account thereof. They simply have enjoyed a residence-for a period of years without cost to which they had no legal right for the use of which, however, there is no claim made, and this court would not allow any. But as to the corpus of the property, it is an asset of the estate of Henry Wentzel and as such ought to go back into the hands of the executor and trustee to strictly follow the course prescribed for the assets of the testator’s estate, in his will.

There is a sentimental hardship in this conclusion, but no legal one. Margaret Wentzel, the widow, did not testify. The executor and trustee-says that she is aged, and now needs for her comfortable maintenance and support an income on this property. We therefore find for the plaintiff and decree may be had accordingly.

Swing and Giffen, JJ., concur.


author: WILDMAN, J.

text:
    BOND — MILITIA.
    [Wood (6th) Circuit Court,
    January 12, 1906.]
    Parker, Haynes and Wildman, JJ.
    American Bonding Co. v. Edward S. Bryant.
    Officer is not Released from Liability to Pay Premium on his Bond by Notification to Obligor that Bond is no Longer Required.
    An officer of the national guard is liable for the premium on a continuing bond executed by a bonding company under the requirements of Rev. Stat. 3104 (Lan. 4728) until such company is released from its liability for his default by his furnishing another bond or turning the property for which he is accountable over to the state or to his duly qualified successor; and a mere notification by such officer that he no longer requires such bond, will not operate as a cancellation, or release him .from the payment of the premiums thereon.
    [Syllabus approved, by the court.]
    Error to Wood common pleas court.
    Edward Beverstock and E. D. Bloom, for plaintiff.
    G. H. Jones and C. R. Painter, for defendant.
   WILDMAN, J.

In the case of American Bonding Company of Baltimore against Edward S. Bryant, the plaintiff in error, who was also plaintiff below, brought suit in a justice’s court against Edward S. Bryant to recover the sum of $12 as an annual premium upon a contract for an official bond furnished by the plaintiff company to said Bryant. It appears by the record that Bryant was a colonel in the Ohio National Guard, and as such, was required to furnish an official bond to the state under the provisions of Rev. Stat. 3104 (Lan. 4728). In the justice’s court, judgment was rendered in favor of the defendant, and a proceeding having been brought in the court of common pleas for a reversal of that judgment, the judgment was affirmed by said court, whereupon a petition in error was filed in this court for a further review of the proceedings. The facts involved in this ease were presented in the justice’s court by an agreed statement of facts, certain exhibits and concessions embodied in the bill of exceptions. The statement is brief and I will read it:

‘ ‘ The application of the defendant to the plaintiff to become surety for him as colonel of the second regiment, Ohio National Guard, on the sixteenth day of June, 1903, which paper is marked ‘Exhibit A’ and made a part hereof; also a certified copy of the bond given by plaintiff to the state of Ohio on behalf of the defendant as colonel of the second regiment Ohio National Guard, which certified copy is marked ‘Exhibit B’ and made a part hereof.
“It is also admitted by the parties that the defendant, prior to the sixteenth day of June, 1904, notified the plaintiff that he did not desire the renewal or continuation of said bond theretofore given by said plaintiff for him.
“It is also admitted that the defendant was and still is colonel of the second regiment, Ohio National Guard, and that he has given no bond to the state of Ohio since the giving of the bond a certified copy of which is a part of this evidence and marked ‘Exhibit B,’ and that his term of office has been continuous from the time of giving said bond on June sixteenth, 1903, and that the defendant herein is required by the laws of the state of Ohio to give a bond to said state for the faithful performance of his duties.
“All objections as to the competency of ‘Exhibits A’ and ‘B’ are waived, and such exhibits are admitted to be the best evidence of the facts therein recited.
“It is agreed between the parties hereto that the above and foregoing evidence and admissions were all the evidence submitted by either party in the trial of this cause.”

It was on the basis of these concessions and the facts as so shown, that the judgment was rendered in thé justice’s court. The bond, which is attached, is indefinite as to its duration. The claim of the defendant below is that having given notice to the bonding company that he did not longer require a bond, he was thereby relieved from any further liability for annual premiums, but the language of the bond discloses no termination to the liability of the bonding company until the responsibility of the colonel for state property, for the care and return of which the bond was given, should be ended. The bond reads:

‘ ‘ The condition of the above obligation is such that: Whereas the said Edward S. Bryant, who is commandant of second infantry, Ohio National Guard, has, as commandant of said regiment, been intrusted with property of the state of Ohio, including all ordnance stores, clothing, camp and garrison equipage, in possession of said organization, together with public funds coming into his hands as such officer, and for such state property and funds as may hereafter be issued or placed in his charge as said commanding officer; now if the said property or public funds, or either, shall be delivered to the said Edward S. Bryant and the same shall be safely kept and at all times-in readiness for immediate use, in a place appropriate for that purpose, and no part of said public property permitted to be used or taken from such place of deposit for any other purpose than for the use and benefit of such organization or other lawful public service, and if said property and funds shall be turned over to his successor in office (first causing new bonds to be executed by his successor, to the acceptance of the adjutant-general), or shall be returned to the state in good condition, and shall at all times be subject to the orders of the governor of Ohio, then this obligation shall be void, otherwise to be and remain in full force and virtue in law. ’ ’

The application on the part of Colonel Bryant for the furnishing of this bond by the bonding company, does not, in our judgment, vary the character of the bond itself 5 it does appear in the application that the bond sought was to be of a certain character, but the important inquiry is as to what was the bond -which was received and accepted — the bond furnished by the bonding company to Bryant, and by Bryant and his surety furnished to the state. Upon one page of the application we find this question, after some other preliminary ones: “How long to run? ” and the answer is “Indefinitely, one year at a time, renewed.” Possibly this means that it is to run for an indefinite term upon the annual premium which is provided for in another part of the application, and that it is understood in advance that it is to be renewed so long as Bryant’s liability to the state shall continue. The language, however, is altogether vague in this respect. The bond itself fixes the liability of both principal and surety to the state. The bond itself is the best evidence of the duration of the liability of the surety for the principal; and the bond provides that it is to be and remain in force until the property for which Colonel Bryant shall become responsible shall either be returned to the state or turned over to his successor in office, who must be duly qualified by the giving of his own bond:

The applicant promises to pay an “annual premium in advance, of $12,” using the words of the application. Now it is said that Colonel Bryant notified the bonding company before the expiration of the year that he did not wish to renew. Suppose that this bond had been a promissory note upon which he had obtained as surety the signature of the bonding company; surely the principal would not be relieved of liability until the note was discharged in some way, and no notice given by bi-rn prior to the payment of the note or its extinguishment in some way would relieve the surety from liability.

It was said in argument before us that before the expiration of the year the commander in chief, I suppose the adjutant-general of the state, had countermanded the order requiring colonels to furnish bonds; but nothing of this kind appears in the record; on the contrary, as already read from the bill of exceptions, it was agreed that the defendant herein is required by the laws of the state of Ohio to give a bond for the faithful performance.of his duties, and in another part, that he is still colonel of the second regiment and that he has given no bond to the state of Ohio since the giving of the bond' in controversy. But, ■even if it had appeared upon the record that the commander in chief had relieved him of any duty to give bond or had attempted to do it, it would seem to us that the commander in chief had no power to make ' such an order as that, provided the colonel is still custodian of property of the state, because of this statute that requires the bond to be given. It is true that the amount of the bond, the penalty of the bond, is to be fixed in the case of a colonel of a regiment by the commander in chief, the language of Rev. Stat. 3104 (Lan. 4728) being:

“All officers commissioned under this title, in whose hands shall be placed public moneys or other public property, shall give bonds in the sum not to exceed $4,000 for a company commander, and $5,000 for a regimental quartermaster, and all other officers such sums as the commander in chief may direct, conditioned faithfully to account for all public moneys and property which they may receive. The commander in chief may at any time increase the sum so prescribed.” •

There is no provision that he may, or may not, require bonds from regimental colonels or other officers. The statute is mandatory in this requirement that bonds shall be given by all officers in whose hands may be placed public moneys or property.

It is enough, however, so far as this matter is concerned, to base our judgment upon the agreed statement admitting the continued liability of Colonel Bryant to give a bond to the state, and when we consider this admission, it seems to us that the liability to pay the annual premiums is substantially admitted with it, because it is said that he has furnished no other bond and there is nothing in the record to indicate that whatever property was in his hands at the time when the bond was given, has been turned over to the state. Manifestly it has not been turned over to his successor in office, because he has none; he still holds the office which he held when the bond was given. Did he have any property 'in his hands? The bond says so; it recites that he has been entrusted with property of the state of Ohio, including all ordnance stores, clothing, etc., and from a consideration of the whole matter we think that until the bonding company is in some way exonerated from further liability on the bond, the bond is to be treated as a continuing basis for the annual premium. He agreed to pay $12 as an annual premium, -and it was evidently designed that it was to be paid so long as the bond ¡should be continued in force.

We know of no way by which the bonding company could get a •cancellation of the bond and a release of its liability, but it is entirely in the power óf Colonel Bryant to bring about such release, either by furnishing another bond, by returning the property in his hands to the •state, or by turning it over to his successor in office after the latter has been duly qualified.

By any one of these three ways he may get a release from the bond, but until he does that, it is our judgment that his liability for. the annual premium continues, and so holding, we must necessarily reverse the judgment of the justice of the peace finding in favor of the defendant, and also of the common pleas court which affirmed the judgment of the justice, and it is so ordered.

Judgment reversed.

Parker and Haynes, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS — WILL»
    [Hamilton (1st) Circuit Court,
    January 10, 1906.]
    Jelke, Swing and Giffen, JJ.
    William J. Weir et al. v. Eliza Weir, Exrx.
    1. Whether Executor Allowed Expenses for Depending Will Depends upon Particular Circumstances.
    The question as to whether or not an executor may be allowed credit on his account for expenses incurred in the successful defense of a will contest depends upon the circumstances of each particular case.
    5. Executor Allowed Expenses in Defending Will when Done Disinterestedly.
    While an executor is not bound to assume the defense of a contest of a will, he may do so, and where this is done in a disinterested effort to maintain it and preserve the trust therein created and to effectuate the intention of the testator, a court of chancery may allow the executor credit in his account for his expenses incurred in the successful defense of such will.
    45. - Executor not Allowed Expenses in Defending Will, when Large Special Bequest is Made to him.
    The court wifi not allow an executor his expenses incurred in defending a will where it appears that he is a legatee thereunder, and that the special bequest to him is the one inviting the attack.
    tSyllabus approved by the court.]
    Error to Hamilton common pleas court.

      W. A. Hicks, for plaintiff.
    Dempsey, Mallon & Vordenberg, and Prescott Smith, for defendant,
    cited-.

      Bowers, In re, 10 Dee. Re. 39 (18 Bull. 198); Bowers, In re, 17 Bull. 80; McArthur v. Scott, 5 O. F. D. 357 [113 U. S. 340; 5 Sup. Ct. Rep. 652; 28 L. Ed. 1015]; Andrews v. Administrators, 7 Obio St. 143; Rev. Stat. 5859 (Lan. 9396); 11 Am. & Eng. Enc. Law (2 ed.) 910, 1236; Heffner’s Succession, 49 La. Ann. 407 [21 So. Rep. 905]; Lassiter v. Tar vis, 98 Tenn. 330 [39 S. W. Rep. 226].
   JELKE, J.

This cause comes into this court on error to an order of the court of common pleas adjusting the account of Elizabeth Weir, executrix, under the will of her mother, Elizabeth Weir, deceased, and a determination of the propriety of certain charges therein for counsel fees paid in the administration of said estate, particularly as to the item of $1,200 allowed to said executrix as having been paid to her lawyers for the successful defense in an action to contest the will of the testatrix, Elizabeth Weir, deceased.

No question is here made as to the value of counsel’s services or the amount allowed in payment thereof, but it is contended that no allowance can properly be made to the executrix in this case for defending the will. In Andrews v. His Administrators, 7 Ohio St. 143, the syllabus is as follows:

“An executor is not bound to assume the burden of the defense of a contest of the will by the heirs at law, but may properly throw the same upon the legatees or devisees.
“The executor is not entitled, when the will is adjudged invalid, to charge the estate, in his settlement account, with the expense of maintaining such defense.”

This case was cited and approved in the ease of McArthur v. Scott, 5 O. F. D. 357 [113 U. S. 340, 399; 5 Sup. Ct. Rep. 652; 28 L. Ed. 1015].

It is contended that the converse of the above rule must be true, and that when the will is sustained the executrix is entitled in settling her account to charge the estate with the expense of maintaining such defense. This proposition so contended for is not universally true. It may or may not be true, dependent upon the circumstances of each particular ease. While an executor is not bound to assume the defense of a contest of the will, he may do so,-and where done in a disinterested effort to maintain the will and preserve the trust therein created and to effectuate the intention of the testator as declared in what is found truly to be his last will and testament, a court of chancery may allow the executor credit in his account for his expenses incurred in defending such will. This would be particularly true where the legatees or beneficiaries under the will were children, or were so numerous or so distantly removed that they could not well assume the burden of defense individually on their own accounts, but said defense could better be made for all interested and taking under the will by a common representative in the person of the executor.

Does the case at bar present circumstances where the executrix could or should, at the expense of the estate, assume the defense of the will ? It is true that the will was sustained. An examination of the will and the subsequent contest, however, discloses that the special objection to such will and the item which invited attack was a special legacy of $12,000 left to the said Elizabeth Weir, who was also made executrix. Had the executor named in said will been some trust company, or some disinterested stranger, would not such stranger executor have felt that the burden of sustaining this will should fall upon and be borne ihy the legatee especially interested in having said will sustained? On the other hand, it may well be said that the intention of the testatrix, as expressed in said will, having been vindicated, the legatee should receive the legacy therein provided without being mulcted for the expense of defending an attack which proved futile and apparently was not justified. But is this not one of the burdens incident to the acquisition and ownership of any and all property? Would not this objection lie just as well in the mouth of any successful defendant whose property rights had been assailed? The ease at bar has another element; that the executrix is likewise the legatee whose legacy invited the attack. Chancery always insists that where a trustee’s duty or the interest of the trust estate is being balanced against the private individual interests of such trustee, the individual interest is to yield, and all doubts and uncertain charges are to be resolved in favor of the trust estate. If Elizabeth Weir, executrix, had abandoned the will contest, which she had a right to do under the law, would not Elizabeth Weir, legatee, have taken it up and have made in her own interest exactly the same defense and have employed the same counsel and have incurred the same expenses as was done herein ? Is there not an element of inequity in Elizabeth Weir defending her legacy and receiving the same in its entirety with the expense of this defense charged to the heirs at law or the residuary legatees under the will? We have no doubt that counsel fully earned the fee of $1,200 and are glad that its ■payment is not dependent upon a determination of tbis question, and that it is merely a question as to whether it should eome out of the general ■estate or out of Elizabeth Weir’s legacy.

We are of opinion that the equities in this ease required that this fee should be paid by Elizabeth Weir, individually, and out of her special legacy. The court below erred in permitting her to charge the same in her account to the estate, and the judgment is reversed. There • being no dispute as to the facts, and this determination turning purely on a question of law, judgment may be had in this court in conformity with the above conclusion.

Swing and Giffen, JJ., concur.


text:
    TEACHERS’ PENSIONS.
    [Hamilton (1st) Circuit Court,
    January Term, 1906.]
    Jelke, Swing and Giffen, JJ.
    W. H. Venable v. Eugene Schafer et al.
    1. The "Word “Teacher” in Act 94 O. L. 305 is not Restricted to Those who have Spent the Time Required in the Public Schools.
    In construing a statute a word should not be given a limited or specialized meaning unless such meaning is made by legislative enactment; hence, in the act of 1900 (94 O. L. 305) relative to the teacher’s pension fund, the word “teacher,” not being specifically restricted in its meaning, will comprehend within its purview, such instructors as shall have spent a part of the time required in teaching in schools not supported in whole or in part by public taxation.
    2. One whose Name is on Rolls for Twelve Years but who did not Actually Teach eor such Period, not Entitled to Benefits under 94 O. L. 305.
    One whose name was on the teacher’s roll of a city school district for twelve years, but who was not actually engaged in teaching therein during ail of such period, a substitute having taken his place at one time, will not be entitled to a pension under the act of 1900 (94 O. L. 305) providing for a teacher’s pension fund for those who have taught for twenty years, and for twelve years in such district.
    3. Teachers’ Pension Fund Law of 1900 being Unconstitutional, Equity will Endeavor to Put Parties in Statu Quo.
    Equity will endeavor to restore everybody who has acted under favor of the provisions of an unconstitutional act of the legislature to their rights and their former statu quo; hence the Teachers’ Pension Fund Law of 1900, having been declared unconstitutional, one who had paid assessments under its provisions can recover the same with interest, although he has no redress in the way of enforcing the provisions of such act.
    [Syllabus approved by the court.]
    AGREED Case.
    E. G. Kinkead and C. B. Ellis, for plaintiff.
    C» J Hunt, for defendant.
   JELKE, J.

This is what is denominated an “agreed case” under Rev. Stat. 5207 to 5209 (Lan. 8716 to 8718). It is submitted to the court by the parties to determine whether or not W. H. Venable is entitled to receive a pension from the School Teachers’ Pension Fund, as created and provided for by acts of the legislature, 94 O. L. 305 and 95 O. L. 609 (Rev. Stat. 3897a et seq., Lan. 6388 et seq.).

A doubt has been suggested by one member of the court as to whether this controversy in its present form was properly submitted as an agreed case. Although the parties have agreed to submit their ■question to the jurisdiction of this court in this manner, it may be that the court’s conclusion cannot be effective in a proceeding of this kind. i

If Professor Venable is entitled to a pension, we do not think a money judgment could be entered against these trustees, either in their individual or trust capacities. The remedy to be afforded must be in the nature of an order granting a peremptory writ of mandamus, because if these trustees, being officers chosen and empowered according to law, should pay this sum of money, it would be an act which the law specially •enjoins as resulting from an office, trust, or station, and such a writ ■can only issue at the behest of the sovereign or at least in an action to which the sovereign state is a party.

On the other hand, it has been suggested that an action of this kind is not particularly adversary in its character, but one in which the trustees might be looked on as petitioners coming into a court of equity •and asking the chancellor to construe and advise as to the terms of their trust. Be that as it may, the parties have invoked the jurisdiction of this court, and this question not being raised by them, we are willing to waive the same and endeavor to answer the questions properly propounded by the agreed case. As provided in 94 O. L. 305 (Rev. Stat. 3897d; Lan. 6391):

‘ ‘ Said board of education of said city district and said union board or other separate board having the control and management of the high schools of said city district shall each of them have power by a majority vote of all the members composing said board to retire on account of physical or mental disability any male or female teacher under such hoard who shall have taught for a period aggregating twenty (20) years, whether before or after, or partly before or after the passage of Ihis act; provided, however, that three-fifths of said period of service .shall have been rendered by said beneficiary in the public schools or tbe high, schools of said city district, or in the public schools or high schools of the county in which said city district is located.”

The question here arises, whether or not Professor Venable’s long service in the various schools constitutes teaching for a period aggregating twenty years within this provision. It is claimed that as the whole' object of this act is to provide a pension fund for teachers in the public schools, Professor Venable’s service in the schools not supported in whole- or in part by public taxation, cannot be reckoned in computing these-twenty years. The wording of the act does not call for such a construction. Further, Rev. Stat. 3897d (Lan. 6391), provides:

“The term ‘teacher’ under this act, shall include all teachers regularly employed by either of said boards in the day schools, including the superintendent of schools, all superintendents of instruction, principals, and special teachers, and in the estimation of years of service,, only service in public day schools or day high schools * * * shall be considered. ’ ’

It is contended that this sentence inserted in 95 O. L. 609 is interpretative and sheds light upon the meaning of the word in 94 O. L. 305. The contrary conclusion would be required by the usual canons, of statutory construction. It is apparent that when the legislature meant to give a restricted meaning to the word “teacher,” it knew perfectly well how to do so, as it expressly did in the act of a year later. When it did not enact the restricted definition, the word should be given its broader significance. The intention of the legislature in passing 94 O. L. 305 is to be deduced from that which it said. The law does not concern itself with an unexpressed intention or an intention which there has been no effort to express.

Resolving this question in favor of Professor Venable, we then come to the question, whether or not three-fifths of said period of service was rendered by him in the public schools or high schools of the city of Cincinnati. It appears that he was appointed on June 13, 1889, and served continuously until June, 1900; that for the next succeeding year, 1900-1, he was granted a leave of absence on account of ill health, during which year his son substituted for him, receiving a salary as substitute but contributed nothing toward the pension fund. Did Professor Venable, using the words of the act, render services for twelve years? We think not. The law does not provide for a period upon the teacher’s roll of Cincinnati, but for the period of twelve years of actual service. We, therefore, are of opinion that Professor Venable is not within the provisions of 94-0. L. 305.

We are further of the opinion that 94 O. L. 305, was uneonstitu-tional and void, as being in contravention of Sec. 2, Art. 12 of the constitution. State v. Hubbard, 12 Circ. Dec. 87 (22 R. 252):

“Such act in providing that one per cent of the salaries paid to -teachers shall be deducted therefrom and applied to create a school teachers’ pension fund, also violates See. 2, Art. 12 constitution of Ohio, providing for a uniform taxation of property, and also the bill of rights, in the taking of the private property- from one citizen for the , benefit of another without his consent, and against his will.”

It appears that this defect in 94 O. L. 305 was removed by a provision in 95 O. L. 609 (Rev. Stat. 3897c; Lan. 6390), which reads:

“All teachers hereafter appointed in said public schools, or high schools, if any, in said school district, shall be notified within thirty days after their appointment by the clerk of such board of education of the election of said board of trustees of said school teachers’ pension fund, and they shall be required to notify said board of education within six months thereafter whether they consent or decline to accept the provisions of this act.”

It does not appear that Professor Venable ever took any action to avail himself and bring himself within the provisions of the act of 1902. Howevér, under 94 O. L. 305, there was raised a fund, we are informed, aggregating approximately $30,000, which passed and was paid over to the pension trustees chosen under 95 O. L. 609. The mere fact that the law creating this fund was unconstitutional does not deprive Professor Venable of any interest he may have therein, or deprive him of his right to recover whatever contribution he may have made to the creation of said fund, for it is said that Professor Venable’s salary was charged the usual amount and the charge was paid into this fund. •

To the extent that any of Professor Venable’s money was paid into this fund, he had an equitable interest therein, which must be preserved to him.

We do not think that the pension scheme provided for by the unconstitutional law of 1900 can be enforced in detail, and we do not understand that Professor Venable has in any way brought himself within the provisions of the law of 1902, and the trustees in accepting said fund, accept it charged with equitable interests.

We therefore conclude that Professor Venable is entitled to all the money he has paid into the pension fund with interest, but that the trustees of said fund are not required to and may not pay him a regular pension.

Swing and Qiffen, JJ., concur.


author: GIFFEN, J.

text:
    ATTACHMENT AND GARNISHMENT.
    [Hamilton Circuit Court,
    June 10, 1905.]
    Jelke, Swing and Giffen, JJ.
    John Hughes v. Clarkson Shields.
    Revised Statutes 6501 (Lan. 10078) as to Demand in Ten Pee cent Gaenisiiment Suit is Jurisdictional.
    The provision of Rev. Stat. 6501 (Lan. 10078) that one bringing an action on an account for necessaries shall first make a demand in writing for the excess over and above ninety per cent of the personal earnings of the debtor, is jurisdictional, and unless it has been complied with, the attachment should he discharged.
    [Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
    M. W. Conway, for plaintiff.
    McCartin & Shultz, for defendant.
   GIFFEN, J.

This action was submitted in the absence of counsel for plaintiff in error and the judgment affirmed upon the ground that no demand in writing for the excess over and above ninety per centum of the personal earnings of the debtor was made before the action was commenced, but upon his application and for good,cause shown a rehearing of the case was granted. ,

The question now presented is whether under Rev. Stat. 6501 (Lan. 10078), the court is authorized to discharge an attachment when the person bringing an action for necessaries fails to first make a demand in writing for the excess over and above ninety per cent of the personal earnings of the debtor.- Revised Statutes 6489 (Lan. 10066) gives the plaintiff the right of attachment upon a claim for necessaries against ten per cent of the personal earnings of a defendant in any case, but Rev. Stat. 6501 (Lan. 10078), as amended in 94 O. L. 376, provides, in substance, that, the garnishee may pay the money owing him by the defendant to the constable and be discharged from liability for any money so paid and allowed his own costs, provided that he may pay to such debtor ninety per cent of his personal earnings less the sum of four dollars for costs and be released from any liability to such creditor -r provided further, that the person bringing the action for necessaries shall first make a demand in writing for the excess over and above ninety per centum of the personal earnings of the debtor, and no cost or expense shall be chargeable to the defendant debtor if he tender payment in money or duly accepted order for such excess; and provided, that more than one such demand by the same creditor shall not be made at closer periods than thirty days, and the amount demanded may be for the excess over and above ninety per cent of the earnings during the interval of thirty days.

Counsel contend that this provision was intended merely to save-costs to the defendant, and that a failure to give such demand would make the plaintiff liable for the costs. Although the defendant would not, in such case, be liable for the costs, it does not follow that the plaintiff would be chargeable with any costs other than his own, and besides the purpose of the statute is not only to save costs to the defendant, but to spare him the humiliation and annoyance of a law suit and the expense of employing counsel to defend the same.

The provision of the statute is explicit that the person bringing an action for necessaries shall first make the demand in writing, and also that such demand by the same creditor shall not be made at closer periods than thirty days. These provisions have no necessary relation to or connection with the preceding provision concerning the right and duty of a garnishee, and seem to us to have been made for the purpose-of giving the debtor an opportunity to protect himself against the attachment suit; in other words, that the demand in this class of cases is. jurisdictional and, unless complied with, the attachment should be discharged.

Counsel have called our attention to the case of K. B. Company v.. Batie, 25 O. C. C. 482, where a different conclusion is reached.

We have examined the same with some care and were inclined at first to follow it, but upon further consideration of the question we have been unable to concur in the views there expressed.

Judgment of the court of common pleas discharging the attachment, will be affirmed.

Jelke and Swing, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS.
    [Hamilton (1st) Circuit Court,
    December 9, 1905.]
    Jelke, Swing and Giffen, JJ.
    Samuel Meyers v. W. Scott Hopkins.
    Pbobate Court mat Apportion Commissions between Coexecutors when their Accounts not Settled.
    The probate court, not having settled the accounts of the two executors of an estate, has jurisdiction under Rev. Stat. 524 (Lan. 803), to apportion their statutory commissions in accordance with the services performed by each.
    [Syllabus approved by the court.]
    ErroR to Hamilton common pleas court.
    A. E. Moore, for plaintiff.
    Powell & Smiley, for defendant;
   GIFFEN, J.

This case arose in the probate court upon a motion by one executor to require his coexecutor to pay to him one-half of the statutory commissions allowed for performing the services of executor. Upon a hearing of the motion, the commissions apportioned were two-fifths to the applicant and three-fifths to his coexeeutor, and upon appeal a like determination was had in the common pleas court.

It is now claimed that the court had no jurisdiction of the subject-matter, that the applicant was entitled to no part of the commission for the reason that he renounced all claim in favor of his coexeeutor and performed none of the services.

Kevised Statutes 524 (Lan. 803), provides that—

‘(The probate court shall have exclusive jurisdiction * * * to direct and control the conduct and to settle the accounts of executors and administrators, and -to order the distribution of estates. ’ ’

The accounts here referred to are manifestly those existing between the estate on the one hand,, and the executors or administrators on the other, and if the court has once settled such accounts, it would probably have no jurisdiction to entertain a motion to ascertain or determine the proportionate amount of the statutory commissions due to each executor where there aré two or more. This is the extent of the holding of the-court in the case of Wickersham’s Appeal, 64 Pa. St. 67, and the case of Mount v. Slack, 39 N. J. Eq. 230, relied upon by counsel for plaintiff in error. Indeed, the judge delivering the opinion in the former ease says, at page 69:

“I will not say that the Orphans’ Court might not apportion the commissions allowed between eoexeeutors and administrators; but if it be not done, and one receives all, the remedy of the other is in the common law courts on the implied assumpsit raised by the possession of the money.”

Revised Statutes 6188 (Lan. 9730), provides that executors and administrators may be allowed specified commission upon the amount of the personal estate collected and accounted for by them. If one of two executors collected and accounted for none of the personal estate, ■and performed no other services required under the statute as such executor, it certainly will not be claimed that the court could not in such case allow all the commissions to the executor performing the services, and it seems no less reasonable for the court to apportion the commissions in accordance with the services performed by each executor respectively.

We are of opinion, therefore, that the court not having already settled the account of the executors, had jurisdiction to entertain the motion to apportion the statutory commissions in accordance with the service performed by each.

The evidence upon the other question as to whether the executor making the motion renounced all claim to statutory commissions or performed no services, is not such.as to authorize this court to interfere on the ground that the judgment is against the weight of the testimony.

Judgment will be affirmed.

Jelke and Swing, JJ., concur.


author: SWING, J.

text:
    TAXATION — COLLEGES AND UNIVERSITIES.
    [Hamilton (1st) Circuit Court,
    February 10, 1906.]
    Jelke, Swing and G-iffen, JJ.
    Cincinnati (City) v. Frank J. Jones et al.
    Erection of Executive Mansion eoe President oe University, a Proper University Purpose, to which Taxes may be Applied.
    The erection of a dwelling for the president of a municipal university is suitable and necessary to the proper administration of the affairs thereof, and for this purpose funds derived from municipal taxation may properly be expended. •
    [Syllabus approved by the court.]
    Appeal from Hamilton circuit court.
    Jesse Lowman and J. R. Schindel, for plaintiff.
    A. B. Benedict, for- defendants.
   SWING, J.

The question presented here is one which we think is entirely free from doubt. It is in brief, whether the board of trustees of the University of Cincinnati have the power to erect on their grounds, in Bur-net Woods, in the city of Cincinnati, a building for the official residence of the president of said university.’ It is now, and always has been, the policy of the people of this state to encourage education. We now have in Ohio three universities supported by the state. The University of Cincinnati gets its power from the state, and unless prohibited by statute, the board of trustees must have all the powers which are necessary to properly carry on the university; this must include the erection and maintenance of all buildings suitable and necessary to carry on a university. What buildings are suitable and necessary, must be determined by the facts and circumstances that exist at the time. At the present time there can be no question in our judgment but what a house for the residence of the president is a suitable and necessary building. It is usual for universities to have such a building, and it can in no sense be foreign to the purpose for which the university was created and is maintained. Such a building seems necessary to the proper administration of the affairs of the university.

Judgment affirmed.

Jelke and Giffen, JJ., concur.


text:
    ASSESSMENTS.
    [Hamilton (1st) Circuit Court,
    November 14, 1905.]
    Jelke, Swing and Giffen, JJ.
    Frank L. Mechlem et al. v. Cincinnati (City) et al.
    Court will not Examine Question of Benefits as a Matter of Course.
    A court will examine into the question of benefits only where such inequality exists between the benefit conferred and the assessments levied as to invite equitable intervention; and the fact that the court was divided on the question of whether or not certain property was specially benefited in the amount of the assessment leads to the presumption that the assessment as levied was equitable, and should he sustained.
    [Syllabus approved by the court.]
    Appeal from Hamilton circuit court.
    A. W. Bruck, for plaintiff.
    C. J. Hunt, city solicitor, for defendant.
   JELKE, J.

We said in the case of Benham v. Cincinnati, 26 O. C. C. 17:

“Where, however, the assessing board has made a finding of benefits and has made the assessment on that basis, such finding and assessment are prima facie correct,, and should not lightly be disturbed or inquired into in the absence of allegations of some of the grounds usually invoking equitable intervention.”

In the case at bar, this court is somewhat divided on the question as to whether or not the property has been specially benefited in the amount of the assessment. The very fact that the court can divide on this question, leads a majority of us to hold that the assessment as levied by the assessing board should be sustained. This court does not examine into the question of benefits as a matter of course, and does so only in cases where such inequality between benefits conferred and assessments levied invite equitable intervention. This being so, we are of opinion that the assessment in this case should be allowed to stand.

Giffen, J., dissents, for the reason that the evidence shows no go.od ground for repaving the street.

Swing, J., concurs.