text:
    INSUFFICIENT SHOWINC TO DEFEAT A WILL.
    Circuit Court of Licking County.
    Frank Wilson et al v. Joseph B. Wilson.
    Decided, March Term, 1909.

      Wills — Want of Mental Capacity Not Shown, When — Testimony in Favor of Contestants Without Value, Where Based on Ideas of the Witnesses as to the Kind of a Will the Testator Should Have Made.

    Want of mental capacity on the part of a testator is not shown by a recital of circumstances and incidents which go no further than to indicate some physical weakness, or failure of memory, or mistake of an unimportant character in connection with his business affairs; nor can an attack on a will be successfully maintained where the witnesses for the contestants seem to have reached the belief that the testator was incompetent to make a will because he did not make the kind of a will which they would have made or which they thought he ought to have made.

      A. A. Stasel and Flory x& Flory, for plaintiff in error.

      Kibler <& Montgomery, contra.
    Voorhees, J.; Taggart, J., and Donahue, J., concur.
   The will of James P. Wilson, the validity of which is the question in controversy in .this action, and under review in these proceedings in error, was made on the 5th day of January, 1900, at his office or place of business at the village of Granville, in the county of Licking, Ohio. The testator died June 7, 1906, being then of the age of about seventy-six years. At the time the will was executed, he was about seventy years old. He died leaving Susan Wilson, his widow, and three children, two sons and a daughter, namely: Joseph B. AVilson, Frank Wilson and Mary Wilson.

The said Joseph B. Wilson contests the will on two grounds, namely:

1st. That by reason of age, disease and other causes, said James P. AYilson was incompetent mentally to do or understand ordinary' business transactions, or to understand or appreciate what he was doing when he signed said will; that he was then of unsound mind and memory; that he had not sufficient mental capacity to know or understand the extent of his estate and the persons who would naturally -be the objects of his bounty.

2d. That said will was procured to be made and executed by the defendant, Frank Wilson,. by persuasion and undue influence exercised by him at and before the time of the making of said will, over and upon the mind and will of said James P. A¥ilson,.by which said James P. Wilson, against his will, was wrongfully induced to favor said Frank Wilson and his children, namely: James Perry Wilson and Eva Wilson (who are made defendants in said action), in the disposition of testator’s property ; that testator’s mind, without any just cause or reason, became set against said contestant, Joseph B. Wilson, causing testator to discriminate against him in making said will.

After the death of said James P. Wilson, said will was admitted, to probate and record by the probate court of said Licking county.

The testator by the will in question gives all his property, real and personal, wherever located, t9 his wife, Susan Wilson, during her natural life. At the death of his wife, he devises and bequeaths to his son, Joseph B. Wilson, the farm on which he, Joseph, then lived, containing 111 acres, more or less. If the said Joseph should die without issue of his body then at his death said farm of 111 acres goes back tb his, testator’s, legal heirs.

To his'daughter, Mary A¥ilson, he gives his' farm situated in Crawford county, Ohio, containing seventjr-seven acres, more or less; also the old Water Cure house and lot 120 and lot 128 situated in the village of Granville, Licking county, Ohio; also all his household goods.

To his son, Frank Wilson, he gives what he designates his home place of fifteen acres, lying just south of Raccoon creek in Granville township, Licking county, Ohio; . also the three lots in the village of Granville, with the appurtenances thereto belonging ;', also. to. his son Frank, the Eggleston farm, containing 126 acres', more or less, said farm lying along the Alexandria road in said county.

To his grandson, James Perry Wilson, he gives $1,000; and to his grand-daughter, Eva Wilson, he gives the property known as the Aiken property, situated in the village of Granville. If any property should he left after paying the demises provided for, the balance to be divided equally betwen his said daughter, Mary, and his son,-Frank.

He named his daughter Mary and his son Frank executors, without bond.

The testator had made a prior will in the year 1898 or 1899. written by J. C. Malone (who was a witness for the contestant 'in this trial), and through or by the disclosure by this witness of the contents of said will written by him, to some of the family, among them, to the contestant Joseph, the old .gentleman after-wards, and in about a year or less from the making of said will, made the will in question securing the services of a different scrivener to write the second or last will. Just what the provisions of the first will were, or wherein it differed, if at all, from the last will, is not disclosed by the record in this ease.

The testator at the time the will in question was made, owned an estate, real and personal, estimated in amount in the neighborhood of $50,000.. He had been a thrifty man in the accumulation of property. He was an uneducated man; in the language of some of the witnesses “a self-made man,” and a shrewed dealer in business matters. He was able to make money at times when others were feeling the effects of general depression and dullness in business affairs. He continued to carry on his business (that of a lumber dealer) 'some four or five years after the making of the will in question, being assisted at times in some of the office work, in the way of keeping his accounts, by his daughter Mary, and his son Frank was in some way connected with the lumber business with his father,- but as a general thing the business w7as managed by the old. gentleman himself-.

. The facts bearing upon the want of testamentary capacity offered- by witnesses- in behalf of the contestant, namely Richards, Partridge, Jones, Agey, Malone, Jos; B. Wilson and Scott Ramey, show -an inherent weakness in their testimony in the .facts and circumstances related and detailed by them, upon which their opinion is based, as to the want of mental capacity of the testator to transact ordinary business. Without undertaking to give in detail the facts, incidents and circumstances related by these several witnesses upon which their opinions are based, it will be sufficient to state that the circumstances and incidents tend to show some physical -weakness, failure of memory, and slight mistakes made by the testator in connection with his business affairs, but when _ tested by reason and the experience of mankind, these circumstances and incidents are such that may occur with persons where there would be no question of their ability to transact ordinary business. Take, for example, the incident where the old gentleman on one occasion had lost his poeketbook, and spent some hours in hunting for it. It was lost in the office. Just how it was lost or what he was doing with his poeketbook when it was misplaced is not disclosed, but it seems that this incident is greatly magnified by the witnesses in giving an account of it.

Take the incident mentioned by Mr. Jones, where he had settled a business matter with the old gentleman, whereby a note was given by Mr. Jones to Mr. Wilson. After the note was executed, the old gentleman requested Mr. Jones to keep it in his. Jones’ safe. It seems that the old gentleman had no safe at his place of business at the lumber yard. If this circumstance or incident has any significance at all, it is simply this, showing the great confidence that Mr. Wilson- had in Mr. Jones, a man with whom he had had numerous dealings. He seems to have had more confidence in the honesty of Mr. Jones than Mr. Jones had himself, because Mr. Jones gives this as an incident or circumstance, in his judgment, showing want of business capacity in Mr. Wilson.

Mr. Richards, the scrivener who wrote the will, gives as the reasons why, in his judgment, the old gentleman was incompetent to do business, that when he (Richards) called at the office at the lumber yard on the morning to write the will, he was there some fifteen minutes and nothing was said by the old gentleman as to the business that he wished Richards to transact. Finally, Richards said to the old gentleman that “Frank (meaning the son of the testator) came to my house and requested me to come down and write your (Mr. Wilson’s) will”; to which the old gentleman answered: “I suppose I will have to.” The witness then said to him: “You don’t have to do anything of the kind,” and the old gentleman then said: “Well, write it”; and witness sat down and wrote the will. The witness testifies that the items and terms of the will were given and dictated to him by the old gentleman; that they were at the office alone; Prank, the son, coming into the office once or twice while the will was being prepared. He said nothing the first time he came in, but the second time he mentioned the Eggleston farm, but what he said about the Eggleston farm witness does not remember. After the will was finished and the witness and Prank were going out of the office up street, Frank said that “Joe’s wife ought not to have that property after his death,” that is) the property on which. Joseph resided. The testimony of this witness seems to be very indefinite in many of the details as to the transactions that occurred at the time the will was written; and in the cross-examination his capricious answers to many of the questions tend largely to weaken his testimony.

When you examine the testimony of the witnesses for the contestant, who have given opinions as to the mental capacity of Mr. Wilson to transact business, it seems to be influenced very largely by their notions as to what kind of a will Mr. Wilson should have made. In other words, because he did not make such a will as they would have made or thought he should make they were led to believe that he was mentally incompetent to transact business. Taking the will itself, its terms and conditions, dictated, as the scrivener says it was, by Mr. Wilson himself without suggestions from him or any one, or the items given, there is nothing inherent in the will or language used that tends in any way to show a want of comprehension of the business in which he was engaged, the extent of his property, or the objects nf his.bounty. The only thing that these witnesses are inclined to complain. about was, that the devise to Joseph was not what they would have made or thought it should be. The theory of the law is that a testator who is competent and free from restraint, has a right to dispose of his estate in any way he may deem best, He is not required to hake an equitable will, and he may, if he chooses, exclude his children, or divide the estate among them unequally. The question in all such cases is: was the will the free act of a competent testator?

Looking to the testimony and evidence offered by the propounders of the will, and the experience that these witnesses had with Mr. Wilson in a business way, and the numerous transactions had with him, covering a long period of time, not only before the making of the will in question, but for some years after its execution, it would seem that the opinions they gave as to the competency of Mr. Wilson are based upon facts and circumstances entitled, in the judgment of this court, to greater weight than the circumstances and facts detailed by the witnesses for the contestant, and without going into detail, the court is of the opinion that, from all the testimony in this ease, the verdict of the jury is so clearly unsupported by the weight of the evidence as to indicate some misapprehension or mistake, or bias on the part of the jury or of willful disregard of the law as given by the court in its charge.

We think it comes within the rule that, where the verdict of a jury is manifestly against the weight of the evidence,'that it is the duty of a reviewing court to set aside the verdict and grant a new trial.

Upon the issue as to undue influence, we think that the weight of the testimony is against this proposition, and there is not that preponderance of evidence upon either issue that would warrant the jury in returning the verdict they did in this case. Therefore, for these reasons, the judgment in this case will be reversed.

•So far as the charge of the court is concerned, and its rulings upon the requests asked by the respective parties, we do no think there was any error committed. Some of the requests that were refused were abstract legal propositions, in the main correct, but there was no special reason why they should be given because they had no application especially to' the facts and circumstances of this case; and, therefore, we think that where the court refused to give the special requests there was no error committed.

In the general charge, the court covers substantially the whole of this ease, and had the jury applied the facts to the law as given by the court, we think that there necessarily would have been a different verdict returned. It seems that the verdict is the result either of a misapprehension of the charge of the court as to the law, or bias >and prejudice in favor of the contestant, and that they must have caught the spirit that was breathed forth in the testimony of several of the witnesses that they thought the old gentleman was not competent to make a will because he made a will different from what they would have made.

The verdict and judgment of the court rendered in this case are reversed, with costs, and the cause remanded to the common pleas court for further proceedings and trial according to law.


source: Caselaw Access Project

author: (Dustin, Allread and Ferneding, JJ.,

license: Public Domain

text:
    CONTROL OF JUDICIAL DISCRETION BY MANDAMUS.
    Circuit Court of Hamilton County.
    The State of Ohio on the Relation of Henry T. Hunt, Prosecuting Attorney of Hamilton County, Ohio, v. William L. Dickson, Judge of the Court of Common Pleas of Hamilton County, Ohio. Petition.
    Decided, June, 1911.

      Procedure in Criminal Cases — Election Between Indictments — Motions to Quash — Discretion of Trial Judge with Reference to — Extent to 'Which It May Be Controlled by Mandamus.

    1. Where a prosecuting attorney has intituted an action in mandamus in the circuit court to compel a common pleas judge to endorse an entry of election as between two indictments, against the same defendant, which entry the judge has refused to endorse for the reiason that he has granted a motibn to quash as to one of the indictments and purposes to make it applicable ' to- both, the question whether the judge erred in his view as to the validity of the indictments is not raised, and the circuit court will look only to the soundness of the procedure, and if it is found not to be in accordance with law determine whether it may be corrected in an action ih mandamus.
    2. When the prosecutor elected upon which indictment he desired to proceed, it was the imperative duty of the trial judge (defendant here) to enter the election upon the minutes oí the court without waiting to pass upon the motion to quash.
    3. But inasmuch as the circuit court could control the discretion of the trial judge no further than to require that the election of the prosecutor be noted, and would be without jurisdiction to require him to desist from making entries on the motions to quash pending a hearing in mandamus, the only relief which can be granted is to require that the election of the prosecutor be noted in order that he may preserve any legal right to a review which he may have ■ in the premises.
    The relator is the duly elected, qualified and acting prosecuting attorney of Hamilton county, Ohio, and is required by law to prosecute on behalf of the state of Ohio all complaints, suits and controversies in which the state is a party within said county.
    Defendant is a duly elected, qualified and acting judge of the Court of Common Pleas of Hamilton County, Ohio, and was on the 4th day of April, 1911, designated and assigned by Hon. Charles J. Hunt, Presiding Judge of the Court of Common Pleas of Hamilton County, Ohio, under the compulsion of a writ of mandamus issued against him by this court, to hear the causes of the State of Ohio v. George B. Cox, then pending in said court-of common pleas, and being indictments for perjury.
    On the 10th day of April, 1911, there were pending against said George B. Cox in said court two indictments for the same offense, perjury, to-wit, the indictment in case No. 16408, and the indictment in case No. 16466, as known and numbered on the docket of said court, and on said 10th day of April, 1911, defendant by his counsel filed in each of said causes, to-wit, No. 16408 and No. 16466, a motion to require the prosecuting attorney to elect upon which of said indictments he would proceed.
    On the 29th day of April, 1911, said Henry T. Hunt, as prosecuting attorney of Hamilton county, Ohio, presented to said William L. Dickson, as judge aforesaid, in each of said causes, to-wit, No. 16408 and No. 16466, an entry of election by which said entries he elected, in accordance with the statute in such case made and provided, to proceed against said' defendant, George B. Cox, on the indictment in case No. 16408, copies of which said entries together with orders requiring said election to be made are hereto attached, and requested said defendant, William L. Dickson, as judge as aforesaid, to order said entries of election to be made and entered in each of such eases, to-wit, No. 16408 and No. 16466, which said William L. Dickson, as judge aforesaid, then declined and refused to do and still declines and refuses to do.
    Wherefore -relator prays that a writ of mandamus issue commanding said William L. Dickson, as judge of the court of common pleas, to order said entries of election by said relator to be made and entered in said causes, to-wit, No. 16408 and No. Í6466 on the docket of the Court of Common Pleas of Hamilton County, Ohio, said causes being entitled “State of Ohio v. George B. Cox,” and being indictments for perjury, and that said William L. Dickson be ordered to refrain from taking any other steps or making any other orders or entries in said cause No. 16466.
    Entries of Election.
    “Now comes Henry T. Hunt, Prosecuting Attorney of Hamilton County, Ohio, in accordance with the former order of the court and the statute in such ease made and -provided, and elects to proceed to trial against this defendant upon-the indictment filed in this case, to-wit, No. 16408, State of Ohio vs George B. Cox, indictment for perjury.”
    ‘ ‘ Now comes Henry T. Hunt, Prosecuting Attorney of Hamilton County, Ohio, in accordance with the former order of the court and the statute in such case made and provided, and elects to proceed to trial against this defendant upon the indictment filed in case No. 16408, State of Ohio vs George B. Cox, indictment for perjury.”
    Order For Election Between Two Indictments.
    It appearing to the court, on the motion of defendant, that the prosecuting attorney be ordered to elect upon which of two indictments he will proceed to trial, that there are pending against this defendant two indictments for the same crime, to-wit, that in case No. 16408, State of Ohio vs George B. Cox, indictment for perjury, and that in case No. 16466, State of Ohio vs George B. Cox, indictment for perjury, it is ordered that the prosecuting attorney elect upon which he will proceed to trial.

      Orders For Election Between Two Indictments.
    It appearing to the court, on the motion of defendant, that the prosecuting attorney be ordered to elect upon which of two indictments he will proceed to trial, that there are pending against this defendant two indictments for the same crime, to-wit, that in case No. 16408, State of Ohio vs George B. Cox, indictment for perjury, and that in case No. 16466, State of Ohio vs George B. Cox, indictment for perjury, it is ordered that the prosecuting attorney elect upon which he will proceed to trial.
   By the Court

(Dustin, Allread and Ferneding, JJ.,

of the Second Circuit, sitting in place of the Judges of the First Circuit).

It is conceded that the action of the defendant as judge of the' common pleas court in quashing the indictments hereinafter referred to, is not before us for consideration on its merits, viz., as to whether said judge erred in his views of the law with reference to the validity of said indictments.

We áre called upon merely to determine the soundness of his procedure; and, if not in accordance with law, whether, in an action in mandamus, we may correct it.

The proceedings involved are as follows: two indictments were brought to the court’s attention, No. 16408 and No. 16466, each charging the crime of perjury against George B. Cox. They are identical, except that in the second the word “lawfully” is introduced in a certain place before the word “sworn.” It is conceded that both indictments charge the same criminal act.

With reference to these indictments, defendant Cox first filed a motion to require the prosecutor to elect upon which one he would proceed.

Without waiting for action upon that motion the defendant filed motions to quash both indictments. Subsequently, and before -action by the court upon the motions to quash, the prosecutor himself elected to proceed upon indictment No. 16408, and asked the court to note this election of record. Without taking any action upon the prosecutor’s election, and his demand for an order with reference thereto, the court proceeded to pass " upon the motions to quash, sustaining the same, in a written decision filed with the clerk. A motion for a rehearing was filed in each case, but neither one of them has yet been formally disposed of.

On the same day, and before any entry of the court’s decision was made in the journal, this action was brought to compel the defendant to enter upon the minutes.of the common pleas court the election of the prosecutor to proceed upon indictment No. 16408.

Responding to the prayer of the petition (which contained no mention of the action of defendant upon the motions to quash), the circuit court issued an alternative writ .of mandamus requiring the defendant to enter the “election” referred to, or show cause why he should not do so, on a day fixed by the court; and, meantime, ordered him “to refrain from taking any other steps, or making any other orders or entries in case No. 16466.”

After conferences between counsel on both sides and the judge, with reference to the form of journal entries to'be made concerning the action of the court on the motions to quash, without reaching an agreement, entries in both cases were finally recorded by the clerk in the absence and without the consent of the prosecutor, and without indorsement by the judge, upon the theory that it was the clerk’s duty to enter up the judgments of the court; the judge, by refusing indorsement, seeming to act in obedience to the command of the circuit court forbidding him to make orders of any kind in reference to indictment No'. 16466.

Upon discovery of the entries made by the clerk, the prosecutor filed motions to expunge the same from the record.

Upon the above record and findings of facts, we have reached the following conclusions:

First. The majority .of the court are of the opinion that the prosecutor having elected to proceed under indictment No. 16408 (in accordance with 'Section 13578 of the statutes), it then became the imperative duty of the defendant judge to ordef such election entered upon the journal, without waiting to pass upon the motions to quash.

(The minority member of the court is of the opinion that Judge Dickson exercised a judicial discretion in passing first upon the motions to quash, rather than the prosecutor’s motion to enter an election; the former being first in order and vital to the case; and the sustaining .of which would render an .election unnecessary.)

Second. We are unanimously of the opinion that the circuit court was without authority (in mandamus) to direct the common pleas judge “to refrain from taking any other steps or making any other orders or entries in case No. 16466.” That was an attempt to control his judicial discretion. The authority of the circuit court to direct the action of the common pleas in the matter in controversy is, under the most favorable view, limited to the requirement of noting an election.

Third. These views make it unnecessary to pass upon the questions as to when the action of the court on the motions to quash became effective, and as to the validity of the record made therein by the clerk; for, even if the judgment of the court be not yet effective (as the prosecutor claims), it may be made so at any instant.

It therefore appears that any action of this court will probably be wholly ineffective to keep alive either of said indictments; but entertaining the view (as the majority of the court do) that the common pleas judge should have immediately ordered the entry of election, pursuant to the request of the prosecutor, the writ prayed for is granted to that extent, in order to enable the prosecutor to save any legal rights of review he may have in the premises. Exceptions may be noted.

Judgment Allowing Peremptory Writ.

This cause came on to be heard upon the demurrer of the defendant to the reply and was argued by counsel; on consideration whereof the court overruled said demurrer; to which defendant excepted. And thereupon the cause coming on to be heard tipon the petition, the answer, the reply and the evidence and being argued by counsel, the court find upon the issue- joined for the relator and that he is entitled to a peremptory writ of mandamus herein.

It is therefore ordered, adjudged and decreed that a peremptory writ of mandamus issue against the said William L. Dickson, Judge of the Court of Common Pleas of Hamilton County, Ohio, commanding him to make the following entry on the journal of said court as of April 29, 1911, in said case No. 16408, to-wit: ‘1 Now comes Henry T. Hunt, Prosecuting Attorney of Hamilton County, Ohio, in accordance with Section 13578 of the General Code, and elects to proceed to trial against the defendant upon the indictment filed in this case, to-wit, No. 16408, State of Ohio vs George B. Cox, indictment for perjury,” and to make the following entry on the journal of said court as of April 29,1911, in said ease No. 16466, to-wit: “Now comes Henry T. Hunt, Prosecuting Attorney of Hamilton County, Ohio, in accordance with Section 13578 of the General Code, and elects to 'proceed to trial against the defendant upon the indictment filed in ease No. 16408, State of Ohio vs George B. Cox, indictment for perjury.”

The court finds that the order entered herein on May 22, 1911, in so far as it directed the defendant to refrain from tailing any other steps or making any other orders or entries in said case No. 16466 was without authority of law and the defendant is hereby relieved from compliance therewith. Said writ of mandamus shall issue without penalty. To all of which counsel for the defendant excepts.


author: (Taggart, Donahue and Voorhees, JJ.)

text:
    CONSTRUCTION OF THE STATUTE RELATING TO SODOMY.
    Circuit Court of Richland County.
    Dan Franklin v. State of Ohio.
    Decided, September 9, 1910.

      Criminal Law — Prosecution for Sodomy — Construction of the Statutory Phrase “Any Opening of the Body" — Section 18048.

    The word body as used in Section 13043, General Code, is not restricted in meaning to the human trunk excluding the head and limbs, but is synonymous with the words “person” or “human being.”

      Van C. Cook and C. L. McClellan, for plaintiff in error.

      Jas TV Galbreath, Prosecuting Attorney, contra.
   By the Court

(Taggart, Donahue and Voorhees, JJ.)

The question in this case arises upon the construction which the court of common pleas gave to Section 7020-1 of the Revised Statutes of Ohio (General Code, 13043), or more particularly to that part of the section wherein the court instructed the jury as to the meaning of the -word “body.” The court, in its instruction to the jury, defined the word “body” as synonomous with “person” or “human being.” If this was a correct construction, then the verdict and judgment was right.

It is contended by plaintiff in error that that the true construction to be given to this section of the statute, and to' this portion thereof, is that the word “body” is to be construed as the tnma.11 trunk excluding the head and limbs. If that is the true construction of this section of the statute, then the verdict and judgment was not sustained by the evidence -and the instruction of the trial court was erroneous and prejudicial.

At common law, the crime of sodomy would not have been established by the proof in this case, but this crime was not recognized as a crime in the state of Ohio until the enactment of this section of the statute, and we think the manifest purpose and object of this section of the statute was to punish this character of unnatural crimes.

The contention, of counsel for plaintiff in error that criminal statutes should receive strict construction and -be limited to the express terms of the statute is undoubtedly correct, and the courts have uniformly so held as a.safeguard to the rights of the citizen, but our Supreme Court, in a recent decision in the case of Conrad, alias Castor, v. State of Ohio, 75 O. S., 52, lays down this rule:

“The rule as to strict construction of penal statutes does noc require the courts to -go to the extent of defeating the purpose or the statute by a severely technical application of the rule.”

As we have said, we think the purpose of the enactment'of this statute was to punish this unnatural crime, and approved lexicographers define “body” as a “person,” a “human being,” and with such a construction as this, and the manifest purpose of the Legislature in enacting the law, we are not inclined to say that- the construction the court of common pleas placed upon this section of the statute was wrong, nor to adopt such .a severe technical construction as would defeat the manifest purpose of the Legislature in its enactment.

Finding nO error in this record to the prejudice of the plaintiff in error, the judgment of the court of common pleas is affirmed with costs and remanded for execution.

Exceptions of plaintiff in error noted.


text:
    AS TO UNDUE INFLUENCE OVER. A TESTATOR..
    Circuit Court of Hamilton County.
    Russel M. Wilder v. Frank H. Taylor et al.

    Decided, January 21, 1911.

      Wills — Contest of, for Undue Influence — Character of Influence or How Acquired Immaterial, When — Effect of Request Made by Deceased Husband of. Testatrix as to Disposition of Property to be Made in Her Will — Presumption of Validity Arising from Probate.

    ■Where a woman of fine character and delicate sensibilities executes a will, after long deliberation and the full knowledge of her children, • in which contrary to her own strong desire to give the property received by her from her deceased husband to her children, she disposes of the property in accordance with a written request re- • ceived from her husband, the influence so operating upon her will not be treated, in an action brought by a grandchild to set the will aside, as an undue or improper influence.

      Joseph W. O’Hara, for plaintiff in error.

      Robert Ramsey and Joseph Wilby, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.

       Affirming Wilder v. Taylor et al, 10 N.P.(N.S.), 209.

   As it is the policy of the law to secure to everyone the right to dispose of his property in accordance with his individua] will, that influence alone is illegal which places the freedom of a testator’s will under' some kind of restraint. If this be so, it follows that it matters not ivhat may be the origin or character of any influence operating upon a testator, if it does not place him under any restraint. It would seem to follow, also, that it would be equally immaterial how an individual may have acquired an influence over a testator, unless such influence is exerted in a manner that tends to restrain a free exercise of his will in the disposition of his property. Monroe v. Barclay, 17 O. S., 302.

A will that is invalid by reason of being made under restraint, lacks what has been called the essence of the act, '* ‘ consent. ’ ’

Our statute provides “that the order of probate shall be prima facie evidence of the true attestation, execution and validity of the will or codicil.”

At the outset, therefore, it is incumbent upon the contestant to adduce evidence that outweighs this presumption before the defendant is called upon to present evidence on his own behalf to sustain the will. Hall v. Hall, 78 O. S., 415.

What have we in the case at bar ?

The evidence clearly shows that the testatrix was a woman of strong character, highly intelligent .and of very keen sensibilities. In making her will she conformed to the wishes of her deceased husband as expressed in a letter addressed to and found by her after his death. She also had the advice of her son in whom she had every confidence. -She deliberated, counseled and advised concerning the making of her will for several years before its execution; and after its execution permitted it to remain as executed until her death, which was some years later.

There is no evidence that in any way tends to show that the will as executed by her was made under any restraint, or that it lacked the essence of the act ‘ ‘ consent. ’ ’ Indeed, she distinctly says in one of her letters to her son, dated November 23, 1910. that she is “glad it is finally done with, for I very much fear if I were making it now I should at least do just what I did, unwillingly,” which seems to indicate that she executed her will “willingly, ” and was satisfied with it.

She also has in her will the solemn declaration that the bequests in item No. T“are made with the knowledge of my children and in accordance with my .husband’s desire that a portion of my estate should be so divided. ’ ’

Under the evidence, we firmly believe the testatrix intended to make, and willingly executed the will in question; that instead o E being under any restraint she acted freely, consistently and honestly. She did the most -natural thing under the circumstances.

The evidence adduced at the trial not only does not overcome the presumption as to the validity of the will, but strengthens it to such a degree of certainty, that there is but one conclusion reached, to-wit, that the will in question is the will of the testatrix.

• There was no error in directing a verdict sustaining the same and the judgment is affirmed.


text:
    CONTRIBUTING TOWARDS DELINQUENCY OF A MINOR..
    Circuit Court of Montgomery County.
    Christina Smith v. State of Ohio.
    Decided, December 23, 1910.

      Delinquency of Minors — Prosecution for Contributing Toward — Competency of Testimony as to Reputation of Rouse Visited — Proprietor of Liable for Penalty Although Acting Through a> Subordinate-Error — Charge of Court.

    1. Where á person is charged under 1654, General Code, with contributing to the delinquency of a minor under seventeen years of age, by renting a room to her for the purpose of.illicit intercourse, and the testimony shows that the minor went there for that purpose, it is not error to permit testimony o be given as to the reputation of the house in which such room is located.
    2. Where the charge of the court, taken in its entirety, is such that it is evident that the jury understood it in a mannér so as to correctly apply the law, it will not be held erroneous even though it contains some statements that are not strictly clear or proper.
    3. A person owning and conducting a house of ill-repute is guilty of contributing to the delinquency of a minor under seventeen years of age, where it is shown that such minor was admitted by a person apparently acting as a servant or employe and making' no inquiry as to the age of the minor.
    4. Where a person owns and conducts a house of ill-repue, the duty is imposed on her to know that those whom she permits in her house and to act apparently as her servants, shall obey the law, and in case they do not she as principal and proprietor of the house in which the delinquency occurs is liable to pay the penalty of the statute.

      Nevin & Kalbus, for plaintiff in error.

      Carl W. LcnZ) contra.
    Rocked, J. (orally); Dustin, J., and Addread, J., concur.
   The plaintiff in error was tried in the juvenile court (1639 to 1683, General Code), the affidavit charging the offense being as follows:

“Before me, Roland W. Baggott, judge and ex-officio clerk of the probate court in and for said county, personally came Carl W. Lenz, who, being duly sworn according to law, deposes and says, that on- or about the 30th day of April, 1910, at the county of Montgomery aforesaid, one Christina Smith then and there being, did aid, abet, cause, encourage and contribute toward the delinquency of Madeline Shultz and Marjorie Spear then -and there minors under the age of seventeen years, to-wit, of the age .of sixteen years, in this, to-wit: that she the said Christina Smith did on or about April 30th, 1910, rent to the said Madeline Shultz.-and Marjorie Spear and Edward Grimes and John Young, a room for the purpose of illicit intercourse and in divers other ways and times, she the said Christina Smith did willfully and unlawfully contribute toward the delinquency of the said minors, Madeline Shultz and Marjorie Spear, she the said Christina Smith well knowing the said Madeline Shultz and Marjorie Spear to be such minors contrary to the statute in such case made.and provided.” # *

The case was submitted to a jury and the jury returned a verdict for the state; a motion was filed to set aside the said verdict and the same was overruled; the plaintiff in error.then filed her petition in this court alleging the usual grounds of error, the verdict not supported by sufficient evidence, contrary to law and for error occurring, in the trial of the case. One of the principal contentions of error was in reference to the admission of testimony introduced establishing the reputation of this house and of the place where it was charged that these persons went upon that occasion. There are cases to be found upon both sides óf ’ this proposition, but we think that the authorities support the .contention principally that such testimony may be introduced. Wigmore on Evidence, Section 78, says:

“ If it distinctly appears in the statute that thé repute of the house is the essential criminal fact, so that merely to keep a house of that reputation is the offense, then.the.reputation is a fact in issue, and the reputation may be shown, irrespective of the actual character or use of the house.”

Now, I might call attention to the statute (1644, General Code) in this respect, charging what would constitute a delinquency— one of the phrases being as follows: “or who knowingly'visits or enters a house of ill-repute. ’ ’ Ill-répute of itself means bad reputation and therefore to enter a house of that kind it'becomes one-of-the elements of the crime. In another place Wigmore lias this statement, Section, 204: ' - •

“It has already been seen {ante, par. '78) that, apart'‘from statutes constituting the repute of the house as the sole element of -the crime of professional pandering, the character or use' of the house and the character or occupation of the inmates may come into issue. Two questions having a bearing here are thus presented: -(1) May particular instances of prostitution in the house be offered, as showing its habitual use or character? (-2) May particular acts of prostitution by the inmates be qffered, as showing their occupation or character as prostitutes? "Both these questions should be answered in the affirmative, for the same reasons as in the preceding class of cases. ’ ’

I might say further that in this case the evidence unquestionably shows that these girls had been in this house before and went there for the purpose of prostitution. ,So it seems there is no doubt of that question being proved and that there :was no error in the admission of the testimony as to reputation. -!

Another matter relied upon in error is the charge of the court. To be properly 'understood it is necessary to give it in its entirety :

“Before yoii enter upon your duties it is incumbent upon the Court to charge you upon the law that is considered applicable to the case; such is the court’s duty and it is your duty to act in accordance therewith. You, however, are the sole judges of the facts 'and you are not to be guided by anything counsel might say to you, or that the court might say to you.
“This is a case wherein the defendant, Christina Smith, is charged with aiding, abetting, causing, encouraging and.' contributing towards the delinquency of one Madeline Shultz,' a minor under the age of seventeen years. To this charge the ."defendant has entered a plea of not guilty, which puts the matter in issue before you.”

.. Then the charge quotes the sections of the. statutes, and continues: ... .. -- -

.You.are. not interested with the amount.of the fineyihht you have nothing to doiwith; but whoever aids, abets, entices, encourages or contributes towards the delinquency of a minor, and then provides what the penalty shall be,
■ “You are to find in this ease that on or about the 30th day of April, 1910, that Christina Smith did aid, abet, cause, encourage towards the delinquency of Madeline Shultz; you are also to find that beyond a reasonable doubt.
“You are to'find beyond a reasonable doubt that on the 30th day of April, 1910, that Madeline Shultz was then a minor under the age of seventeen years. This as I say, you are to find beyond a reasonable doubt, and that is a doubt that may, or rather an honest uncertainty that may exist in the mind of a cafidid impartial juror having a full and careful consideration of all the' testimony,' having the sole desire to ascertain the truth, not a mere speculative doubt voluntarily excited in your mind to avoid the rendition of disagreeable verdict.
“You are to find, of course, that this offense was committed in Montgomery county, state of Ohio.
“There has been some testimony introduced in this case to show the reputation of Madeline Shultz for chastity before April 30th..,' The testimony might indicate that that reputation for chastity before that time was bad, and that the reputation of Marjorie Spear and Marie Shultz was bad. With that you are solely concerned as to their right to be believed. Their veracity, their credibility, whether or not they were good girls in nowise concerns you.
“You must find that when you find that they are guilty or when you find that this defendant is guilty of an offense, that Madeline Shultz was under the age of seventeen years on April 30th;' further than that you have nothing to do with her reputation.
' “And I also charge you as a matter of law if you find beyond a reasonable- doubt that Madaline Shultz was under the age of seventeen years on April -30th, 1910; that she in company with anyone went to the house of Christina Smith on or about the date named in the affidavit and you find that the house conducted by Christina Smith was one of assignation, and a place where persons of opposite sex met for the purpose of illicit intercourse, in determining the guilt or innocence of this defendant, it is not necessary that said Christina Smith had actual knowledge of the presence of said Madeline Shultz. As I charge you, and as I be-; lieve the. law views it, it is her business to know. She is to satisfy herself and if you find all these things to be true beyond a reasonable doubt, your .duty would be to return a verdict of guilty. -
“If you do not so find beyond a reasonable doubt it will b° your duty to return a verdict of not guilty.”

The objection made to this charge is that the court in effect told the jury that they must find certain things by not putting it in the alternative, but we think that the jury was not misled by this charge; that they understood fairly well from it that they must find all these things, as stated in the conclusion of the charge, these things, beyond a reasonable doubt. It is true the charge might have been better upon that question and ought, perhaps, to have been stated in the lalternative, but trial courts sometimes inadvertently with the numerous matters that arise in the trial of a case do not state all things as plainly as they should be. "We think, however, the jury was not misled in this charge that they knew what they were to find and how they were to come to that conclusion — they must find all .these things beyond a reasonable doubt.

Another question raised is whether the verdict is sustained by the testimony or the weight of the evidence. There is no direct testimony offered in this ease that Christina Smith was actually present in this house when these girls were there, or that she actually did know that they were there at the time alleged, and it is argued that in a charge of this kind she could not be convicted under the statutes unless it be shown that she had knowledge that these people were there. The testimony shows conclusively . that Madam Smith lived there — a number of persons testified to that fact; had for twenty-five years one person testified — and these people, John Young and Grimes, the young men who went with these girls, had been in this house before for the express purpose of assignation. Marjorie Spear had been in this house before for that purpose; and when they were there before they -saw Madam Smith in charge. Now, then, when these young people met at Lafayette Hall for the 'purpose, for the express purpose of going to this place for assignation, they went there because they knew or testified that they knew, that it was a place of that-character. When they went there the person that let them in was a maid, it was not Madam Smith, because they knew Madam Smith; it -was some one apparently in charge of the house; the maid, a person who let them in the door, assigned' the1 rooms to them and came afterwards to collect the toll. So it seems that they were justified iu believing that this person was the maid of Madam Smith and that Madam Smith was still the proprietor. However, as to the testimony of Madam Smith being present at this time, we "have the testimony' of John Young, one of the parties, who.says that he saw her in the morning. These people stayed there all night and left next day about ten or eleven o ’clock. He says he saw her in the morning; he personally knew who she was. Marjorie Spear saw her in the morning; she knew her because she had been there before. During the time that they were there some one called up from down stairs telling them that they should not make so much noise. This wasn’t the maid, as they all testify. So we think that .the testimony would support the finding of the jury that she really was there, and a maid in her employ who was in charge. The maid -didn’t ask the girls their age; no inquiry was made upon that question there or at a previous time they were there. There is a line of cases in Ohio which seen to be proper to be followed in cases of this kind. In the “Sale of oleomargarine at retail,” a-case reported in 4 C.C.(N.S.), 193, affirmed without opinion, 69 O. S., 570, Williams v. State, in the syllabus it is said:

•. “1. Where an affidavit charges one with unlawfully selling oleomargarine, and the evidence shows that the sale was made by an employe who was authorized to sell the article, this is not a variance. It was not necessary to -allege that the sale was made by an agent or employe. In misdemeanors all are principals. . . ’
“2. (In part) : Where the oleomargarine was sold by a clerk in the store of the accused, who was engaged in the business of selling oleomargarine to the public, with other merchandise, and who authorized its sale by his clerks, in the ordinary course of business, it -is no defense that he had instructed such clerk and all of his clerks in the store not to sell oleomargarine, except under its true name. ” * * *
“3. One who engages in the business of selling oleomargarine to the public and permits and authorizes its sale by his clerks or employes, is bound to see that the law regulating its sale is' complied with, and if it is violated by such employes or clerks,, the employer is liable under the statute; ’ ’

In the case at bar, at least, the state made out a prima facie cáse; when it showed that these persons went there, and some person apparently in authority permitted them to enter the house. If this person .admitting them was not a person in authority or there was' a defense that Madam Smith did not know or had no opportunity of knowing_ the age of this child, she could have made a defense of that character. The opinion in the last quoted case is quite lengthy. Several intoxicating liquor cases are cited in support, one from Wisconsin: ‘ ‘ The sale of intoxicating liquors to a minor is an offense under Section 1, Chapter 128, though the vendor does .not know that the purchaser is a minor.” And then there is cited the ease in 54 Ohio State, State v. Kelley: ' ,

“An affidavit to charge a violation of the act of March 20, 1884, Section 8805, ‘to provide against the adulteration of food and drugs’ need not charge that an adulterated article of food is sold to be used as human food.
“In a prosecution under said act, it is not a defense that the accused is ignorant of the adulteration of the article which he sells or offers for sale.”

At the conclusion of Williams v. State, (supra), this language occurs which we think is applicable to the case at bar:

“We think in holding as we do, we are following the principles and spirit of the case in the 54th Ohio St. In the absence of a decision directly in point, we are of the "opinion it ought to be the law, and we hold it to be the law, that where one engages in a business, of this kind, he does it at his peril, and that the duty is imposed upon him to know that those whom he employs to sell this article to the public obey the law in the manner of selling it, and in case they do not, that he, as the principal and proprietor of the establishment, is liable to pay the penalty assessed by the statute. We feel that.any other holding would practically destroy this statute and thwart the object and purpose that the Legislature had in view. We believe it to be a wholesome law and that it should be construed so that it may be enforced.” . '

The judgment of the court below will be affirmed.


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    ACTION BY A TENANT IN COMMON FOR. RENTS AND PROFITS.
    Circuit Court of Morrow County.
    Fanny D. Kuester v. Alban Yoeman.
    Decided, June, 1911.

      Wills — Construction of Evidence Indicating Purpose of Testator Competent — Use of the Word “Heirs” Where There are Living Children —Adverse Possession Against a Tenant in Common — Statute of Limitations — Rents and Profits.

    1. The word “heirs” where used by a testator having living children will be regarded as synonymous with children.
    2. .The grantee of a one-half interest in lands does not by merely going .upon the.. lands and remaining in possession thereof and failing to account to the owner of the other half interest for rents and profits, thereby oust the said owner of the remaining half interest from possession or set the statute of limitations running against him.
    3. Testimony showing • that the son of the testator was heavily in debt is competent for the purpose of indicating the purpose of the testator in making no provision for said son and giving his entire estate to his son’s wife and their children, thereby protecting . the estate against the creditors of the said son.
    Voorhees, J.; Shields, J., and Crow, J., (of tbe Third Circuit, sitting in place of Powell J.), concur.
   This action in the .court below was a proceeding in ejectment brought by the plaintiff in error against the defendant in error for the possession of the .real estate described in the first cause of action set forth in the plaintiff’s petition.

In a second cause of action the plaintiff says that the defendant ever since the 20th day of June, 1908, excluded.the' plaintiff from the rents and issues and profits of said premises, and refused to account to the plaintiff therefor or pay to her any part of the value thereof. The value of the rents, issues and profits from said date and the damage for withholding the said premises from the plaintiff amounted to the sum of $240.

Wherefore, plaintiff asks judgment for the delivery, of said real property and for the said sum of $240, and for all other further and different relief to which she is entitled, • The action ’was commenced June 18, 1910.

The defendant by answer and in his first defense denies each and every allegation in the petition contained, and in a second defense pleads the statute of limitations; that the plaintiff's first cause of action did not'accrue to her within twenty-one years next preceding the commencement of .the-action, nor wit-h-'in ten years after plaintiff arrived at the age of majority, and that by reason thereof her causes of action are barred ’by- the statute of limitations.-

The plaintiff by reply denies each and every allegation of defendant’s-second defense.

The -cause was tried to the court without a jury upon an agreed statement of facts and certain evidence introduced at the trial.

From the agreed statement of facts it appears that one Lewis Barge was the common source of title to the premises involved in this action; that said Lewis Barge died testate June 20, 1884. that his will and a. codicil thereto were admitted to- probate and record August 1, 1884, in the Probate Court of Morrow County.' Ohio; that he was the owner in fee of the premises described in the petition. That Robert T. Barge was a.son'of said- Lewis Barge, and he died July 18, 1904. Louisa Jane Barge was the wife of said Robert T. Barge; she died June 20, 1908. The said plaintiff, Fanny D. Kuester, was the only child and heir of said Robert T. Barge, deceased, and said Louisa Jane Barge. Said Fanny arrived at the age of- majority in the year 1895. On March 24, 1885, said Louisa Jane Barge and her husband. Robert T. Barge, for the consideration of $2,500, expressed in the deed quit-claimed all their, right,, title and interest in said premises to one Daniel Benson, which deed recited:' “Being the title and interest in the real estate of Lewis Barge, deceased, devised to grantors or either of them by the last will and testament of said Lewis Barge, deceased, being all their ''interest in the lands owned by said Lewis Barge at the time of his death-.’’ • It is further stipulated that, “Should said, will' be broken, and set aside by the court, it is then intended by said grantors that said Daniel Benson, Ms heirs and assigns shall by this conveyance convey all our right, title and interest in all of said estate of said Lewis Barge, deceased. ’ ’

That on March 25,1885, the said Daniel Benson and wife quit-claimed said real estate to Hattie Smalley with the same description and recitation in said deed. Hattie Smalley and her husband of May 27, 1886, quit-claimed all their interest in said premises to John H. Rodes, excepting therefrom two and a half acres deeded to Huldah Yeoman, who was the wife of said defendant, Alban Yeoman.

That' John H. Rodes and wife in July, 1887, quit-claimed all their right, title and interest in said premises to Alban Yeoman, the defendant herein, who has been in possession of said premises from said date to present time. That the said defendant. Alban Yeoman, was a brother-in-law of said Lomsa Jane Barge and Robert T. Barge, and was familiar with the will of said Lewis Barge, deceased, and all the deeds above set forth at the time he purchased said premises from John H. Rodes.

Huldah Yeoman by her last will and testament “bequeathed,” devised to the defendant, Alban Yeoman, all the right, title and interest she had in the two and a half acres purchased of Hattie Smalley and being part of the premises described in said plaintiff’s petition.

The testimony outside of the agreed statement of facts does not materially affect the legal status of the ease, so the principal and controlling element in the case is the will of Lewis Barge, deceased. What estate, if any, did the will of Lewis Barge, deceased, give to the plaintiff, Fanny D. Kuester, in the premises described in her petition? And what estate did the will of said Lewis Barge, deceased, give to Louisa Jane Barge, wife of Robert T. Barge?

To determine these questions resort must be had to the will of said Lewis Barge, deceased. The will was made February 19, 1880. At the time of making the will Robert T. Barge, the son, was living and had then living the plaintiff as his only child.

The first item of the will, after providing for a life estate in said premises in favor of his wife, Sibbia Barge, who' died before the testator, among other things provides that, “At-the death of my said wife the real estate aforesaid I give and devise to Louisa Jane Barge, wife of my son, Robert T. Barge, and to his -lawful heirs.”

It will be observed that the will gives Robert T. Barge nothing. Iiis name is used to designate more clearly those who were intended to receive his estate or who were to -be the objects -of his bounty, viz.: Louisa Jane Barge, wife of- his son, Robert T. Barge, and to his lawful heirs. Robert survives his father’ and the plaintiff, Robert’s only child, was living at the date of the will. 1 j -; ! .

Technically, persons in life can have no heirs, and therefore when property is given to the heirs of one living, the heirs mean the child or children of such person. From the fact that.the estates of deceased persons usually descend to their children, the term “heirs” is - frequently regarded as synonomous with ‘ ‘ children. ’ ’

The words “heir” or “heirs” in a will, if such was the clear intention of the testator, may be construed “child” or “children,” and they will take as purchasers: King v. Beck, 15 O. R. , page 555; 6 O. S., 563; 12 O. S., 320; 17 O. S., 166; 22 O. S., 255, and 58 O. S., 238.

The wife of Robert T. Barge is given a fee in the' premises described in the first item of the will of Lewis Barge and jointly with her is given to the heirs or children of Robert T. Barge a fee in said premises, making the only child of Robert T. Barge and his wife joint tenants in the premises described in said item one of said will, and being the same premises described in the petition.

Therefore Louisa Jane Barge and the plaintiff were tenants in common in the ownership of said premises and the quit-claim deed of Louisa Jane Barge and Robert T. Barge of March 24 1885, to Daniel Benson only conveyed to him an undivided half of said premises, and the plaintiff, Fanny D. Kuester, is the owner of the other undivided half unless the defendant’s defense of the statute of limitations bars her right to recovery in this-action.

It is contended' by tbe defendant that he has been in possession of said premises for twenty-one years and for ten years since the plaintiff has arrived of age.

The deed from Robert T. Barge and Louisa Barge did not undertake or assume to convey more than the interest of said Louisa Barge and Robert T. Barge to said Daniel Benson, hence he and his grantee became tenants in common with said plaintiff in the occupancy of said premises.

There is nothing in the agreed statement of facts or the testimony that tends even to show that defendant had taken such possession or control of said premises as to oust the plaintiff of possession or set the statute of limitations to- running against her.

Theréfore, we hold that the defendant’s plea of the statute of limitations is not good and is not established by any evidence. Youngs v. Heffner, 36 O. S., 232; Gill et al v. Fletcher, 74 O. S., 295; Hogg v. Beerman, 41 O. S., 81.

We think the court erred in ruling out the testimony of the plaintiff to show the indebtedn&ss of the son, Robert T. Barge, as this testimony tended to show the intention of the testator in not giving Robert any of his bounty, but to give it to his child, as he was not willing to pay the debts of his son out of his estate. This he had a right to do, and it furnishes a reason for the construction of item one of his will as hereinbefore found.

We find Lewis Barge’s intention was to give to Robert T.’s wife and their child, the plaintiff, this property rather than to Robert, who was largely in debt and doubtless would have lost the property if it had been given to him. We think this evidence was competent and the court erred in excluding it.

Therefore, the judgment and finding of the court below is reversed with costs. Exceptions allowed. And coming now to render the judgment the court should have rendered, we hold that the plaintiff is entitled to hold and be possessed as tenant in common with the defendant and to have an accounting upon her second cause of action for rents and profits according to law. Exceptions allowed. Cause remanded to the, ■ common pleas for further proceedings according to law.


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    FINALITY OF A DIVORCE DECREE.
    Circuit Court of Knox County.
    Mary Durbin Sapp v. John H. Sapp.
    Decided, March 9, 1909.

      Divorce and Alimony — Finality of Decree — No Appeal Lies to the Grant of a Divorce — Nor cam a Motion for a New Trial Toe Entertained.

    The rendition of a decree of divorce fixes the status of the parties eo instanti, and the marital relation thus severed can he restored only by consent of the parties and their remarriage.
   By the Court

(Voorhees, J., Taggart, J., and Donahue, A.).

This proceeding in error is brought to reverse-the judgment of the court of common pleas wherein said court by its order and iudgment dismissed the petition of the plaintiff 'in error, then plaintiff, in said court and rendered a judgment against her. ''

On the 22d day of December, 1908, in a certain proceeding brought by the plaintiff in error against the defendant in error for divorce the court of common pleas on the trial docket of said court entered a “Decree for plaintiff and restored 16 maiden name. 12-22-08.” On said day a proper journal entry was filed with the clerk of the court decreeing that the marital relation existing between the said Mary Durbin Sapp and John H. Sapp “be and the same is dissolved and both parties'released from the obligation of said marital relation, and the said plaintiff is restored to her maiden ñame of Mary Durbin. It is further ordered by the." said court that said plaintiff recover from the defendant her costs taxed at $-. ’ ’ It further appears from the record that the costs on said case were on that day paid. The record further discloses that on the,-24th, day of December the court, of its own motion, entered on the, trial docket the following: “12-24-08. Case reopened. Hearcl further upon the testimony of the defendant. Decree dismiss^ ing petition.” And the court, as appears by the bill of exceptions. on the 23d day of January, 1909, furnished to the clerk of said court an entry' reopening the hearing of said case and heard further testimony and found in favor of the defendant and dismissed the petition of the plaintiff, and ordered the former entry in favor of the plaintiff stricken from the files; to all of which ruling of the court the plaintiff excepted,and perfected a bill of exceptions, and the question is now before this court whether the court was without jurisdiction and without authority of law to dismiss said proceeding or to strike from the files said journal entry and enter a judgment and decree different from that which he had entered on the 22d day of December.

The section of the statute in respect to divorce and alimony does not furnish any provision for an appeal from the judgment of the court of common pleas or for prosecuting error therefrom, and when said court enters a decree or judgment dissolving the marital relation of the parties, in a divorce proceeding it exercises its jurisdiction to a finality, and it can not thereafter change or modify said decree or judgment. The judgment of the court when so rendered is not subject to change or modification as in other cases, there being no time fixed for the filing of a motion for a new trial, nor providing for otherwise contesting said judgment and decree, nor is it one of that class of decrees that the court has control of during the entire term. A judgment' in a divorce ease fixes the status of the parties.

If the decree is for divorce the status of the parties then beeomes fixed “eo instanti” upon the rendition of the judgment and decree.

If the decree be a severing of the marital relation, it can only be restored by the consent of the parties thereto and the parties remarrying. This holding is supported by the case of Parrish v Parrish, 9 Ohio State, p. 534, and the case of Nauman v. Nauman, 4 C.C.(N.S.), p. 298.

In the ease of Naumam v. Nauman it is held:

“Failure to enter a decree of divorce upon the journal does not deprive it .of validity, but where the granting of the decree has been noted on the apearance docket, it will be regarded as operative between the parties from its' rendition. ' '
“A court is not authorized to reopen a divorce case upon a motion filed two days after the decree was rendered,- where it appears that on the day the motion was filed one of the parties without knowledge of the filing remarried.
“A proceeding for divorce is terminated by an order of court that the petition be dismissed, and the fact that no reference' is made in such order as to the defendant’s cross-petition does not give to the defendant the right to thereafter move for an allowance of temporary alimony.”

It is the judgment of this court that the court of common pleas was without jurisdiction to open the decree and dismiss the petition, and for that error of the court In so doing the judgment of the court of common pleas is reversed and this case is Remanded with instructions to said court to enter on' its journal the decree of divorce so rendered on the 22d day of December, 1908. Exceptions will be noted.


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    ACTION ON A CONTRACT FOR. ERECTION OF ELEVATORS.
    Circuit Court of Hamilton County.
    The H. J. Reedy Company v. Charles L. Harrison et al.
    Decided, July 29, 1911.

      Action Prematurely Brought — Contract for Work to. he Delivered, Free from Liens — Not Fulfilled, When.

    Where a contract for the erection of certain elevators provides that the work shall be delivered free from all claims, liens or other charges, an action for recovery of balance due is prematurely brought where instituted while there is in force a mechanic’s lien in favor of a sub-contractor.

      Healy, Ferris & McAvoy, for plaintiff in error.
    Stephens, Lincoln & Stephens, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   The action below was to recover a balance due for the erection and construction of certain elevators in the building situated at the southwest corner of Fourth and Elm streets, in Cincinnati. Ohio, as per a certain contract entered into between the parties hereto.

At the close of plaintiff’s evidence, the trial court dismissed the action without prejudice on the ground that the same had been prematurely brought. The contract provided, among other things, "that the work was to be delivered to the owner completely finished and free from all claims, liens and other charges with the utmost dispatch. That payments on account should be made upon the written certificate issued by the architect from timé tó time as the work proceeded, and that a final settlement as to the remainder, and for all extras, if any, should be had and payment made forty days after the work should have been completed, free from all liens, charges, and claims whatsoever and after the architect should have so certified in writing. ” i

The evidence discloses that these clauses' in the contract were not carried out on the part of plaintiff in error, but on the con trary, a sub-contractor, the Marine Engine & Machine Company, a non-resident of Ohio, on June 4, 1910, filed a petition with the court of common pleas of this county against plaintiff in error and. defendants in error,, setting'up a mechanic’s'-li'en fipon said property, which it. claimed to hold, asking .that.said claim be declared a lien on the premises and that the same be sold in satisfaction thereof. ’

It would seem under this state of the record that the fulfillment of this part of the contract on the part of plaintiff in error was a condition precedent to final payment or suit, and is in the contract, without doubt, for the protection of the owners. Titus v. Gunn, 69 N. J. L., 410; Leverone v. Arando, 179 Mass., 439.

Indeed, the application 'of plaintiff in error to have the Marine Engine & Machine Company made a party defendant in this case. would seem to indicate that it asserted a claim or: lien, and a§ the work was to be delivered by the contractor free from all liens or claims, this was a requirement which the plaintiff in error,had not fulfilled prior to its suit upon the contract.

We think the court, therefore,- committed no :error in dismissing, the. action -without prejudice to the bringing, of a new-sub whenever the conditions precedent on its part to be performed had been so performed.

Judgment affirmed.


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    STATUTORY PROVISIONS TO BE OBSERVED IN THE EXECUTION OF A WILL.
    Circuit Court of Knox County.
    Wilmer A. Tims v. Cornelius V. Tims et al.
    Decided, March 17, 1911.

      Wills — Requisites in the Execution of Same — Subscription and Attestation Recessary — Error in the Exclusion of Testimony.

    1. Upon a contest of a will, its validity will be sustained only when it appears that such will was executed in accordance with the provisions of Section 5916, Revised Statutes.
    2. The provisions of said section require that the testator shall not only subscribe but acknowledge the will as his will, in the presence , of two subscribing witnesses.
    3. T signed what purported to be his will and the same was signed by' the scrivener thereof and a son of said testator as witnesses thereto, but the latter was not present when said paper writing was written, nor did said testator make known to him that said paper writing was his will. Held: that said paper writing was not subscribed and acknowledged as contemplated by the provisions or said Section 5916, Revised Statutes, and the same is not therefore a valid will.
    4. Where testimony is offered on the trial by the contestants of an alleged will tending to show that one of the witnesses .thereto made, contradictory statements at different times touching his knowledge that the paper writing signed by him as such witness was subscribed and acknowledged as testator’s will, it is error upon the part of the trial court to exclude such testimony.

      Wilkins, Owens & Carr, for plaintiff in error.

      F.O. Levering, contra.
    Shields, J.; Voorheés, J., and Powell, J., concur.
   This proceeding in error is prosecuted to reverse a judgment of the Court of Common Pleas of Knox County, Ohio.

The proceeding in the court below was brought to contest the validity of the last will and testament of A. W. Tims, deceased. •

The petition is in the usual form, and in substance alleges that on the 26th day of 'September, 1907, A. W, Tims, a' resident of Knox county, Ohio, died in this county, and was possessed of certain real and chattel property; that the plaintiff is an heir at law, being a son of said decedent; that a certain paper writing purporting to be the last will and testament of the said A. W. Tims, under date of September 14, 1907, was presented to the probate court of said county and was on the 23d day of November, 1907, admitted to probate by the probate court of said county; that letters testamentary were issued thereon by said probate court to the defendant, Cornelius V. Tims, as executor; that the defendants, except Caroline Sheedy, are heirs „ of said A. W. Tims, and his children, and by the terms of said paper writing are named as devisees and legatees of the said A. W. Tims, including the plaintiff, Wilmer A. Tims, and Caroline Sheedy, the wife or relict of A. W. Tims, n'amed as devisee, and Caroline Sheedy, as administratrix of John Tims, deceased. The plaintiff avers that said paper writing is not the last will and testament of the said A. W. Tims, and therefore prays that an issue may be made up and tried as to whether said paper writing is the last will and testament of the said A. W. Tims, and that the same may be set aside, and that the same may be found and declared not to be the last will and testament of said A. W. Tims.

The defendants, Cornelius Y. Tims, Rosa Coile, Joan Tims and Caroline Sheedy, individually as well as administratrix of John Tims, deceased, answer and say that they admit the death of A. Yr. Tims, who was possessed of certain real estate and chattel property, and that the plaintiff is an heir of said decedent; they admit that said A. E. Tims made a last will and testament under date of September 14th, 1907, which was admitted to probate by the probate judge of said Knox county on the 23d day of November, 1907, and that letters testamentary thereon, were duly issued to the defendant, Cornelius Y. Tims, as executor, who qualified and has been acting as such; they further admit that all the defendants named in the petition, except Caroline Sheedy are heirs at law and legatees, in said last will and testament, and that the defendant, Caroline Sheedy, formerly Caroline Tims, was. .made a devisee and legatee under said last will and testament, as the widow of A. W. Tims; they further answer, denying all the allegations in the petition other than those expressly admitted to be true, and say that A. W. Tims was, at the time of making said last will and .testament, of sound mind and memory; that he was not under any undue influence whatever, and that he was not persuaded or coerced into signing said last will and testament, and that he made the same freely and voluntarily, and they pray that the issue may be made up as to whether said paper writing is the last will and testament of the said A. W. Tims, and that the same may be declared to be the valid last will and testament of A. W. Tims.

With the issue thus made up by the petition and answer of the defendants, trial was had, and at the close of the evidence on behalf of the plaintiff a motion was made by the defendants that the court, instruct the jury to return a verdict for the dé-' fendants, which motion was sustained by the court,' and the, jury was so instructed, and a verdict was thereupon returned for the defendants, and in favor of sustaining said last will and testament. A motion, for a new trial was filed, to set aside the verdict .for numerous .errors assigned, which motion was overruled, and exceptions taken, and judgment was rendered on the verdict. Error is now prosecuted to this court, and the petition in error recites the following grounds of error:

First. Said court erred in overruling the motion of plaintiff in error for a new trial.-

Second. Said court erred in its directing the jury to bring in a verdict sustaining the will.

Fourth. Said judgment was given for the defendants when it ought to have been given for the plaintiff.

" The principal error complained of is that said last will and testament is invalid for want of due execution under the law. The record discloses that A. W. Tims died. September 26th, 1907, leaving what purports to be his last will and testament, in the words following, to-wit: '

‘‘In the name of the Benevolent Father of All:
“I, A. W. Tims, knowing the uncertainty of human life, do this 14th day of September, 1907, make and publish this, my last will and testament, • , ..
“Item 1st. I do hereby give and bequeath to my wife, Caroline Tims, during her natural lifetime, if she does not re-marry, all of my real estate, consisting of about one hundred acres, upon which I now live. If she re-marry, the property is then to be divided equally among my six children. At the death of my wife the farm shall be sold and each of children share equally.
“Item 2nd: I give and bequeath to my son Cornelius V. Three Thousand Dollars in money or promissory notes of which I am seized at my death.
“Item 3rd. To my son John I give and bequeath the sum of Two Thousand Dollars in money or promissory notes of which. I am seized at my death.
“I authorize my son Cornelius to collect enough on outstanding notes to pay him for notes which he .holds against me, and also $105.00 for which he holds no note. All money or notes not disposed of in this will shall be put on interest and used by the family. (Over).
“I do hereby make and appoint my son Cornelius V. Tims, without bond, as executor' of this instrument.
“(Signed) , A. W. Tims,
“A. W. Tims!
‘ ‘ Signed and sealed in the presence of us:
“Samuel Wright,
“Cornelius Tims.”

The record also discloses that the said A. W. Tims, on the said 14th day of September, 1907, requested his son, Cornelius V. Tims, to call Samuel Wright to the house of said decedent, as said decedent desired to see him. The son did so, and then returned to his work upon decedent’s farm, and while so at work on said day said Wright called at the house of decedent and conferred with him in his bedroom; that at the request of decedent said Wright, who was a .justice of the peace (and who has since deceased), wrote said paper writing, and after it was written the son was again called from the farm into the room of the decedent where said Wright and the decedent were, and where he says he saw his father sign his name to said paper writing, and after so signing it he asked for his glasses, -and asked said Wright to sign his (decedent’s) name for him, which he did. Said Wright and said Cornelius Y. Tims signed said paper writing as witnesses. Some time after said paper writing was so signed, and while in said bedroom, the said Cornelius Y. Tims says that his father told him that he had designated him as executor in said paper writing. This, in substance, is the testimony with respect to the paper writing in question, as shown by the record.

Section 5914 of the Revised Statutes provides who may make a will and Section 5916 of the Revised Statutes provides how a will may be made; said latter section provides as follows:

“Every last will and testament (except nuncupative wills, hereinafter provided for) shall be in writing, and may be handwritten or type-written, and said will shall be signed at the end thereof by the party making the same, or by some other person in his presence, and by his express direction, and shall be attested and subscribed in the presence of such party by two or more witnesses who saw the testator subscribe or heard him acknowledge the same.”

In an action authorized by Section 5858, Revised Statutes, to contest the validity of a will, the issue to be made up and tried is prescribed by Section 5861, Revised Statutes, and is whether the writing produced is the last will, or codicil, of the testator, or not. In the case at bar the testamentary capacity or the intention of the testator were not in issue, but it is urged by the plaintiff in error that it was not executed according to law. It is contended that the law requires certain formalities to be observed in the execution of a will, and that these formalities must be complied with before it can be said to be clothed with the characteristics of a will; that under the laws of this state the manner of the execution of a will is governed solely by statute, which must be followed, and which can not be changed or departed from if the instrument is to be regarded as a will under the law (Irwin et al v. Jacgue et al, 71 O. S., 395-409). It must be executed as required by the statute with reference to the signatures of the testator and attesting witnesses. When a will is to be proven, and the sanity of the testator, for instance, is put in issue, the law does not presume that the testator was sane at the time of signing the will, as in the case of other instruments, but his sanity is to be proved, and the subscribing witnesses are required to attest to the capacity of the testator, including Ms sanity. So, too, with any other claim that may be made with reference to the condition of the testator: The attesting witnesses, before the will can be admitted to probate, must make oath that he or she was of sound' mind and memory, and not under any restraint at the time of the execution of the will.

Counsel for defendants in error contended that the provisions of said Section 5916 were fully complied with in the execution of the said paper writing, and that the court was warranted, under the evidence submitted upon the trial, in directing the jury to return a verdict upholding said paper writing as a will. True, the court is authorized to direct the jury to return a verdict sustaining a will when the evidence does not tend to prove the issue on the part of the contestants, but was such action on the part of the court, under the evidence, warranted in the case at bar ? The son, who was one of the subscribing witnesses to the said paper writing, testified that his father had spoken of his intention to make a will some time before said paper writing was made on the day named, and that on said day his father told him, some time after he had witnessed the said paper writing, that he had been named as executor in his will; but it appears that when he signed said paper writing as one of the witnesses thereto nothing was said or made known to him by anyone as to what paper he was signing, nor did his father or said Wright make known to him why he was called from his work on the farm into the room where they were. Under this evidence, can it be said that said paper writing was executed according to law as a will ?

As stated, Section 5916 provides that every last will and testament * * * "shall be attested and subscribed in the presence of such party by two or more competent witnesses Who saw the testator subscribe, or heard him acknowledge the same.” This statute has at various times been construed by our courts, and we are therefore not without authority or precedent. It appears that the decedent was not entirely satisfied with his own signature to the paper; and he thereupon requested said Wright, the scrivener, to write decedent’s signature thereto, which he did, placing it immediately below that as made by the decedent. This was not open to objection, but is expressly authorized by statute. But was said paper writing attested and subscribed in the presence of the testator by the witnesses who saw the testator subscribe or heard him acknowledge the same, as contemplated by the statute referred to? In the case of Keyl et al v. Feuchter et al, 56 O. S., 424, the court say:

‘ ‘ One essential to the admission of the paper writing purporting to be a will to probate is that it shall have been acknowledged by the maker as his will, and his siguature also acknowledged, and in the presence of two subscribing witnesses.”

And in Haynes v. Haynes, 33 O. S., page 612, in discussing the requisities of a will the judge announcing the opinion says:

“Subscription by the testator and publication of the same are independent facts, each of which is essential to the due execution of the instrument.”

And again on page 614, in the same opinion, it is said that “The testator must in some way acknowledge and publish the paper as his will.”'

In a legal sense attestation and subscription, as applied to the execution of wills have different meanings, and are clearly distinguishable. As laid down by eminent text-writers, and interpreted by the courts, the distinction is made that to attest the publication of a paper as a last will, and to subscribe to that paper the name of the witness, are very different things:

“Attestation is the act of the senses; subscription is the act of the hand; the one is mental, and the other mechanical, and to attest a will is to know that it is published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write upon the same paper the name of the witness for the sole purpose of identification. There may be a perfect attestation, in fact,' without subscription.” Schouler on Wills, 2d Ed., Section 330.

Hence it is that the fact that a paper writing when signed as a will must be made known to the witnesses attesting the will, and it would seem that there are good reasons why the courts should thus hold. The attesting witnesses by statute are required to make oath as to the testator’s mental condition, and they are therefore entitled to lie advised as to what they are signing. Unlike signing a deed or mortgage, or other written instrument, the solemnity of the act at once impresses them, and they instinctively canvas the mental condition of the testator, because of the responsibility that the incident imposes.

Applying these principles to the facts as disclosed in the record in this ease, we are of the opinion that the evidence was lacking in meeting the requirments of the statute in respect to the execution of this alleged last will and testament of A. ¥. Tims, deceased, and that the action of the, court in directing the jury to return a verdict sustaining said alleged last will and testament, under the evidence, was erroneous.

It is further contended by the plaintiff in error that the court erred in excluding the testimony of the witnesses, P. L. Wilkins and T. F. McKinney, offered by the contestants - as to certain conversations had with the said Cornelius V. Tims touching his knowledge that said paper writing was his father’s will, .when he signed it as a witness, to which action of the court plaintiff in error objected and took exceptions. On page 13 of the record said McKinney testified that he had a conversation with the said Cornelius Y. Tims, in the probate office of said Knox county, at the time said alleged last will and testament was admitted to probate, when he said to him that when he signed the same as a witness he did not know what it was; and that on the occasion of the hearing of the exceptions to the account of said Cornelius Y. Tims, as executor, said Wilkins testified that said Cornelius Y. Tims told him that he did not know what the paper writing was that he signed. This testimony, we think, was competent, and entitled-to be considered by the jury as affecting the credibility of the witness, Cornelius Y. Tims; and in excluding the same from the jury, there was prejudicial error to the, legal rights of the plaintiff in error.

For the foregoing reasons the judgment of the court of common pleas is reversed and said cause will be remanded to the said court of common pleas for further trial and proceedings according to law. Exceptions noted.