author: NIMAN, J.

text:
    BRIBERY — CRIMINAL LAW — JURY.
    [Franklin (2nd) Circuit Court,
    September Term, 1912.]
    Marvin, Winch and Niman, JJ., of the 8th circuit. Bitting by designation.

      L. E. Andrews v. State of Ohio. Isaac E. Huffman v. State of Ohio.
    t. Rearraignment not Prerequisite to Trial In Criminal Prosecution upon Overruling Motion to Quash and Demurrer Filed after Original Plea Withdrawn.
    Proceeding to trial without rearraignment after the withdrawal of a plea of guilty to enable accused to file a motion to quash and demurrer to the indictment, both of which being overruled, is not prejudicial to him, particularly since no objection - is interposed during trial to such procedure; such withdrawal not being absolute merely suspended tbe original effect of the plea, which upon adverse ruling upon the pleadings filed became restored.
    2. Verdict not Impeached as upon Evidence Aliunde by Affidavit' of One Obtaining Information of Misconduct from Juror.
    An affidavit of one obtaining information at second hand concerning misconduct from a juror himself not being evidence aliunde cannot be received to impeach a verdict.
    S. Experimenting with and Talking through Dictograph In Jury’s Possession as Exhibit in Criminal Case not Misconduct of Jurors.
    Experimenting with a dictograph and talking through it while considering a case in.which it is put in possession of the jury is not misconduct by the jury..
    4. Autoptlc Profference of Scientific Principles Involve'd In Dictograph Admissible by Experiments on Different Machine but Similar One In Evidence.
    i Experiments made by the' inventor and maker on a different dictograph and under different circumstances than that used to obtain evidence and to prove the crime complained of, are properly admissible to demonstrate the construction, and make autoptic profference' of the scientific principles involved in the operation thereof.
    5. Right of State to Employ Artifices to Detect and Publish Certain Public Crimes Distinguished.
    Instructions in a prosecution against a state legislator for accepting a bribe, proscribed by Gen. Code 12823, that the right of the state to use measures to ferret out and detect crime is distinguished between those used to “lure and entrap” persons into crime on the part of the state itself and those “necessary for the detection of punishment 'of some corrupt and criminal private purpose,” and artifices used to detect public officials suspected of engaging in the solicitation and acceptance of bribes, and justifying acts of a prosecuting attorney in “rendering assistance in the discovery” thereof, are not erroneous in that they establish different rules for one class of persons or interpose or assume issues not in the case.
    O. Records of Indictmént but not Conviction of Witness not Admissible to Impeach His Character or Credibility.
    The records of criminal cases in other states against several persons indicted in conjunction with a witness in this case, but not being records of conviction of such witness are not admissible to impeach his character or credibility in this case, particularly since on cross-examination he admitted his indictment.
    7. Baseball Record not Evidence to Fix Time.
    A record, kept In a newspaper office of the time and length of a certain ball game played on the day and in the city where accused is charged as a legislator with accepting a bribe, is not admissible to fix the time of a legislative committee meeting on the day in question at which accused asserts his presence to prove his absence at the time and from the place where the bribery was averred committed.

      8. Evidence of Good Character of Accused does not Raise Presumption of Innocence.
    The effect attaching to .evidence of accused’s good character and reputation is for determination by the jury and not the court; hence, an instruction that the reasonable effect of his good character and reputation Is to raise a presumption that he is not guilty of committing the crime charged is properly refused.
    9. Vigorous Language Characterizing Crime not Misconduct of Counsel.
    Vigorous language by a prosecuting attorney in a prosecution for bribery of a legislator, characterizing, the conduct of accused and denouncing the offense with which he was charged, discussing the evidence and drawing Inferences therefrom condemnatory of accused and his acts, is not misconduct of counsel.
    10. Jury Properly Instructed to Make Reasonable Effort to Agree.
    A jury in a criminal trial having the case under consideration for forty hours and probability' of agreement being questioned by a juror, may properly be urged to make all reasonable effort to agree upon a verdict and be ordered to retire for further consideration.
    Error to common pleas court.

      L. B. Andrews, Belcher & Connor, C. J. Mattern, and Cyrus Huling, for plaintiff in error, Andrews:

      Andrews, Harlem & Andrews, for plaintiff in error, Huffman .

      T‘. S. Hogan, Atty. Gen., and E" C. Turner, Pros. Atty., for defendant in error.

       Affirmed, no op., Andrews v. State, 87 O. S. 000; 57 Bull. 520.

   NIMAN, J.

These cases will be considered in their order.

In the first, L. R. Andrews, the plaintiff in error, was convicted in the common pleas court of Franklin county under an indictment charging him with soliciting and accepting from one F. S. Harrison, a bribe of $200 while said L. E. Andrews, was a member of the senate of the State of Ohio, with the intent and purpose that he might be influenced with respect to his official duty concerning a certain bill known as Senate Bill No. 256, pending in said senate. The defendant’s motion for a new trial having been overruled and sentence imposed, he prosecutes this proceeding in error to secure a reversal of the judgment of the court of common pleas.

The first claim of error to which, we direct our attention is the contention of the plaintiff in error that there was an empaneling of the jury in his case and a trial had without an existing plea of not guilty.

The record discloses that on May 5, 1911, the defendant was arraigned and entered a plea of not guilty. The entry of this plea, however, concludes with the following language:

“And leave is granted the defendant to withdraw his plea of not guilty and file pleadings to the indictment.”

On July 9, 1911, the defendant withdrew his plea of not guilty and filed a motion to quash and a demurrer. ' The language of the entry is:

“Now comes the defendant, L. R. Andrews, and by leave of court withdraws his former plea of not guilty heretofore entered herein, and is given leave to file a motion to quash, and demurrer, which are herewith filed. ’ ’

Subsequently, the motion and demurrer having been overruled, the defendant was placed on trial without another arraignment, and without another plea of not guilty being entered. This is said to constitute reversible error.

In our opinion, the case of Gormley v. State, 37 Ohio St. 120, is decisive of the question presented here. The language of the first paragraph of the opinion in that case is as follows:

~ “A plea of not guilty was entered on an indictment, and subsequently leave was granted to withdraw the plea, ‘for no other purpose’ than to enable the defendant to plead a former conviction. No order was made to strike the plea from the indictment, and the plea remained thereon. The plea of former conviction not having been sustained, the defendant was placed on trial without further plea, and convicted. Held, that such withdrawal of the former plea was not absolute, and when the plea of former conviction was disposed of, it was not error to try the ease on such plea of not guilty.”

The plea of not guilty made by the defendant when he was arraigned raised an issue between him and the state of Ohio. The withdrawal of his plea was not absolute, but was for the purpose.of enabling him to file a motion to quash and a demux-rer, which, could not be done as long as the plea stood. Such withdrawal suspended the effect resulting from the plea, but upon the overruling of the motion and demurrer, the effect attaching to the original plea of not guilty was restored. The issue then stood between the defendant and the state of Ohio as before the withdrawal of the plea for the purpose indicated.

This «conclusion does no injustice to the defendant, who proceeded throughout the trial without interposing any objection to being tried without another plea being entered. To hold otherwise would permit a defendant to appeal to the indulgence of the court in- obtaining leave to withdraw a plea of not guilty, to enable him to attack the indictment, and failing in his attack, to proceed to trial without objection and speculate on his chances of conviction or acquittal. "Whatever may be the rule in other states, we think the case of Gormley v. State, supra, states a just rule, and that the facts there were in effect no different in this case.

The plaintiff in error also relies for a reversal-on the claim that there was misconduct on the part of the jurors in their deliberations in conducting an experiment with the dictograph, which was in evidence. The proof offered of the alleged misconduct is not of such character that it could be considered by the trial court in passing on the motion as any proposition of law. can be, that unless there is evidence aliunde, affidavits of juror? are not admissible to impeach their verdict. Hulet v. Barnett, 10 Ohio 459; Barrer v. State, 2 Ohio St. 54; Kent v. State, 42 Ohio St. 426.

The law in this state on this subject being as indicated, it. is clear that the affidavit of one who obtains his information at second hand concerning the jury’s misconduct from a juror himself cannot be received to impeach the verdict. If this could bo done, the rule itself, which is founded on considerations of pub. lie policy, would be of no avail to prevent the abuses it was in. tended to avoid. Such was the holding in Parker v. Blackwelder, 3 Circ. Dec. 700 (7 R. 140), where,.in the opinion of the court, it is said:

“Affidavits of jurors cannot be received after verdict to impeach the same unless evidence aliunde is offered; and the affidavit of the attorney did not constitute such, a showing aliunde, because it simply contained a statement at second hand of what the juror himself testified to in his own affidavit, and the juror’s affidavit itself being incompetent, secondary proof of its statements would be likewise incompetent.”

In our opinion, when if there was competent evidence that the jury did experiment with the dictograph while considering the case, no misconduct could be charged to them on account thereof. There would certainly be no impropriety in the jury examining the instrument and talking through it, since it was an exhibit in the case and properly in their possession.

Another ground of error relied upon by the plaintiff in error is that his conviction cannot be sustained because, as he contends, the evidence shows a ease of entrapment to which the state was a party, and that the crime of which he was convicted was originated by detectives acting in conjunction with the legal representatives of the state.

Inasmuch as this question was before this circuit court and the Supreme Court in the ease of Rodney J. Diegle against the State of Ohio, and was there decided adversely to the contention, of the plaintiff in error here, we deem it unnecessary to consider the numerous authorities bearing on this subject in other jurisdictions. The unreported case of Fox v. State, to which our attention has also been called in the brief filed by the state in, the Supreme Court is the Diegle case, shows that the Supreme Court, in a case that arose long prior to this one, refused to interfere with the conviction of one who had much stronger ground to complain of entrapment than has the plaintiff in error.

It is contended on behalf of the plaintiff in error that the court erred in the admission of testimony, and our attention is specifically directed to that part of the testimony of the witness N. M. Turner, during which he was permitted to make experiments before the jury with a dictograph different from the one used in the Chittenden Hotel when the evidence of the alleged bribing of the plaintiff in error was secured and under different circumstances.

This witness testified that he was the inventor of the dictograph. He described it as an instrument that is supersensitive as to sound; that it would take up a minute sound, magnify it and make what would otherwise be an inaudible sound, audible. He testified at considerable length as to the construction of the dictograph and the scientific principle involved in its operation, and on request of the prosecuting attorney that permission be given to make an autoptie profference of the scientific principle involved in the dictograph before the jury, the witness was permitted to make the experiment or demonstration complained of.

Since the dictograph is an instrument of recent invention, and the scientific principle on which it operates but little understood, it was proper for the state to have the instrument explained and the principle on which it operates demonstrated. This could be done with an instrument different than the one used in the alleged detection of the plaintiff in error as well as with that one, and we are of opinion that the court committed no error in permitting the witness to explain, by actual demonstration, the scientific principle on which the instrument operates.

It is further contended by the plaintiff in error that the court erred in charging the jury.

In one part of the charge the court said:

“A prosecuting attorney whose attention has been called to any alleged criminal practice, is not acting without the pale of the law or his duty in rendering assistance in the discovery of such alleged criminal practice.”

It is urged that this portion of the charge introduces into the case an issue that did not exist; that it was nowhere shown that the plaintiff in error -was suspected by the prosecuting attorney or any one else of any criminal practice.

We think, however, that this correctly states the law, and there was sufficient evidence before the jury to make it a proper proposition to include in the charge.

In another portion of the charge, the court said:

‘ ‘ In considering the law with reference to the rights of the state to ferret out and detect crime, the law makes a distinction, as a matter of public policy, between measures used purely to lure and entrap a person into crime on the part of the state, itself, from those necessary for the detection and punishment of some corrupt and criminal private purpose on the one hand, and an artifice used to detect public officials suspected of being engaged in the solicitation and acceptance of bribes which vitally ■affect the public welfare.”

Complaint is made.of this that it not only is open to the objection urged against the language used in that part of the charge already considered, but also that it establishes a rule of law to govern one class of individuals different from that in which it is generally applied to all other classes of individuals.

We do not consider the objection well taken. This part of the charge, as well as the other part considered, is closely connected with question of entrapment, and when the Supreme Court passed upon the question of entrapment, it must necessarily have sanctioned the principle of law embodied in this language of the charge.

It is strongly urged by the plaintiff in error, as a ground for reversal of the judgment of the court below, that the verdict is not sustained by sufficient evidence and is against the manifest weight of the evidence.

It would be profitless for us to review in detail the evidence •resulting in the conviction of the plaintiff in error. It is sufficient to say that a consideration of the evidence convinces us that we would not be justified in interfering with the verdict and judgment on this ground.

We. have carefully considered all the errors assigned in this proceeding, and find no error prejudicial to the plaintiff in error.

In the second of these eases, Isaalc E. Huffman, the plaintiff in error, was also convicted in the court of common pleas of Franklin county, of accepting a bribe while a member of the Ohio State Senate. He was sentenced to three years’ imprisonment in the penitentiary, and by this proceeding in error seeks a reversal of the judgment against him.

It is contended on his behalf that the court made many erroneous rulings on questions of evidence prejudicial to his during the course of the trial.

Our attention is specifically directed to the refusal of the trial court to permit the defense to read in evidence certain portions of the record of the case of The People of the State of Illinois v. August M. Unger. Francis Wayland Brown and Frank H. Smiley, a criminal case in which the Frank TI. Smiley mentioned was the detective who testified on behalf of the state in the case before us.

It appears, however, that the portion of the record of that ease ruled out by the court pertained not to Smiley, but to the other defendants therein, who were in no way connected with this case. It was ruled out by the trial court on the ground that it was no part of the record of the Smiley case, and in our opinion the ruling was correct.

Another ruling complained of is the refusal of the court to allow the defendant to introduce in evidence the record of the case of the State of Illinois v. Bernstein, et al., in which the said Frank H. Smiley, referred to as a defendant in the other criminal case in Illinois, was indicted in conjunction with others. This record sought to be offered in evidence, however, did not purport to be a record of a conviction, and was, in fact, nothing more than a record of an indictment.

We think that the court committed no error in excluding this record. The witness Smiley, or Harrison, as he was otherwise known, admitted on cross-examination the fact of his indictment, and the defendant, therefore, obtained the benefit of whatever was damaging to the credibility of this witness, without reference to the indictment itself. The indictment created no presumption of guilt on his part, and the record thereof was not competent evidence to impeach his character and credibility.

The plaintiff in error complained also that the court refused to receive in evidence a record kept in the office of a newspaper of Columbus, of the time and length of a baseball game played in Columbus between the Columbus and Milwaukee b'aseball teams on April 27, 1911.

One of the questions in issue between the state and the defendant was as to the time when the defendant was in the senate smoking room. The defendant’s witnesses claimed it was from 5 to 6 o’clock P. M. and that the committee with which the defendant' met did not convene until abuot the conclusion of the baseball game. The record of the time and length of the ball game, which was offered and ruled out, was offered for the purpose of fixing the time of the meeting of this committee.

We are unable to discover any principle on which such record would be competent. As pointed out by the trial court in his ruling, there is a rule of the law of evidence which permits certain classes of records that bear a certain authenticity, such as market reports, weather reports, and those that are prepared by the class of persons skilled or -acquainted with the subject, to be received in evidence. The report or record under consideration clearly does not belong to this class.

Complaint is also made by the plaintiff in error that Senator Reynolds, a witness for the state, was asked On redirect examination by the prosecuting attorney, whether or not he had ever heard the claim, prior to the first Huffman trial, that Huffman was in the senate chamber until 6 o’clock or after on April 27, 1911, and that over the objection of the defendant he was permitted to answer.

Reference to the cross-examination of Senator Reynolds shows that he was asked numerous questions by counsel for the defendant on the subject of when he first told the facts to which he' had testified on direct examination to any one. The question to which objection was made wias apparently asked by the state for the purpose of giving an opportunity to the witness to explain why he had not made known his story at some earlier time. If any inference was to be drawn unfavorable to the witness, and favorable to the defense, by reason of the fact that he had not told his story, which bore upon the alibi of the defendant, it seems, clear to us that the state had the right to show by the answer to this question, which was answered in the negative, that the witness had never heard of the claim asserted by the defendant prior to this first trial, and the court committed no error in his ruling on this question.

We have carefully examined the numerous other errors complained of in the admission and rejection of evidence, and our conclusion with respect to these rulings is that the court committed no error prejudicial to the defendant in his ruling.

Another ground of errqr insisted on by counsel for the plaintiff in error is based upon the alleged misconduct of the prosecuting attorney. One act of misconduct charged against him was the asking of Senator Dore, a witness for the defense, on cross-examination, the following questions: '

“Senator, you have just been re-examined on your calling of Senator Huffman before that investigating committee, and what you were investigating, and I will ask you if you brought in witnesses before that committee to prove particular charges against Senator Huffman as to having accepted $250 from Charles Salen to vote on section 15 of the Central Board bill. ’ ’

The witness answered that he did not.

Counsel for the defendant interposed a protest against the conduct of the prosecuting attorney in asking this question, insisting that he was embodying in his question an insinuation prejudicial to the defendant which had no basis in fact. The court vpry promptly instructed' the jury in clear terms not to consider assumptions and arguments of counsel in the progress of the trial.

The question was not a proper one to ask, but in practically every trial counsel ask questions which call for incompetent testimony. It is not necessarily misconduct to do so. Counsel may be honestly mistaken in asking a question calling for incompetent testimony.

In view of the nature of the examination of Senator Dore by counsel for the defendant, which seems to have suggested the question complained of to the prosecuting attorney, it is likely that the question was put in the honest belief that the answer sought was competent. In any view of the matter,' the instruction of the court must have removed any chance of prejudice resulting to the defendant by reason of the question having been asked.

It is claimed also that the prosecuting attorney was guilty of misconduct in the cross-examination of Senator McGuire, a witness for the defendant.

The prosecutor started to ask the question whether or not the witness, after his testimony in a prior trial of this ease, had been branded by the papers all over the state in a certain way which the question does not disclose, because.it was not finished. An objection having been interposed on behalf of the defendant, the court admonished the prosecuting attorney that the question was not proper.

And at another stage of the cross-examination, the prosecuting attorney asked the witness this question: “Now any other part of this alibi that you know that you have not testified to yet?” Objection was made to this form of question, and the court again ruled that it was not a proper form of question. "We think 4the rights of the defendant were protected by the ruling of the court on these objectionable questions, and that no prejudice resulted to the defendant therefrom.

The prosecuting attorney is also charged with misconduct in his closing argument in the use of the following language: “Pretty soon if they keep on — if these crooks that employ lots of lawyers — the prosecuting attorney will have to sit back and wear kid gloves and play ping while they play rings around the state. This is the very thing that is running through this country now. Such damnable tactics have been played upon the courts and juries that the people are getting tired of it.”

And again:

“We talk about special interests — -this country is now aroused as no country on God’s green earth was ever aroused before, about special privilege, that has gained its way in the halls of the legislature. Now has it done it? By bribery.”

While the language used by the prosecuting attorney in his argument was vigorous, we are not convinced that it exceeded the legitimate bounds of argument. He had the right to discuss the evidence and draw all reasonable inferences therefrom favorable to bis side of tbe case. He had the right to characterize, by proper language, the conduct of the defendant as disclosed by the evidence, and to denounce the offense with which he was charged. As long as the prosecutor did not go outside of the evidence and make a plea to the passions and prejudices of the jury, he was not guilty of misconduct even though his language was extremely vigorous.

We find no error prejudicial to the plaintiff in error in any of the conduct of the prosecuting attorney.

Complaint is made also by the plaintiff in error of certain portions of the charge to the jury. A part of the language objected to is substantially the same as that considered in this opinion in dealing with the Andrews’ case, and it is unnecessary for us to repeat our views on such portion of the charge.

Our attention is directed to the instructions given to the jury urging them to agree upon a verdict, if possible, and it is claimed that the court erred in these instructions.

After the jury had had the case under consideration for about forty hours, they were brought before the court and inquiry was made by the court if there was any probability of the jury being able to agree upon a verdict. One of the jurors responded that he did not believe there was any probability of agreeing on a verdict; that they had tried in every way, shape and form. The court thereupon said:

“It is customary for courts to inquire within a reasonable time if there is any probability of the jury agreeing. There seems to be some difficulty for you to agree in this case. The court urges upon the jury that since the trial of this case means a great deal to the state and the defendant, and the trial has been at a considerable cost to the county ánd to the defendant, the court urges you to make all reasonable effort to agree upon a verdict.
“You should consider that the case must at some time be decided; that you were selected in the same manner and from the same source from which any future jury must be, and tttere is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impartial and more competent to decide it, or that some clearer evidence will be produced on one side or the other, and with this view it is your duty to decide the ease, if you can conscientiously do so. You will again retire, gentlemen, and make a reasonable effort to agree upon a verdict.”

The length of time during which a jury can be held together for the consideration of a case before them, rests within the discretion of the trial court, and in the absence of an abuse o£ that discretion, no legitimate complaint can be based- on the action of the court in keeping the jury together. Mitchell v. State, 42 Ohio St. 383; State v. McMillen, 69 Ohio St. 247 [69 N. E. Rep. 433].

' Instructions similar to those given by the trial court in this case have been approved in numerous decisions in other states: Pierce v. Rehfuss, 35 Mich. 53; State v. Gorham, 67 Vt. 365 [31 Atl. Rep. 845]; Clinton v. Howard, 42 Conn. 294; Hannon v. State, 70 Wis. 448 [36 N. W. Rep. 1].

Reference to the opinion of this circuit court in the Diegle ease shows that practically the same language was employed by the trial court in that case as was used by the court in this case, and the propriety and soundness of such instructions must be deemed to have been approved both by this court and the Supreme Court.

One of the requests of the defendant to charge was:

“That the reasonable effect of his good character and reputation is to raise a presumption that the defendant was not guilty of committing the crime with which he is charged. ’ ’

The court did not give this request in the language in which it is framed, but did charge the jury as follows:

‘ ‘ Testimony has been brought before you to show what the -reputation and character of the defendant is for honesty and integrity. This evidence reflects, among other things, upon the probability of the defendant committing any such offense as he is charged with here. In determining the guilt or innocence .of the defendant, this testimony is to be considered by you with all the other evidence, and the. weight to be attached to the fact of 'good behavior and reputation, like that to be attached to every other fact of the case, is for the jury alone to determine.”

It is contended that the court erred in not giving the request on this subject in the language submitted.

We are of opinion that the effect attaching to the evidence of the defendant’s good character and reputation was for the jury, and not for the court, and that the language of the request assumed, as a matter of fact, that the defendant’s good character and reputation had been established. We think the ■trial court properly charged the jury on this subject, and that the defendant was not entitled to have the charge given in the exact language in which the request was framed.

The strongest contention made in this case on behalf of the plaintiff in error is that the evidence established from him a complete alibi, and that the verdict of guilty is therefore not sustained by sufficient evidence, and is against the manifest weight of the evidence.

The crime of which the defendant was convicted was claimed by the witnesses for the state to have occurred in room 317 of the Chittenden Hotel, in the city of Columbus, on April 27, 1911, sometime between 5:45 o ’clock and 6:30 o ’clock on the afternoon of that day. The defendant produced the testimony of a number of witnesses tending to prove that during the entire period fixed by the state as the time of the defendant’s call at the Chittenden Hotel and the acceptance of the bribe by him, he was occupied elsewhere. The evidence produced by the defendant tended to establish the fact that he was in a committee room at the State House until about 6 o’clock, and that from there he went to a restaurant, which he did not leave until about 6:45, and that after leaving the restaurant he went with his wife to his apartments in the Virginia Hotel.

We have examined all the evidence bearing on this defense with great care, realizing fully the importance of the correct determination of the question involved, both to the state of Ohio and to the defendant. The alibi was assailed by the state, and We are impelled to the conclusion that it was not without flaws. The question was properly submitted to the jury, who had the opportunity of observing all of the witnesses who' testified, and attach such weight to their testimony as they believe proper.

We think the evidence on the subject of the alibi, as well as on the other issues involved, was such that the jury were justified in returning a verdict of guilty, and we must decline, therefore, to interfere with that verdict on the ground that it is not sustained by sufficient evidence.

We' have examined all of the errors assigned in this casey, and find nothing prejudicial to the rights of the plaintiff in error. It follows from the conclusions reached in these eases that the judgment in each case must be affirmed.

. Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: SHIELDS, J.

license: Public Domain

text:
    DEEDS — ESCROW.
    [Tuscarawas (5th) Circuit Court,
    June 21, 1912.]
    Powell, Voorhees and Shields, JJ.
    Frank Gross v. Annie List et al.
    Delivery to Grantor’s Wife of Deeds, Conveying Subject to Life Lease, in Wife, Land to Grantor's Children not Escrow.
    Delivery by grantor to his wife, to be by her, .at his death, delivered to certain of his children, of deeds executed by him conveying his land to such children subject to a life lease in his wife, does not constitute a delivery in escrow, because the interest of the wife in the property and her connection with the heirs render her incapable of acting as escrow, and especially ' since the wife placed the deeds, without separation from other papers, in a box to which the husband had access and which he frequently used; hence, no unreserved, irrevocable, and absolute title is conveyed to such children by such attempted delivery.
    [Syllabus approved by the court.]
    Appeal from common pleas.
    P. S. Olmstead, J. F. Stephenson and Henry Bowers, for plaintiff and defendants Anne List and Fannie Y. Gross:
    As to the declarations, acts, and admissions of the grantor after the execution of the deeds, Williams v. Hears, 13 Dec. Re. 869 (2 Dis. 604); Hills v. Ludwig, 46 Ohio St. 373 [24 N. E. Rep. 596] ; Ohio. Coal Co. v. Davenport, 37 Ohio St. 194; Harvey v. Gardner, 41 Ohio St. 642; Hubbell v. Hubbell, 22 Ohio St. 208; Gates v. Storage Co. 11 Giro. Dee. 721 (22 R. 724); Hall v. Geyer, 7 Circ. Dee. 436 (14 R. 229); Thompsons, Ohio Ev. See. 313; Bury v. Young, 98 Cal. 446 [33 Pac. Rep. 338; 35 Am. St. Kep. 186] ; 4 Enc. Ev. 169, 170; 5 Ene. Ev. 409; 12 Enc. Ev. 567. . ' '
    The delivery of the deeds in escrow to- a third person to be -delivered to the grantees on the death, of grantors, Ball v. Foreman, 37 Ohio St. 132; Crooks v. Crooks, 34 Ohio St. 610; Black v. Hoyt, 33 Ohio St. 203; Shirley v. Ayres, 14 Ohio 307; Munro y. Bowles, 187 111. 346 [58 N. E. Rep. 331; 54 L. R. A. 865] ; ,.Sneathen v. Sneathen, 104 Mo. 201 [16 S. W. Rep. 497; 24 Am. ;St. Rep. 326] ; 16 Cyc. 571.
    "Where the conveyance is a gift or in the nature of a testamentary disposition, the grantor may revoke the conveyance before final delivery, Meeks v. Stillwell, 54 Ohio St. 541 [44 N. E. Rep'. 267] ; Hale v. Joslin, 134 Mass. 310; Dunn v. Morgenthau, 175 N. Y: 518 [67 N. E.'Rep. 1081] ; Mechanics’ Nat Bank v. RoUghead, 76 App. Div. 534 [78 N. Y. Supp. 800] ; Hoig v. College, 83 111. 267; 11 Am. & Eng. Enc. Law (2 ed.) 336; Rathmel v. Shirley, 60 Ohio St. 187 [53 N. E. 1098] ; Meeks v. ■ Stillwell, 54 Ohio St. 541 [44 N. E. Rep. 267].
    On the death of the tenant entail without issue, the land rreverts to-the grantor, Pollock v. Speidel, 17 Ohio St. 439; 6 Am. & Eng. Enc. Law 879.

      W. B. Stevens and W. I: Kinsey, for defendants Mary Stevens, Anne Slade, Fannie Sperling and John II. Gross.
   SHIELDS, J.

This action is before this court on appeal from the judgment of the court óf common pleas of this county, and in a petition filed in the ordinary form the plaintiff alleges therein that he is the owner in fee of the undivided one-fifth part of certain real estate described therein, in said county, containing 120 acres. That said real estate descended from his father, Benedict Gross, now deceased; that the defendants Annie List, Fannie Y. Gross and John H. Gross, children and heirs at law of the said Benedict Gross, deceased, are also seized of 'the undivided one-fifth part of said premises, and that the defendants Mary Stevens, Anne Slade and Fannie Sperling, grandchil- • dren of the said Benedict Gross, deceased, are each seized» of the undivided one-fifteenth part of said real estate, and partition of said real estate is prayed for.

To this petition various pleadings are filed by the defendants, among which is a separate answer and cross petition of Mary Stevens, in which she alleges, for answer, that as alleged in said petition, she is the owner in fee simple of the undivided one-fifteenth part of the real estate described therein, and asks that partition of said land may be had and that her interest therein be set off in severalty.

For cross petition she says that she has a legal estate in fee simple in and is entitled to the immediate possession of the undivided one-fifteenth part of certain other' lands and tenements therein described in addition to those described in said petition,, which also came to her by descent from the said Benedict Gross, deceased, aggregating about 550 acres of land, situated in the county of Tuscarawas and state of Ohio.

She further says that the defendants Annie List, John H. Gross and Fannie V. Gross, and the plaintiff, Frank Gross, unlawfully keep her out of possession thereof, and have so done since February 4,1909, the date of the death of the said Benedict Gross.

She further says that the said defendants Annie List, John H. Gross and Fannie Y. Gross,, and the plaintiff, Frank Gross, are each the legal owners of and are entitled to the possession of the undivided one-fifth part of said premises as tenants in common with her; that the defendants Fannie Sperling and Anne Slade are each the legal owners of and are entitled to the possession of the undivided one-fifteenth part of said premises as tenants in common with her; that on the last named date the defendants Annie List, John H. Gross and Fannie Y. Gross, and the plaintiff, Frank Gross, fraudulently obtained certain pretended deeds from the said Benedict Gross to themselves for separate portions of said premises, aggregating the whole thereof, and unlawfully took, and have ever since unlawfully held, kept possession of and claimed to own all of said premises, adversely to her, whose title and right therein they have denied and still deny; that since the above mentioned date the defendants Annie List, John H. Gross and Fannie Y. Gross, and the plaintiff, Frank Gross, have had the sole use and occupation of all of the above described real estate, and have taken and received the rents," issues and profits thereof, which were and are of great value, to wit, the sum of $2,000 per annum; that she desires to hold her said interests therein in severalty, and to recover from the defendants Annie List, John H. Gross and Fannie Y. Gross, and the plaintiff, Frank Gross, her proportion of the value of said rents, issues and profits thereof.

She therefore asks that said pretended deeds be set aside and held for naught, and that she may recover possession of the undivided one-fifteenth part of said premises so held by said named parties and her proportion of the value of said rents, issues and profits, and to ascertain which she prays for an accounting thereof against them for the amount that may be due to her, that partition may be made of said premises, and for such other relief in equity as she may be entitled to.

Like separate answers and cross petitions are also filed by the defendants Anne Slade and Fannie Sperling, setting up the same facts therein and praying for the same relief as prayed for in the cross petition of the defendant Mary Stevens.

. To the .separate answers and cross petitions of the defendants Mary Stevens, Anne Slade and Fannie Sperling, what is denominated a reply is filed by the plaintiff, Frank Gross, and Fannie Y. Gross and Annie List, jointly, in which they deny each and every allegation in> the said several answers and cross petitions contained except such as are mere repetitions of allegations of the said petition.

And further replying they say that on or about February 19, 1897, the said Benedict Gross by his deed of conveyance of that date, for a good and valuable consideration, conveyed a tract of land containing 218.5 acres mentioned in said cross petitions, to the said Fannie Y. Gross and to the heirs of her body, subject to a life estate therein in Malinda Gross, the wife of -said Benedict Gross.

That on April 22, 1905, the said Benedict Gross by his deed . of that date, for a good and valuable consideration, conveyed to the said Annie List and the heirs of her body 64.27 acres in lot thirty, 27 acres in lot twenty-nine, and 47 acres in lot twelve, mentioned in said, cross petitions, subject to the life estate of the said Malinda Gross therein.

That on the same date the said Benedict Gross, by his deed of that date, for a good and valuable consideration, conveyed.’ the one hundred acre tract and the thirty-five acre tract mentioned in said cross petitions to the said Frank Gross and to the heirs of his body, subject to the life estate of the said Malinda Gross therein.

That on the day of the execution of the said several deeds as aforesaid the said Benedict Gross delivered the same in escrow to the said Malinda Gross, with directions and instructions to take, hold and keep the same, until the death of the said Benedict Gross, and at his death to deliver said deeds to the several grantees named therein.

That said Malinda Gross did so hold and keep the same, and at the death of the said Benedict,Gross, the said Malinda Gross did deliver the same to the plaintiff, and to the said Annie List and Fannie Y. Gross, as directed, and the same were thereafter duly left for record with the recorder of said county and recorded in the record of deeds of said county. That Benedict Gross did not die seized of any of the real estate in said several deeds described, and further, that plaintiff and said defendants make a part of said reply all the denials contained in said first reply herein.

A cross petition- is also filed by the defendant Fannie V. Gross setting up certain advancements to certain children of the said Benedict Gross, deceased, and answers are also filed thereto and to the cross petition, termed a reply of the defendants Fannie Gross and Annie List, and the plaintiff, by the defendants John H. Gross, Mary Stevens, Anne Slade and Fannie Sperling.

It thus appears that while the plaintiff and defendants together own and ask that partition be had of the land described in the plaintiff’s petition, an issue is raised as to the title to the other lands and tenements described in the cross petitions of the defendants, Mary Stevens, Anne Slade, and Fannie Sperling.

Without going into the details of the evidence offered upon the trial, the deeds made in 1905 will be treated the same as those made in 1897, by which Benedict Gross is alleged to have conveyed title to the several grantees therein- named of the lands therein described, subject to the reservation of a life estate therein in favor of Malinda Gross, wife of the said Benedict Gross, including a separate deed to the said Malinda Gross of a life estate in all of said lands, for if title was conveyed thereto under said deeds to the said grantees therein named by the said Benedict Gross in 1897, the same is equally true of the deeds made by him in 1905.

The cross petitioners set up that since February, 1909, the parties named fraudulently obtained deeds from Benedict Gross for the separately described parcels of land and have ever since said time unlawfully kept them out of the possession of the game. The defendants deny this, and say that they are the owners, respectively, of said lands, and that they acquired title thereto under conveyances executed therefor by the said Benedict Gross, during his lifetime, who delivered them to Malinda Gross, his wife, with instructions to-keep the same until his death, and then to deliver them to the grantees therein named,which said instructions it is claimed were carried out.

It appears that Benedict Gross on February 19, 1897, did execute the deeds in question and deliver them to the said Malinda Gross with the instructions mentioned. That said deeds upon the death of Benedict Gross, were delivered by the said Malinda Gross to the persons named therein as grantees, containing the changes made therein occasioned by the intervening death of the daughter Kit, and that said grantees thereupon took possession of said lands, respectively.

No objection is made to the form of the deeds, but it is urged that there was no valid delivery of them in law, and that therefore no valid title to the lands described therein passed to the grantees therein named.

Closely related to the delivery of these deeds is the primary question, whether their delivery to Malinda Gross, wife of Benedict Gross, as a depositary was a delivery in escrow, in view of the interest she had in said deeds, which was a life estate in each and all of the lands therein described. At the time of said delivery she and her husband were living together as such, and she was interested in the subject matter of said deeds as stated. Being thus interested, the question arises as to whether or not delivery to her was a valid delivery in escrow. Chancellor Kent defines an escrow as follows: “A deed may be delivered to a stranger as an escrow, which means a conditional delivery to the stranger to be kept by him until certain conditions be performed, and then to be delivered over to the grantee.” And in Cincinnati, W. & Z. Ry. v. Iliff, 13 Ohio St. 235, the judge announcing the opinion in that case at page 254, in discussing the requisites of an escrow, says:

“The phrase ‘a stranger,’ used in this definition, or the phrase ‘a third person,’ which, in many of the books, is used interchangeably with it, it seems to me, can mean no more than this — a stranger to the deed, as not being a party to it; or at most, this — a person so free from any personal or legal identity with the parties to the instrument, as to leave him free to discharge his duty, as a depositary, to both parties, without involving a breach of duty to either.”

See also Braman v. Bingham, 26 N. Y. 483; Fairbank v. Metcalfe, 8 Mass. (7 Tyng.) 230, 237; Carter v. Moulton, 51 Kan. 9 [32 Pac. Rep. 633; 20 L. R. A. 309; 37 Am. St. Rep. 259]; Weir v. Batdorf, 24 Neb. 83 [38 N. W. Rep. 22].

How was it here? Was Malinda Gross a stranger to the deeds in the sense of not being a party to them? Was she so disconnected with the parties named in the deeds as that she might not have felt called upon to carry out her husband’s instructions? To us these questions must be answered in the negative, and we therefore hold that the delivery made to Malinda Gross was not a valid delivery of these deeds as an escrow.

But whether or not our conclusion is correct as to Malinda Gross being incapacitated from becoming the depositary of these deeds in escrow, under the circumstances shown by the evidence in this case, we are < met by the further inquiry, irrespective of her relation as such depositary, was the delivery of these deeds as an escrow such a delivery as the law contemplates ? It appears that after the execution of said deeds, Benedict Gross, the grantor, handed said deeds to Malinda Gross, his wife, with instructions to her “to put them away for safe beeping until after he was dead and then deliver them to the persons named above,” and she testifies in her deposition, “I put them away, locked them up and kept them until his death”; and she further testifies in her deposition, “I delivered them to Frank Gross, Annie M. List and John H. Gross.” She also testifies that she delivered a deed to Fannie V. Gross, under like instructions from Benedict Gross. Assuming that Malinda Gross was not incapacitated from becoming the depositary of these deeds in escrow, and that they were really so deposited in escrow, and were so intended by Benedict Gross, and were so treated by hinsr during his lifetime, without reserving to himself any control over them, and upon his death were delivered to the grantees named in said deeds, such delivery would pass title to the lands so conveyed. Crooks v. Crooks, 34 Ohio St. 610.

That the deeds were executed and their delivery to Malinda Gross accompanied by the instructions to her as mentioned, is not open to question, as shown by the evidence, But it is contended by said cross petitioners that such delivery was not such as to become operative as a conveyance o.f the title, that it was not unreserved, irrevocable or absolute, as shown by the alleged subsequent conduct and acts of the said Benedict Gross, the .grantor, in retaining the custody and control and power of disposition over said lands, and such conduct and acts are competent, in our judgment, as bearing upon the intention of such grantor in executing said deeds. Dukes v. Spangler, 35 Ohio St. 119.

The conditions upon which a deed is placed in escrow maybe expressed in writing, or rest in parol, or be partly in each. Here it appears that the directions given were in parol. No particular form or ceremony is essential to constitute delivery, but such delivery must be absolute.

In the ease of Ball v. Foreman, 37 Ohio St. 139, the judge announcing the opinion in said case lays down the following proposition in relation to the delivery of deeds:

“Where, the grantor places in the hands of a depositary, a deed to be delivered to the grantee upon the death of the grantor, reserving the right of power to recall the deed at any time before his death, there is no delivery, and the deed passes no title to the premises therein described. In such ease the depositary is the agent of the grantor, and holds the deed subject, to his direction and control.” Citing: Shirley v. Ayers, 14 Ohio 307; Cook v. Brown, 34 N. H. 460; Prutsman v. Baker, 30, Wis. 644.

In the case of Rathmell v. Shirey, 60 Ohio St. 187 [53 N. E. Rep. 1098], it is said that delivery being essential to the efficacy of a deed, it is obvious that the title does not actually pass until that which was an escrow becomes a deed by virtue of its delivery as such, or at least, until the satisfaction of the conditions prescribed for its final delivery.

In Stinson v. Anderson, 96 Ill. 370, it is held that where delivery of a deed, though to a stranger, is absolute, it is good, but if the future control is reserved by the grantor no estate passes.

In Elmore v. Marks, 39 Vt. 537, it is held that a deed does not take effect until delivery. To constitute a delivery the grantor must part with the custody and control of the instrument, permanently, with the intention of having it take effect as a transfer of the title, and must part with his right to the instrument as well as the possession.

In Cook v. Brown, 34 N. H. 460, it is held that there must be a time when the grantor parts with his dominion over the deed, else it can never have been delivered. So long as it is in the hands of a depositary, subject to be recalled by the grantor at any time, the grantee has no right to it, and can acquire none; and if the grantor dies without parting with his control over the deed, or it has not been delivered during his life, and after his decease, no one can have the power to deliver it. The depositary must have such dominion over the deed during the lifetime of the grantor as the latter could not interfere with, in order to have any control over it after his decease.

In the case of Campbell v. Thomas, 42 Wis. 437 [24 Am. Rep. 427], it is held that where the grantor in a deed retains the right of control over it, notwithstanding its deposit with a third person with instructions to deliver it to the grantee upon his compliance with specific instructions, it is not an escrow.

. We have quoted at length from the foregoing authorities not only to show the holding of our Supreme Court upon the kind of delivery necessary to effectuate a conveyance of title of real estate, where the owner seeks to make a disposition of it during his lifetime to take effect at his death, but also to show Ihe trend of decisions of courts in other jurisdictions. In addition to the authorities already cited, -the following also sustain the same view:

Hathaway v. Payne, 34 N. Y. 92; Brown v. Brown, 66 Me. 316; Walls v. Ritter, 180 Ill. 616 [54 N. E. Rep. 565]; Provart v. Harris, 150 Ill. 40 [36 N. E. Rep. 958]; Chambers v. Stewart, 3 Dec. 522 (2 N. P. 287); Prutsman v. Baker, 30 Wis. 644 [11 Am. Rep. 592]; Shurtleff v. Francis, 118 Mass. 154; Wilkins v. Somerville, 80 Vt. 48 [66 Atl. Rep. 893; 11 L. R. A. (N. S.) 1183; 130 Am. St. Rep. 960] (see notes from page 911 to page 974).

In our judgment the epitome of the law on this subject is expressed in the paragraph already referred to in the case of Ball v. Foreman, supra.

And coming now to apply the facts of the case at bar to the principles of law concretely stated in said last named authority, let us first inquire what the facts are in relation to the delivery of these deeds as an escrow. Passing the execution and the formal delivery of the deeds in 1897 to Malinda Gross, as hereinbefore stated, does the evidence show that Benedict Gross, at the time stated, intended to deliver said deeds as an escrow, and were they so delivered, the deeds in 1905 having been executed under like circumstances?

As before stated, Malinda Gross testifies that she took possession of them and kept them under lock and key in a bureau drawer in her bedroom, in a tin box containing other-papers of the said Benedict Gross, until his death, and then delivered them to the parties named. That said deeds were placed in said tin box and not enclosed in separate envelopes. Fannie Gross also testifies that she was living at home with her parents and that her mother kept these deeds in said box under lock and key, at the place stated, and that said box was occasionally brought out by her for the use of her father to enable him to transact any business with other parties that his private papers in said box might require. That on all such occasions, when she was at home, she obtained information from her mother beforehand where such key to said bureau drawer was to be found, and that after her father transacted his business said box was replaced in said bureau drawer.

To rebut this testimony and as tending to show that said-deeds were.not delivered at said time as an escrow, the cross petitioners introduced testimony tending to show that within a few months after said deeds were delivered to Malinda Gross in 1897 as such trustee or depositary, the said Benedict Gross, his wife joining him, conveyed by deed, duly executed, to W. B. Stevens, for a valuable consideration, a part of the land so deeded to one of the grantees named in said deeds; that in 1905 the said Benedict Gross revoked said deeds, with one exception, and cancelled them; that in 1907 the said Benedict Gross caused a change to be made in one of the deeds theretofore executed and delivered to Malinda Gross as such trustee or depositary; that the said Benedict Gross at sundry times and to sundry persons offered to sell certain lands included and described in the deeds delivered to Malinda Gross as such trustee or depositary; that the tin box referred to, with the key thereto, was generally kept in a bureau drawer in said Benedict Gross’ bedroom, to which box the said Benedict Gross had open and unrestricted access, and that on several occasions he was seen to get said box from said drawer, without the intervention or aid of his daughter Fannie, or his wife, and take papers therefrom; that the lid of said box was broken off; that on one occasion when the witness, -W. B. Stevens, was at the house of the said Benedict Gross, on legal business, and when it became necessary for the said Benedict Gross to refer to some papers in said tin box, said Benedict Gross took the said tin box from a bookcase in his sitting room or library and took therefrom the' papers desired; that the witness, D. V. Heck, also testified that this tin box was .■sometimes kept in said bookcase.

Other evidence was also introduced’ tending to show the -custody and possession of this tin box to be in the said Benedict 'Gross at times from February, 1897, up to the time of his death; but counsel for plaintiff claim that when the conveyance is a mere gift, where the conveyance is voluntary and no consideration is paid therefor, as is claimed to be the ease here, Benedict Gross had the right to revoke these deeds before they were delivered to the grantees named therein by changing or altering them as to him seemed proper, and it is claimed that the intervention of the death of his daughter Kjt led him to make changes in said deeds concerning what is described as the home farm.

In support of this claim our .attention is called to the ease of Meeks v. Stilwell, 54 Ohio St. 541 [44 N. E. Rep. 267], but in that case it was held that notwithstanding the right of Mrs. Meeks, after the deed was placed in the bureau -drawer in her house, to be delivered to her granddaughter after death, to make a correction in respect to the right of her husband to occupy the premises mentioned, and by afterwards delivering the deed to her attorney, a valid delivery was necessary.

Under this showing of facts in this case,' can it be said that Benedict Gross at the time stated intended to deliver, and did deliver, these deeds as an escrow? If he did, his subsequent conduct and acts in relation to the lands thus conveyed are irreconcilable with áuch intention, under the evidence before ns. Judging from such facts, he at all times exercised dominion and control over these deeds, subject to be recalled at his will, and their possession by Malinda Gross, his wife, was his possession of them in law. We therefore hold that there was no valid delivery of these deeds, or either of them, as to operate as a conveyance of the title to the lands therein described to the grantees therein named, or either of them.

A decree may be entered herein in favor'of the cross petitioners in accordance with this opinion, with a judgment for costs against the estate of Benedict Gross to be paid out of the fund arising from the sale of the land described, if sold, and if not sold, then that each .of the parties hereto pay. his or her proportionate share of said costs according to his or her interest therein, and partition is ordered of all the lands described in said petition and cross petitions, the same commissioners to be appointed as in the court of common pleas, unless the parties hereto otherwise agree, and said cause will be rendered to the court of common pleas to carry this judgment and decree into execution, with instructions to cause an accounting to be taken of the rents and profits of the premisés described in said cross petitions. Exceptions noted. Motion for a new trial filed and overruled. Twenty days allowed for findings of' fact and conclusions of law from June 22, 1912, and the statutory time ai- • lowed for the filing of a bill of exceptions.

Powell and Voorhees, JJ., concur.


author: NORRIS, J.

text:
    DIVORCE AND ALIMONY.
    [Belmont (7th) Circuit Court,
    May Term, 1912.]
    Norris. Pollock and Metcalfe, JJ.
    Wilfred I. Adkins v. Emily H. Adkins.
    1. Alimony Pendente Lite Allowed Wife without Proof of Husband’s Aggressions.
    On an application for alimony pendente lite in a suit for divorce and alimony, the court may make an allowance to the wife for her sustenance and expenses during the suit, without requiring proof en her part of the truth of the allegations of her petition, charging aggressions of her husband, which constitute the grounds for such divorce and alimony.

      2. Essentials to Allowance of Alimony Pendente Lite.
    The court may make an allowance of alimony pendente lite to the wife on a proper application therefor and notice, where her petition states a cause of action for divorce and alimony, if the court is satisfied that the action is being prosecuted in good faith, that the husband is able to pay such allowance, and that the wife has no means of her own to pay for her sustenance and expenses.
    [Syllabus by the court.]
    Error to common pleas court.

      Kennon & Kennon, for plaintiff in error.

      James G. Talbnan and George Thornburg, for defendant in error.
   NORRIS, J.

This is a proceeding in error to reverse an order of the court of common pleas granting alimony to the wife pendente lite. The parties are husband and wife. Mrs. Adkins filed a petition for divorce and alimony. After filing her petition she made application to the court for an allowance of temporary alimony for her sustenance and expenses during the suit, giving to the defendant notice of the time and place of the hearing of the application.

Both parties appeared by counsel, and after a hearing the court of common pleas made an order granting plaintiff temporary alimony. An order by the court granting temporary alimony is a final order, and may be reviewed on error. King v. King, 38 Ohio St. 370, Neil v. Neil, 38 Ohio St. 558.

It is claimed by the plaintiff in error that the order of the court below for temporary alimony was not supported by sufficient evidence. It is said the plaintiff offered no proof to sustain the charges of her petition for divorce, and, therefore, it was error for the court to order defendant to pay alimony pendente lite.

Plaintiff herself was called as a witness by defendant and cross-examined as to her knowledge of the truth of some of the charges in her petition, of some of which naturally she did not have personal knowledge.

What proof is required to support an order for alimony pending suit? Must plaintiff go into the trial of her case, and prove the truth of her charges against her husband before she is allowed temporary alimony? We do not think the law requires such proof, nor so far as this court has knowledge, is it the practice to require it. The subject is governed by the statutes of this state.

Gen. Code 7997 provides:

“The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able. ’ ’
“Gen. Code 8000 provides:
“A husband and wife cannot by any contract with each other alter their legal, relations. ’ ’

This section has an exception which is not in this case.

Gen. Code 8003 provides:

“If the husband neglects to make adequate provisions for the support of his wife, any other person, in good faith, may supply her with necessaries for her support, and recover the reasonable value thereof from the husband.”

Gen. Code 8004 provides:

“If the wife abandons the husband, he is not liable for her support until she offers to return, unless she was justified, by his misconduct, in abandoning him. ’ ’

Such aggressions on the part of the husband as would be a ground for divorce, would be sufficient justification for abandoning him.

Gen. Code 11994 provides:

“On notice to the opposite party of the time and place of the application, the court, or a judge thereof in vacation, may grant alimony to either of the parties for his or her sustenance and expenses during the suit.”

It would appear from reading this section that the granting of alimony pendente lite does not depend upon who brings the suit, or what the allegations of the pleadings are. If the husband brought suit against the wife for divorce on account of her aggressions, it would seem that under this statute the court would still be authorized to grant her .temporary alimony for her sustenance and expenses.

This is confirmed by a reading of Gen. Code 11993, which provides that where a husband is granted a divorce for aggressions of the wife, the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just. So that the rule appears to be that so long as the marriage relation exists between the husband and wife the husband, if able, must support his wife, and if the suit for divorce is brought by either party the court may grant temporary alimony for the other’s support, and the necessary expenses of the suit.

It is not denied in this case that the petition states a cause of action for divorce and alimony. We assume that the court . of common pleas found that the action was brought and was being prosecuted by the plaintiff in good faith. In so finding, we are not able to say the court erred. There is no dispute in this case that the husband is able to support his wife, and that she has no means.

In Graves v. Graves, 50 Ohio St. 196 [33 N. E. Rep. 720], our Supreme Court hold that on hearing a petition by the wife for divorce and alimony, the court may refuse her a divorce and still grant her alimony. See also Lockwood v. Krum, 34 Ohio St. 1. In Taylor v. Taylor, 25 Ohio St. 71, it is said:

“TKe allowance, if any, in such cases, rests in the sound discretion of the court or judge, ’ ’ in speaking of an allowance of temporary alimony.

Counsel for plaintiff in error, in their brief, discuss the question of the exercise of discretion by the court. We think it is a legal discretion conferred by statute, and to be exercised in accordance with its provisions. The court should be satisfied that the parties are husband and wife; that a petition has been filed stating a good cause of action for divorce; that the action is being prosecuted by the wife in good faith; that the husband is financially able to pay her temporary alimony, either by his earning capacity or other means; that the wife has not sufficient means of her own to maintain herself and prepare her case for trial. None of these facts are seriously disputed in .this case, except perhaps the good faith of the suit.

We do not think our statutes should be construed so as to require the plaintiff, on application for temporary alimony, to offer evidence to support the charges of her petition of aggressions on the part of the husband. We believe this to be the general rule of the law.

14. Cyc. Law & Proced. p. 749, says:

“Subject to the conditions hereinafter noted, a wife is entitled almost as a matter of course, the merits of the case not being carefully scrutinized, to' an allowance of temporary alimony, whether she be plaintiff or defendant, and although the statute makes no provision therefor.”

A large number of cases are cited in support of the text. Out of the numerous authorities we. shall only refer to two or three.

Cooper v. Cooper, 85 Ill. App. 575, says:

“In fixing the amount of alimony the court may take into consideration the fact of the wife’s misconduct, but that a. less sum should be allowed her on that account, even when her misconduct has contributed to the separation of the parties, has no application to a motion for temporary alimony and suit money. ’ ’

And again the court says:

“The court will not look into the merits on a motion for temporary alimony, hut will only investigate sufficiently to determine whether the complainant’s bill is exhibited in good faith. Whether the complainant has in fact a meritorious case, or whether the truth in respect to the issues on her side, cannot be determined until the proof shall have been put in and a hearing had.”

This case is affirmed by the Supreme Court of Illinois in Cooper v. Cooper, 185 Ill. 163 [56 N. E. Rep. 1059], The Supreme Court laid down the same rule that we have quoted from the appellate court. Another leading case by the same court is Harding v. Harding, 144 Ill. 588 [32 N. E. Rep. 206; 21 L. R. A. 310], quoting from the syllabus:

“In a divorce or separate maintenance suit, while the matters in issue are being litigated, the wife shall be presumed to .be entitled to support until it is shown by the result of the trial that her claims are forfeited. This rule grows out of the duty of the husband to maintain and support his wife, and protect her from oppression and wrong.”

The court in the opinion in this last case says on p. 595:

“It is no objection to the allowance being made that the husband denies -what the wife alleges. To ascertain the truth in respect of the issues made by the bill and answer is the purpose of the trial, and to enable the wife to properly present her case, the purpose of the allowance. To hold that the mere denial by the defendant of the matters alleged would put the complainant upon proof would be subversive of the whole theory upon which the allowance of temporary alimony is based.”

And the court cite a large number of authorities:

• Bishop, Mar. & Div. 384, 406, 423; Stewart, Mar. & Div. Secs. 383-386; Brown, Divorce 244; Poynter, Mar. & Div. 247; Newman v. Newman, 69 111. 167.

We find no authorities in conflict with the ones we have cited. We do not think plaintiff was required in this ease to offer proof of the truth of the allegations of her petition of the aggressions of the husband, to authorize the court to allow her alimony pendente lite, and we do not think there was any error upon the part of the court in making such allowance, and the order is affirmed.

Pollock and Metcalfe, JJ., concur.


author: ALLREAD, J.

text:
    MASTER AND SERVANT — TRIAL.
    [Franklin (2nd) Circuit Court,
    February 13, 1912.]
    Dustin, Allread and Ferneding, JJ.
    William J. Stubbins v. Buckeye Steel Castings Co.
    1. Employe's Obeying Special Order of Superior In Emergency ef Danger, Raises no Inference of Contributory Negligence if He Had no Knowledge of Defect Causing Injury.
    An employe of steel castings company, experienced in the business and knowing the dangers connected therewith, having, while tapping a furnace containing molten iron, observed an explosion resulting from dampness in a fire clay spout and mud joint, but not knowing of the failure to have'the fire clay thoroughly dried, raises no inference of contributory negligence barring recovery, by complying with a second order of his foreman to complete.the usual work of making the casting; in such an emergency the obeying of the special order is a question for a jury to determine whether the employe contributed ■ to his own injury. ,

    2. Defect In Metal Casting Device Made by Fellow Servants of an Employe on Another Time Shift not Delegated from Master.
    The fact that the fire clay lining of a spout and mud joint connection for tapping a furnace of molten metal, were made by fellow servants of an employe injured by failure to have the fire clay thoroughly dried does not relieve the master under Gen.- Code 6242, since the injured employe belonged to another time shift and did not know of the defect.
    S. Transmission of Order of Master through Fellow Servant* Immaterial in Fixing Liability.
    An order given in the first instance by a superior and transmitted by fellow servants to the servant injured is the order of the superior and it is immaterial that communication thereof was not direct.
    Error to common pleas court.

      T. E. Powell, for plaintiff in error.

      Outhwcdte, Linn & Thurman, for defendant in error:
    Contributory negligence, Van Duzen Gas & Gas Eng. Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998] ; Baltimore & O. By. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816] ; Cincinnati Gas <& Elec. Co. v. Johnston, 76 Ohio St. 119 [81 N. E. Rep. 155]; Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. Rep. 585] ; India Rubber Co. v. Tobin, 13-23 O. C. C. 653 (3 N. S. 59) ; Cleveland v. Wolf, 25 O. C. C. 406 (2 N. S. 126) ; Davies v. Griffith, 11 Dec. Re. 495 (27 Bull. 180) ;■ 1 Labatt, Mas. & Serv. 639; Cincinnati Si. By. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]; Geiselman v. Scott, 25 Ohio St. 86; Baltimore & O. By. v. Whittaker, 24 Ohio St. 642; Lake Shore & M. S. Ey. v. Callahan, 25 O. C. C. 115 (2 N. S. 326).
    Proximate cause of injury was the negligent act of fellow servant, Kelley Island Lime (& Trans. Co. v. Pachuta, 69 Ohio St. 468 [69 N. E. Rep. 988; 100 Am. St. Rep. 706]; Lake Shore & M. S. By. v. Knittal, 33 Ohio St. 468.
   ALLREAD, J.

William J. Stubbins brought suit for personal injury and was nonsuited at the close of his testiniony.

The negligence charged against the defendant is the failure to have the fire clay spout and the mud joint employed to convey molten metal from the furnace to the ladle, thoroughly dried before use.

The evidence shows that Stubbins was employed as second furnace helper and put to work under a foreman. It was the duty of Stubbins and the other helpers upon order from the foreman to tap the furnace containing the molten iron, and then, after waiting until a portion of the metal was in the ladle and upon an order or signal from the foreman to put in the •stock of manganese and silicon. This process from the time the furnace was tapped until the metal was all in the ladle usually occupied about two minutes.

The evidence tended to show that Stubbins belonged to the night shift, came on duty about 6:00 P. M., and was at once ordered to help tap the furnace and then a little later to put in the stock of manganese and silicon. The spout was prepared by the day shift and put in place and connected by the mud joint. The workmen were delayed by the operators of the crane and the spout and mud joint were not completed until late in the afternoon and too late to be thoroughly dried out.

It does not appear that Stubbins knew of the defective condition at the time he went on duty. The testimony shows that the presence of dampness in the mud joint' and spout will generate steam as the molten metal passes, causing explosion. Plaintiff testifies that he was experienced in the business and knew the dangers connected therewith.

Plaintiff testifies that when the furnace was tapped and the molten iron first struck the mud joint, there was a puff of steam and flame and that this continued, throwing out sparks and particles of metal as the molten mass passed down the spout. He and a fellow helper, to wit, Harry Kirby, testify that there was a great puff of steam and flame that went up to the roof, but the plaintiff is not clear whether this occurred at the start or after he had gone down to put in the stock. The plaintiff also testifies that after the furnace was tapped he took his position some ten feet distant from the spout and in a place of safety. He awaited orders from the foreman. He saw the steam and flame when the metal first struck the spout. Plaintiff testifies that in a.few seconds, or perhaps a minute, after the furnace was tapped, an order was received from the foreman to put in the stock, and that in pursuance of this order he went down and was in the act of putting in the stock when we was injured by the flame and flying particles of metal. Kirby, a fellow helper, testifies that the order was received from the foreman but subsequently qualifies this by saying that the order was given to the helpers on the other side of the spout and that the witness and Stubbins received the order from those workmen. He indicates, however, that the order was intendéd and regarded as an order to all the helpers. We do not think, therefore, that it makes any material difference ^whether the order was direct or received through the other workmen.

The fact that the fire clay lining of the spout and the mud joint connection was prepared by fellow servants does not in our1 opinion relieve the master. Under Gen. Code 6242, the duty to make the place and appliances reasonably safe rested upon the master and could not be delegated.

Counsel for defendant in error insist that the apparent and obvious danger of complying with the second order of the foreman raises such an inference of contributory negligence as to bar recovery. Citing, Baltimore & O. Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816]. They point particularly to the testimony of the plaintiff as to the indications of danger when the molten metal first came upon the mud joint and spout and insist that a reasonably prudent man would under those circumstances have refused to execute the order. In partial explanation of the plaintiff’s course, he testifies that there is often more or less steam and flame when the molten iron .first strikes the mud joint and that this of itself did not necessarily indicate real danger. There is, however,, no doubt from the actual situation appearing in evidence but that the apparent danger was of such a character as to constitute contributory negligence, except for the influence of the special order.

The principle governing in the' case of a special order from a superior servant is laid down in the case of Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998], in the opinion as follows:

“There is mueh reason in the rule that allows a favorable construction to be placed on the act of the servant done in obedience to the order of his superior, though involving danger. Obedience to orders given by a master becomes a habit with the servant. He obeys without much questioning the prudence of the order. It is expected that he will do so, and without such obedience the business of the master could not be successfully conducted. It is' then both reasonable and proper that the master should be held to a reasonable responsibility for-what he orders his servants to do; and the conduct of a servant in obeying an order, under sucb circumstanced, should not be too closely criticized by courts in administering the law. Whilst the law will not excuse the servant, where the thing ordered is plainly and manifestly perilous, it will do so where a man of ordinary prudence and care would, under the circumstances, have obeyed the order, although involving danger. A servant has the right, and is expected, to rely somewhat on the superior knowledge and skill of one placed in authority over him. ”' .

Counsel for defendant seek to differentiate the Van Duzen case from the one at bar by the fact that the servant there had at first objected to the danger, also by the fact that the servant had performed the work on former occasions with safety, and also that the danger there was less obvious and apparent than here. A careful reading of the syllabus and opinion in the case cited does not indicate that these facts are controlling. The whole question is one for the jury. This is clearly indicated by the first, second and third syllabi. In the ease of Cincinnati Gas & Electric Co. v. Johnston, 76 Ohio St. 119 [81 N. E. Rep. 155], the Van Duzen case is distinguished and held not to apply to the case of an experienced employe in respect to the ordinary risks of his employment, although the injury resulted by reason of an insufficient crew. The risk incident to the insufficiency of the crew it was held was assumed by the plaintiff in accepting and continuing the employment.

The present case does not, however, fall within the limitation of the distinction but is controlled in our opinion by the original ease.

The servant here had no knowledge of the defective condition of the spout and mud joint. He had- a right to presume that the master had done his duty to act upon' that presumption. Stubbins came on duty and was at once ordered to tap the furnace. This he did and awaited further orders. He was not bound to suspect and did not in fact suspect the danger. The risk was not incident to the' ordinary and careful management of the business of the master but was due to a latent defect .arising from the negligence of the master and was not therefore one assumed by the servant.

,The first intimation or suspicion of danger upon the part of the plaintiff was the issuing of steam and flame when the metal first struck tlie mud’ joint and spout. In considering the circumstances, it must be noted that up to this point Stubbins was in no wise negligent and that the defect was due to the negligence of the defendant and was within the defendant’s knowledge. It was, therefore, a sudden emergency, and the plaintiff was called upon to exercise judgment. He chose to obey the special order of the foreman. The question whether the judgment so exercised was such as prudent and careful persons in the same situation are .accustomed to exercise was one for the jury. Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. Rep. 559; 60 Am. St. Rep. 700].

We are of opinion, therefore,_ that the court erred in directing the nonsuit..

Judgment reversed and cause remanded for a new trial.

Dust in and Ferneding, JJ., concur..


text:
    CONTRACTS — TAXATION.
    [Franklin (2nd) Circuit Court,
    November, 1911.]
    Rockel, Dustin and Allread, JJ-.
    State ex rel. Manufacturers’ Appraisal Co. v. F. M. Sayre, Aud.
    1. City Board of Real Estate Assessors not Authorized to Adopt Somers System of Realty Valuations.
    The employment of “expert assistants” provided by. Gen. Code 5545 is placed upon the board of real' estate assessors of a city and cannot be delegated to a nonresident corporation. Hence, a contract with such a corporation to furnish “appraisers” and “to install and superintend” in and for a city, the operation of wliat is known as “Somers System of Realty Valuations,” though beneficial to the board, is a delegation, of the functions of the board and constitutes a plan of valuation inconsistent with the statute.
    2. Official Acts of City Real Estate Assessors Exceeding Exercise of Discretion, SuEject to Review.
    Official acts of a city board of real estate assessors, exceeding the bounds of its discretion, in making a contract, at least, partly illegal, are reviewable; hence, a county auditor may properly refuse to issue bis warrant in payment of obligations created by reason of such contract.
    [Syllabus approved by the court.]
    .Mandamus.
   ALLREAD, J.

The relator seeks by mandamus to compel the auditor of Franklin county to issue vouchers for $8,000 as provided for in two certain contracts made by relator with the board of assessors of the city of Columbus to install and put in operation the so-called “Somers System of Realty Valuation.”

The contracts and claims for services thereunder are said to be upheld by force of Gen. Code 5545, which provides:

“ If a board of real estate assessors in a city deems it necessary to enable it within the time herein prescribed, to complete the proper listing and valuation of the real property within such city, it may employ a'chief clerk and appoint such expert assistants as it may deem necessary, and fix their compensation.”

The term “assistants” used in the act of March 12, 1909, was by amendment of January 31, 1910, changed to “assistance.” The general code which was then pending before the general assembly and adopted on March 23, 1910, retained or rather employed the original word “assistant.”

This confusion or. interchange of words is not of serious consequence, particularly in view of the fact'that the first contract was executed before the amendment of January, 1910, and the other after the adoption of the general code.

•It may be noted, however, in a perusal of the statute, that the use of the term “appoint” ih the clause authorizing “expert assistants” and the pronoun “their” in the compensation clause may well raise a grave doubt whether the legislature contemplated a “lump sum” contract without specifying persons or duration of employment.

Gen. Code 5545, must be read and construed with the other sections of the act. The scope of employment is intended to conform to the manifest scheme of the entire act. Gen. Code 5554 provides that:

"The assessor, in all cases, from actual view, and from the best sources of information within his reach, shall determine, as near as practicable, the true value of each separate tract and lot of real property in his district, according to the rules prescribed by this chapter for valuing real property.”

Gen. Code 5560 provides that,

"Each separate parcel of real property shall be valued at its true value in money.”

The commissioners and auditor are required to furnish certain abstracts, maps and plats describing each tract.

The owner may be required to furnish certain information.

The board of assessors may also act under Gen. Code 5545, and secure "expert assistants.”

Gen. Code 5565, provides:

"An assessor who deems it necessary to enable him to complete, within the time prescribed, the listing and valuation of the property, moneys, and credits of his district, township, or ward, with the approbation of the county auditor, may appoint a qualified citizen of his county or township as an assistant, and assign to him such portion of his district, township, or ward, as he thinks proper. An assistant so appointed * * * after giving bond and' taking oath, as prescribed by law, shall perform all the duties enjoined upon, vested in, or imposed upon assessors by the provisions of law.”'

By Gen. Code 5567, assessors and assistants are made liable criminally for neglect or misfeasance in office.

Gen. Code 5543, provides that the words "assessor” and "assessor of real estate” wherever used in the chapter shall include the board of assessors- in cities.

It is urged that Gen. Code 5545, conferring upon boards of assessors in cities authority to appoint "expert assistants” supersedes as to cities the authority conferred by Gen. Code 5565. In our view, however, both sections are consistent and may be harmonized.

The general assembly was, no doubt, of the opinion that the complex influence affecting values in the cities justified the employment of experts. These experts are to be assistants, not appraisers. The appraisement is finally to be made by the official assessors residing in the city acting under bond, the influence of official oath, and the restraint of criminal responsibility. These are safeguards which the legislature has seen fit to prescribe and can not be ignored in the execution of the law.

How, then, stands the relator’s contract and the services of its experts thereunder ?

One general feature of the contract under consideration is that the relator, the Manufacturers’ Appraisal Company, furnish the necessary “expert appraisers” of realty and structures.

The duty and responsibility of appointing the “expert assistants” is placed by statute upon the board of assessors and to delegate that important function to a nonresident corporation is not justified by public policy and is contrary to the manifest spirit of Gen. Code 5545.

The contract designates the experts to be furnished by the relator as “appraisers,” and from the whole contract and the evidence, it is manifest that the term was correctly and advisedly used. Clearly there is- no statutory sanction for the appointment even by the board of unofficial “expert appraisers” and, a fortiori, there is none for the delegation of that power ,to others.

The first and chief obligation assumed by the relator under the contracts was “to install and superintendent in and for the city >of Columbus,' Ohio, the operation of what is known as the “Somers System of Realty Valuations.” The Somers System of ground valuations is based upon units or prime factors from which values of specific tracts are arrived at through certain rules and tables. The unit upon each block must be fixed as a basis and to fix the unit value of a block is an act of appraisement, not capable of being delegated by the assessors. The fact that the board of assessors may have reviewed the valuations so made and adopted them may and-most probably does establish their validity as against collateral attack, yet it does not validate any expenses illegally created.

Buildings and structures were valued under the Somers system upon information secured by employes of the board of appraisers by the card system. The cost of reproduction was estimated and a deduction made of a certain percentage of depreciation according to age. This system of structure valuation is a departure from that prescribed by statute.

The unit of valuation fixed by statute is the specific tract and the rulé of valuation is actual value to be determined by actual view. The Somers valuation is an approximation to actual value by a scientific method adopted by Mr. Somers based upon experiences in the larger cities. '

While we do not doubt that some features of this contract were beneficial to the legitimate performance of the board’s duties, yet we can riot escape the conclusion that the contracts, for most part, constituted a delegation of the functions of the board of assessors to the relator and the performance by its experts of duties resting exclusively upon the assessors and involved a plan inconsistent with the statute,. That some features were beneficial to the board and were actually used in making the assessment does not validate the contract as a whole. The contract price is presumed to include the illegal as well as the legal features.

It is urged by the relator that the discretion confided to the board of assessors can not be reviewed, and that the auditor had no right to refuse the warrant.

That view is correct, no doubt, in cases where the officer having discretion acts within the legal limits of the discretion and without fraud or gross abuse. Here, however, the board exceeded the bounds of its .discretion and made a contract partly, at least, illegal.

The defendant acting as auditor was justified in refusing a warrant for the amount of the contracts and the writ of mandamus is, therefore, refused.

Rockel and Dustin, JJ., concur.


author: SMITH, P. J.

text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    May, 1912.]
    Smith, Swing and Jones, JJ.
    James F. Barbour et al. v. John C. Gallagher et al.
    Distribution to Children of Sisters, Nieces, Nephews and Brother Construed.
    Under an item of a will providing that “when all my sisters, nieces, nephews, and my brother” “who are hereinbefore made beneficiaries of * * * property hereinbefore devised in trust shall have deceased” that the executors or their successors “proceed without delay to divide * * * property or the proceeds thereof into as many parts as there will be surviving children of my aforesaid nephews, nieces and of my brother,” all the relatives designated as beneficiaries having died, the time of distribution has arrived and their surviving children take per capita.
    Error to common pleas court.

      Lawrence Maxwell, Joseph W. O’Hara, J. B. Forakcr, Wm. Worthington, Harmon, Colston, Goldsmith & Hoadly, D. & W. Hoyt, Oscar Stoehr and Guy W. Mallon, for the various heirs.
   SMITH, P. J.

In the above case the court is asked to construe the last will and testament of James S. Armstrong, executed on March 22, 1878, probated on June 10, 1883, and recorded in Vol. 20, page 25, Hamilton county, Ohio, records, and particularly item S thereof.

Item 8 is as follows: .

“When all my sisters, nieces, nephews and my brother Frank W. Armstrong who are hereinbefore made ■ beneficiaries of the income and revenue arising from the real and personal property hereinbefore devised in trust shall have -deceased, it is then my will that the successors of my hereinafter named executors and trustees or said executors and trustees themselves if then living, shall proceed without delay to divide such real and personal property, or the proceeds thereof should it be found necessary to sell for cash a part or the whole of such property to carry out equitably the objects and purposes of this my last will and testament, and to divide such property or the proceeds thereof into as many equal parts as there will be then surviving children of my aforesaid nephews, nieces and of- my brother Frank W. Armstrong, and to make over, transfer and give to each one of said surviving children one of said equal parts, to have to hold the same absolutely forever.”

Under this item, who then are “all my sisters, nieces, nephews and my brother Frank W. Armstrong, who are hereinbefore made benefieiaries of the income and revenue arising from the real and personal property hereinbefore devised in trust,” and at whose death such real and personal property shall.be divided?

Clearly, ‘ ‘ all my sisters, nieces, nephews and brother Frank W. Armstrong” mentioned in item 7 of said will, to wit: “My sister, Eliza Lee; my sister, Emily Dobyns; my sister, Amelia A. Mannen; my niece, Mary Eliza Gallagher; my niece, Sarah Collins; my niece, Laura Capron; my niece,.Florence Lee Ward; my niece, Emily G. Dobyns; my nephew, Charles Collins; my nephew, William Collins; my nephew, Richard Collins; my nephew, John Collins Lee; my nephew, William Rees Dobyns; my brother, Frank W. Armstrong. ’ ’

The evidence discloses that each and all of the foregoing are now dead. This being so, in the opinion of the court the time for the distribution of the real and personal property mentioned in item 8 has arrived.

Among whom, therefore, should this real and personal property be distributed?

The testator says, that his executors and trustees shall proceed without delay to “divide such property or the proceeds thereof into as many equal parts as there will be then surviving children of my aforesaid nephews, nieces and of my brother Frank W. Armstrong.”

Who then are they? Under the evidence they are as follows: John C., Mary S. and Eleanor Gallagher, children of testator’s niece, Mary E. Gallagher; John A., George A., Prank A. and Mary E. Collins, children of testator’s nephew, Charles H. Collins; Charles L., Thomas S. and John S. Collins, Amelia C. Buggies, Hannah Collins de Chiara and Julia Collins Marvin, children of testator’s nephew, William A. Collins; Mrs. Myrtilla Dobyns Cunningham, Emily Dobyns Long and’ James A. Dobyns, children of testator’s nephew, William Bees Dobyns; and Mary A. Swigert, child of testator’s brother, Prank W. Armstrong.

The court feels certain that the construction of the will sought by counsel for Harriette A. Goodloe can not obtain, as testator did not intend to postpone the distribution of his estate beyond the time of the death of his specifically named sisters, nieces, nephews'and his brother, Frank W. Armstrong, and particularly so when he distinctly stated that when the distribution should take place, his estate should be delivered into as many equal parts as there will be then surviving children of his aforesaid nephews, nieces and his brother, Frank W. Armstrong, for otherwise the child of Frank W. Armstrong, Mrs. Mary A. Swigert, would not take the share of the estate given to “her.

Considering the entire will, the number of specific legacies devised, the persons to whom these legacies are given and the relationship each bore to the testator, we are of the opinion that the foregoing conclusion reached as to the construction of the will in question is correct.

A decree may be taken in accordance herewith and similar to the decree below.

Swing and Jones, JJ., concur.