text:
    ADOPTION — JUDGMENT AND DECREES
    [Cuyahoga (8th) Court of Appeals,
    February 7, 1919.]
    Grant, Dunlap and Washburn, JJ.

      Porter H. W. Taylor v. Edward Bushnell, Exr. et al.
    1. Right to Inherit not Defeated by Record of Adoption Failing to Show Assent by Both Natural Parents.
    A right to inherit from a foster parent is not defeated by the absence from the proceedings of adoption of assent thereto on the part of both of the natural parents.
    2. Rules Governing Collateral Attack Apply to Attack on Order of Court on Petition Jurisdictionally Sufficient.
    An attack on an order of court, entered in a case in which the petition was jurisdictionally sufficient, is in the nature of a collateral attack and is subject to the rules applicable thereto.
    3. Presumption Incidental Questions Considered in Proceedings for Equitable Relief.
    A petition having asked for relief which the court had the power to grant, and a decree was entered in accordance therewith, it will be presumed in subsequent collateral proceedings that all incidental questions were duly considered.
    Error.

      Walter C. Ong, for plaintiff in error.

      Cook, McGoivan & Foote, for defendant in error.

       Motion to certify overruled by Supreme Court, March 25, 1919, Taylor v. Bushnell, 64 Bull. 112.

   GRANT, J.

The plaintiff, both in error and below, was in the lifetime of Mary S. Bradford and at her death, a collateral relative of the latter, to wit: a cousin-german. In default of descendants in the direct line, upon her decease he would have been her heir at law, upon whom, if she had died intestate, her estate would have been settled by devolution to him.

Mary S. Bradford at her death left a paper in due form of her last will and testament, and purporting to be such, and which as her last will has been duly admitted to probate and proved in the court to which the jurisdiction for that purpose appertained. The defendant, Edward Bushnell, was named by the will as its executor and also as trustee to carry out certain of its provisions; he has duly qualified in both capacities and has entered upon the duties thus cast upon him. The defendant, Ella Bradford Brown, is a legatee and devisee under the will. The plaintiff is not a beneficiary under the will, nor is he named in it.

This action, in origin, was to contest the will and have it declared void and inoperative in the disposition of any of the estate that was of Mary S. Bradford, deceased. All proper parties were made defendants.

A motion was made in the court below to abate the action and dismiss the petition, on the ground that the defendant Ella Bradford Brown is the only child and sole heir at law of the testatrix, so that, even if the contention of the plaintiff were to prevail, all the property involved in the suit would pass to her under the statutes of descent of Ohio; reduced to its lowest terms, the contention of the motion was to the effect that in no event could the plaintiff be said to be a party in interest in the case.

The plaintiff controverted, as matter of fact, the heirship of Ella Bradford Brown to the testatrix. This decisive question of fact, determinative of the right of the plaintiff to sue, and hence of the case, was heard below. The finding was that the facts upon which the motion depended were made out and it was sustained. As this disposed of the entire controversy, final judgment dismissing the petition was entered.

To reverse that judgment this proceeding in error is prosecuted here.

From the foregoing recital it will be seen that the sole question presented by this record is whether the defendant Ella Bradford Brown was the child, and is the sole heir at law of Mary S. Bradford, the testatrix. It is not claimed that she was the born child of the decedent, but she relies for her heirship on an adoption duly made, whereby the status of daughter to the testatrix was created as matter of law, so that upon the death of the adopting parent, and no will intervening, the succession of the property of the latter would pass to her by operation of statute.

To rebut this claim and defeat the devolution of the estate, in case the contest of the will should prevail, upon the claimed heir by adoption, the adoption itself is attacked as being null and of no effect in law.

The purported adoption arose and became effectual, if at all, by virtue of a judgment in due form of the probate court of Cuyahoga county, Ohio, entered on August 13, 1866, the record of which appears here.

The claim is that this judgment is void for want of jurisdiction to render it, so that it may properly be called in question in this action, although it still remains unreversed of record.

As the question is important, although not difficult, as we regard it, we feel justified in exhibiting fully the facts upon which the case proceeds and our own conclusion must depend.

The statute of Ohio in respect of adoption, in force at the time the one controverted here purported to be had, was as follows: — S. and C., 506.

“Any inhabitant of this state not married, or any husband or wife, jointly, may petition the probate court of their proper county for leave to adopt a minor child, not theirs by birth, and for a change of the name of such child, but written consent must be given to such adoption by the child if the age of fourteen years, and by each of his or her living parents who is not hopelessly insane or intemperate, ’ ’ etc.

The petition upon which the judgment and order of adoption was finally entered, omitting the caption, was as follows:

“William Bradford and Mary S. Bradford, wife of said William Bradford, respectfully represent and state to your honor, that they are desirous of adopting as their child, Ella Scranton, who is a minor of the age of eight years, and the child by birth of Abel Scranton, the father of said child, and who resides at Brighton, in the county of Lorain, and state of Ohio, has given his written consent to such adoption of said child by your petitioners, and to such change of her name as aforesaid; that your petitioners are of sufficient ability to bring up and educate said child properly.”

This was signed by both petitioners.

The only answer in the matter was in the following language :

“I, Abel Scranton, the father of the above mentioned child, Ella Scranton, who is a minor child of the age of eight years, do hereby consent to the adoption of said child by William Bradford and Mary S. Bradford his wife, and to the change of her name from Ella Scranton, her present name, to Ella Scranton Bradford, according to the prayer of the foregoing petition.
(Signed) Abel W. Scranton.
Cleveland, March 8,1866.”

Thereupon an entry, constituting the final judgment said to be void, was made in the journal of the probate court, as follows :

“This day came William Bradford and Mary S. Bradford, and moved the court for the adoption of Ella Scranton, aged eight year's and thereupon this cause came on to be heard upon the petition of William and Mary S. Bradford and the answer of Abel Scranton, the father of said minor child, and the court find upon examination of said Abel Scranton, that he of his own free will and accord desires the adoption of said minor child. And the court is satisfied from the testimony that the petitioners are of capacity and ability to bring up and educate said minor in a suitable and proper manner, having reference to the degree and condition of said child’s parent; and the court is further satisfied of the fitness and propriety of said adoption. The court do therefore order, adjudge and decree that from and after this date, the said minor child, to all legal intents and purposes, shall be the child of said petitioners, and that the name of said child be changed from Ella Scranton to Ella S. Bradford. ’ ’

It will be seen that the record does not affirmatively show that the consent of the natural mother of the child, if she was then living and not insane, was ever given to the adoption.

The claim of the plaintiff that the judgment of adoption was void ab mitio, is set forth in his brief, as follows:

“Now the portion that must appear in the petition or in writing underscored herein can not and does not relate to anything other than to give to the court jurisdiction upon the filing of the petition when the facts are set forth therein that the written consent has been or is given to such adoption by the child, and by such of his or her living parents, who is not hopelessly insane, etc. * * *
'“There is no allegation in the petition or request that the child by birth was the child of Abel Scranton, and the child’s mother, Mrs. Scranton. There is no allegation in the petition or request setting forth even the color of an excuse for not having the written consent of such adoption of the child’s mother.
"Now the language of the statute is clear, certain and definite that there must be a written consent by each of his or her living parents (in the plural) who are not hopelessly insane, etc. Now this being true, jurisdiction never attached at all in the court where the petition omits the essential and necessary allegation to give jurisdiction. The fact that Abel Scranton, the father of the child, gave his written consent to the adoption of the child, by your petitioners, in no way clothes the court with jurisdiction, because he is' only one of the parents and the statutes expressly provides that both shall consent.
"Further, there is not one word in either the application or the journal entry, that any notice of any hind or character, summons or otherwise, was ever given to the child’s mother, nor did she in any way ever appear in court to be heard as to the disposition of her child. Now, if this is true, and it is, what jurisdiction did the probate court in 1866 receive or was clothed to give and do what the record of that court says and sets forth was done.
"Where the child to be adopted is under the age of fourteen years, the appearance in court, and the consent of the child’s parents brings the child before the court by the acts of its parents, and the court then and then only acquires jurisdiction over the child, and the parents of the child in this case Abel Scranton, the child’s father, and Mrs. Scranton, the child’s mother.
"It further appears by the record that Abel Scranton, the father of the child Ella Scranton, a minor child of the age of eight years, did by his answer consent to the adoption of said child by William Bradford and Mary S. Bradford, and to the change of her name from Ella Scranton, her present name to Ella S. Bradford. There is no _ answer of the mother of Ella Scranton, there is no consent of the mother of Ella Scranton; she never was notified and never was heard in court in this proceeding, which was adverse to the child, as well as the parents of the child Ella Scranton.”

Let us examine this extreme claim that the judgment is void in the light of principle.

It is first to be observed that the adoption proceeding is in no just sense adversary in character, although it can not be said to be in rem, strictly speaking; it is quasi in rem, or, as the old books would say, soundmg i/n rem.

So far as the here wanting natural mother is concerned, the proceeding, if valid, divested her of no property right, or any right except that of filial obedience and duty on the part of the child, and that right, as the law stood in 1866, before the legal emancipation of married women in Ohio, was a shadowy right, having little or no substance as long as the wife was under the overpowering paramountcy of the husband and the disabilities of coverture at common law. The question of what obligation of duty the proceeding cast upon the adopting parties is not material here, as they were in no default in the steps taken in the direction of jurisdiction. The chief person in concernment was the child, and the advantage accruing to her from the proceeding, if it is not avoided here, turns out to have been considerable, and in return for which she, so far as appears, yielded the full consideration of service, duty and obedience, through many years, to her adopters, and of which the plaintiff by this suit seeks to deprive her — he purporting to be in law the successor in right to the adopting parents who received the service. This measures the merit of his contention, carried to its result as to her.

Jurisdiction, shortly stated, is the power to hear and determine. As to the subject of it, it must either reside inherently in the court which undertakes to exercise it, or it must be created by law. There is no doubt that constitutionally it may in Ohio be conferred by statute upon the probate court, as it has been conferred by the legislature in the act mentioned. There was, therefore, the power to hear.

In that statute' it is particularly to be noticed there is an entire absence of what the petition must contain as the first and only step towards the exercise of that jurisdiction which the act has conferred; it must ask for the adoption of a minor child not the proposed adopter’s by birth. The simple asking is enough to set the machinery of the jurisdiction created by law in motion in the direction of granting the prayer.

All things else are matters to be supplied, either at the motion of some one who wants more in the petition or by the evidence produced.

While the contention of the brief is that the petition must contain much more in order to invoke the jurisdiction of the court to find effect, we do not find any such requirement, in the light of the enabling statute.

In Ruling Case Law, p. 603-4, it is said:

“It has been ruled that the petition for the adoption of a child must be liberally construed; that facts not averred in it may be supplied by caption: that the facts disclosed need not be other than expressly required by the statute; and that, even as to conditions precedent necessary. to support the adoption, such conditions need not be set forth in the petition unless the statute so requires.”

This consideration appears to us to much impair, if not to destroy the value of the authorities cited in the brief from states other than Ohio, — we not having their correlative statutes to inspect and guide us.

As to jurisdiction of the parties, the constitutional requirement is due process of law; which is made up of notice and an opportunity to be heard, before rights can be judicially defeated or interests cut off. But this condition precedent to the exercise of jurisdiction can be predicated only of adversary proceedings, and for the benefit and protection of an adversary party in matter of substance and not of form only.

We have now reached a point in this discussion where it may be asked whether, the filing of a petition being enough to set the wheels of jurisdiction in motion, the other steps necessary to complete the operation of the statute make effectual its declared purpose and advance the remedy it gives, may not be supplied by allowable legal intendment, or inference, or presumption, favoring jurisdiction, under the rule quoted, as against the attack made on the jurisdiction in this case, a mode of attack which, since we find the petition jurisdietionally sufficient, we must regard as collateral and not direct. We may meet and answer this inquiry, as we think, without determining whether the fact that the natural mother of the child is not named as affirmatively consenting to the adoption and does not appear as having notice of the proceeding, in the absence of the muniments of presumption, would be decisive of the case or not.

Before; however, proceeding to consider in the light of authority, the question of how far a presumption has arisen here which will protect the judgment assailed at the bar against this mode of assault, we desire to view the matter from another point of view, from which we may as we think, also reach a satisfactory conclusion.

The one who makes the attack must be looked at, as would be the case if Mrs. Bradford were here trying to defeat a right of Ella Brown, accruing to the latter as the result and consideration of a contract, her part of which has faithfully been performing for more than a half century. Would Mrs. Bradford be heard to put forward the infirmity that Ella’s mother is not by record shown to have joined in an answer in adoption, although the natural mother may have been unable to so join because she was then dead, after she, Mrs. Bradford, had received all that the law required the child to give in return for the right to inherit, which Mrs. Bradford vicariously through the plaintiff, is attempting to do? What standing would she have — and therefore what standing does he have in a court of conscience? We think this material inquiry is answered in Chehak v. Battles, 133 Ia. 107 [110 N. W. 330; 8 L. R. A. (N. S.) 1130; 12 Ann. Cas. 140].

By the Iowa statute in force at the time, the adoption was required to be evidenced by a deed duly executed, acknowledged and recorded. In that case the deed was signed, but the signatures were not acknowledged, nor was the instrument ever recorded. The child lived for years with the adopting parents and fully performed the obligations cast upon her by the deed of adoption, although of course she was in person no party to it.

After their death advantage was attempted to be taken of the infirmity mentioned, to defeat her right of inheritance under it. We can see no difference in substance or principle between that case and this case.

The syllabus is as follows:

‘1 An instrument whereby, in consideration of the surrender to them of a child, parties accept the duties of parents to the child, and agree that it shall have all the rights of inheritance by law, may be specifically enforced as a contract as to the right of the child to receive a share of the estate, though it is invalid as an instrument of adoption because not acknowledged and recorded as required by the laws in force at the time of its execution.”

Another holding in the case was that the instrument was not within the statute of frauds and could not be avoided as being in the nature of a testamentary disposition of property.

But the case at bar was not argued, as we recollect, from this point of view, and we shall not let our disposition of it rest on this consideration alone; although we might safely do so, as we think.

Its other aspect, the one in which the cause has been mainly argued, concerns the nature of the attack on the jurisdiction of the probate court of Cuyahoga county, whether the attack is collateral or direct.

We have seen that the court had jurisdiction of the subject by creation of law, and that its exercise was invoked and set in operation by the filing of a petition sufficient under the statute. Jurisdiction, therefore, attached by the taking of that step towards it. This conclusion denies, necessarily, the contention that there was no jurisdiction. It seems to follow that the present action attacks that jurisdiction collaterally instead of directly. Whether the jurisdiction was exercised effectually or not, is another question.

The only instance we have found in the books which seems to countenance such a proceeding as we have here in the light .of a direct attack on the judgment in adoption, is Willis v. Bell, 86 Ark. 473 [111 S. W. 808].

But the proceeding there was habeas corpus, and the writ was allowed because the mother had not been notified in the adoption case and she sued to get possesion of her child; it was not a suit to defeat the inheritable quality which the adoption judgment created if jurisdiction was present effectually, by any showing known to the law.

Camp’s Estate In re, 131 Cal. 469 [63 Pac. 736; 82 Am. St. 371], it is remarked:

“It is a well settled rule of law that where the jurisdiction of an inferior or special tribunal, or its power to act in any particular case, depends upon the existence of a fact which is to be established before it by extrinsic evidence, the determination of that fact by the tribunal can not be questioned in a collateral attack on its order. ’ ’

Wells, Jur., See. 61, and cases cited.

In Richards v. Matteson, 8 So. Dak. 77 [65 N. W. 428], it is said — p. 80:—

“If silent as to jurisdictional facts, the order of adoption relied upon, having been made by a court of record, clothed with original jurisdiction of the subject-matter, its authority and jurisdiction will be presumed, unless by necessary implication from the recitals of the order it appears that something essential to the jurisdiction had been omitted, or that the required statutory conditions did not exist!”

Let us apply the test thus propounded to this case. The order of adoption was made-by a court of record having jurisdiction of the subject-matter. What is left to give rise to the presumption which will validate the order? From the recitals of the order does it appear “by necessary implication” that any remaining thing “essential to the jurisdiction” has been omitted or that “the statutory conditions” to the adoption did not exist . when the order was made ?

.If it is said that the consent of the mother is wanting, the answer is that such consent is not in all cases an essential to jurisdiction, or a statutory condition which must under all circumstances be present in order to make the judgment of adoption effectual. If the mother was at the time dead; if,she was then hopelessly insane; if she had then abandoned her child — in none of these contingencies was her consent indispensable, or requisite, or possible. The provision of the statute for a representative to act for the incapable parent, in any case, may be presumed to have been complied with, so long as the order does not show “by" necessary implication” that it has not been complied with — the court having original jurisdiction of the subject-matter, — according to the case last cited. We are of the opinion that, favoring a judgment, such presumption is to be indulged here — no recital of the order asserting or implying anything to the contrary.

We are, however, relieved, as we think, from all uncertainty of conclusion in accordance with the rule,we have thus endeavored to extract from the authorities, from a consideration of another ease, which apparently is exactly in point and which seems to us to resolve even a lingering doubt. It is the ease of Wilson v. Otis, 71 N. H. 483 [53 Atl. 439; 93 Am. St. 564], It was an appeal from a judgment in distribution in the probate court. The brothers and sisters of the intestate claimed the entire estate as his heirs at law. One who claimed to be a son by legal adoption contested their right to inherit on the ground that he was the sole heir. The legality of the adoption proceeding was challenged and passed upon by the court.

The petition for adoption was filed in 1882 and was in the usual form, except that the father consented — as he did — and that his wife was then divorced from him, without a reservation in the judgment of divorce of the custody of the child.

An order of adoption was made, but was not entered on the journal of the court, and both it and the petition and the files in the case were taken to a lawyer’s office where they remained undiscovered for fifteen years, when they were lookd up, the adopting father, with whom the child had been living, being then dead and doubts as to the heirship being then cast upon the reputed son. The entire order of adoption, which was then brought out and put to record, was in the following language:

State op New Hampshire.
Strafford, ss. At a court of probate held at Rochester in said county of the seventeenth day of January, A. D. 1882: On the petition of George W. Otis and Addie F. Otis, both of Farmington in said county, praying for leave to adopt as their own child Arthur H. Edgerly, of Wolfeborough, in our county of Carroll, the child of William A. Edgerly and Sarah F. Edgerly, and that a decree to that effect may be made, it appearing to the court that said Arthur H. Edgerly is the child of said William A. Edgerly and Sarah F. Edgerly and is under fourteen years of age, and that said -- the parents of said child, having consented in writing to such adoption, and the court being satisfied of the identity and relations of the persons, and that the petitioners are of sufficient ability to bring up said child, and furnish suitable nurture and education, having reference to the degree and condition of its parents, and that it is fit and proper that such adoption should take effect:
It is therefore decreed that the said -have leave to adopt said child as h — , own child, and that the name of said child be changed to-and it is hereby ordered, that from the date hereof, said child shall, to all legal intents and purposes, be tbe child of the said -and shall hereafter have the name of-.
J. D. Young, Judge of Probate.

We call attention to the blanks appearing in this judgment, which lack the quality of affirmatively showing a consent by either parent or by any. one.

But every phase present in the case at bar important in this consideration, was dealt with and passed upon by the court in the opinion, which proceeds as follows:

‘ ‘ The question raised by the case is' whether the defendants are entitled to inherit a part of the estate; and this depends upon the question whether Arthur was legally adopted by the deceased. If he was legally adopted, it is conceded that he would inherit the estate subject to the widow’s rights and to the exclusion of the defendants. G. L., c. 188, s. 4. Their contention is that there was no valid judgment or decree of adoption by the probate court, in which the deceased entered a petition for that purpose. It is found as a fact, that upon that petition the judge of probate did judicially what the imperfect document signed by him, upon a reasonable construction thereof, shows he did. If upon competent evidence it appears that the court, having jurisdiction of the subject-matter, determined the issue or point presented by the petition, the parties are concluded thereby. Whether the judgment was actually entered up in the technical form of a decree, is not material in this collateral proceeding. Nihan v. Knight, 56 N. H. 167.
“Did the court grant the prayer of the petition? It appears from the record that the court, presumably upon competent evidence, found certain facts which were essential to a decree of adoption. G. L., c., 188, s. 3. These facts are expressly recited in the signed document, which, taken in connection' with the petition, indicate with much force that the judge understood that he had decided the question of adoption, and that nothing remained to be done except to enter up a formal decree. The signing of the blank form of a decree of adoption as a part of the record would be inconsistent with a judgment denying the prayer of the petition, and would not indicate that the court was in doubt as to what the final order should be. Nor is it reasonable to infer that the judge did not attach any importance to this document— that he regarded it as a waste piece of paper. Having some significance, it must be deemed to indicate the judge’s finding upon the petition in favor of adoption. As he had made specific findings of fact relating to the merits of the action and signed a blank decree, the work of filling up the blanks was merely clerical, requiring the exercise of no judicial function. If he had entered a minute on the docket to the effect that ‘the petition is granted;’ that would have been conclusive evidence, in a collateral proceeding, of the judicial act of rendering judgment in accordance with the prayer of the petition. State v. Narcarm, 69 N. H. 237 [45 Atl. 744]; State v. Cox, 69 N. H. 246 [41 Atl. 862]; Matthews v. Houghton, 11 Me. 377; Felter v. Mulliner, 2 Johns. (N. Y.) 181; Fish v. Emerson, 44 N. Y. 376, 378, Swain v. Gilder, 61 Miss. 667, 671; Overall v. Pero, 7 Mich. 315; Lynch v. Kelly, 41 Cal. 232, 233; but such evidence would be no more convincing than the evidence furnished by the record in this case. Upon a reasonable construction of the record, the fact that a judgment of adoption was rendered is not susceptible of serious doubt. Freem Judg. (4th ed.), s. 45; McDonald v. Frost, 99 Mo. 44, 48 [12 S. W. 363].
“The fact that the petition with the blank decree at some time after the hearing was taken from the files or from the possession of the judge, and was not returned for some years, did not have the effect of invalidating the previous action of the court. The record, having been restored, is as competent and conclusive evidence of the judgment as though it had remained on the files.
“But it is insisted’ that the judge of probate had no jurisdiction to decide the question presented, or to render a judgment thereon, because it does not affirmatively appear in the record that the mother of the boy consented in writing to the adoption as required by the statute. G. L., c. 188, s. 2. This fact, however, is not necessarily essential to the exercise of jurisdiction by the probate court. If the parent has abandoned the child for three years, his consent to adoption proceedings is rendered unnecessary by the statute. G. L., c. 188, Section 2. It is for the court, after having acquired jurisdiction by the filing of an appropriate petition, to decide in the first instance whether the parent has consented to a decree of adoption; if not, whether there is any valid excuse for his non-action, as death, insanity, or other disability; or whether he has so far abandoned his parental duties for three years as to render his consent unnecessary. These, with other preliminary questions that might be suggested, must be determined upon evidence and a hearing by the judge, after he has acquired jurisdiction of the general subject-matter of the petition. The filing of the petition and the appearance of proper parties gave him, under the statute (G. L., c. 189, Section 4), power to act judicially. Horne v. Rochester, 62 N. H. 347, 348, 349; Spaulding v. Groton, 68 N. H. 77, 78 [44 Atl. 88], The court was not asked to do what it has no judicial power to do under any circumstances. It became its duty to act upon the subject-matter presented, and to receive evidence upon all material questions suggested, among others upon the question of abandonment as an excuse for the failure of the mother to consent to a decree of adoption. State v. Arlin, 27 N. H. 116, 129. If its decision was erroneous upon this question, the error did not render the proceedings absolutely void (State v. Richmond, 26 N. H. 232; White v. Landaff, 35 N. H. 128, 130), so that they might be disregarded in a collateral suit. The error if there was one, was correetible by appellate procedure, and does not prove a want of jurisdiction in the probate court. Fowler v. Brooks, 64 N. H. 423, 424 [13 Atl. 417; 10 Am. St. 425]; Kimball v. Fisk, 39 N. H. 110 [75 Am. Dec. 213].
“Nor does the absence in the petition of an allegation of abandonment, or of the mother’s consent, effect the question of general jurisdiction. It is not necessary that the petition should contain a full statement of all facts essential to a decree. It might seriously fail in this respect, or be demurrable, and still state a case calling for and requiring the exercise of the judicial power of the court. The test has been said to be, not whether it states a perfect case, but whether the court has the power to grant the relief sought in a proper case. Van Fleet Col. At., Section 61. If upon a petition for adoption which omits these allegations the court finds the fact of abandonment, as well as other necessary facts, its decree of adoption is valid. The judgment or decree necessarily implies a finding of all material facts not inconsistent with the record, one of which may be the fact of abandonment. In this case, as the finding of that fact is not inconsistent with other facts' disclosed by the case or the record, it is included in the general finding in favor of adoption, and furnishes a valid excuse for the non-consent of the mother. Erwin v. Lowry, 48 U. S. (7 How.) 172 [12 L. Ed. 655]; Florentine v. Barton, 69 U. S. (2 Wall.) 210, 216 [17 L. Ed. 783]; Thornton v. Baker, 15 R. I. 553 [10 Atl. 617; 2 Am. St. 925], The judgment of adoption, therefore, is not impeachable in this proceeding.”

We have quoted thus extensively from the New Hampshire case, partly because it appears to us to leave no important question involved in this case unanswered, and in part because before finding it we had really, in a manner, anticipated some of its discussed doctrines as to the consequences flowing from a statutory grant of jurisdiction of the subject of adoption when it is once set in motion by a prayerful petition invoking its exercise clear through to the end..

The law of the case, as declared by the syllabus, appears to us to meet and dispose of every contention urged upon our attention in the case at bar.

The syllabus reads thus:

“A decree of adoption is not invalid because it does not recite nor the petition allege, an assent by the parents or facts excusing their assent.
“Where a petition asks for relief which the court has power to grant, and a decree is made, it will be presumed, in collateral proceeding, that all incidental questions were duly considered.”

Applying this law to the matter in hand, and how stands this case?

Our decree of adoption does not recite, nor does the petition allege, an assent to the adoption by both parents, and no facts are put forward to account for the want of consent. The judgment operating an adoption in law is not, for that reason, invalid.

The petition asked for relief which the court had power to give. A decree granting it was made. Without more, the law presumes, in a collateral proceeding, that all things necessary to reach the end sought have been done upon due consideration by the court clothed with the power to advance the remedy and grant the relief sought.

We know of no authority — can think of none — that more concretely squares with the case under review here.

Its conclusions, justifying ours, do not commend themselves the less to a court because in each case the attempt to defeat a consummated and earned adoption and its benefits, was made by one who sought, by a supposed fortuitous slip in the law’s meshes to reap where he had not sowed and to gather where another had strown.

We find no error in the judgment complained of, and that it does substantial justice. It is affirmed.

Dunlap and Washburn, JJ., concur.


source: Caselaw Access Project

author: POWELL, J.

license: Public Domain

text:
    ELECTRICITY — NEGLIGENCE
    [Richland (5th) Court of Appeals,
    1917.]
    Shields, Powell and Houck, JJ.
    James B. Jesson, Admr. v. Mansfield Ry., L. & P. Co.
    Death of Boy at Foot of Electric Pole not Showing of Actionable Negligence.
    Notwithstanding a high degree of care is required in the handling and use of electricity, electric companies are not insurers of persons who come in contact with charged wires through their own fault. Hence, actionable negligence is not shown on the part of an electric light and power company in the case of a boy who was a trespasser and was found dead at the foot of a pole upon which wires charged with electricity had been strung by the company under permission of the municipal authorities.
    [Syllabus approved by the court.]

      L. II. Beam and W. S. Kerr, for plaintiff in error.

      McBride & Wolfe, for defendant in error.
   POWELL, J.

This is an action for damages for the wrongful death of John Jesson, deceased, alleged to have been occasioned by the negligent and wrongful acts of the defendant, which are fully set out in the petition. The answer for a first defense admits a number of. facts alleged in the petition, and denies all others, and is in legal effect a general denial of the negligence alleged and of the material allegations of the petitions. For a second defense it is alleged that the injuries which caused the death of said decedent were received by him wholly through his own fault and negligence contributing thereto and without fault or negligence on the part of defendant. A reply is filed which denies each and every allegation of the second defense of the answer. Upon the issues thus joined a trial was had resulting in a verdict for the defendant. A motion for a new trial was filed and overruled and a bill of exceptions was taken, containing all the testimony and the charge of the court, and the case is now before this court on a petition in error.

There are six assignments of error in the petition in error, mostly of a general nature, and which raise the contention that upon the pleadings and evidence the verdict should have been for the plaintiff instead of for the defendant.

We have examined the testimony carefully with reference to each of the errors assigned and find that there is no error apparent on the record prejudicial to the rights of the plaintiff in error.

The decedent was a boy 14 years of age and was found dead at the foot of one of the poles of the defendant at the time named in the petition, and the evidence is to the effect that his death was caused by electric shock. The claim is made that defendant was guilty of negligence in having an appliance that could conduct a dangerous current of electricity from its overhead wires to the street, and in not keeping its wires and other appliances so insulated and guarded that the current could not escape to the street.

It is settled law that a very high degree of care is called for in the handling and use of electricity and other dangerous substances and agencies, but those owning and using the same are not insurers of those who may come in contact with such substances by accident or otherwise. The testimony in this case does not disclose any necessity whatever for a contact with a charged wire or chain on the part of decedent. He was not in the employ of the defendant nor under any contractural relations with it, and the defendant owed him no other duty than it owed to the general public, viz: that it should use a high degree of care to prevent persons coming in contact with its wires or other appliances carrying an electric current to their injury.

It is not every act of negligence that is actionable. Actionable negligence arises from a breach of legal duty arising out of contract or otherwise owing to the person sustaining the injury or loss. Thompson, Negligence, Sec. 801.

The defendant had its wires suspended where they were by permission of the municipal authorities of the city of Mansfield. We can not say as a matter of law that the evidence discloses it was guilty of any negligence whatever. The jury has said that as a matter of fact it was not, and we can not say from the record that there was error in so finding. The contact of decedent with the charged wire or chain was voluntary and unnecessary, and we think the evidence fáirly shows that decedent was a trespasser against the defendant’s property when he met with his unfortunate accident, and that if he had not been such trespasser, the same would not have occurred.

Upon the whole case the court is of the opinion that there is sufficient evidence in the record to sustain the verdict returned by the jury and the judgment rendered thereon; that the same is not contrary to law,- that there is no manifest error shown by the record either in the admission or exclusion of evidence; that there is no error prejudicial to the rights of plaintiff in error in the charge of the court as given, or in the refusal to charge as requested. "We find no error in the record which would justify us, as a reviewing court, in reversing the judgment of the trial court, and the same will therefore be affirmed.

Judgment affirmed.

Shields and Houck, JJ., concur.


text:
    CONTRACTS
    [Licking (5th) Court of Appeals,
    October Term, 1918.]
    Shields, Houck and Powell, JJ.
    H. H. Edmund v. Mary J. Boring et al.
    1. Agreement to Deliver a Warranty Deed Held not Covenant Against Incumbrances.
    When a contract for the sale of real estate binds the owner to make and deliver a warranty deed on a certain date, but contains no mention of a covenant against liens and incumbrances, the purchaser must be held to have agreed to take the land subject to such liens and incumbrances as were in existence at the time the contract of sale was executed; accordingly, the seller is entitled to receive the full amount named in the agreement without deduction for liens and incumbrances.
    2. Protection of One Holding an Inchoate Contingent Right of Dower Enforceable.
    When it appears that the husband of the owner of lands sold on contract to deliver warranty deed did not sign the agreement to sell and in no way bound himself by the terms of the agreement, the land will be ordered transferred subject to his inchoate contingent right of dower.

      Fitzgibbon, Montgomery & Black, and W. A. Kite, for plaintiff.

      B. G. Smythe and L. G. Russel, for defendant.
   POWELL, J.

This was an action commenced in the court of common pleas by tbe plaintiff to enforce specific performance of a contract for tbe sale of real estate, entered into by him and the defendant, Mary J. Boring, on July 5, 1917. Said contract is as follows:

“Article of agreement by and between Mary J. Boring, of Thornville, Ohio, party of the first part, and H. H. Edmund, of Thornville, Ohio, party of the second part, Witnesseth:
“Mary J. Boring, this day sells her farm in Bowling Green township, Licking county, Ohio, consisting of one hundred and eight acres, more or less, to H. H. Edmund for the sum of $7,-500, and agrees to make and deliver a warranty deed on September 15, 1917, and she further agrees to take the same care of the farm and buildings as she has in the past. The said Mary J. Boring hereby acknowledges the receipt of $300 as advance pay on the $7,500 purchase money, leaving a balance of $7,200, which H. H. Edmund agrees to pay in cash on September 15, 1917, when deed is delivered.
(Signed) : “Mary J. Boring,
(Signed): “H. H. Edmund.”

An answer was filed by the defendant, Mary J. Boring; also an answer and cross-petition by the Peoples Bank of Thornville, setting up a mortgage lien against the premises for which contract of sale had been made.

The plaintiff filed a reply to the answer of the said Mary J. Boring, denying all the allegations of said answer inconsistent with the averments of the petition.

The petition, in addition to setting out the facts relative to the contract, of sale, recites the mortgage of the Peoples Bank and that the defendant, the Columbus Natural Gas Company, was the owner of liens or encumbrances against the farm agreed to be sold by said defendant, Mary J. Boring.

It will be noted that in the contract of sale, while Mary J. Boring agrees to make and deliver a waranty deed on September 15, 1917, it does not contain any agreement on her part for covenant against liens and encumbrances, and the question is made as to whether or not the liens and encumbrances against the farm were to be paid out of the purchase price to be received by the said Boring, or whether plaintiff bought the farm subject to such liens.

This court is of the opinion that, by a proper construction of the articles of agreement or sale, the said plaintiff, Edmnnd will be held to have purchased said land subject to any liens or encumbrances then standing against it, as no provision is made therein that the farm should be conveyed to him clear and free of encumbrance or lien.

The husband of the defendant, Mary J. Boring, did not sign the article of agreement and nowhere bound himself to release his contingent inchoate right of dower in the land sold. It is conceded, however, that his rights in said land are such that, while not an encumbrance, but an interest in the land that may never accrue, the plaintiff, Edmund, should be required to take the land subject to such right of dower; but no question is made in the pleadings or evidence as to this.

The court of common pleas entered a decree for specific performance, but required the defendant, Mary J. Boring, to pay the amount of the mortgage lien against the land. This court is of opinion otherwise; that there being no covenants other than a covenant of warranty, which has been held to be a warranty of title only, plaintiff is not entitled to have the amount of the mortgage lien due the bank paid out of the purchase money before paying to the said Mary J. Boring the amount of the balance agreed to be paid to her, namely: the sum of seventy-two hundred dollars.

We hold that while the plaintiff is entitled to a decree for specific performance, such decree should be entered subject to the contingent right of dower of Allen Boring, husband of said Mary J. Boring, in said lands. Such decree will also be entered awarding said lands subject to the payment of any mortgage lien thereon at the time said contract was made, as well as any other claim or lien that may have been against said lands when said contract was entered into.

A warranty of title can not be enforced, unless the plaintiff is evicted from the lands by reason of a superior or paramount title, or something equivalent thereto.

The court of common pleas was without authority to order the amount of the mortgage lien to be paid out of the purchase money still due the said Mary J. Boring.

The decree of this court will be a decree for specific performanee of the contract on payment by plaintiff of the agreed purchase price, subject, however, to the payment by the plaintiff of any liens or encumbrances existing against said land at the time said contract was made, or was to have been carried into effect, namely: September 15, 1917.

A motion for new trial, if one is filed, will be overruled.

Houck, J., concurs.

Shields, J., dissents.


author: SHIELDS, J.

text:
    PRINCIPAL AND SURETY
    [Stark (5th) Court of Appeals,
    February Term, 1919.]
    Houck, Patterson and Shields, JJ.
    American Fidelity Co. v. Metropolitan Paving Brick Co. et al.
    1. Materialmen and Laborers not Required to Give Written Notice of Principal’s Default to Sue on Bond.
    A condition in the bond of a surety company, covering a contract entered into by county commissioners for road work, that immediate written notice shall be given to the surety company of any known default on the part of the principal in said bond, does not contemplate that materialmen and laborers must give such notice as a prerequisite to the enforcement of their claims.
    2. Neither Delivery of Promissory Notes Nor Extension of Time Operates as Release of Surety.
    The mere execution and delivery of promissory notes, in the absence of an agreement that the said notes are in settlement of the .indebtedness which they represent, does not operate as payment or settlement of the claim or release the surety, nor does a reasonable extension of time for payment operate as a release of the surety.

      Lynch, Day, Fimple & Lynch, W. S. Buff and G. B. McGUntoch, for plaintiff in error.

      J. W. Craine, for defendant in error.
   SHIELDS, J.

This was an action on a certain bond executed by the plaintiff in error as surety and others named therein as principals to the board of commissioners of Stark county, Ohio, to secure the faithful performance of a certain written contract entered into between said board of commissioners and said parties named therein as principals, for the improvement of what is known as the Canton-Cairo road by grading and paving said road and otherwise improving the same.

Said bond contained the following provision:

“Now, if the said party of the second part in the said foregoing agreement, shall well and truly execute all and singular the stipulations in said agreement by him to be executed, and shall pay all just and legal claims for labor performed upon and material furnished for the work specified in said agreement, then this obligation is to be void, otherwise to remain in full force and virtue in law, we agreeing and hereby consenting that this undertaking shall be for the use of any laborer or any person furnishing material, for a just claim, as aforesaid, as well as for the said county.”

That for the purpose of carrying out said contract said named principals in said bond purchased for the Metropolitan Paving Brick Co. certain brick, used in making said improvement, amounting to the sum of $10,798.55, for which said sum with interest from February 1, 1916, judgment was prayed for.

After certain preliminary questions raised by motions and demurrer to said petition by the several defendants were disposed of, the American Fidelity Co. filed its separate answer setting up two principal defenses:

First, that said surety company signed said bond as surety only; that long before the completion of said improvement, the purchase price of the brick furnished by said brick company became due and payable, and that if any default by said contractors in the payment of said brick existed, such default existed long prior to' the payment by said board of commissioners of the several amounts thereafter accruing under the several estimates made to said contractors, and that said amounts were largely in excess of said brick company’s claim, all of which was known to said board of commissioners,and its engineer, but unknown to the said surety company, and that notwithstanding the provisions of said contract and bond, neither said board of commissioners, nor its engineer, nor said brick company gave any notice to the said surety company of any default of the principals in said bond in the payment of said brick company’s said claim, but wholly failed to do so, and that by reason thereof said American Fidelity Co. is and was thereby released and discharged as surety from auy and all liability to the said brick company.

Secondly, that after the purchase price of said brick became due,■'without the knowledge or consent of the said surety company, said brick company agreed with the principals in said bond to extend the time of payment for the purchase price of said brick, and that on February 1, 1916, in consideration of the execution and delivery to said brick company of certain notes by the said J. B. Smith and J. C. Krabill did so extend the time for the payment of said brick for a definite time, which said notes were accepted by said brick company in full settlement of its said claim; that said Smith and Krabill afterward executed a chattel mortgage on certain property to secure the payment of said wrongful extension of time the rights of said surety company. Further, that at the time the payment of said brick company’s said claim was so extended, said principals in said bond were each financially responsible and then had property available on execution sufficient to satisfy said brick company’s said claim, but that since said time their financial condition has materially changed and their property has become so encumbered as to render the same less available to execution, and that by reason of said wrongful extension of time the rights of said surety company have thereby been prejudiced and that said surety company became and was thereby discharged from all liability to said brick company under the conditions of said bond.

In an amendment to its said answer, said surety company set up that said brick company did not bring its action within one year from the time of furnishing said brick pursuant to the provisions of Sec. 6974 G. C. which became effective September, 1915.

Separate answers were filed by the defendants, Wise and Garaux, and a joint answer by the defendants Smith and Krabill in each of which the execution of notes of said Smith and Krabill to said brick company in. settlement of said company’s said claim was averred, and the subsequent execution of a chattel mortgage by them to secure the payment of said notes.

A separate reply was filed to each of said answers by said brick company, denying in substance the allegations therein, inconsistent with the allegations of the petition, and in reply to the second defense of said surety company, said brick company admitted that at the time of the filing of said answer an action was pending in said Stark county common .pleas court on the part of said brick company to recover upon said promissory notes in cause known as No. 28264 therein, but that since the filing of said answer said cause has been dismissed.

With the issues thus made, a jury was waived and said cause was submitted to the court below, resulting in a judgment in favor of the brick company. By a petition in error filed in this court a reversal of said judgment is sought principally upon the specifications of error in grounds designated as Nos. 6 and 7, and which in substance are as follows:

“No. 6. Because said court erred in failing to find that the provisions contained in said bond requiring immediate written notice of any known default on the part of the principals in said bond was applicable to said brick company, and was a condition precedent to the right of said brick company to recover against the said surety company as surety on said bond; and that said court failed to find that the failure of said brick company to give such notice and to perform such precedent condition operated to release said surety company from all liability to said brick company, and was and is a bar to the right of said brick company to recover on said bond.
“No. 7. Because said court erred in failing to find that under the terms and conditions of said bond rendering the same available to material men, the duty devolved on said brick company to notify said surety company of any default known to it on the part of the principals in said bond within a reasonable time; and also erred in failing to find that said surety company was released from any and all liability to said brick company on account of the latter named company’s failure to give such notice.”

It is fundamental that a surety ordinarily is held liable to the strict letter of his contract and that such contracts receive a strict construction by courts. While that is true of individual sureties, courts of equity recognize a distinction between a surety signing for another gratuitously as a mere accommodation and a surety company engaged in the business of furnishing bonds for profit, the latter not being accorded the same degree of protection as the former. This distinction is recognized by both the United States and state courts generally and, among others, the case of Topeka v. Federal Union Surety Co., 213 Fed. 958, may be cited where it was held:

“The general rule that a surety should be held only where his liability is fixed by the most strict law does not apply to a corporate surety, which is engaged in the business of becoming surety for premiums supposed to be based on the amount of the risk, but on the contrary, such contracts are construed most strongly against the surety.”

And the court in its opinion on page 962 in said case says:

“Generally the surety is a favorite of the law, and should be held only where his liability is fixed by the most strict law. That is to say, what is known as the rule of striotissimi juris applies. These rules have no application to a corporate surety which is engaged in the business of becoming surety for premiums which are supposed to be based upon the amount of such risks. It is not in the position of a voluntary surety who signs his principal’s obligation. Upon the contrary, surety bonds are usually on forms prepared by the company, and in place of a strict construction in favor of such surety the instrument is construed most strongly against the surety. Contracts of such companies bear a distinct analogy to insurance, and are largely governed by the same rules in construction. ’ ’

Numerous cases are cited in the foregoing case both in the federal and state courts sustaining the same doctrine announced in said case. But while it is held that bonds so executed are not to be construed as an individual gratuitous surety, still the law clothes a surety company with certain legal rights which if ignored by those for whose benefit its bond is given, it may be relieved from its obligation of suretyship. ¥e are not prepared to say and do not say, that any violation of the provisions of such bond would relieve such surety company, but interpreting the contract embraced in the bond in the light of the ordinary rules of law, reference is had to a violation of its terms in some material matter affecting the substantial rights of the surety company. Here it is claimed on behalf of the plaintiff in error that the Metropolitan Paving Brick Co. had knowledge of the provisions of the bond given for the protection of those furnishing material for said road improvement, and having such knowledge it was chargeable with notice of the stipulations it contained. Among other things, said bond contained the following:

“Provided, that said surety shall be notified in writing of any act on the part of the said principal, which shall involve a loss for which the said surety is liable hereunder, immediately after the occurrence of such act shall have come to the knowledge of the board of engineers of the obligee herein, and a registered letter mailed to the surety, at its local office at Canton, Ohio, shall be deemed sufficient notice within the meaning of this bond.
“Provided further, that if the said principal shall fail to comply with the conditions of said contract to such an extent that the same shall be forfeited, then said surety shall have the right and privilege to assume said contract, and to either complete the same, or, by and with the previous consent of said board, sublet the same, whichever surety may elect to do, provided it is done in accordance with said contract. ’ ’

It was argued on behalf of the plaintiff in error that by the terms of the bond already referred to herein providing that immediate notice in writing should be given to. said surety company of any default upon the part of the principals named therein is a condition precedent, and this condition not having been complied with, the surety company was thereby relieved of liability on said bond. As was held in the case of Traveler’s Ins. Co. v. Myers & Co., 62 Ohio St. 529 [57 N. E. 458; 49 L. R. A. 760], “immediate written notice in said stipulation (referring to an insurance contract) means written notice within a reasonable time under the circumstances of the ease, and where the facts are not disputed what is a reasonable time is a question of law. ’ ’ Here it is conceded that the first notice of any default: under the bond given by the brick company was more than a' year after the completion and acceptance of the improvement by the said board of commissioners, and if the duty of giving such notice devolved upon the creditors of said contractors, it could scarcely be contended that notice given by the brick company was in contemplation of law given within a reasonable time. That the provision requiring such notice to be given is a material ; provision admits of no discussion, for it is not difficult to understand that a surety company’s liability may be lessened by prompt notification of a default on its indemnity bond. Counsel for plaintiff in error cite many adjudicated eases showing the materiality and necessity of notice when inserted in an indemnity bond, and when so inserted that the giving of such notiee is a condition precedent to a recovery on such bond, while it is urged on behalf of said brick company that said cases do not meet the conditions of the case at bar and are therefore inapplicable. In short, it is insisted by said brick company that the bond here given was given to the said board of commissioners for and on behalf of Stark county, and not to the said brick company, and therefore if any notice was to be given the surety company of any default under said bond it was to be given by said board of commissioners or its engineer, and not by said brick company, which was not a party to said bond for said improvement. That said bond was given for the benefit of said Stark county and for laborers and materialmen is apparent, and the mere fact that there was no statute then in existence expressly authorizing provision to be made for their special benefit is of no moment. As was held in the case of American Surety Co. v. Raeder, 8 Circ. Dec. 684 (15 R. 47, 49), “the subject-matter of a contract was clearly within the jurisdiction of the board, and the contract one that the board had ample authority to make, independent of any express provisions of the statute.” Such jurisdiction and authority were exercised here and we know of no instance where such provision has not been enforced for the protection of those for whom made, when not burdened with other conditions. As stated, it is urged here that by every rule of construction the obligation to give notice to the surety company of any default under said bond is extended to the material-men, who it is claimed acted through and adopted the county as their agent, thereby assuming the same relation and obligation to the bond as the county. As we read the evidence in the case, while it was provided by the side-agreement between said brick company and said contractors that a copy of such agreement should be filed with said board of commissioners, it appears not to have been so filed, nor does it appear that any transaction was had at any time during the construction of said improvement, or afterward, between said board of commissioners and said brick company whereby the claim of the latter was brought to the knowledge or attention of said board of comissioners. So far as the record- shows, said board of commissioners had no knowledge whatever of the existence of such claim. It was t argued that it was the duty of said brick company to have looked i after its interests by presenting to and filing its said claim with said board of commissioners before payment of the contract price for said improvement was made to said contractors, inde- ¡ pendent of any bond, on the ground that the policy of the law is , to reward the vigilant creditor, but the rejoinder is made that the bond of the surety company was the continuing protection of said brick compay until its said claim was barred by the statute of limitations, and moreover, that the surety company-having given its bond for the faithful performance of the conditions thereof, it could not close its eyes and remain indifferent! to its liability, relying on notice to be given by materialmen whom they couldn’t and didn’t know when the bond was signed. No express provision is contained in said bond that notice shall| be given by laborers or materialmen. If it was so intended, the inquiry is naturally suggested. Why was it not so designated in the bond ? if deemed necessary for its protection, the company ; had the undoubted right to insert such provision in the bond. Quoting from the brief of counsel for plaintiff in error—

‘ ‘ The surety company was under no obligation to enter into this bond for the protection of the county and the materialmen, and if it saw fit to do so it had a legal right to carry into the bond such conditions as it thought advisable for its protection. ’ ’

The provision mentioned expressly says “said surety shall be notified * * immediately after the occurrence of such act shall have come to the knowledge of the board or engineer of the obligee herein.” We do not feel at liberty, aided by any rule of construction, to go outside of and read into this bond contract an interpretation which will restrict or extend the meaning of its provisions which appear clearly expressed therein. As applied to said contract, we are disposed to adopt the reasoning and apply the rule laid down by the Supreme Court in the case of Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. 574], Without further extending the discussion on this branch of the case, we are of the opinion that said bond does not contemplate that laborers or materialmen shall give the notice mentioned in said bond as a prerequisite to the bringing of suit on their claims.

Another ground of error alleged is that said brick company agreed to extend and did extend the time of payment of the purchase price of said brick for a definite time and for a consideration, without the knowledge and consent of the plaintiff in error, and to its prejudice. This allegation of error relates to the notes and chattel mortgage given by Smith and Krabill, two of the contractors, to the brick company, which it was claimed were accepted in settlement and payment of said brick company’s account. The record shows a marked conflict in the testimony given by these parties and that of A. P. Maurer, the sales-manager of the brick company, as to the circumstances under which said notes were given and why they were given. The former testified that they were given in settlement and payment of said brick company’s account, which was denied by Maurer, who further testified that they were given February 1, 1916, when the books of said company were balanced, and when the amount here sued on was found to be due said company from said contractors who executed said notes which were taken by said brick company not as payment of said account, but as security therefor, and that no credit was ever given them or entered on the books of said company for said notes. The trial court was clothed with the prerogative of a jury to determine the credibility of witnesses and the weight to be given to their testimony, and the judgment below would seem to indicate how said court viewed the testimony of these witnesses. However this may be, the suit brought on said notes was dismissed without prejudice before this suit was instituted. We might here add that the mere giving of these notes, in the absence of an agreement that the same should be and were in settlement of said brick company’s account, would not operate as payment or satisfaction of said claim, nor would a reasonable extension of time, if given, necessarily operate to release a paid surety company. Guaranty Co. v. Pressed Brick Co., 191 U. S. 416 [48 L. R. A. 242; 24 Sup. Ct. 142]; Standard Salt & Cement Co. v. National Surety Co., 134 Minn. 121 [158 N. W. 802], and numerous cases cited therein.

It was also argued that under the amended answer of the plaintiff in error in respect to the necessity of suit being brought within one year from the date of the delivery or furnishing of material, the provisions of the act referred to apply in this case to the material furnished by said brick company after September, 1915, when the provisions of said act became effective. It will be sufficient to say that the contract for the brick furnished by said brick company for this improvement appears to have been entered into a year or more before the passage of said act and therefore its provisions cannot be held to apply to this case.

As to the error assigned that “the findings and judgment of the court in said cause are not sustained by evidence and are clearly and manifestly against the weight of the evidence," we need only say that the bill of exceptions together with the briefs of counsel have been read, examined and considered by us with no little care with reference to the issues herein, and while in some aspects of the case our first impressions have yielded to the result of subsequent investigation, we have reached the conclusion that under the evidence and the law, the judgment of the court of common pleas was right and should be affirmed. It is so ordered. Exceptions.

Houck and Patterson, JJ., concur.


author: SHOHL, J.

text:
    TRUSTS AND TRUSTEES — WILLS
    [Hamilton (1st) Court of Appeals,
    June 28, 1920.]
    Shohl, Hamilton and Cushing, JJ.
    Alter et al. v. Alter et al.
    1. Vested Interest Defined.
    A vested interest is one in which there is a present fixed right either of present enjoyment or future enjoyment.
    2. Vesting of Estates Favored.
    The law favors the vesting of estates and unless a condition precedent to vesting is clearly expressed courts incline to that construction which treats interests given under the will as vested in the donee at the death of the testator.
    3. Bequest Directing Payment or Division of Estate Vests Immediately.

      A bequest in tbe form of a direction to pay or to pay and divide at a future period vests immediately, if tbe payment be postponed for the convenience of the estate, or to let in some other interest.
    4. Substitution of Course of Administration and Acceleration of Benefits.
    Where a testator gives an absolute and vested bequest, but provides for a postponement of the enjoyment thereof, and when an exigency, nonexistent at the creation of the trust, arises, which is onp not then anticipated by the testator, a court of equity may substitute another course of management of the trust fund in order to bring about a more complete realization of the purposed bounty. It may order an acceleration of the enjoyment of income or principal of the trust which neither expressly nor impliedly authorizes such a course to be taken. It is not the mere convenience or even the benefit of the bene- ' ficiaries which will move the court to hasten enjoyment of trust funds, but the necessity of varying the terms of the trust in order to give effect to the ultimate intention of its creator.
    5. Reasonable Exercise of Trustee's Control or Discretion not Subject to Review.
    Where trustees under a will are authorized “to hold, manage, control and from time to time, as need be, reinvest,” so long as the trustee acts in good faith he is not subject to the control of the beneficiaries, nor of the courts, in the reasonable exercise of the discretionary power cónferred upon him.
    6. Power of Trustees not Lost by Delay Pending Determination of Existence and Extent of Powers.
    A power given to trustees under a will to sell certain stocks three years after the death of testator is not lost by delay on the part of the trustees to exercise it pending an action to determine the existence and extent of such powers.
    Appeal.

      Willis M. Kemper, for George S. Alter.

      Rufus B. Smith, for Franklin Alten

      Pogue, Hoffheimer <& Pogue, for Robert S. Alter and Lucien W. S. Alter.

      James E. Robinson, for Blanche Alter, Elizabeth T. Alter and Rebekah Alter.

      W. S. Little and J. L. Kohl, for Walter B. Hofer, et al., Trustees.
   SHOHL, J.

This cause is heard here on appeal.

The action was brought under the provisions of Secs. 10857 and 10858 G. C., to obtain the direction of the court respecting the property to be administered under the trust created by the will of Franklin Alter, deceased.

The testator, a resident of Cincinnati, Hamilton county, Ohio, executed his will in August, 1909. He died in February, 1916, and the will was duly admitted to probate in March, 1916. It is a document of some twelve printed pages. The questions arise under Item 6, which disposes of the residue of the property. It is devised and bequeathed to the trustees herein in trust for a period of ten years from the date of the testator’s death “to be held, managed, controlled and invested, and from time to time as need be reinvested by my said trustees * * * for the period of ten years from and after my death (for the benefit and advantage of my eight children) namely Franklin Alter, George A. Alter, Henry T. Alter, Robert S. Alter, Lucien W. Alter, Blanche Alter, Elizabeth T. Alter and Rebekah W. Alter. ’ ’ The trustees are directed to pay to each of said children $2500 per annum.

It is further provided: ‘ ‘ Should the net income of my estate be more than sufficient to pay each of my said children the sum of $2500 per annum, such excess shall go in augmentation and become a part of the principal of the estate.

The will provides that in the event of the death of any particular child before or after the death of the testator (leaving issue), the trustees shall pay annually to its issue per stirpes the portion of the parent. In the event of the death of any child leaving no issue, or leaving -issue all dying before the period of final distribution, that part of the income which was to have been paid to such child shall go in augmentation and become a part of the principal of the estate.

The trustees are directed to sell and dispose of the stock in the American Tool Works Company of Cincinnati, Ohio, within one year after the testator’s death, unless they shall unanimously agree to hold it for a period of three years, “then and in that event, I direct that said stock be sold and disposed of at the end of the last mentioned period. ’ ’

The will then provides: “At the end of ten years after the date of my death, I hereby authorize, direct and empower my Trustees and Executors, to convert my entire estate then remaining into money, except as hereinafter provided, and for that purpose I authorize and empower my Trustees and Executors to sell all my real estate then undisposed of and to convey the same by good and sufficient deeds to the purchaser or purchasers thereof. When my estate is so converted into money, I direct that my Trustees and Executors, after the payment of all costs and expenses incident to the administration of my estate (shall pay the same out) subject to the advancements made by me as hereafter set forth, as follows:

1 One-eighth part thereof to my son Franklin Alter, and his heirs. ’ ’

The other seven eighths are given to the other seven children by language identical to that with reference to Franklin Alter. One of the children, Henry T. Alter, predeceased his father. He was childless, unmarried and intestate.

The first cause of action in the petition asks instructions as to the folowing matters:

(A) Whether or not the estates created by paragraph 6 of Item 6, of said will in each of testator’s children and their heirs is a vested estate, in fee simple in each of said children.

(B) Whether or not the estates so created by said paragraph 6 of Item 6, of said will, for said children can be mortgaged, encumbered, sold, and transferred by said children; or passed by their wills.

(C) Whether or not said children may by instruments in writing duly executed transfer or assign their interest in the estates so given to them by said paragraph 6 of Item 6, of said will, to take effect at once, and what form of instrument is necessary to effect said transfer and protect said trustees.

(D) Whether or not the now surviving children of said testator each of them own absolutely and in fee simple the one-seventh of the one-eighth of testator’s estate given by testator to his son Henry T. Alter by said paragraph 6 of Item 6 of said will.

(E) Whether or not said trustees now have the power under said will to sell the shares of stock owned by the estate in The American Tool Works Company of Ohio.

In the second cause of action the plaintiffs allege that at the time of the making of the said will the income from the estate of the testator was not substantially more than sufficient to pay to the eight children, then living, the sum of $2500 per annum each, but that since the making of the said will, especially since about one year before testator’s death, his estate was greatly increased in value, so that at the time of his death, and ever since, the income of the trust estate has been vastly more than sufficient to pay the sum of $2500 to each of his (now) seven children, the income being in excess of the sum of $100,000 per annum.

By amendment to the amended petition it is further alleged that the plaintiff, Franklin Alter, is fifty and George T. Alter forty-nine years of age; that Franklin Alter was formerly in the revenue service of the United States government, and that at about the time of the death of his father he was deprived of his said office and salary, and it has been impossible for him to find employment; that he has a wife and children to support and has no other income than said $2500 per annum, which, under present circumstances and conditions is wholly inadequate for the support of himself and his family; that George T. Alter is now afflicted with heart trouble and in consequence thereof is unable to engage in any business or calling that will enable him to earn his own support; and that he is required to support his daughter and under present circumstances and conditions the sum of $2500 per annum is wholly inadequate for his needs.

The facts are not seriously in dispute. It is contended on behalf of the trustees that the testator’s children do not take a vested interest, but that they have, in the language of Holt v. Lamb, 17 Ohio St., 374, 387, an equitable right to have the property sold. Applying this doctrine, they maintain that the will in question creates gifts contingent upon their surviving the ten-year period. They cite Barr v. Denney, 79 Ohio St., 358 [87 N. E. 267], and the cases therein referred to. A vested interest is one in which there is a present fixed right either of present enjoyment or of future enjoyment. Page, "Wills, Sec. 656.

What, then, was the intention of the testator as evidenced by the language of the entire will? Undoubtedly the law favors the vesting of estates and unless a condition precedent to vesting-is clearly expressed courts incline to that construction which treats interests given under the will as vested in the donee at the death of the testator. See Bolton v. Bank, 50 Ohio St., 290 [53 N. E. 1115]; Linton v. Laycock, 33 Ohio St., 128, and Brasher v. Marsh, 15 Ohio St., 103.

It will be noted that the testator has directed the division of an estate among specified persons, only by a direction to divide and pay. A bequest in the form of a direction to pay or to pay and divide at a future period vests immediately, if the payment be postponed for the convenience of the estate, or to let in some other interest. Hawkins, Wills, 232. The whole subject is treated in the note in L. R. A., 1918E, page 1097.

It appears from the entire will, however, that the testator intended that each of his children was to be the owner of one eighth of his residuary estate, even though he stipulated that for ten years the management should be withheld from them, and he further desired to restrict their enjoyment of it during that period. Unlike the case of Barr v. Denney, supra, the distribution is to beneficiaries now known. In the event that all of his children should die during the ten-year period, there is no disposition of the estate by the testator. If their gifts are contingent, and the conditions not fulfilled, the construction contended for on behalf of the trustees would make possible an intestacy as to the residuary estate. We hold that the will gives each of the surviving children a vested equitable interest. This conclusion disposes of the first four questions propounded. It is, however, only preliminary to the consideration of the application to increase the allowances of $2500 to each of the children, as the claim of plaintiffs is based upon the absolute ownership of the share, the income of which it is how sought to anticipate.

The evidence shows that plaintiff, George T. Alter, is a man now fifty years of age. He is afflicted with heart trouble, which not only impairs his ability to earn a livelihood, but tends to increase his requirements. His condition is such that there is a possibility, if not a probability, that a delay in the enjoyment of his father’s bounty may nullify the benefits to him of the gift itself.

The older brother, Franklin Alter, is now past fifty years of age, and has a family to support. In view of the increase in the cost of living, the amount provided by his father will not provide the kind or character of a livelihood which a testator, writing his will in 1909, would have contemplated as the result of a gift of that magnitude. In arriving at the intention of the testator the court should as far as possible try to put itself in the position of the testator at the time of making the will. Jewett v. Jewett, 12 Circ. Dec. 131 (21 E. 278). It appears from the will that Franklin Alter in his lifetime made advances to those of his children whose necessities required it.

A review of the authorities, many of which are set out in the note in Bennett v. Nashville Trust Co., 46 L. R. A. (N. S.), 43 [127 Tenn. 126; 153 S. W. 840], leads us to conclude that where a testator gives an absolute and vested bequest but provides for a postponement of the enjoyment thereof, and when an exigency, non-existent at the creation of the trust arises, which is one not then anticipated by the testator, a court of equity may substitute another course of management of the trust fund, in order to bring about a more complete realization of the purposed bounty. It may order an acceleration of the enjoyment of income or principal of a trust which neither expressly or impliedly authorizes such a course to be taken. See Bennett v. Nashville Trust Co., 127 Tenn., 126 [153 S. W. 840; 46 L. R. A. (N. S.) 43] ; Pitts v. Rhode Island Hospital Trust Co., 21 R. I., 544 [45 Atl. 553] ; Rhoades v. Rhoades, 43 Ill., 239; Longwith v. Riggs, 123 Ill., 258 [14 N. E. 840] ; Enorr v. Millard, 52 Mich., 542 [18 N. W. 349], and Curtiss v. Brown, 29 Ill., 201.

It is not the mere convenience or even the benefit of the beneficiaries which will move the court to hasten the enjoyment of trust funds, but the necessity of varying the terms of the trust in order to give effect to the ultimate intention of its creator.

In the ease at bar the income which the estate is required to pay the beneficiaries is $17,500 per year. The record shows that for the past four years the average annual income has been in excess of $150,000. The principal is piling up, and belongs indefeasibly to the children of the testator, who stand by and are unable to procure the wherewithal to meet their obligations, and to educate their children in accordance with the station of life which is now their proper expectancy. Indeed, as the interests of the children are vested, they might be subject to execution, and the refusal of the court to accelerate the enjoyment of the fund might result in loss of the fund in which no person has any interest but the legatees.

The court is of opinion that the case of George Alter presents a clear instance for the application of the doctrine set forth, and that the situation of Franklin Alter, while perhaps not so strong, likewise requires a similar order. The court will order an increase in the annual amounts directed under the will to be paid to each of them to $6000, subject to the further order of the court.

It will be noted that as to the share of each no other person can by any possibility have any interest in the fund except those who are the “issue” of the children of the testator, and their interest is only a contingent interest in the income during the remainder of the ten-year period. Our decision, therefore, cannot prejudice any person who might be interested, nor lessen the interest of any parties in the estate in any way whatsoever. It does not increase the quantum of the inheritance of George or Franklin.

As to the other children of the testator, their present situation shows no reason for the interposition of a court of equity. The trustees will be directed to charge the additional payment hereby ordered against the shares of George and Franklin respectively, so that on final distribution each of the brothers and sisters will get his full share with its accumulations.

Let us now take up the question as to whether the trustees have power under said will to sell the shares of stock in The American Tool Works Company, now owned by the estate. It is urged that they no longer have the right to sell the stock.

At the time of the death of the testator, the American Tool Works Company was a corporation organized under the laws of West Virginia. Thereafter, in 1918, its directors caused a corporation of the same name to be incorporated under the laws of the state of Ohio. The property of the West Virginia corporation was transferred to the Ohio corporation, and each of the stockholders thereupon received the same number of shares of the same par value in the Ohio corporation that he had previously held in the West Virginia Company. The assets of the corporations were identical. It is contended that this constitutes a sale and that the trustees have, by consenting to- the foregoing, exercised and spent the power of sale given to them under the will.

It is apparent to the court sitting in equity that the change was one of form and not of substance, so far as constituting a sale was concerned. It was in effect the procuring of naturalization of the foreign corporation. The conduct of the trustees, in not taking action, while the question of their power tó do so was being litigated in the courts, was not improper. The trustees are directed by the will to sell ‘ ‘ at the end of ’ ’ the three year period. The power granted to the trustees was monitory in its nature and is not defeated by the delay in its exercise shown by the facts in this case. See 2 Perry, Trusts (6 ed.), Section 490 and note 5.

It appears further that all of the beneficiaries desired thát the stock now held by the trustees be not sold. They all join in urging that no sale be made. They contend that by their conduct they have now estopped themselves from calling the trustees to account if the trustees should comply with their request, and that therefore the trustees should be required to carry out their wishes since they now incur no liability thereby. It is not necessary for this court to determine whether the trustees would be protected if they-should acquiesce in the position of the legatees and carry out their request. The sole question upon which the direction of the court is asked is whether the trustees now have the power to sell.

In addition to the specific direction to sell the stock of The American Tool Works Company, the will authorizes the trustees to “hold, manage, control, and, from time to time, as need be, reinvest. ’ ’ So long as the trustee acts in good faith he is not subject to the control of the beneficiaries, nor of the courts, in the reasonable exercise of the discretionary power conferred upon him. See 2 Perry, Trusts (6 ed.), Sec. 509; also note, 8 L. R. A., N. S., 398.

The court, therefore, will not enjoin the trustees from making sale of the stock of the American Tool Works Company.

A decree may be drawn embodying the foregoing.

Hamilton and Cushing, JJ., concur.


author: ALLREAD, J.

text:
    PHYSICIANS AND SURGEONS
    [Hamilton (1st) Court of Appeals,
    December 22, 1922.]
    Ferneding, Kunkle and Allread, JJ., of Second District sitting by designation.
    David Montgomery v. Samuel E. Eagon.
    Skill of Physician in General Practice and Specialist Distinguished.
    A physician in general practice is not responsible for the same degree of skill and care which would be exercised by a specialist or one equipped with hospital service, but is responsible only for such care and skill as an ordinary physician would exercise under like circumstances.
    Error.

      George A. Hamma, for plaintiff in error.

      Buehwalt&>', Ileadley & Smith, for defendant in error.
   ALLREAD, J.

This is an action against a physician for malpractice. There was an instructed verdict for the defendant in the court below.

The plaintiff in error, a child about five or six months of age, had spilled lye upon its face and in its left eye. About one-half hour thereafter the defendant in error was called to administer relief. After a few day’s treatment the child was •taken to the hospital and the eye was removed.

This is a most unfortunate ease — indeed a very sad case— ■but it does not follow from the accident alone and the result, that the physician is liable unless he fails to use the skill and care which an ordinary physician in the general practice is accustomed to employ under like circumstances. It would be unjust to the defendant to hold him to the standard of a specialist or one equipped with hospital service. The only specification of negligence in the petition sought to be sustained by the evidence is that the defendant, “failed to wash the lye out of the said eye.”

The undisputed evidence is that the lye would be completely slackéd by the tears from the eye in five minutes and that the burning of the eye would occur only during the process of slacking. The undisputed evidence is that the physician did not arrive until twenty or thirty minutes after the accident and had only to deal with the slacked lye — the process of burning having been completed.

Doctor Ayer’s testimony as to the proper treatment relates to the time of the accident. He says, page 34, “The physician should wash the eye out immediately.” He also says as to the wash, “water is the most handy and is the thing most people use; it is what I would use at first, at the very start, until I could get something to counteract the lye.” Doctor Sykes’ opinion also refers to treatment at the time of the injury and while the lye is still burning. So that we have in fact no medical testimony as to the proper treatment after the burning of the lye has subsided and the presumption is in the absence of evidence to the contrary that the physician was not negligent.

The claim that the defendant was negligent in not having the child removed to a hospital or other more favorable location is not supported by the pleadings.

We are, therefore, of opinion that the evidence was not complete as to all the essential facts necessary to sustain a cause of action. It does not appear that any evidence tending to complete the cause of action was rejected by the court. The other alleged errors presented by plaintiff in error in his argument and brief would not be prejudicial in the present situation.

Finding no prejudicial error therefore the judgment is affirmed.

Ferneding and Kunkle, JJ., concur.


text:
    Wills.
    [Licking (5th) Court of Appeals,
    March Term, 1918.]
    Shields, Houck and Powell, JJ.
    Willis A. Robbins et al. Admrs. v. David H. Pigg et al.
    Neither Widow Nor Brothers of Deceased Legatee as Heirs Per Stirpes Take Under Lapsed Legacy to Deceased Brother.
    Under a bequest to four legatees named in the will of a testator “or their heirs per stirpes, each the sum of $1,100 absolutely” the widow of one of the legatees, whose death without issue surviving, preceded the death of the testator, does not take as the heir-at-law of the deceased legatee, neither do the three surviving brothers take said legacy by reason of their relationship to said deceased legatee, but the said legacy lapses under the general law relative to wills and becomes the property of the residuary legatee.

      Kibler & Kibler, for plaintiffs.

      Fitzgibbon, Montgomery & Black and Norpell <fs Norpell, for defendants.
   POWELL, J.

This action is in this court by appeal from tbe judgment of the court of common pleas of this county. It was brought in that court by the plaintiffs, who are administrators with the will annexed of the estate of one Sidney Smith,, deceased, asking the direction ’of the court relative to the discharge of their duties as such administrators, and is brought under the special provisions of Sec. 10857 G. C. The facts on which the question in controversy arises are as follows:

Sidney Smith, the testator, died testate on September 9, 1916. His will had been executed on May 26, 1900. He died without issue, his wife having died several years before his death. In the third item of his will he provided as follows:

“Item 3. I give and bequeath to Charles A. Pigg, William Pigg, Geo. T. Pigg and David IT. Pigg, or their heirs, per stirpes, each the sum of $1,100 absolutely, which said amount I received from my wife by inheritance, she having been a sister of the legatees mentioned in this item.”

William Pigg, one of the legatees mentioned in said item, died on April 30, 1916, intestate, and without issue, leaving the defendant, Dora Pigg, his widow, who was his sole heir at law. Dora Pigg claims as such heir that the $1,100 legacy, given to her deceased husband by the will of said testator, should be paid to her. The defendants, David H. Pigg, Charles A. Pigg and Geo. T. Pigg, who are named in said Item 3 and who each received the legacy of $1,100 therein given to them, claim that by the terms of said will they are entitled to the said legacy. Ella Smith, who is the residuary legatee of the said testator, by virtue of Item 7 of the will, also claims to be entitled to receive said legacy.

The plaintiffs in this action ask the direction of the court as to who is entitled to the same. Said Item 3 gives to the four legatees named therein the sum of $1,100 each absolutely. The legacy given to William Pigg by said Item 3 lapses and becomes a part of the residuum of the estate of said testator, unless the will itself otherwise provides. Dora Pigg claims to be the heir at law of said William Pigg, and that a proper construction of said Item 3 -would give the same to her as such heir at law. This court is of opinion otherwise. While she is the heir at law of William Pigg, she is not entitled to a legacy given to him, but which never came into his possession, by reason of his death having occurred before the death of the testator. There is nothing in said item which indicates that the said testator desired that William’s widow should receive the legacy given by him to William. The language of said item applicable to the legacy of William Pigg is as follows: “I give and bequeath to William Pigg, or his heirs, per stirpes, the sum of $1,100 absolutely.” Dora Pigg is not an heir per stirpes of William Pigg. She is his heir at law by virtue of the statute, and by reason of having survived him without leaving issue. If she is entitled in any way to this legacy, it is because the language of the will itself makes her a legatee under the will of said testator, and there is nothing in the will which indicates that the testator intended to give this legacy to her in the event that William Pigg should die before the death of the testator. In other words, she is not his legatee; neither is she entitled to receive said legacy as the general heir at law of William Pigg; neither is she entitled to said legacy as being heir per stirpes of William Pigg.

It is further claimed that the surviving brothers of William Pigg, named in said Item 3, are entitled to said legacy, because by the terms of the will it is shown to be the intention of the testator that the amount of money received by him from his wife as an inheritance should be repaid to her brothers out of his estate. We do not subscribe to this view. The testator executed two codicils to his will, and it is recited in each of them that in his lifetime he paid the legacy given by said will to David H. Pigg “in full of said legacy, the same having been paid in advance to him;” and further, that so much of said will as gave a legacy to said David H. Pigg is canceled, and the legacy itself is declared adempted or satisfied. In the second codicil he again recites that he had paid to David IT. Pigg the sum $1,100 provided to be paid to him by said Item 3; and further he says, “I hereby cancel and annul the part of said Item 3 which provides for the payment of that amount to him.” He further adds, as a part of said codicil, that his original will, as modified by said codicil, is now his last will and testament. We think from this circumstance that the said testator did not intend to give the specified sum of $4,400 to the brothers of his deceased wife, but that he meant simply what he said: That he gave to them each the sum of $1,100. There is nothing in this will that shows any intention in the mind of the testator to give said total sum to the brothers of his wife as a class; and, in fact if such a construction should be placed upon the will it would be in conflict with the other provisions of said codicils, as above quoted.

It is the settled law of Ohio that a legacy given to a legatee who is either dead at the time of making the will or dies thereafter, before the death of the testator, lapses and becomes a part of the residuum of his estate; or if this is not true, that the testator dies intestate as to such legacy. There is a provision of the statutes which seeks to prevent the lapsing of legacies in certain contingencies. I refer to Sec. 10581 G-. C. But none of the conditions prescribed by this section of the statutes is applicable to the provisions of this will. In the first place, Dora Pigg, the widow of William Pigg, is not the issue of William Pigg, as provided in said section. Neither is she of any degree of relationship to the said testator. So that, as far as she is concerned, there is nothing which prevents the lapsing of the legacy. Neither does it descend to the three brothers living for the same reason. There is nothing which appears in said will which shows an intention to give the same, or any part thereof to said legatees.

So there is nothing in the relationship of the parties which prevents the legacy from lapsing. Schaefer v. Bernhardt, 76 Ohio St. 443 [81 N. E. 640; 10 Ann Cas. 919], There being no special rule applying to the claims of any of said parties, the legacy lapses under the general law relative to wills, and according to the terms and provisions of Item 2 of said will, the same becomes the property of the residuary legatee, Ella Smith.

A decree may be drawn in her favor in accordance with the opinion herein expressed.

Houck and Shields, JJ., concur.