text:
    ELECTIONS.
    [Hamilton (1st) Court o£ Appeals,
    March, 1914.]
    Swing, Jones and Jones, JJ.
    Walter M. Yeatman et al. v. State ex rel. Stieringer.
    Election of. September 3, 1912, to Amend the Constitution is “Special" as Distinguished from “General” Elections and Compensation of Election Officials Thereat is Limited to Terms of Special Elections.
    The election held September 3, 1912', for the purpose of adopting or rejecting certain amendments to the state constitution, although state wide and of great importance was a “special election” within the terms of Sec. 4944 G. C., fixing the amount of compensation allowed to judges and clerks of election, and payment to judges and clerks for their services at such election is limited to the schedule for such elections and not as for “general elections” held on the first Tuesday after the first Monday in November.
    [Syllabus approved by the court.]
    Error.

      John A. Beasy, Asst. Atty. Gen., for plaintiff in error.

      William Thorndyke, for defendant in error.
   JONES (O. B.), J.

The question to be determined in this case is-whether the election held September 3, 1912, at which certáin proposed amendments to the constitution of Ohio were submitted to a vote of the people of the state, was a general election, or a special election within the terms used in See. 4944 G. C. which fixed the amount of compensation to be allowed to the judges and clerks of election.

An act to provide for the election and assembling of the convention to amend the constitution, found in Sec. 4, 102 0. L. 298, conferred upon the constitutional convention authority to fix and prescribe the time, form and manner of submitting the proposed amendments, and in Sec. 5 provided how the election should be held and the returns made and canvassed.

Under the authority conferred by this act the constitutional convention, by resolution, fixed the third day of September, 1912, as the date of the election, and provided in its schedule in that resolution under the head of “Method of Submission” that the separate proposed amendments should be submitted “at a special election to be held” on that date. This resolution further provided “said special election shall be held pursuant to all provisions of law applicable thereto, including special registration” and provided for the carrying on of said election, and prescribed a form for an official ballot headed as follows: “Official Ballot. Special Election Tuesday, September 3, 1912. Amendments to the Constitution.”

The constitution as it stood prior to this election provided in Art. 17, See. 1, for the election of state and county officers on the first Tuesday after the first Monday in November in the even numbered years, and for election of all other elective officers on the same day in the odd numbered years; and in the latter part of Sec. 2 of this article in providing for the filling of vacancies “by. election at the first general election for the office which is vacant” it evidently refers to the November election provided for in this article as “a general election.”

In the provisions found in Art. 16 of the constitution as it existed prior to this election, Sec. 1 provided for the submission of the proposed amendments “at the next election for senators and representatives.” Section 2 of the same article provided for the submission of the question as to whether it is necessary to call a constitutional convention “at the next election for members of the general assembly”; and Sec. 3 provided for the submission of the question as to whether a constitutional convention shall be held “at the general election” to be held in the year 1871 and in each twentieth year thereafter.

Article 2, Sec. 2, fixes the date for the election of senators and representatives, and Art. 3, Sec. 1, fixes the date for the election of executive officers. The constitution of 1851 originally fixes this date as the second Tuesday in October, and after-wards, October 18, 1885, it was changed by amendment to the first Tuesday after the first Monday in November.

Title 14 of the General Code is devoted to public elections, Chap. 2 therein providing for the time and notice of elections. Section 4826 therein provides for “all general elections” for the governor and other state and county officers, fixing it on the day provided by the constitution — the first Tuesday after the first Monday in November in the even numbered years.

Sections 4831, 4835, 4836 and 4838 fix the time of elections of township and municipal officers and members of the board of education, all being as fixed by the constitutional provision the first Tuesday after the first Monday in November in the odd numbered years.

In Sec. 4832 the “regular election” for township officers is referred to.

Section 4829 provides for a “special election” to fill a vacancy in the office of congressman or member of the general assembly. Such election may be held and conducted as in case of a “regular election.”

Section 4840 distinguishes between the submission of a question at a “special” election or at a “regular” election. And Sec. 4870 uses the phrase “at any general or special election.”

Section 4941 makes full provision for special elections in registration cities.

The term “November election” is repeatedly used in the statutes. It is referred to in Secs. 4845 and 4846 with reference to the fixing of election precincts, and in Secs. 4893, 4915, 4917, 4919, 4920, 4921 and 4925 with reference to registration.

In Chap. 6, relating to primary elections, Sec. 4948 specifies that words and phrases in that chapter shall be construed as follows:

“The words ‘November election,’ the election held on the first Tuesday after the first Monday in November in any year.
“The words ‘general election,’ the November election in the years when state and county officers are to be elected.”

Sections 4949, 4967 and 4980, relating to primary elections, use the term “general election”; and Sec. 4980 provides that “Affiliation shall be determined by a vote of the electors making application to vote, at the last general election held in even numbered years.”

It therefore appears that the provisions of the constitution and the General Code recognize “regular” elections and “primary” elections, and “general” elections and “special” elections. The term ‘ regular election ’ ’ seems to be used in the same way and to mean the same thing as the term “general election.”

The legislature lias, in See. 4948, construed the term “general election,” limiting it to the November election in even numbered years, while the language used in Sec. 4980 would seem to indicate there might be a general election held in odd numbered years.

A careful consideration of all the constitutional provisions and statutes cited above compels the court to the opinion that the terms “general election” was intended to apply only to the elections held on the first Tuesday' after the first Monday of November both in the even and in the odd numbered years, and that all other elections would be special elections except the “primary elections,” which are another class and otherwise provided for. A general election is one held throughout the state at regularly recurring intervals for the purpose of electing public officers and possibly at the same time voting upon such public questions as might be then legally submitted, while a special election is one held at some other time to vote upon public questions or to elect officers to fill vacancies.

It has been argued that the term “general” would necessarily be applied to every election that was state-wide and held at every polling place at the same time, but it can be readily seen that an election might be held on one question, such as the issue of state bonds for some public purpose or any other public question that might require a vote of the entire people of (he state. Such question, while general with respect to the state-wide interest, would not necessarily require such an election to be classed as a “general election.” The election of September 3, 1912, like any election held to amend or modify the provisions of the constitution, was of the utmost importance to all the eitzens of the state and involved matters of the greatest general interest to its voters. This particular election was denominated as a special election by the constitutional convent!)n that provided for it, and it certainly was special in that it was fixed for a day when no other question would engage the attention of the voters and each proposed amendment submitted might receive the special and undivided consideration of every voter.

"We must therefore hold that this election was, in the meaning of the statute, a special election, and while the labor required of the judges and clerks in receiving and canvassing the votes may have been even more arduous than that of a general election, the question of payment for the full value of the services rendered is one that is not addressed to the court, and the court can only determine what has been provided by statute for such service.

The judgment below is reversed.

Swing and Jones (E. H.), JJ., concur.


source: Caselaw Access Project

author: CHITTENDEN, J. Kinkade, J. (dissenting)

license: Public Domain

text:
    MUNICIPAL CORPORATIONS — PLEADINGS.
    [Lucas (6th) Court of Appeals,
    June 19, 1916.]
    Kinkade, Chittenden and Richards, JJ.
    Emil Hacker et al. v. Albert W. Payne et al.
    Filing Petition to Enjoin Annexation Proceedings With Clerk, not Compliance With Statute Requiring Filing With Common Pleas.
    Section 3553 G. C. requires a petition to enjoin further proceedings in the annexation of territory to a municipality to he presented to the court of common pleas or a judge thereof, and the filing of a petition for that purpose with the clerk of the court of common pleas is not a compliance with the statute, and it is not error to grant a motion to strike such petition from the files.
    [Syllabus hy the court.]
    Error.

      L. H. Wilkinson, for plaintiffs in error.

      IT. S. Commager, Dir. of Law, and C. A. Irwin, for defendants in error.
   CHITTENDEN, J.

This action was begun to restrain further proceedings in the matter of the annexation of certain territory to the City of Toledo. On March 22, 1915, the city council of the city of Toledo passed an ordinance authorizing the annexation to the city of Toledo of certain territory including West Toledo. Thereafter, on November 29, 1915, the city solicitor, having been authorized so to do, presented to the commissioners of Lucas county a map of the territory to be annexed, and the petition of the city of Toledo setting forth that under the ordinance of the council the territory described in the ordinance was authorized to be annexed to the city, and praying for an order of the board of county commissioners for the annexation of such territory. On the hearing of the matter by the county commissioners on November 29 a resolution was passed authorizing such annexation, and on the same day a transcript of the proceedings of the commissioners, together with the petition and the map or plat thereto attached, were deposited in the office of the auditor of the city of Toledo who placed the same on file.

The plaintiffs, being owners of land and taxpayers within the district proposed to be annexed, on behalf of themselves and t'thers, on January 28, 1916, filed their petition with the clerk of courts of Lucas county in which they set forth the various proceedings had in the matter of the annexation of such territory, and set forth certain claimed errors by reason of which it cas asserted that further proceedings should be enjoined, and they prayed for an order restraining the defendants, Albert W. ?ayne, clerk of the city of Toledo, and Peter J. Kranz, director of finance, from reporting the petition, plat and transcript to she council of the city until after final hearing upon the petition, and they asked that upon such hearing the injunction be made perpetual. A summons was issued upon the filing of the petition and was personally served upon the defendants on the same day.

On February 19, 1916, the defendants filed a motion to strike the petition from the files for the reason that said petition had not been presented to the court of comman pleas or a judge thereof as required by law. This motion was heard on February 21, 1916, and granted, and judgment entered against the plaintiffs for costs. To this order the plaintiffs excepted and prosecuted error here to such action of the court.

The question presented involves a construction of several sections of the General Code. The proceedings for the annexation of territory are governed by sections of the General Code found in chapters 1 and 3, division 1, title 12. These chapters relate to the organization of villages and to the annexation of territory. That these sections must be construed together is not only apparent from a reading of the sections, but such is the holding of the Supreme Court in Shugars v. Williams, 50 Ohio St. 297 [34 N. E. 248], where it is said that these chapters “relating to the general subject of the creation of villages and hamlets, and the annexation of territory to those already created, are to be treated, for the purpose of construction, as one act.” Provision for the annexation of territory is made under two heads: First, annexation upon application of citizens; and, secondly, annexation on application of the corporation. The proceedings taken for the annexation of the territory known as West Toledo were under the latter head. The method of procedure is provided by Sec. 3561 G. C. as follows:

“When the petition is presented to the commissioners, like proceedings shall be had, in all respects, so far as applicable, as are required in case of annexation on application of citizens in this chapter. ’ ’

This is the only provision for procedure in the annexation of territory on application of the corporation. It is, therefore, necessary to ascertain what proceedings are required in annexation on application of citizens. This is found in Sec. 3549 G. C. which section, so far as it need be quoted, reads as follows:

‘ ‘ The petition shall be presented to the board of commissioners at a regular session thereof, and when so presented the same proceedings shall be had as far as applicable, and the same duties in respect thereto shall be performed by the commissioners and other officers, as required in case of an application to be organized into a village under the provisions of this division. ’ ’

It therefore becomes necessary to recur to the provisions for the organization of a village under chapter 2 which contains the only statutory provisions governing the procedure in such case. Section 3533 G. C. is as follows:

“When the petition is filed, the person filing it shall give notice thereof, in writing, to the recorder and the agent of the petitioners for the corporation. On receiving such notice, the recorder shall forthwith transmit to the clerk of the court where the petition for injunction is pending, all the papers relating to the matter on file in the recorder’s office, and in that event, no record of the papers shall be made by the recorder, or transcript certified by him, as hereinbefore provided, unless he receive a certificate from the clerk of the court, showing that the injunction has been denied. ’ ’

Section 3534 G. C. provides:

‘ ‘ The court or judge shall cause the petition to be filed and docketed in the office of the clerk of the courts, and shall hear the petition at such time as he shall appoint, not less than twenty days from the filing thereof. * * *”

The petition in this case was filed by virtue of See. 3553 G. C. which is found under chapter 3, relating to the annexation o£ territory, and is as follows:

“If, within sixty days from the filing of such transcript, map, or plat and petition in his office, the auditor or clerk receives notice from any person interested that he has presented to the court of common pleas, or a judge thereof, a petition to enjoin further proceedings, he shall not report to the council such transcript, map, or plat and petition, until after the final hearing and disposition of the petition so presented to such court or judge.”

The single question presented for decision is as to whether or not the filing of the petition by the plaintiffs with the clerk of the courts is a compliance with Sec. 3553, which in effect provides that notice must be given to the auditor or clerk that a petition for injunction has been “presented to the court of common pleas or a judge thereof” within sixty days from the filing of such transcript, map or plat and petition, in the office of the auditor or clerk. The common pleas court held that the filing of the petition with the clerk of courts was not a compliance with the statute which required the petition to be presented to the common pleas court or a judge thereof. It will be observed that Sec. 3534 provides that the court or judge shall cause the petition tp be filed and docketed in the office of the clerk of the courts. The language quoted from Sees. 3553 and 3534 clearly shows a legislative intent that the petition shall be presented to the court or a judge, and that thereafter the judge or court shall cause the petition to be filed and docketed', and a filing with, the clerk of courts, which would not necessarily bring the petition to the attention of the court or judge at the time of the filing, is not a compliance with the statutes. It is perhaps unnecessary for this court to inquire into the purpose of thus legislating, but it is obvious that a petition, of which notice to the auditor or clerk of its presentation to the court of common pleas or a judge thereof shall operate as an injunction, should not be simply filed with the clerk and allowed to have this effect without first being brought to' the attention of the court or a judge thereof. Furthermore, an intent to have a prompt disposition of the petition is evident, for Sec. 3534 also provides that the court shall, at the same time that it causes the petition to be filed and docketed, fix a time for the hearing of the petition which shall be not less than twenty days from the filing thereof.

This same conclusion was reached by the circuit court in Hamilton county in the case of Ritter v. Falkinburg, 49 Bull. 277.

We think that a reading of these various statutes which are to be construed as though they were one act, as held by the Supreme Court, makes it clear that the action of the court of common pleas was right in striking the petition from the files, and the judgment of that court will, therefore, be affirmed.

In what has been said we are not holding that, if the petition was filed with the clerk of the court but was in fact brought to the attention of the court within the sixty days, that would not be a substantial compliance with the statute.

Richards, J., concurs.

Kinkade, J. (dissenting)

I can not concur in the views entertained by the majority of the court. The question here is whether the filing of the petition with the clerk of the court is a presentation of the petition to the court. No one contends that there is any other question in this case. It seems to me that to hold that the filing of the petition with the clerk of the court is not a presenting of the petition to the court is to write just such a technical opinion as gives rise to much criticism of the courts that their opinions are too often based on bare technicalities. If it should happen that on the last day upon which such a petition was to be presented to the court the judge was absent, or was ill, or had fallen dead with heart disease, or for any other one of many reasons that might be assigned, he could not be met personally and handed the petition, then the party who had the right to present it to the court would lose his right to present it although the office of the clerk of the court was open and the officer there that records all the proceedings of the court and receives all papers filed in court, of every kind, unless this be one that he should not receive.

I think the filing of the petition with the clerk in this case was a full and complete compliance with the requirements of the statute, and that the court was clearly in error in striking it from the files.


author: CHITTENDEN, J.

text:
    ACTION OR SUIT.
    [Hamilton (1st) Court of Appeals,
    January 1916.]
    Richards, Chittenden and Kinkade, JJ., of the sixth district sitting by designation. ,
    Frank L. McCord v. James W. McCord et al.
    Final Determination of Action Puts at Rest ail Matters of Defense.
    Where a party is called upon to make good his cause of action or establish his defense, he must do so by all proper means within his control, and all matters of action and defense coming properly within the scope of the suit or action will be put at rest by the final determination of the action or suit, unless excepted by some provision of law or by the judgment or decree itself.
    [Syllabus by the court.]
    Appeal.

      Frank E. Wood, W. A. Hicks and S. A. Headley, fur plaintiff.

      Bobertson & BucJiwalter, for defendants.
   CHITTENDEN, J.

The plaintiff in the action seeks to establish by parol evidence a trust in certain'real estate that had been deeded by his mother to his father, one of the defendants herein, by a deed absolute. It is claimed that this deed was made upon consideration that the property was to be held by the defendant, James W. McCord, during his lifetime, and to be by him willed to his children and grandchildren, in certain proportions.

One of the defenses interposed is that this action is barred by a former adjudication between the parties. This former suit between the parties is admitted, but it is claimed that it does not amount to a bar to the prosecution of this action. In the former action the plaintiff herein sought to have the same deed that is in question in this action set aside, on the ground that at the time of its execution his mother was mentally incompetent to execute the same, and that its execution was obtained through the undue influence and coercion of the grantee, his father. The result of the former trial was an adjudication by the court that the grantor was of sound mind, that no imposition was practiced upon her, and that the execution of the deed was her free and voluntary act and conveyed to the grantee an estate in fee simple. This judgment was affirmed by the Supreme Court.

Among other averments, the petition contained the allegation that the mother died intestate and seized in fee simple of the property. This was denied by the answer, and the court found, upon all the issues joined, in favor of the defendant. This was a finding in favor of the defendant upon the issue thus raised as to the title of the mother. Manifestly, if the mother was not the owner of the property and the real estate was in fact the property of the defendant, then the conveyance from the wife to her husband was only transferring to him the property that belonged to him. The petition in the former case contained a prayer for all relief that the plaintiff might be entitled to in the premises, and in the journal entry in that case appears the following language: “ It is therefore considered, adjudged and decreed that the petition of the plaintiff be and the same is hereby dismissed at the costs of the plaintiff, and that the plaintiff be, and the same is hereby denied any and all relief, and that the defendants recover from the plaintiff their costs,” etc.

The only evidence presented by the plaintiff in this case is certain admissions made by the defendant in a deposition taken in the former action and certain admissions made by him while testifying as a witness in the former action. There is, therefore, no evidence presented in this case that was not before the court at the former trial.

It is well settled in this state that where a party is called upon to make good his cause of action or establish his defense, he must do so by all proper means within his control, and that all matters of action and defense coming properly within the scope of the suit or action will be put at rest by the final determination of the action or suit, unless excepted by some provision of law. Strangward v. The American Brass Bedstead Company, 82 Ohio St. 121 [91 N. E. 988]; Peterstine v. Thomas, 28 Ohio St. 596; The Covington & Cincinnati Bridge Company v. Sargent, 27 Ohio St. 233; Roby v. Ransberger, 27 Ohio St. 674; Werner v. Cincinnati, 13-23 O. C. C. 475 (3 N. S. 276), affirmed by the Supreme Court without report.

The cases just cited are to the effect that when a matter is finally determined in an action between the same parties, by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might have litigated in the ease. The title to this property was the subject of inquiry in the former action, and it was the duty of the plaintiff to set up in that case every claim he had that in any wise affected the defendant’s title, and if he failed to do so he could not thereafter have the question litigated in a subsequent action. We find that the former adjudication is a bar to the prosecution of this action.

This conclusion makes it unnecessary for us to pass upon the other questions presented in argument.

The decree will be in favor of the defendant, dismissing the petition at plaintiff’s costs.

Richards and Kinkade, JJ., concur.


author: PER CURIAM.

text:
    COURTS — INDUSTRIAL COMMISSIONS.
    [Hamilton (1st) Court of Appeals,
    November 26, 1917.]
    Jones, Gorman and Hamilton, JJ.
    N. B. Maxey v. Industrial Commission of Ohio.
    Industrial Commission Has Continuing Jurisdiction of Matters Before It and Courts Denied Jurisdiction.
    The industrial commission of Ohio has continuing jurisdiction of an application by an injured employe, including an application for further compensation based upon development of injury subsequent to the making of the original allowance by the commission; hence, the common pleas court has no jurisdiction of an action based on a denial of further compensation.

      Allen C. Roudebush and Joel TL. Ward, for plaintiff in error.

      Campbell, Ilickenlooper, JEIauch & Capelle, for defendant in error.
   PER CURIAM.

In this ease the industrial commission found upon the original application and proof of injury that the claimant was entitled under the law to compensation, and it fixed and paid an allowance for the same. A claim for additional compensation was afterwards made- because of a subsequent development — the formation of an abscess — that was claimed to have resulted from the original injury. This claim was denied by the commission which held that the proof was not sufficient to show that the abscess ivas caused by the injury.

The power and jurisdiction of the board, however, is continuing, and it still has power upon a further rehearing to make such modification or change in its rulings as the facts may justify.

The facts in this case bring it directly under the case of Snyder v. State Liability Board of Awards, 94 Ohio St. 342, [114 N. E. 268.] The court of comman pleas therefore had no jurisdiction of the subject of the action, and the case should have been dismissed in that court. Instead of so doing, however, the court directed a verdict in favor of the defendant and judgment was entered thereon. This action was not to the prejudice of the plaintiff in error, and the judgment will therefore be affirmed.


author:
RICHARDS,_J. _
      Kinkade, J. (dissenting).

text:
    EXECUTORS AND ADMINISTRATORS — WILLS.
    [Lucas (6th) Court of Appeals,
    January 15, 1916.]
    Kinkade, Chittenden and Richards, JJ.

      Ohio Savings Bank & Tr. Co. et al. v. Jason D. Clark et al.
    1. Executors May Maintain Actions to Construe Wills Involving Payment of Collateral Inheritance Taxes.
    Executors may maintain an action by virtue of the provisions of Sec. 10857 G. C., to obtain a construction of a will where the estates devised are uncertain, the classes of beneficiaries in doubt, and the duty of the executors to pay a collateral inheritance tax in controversy.
    2. Appeal Lies to Decree in Will Contest as in Chancery.
    An action to construe a will is one in chancery and appeal lies from a decree of the court of common pleas in such case.
    3. Devise After Life Estate to Heirs Per Stirpes Speaks from Death of Testator.
    Jos. L. Wolcott executed a will in 1891, devising all his estate to his widow except a bequest of $5,000. In 1899, he executed a codicil in which by apt words he gave his widow all of his property for the term of her life. The codicil contains in addition, the following provision: “At the death of my said wife all of said property as aforesaid I give and devise absolutely to the heirs of my mother Caroline B. Cromack the same to go to said heirs per stirpes.” The testator died in 1900, andhis mother in 1884. The testator left surviving him, his widow, who elected to take under the will, but no lineal descendant. His mother left surviving her, a brother and sister, both of whom died in 1885, and the descendants of six other brothers and sisters, and also her second husband Joseph C. Cromack, who died before the testator. Held: That the codicil speaks as of the date of testator’s death, and the devise therein to the heirs of his mother means those who were such at his death, and such devise did not lapse nor did the testator die intestate as to any portion of his estate, but his widow takes an estate for her life with remainder to the descendants of his mother’s brothers and sisters per stirpes.
    4. Dividends, Cash or Stock, Pass to Widow as Life Tenant Provided Principal Stock not Depleted.
    Dividends remaining in the hands of the executors, paid to them on stock owned by the testator, pass to his widow, whether paid in cash or stock, provided that the actual value of the stock at the time of testator’s death be not depleted by stock dividends,
    5. Widow Devised Life Estate Entitled to Entire Estate Devised Without Security, no Rights of Remaindermen Being Imperiled.
    It is the duty of the executors to deliver the entire estate to the widow on the settlement of their final accounts, without security from her, in the absence of evidence showing that the rights of the remaindermen will be imperiled thereby.
    [Syllabus by the court.]
    Appeal.

      Tracy, Chapman & Welles, for plaintiffs and defendant, Mary Louise Wolcott.

      Brown, Geddes, Schmettau & Williams; Smith, Baker, Effler & Allen; Brown, Hahn & Sanger; Fritsche, Kruse & Winchester; Geer & Lane; B. W. Kirkley, Pierce J. Phelan, O. B. Snider, A. Van Wagenen) George B. Cole, Kirkbride & McCabe; 1). B. Richards and C. L.. Wilson, for other defendants.

       Motion to certify record overruled, Wolcott v. Bank & Td. Co. 61 Bull. 191.

   RICHARDS,_J. _

_ This action is brought by the executors for the purpose of obtaining the direction and judgment of the court as to the true construction of the will of Joseph L. Wolcott, deceased. There are in the case a very large number of defendants and they include all persons who are, or claim to be, beneficiaries under the will and codicil. On the trial of the action in the court of common pleas a decree was rendered, adjudging that the beneficiaries under the codicil were the brothers and sisters of the mother of the testator, and the descendants of such brothers and sisters. From this decree an appeal was taken by the plaintiffs and by Mary L. Wolcott, the widow. The controlling facts are not in dispute, but before proceeding to the merits of the case, it is proper to dispose of some preliminary questions raised by counsel.

Certain of the defendants contend that the executors are not authorized by law to bring an action for the purpose of obtaining a construction of this will and the codicils thereto, and that the action is prematurely brought. They insist that such action can not be maintained during the lifetime of the widow of Joseph L. Wolcott. The record shows that the debts of the estate have been fully paid and that the executors have on hand and under their control a large estate, consisting of non-ancestral property and aggregating probably more than half a million dollars, and that it is necessary for the court to fix and adjudge the true construction to be placed on this will before the executors can properly conclude the administration of the trust reposed in them and make distribution of the estate, and no sufficient reason is perceived why this adjudication can not be had during the lifetime of the widow. Furthermore, the widow contends that she is entitled to the estate in fee, while other defendants claim interests therein. If her claim prevails, no duty to pay a collateral inheritance tax under Sec. 5331 G. C., is imposed on the executors; while if the claims asserted by other defendants should prevail, then such duty rests on them. We hold that the action is maintainable alike under Sec. 10857 G. C., and under the general principles of equity jurisprudence.

It is further insisted that the action is one which can not be appealed to this court. Long before the passage of the original statute now known as Sec. 10857 G. C., courts of chancery were called on to, and did, adjudicate eases for the construction of wills, and the section cited is only declaratory of that early practice. Indeed, the statute itself provides for the remedy “as fully as formerly was entertained in courts of equity. ” We hold, therefore, that the action is one which may properly be brought into this court by appeal.

We reach, therefore, the merits of the ease and are required to place a construction on the will and codieils left by Joseph L. Wolcott, and to determine who are the beneficiaries thereunder, The will bears date of July 10, 1891, and makes a bequest of five thousand dollars, which is not in disputé, and gives all the remainder of his property, after the payment of his debts, to his widow, Mary. Louise Wolcott, and names her as one of the executors of his will. Qn December 11, 1899, Joseph L. Wolcott added a first codicil to his will, which codicil reads as follows, omitting the execution:

“Whereas I, Joseph L. Wolcott, of Toledo, Ohio, did on the 10th day of July in the year 1891, make my last will and testament as of that day I do hereby declare the following to be a codicil to the same. After the payment of all my just and lawful debts I do hereby give and bequeath to my wife, Marv L. Wolcott, for her use, for and during the term of her natural life, all my property real, personal and mixed of whatsoever character and wheresoever located, it being my intention thereby to insure to her the income of and from my property as aforesaid during her natural life.
“At the death of my said wife all of said property as aforesaid I give and devise absolutely to the heirs of my mother, Caroline B. Cromack, the same to go to said heirs per stirpes.”

On August 11, 1900, he made a second codicil, revoking the previous appointment of executors and appointing the plaintiffs in this action as executors of his last will and testament. The entire controversy in this action centers around the following language contained in the first codicil:

“At the death of my said wife all of said property as aforesaid I give and devise absolutely to the heirs of my mother, Caroline B. Cromack, the same to go to said heirs per stirpes.”

As stated in the brief of counsel for plaintiffs, the precise question involved is, Who are the heirs of Caroline B. Cromack within the meaning of this provision in the first codicil? Before reaching a solution of this question, it is necessary to consider not only the language used by the testator in his will and codicil, but his situation at the time of their execution. The terms of the codicil are such that, before any construction can be given the same, the practical necessity arises of ascertaining such facts as will place the court in the position of the testator.

As has been said, the first codicil was executed on December 11, 1899. The testator, Joseph L. Wolcott, died on December 1, 1900, leaving surviving him his widow, Mary L. Wolcott, but no lineal descendants, he never having had issue bom to him. He did leave, however, surviving him one half-brother and the descendants of other half-brothers and half-sisters, these half-brothers and half-sisters being the children of his father by a former wife. The widow, Mary L. Wolcott, duly elected to take under the will. The facts necessary to put the court in the situation of the testator at the time of the execution of this codicil are as follows:

Caroline B. Cromack, his mother, died in 1884. Her will was duly admitted to probate and in this will she referred to “my adopted daughter Carrie Davis Clark,” and named her as one of her beneficiaries, but there is no evidence that Carrie Davis Clark was ever legally adopted as a daughter of Mrs. Cromack. Joseph L. Wolcott was the only child ever bom to Caroline B. Cromack, and he and his mother’s second husband, Joseph C. Cromack, survived her. Joseph C. Cromack died about May 12, 1900, after the execution of the first codicil but before the testator’s death. Caroline B. Cromack was also survived by a brother and sister, both of whom died in 1885, and also by the lineal descendants of three other brothers and three other sisters. These last named brothers and sisters died prior to her death. While there are a large number of defendants, probably more than one hundred, claiming interests in the estate, they may all be grouped into four classes as is so well and concisely done in the brief of counsel for plaintiffs. These four elasses of claimants, as set forth in that brief, are the following:

a. Descendants of Joseph C. Cromack, surviving husband of Caroline B. Cromack, deceased.
b. Descendants of Carrie Davis Clark, the alleged adopted daughter of Caroline B. Cromack, deceased.
c. Descendants of the brothers and sisters of Caroline B. Cromack, deceased.
d. Descendants of the half-brother and half-sisters of Joseph L. Wolcott.

With these facts established, the court is, in a large measure, able to place itself in the situation of Joseph L. Wolcott when he executed his first codicil on December 11, 1899, and from that vantage point determine the beneficiaries he meant to include when he used in his first codicil the following language:

“At the death of my said wife all of said property as aforesaid I give and devise absolutely to the heirs of my mother, Caroline B. Cromack, the same to go to said heirs per stirpes.”

The most patent fact which at once suggests itself is that he himself was the only heir of his mother, but, of course, it is unthinkable that he meant to will his property to himself under the designation of heir of his mother. Neither the language of the codicil nor the circumstances surrounding the testator point to the conclusion that he meant his estate to go to his step-father, Joseph C. Cromack. If Joseph C. Cromack had been intended, the expression “per stirpes” would not have been used, and the natural method would have been to designate Joseph C. Cromaek by name. Furthermore, the share which Joseph C. Cromaek would take as husband of Caroline B. Cromaek, he would not, at least as to the real estate, take as heir. Clearly we must look elsewhere to ascertain the persons iutended by the testator by the expression “heirs of my mother * * * per stirpes.”

The argument is made, and has much force, that the heirs of his mother were fixed and determined at the date of her death which was in 1884, more than fifteen years before the first codicil was made. The rule is one of the most ancient known to the law, but it is equally well settled that the word “heirs,” when used in wills, is a word which is flexible, and has often been held by the courts to have been used in a sense other than in its strict technical meaning. A good illustration of such use of the word “heirs” may be found in Jones v. Lloyd, 33 Ohio St. 572, but such holdings have been so frequently made that it is unnecessary to cite other cases illustrating the proposition. We have to determine, from the language used by the testator and the circumstances surrounding him, in what sense he used it. He knew that his will would not take effect until his death and that it would speak from a time subsequent to its date. It would be, until his death, ambulatory.

It is clear that when Joseph L. Wolcott referred in his will to the heirs of his mother as the ones who should succeed to his estate, he meant those who were such heirs at the time his will should take effect. He was the one whose estate was being disposed of and that disposition could only become effective at his death. That was the important date he had in mind in making his will, and those who were then the heirs of his mother were to be the recipients of his bounty and should receive his estate, postponing the time of enjoyment thereof for such time as his widow, who was given a life estate, should survive him. This, we think to be the fair intent and meaning of the language he used, under the circumstances and in the situation in which he was placed at the time he signed the first codicil to his will. The result would follow that the remainder of his estate, after the interest given to his widow in this codicil, would pass to and vest in the descendants of the brothers and sisters of his mother, per stirpes. Those persons would be her heirs at the time the will became effective. They would be her next of kin and the descendants of such next of kin.

It may be noted that the first will gave to the widow his entire estate absolutely, excepting a minor bequest. The evident purpose of making the first codicil was to revoke that portion of the will and to give her, in lieu thereof, the estate named in this codicil, and the right was taken from her in a later codicil to be one of the executors of the estate. In the light of these facts, it is apparent that she is not given any greater rights than those specifically provided in the first codicil. The important limitation on her estate, therein mentioned, manifests an intent which to fail to follow would amount to making a will for the testator. In view of the manifest purpose of the testator, on the date of the first codicil, to make a codicil which should dispose of his entire estate, and in view of the fact that his mother had heirs, we can not reach a conclusion, as contended by plaintiffs, that the devises intended for those heirs lapsed, and that the widow would succeed to the estate as his heir. Neither can we find that the codicil is of such doubtful import as to be invalid. On the contrary, a majority of the court are of the opinion that the entire estate which the widow receives under the will is that, and that only, which is specifically provided for her in the language of this first codicil, and that Joseph J. Wolcott did not die intestate as to any portion of his property. We reach this conclusion the more readily in view of the well known presumption against intestacy where a will is executed evidently intending to dispose of the entire estate.

In view of this decision that the widow does not receive the entire estate, it becomes important to decide another question raised on the record. The petition sets out that the testator was the owner at his death of five hundred and one shares of the capital stock of the National Supply Company of the par value of one hundred dollars each, which stock was then of the actual value of two hundred and fifteen dollars per share. On this stock large dividends have been paid since the death of the testator, some of them in cash and some in stock, the dividends aggregating perhaps eighty thousand dollars or more. A portion of this stock was used in the payment of debts of the estate, and the executors are in doubt and ask the opinion of the court as to what disposition to make of certain of these dividends. Under the facts and circumstances existing in this ease, and upon an examination of the authorities cited by counsel, the court holds that the widow is entitled to receive all of the dividends declared and paid, whether in stock or cash, provided that the original actual value of the stock remaining, after such portion as was legitimately used in the payment of debts, shall not be depleted by stock dividends, below the actual value, at the time of the death of the testator, of the stock not used in the payment of debts.

The petition of the executors asks the instructions of the court with regard to the delivery of the estate in their hands. Having determined that the widow is entitled to the estate for her use during the term of her natural life, it being the intention of the testator, according to the language of the codicil, thereby to insure to her the income from the property during her life, we know of no sufficient reason why the executors, upon filing their final accounts and having the same approved, should not turn the entire estate over to her to hold under and pursuant to the right given her by the language of this codicil. The evidence does not disclose danger or insecurity to the remaindermen if this be done without bond. The rules applicable under such circumstances seem to be clearly stated in 16 Cyc. 641, and are, in substance, that, in the absence of a showing of actual danger, an inventory is the only protection to which a remainderman is entitled, and that the tenant for life of personal property is usually entitled to its possession without giving security for the forthcoming of the property at the termination of the life estate. If, however, the widow should so desire, the court will allow the continuance in office of the plaintiffs, as trustees, they being the ones designated in the last codicil of the testator.

A decree may be drawn in accordance with the views expressed in this opinion.

Chittenden, J., concurs.

Kinkade, J. (dissenting).

I can not concur in the views of the majority of the court with respect to the effect of the first codicil, in so far as it makes a disposition of the remainder of the estate over and above the life estate to Mrs. Wolcott. It is an ingenious and helpful aid, in ascertaining the intention of a testator, to first supplement the will and then look for his intention as indicated by the will thus supplemented. It is far easier to find the intention by this method than it is to find authority in the law for pursuing this course. I think the first codicil of 1he will fails, by reason of its uncertainty and for the reason that no one designated in this codicil as taker survived the testator, and he, therefore, died intestate as to this portion of his estate and the same must go to his wife as his sole heir.


author: KUNKLE, J.

text:
    SENTENCE.
    [Darke (2nd) Court of Appeals,
    January 7, 1918.]
    Kunkle, Allread and Ferneding, JJ.
    Percy Witters v. Lynn Browne, Sheriff.
    1. Suspension of Sentence not Effected by Injunction Against Execution by Imprisonment.
    Failure of a probate court to pass upon a motion for new trial does not operate to annul its judgment refusing to enter an order nunc pro tunc for suspension of sentence in a criminal prosecution. Such adjudication cannot be collaterally attacked in an action to enjoin a sheriff from execution of the sentence. If the court refuses to pass on the motion for new trial, the remedy is by writ of mandamus to compel action on the motion.
    2. Delay in Imprisonment to Compel Payment of Fine and Costs Distinguished from Suspension of Sentence for Fixed Term.
    Delay in the enforcement of a sentence for fine and costs is not a bar to an execution issued thereon to enforce the collection of the fine and costs by imprisonment. Pontius, In re, 39 O. C. C. 28, distinguished.
    [Syllabus approved by the court.]
    Error.

      John Maher, for plaintiff in error.

      George F. Crawford, for defendant in error.
   KUNKLE, J.

This action was brought by plaintiff in error to enjoin defendant in error, as sheriff of Darke county, Ohio, from proceeding under an execution issued by the probate court of Darke county in a criminal action wherein plaintiff in error was adjudged to pay a certain fine and costs.

Plaintiff in error claims that the probate court at the time the sentence was imposed, ordered the same suspended but neglected to enter the same of record. It further appears from the petition that a motion to enter such order of suspension nunc pro tunc was overruled and that a motion for a new trial was filed within three days after such refusal and is still pending. A demurrer was filed and sustained to the petition and the plaintiff not desiring to amend, a final judgment was entered dismissing the petition. From said judgment, plaintiff in error prosecutes error to this court. The only question for consideration relates to the sufficiency of the petition.

Two questions were presented: (1) As to the alleged suspension of the sentence. (2) As to the delay in the enforcement of the sentence.

As to the first proposition, it is conceded that an application was made to the probate court to enter such order of suspension nunc pro tunc and that such application was refused. The effect of such refusal was to adjudicate conclusively that no such order of suspension was made. If such adjudication was erroneous, the remedy of plaintiff in error was to prosecute error therefrom.

Such adjudication can not be impeached collaterally. The filing of the motion for a new trial and the. failure of the court tc pass upon the same does not operate to annul the finding a.nd judgment upon the application for a nunc pro tunc order. Plaintiff’s remedy in case the probate court refused to pass upon such month for a new trial was to compel action thereon by a writ of mandamus.

We have carefully examined the authorities presented as to the second proposition and are of opinion, after a careful examination thereof that in Ohio the mere failure to issue an execution upon the judgment in question, under the circumstances set forth in the petition, is not a bar to an execution issued thereon and now in the hands of defendant in error as sheriff.

Considerable stress is laid upon the decision of Judge Houck of the fifth district in Pontius, In re, 39 O. C. C. 28. We have carefully considered this decision and are of opinion that the case at bar is clearly distinguishable from the case cited.

Pontius, In re, supra, involved a sentence of imprisonment for a fixed term and that court merely held that under Sec. 13714 G. C. the trial court could not revoke a suspended sentence and proceed to execute the sentence after the expiration of the longest period for which the defendant might have been sentenced. The case at bar contains no fixed sentence of imprisonment, but merely provides for imprisonment as a means of enforcing the collection of the fine and costs, and there is no special statute limiting the time for executing the sentence under consideration.

The demurrer having been properly sustained, the judgment should be affirmed.

Execution of sentence may be suspended for thirty days if counsel desire to secure the judgment of the Supreme Court upon this ease.

Allread and Ferneding, JJ., concur.


author: HOUCK, J.

text:
    ASSESSMENTS.
    [Licking (5th) Court of Appeals,
    March Term, 1917.]
    Houck and Allread, JJ.
    Judge Allread sitting by designation.
    Isaac N. Wilson et al. v. Newark (City).
    Injunction Against Collection of Assessment for Sewer, Where Constructed to Perform a Double Purpose at Some Time in Future.
    Where a sewer is constructed for both drainage and sanitary purposes, but its use as a sanitary sewer must be postponed, an action lies by an abutting owner for injunction against collection of so much of the assessment as represents the increased cost in adapting the sewer to sanitary purposes until such time as it is open for use for that purpose, if such use is not delayed for an unreasonable period — in the instant case two years.
    [Syllabus by the court.]

      Phil. B. Smythe, for plaintiffs.

      Ralph Norpell, City Sol., and Martin & Martin, for defendants.
    Appeal.
   HOUCK, J.

This is an appeal ease, and was heard to this court upon the evidence. The plaintiffs pray for an injunction perpetually enjoining the defendant from collecting certain assessments levied on the properties of each of the plaintiffs herein by reason of the construction of a certain sewer in the street running along the properties of the plaintiffs.

It is claimed by the plaintiffs that, in the construction of the sewer in question, it was done at a cost in excess of that provided in the plans and specifications, and that thereby the defendant is estopped from collecting said assessments. It is not claimed by counsel for plaintiffs that there was any irregularity in the proceedings of the defendant as to the plans and specifications or construction of said sewer. The evidence in this ease clearly shows that the sewer is not only a drainage sewer, but is a sanitary sewer, and that it was constructed by the defendant with these two objects in view. In other words, the sewer in question is what may be termed a combination sewer, and may be used for drainage, sanitary, and possibly other purposes. We further find from the evidence that the plaintiffs have been and are substantially benefited by the construction of this sewer, if permitted to use it not only for drainage but for sanitary purposes. The evidence clearly establishes the fact that the cost of constructing the sewer in question for drainage purposes would be about 70 per cent of the assessments sought to be levied on the properties of plaintiffs for such construction, and that 30 per cent of said assessments would be for sanitary purposes. We do not think it equitable, as between the parties hereto-, that the plaintiffs should be compelled to pay the entire cost of the sewer in question, or be required to pay the full amount of such assessments, until they are permitted to use it for all of the purposes for which it was constructed.

In view of the facts, as clearly established by the evidence in this case, and the law applicable to those facts, we are of the opinion that a permanent injunction should be allowed as to 30 per cent of the assessments levied upon the properties of each and all of the plaintiffs, and a permanent injunction refused as to 70 per cent of such assessments, and in case defendant furnishes an outlet for sanitary sewer within two years from April 1, 1917, the 30 per cent to become effective, otherwise the injunction as to the 30 per cent to stand. Defendant to pay costs.

Decree and judgment accordingly.

AHread, J., concurs.


author: GRANT, J.

text:
    MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Court of Appeals,
    November 12, 1917.]
    Carpenter, Grant and Leighley, JJ.
    Sebastiano Russo, Admr. v. Cleveland (City).
    Municipal Garbage Collectors not Inerrant Representatives of Government Function.
    The collection of garbage by a municipality is not a function of sovereignty, nor are garbage collectors inerrant representatives of government; hence, in an action against a municipality for damages for death by wrongful act by a garbage collector employed by the municipality, it is error to arrest the case from the jury and render judgment for the municipality as a matter of law.
    [Syllabus approved by the court.]
    Error.

      G. E. Morgan and B. D. Nicola, for plaintiff in error.

      Jas. II. Cassicly, for defendant in error.
   GRANT, J.

The plaintiff— both here and below — brought suit for the death.of h's intestate, caused, as he said, by the wrongfully negligent act and omission of the defendant, the city of Cleveland.

Upon the ease being brought to trial before a jury, it was made to appear that the deceased came to his death from a collision between himself while lawfully on a public street or' way and a wagon engaged at the time in collecting garbage and being operated by, and under control of the servants of the defendant city.

The case was arrested from the jury at the end of the plaintiff’s evidence and a judgment rendered for the defendant, by the court, on the single ground, it is said, that the city’s servants in doing or omitting to do what they did or should have done, whereby the intestate came to his death, were exercising a part of the sovereignty of the state and performing a governmental function, for the untoward result of which the defendant could not in law be held to an account, nor its delinquencies in that respect be challenged or called in question in the courts. And this is the only question presented by the record and argued in the case.

We do not propose to discuss the decisions brought to our attention from courts outside of Ohio, as we do not regard them in point when the facts of each are examined, or applicable in point of law when brought to the test of some obvious principles which we do consider as settled in this state and which we are inclined to allow in determining our conclusion in this case. Nothing could concretely be more at variance with one’s natural notions as to the office and dignity of sovereignty, than the gathering of garbage as it is commonly done on the streets. Nothing could well be further from our innate ideas of the power and dignity of the state that the collectors of garbage, whom we are asked to recognize and protect as legally inerrant as the representatives of the supreme commonwealth and of the one who can in the law’s eye do no wrong. But that is, perhaps, a matter of sentiment; sovereignty in legal contemplation is not to be identified by the smell of the thing, but by what the smell stands for and legally means.

In this case the immediate sovereign, the image and superscription of the state, is the defendant, a municipal corporation, to which, as the judgment we are considering says, has been par-celled the supreme power, to be deemed sacrosanct in this case.

Speaking of that entity, a municipal corporation, in the respect we are now considering, our Supreme Court, in Cincinnati v. Cameron, 33 Ohio St. 336, 367, say:

“In its governmental or public character, it represents the state, while in the oilier it is a mere private corporation. As a political institution, the municipality occupies a different position, and is subject to different liabilities from those which are imposed upon the private corporation. But because the two characters are united in the same legal entity, it does not follow that the shield which cove a the political equally protects the private corporation.
“The power given a city to construct sewers, is not a power given for governmental purposes; nor is it a public municipal duty imposed upon the city, like that of keeping streets in repair, but it is a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city; the corporation and its corporators — its citizens — are alone interested in them; the outside public, as people of the state at large, have no interest in them, as they have in the streets of the city, which are public highways. Detroit v. Corey, 9 Mich. 165 [80 Am. Dec. 78].”

The test thus furnished is easily applied to the ease at bar. The people of the state at large have no interest in the disposal .of garbage in Cleveland. That is for the convenience and health of a part only of the inhabitants even of the city — its householders. No distinction in principle is perceived between sewer service and garbage collection; if there is any, we think the former comes nearer to being a governmental function than the latter, as it answers a wider purpose and is for the advantage of a larger portion of the public. And the distinction becomes more marked, we think, upon the consideration that the municipality derives, or may derive, a revenue from its garbage, in which manifestly the people of Ohio outside of Cleveland can not share.

After some further discussion of what constitutes the dividing line between governmental agencies and municipal enterprises, the case last cited goes on to say:

“With regard to the liability of a municipal corporation for the acts of its officers, the distinction is, between an exercise of those legislative powers which it holds for public purposes, and, as a part of the government of the country, and those private franchises which belong to it as a creature of the law; within the sphere of the former, it enjoys the exemption of government, from responsibility of its own acts, and for the acts of those who are independent corporate officers, deriving their rights and duties from the sovereign power. But in regard to the latter, it is responsible for the acts of those who are in law its agents, though they may not be appointed by itself. Commissioners v. Duckett, 20 Md. 468, 476 [88 Am. Dec. 557].”

Here again we have a standard easily brought to bear upon the present case; the power exercised which carries with it immunity from liability must be one held “for public purposes, and, as a part of the government of the country.” To spread the immunity over all the subordinates of a government and thus to clothe all alike with an exemption which amounts to an attribute of sovereignty, seems to confound all just notions of ■what sovereignty means and to put a tidewaiter on a par with its president, assimilating- the office of the one to that of the other and surrounding each with equal dignity and importance.

If the line between an agency of government, carrying with it exemption from liability for the torts of the agent, and persons whom the law does make responsible for their wrongdoings, can not be drawn higher than a collector of garbage, it is hard to see that.it can be drawn anywhere. AIL city employees will alike be clothed with legal immunity and will be safeguarded in their acts, whatever they may do or omit. This result would push the doctrine to a perilous consequence, as seems to us, but if the court below was right in taking this case from the jury, we see no escape from the view that such a conclusion must be accepted as law.

We think the case already discussed — Cincinnati v. Camarón, supra — points out the rational and true line of cleavage to be observed, namely, that “the public of Ohio,” as people of the state at large, have no interest in the work in which the city of Cleveland was engaged when the plaintiff’s intestate came to his death in consequence of the city’s negligence while so engaged, and that, as a consequence, the city can not escape any just liability thus caused and occasioned.

We reach this conclusion notwithstanding the arguments of counsel to the contrary and the cases marshalled to support them, believing that none of the latter are of authoi’ity compelling a different consequence. Most, if not all, of the cases can, we think, be differentiated from the case in hand, but we shall not take the time to do so; we have, however, examined them with suitable attention.

For error of law in arresting the case from the jury and rendering judgment, thereupon, for the defendant, the court below was in error, as we find. For that error the judgment is reversed and the cause is remanded to that court for further proceedings not at variance with law.


author: HUGHES, J.

text:
    EVIDENCE — TRIAL—-WILLS.
    [Union (3rd) Court of Appeals,
    March 14, 1918.]
    Hughes, Kinder and Crow, JJ.
    Blanch McFarland, et al. v. James E. Clark, et al.
    1. Will Contests not Exempted from Scintilla Rule or Jury From Determining of Evidence.
    In a will contest the jury, and not the trial judge, is required to weigh the evidence and determine whether or not the contestant has offered sufficient evidence to overcome the prima facie case made by evidence of the original will and record of its probate. Hence, evidence having been offered on the part of contestant tending to prove each material fact in issue, of which was the testimony of two physicians, having no personal acquaintance with testator, testifying in answer to hypothetical questions based on facts previously in evidence that testator lacked sufficient mental capacity, it is exercising the province of the jury for the court to ignore the testimony of the physicians and direct a verdict for defendants.
    2. Trial Statement Failing to Include Important Issue not Limitation on Introduction Later.
    A party is not required to state, nor is he limited by what he does state as to what the evidence in the case will be; hence, failing to make reference in a trial statement in a will contest, as to a fact expected to be proved, does not justify the rejection of evidence that is competent, material and relevant.
    3. Hypothetical Question Supported by Evidence. Tending to Prove Facts Enumerated Permissible.
    A hypothetical question should not be excluded because it is not framed upon the best evidence, it is proper and should be permitted to be answered if supported by evidence tending to prove the facts therein enumerated.
    [Syllabus approved by the court.]
    Error.

      Cameron & Cameron, for plaintiffs in error.

      Brucker, Voegle & Henkel and Bohinson & Hoopes, for defendants in error.
   HUGHES, J.

This was an action commonly known as a will contest under the statutes.

The record discloses that there was no' evidence offered by the contestant tending to prove a lack of mental capacity to make the will, on the part of the testator, nor tending to prov' - undue influence, (there being no other issues suggested through out the record), except the evidence of two physicians. These two physicians had no personal acquaintance with the testator but in answer to a hypothetical question based upon facts that had been testified to with more or less clearness by other witnesses, stated that in the opinion of each, the testator had not sufficient mental capacity to make a will.

At the close of the evidence the court, upon the motion of the defendants, directed the jury to return a verdict in favor of the defendants, declaring the paper writing to be the last will and testament of testator.

This was done by the trial court as he then stated, “leaving out the question of the hypothetical question to the two physicians because their answers were based upon statements that were made to them and not upon the facts in the case; they had no personal knowledge or acquaintance with the party, ’ ’ upon the theory that in a will case the trial court is not bound by the scintilla rule, but is required to first weigh the evidence and determine whether or not the contestant has offered sufficient evidence to overcome the prima facie case made by the introduction in evidence of the original will and the record of . its probate, by the defendants.

There is t be found authority for this proposition, such as the case of Gomien v. Weidemier, 39 O. C. C. 1 (27 N. S. 177), and Kammann v. Kammann, 39 O. C. C. 349 (26 N. S. 66), and the eases commented upon in the above named authorities.

In a will contest case the issues are to be first made up and then tried by a juiy and we can see- no reason for making an exception of these cases and permitting the court at any stage of the proceedings, to weigh the evidence. The contestant ha:; as much right to have the issues of fact determined by the jury in these cases as he has in any other ease in which he is entitled to a jury trial.

It is argued that had the verdict of the jury been in favor of the contestant, the court would have been required to set aside the same as against the weight of the evidence, and he therefore was obliged to direct a verdict because of this fact, in conjunction, with, the fact that the defendants started with a prima facie case under the statute, which they claim it was the province of the court to say had not been overcome.

Defendants had, ’tis true, made a prima facie case by the introduction of the will and the probate record, yet it was the right of the contestant to have the facts in the case determined by a jury, and when she had offered evidence tending to prove each material fact involved in the issues, it became just as much a question of fact for the jury in this case as in any other case and there can be no reason why the trial court should be authorized to weigh the evidence to the extent of determining whether or not it was sufficient to overcome this prima facie case, .and if in his opinion it was not, to direct a verdict.

It can as well be said in cases of this kind as in the trial of any other jury ease, quoting Justice ftanney,

“Aside from the fact that such a practice involves an assumption of power by the court which the constitution and the laws have committed to the jury, in the very case supposed, the plaintiff would have good cause to complain of injury. A non-suit puts him out of court, and charges him with the costs-, a new trial leaves him in court, and, ordinarily, exacts the costs from the other side. It would also have deprived the plaintiff of the benefit of the statute limiting the power of the court, in granting new trials, to not more than two to the same party.” Ellis v. Insurance Co. 4 Ohio St. 638, 647 [64 Am. Dec. 610].

If the rule were otherwise, what is there to prevent the court from weighing all the evidence that has been offered in any will case and passing judgment upon it by saying that it is not sufficient to overcome the prima facie case? Why could not the court in any case say that because the witnesses who have testified against the will would profit by setting it aside, are prejudiced and their evidence cannot be considered as overcoming this prima facie case? Or, why could not the court say that those numerous witnesses who are but business acquaintances, who have testified to the mental incapacity of a testator, are not to be considered competent to overcome such prima facie case because they lack an intimate daily acquaintance sufficient’ to pass reliable judgment ?

There is no reason suggesting itself to us why a jury trial in a will case is any other than a common law trial by jury. This we believe is recognized by our Supreme Court in the language it has used in the opinion in Wagner v. Ziegler 44 Ohio St. 59, 67 [4 N. E. 705].

At any rate the statute provides for trial of the issues by a jury, and this means issues of fact, and when it is a question of fact the jury, and not the court, must determine it.

“If this were a case for the jury, under the issues pleaded and the evidence offered, then the plaintiff had the constitutional right to a verdict by the jury.” Nyiry v. Modern Brotherhood, 92 Ohio St. 387, 389 [110 N. E. 943].

Upon a motion to direct a verdict in these eases as in any other case, the court must review the evidence, concede the truth of every fact which is tended to be proven by the evidence,'and when he has found some evidence tending to prove each essential fact, his duty is discharged and it then must be submitted to the jury.

The reasoning of Justice Donahue in Chicago Ornamental Iron Co. v. Rook, 93 Ohio St. 152, 155 [112 N. E. 589], while not a will case, can be applied to this case with much soundness.

The only difference in the burden of proof resting upon a contestant in a will case and the burden resting upon an affirmative side in other civil cases is that, in a will case he must furnish evidence sufficient to preponderate not only against the evidence offered for the will, but also to preponderate against that presumption arising from the order of probate and the will itself. When he has offered evidence tending to meet these requirements, there seems no good reason why he should not be entitled to have his case weighed and considered by the jury.

In the case at bar the trial court left out of consideration, the testimony of the two doctors, yet by moving to direct a verdict, the truth x>f the fact testified to by them is conceded; that is, that the testator had not the testamentary capacity to make a will. This being conceded true, the paper writing could not be the last will and testament.

It was the province of the jury then to weigh this evidence and to determine whether it was of probative value sufficient to overcome the prima facie case and the other evidence in favor of the will. If it had been found sufficient and the court should have then set aside the verdict as against the evidence, it is the right of the contestant to resubmit his case upon the same evidence, and if successful on the second trial, to be held secure against a second setting aside on the same ground. The court therefore was in error in directing a verdict.

The record discloses other errors, in themselves not of sufficient importance to reverse, to which attention is called.

First, the court rejected evidence of intemperance because no reference was made to such proof in the trial statement. This was error. A party is not required to state, nor is he limited by what he does state as to what the evidence will be. Evidence that is competent, material or relevant, should be admitted whether reference is made thereto in the trial statement or not.

Second. The first hypothetical question was not permitted to be answered because it was not framed upon the best evidence, as the court said. This is not a correct rule. A hypothetical question is proper and should be permitted to be answered if it is supported by evidence tending to prove the facts therein enumerated. What may be termed the best evidence in a case is not required to be sifted out and embodied in the question.


text:
    CONTEMPT-ERROR.
    [Knox (5th) Court of Appeals,
    October 25, 1917.]
    Powell, Houck and Shields, JJ.
    Judson Loney et al. v. J. C. Hale.
    1. Judgment of Trial Judge Passing on Sufficiency and Weight of Evidence not Disturbed on Review.
    The judgment of a trial judge who has passed upon the sufficiency and weight of the evidence will not be disturbed, where the evidence is such that different minds might reach different conclusions.

      2. Contempt Proceeding is Quasi-Criminal and Presumption of Innocence Must be Overcome by Affirmative Showing of Guilt.
    A proceeding for contempt is quasi-criminal in its nature with the presumption in favor of the innocence of the defendant, and conviction can be had only on an affirmative showing of guilt.
    [Syllabus by the court.]
    Error.

      F. 0. Levering and &. L. Carr, for plaintiff in error.

      L. C. Stillwell and Greer <& Cromley, for defendant in error.
   HOUCK, J.

Error is here prosecuted in which it is sought to reverse the finding and judgment of Hon. Park B. Blair, judge of the common pleas court of Knox county, Ohio, in his dismissal of contempt proceedings filed by plaintiffs herein against defendant for alleged violation of a judgment heretofore rendered in the common pleas court in which said J. C. Hall was enjoined and restrained from engaging in the hardware business in Danville or Buckeye City, Ohio.

The proceedings in contempt were heard by the trial judge upon the evidence offered, which is now before us in the form of a bill of exceptions. The trial court dismissed the action in contempt and held the accused J. C. Plall guiltless. By this proceeding in error it is sought to reverse the judgment of the court below.

It is claimed by counsel for plaintiffs in error that the defendant violated the injunction heretofore granted by the common pleas court and that he is now engaged in the hardware business. Counsel for defendant in error insist that said Hall is not engaged in the hardware business, but is conducting what is known as a racket store.

The only question to be determined in this case is one of fact, namely: Is J. C. Hall now engaged in the hardware business in the villages of Danville or Buckeye City, Ohio? This question was submitted to the trial judge. It was a question of fact, and he was called upon and did pass upon not only the sufficiency but the weight of the evidence.

The rale of law is well known that a reviewing court will not reverse a judgment on the weight of the evidence unless it manifestly appears that the judgment is against the weight thereof. We have read the testimony of all the witnesses, as embodied in the bill of exceptions, and we find the evidence to be conflicting; different minds might arrive at different conclusions therefrom, and as a matter of fact it took this court some time to be unanimous in its conclusion as to whether or not the defendant had violated the former order and judgment of the common pleas court.

Thus it follows that where different minds might arrive at different conclusions or different results, from the same evidencp and the case having been tried to a trial judge who has the same power, authority and right to determine as to the sufficiency as well as the weight of the evidence as a jury, and having done so, a reviewing court has no authority to reverse such judgment, unless upon the whole record it is clearly manifest that a different judgment should have been rendered — and this we do not find.

We are of the opinion that this being a qtíím'-criminal case the evidence should be clear, positive and convincing that the one charged with contempt is guilty, before a court so finds. We think the rule of evidence in cases such as the one now under review requires stronger proof in order to find one guilty of contempt than simply a preponderance. In fact, in a quasi-criminal proceeding such as the one at bar the presumption is all in favor of the person charged with the offense, namely, in favor of innocence. In such a case it must affirmatively appear in the record that the person so charged with contempt, is guilty.

Applying this rule of law to the facts as established by the evidence in the bill of exceptions, and after a careful examination of the entire record in this ease, we are bound to and do arrive at the conclusion that the judgment of the trial judge in the present case is right and should be affirmed.

Judgment affirmed.

Powell and Shields, JJ., concur.


author: FARR, J.

text:
    MOBS — WORDS AND PHRASES.
    [Mahoning (7th) Court of Appeals,
    September 28, 1917.]
    Pollock, Metcalfe and Parr, JJ.
    Irene Davis, Admx. v. Mahoning Co. (Comrs.)
    "Another Person” as Object of Mob Violence Must be Person Certain and Definite to Create Liability of County for Death or Injury Resulting Therefrom.
    In an action to recover damages against a county under favor of Sec. 6283 G. C. for the death or injury of a person by a mob, it must appear from the evidence that death or the injury was inflicted by the mob while attempting to lynch another person and such person must at the time be the definite object of the mob’s violence. The phrase “another person” can not be construed to mean "no one in -articular” but a person certain and definite.
    [Syllabus by the court.]

      Franklin B. Powers, for plaintiff in error.

      J. P. Huxley, Pros. Atty., and H. H. Hull, Asst Pros. Atty., for defendants in error.
   FARR, J.

This is an error proceeding prosecuted in this court to reverse a judgment of the court of common pleas of this county. The parties sustain the same relation here as in the court below.

On January 18, 1916, the plaintiff in error began an action in the lower court seeking to recover against the county of Ma-honing for the death of her decedent on or about the seventh day of January in said year, 1916, which it is claimed resulted from a bullet wound or injury received on said date, while decedent was in the employ of the Pittsburg & L. E. Ry. and while walking along its tracks adjacent Broad street in the municipality of East Youngstown, this county.

The petition among other things avers that at and immediately prior to the hour of midnight on said date there was a collection of people upon and near to said Broad street, in and near to the business district of said village, assembled for an unlawful purpose and intending to do damage and serious injury to divers persons and pretending to exercise correctional power over divers persons by violence and without authority of law, and that said assemblage of people were intending to and did cause damages to buildings and the contents thereof, within the business district of said village and to do violence to the owners of said buildings, also to the police officers and divers good citizens of said village and to do or cause damage to the buildings, properties and bridge of the Youngstown Sheet & Tube Co. and to exercise correctional power over the servants, agents and employes of said company, and were acting with reckless and lawless disregard for the safety and lawful rights of any and all persons; that her decedent while about the performance of his duties as a car repairer and while walking along the tracks of said railroad company, adjacent said Broad street as aforesaid, suffered a bullet wound by the act or acts of such collection of persons, acting as aforesaid, from which he soon thereafter died and by reason of which plaintiff claims damages against said county of Mahoning in the sum of $5,000.00.

To said petition an answer was filed admitting the immaterial allegations thereof and denying each and every other averment, and charging that decedent’s death was brought about as the direct and proximate result of his own wilful, negligent and criminal conduct, and that decedent took an active part in the criminal and riotous conduct of said collection or assemblage of people and that while so engaged, he was shot and his life thereby taken, and if not so taken, that it was taken at the hands of those who were lawfully attempting to quell said riot and to bring the persons so collected for riotous and criminal purposes, to order and justice.

Trial was had in the court below, in which a verdict was directed for defendants, upon which judgment was entered and from which error is prosecuted in this court. The action below was brought under favor of Secs. 6278 to 6289 G. C. inclusive.

The record discloses that in the evening of said 7th day of January, 1916, a collection of people had assembled in said Broad street of said village of Bast Youngstown and were rioting by looting and burning buildings and discharging firearms promiscuously; there was also rioting and lawlessness in other parts of said village which continued at intervals throughout the night. At about midnight an armed party of some fifteen persons approached Broad street from a westerly direction and they were also discharging firearms somewhat promiscuously. At or near that time the fire by the rioters or mob at Broad street became more rapid, then lessened somewhat. It was about this time that said decedent Davis was walking along said railroad tracks adjacent said Broad street. Three persons, Mike Cushner, ■Joseph Danko and Joseph Cramer were likewise walking along said tracks and about ten feet behind Davis when he suddenly fell to the ground and when they approached and raised him up he said that he was shot. They then placed him aboard an engine which conveyed him to the hospital where he later died. The record does not disclose who fired said shot nor from what direction it came; nor does it disclose that at the time the wound was received that said mob or party approaching from the west and who were also discharging firearms had any particular person or persons in view or as the object of their lawlessness. The record does disclose, however, by the testimony of Mr. Woltz, that near five o’clock in the evening rioters were shooting at the bridge of said Youngstown Sheet & Tube Co. and that men employed by said company were on said bridge at the time. This is practically the only testimony as to any definite object of the mob’s violence.

It is urged, however, that liability attached as against said county by provision of the above Secs. 6278 to 6289 G. C. and especially Sec. 6281, which provides that a person assaulted and lynched by a mob may recover from the county in which such assault is made, etc., and it is conceded that the action below rests largely within the authority vouchsafed ,by Sec. 6283, which reads as follows:

“Section 6283. A person suffering cYAh or injury from a mob attempting to lynch another person shall come within the provisions of this chapter. He or his legal representatives shall have a like right of action as one purposely injured or killed by such mob.”

And it is further urged that in construing the above section it is necessary to read in connection therewith Sec. 6278 G. C. which provides as follows:

“See. 6278. A collection of people assembled for an unlawful purpose and intending to do damage or injury to any one, or pretending to exercise correctional power over other persons by violence and without authority of law, shall be deemed a ‘mob’ for the purpose of this chapter. An act of violence by a mob upon the body of any person shall constitute a ‘lynching’ within the meaning of this chapter.”

The issue raised here is, therefore, can recovery be had against the county for the death of Davis by virtue of the foregoing sections when at the moment the fatal wound was received, the firing by the mob at Broad street as well as by the party approaching from a westerly direction was desultory and without any definite aim or object, so far as the record discloses, and in the absence of any positive testimony as to the source of the shot or the direction from 'whence it came ? Two words are defined in the above Sec. 6278, namely, “mob” and “lynching,” and it was evidently not the legislative intent to permit the common law definitions to control. There is therefore no question in the instant case but that a “mob” had assembled; but was there a “lynching,” was Davis lynched? That is the real issue here. Lynching is defined in said Sec. 6278 as follows: “An act of violence by a mob upon the body of any person shall constitute a ‘lynching’ within the meaning of this chapter.”

Three things are therefore necessary to constitute such lynching, a mob, a person and an act of violence upon the body of that person by such mob, and whenever the act of violence is visited upon the body of any person then it must be said that such mob has a definite fixed purpose as to such person; that is, it purposes to do the violent act and the person upon whom it is visited is the objective of the act. Such is clearly the legislative intent and as further indicated in Sec. 6283 as follows:

“A person suffering death or injury from a mob attempting to lynch another person shall come within the provisions of this chapter.”

An “attempt” is the effort or endeavor to carry into execution a previously conceived plan or purpose; therefore the phrase “another person” can not mean “no one in particular,” or “everybody in general,” but must be the subject of the plan, the object of the purpose, and such was the legislative intent. Said act, though liberal in its terms, was never intended to provide compensation for the indiscriminate, lawless, predatory acts of a riotous mob, generally but not definitely on mischief bent, but to provide a remedy for damages suffered from definite, specific acts and such is the reasonable import of the language used, and easily deducible therefrom; and it is the ordinary and reasonable meaning which must control in its construction. Conrad v. Davies, 38 O. C. C. 491 (14 N. S. 475, 477); Dorgan v. Columbus, 12 Dec. 121, 128; Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 383 [49 N. E. 335].

Attention is called to the case of Caldwell v. Cuyahoga Co. (Comrs.) 62 Ohio St. 318 [57 N. E. 50; 48 L. R. A. 738; 78 Am. St. 718], which it is urged is helpful in the instant case but which is found not well in point, as it determines principally a constitutional question. A very well considered case, however, and one regarded as worthy of notice here is that of Gray v. Gibson, 22 Dec. 326 (12 N. S. 673), the first section of the syllabus of which reads as follows:

“The statutory provision for recovery of damages by persons who have suffered at the hands of a mob is limited to injuries, whether fatal or otherwise, suffered from a mob attempting to lynch another, and does not embrace injuries resulting from violence by a mob having no intent or purpose to lynch. ’ ’

The foregoing is fairly well in point and involves the construction of some of the sections of the General Code involved here.

In the case at bar there is no definite proof of the source from which the fatal shot came or that at the time Davis fell mortally wounded, that the mob had any object or aim except to bum, pillage and shoot aimlessly in its drunken frenzy and for this reason the plaintiff failed to maintain the action.

Therefore, in view of all the foregoing it must be held that the court below properly arrested the case from the consideration of the jury and the judgment is affirmed.

Pollock and Metcalfe, JJ., concur.


author: ALLREAD, J.

text:
    BUILDINGS — PROPERTY.
    [Shelby (2nd) Court of Appeals,
    February 13, 1918.]
    Kunkle, Allread and Ferneding, JJ.
    Henry F. Young et al. v. Ignatius H. Thedieck.
    1. Cornice of Building Extending Beyond Party Wall Violation of Property Rights.
    The construction and maintenance by one lot owner, of a cornice extending beyond the party wall over the lot of an adjoining proprietor without his acquiescence or consent is a violation of the latter’s property rights.
    2. Establishment of Party Wall not Implication of Extension of Property Rights.
    The establishment of a party wall does not by implication give one proprietor the right to extend his structure over the adjoining lot.
    3. Cornice Extension not Injuring Use of Lot Adjoining no Defense.
    The fact that the overhanging cornice is constructed above the present building on the adjoining lot and does not affect the present use thereof is no defense.
    4. Mandatory Injunction Proper Remedy to Prevent Violation of Property Rights.
    Mandatory injunction is an appropriate remedy to enforce the property rights so violated.
    [Syllabus by the court.]
    Appeal.

      D. F. Mills, attorney for plaintiff.

      Hess & Hess, attorneys for defendant.
   ALLREAD, J.

This action was brought to obtain a mandatory injunction to compel the removal, of an overhanging cornice.

The pleadings and agreed statement of facts show that in the construction of a four story building, the defendant extended the cornice some two or three feet over the premises of plaintiff. It appears that the cornice is above the plaintiff’s building and does not interfere with the present use of the plaintiff’s property.

There is a party wall between the buildings of the respective parties which has been extended upward to accommodate and form part of the defendant’s structure.

The question involved is as to the defendant’s right to maintain the overhanging cornice.

We are of opinion that the defendant’s easement in the party wall does not extend beyond the wall itself, and that the construction and maintenance of the cornice extending over plaintiff’s premises is a violation of his property rights.

Harrington v. McCarthy, 169 Mass. 492 [48 N. E. 278] ; Nash v. Kemp, 49 Howard Pr. 523, 12 Hun. 592; Marion v. Johnson, 23 La. Ann. 593.

We have examined the cases cited by counsel for defendant involving windows, chimneys and upward extensions of party walls. In none of those cases do we find any overhanging structures extending beyond the partition wall. We think all these cases may be distinguished upon that ground.

We are also of ‘the opinion that the fact that the cornice does not interfere with plaintiff’s use of their property does not affect the question. The plaintiff’s property right extends upward indefinitely and those rights may be enforced against invasion to the same extent as surface rights.

A mandatory injunction will, therefore, be issued requiring the defendant to remove the cornice and overhanging structure within six months and defendant will be required to pay costs.

Decree accordingly.

Kumkle and Ferneding, JJ., concur.


text:
    WILLS.
    [Franklin (2nd) Court of Appeals,
    January 15, 1918.]
    Kunkle, Allread and Ferneding, JJ.
    Simeon Nash Exr. v. Darien C. Hamilton et al.
    1. Bequest of Certain Designated Bonds Constitutes Demonstrative and not Specific Legacy.
    A bequest of “$2,000.00 of the first mortgage bonds of The Gallipolis Gas & Electric Company” is a demonstrative and not a specific legacy.
    2. Demonstrative Legacy not Adeemed by Being Converted by Testatrix.
    The bonds described having been converted by the testatrix, the legacy is not thereby adeemed but may be satisfied from any property or fund of the estate not specifically devised or bequeathed.
    [Syllabus by the court.]
    Appeal.

      Williams & Nash, for plaintiff.

      C. C. Bibbe, for defendant.
   ALLREAD, J.

This cause involves a construction of the following clause* of the will of Mary Maxon Nash.

“To my sister Darien C. Hamilton, wife of F. ~W. Hamilton, I give and devise the following property:
“ (c) $2,000.00 of the first mortgage bonds of the Gallipolis Gas & Electric Company, said bonds being secured by mortgage upon both the gas and electric plants. ’ ’

At the time of the execution of said will the testatrix owned four first mortgage bonds of the par value of $2,000.00 issued by the Gallipolis Gas & Coke Company which operated a gas and electric plant in said city and which were evidently the bonds contemplated in the provision above quoted.

Subsequent to the making of the will, the testatrix sold two of said bonds for the sum of $1,016.92. The other two bonds were, in the lifetime of said testatrix, liquidated, the testatrix receiving therefor the sum of $950.00.

At the time of the testator’s death she held no bonds in said company.

Counsel for Darien C. Hamilton contends that the bequest under consideration is primarily one of $2,000.00 and that the bonds referred to merely designate the fund from which the bequest is to be raised.

On the other hand, counsel for the executor contends that the primary bequest is of the said bonds and that the $2,000.00 is merely descriptive of the bonds.

If the latter contention prevails then it would follow that the bequest was specific and that the sale of the bonds by the testatrix would have the effect of adeeming or revoking the legacy.

If the former contention is adopted the bequest would become a demonstrative one to be realized first from said bonds and in the absence of such bonds from other funds of the estate not specifically devised.

The respective contentions have been supported by counsel in able and exhaustive briefs in which all the leading authorities have been cited and reviewed.

In proceeding to a consideration of the construction of the clause above quoted, we find that the authorities are practically unanimous that where the terms of a will are ambiguous or doubtful the courts are strongly inclined against a specific legacy and favor a construction which will make the same either general or demonstrative.

The reason for this is apparent when the .nature of a specific devise is considered. The property which is made the subject of a specific devise is often disposed of in the lifetime of the testator and while the proceeds may remain in the testator’s estate, yet such proceeds cannot, for obvious reasons, be made liable to the specific devise. . In many cases, therefore, the specific . devise fails by operation of law, when the testator did not actually intend to adeem or revoke the legacy.

This rule of construction is thus stated by Wood, J., in Gilbreath v. Winter, 10 Ohio 69:

“The distinction which marks the specific from the demonstrative legacy is frequently nice and difficult, but it is the oft . repeated language of the boobs that courts lean against the former, and it is with regret the Chancellor declares he finds the intention of the testator establishes a specific legacy.”

The same rule is thus stated in the case of Kenaday v. Sinnott, 179 U. S. 606.

“4. Certain familiar rules of construction or wills! reiterated; (a) that the intention of the testator must prevail.”
(c) That the courts in general are averse from construing legacies to be specific.

Many other authorities are to the same effect. We, therefore, come to a careful examination of the language employed to determine whether the legacy was clearly intended to be specific.

The case of Rote v. Warner, 9 Circ. Dec. 536 (17 R. 342) is cited. In this case the devise was of $10,000.00 payable out of certain shares of the capital stock of certain corporations and this wag held to be demonstrative.

The case of Ives v. Canby, 48 Fed. 718 is very similar to the case at bar and holds the devise to be demonstrative.

Counsel for the executor insists that the preposition “of” is significant and is consistent only with the theory of a specific bequest of the bonds. "While such construction is possible, yet we have no hesitancy in holding that such construction does not clearly follow.

Under what we consider to be the almost unanimous trend of authority we are bound to hold that the provision above quoted creates a demonstrative legacy in favor of Darien C. Hamilton and that in the absence of the bonds referred to the legatee is entitled to have the same satisfied out of other funds of the estate not specifically devised. Decree accordingly.

Kunkle and Ferneding, JJ., concur.