text:
    Herrman et al. v. Levy et al.

      Contest of will — Evidence of undue influence — Statements of legatee admissible, when — Misconduct of counsel reversible error, when —Necessity of objection.

    1. In an action to contest a will, where it is claimed that one of the legatees exerted undue influence over the testator, statements of such legatee, addressed to the wife of a disinherited son; that when the father died the son “Won’t get a cent, I will see to that, only a dollar,” are admissible in evidence as tending to show a disposition on her part to keep the testator under her control and supervision, and to exclude other- members of the family from any -opportunity to interfere. (Thompson et al. v. Thompson et al., 1>3 Ohio S-t., 3S6, distinguished.)
    2. Misconduct of counsel to constitute reversible error must be prejudicial and-objection made at the time of its occurrence.
    (Decided May 14, 1917.)
    Error: Court of Appeals for Hamilton county.

      Mr. Wm. W. Prather and Mr. R. E. Werner, for plaintiffs in error.

      Mr. Froome Morris, for defendant's in error.
   Hamilton, J.

The action in the common pleas court was to test the validity of the will of Solomon Levy. The trial of the issue resulted in setting aside the will, and judgment was entered accordingly.

Rachel Herrman and. Margaret Herrman, two of the legatees under the will, prosecute error in this court, for reversal. The petition in error states several grounds of error, complained of, but the only alleged errors urged by counsel for plaintiff in error, as indicated by the memorandum of authorities filed, are as follows:

1. Alleged error in the admission of the testimony of Mrs. Edward Levy, relating .to the statements made to her by Rachel Herrman, one of the defendants below.
2. Misconduct of counsel for plaintiffs below.
3. That the verdict is against the weight of the evidence.

The evidence disclosed that Solomon Levy died leaving two sons, Arthur Levy and Edward Levy, his only heirs at law; that for many years -he had lived with plaintiff in error, Rachel Herrman, who was his sister; and that one of the plaintiffs in error,- Margaret Herrman, was a niece of said testator and a daughter of said Rachel Herrman; that for many years testator 'had been separated from his wife, the mother of defendants in error; that for many years said Rachel Herrman had taken care of testator, and used testator’s money to purchase a home which they together occupied; that she directed the sale of other property for him, and, in short, looked after him generally and largely transacted his business.

It is claimed by defendants in error that the will was the result of undue influence -exerted over the testator by plaintiff in error, Rachel Herrman, who together with her daughter and Arthur Levy •were the only legatees under the will.

At the trial of the case Maude Levy, wife of the son Edward Levy, testified as follows:

“Q. I want to direct your attention particularly to the occasion when her mother died, and ask you whether you were at the house ;at that time.
“A. I was.
“Q. And- 'had .a conversation with her?
“A. I did; yes. (Objected to by counsel for defendants. Objection overruled; exception taken by counsel for defendants.)
“Q. What was that conversation, Mrs. Levy, with Mrs. Rachel Herrman?
“A. The day her mother died I went over and talked to her, and as I went to leave she said was I coming back that evening. I said, ‘Yes, I suppose Ed. and I will be back.’ She said, ‘Is Eddie coming?’ I said, ‘Yes.’1 And she said, ‘Not a soul in the 'house will recognize him; we don’t want him, and when Sol dies • Eddie won’t get a cent. I will see to that; only a dollar.’ ”

This evidence was objected to by counsel for Rachel and Margaret Herrman by a general objection 'interposed. It is argued by counsel for plaintiffs in error that this evidence was not admissible, as it is a statement or declaration against interest, of one of several legatees, and can not be binding upon the other legatees, and was admitted contrary to the rulé laid down in the case of Thompson et al. v. Thompson et al., 13 Ohio St., 356, and cases cited.

We are 'in full accord with the principle laid down in Thompson v. Thompson, supra, but the proposition in that case is not applicable to the instant case. In that case the witness testified that certain of the legatees had informed said witness that the testator Thompson was insane and incapable of transacting business. This the court held to have been properly excluded. It could only be admissible as a declaration against interest, which under the rule in Ohio can not bind other legatees in a will.

In the instant case it is claimed that Rachel Herr-man exerted an undue influence over the testator, and under the -circumstances her language addressed to Maude Levy, wife of the disinherited son, was admissible, for the reason that it tended to show a disposition on her part to keep the testator under her control and supervision, and to exclude other members of the family from any opportunity to interfere. Counsel cite Lewis v. Mason, 109 Mass., 169.

The language addressed to Maude Levy, testified to by her, not only shows a disposition to exert a control over testator and exclude the family from consideration, but showed a disposition to directly dictate the making of the will, and is proper evidence for the jury to consider as an act in connection with other acts -tending to show undue influence. The evidence was properly admitted.

The second ground of error urged was that there was misconduct on the part of counsel for plaintiffs below in mentioning in the colloquy which took place at the trial certain statements looking towards a compromise.

We will content ourselves by saying that the conduct was not prejudicial, and, since no objection or exception was noted and the court’s attention was not called to the matter at the time, we do not think this ground is reversible error.

The evidence produced at the trial by the contestants was mainly directed to the question of undue influence claimed to have been exerted by-Rachel Herrman upon the testator in the making of the will: The evidence.is quite voluminous, and without discussing it in detail will say we are óf the opinion that the vérdict is not manifestly against the weight of the evidence.

There being no error prejudicial to ■ plaintiffs in error disclosed by the record, the judgment will be affirmed.

Judgment affirmed.

Jones, P. J., and Gorman, J., concur.


source: Caselaw Access Project

author: Lieghley, J.

license: Public Domain

text:
    The Central District of The Christian Missionary Alliance v. Merrill.

      .Innkeepers and hotels — Question of fact whether private house — Liability for goods of guest — Failure to maintain safe — Section 5981, General Code.

    1. Whether a house where a guest is entertained is a public inn or a private house, is a question of fact.
    2. An establishment maintained by a Missionary Alliance, which consists 'of thirty rooms, to which reputable persons are admitted for hire, whether they be members of the Association or not, and where they may obtain board for a day, week or month and where a register is kept, is a hotel, and said Alliance is liable to a guest for goods lost where it has not complied with the provisions of Section 5981, General Code, by maintaining a safe for the reception of valuables or by posting thé required notice in the rooms.
    (Decided June 25, 1917.)
    Error: Court of Appeals for Cuyahoga county.

      Messrs. Carver & Thompson, for plaintiff in error.

      Mr. I. N. Loeser, for defendant in error.
   Lieghley, J.

The parties were in reverse order below and will be so mentioned here.

The defendant maintains an establishment at Beulah Park, consisting of thirty rooms, to which reputable persons are admitted for hire, whether they be members of the Alliance or not. The proof tends to show that an applicant may obtain board for a day, a week, or a month; that a register is kept; that there is no sign on the building; that on August 1, 1916, the plaintiff, a non-member, was received as a- boarder or guest; and that on August 29, 1916, while she was absent from her room, jewelry and valuables were stolen therefrom by some intruder breaking the lock on the door. It is not claimed by the defendant that it complied with Section 5981, General Code, by maintaining a safe for the reception of valuables, or that notices-were posted in the rooms as per said section.

The plaintiff filed her statement of claim in the municipal court to recover from defendant the value of the goods stolen. A trial thereof resulted in a judgment for plaintiff, to reverse which judgment error is prosecuted to this court.

In the trial of the case below the defendant claimed that it maintained a boarding house only. The plaintiff claimed that the defendant at the time maintained a hotel. The trial of the case involved principally a determination of the question of whether or not the defendant kept a boarding 'house or was an innkeeper. From the proof we ■are not inclined to say that the trial court was wrong. The question whether a house where a guest is entertained is a- public inn or a private house, is a question of fact. (Beale on Innkeepers arrd Hotels, Sections 13 and 14.) For authority as to wh'o is a guest, see Arcade Hotel Co. v. Wiatt, 44 Ohio St., 32.

The position maintained by the defendant having been determined to be wrong, the defendant became responsible for the safety of the personal possessions of the plaintiff left by her in her room while a guest of said hotel, in the absence of any substantial or proven claim of negligence on her part. Fuller v. Coats et al., 18 Ohio St., 343, and Palace Hotel Co. v. Medart, 87 Ohio St., 130.

The judgment of the court below is affirmed, with costs assessed against the plaintiff in error.

Judgment affirmed,

■Grant and Carpenter, JJ., concur.


author: Jones, P. J.

text:
    Beckman, Trustee, et al. v. The Emery-Thompson Machinery & Supply Co. et al. Beckman, Trustee, v. The F. W. Niebling Co.

      Judicial sales — Two-thirds appraisement — Section 11675, General Code — Inapplicable to personalty, when — Mortgagee as purchaser— Payment of purchase money into court, unnecessary, when — Trustee of bondholders — Authority to purchase mortgaged property — Receivers — Right to acquire property from purchaser at judicial sale.

    1. Section hl675, General Code, which provides that property can not be sold at judicial sale for less than two-thirds of its appraised value applies only to real .estate, and since there is no rigid provision of the statute which requires personal property to be sold at judicial sale for two-thirds of the appraisement, it is within the power of the court to confirm a sale made, upon proper advertisement, at the highest anti best bid.

      2. It is not' necessary where the mortgagee is the purchaser of ¡property to pay the entire purchase money into court, when the principal amount thereof would be redistributed to him on account of his lien; but the exchange of receipts by the sheriff . and the plaintiff is as effective as though the money had been passed back and forth.
    3. The consent of all bondholders is not necessary to confer authority upon a trustee for bondholders to purchase the mortgaged property on behalf of the bondholders, but the non-assenting bondholders may compel such trustee to account to them for their full pro rata of the proceeds of the bid price, as though it had been received by him.
    4. One who was a tenipodary receiver to hold property during foreclosure proceedings may after such sale by the sheriff purchase such property from the purchaser at such sale.
    (Decided January 28, 1918.)
    Error : Court of Appeals for Hamilton county.
    Appeal : Court of Appeals for Hamilton county.

      Messrs. Dolle, Taylor, O’Donnell & Geisler, for Beckman, trustee.

      Messrs. Galvin & Bauer; Messrs: Hackett, Yeatman & Hands and Mr. A. B. Benedict, contra.

      Messrs. Cobb, Howard & Bailey, for receiver.
   Jones, P. J.

This action was brought into this court from the court of common pleas by error proceedings, and also on appeal.

The action in the common pleas court was one for the foreclosure bf a mortgage upon real estate, machinery and other chattel property of a manufacturing business. Pending the proceedings, on June 28, 1916, a receiver was appointed under the terms of the mortgage or deed of trust, to take charge of the property pending the foreclosure, with authority to operate said factory for the purpose of executing its contracts, and with other powers.

Afterwards a'judgment was entered in favor o.f plaintiff for the sum of $93,957.70, finding that said mortgage had become absolute and was a valid and first claim upon said property, and ordering and decreeing that unless the amount of said judgment was paid to the plaintiff, with interest, within ten days from the decree, defendant’s equity of redemption in said real and personal property should be foreclosed and an order of sale should issue to the sheriff of Hamilton county directing him to cause said real estate to be appraised, and to advertise and sell as upon execution all -of said real estate and all of the personal property listed, in the inventory and appraisement which had theretofore been made by said receiver, excepting the notes, account's and bills receivable.

Under this decree an order of sale was issued, and an appraisement of real estate made and returned, appraising same in the sum of $15,000. The sale was duly advertised, and the property ■offered January 4, 1917. The machinery and all other property except the real estate was appraised at $37,779.75. On January 5, 1917, the sheriff made due return of the sale held by him under said order, reporting that the property had been sold ■thereunder to Vincent H. Beckman, trustee, as the highest and best bidder, for the sum of $35,186.50,. being more than two-thirds the appraised value. A motion to confirm this sale was filed January 6, 1917. And on January 12, 1917, a judgment and decree was entered by the' court finding that said salé and proceedings thereunder had been in all respects in conformity to law and the orders of the court. And said sale was confirmed and the sheriff was ordered to convey to the purchaser, Vincent H. Beckman, as trustee for the bondholders of The F. W. Niebling Company, by deed and bill of sale according to law, the property so sold, and a writ of possession was awarded to him for the same. Said decree also ordered distribution of the proceeds of such sale as follows:'

1. The costs, taxed at $137.64.
2. To said Beckman, as trustee, the sum of $1,004.10, for services and expenses.
3. To Dolle, Taylor, O’Donnell & Geisler, as attorneys for said trustee, the sum of $1,585.12, being $1,500 for services and $85.12 for expenses paid by them.
4. The balance of the purchase money to the plaintiff, Vincent FI. Beckman, as trustee for the bondholders of The F. W. Niebling Company; said balance, amounting to $32,459.64, to be applied as a credit upon his judgment against The F. W. Niebling Company.

And judgment was entered in favor of said' trustee against said company for the amount still remaining due on said original judgment, being $58,771.20.

After the purchaser had taken over the property under this sale and confirmation, acting under the advice and direction of a committee representing a large majority of the bondholders under said mortgage, he proceeded to privately advertise said property for sale and to receive written propositions for the purchase thereof, and thus disposed of said property at private sale.

On February 17, 1917, a motion was filed in said court proceedings by The Emery-Thompson Machinery & Supply Company to set aside the entry confirming the sale and, distribution, made January 12, 1917, on the ground that said sale was irregular, contrary to law and was not to the best interests of the bondholders or parties interested. Said motion was filed without leave of court by attorneys on beha'lf of The Emery-Thompson Machinery & Supply Company, describing said company as a bondholder, but not ‘ otherwise setting •out any interest in the proceedings on its part; and said company was not then a party to the record, nor has it since in any way been made a party therein.

A motion to strike this motion from the files was filed on February 24, 1917, by the plaintiff, on ■the ground that The Emery-Thompson Machinery & Supply Company was not a party to the action and had no standing in court to make said motion; and on the further ground that said motion was not made in good faith for the reason that said company was lending itself to an effort to interfere with the title of the purchaser because of disappointment in the subsequent sale and disposition of the property by him.

A hearing was had upon this motion, and on April 12, 1917, the motion was granted, and the court made certain findings of fact R.nd conclusions of law and entered an order or judgment setting aside said sheriff’s sale and the order of sale under ■which it had been made, and appointing a receiver for said property.

The error proceeding was then filed in this court and an entry was made therein staying proceedings until a hearing of same could be had.

The ^appeal from said judgment and order was 'later filed in this court.

Both of these cases were brought to the attention of the court upon motions to dismiss the petition in error for want of 'jurisdiction, and to set aside the stay of execution granted by the court in the error case; which motions were overruled by this court under a decision filed May 14, 1917. [Ante, 168.] A motion was also made in the appeal case to dismiss the appeal, which was overruled.

These two cases being now reached for hearing the plaintiff elected to proceed upon the appeal case, which has now been heard and submitted to the court, allowing the error case to await the decision of same.

The action of the court below in setting aside the confirmation and sale made by the sheriff in the foreclosure proceedings was taken at the instance of The Emery-Thompson Machinery &. Supply Company, which claimed to be a bondholder, but which was not a party to the original action and was never formally made a party thereto. It filed the motion to set aside, in the lower court, without leave,- and upon that motion the court 'based its action, although it then had before it a motion from the plaintiff to strike said motion from the files. The evidence seems to sustain the claim of'The Emery-Thompson Machinery & Supply Company that it is the owner of some $250 out' of the $88,000 of bonds represented by 'the mortgage.

Since coming into this court pleadings have been filed, styled “answers and cross-petitions” of Mrs. Ben Stein and Katherine E. Hart, each of whom claims to be the owner of four of such bonds of the face value of $25 each.

The hearing upon appeal is therefore on the motion of The Emery-Thompson Machinery & Supply Company to set aside the sheriff’s sale, and upon the separate answer's and cross-petitions of Mrs. Ben Stein and Katherine E. Hart.

These parties all deny the authority of Vincent H. Beckman, as trustee, to act on their behalf in bidding in or purchasing the property sold at sheriff’s sale. There is, however, no dispute that he had a right, and that it was his duty, under the provisions of the mortgage which secured their bonds along with all the other bonds, to bring the ■foreclosure suit' upon default under said mortgage.

There can be no question that, regardless of the wishes of these minority bondholders, such of the bondholders as desired could protect themselves by procuring their trustee tp bid on their behalf at said sheriff’s sale. From the evidence it appears that bondholders in the neighborhood of $86,000 did authorize and request the trustee to protect their interests by bidding in the property at two-thirds of its appraised value.

The regularity in the proceedings of this sheriff’s sale is questioned by these objecting bondholders. It is contended that under Section 11675, General Code, this property could not be sold for less than two-thirds of its appraised value.

This section does so require, so far as real estate is concerned. And this order of sale did provide that the sale should be made for not less than two-thirds of the appraised value of all the property. The confusion as to whether or not the trustee’s bid was full two-thirds of the appraisement, arises from a typographical error in the sheriff’s advertisement for sale, and from the further fact that the appraisement of the real estate made by the sheriff’s appraisers was higher than that made by the receiver’s appraisers. The real estate a's appraised by the sheriff, including the buildings thereon and excluding all fixtures, was $15,000. The value of the remainder of the property, as stated in the sheriff’s advertisement, was $37,-779.75. The total of these two sums is $52,779.75, but by a typographical error in the sheriff’s advertisement that total was increased two thousand dollars, being there stated as $54,779.75. This error is one that appears upon the face of the advertisement and can mislead no one. Two-thirds of the true total, $52,779.75, i's $35,186.50, which was the amount of the bid at the sheriff’s sale, and which clearly complied with the law if personal property as well as the real estate was 'required to be sold at two-thirds of the appraisement. So far, however, as the personal property is concerned, there is no rigid provision of the statute which requires it to sell for two-thirds of the appraisement, and it is within the power of the court to confirm a sale made upon proper advertisement, at the highest and best bid.

The question, however, was made as to the total amount of machinery and chattel property other than real estate. The face of the inventory and appraisement as returned by the receiver’s appraisers shows the real estate appraised in several items and that the total amount of real estate which must without question be classed as land and buildings is not less than $10,300; and the total property, real and personal, in that inventory, other than notes and accounts receivable, is $47,969.75. So that the property other than the real estate could not be greater than $37,669.75, which is less than the amount of such property as stated in the sheriff’s advertisement.

The court is therefore of the opinion that there is no question but that the bid of the trustee was equal to or in excess of two-thirds of the appraised value of the property.

It is further contended that the sale can not be held valid for the reason that the cash amount wa'S not paid into the hands of the sheriff, and for that reason the terms of the sale were not complied with by the purchaser.

The decree of distribution was drawn to show that the full amount was paid into the hands of the sheriff, and in turn distributed back, except as to costs and allowances to the trustee, to be credited on his judgment. It was so done as the most convenient method of showing the amount of the purchase money available for payment of the judgment. It was not improper to draw it in that manner, although it might as well have been drawn to show that no money other than costs and expenses was actually paid. The exchange of receipts by the sheriff and the plaintiff was as effective as though the money had been passed back and forth. It is not necessary, where the mortgagee is the purchaser of property, to pay the entire purchase money into court when the principal amount thereof would-be redistributed to him on account of his lien. This matter is very clearly discussed in Andrews, Assignee, v. Johns et al., 59 Ohio St., 65, in the opinion of the court on page 71 et seq. It was not necessary, therefore, in this case, to pay any money into the hands of the sheriff except an amount sufficient to covet the costs and allowances made by the court to .the trustee and his counsel.

It was further argued that there was no power on the part of the trustee to purchase the property on behalf of the bondholders unless all of the bondholders united in so requesting.

It would be strange, indeed, if, as in the present •case, one or more of the bondholders might interfere with the preservation of the interests of the great majority of bondholders in their purchase of the property at the earliest opportunity offered in such a way as to save them any unnecessary loss. In this case the very fact that but little more than one-third of the judgment would be satisfied by the proceeds of the sale, and that no bidders were on hand to bid two-thirds of the appraisement, shows that it was to the great interest of the bondholders to buy at the sheriff’s sale and become the owners of the property with as little further cost as possible in order that they might dispose of it ■to their best' advantage.

' The evidence in this case shows that the sale was not only advertised in strict accordance with the law and the orders of the court, but that unusual efforts were made to widely advertise the fact that the sale would occur and to secure the attention of possible 'bidders who might be interested in that kind of property.

The complaining bondholders in this case are not legally interested in the subsequent sale of the property (by the trustee. They can, as they have done, disavow Mr. Beckman’s right to buy on their behalf, and they can insist upon his duty to account to them for their full pro rata of the proceeds of the bid price, as though it had been received by him. That is the extent of their rights in this matter.

The court is not concerned with what became of the property after the confirmation of the sheriff’s sale. The only purpose of hearing evidence in regard to that was to show any irregularity or improper conduct that might have occurred in making the sheriff’s sale. The fact that Mr. Manischewitz, who had been the temporary receiver to hold the property pending the sale, afterwards became the purchaser of the property from the trustee, does not 'in any way reflect upon the regularity or propriety of. the sheriff’s sale. The evidence shows that he finally purchased this property upon the same footing as any other party who might desire to bid upon same. The property belonged at that time to the trustee on behalf of such bondholders as had authorized him to act for them in purchasing it, and the sale was made under the supervision and by the direction of their advisory committee duly appointed; and none of them are complaining in this case. This court has no interest in the matter of such sale.

A judgment will therefore be entered overruling the motion to set aside the sale of January 4, 1917, and the order of confirmation and distribution thereunder made January 12, 1917; and the proceedings of the common pleas court in this case after that date are without, force and effect.

Judgment for plaintiff.

Gorman and Hamilton, JJ., concur.


author: Wilson, J.

text:
    Neff v. Abert et al.

      Deeds — Construction — Estate conveyed■ — Life estate or fee simple — Rule in Shelley’s case — Inapplicable to trust deeds, when — Partition.

    1. A grantor by a deed of trust conveyed to a trustee the fee title to all of the property described in said deed and further provided that “the warehouse, I own * * * if not needed to pay debts by Trustee, my Trustee will convey to my daughter Lucy, with life estate to her, and remainder in fee to her heirs forever. * * * ' This house to be valued by two disinterested persons, to be appointed by my Trustee, and to be charged to Mrs. Abert on settlement.” Held:

    That the rule in Shelley’s case controlled and governed, and the daughter took a fee simple title by virtue of a conveyance from the trustee.
    2. The exception created by Section 10578, General Code, in the application of the rule in Shelley’s case, is limited to wills and l;as no application to deeds of trust.
    (Decided November 26, 1918.)
    Appeal: Court of Appeals for Hamilton county.

      Mr. L. J. Crawford and Mr. Joseph W. O’Hara, for plaintiff.

      Mr. Aaron McNeil and Mr. B. V. Spence, for defendants.
   Wilson, J.

This cause comes into this court on appeal from the superior court of Cincinnati, and was instituted in that court by plaintiff, as one Of the children, and heir-at-law, of Lucy C. Abert, deceased, for a partition of certain property situate on the west side of Walnut street, between Court and Canal streets, in the city of Cincinnati, making her two sisters, Susan B. Abert and Nellie M. Abert, defendants, and alleging that plaintiff and the said two defendants were the only children and sole heirs-at-law of Lucy C. Abert, deceased; that under and 'by virtue of a trust deed from her grandfather, Colonel James Taylor, of Newport, Kentucky, to William H. Lape, trustee, and in pursuance of the authority contained therein, the said Lape, as trustee, conveyed said property on June 12, 1883, to Lucy C. Abert, plaintiff’s mother.

Plaintiff contends that under the deed of trust made by Colonel James Taylor to William H. Lape, trustee, dated May 29, 1882, and recorded in Deed Book 535,' page 577, of the Deed Records of Hamilton county, Ohio, the' said Lape, trustee, had power and authority to convey said property to Lucy C. Abert for life only, and the remainder in fee to her heirs forever; that the estate conveyed, or intended to be conveyed, by the deed from William H. Lape, trustee, to Lucy C. Abert, dated June 12, 1883, and recorded in Deed Book 550, at page 401, Hamilton County Deed Records, was an estate for life only; and that the remainder in fee is vested in Jennie A. Neff, Susan B. Abert and Nellie M. Abert, as the only children and sole heirs of Lucy C. Abert, deceased. While on the ■other hand the defendants, Susan B. Abert and Nellie M. Abert, contend that the deed of trust from Colonel James Taylor to William H. Lape, trustee, authorized and directed the trustee to convey said property in fee simple to Lucy C. Abert, and that the force and effect of the conveyance made by said trustee on June 12, 1883, to Lucy C. Abert was to vest a fee simple title to said property in Lucy C. Abert, and not merely, a life estate.

Defendants, Susan B. Abert and Nellie M. Abert, further contend that 'by a warranty deed dated March 19, 1903, the said Lucy C. Abert conveyed said property to them in fee simple, and that by reason thereof the plaintiff has no right, title or interest therein.

■ It will be seen from the. foregoing statement that the solution of the question as- to where the fee of said property was to vest, and eventually did, involves the construction of Colonel Taylor’s deed of trust to William H. Lape. By said deed Colonel Taylor for the purpose of carrying out the trust therein expressed vests the fee title to all of the property described in said deed, including the property in question in this case, absolutely in his trustee, William H. Lape, and further provides:

“The warehouse, I own on Walnut Street, in Cincinnati, 25. feet by 100 feet, if not needed to pay debts by Trustee, mv Trustee will convey to my daughter Lucy, with life estate to her, and remainder in fee to her heirs forever. * * * This' house to be valued by two disinterested persons, to be appointed by my.Trustee, and to be charged to Mrs. Abert on settlement.”

Did Colonel Taylor intend by that provision to vest in Lucy C. Abert a life estate or an estate in fee in said property?

It is contended by counsel for Susan B. Abert and Nellie M. Abert that the rule in Shelley’s case has been adopted as a rule of property in Ohio, and that under said rule where an estate of fee-hold is granted or conveyed, and in the same grant or conveyance an estate is limited, either mediately or immediately, to the heirs of grantee in fee or in tail, the words “the heirs” are in such cases always words of limitation of the estate, and not words of purchase.

The legislature of Ohio, in 1840, abolished the application of the rule in Shelley’s case as to wills. Section 10578, 'General Code, reads:

“When lands, tenements, or hereditaments are given by will to a person for his life, and after his death to his heirs in fee, or by words to that effect, the conveyance shall vest an estate for life only in such first taker, and a remainder in fee simple in his heirs.”

If the instrument under consideration was the will and not the deed of Colonel Taylor, the court would have no hesitancy in holding that under said instrument Lucy C. Abert acquired only a life estate in said property under the conveyance from William H. Lape, trustee, and that the remainder ■in fee was vested in 'her heirs.

“The rule in Shelley’s case was never a rule of intention or of construction to reach and carry out the settlor’s intention; but has been defined as it was established as an absolute rule of property to obviate certain difficulties that would arise m relation to tenures.” Mack v. Champion, 26 Bull., 115.
“The rule in Shelley’s case is not a rule of construction, but a law of property. It is not designed to give a meaning to words, but to fix the nature and-quantity of an estate. If the estate for life, created in the devisee or donee, is limited precisely as it would descend at law, the rule in Shelley’s case vests the entire fee in the first devisee or donee.” King v. Beck, Admr., 15 Ohio, 559 562.

• The rule in Shelley’s case has been severely criticised by courts in many states in which the rule has been adopted as a rule of property, including courts of Ohio. Kirby et al. v. Brownlee et al., 13 C. C., 86, 90; and King v. Beck, Admr., 15 Ohio, 559, 562.

Notwithstanding the criticism, the circuit and supreme courts in above cases held that the rule was still a rule of property in Ohio, and applied to the construction of deeds.

Does the rule in Shelley’s case apply to and control the interpretation of the deeds from Colonel Taylor .to William H. Lape, trustee, and from William H. Lape, trustee, to Lucy C. Abert?

Colonel Taylor by his deed of trust conveyed to William H. Lape the real estate in plaintiff’s petition described, together with several other parcels, in trust for certain purposes in said deed expressed. The property on Walnut street described in the petition was by Colonel Taylor’s deed conveyed to the trustee with express directions as follows: •

“The warehouse, I own on Walnut Street, in Cincinnati, 25 feet by 100 feet, if not needed to pay debts by Trustee, my Trustee will convey to my daughter Lucy, with life estate to her, and remainder in fee to her heirs forever.”

He further provides that the house is to be valued by two disinterested persons to be appointed by the trustee, and such value to be charged to Mrs. Abert on settlement. _ .In pursuance of the express authority and direction so contained in the deed, William LI. Lape, trustee, conveyed said' property to Lucy C. Abert, her heirs and assigns forever, on June 12, 1883. The deed ■to said trustee was made by Colonel Taylor on May 29, 1882.

Colonel Taylor' does not, by said deed, give to his trustee any discretionary power respecting the conveyance of said property to his daughter Lucy, but expressly directs its conveyance, if not needed to pay his debts, to his “daughter Lucy, with life estate to her, and remainder in fee to her heirs.” Was the estate so to be conveyed to Lucy a life ■estate or a fee simple estate in said property?

Our supreme court say in the case of King v. Beck, supra:

“If the estate for life, created in the devisee or ■donee, is limited precisely as it would descend at law, the rule in Shelley’s case vests the entire fee in the first devisee or donee.”

Clearly, if the property was conveyed in fee to Lucy, it would descend at law in fee to her heirs, and the supreme court in effect say that if it was conveyed to Lucy for life, limited precisely as it would descend at law, under the rule in Shelley’s case the entire fee would vest in her.

Courts of Ohio have repeatedly been called upon to determine the application of the rule in Shelley’s case to wills and deeds containing language of the same or similar import to that contained ip Colonel Taylor’s deed.

In the case of McFeely’s Lessee v. Moore’s Heirs, 5 Ohio, 464, the court say:

“It is urged, however, that the rule has a feudal origin, and that policy does not require or permit its adoption in a community like ours. But it has been too long established, to be abrogated by us. From the earliest period, we find it a settled rule of the common law * ^ • *. If its policy be doubted, let the legislature be qalled to act; but if we should disregard a rule, which ha's prevailed so widely, and subsisted so long, it would be an unfaithful interpretation of the law.”

In the above case John Hale by will devised to his son and his wife certain property as follows:

“My will is, that Walter and Phebe, aforesaid, may have the use of these two tracts of land, during their respective lives; but at their decease, my will is, that these two tracts of land descend to their heirs, to whom I bequeath the same to h'ave and to hold said tracts, to themselves, their heirs, and assigns, forever.”

The court held that the rule in Shelley’s case applied and that the grantee of Walter and Phebe Hale was the owner in fee of said property, or in other words that the fee title to said property vested under said will in Walter and Phebe Hale.

The foregoing decision was rendered before 1840, at which date the legislature of Ohio excepted wills from the operation of the rule in Shelley’s case.

In Akers v. The Akron, Canton & Youngstown Ry. Co. et al., 20 C. C., N. S., 352, the court say:

“Where the granting clause of a deed is in the usual form and gives, grants, bargains, sells and conveys the premises therein described unto the grantee * * * his heirs and assigns, * * * ‘to have and to hold said premises for and during his natural life, -with reversion at his death to his children, heirs of his body, and their heirs and assigns,’ * * * the rule in Shelley’s case applies and the grantee takes an estate in fee simple.”

In -the above cause Adam Fulmer and wife conveyed to their son, Daniel Fulmer, by deed, a certain tract of' land, in which deed the habendum clause contained the following language:

“To have and to hold said premises to the said Daniel Fulmer, for and during his natural life, with reversion at his death to his children, heirs of his body, and-their 'heirs and assigns, and if he dies leaving no children or legal representatives, then the above is to be and remain the property of the brothers and sisters of Daniel Fulmer, their heirs and assigns, forever.”

Daniel Fulmer conveyed the real estate to the Akron Newcastle Railway Company, and the court held that the rule in Shelley’s case applied, and the fee in said property vested in Daniel Fulmer by said deed, and the conveyance by- him to the railroad company vested a fee simple title in said property in said company.

In Brockschmidt v. Archer et al., 64 Ohio St., 502, Aaron M. Peasley, who died in 1837, left a last will in which he devised to his son, Edward A. Peasley, certain real estate, in the following language:

“I devise to my son Edward A. Peasley all the rest and residue of said tract of land as purchased of said Brown * * *. I hereby -in explanation declare it to be my will that the parcels of land hereinbefore devised to my two sons,' Theodore and Edward, is to be- to them respectively during their natural lives, but so that they nor either of them -can not in their lifetime dispose of the same for any longer period than during their respective ■lives, giving -each of them- only 'a life estate in the land so devised to them, and' after their deaths, the property to be to their respectivse heirs at law in fee simple.”

Edward A. Peasley executed a mortgage upon his interest in said property which was foreclosed, and the property sold, and the question in the case was whether or not the purchaser at that sale acquired the fee title to said property, or whether the fee simple was vested in the heirs of Edward A. Peasley; or in other words, what estate Edward A. Peasley took under the will of his father, said will having been probated at a time when the rule in Shelley’s case as a rule of property was applicable to wills as well as deeds.

■The court, on page 513, say:

“In conveyances made by deed the rule [in Shelley’s case] was rigidly .adhered to, because such instruments were generally made on mature consideration, as well as under the advice of counsel, but it was somewhat' relaxed at common law in favor of wills where the same opportunity did not always exist in the case of testators.”

On page 515 the court say:

“The testator first gives to his son Edward an estate for life in the land, and at his death it is to go to his’heirs. There is no devise over in case he should die without' heirs, nor is there anything in the will to show.that he used the word ‘heirs’ in any other than the usual sense in law, except that he gave a life estate to his son, which as we have already shown, in no way affects the application of the rule. On the death of Edward the property is to go precisely as it would at law — to his heirs. It therefore follows that under the will of his father, Edward took a fee simple estate in the land devised to him.”

The rule in Shelley’s case having been established in Ohio as a rule of property, as far back as McArthur v. Porter et al., 1 Ohio, 99, and followed thereafter in numerous decisions to the present day, this court, of course, is compelled to abide by the rule thus established by former decisions where the same questions are involved.

The court is therefore constrained to hold that the rule in Shelley’s case controls and governs in the construction of Colonel Taylor’s deed to William H. Lape, trustee, and in the deed from the trustee to Lucy C. Abert; and • that by reason thereof the court is of the opinion that' a fee simple title to the property described in plaintiff’s petition was thereby vested in Lucy C. Abert; that the conveyance by Lucy C. Abert to her daughters, Susan B. and Nellie M., vested in them a fee simple title to said property; and that the plaintiff herein, Jennie A. Neff, has no .title or interest in said property.

Counsel for plaintiff contend that by reason of the fact that Colonel Taylor’s deed is in its nature a testamentary disposition of his property, that the rule in Shelley’s case does not control, but the deed should be construed as though it were a will. The court is unable to find any authority at' law for making such an exception.

By force of Section 10578, General Code, lands given by a will are excepted from the application of the rule. While the legislature has seen fit to except property devised by will, it has not excepted property conveyed 'by deed from the application of the rule. Colonel Taylor’s deed is not a will. It is not in the form of a will, was not executed in the manner that wills are required to be executed, and it was not probated, or in any manner treated or considered by either the heirs or any court of record as a will, and this court is therefore of the opinion that the exception created by Section 10578, General Code, in the application of the rule in cases of wills, has no application to the deed in question.

The case referred to by counsel for plaintiff, reported in 4 C. C., page 31, Hoagland et al. v. Marsh et al., does not hold that the rule in Shelley’s case does not apply to deeds which are in their nature testamentary dispositions of property.

The' rule in Shelley’s case did not enter into the consideration of the question before the court in the Hoagland case. There the question was as to where a one-sixth (1/6) interest conveyed in fee to Albert Marsh vested on his death; whether in his five brothers and sisters surviving, who were mentioned in the deed; or in all of the children of Shubel Marsh other than the five named in the will; or, thirdly, in all of the children of Shubel Marsh still surviving. The distinction between that case and the case at bar being that the deed from Thomas Marsh to George Marsh, trustee, directed a conveyance of the property in fee to the six children named, and not to them for life with a remainder in fee to their heirs, as was done in the case here.

The Hoagland case, in the opinion of the court, is not an authority upon the question contended for.

It was further contended by counsel for plaintiff that the trust under Colonel Taylor’s will was ex-ecutory, and for that reason the rule in Shelley’s case does not apply.

The superior court of Cincinnati, general term, in the case of Mack et al. v. Champion, Trustee, 26 Bull., 113, 114, quite clearly defined what is an ex-ecutory trust in the following language:

“When the limitations and trusts are fully and perfectly declared, the trust is regarded as an executed trust, and the distinction thus made between executed and executory trusts as administered in the court of chancery, has been recognized since the difference was first fully explained by Lord Chancellor Cowper in Earl of Stanford v. Hobart, 3 Bro. P. C. 31 * * *.
“It is only when the limitations are imperfectly declared and the intent o.f the creator is expressed in general terms, leaving the manner in which the intent is to be carried into effect substantially in the discretion of trustees, that a court of equity regards the ¡trust as an executory trust.”

Colonel Taylor in his deed directing the conveyance to Lucy C. Abert of the property in the petition described, does not express his intent in general terms, nor are the limitations imperfectly declared, nor does he leave the manner in which the intent is to be carried into effect' substantially in the discretion of the trustee, but, on the contrary, he expressly directs the conveyance of that particular property to Lucy C. Abert, clearly and distinctly defining the limitations of the conveyance. There is nothing ambiguous, uncertain or indefinite, nor does he leave anything to the discretion of the ¡trustee. In event the property is not necessary to pay his debts — he thereby simply provides that in the event the law does not exact that property for the liquidation of his indebtedness the conveyance shall be made, but that in no manner vests any discretionary power in the trustee.

The evidence submitted having failed to show that plaintiff has any interest in the property sought to be partitioned, the court is of the opinion that plaintiff has no cause of action herein and that her petition should be dismissed.

Petition dismissed.

Jones, P. J., and Hamilton, J., concur.


author: By the Court.

text:
    The State, ex rel. Davis, Auditor, v. Board of Commissioners of Butler County.

      Court of appeals — Jurisdiction on appeal■ — •Mandamus.
    An action in mandamus is a statutory proceeding and not a chancery case, and hence appeal does not lie under Section 6, Article' IV of the Ohio Constitution.
    (Decided February 9, 1918.)
    Appeal:. Court of Appeals for Butler county.
    On Motion to .dismiss appeal.

      Messrs. Andrews '& Andrews, for plaintiff,

      Mr. M. O. Burns and Mr. B. A. Bickley, prosecuting attorney, for defendants.
   By the Court.

This was an action in mandamus in the court of common pleas, which it has been attempted to bring into this court by appeal.

A motion to dismiss the appeal for want of jurisdiction has been filed by the appellee.

In Wagner v. Armstrong et al., 93 Ohio St., 443, it was held that the jurisdiction of courts of appeals in the trial of cases on appeal is expressly limited by the constitution to chancery cases. Section 12224, General Code, which provided for the appeal of cases in which the right to demand a .jury did not exist, was by the above-named case held unconstitutional.

As an action in mandamus is a statutory proceeding and not á chancery case, this court has no jurisdiction to hear such a case on appeal.'

The motion to dismiss the appeal must therefore be granted. '

Motion to dismiss appeal granted.

Jones, P. J., Gorman and Hamilton, JJ., concur.


author: Richards, J.

text:
    Stearns et al. v. Brandeberry et al.

      Wills — Construction — Remainders ■ — ■ Distribution — Classes of heirs and shares taken — Date for determining heirs — Per capita and per stirpes.

      A testator, after making certain specific bequests and devising a life estate in the remainder of his property to his wife, provided in his will as follows: “It is my request that the balance of my estate be equally divided between my living heirs and the living heirs of my wife, Sarah Ann Steams, share and share alike.” Held:

    1. That two classes are created by the words “my heirs and the heirs of my wife Sarah,” and that the testator’s heirs, who were two brothers and a sister, would take one-half of the estate, and the, heirs of his wife, who were four brothers and two sisters and two nephews, the sons of a deceased sister, would take the other half.
    2. That the phrase “share and share alike” qualifies the provision for each set of heirs, and that the distribution among each set of heirs of the half so devised is to be as of the date of the death of the widow, and to be per capita and not per stirpes.

    (Decided June 17, 1918.)
    Appeal: Court of Appeals for Wood county.

      Messrs. Fries & Hatñeld, for plaintiffs.

      Messrs. Reed & Maurer and Messrs. Wade & Dillon, for defendants.
   Richards, J.

This action was brought by the plaintiffs as executors of t’he last will and testament of Orrin Stearns, to obtain a construction thereof by the court. The will was executed on October 17, 1888, and, after making, certain specific bequests and 'devises, gives and devises to his wife, Sarah Ann Stearns, all the remainder of his property, real and personal, for and during her natural life.

The will then contains the clause which is in controversy and which reads as follows:

“It is my request that the balance of my estate be equally divided between my living heirs and the living heirs of my wife, Sarah Ann Stearns, share and share alike.”

In view of the fact that the wife was given a life estate in all the property remaining after the specific provisions were satisfied, the time of distribution would naturally be of the date of the wife’s death; and the living beneficiaries referred to in the clause above quoted would be those who were living at that date. At the time of the execution of his will, and at the time of the death of his wife, Sarah Ann Stearns, the heirs of the testator were two brothers and one sister, who are named' in the will and are parties to this action, and at the date of the wife’s death her heirs were four brothers, two sisters, and two nephews, the sons of a deceased sister.

Counsel for the heirs of the testator claim that those heirs are entitled, under the provisions of the will quoted, to one-half of the estate remaining, while counsel for the heirs of the widow contend that both sets of heirs are grouped as one and that each heir is entitled to an equal part of the estate, no matter whether such heir be an heir of the testator or an heir of his widow. The common pleas court held with the contention made on behalf of the heirs of .the testator and awarded to said heirs •one-half of the estate, construing the will to be such that the remaining one-half would pass to the heirs of the widow. In the course of his opinion, which has been submitted to us, the trial judge uses the following language, which we think clearly states the proper construction to be placed upon the will:

“Two classes are created by the provision, ‘my heirs and the heirs of my wife Sarah.’ And the phrase ‘equally divided between’ means an equal division between the two classes. And the phrase ‘share and share alike’ qualifies the provision for each set. • This'construction gives each word its generally accepted meaning, eliminates none as surplusage and makes the provision a 'consistent whole.”

A fair construction of the clause in question in the will leads to the conclusion that the testator was intending to divide the property so that his heirs should receive as much as the heirs of his wife. It was his property that was being disposed of, and we could hardly conclude that he intended by the language used to -give to each -one of his wife’s nephews a share of his property equal to that of his own brothers and sister; neither could we assent to substituting the word “among” for the word “between,” when the testator has evidently used the word “between” accurately and-expressed his intention and indicated that his heirs and his wife’s heirs constituted two'classes.

In Bassett v. Granger, 100 Mass., 348, the bequest reads:

“I give and bequeath all my personal property of every name and nature, after paying the foregoing legacies, to the heirs of my late husband and to my heirs equally.”

This language was construed by the supreme judicial court of Massachusetts to be a bequest in equal shares to two classes.

A similar conclusion was reached in Records v. Fields, 155 Mo., 314, where the provision was that the property should be “equally divided between the heirs of William Fields and James Fields, deceased.”

See also Young’s Appeals, 83 Pa. St., 59. In the 'course of the opinion in that case the court uses the following language:

“He and his wife were childless. There was no issue of either to whom the property could be transmitted. It may have been the joint product of their industry and economy. This or some other moving cause prompted him to direct that the prop-r erty be ‘equally divided’ between families of different blood. The language clearly points to one general division, one separation of the fund. Two classes were in his mind. One class was his relations, the other class was his wife’s relations. The property was to be equally divided ‘between’- these two classes, and ea'ch class to take one half. His relations one half, his wife’s relations the other half. Neither the language nor the spirit of the will indicates that each relation should have an equal share.”

The conclusion indicated is not in conflict with t'he decision of this court in Holmes, Exr., v. Fackleman, 2 Ohio App., 258.

In that case the testator devised the remainder of his 'property to the children of his two sisters, Margaret Fackleman and Marion Fackleman, to be «equally divided -between them, share and share alike. At the .time of the execution of his will both of his sisters were deceased, one having nine children living and the other four. The language of the *will did not -create two classes as in the case at bar, and, in view of the fact that both his sisters were deceased and all of their children were of the same relationship to the testator, a fair interpretation of the will was that the remainder of the estate should be divided into thirteen equal parts, one part going to each of the thirteen grandchildren.

In the case at bar the heirs of the widow at her death were four brothers, two sisters, and two nephews, sons of a deceased sister, making eight in all. The distribution is to be made as of the date of the death of Sarah Ann Stearns, widow of the testator, who had a- life estate, and each of her heirs then living would be entitled to one undivided eighth of the half of the estate which passed by the terms of the will to her heirs. This branch of the case falls directly within the holding of Mooney, Gdn., v. Purpus, Exr., et al., 70 Ohio St., 57, and the distribution to the heirs of the widow must, therefore, be per capita and not per stirpes.

■The fact that Jane Werner, one of her sisters, died subsequent to the widow’s death, leaving children, would not alter the method of construing •the will, for the estate vested at' the death of the widow and Jane Werner took at the date of the death of her sister one-sixteenth of the estate..

It follows from what has been said that each of the three heirs of the testator is entitled to one undivided sixth part of the estate, and each of the eight heirs of the testator’s widow is entitled to one-sixteenth part of the estate. All of the assets of the estate have been collected and converted into money, and the executors have paid all the debts of the estate, and there now remains in their hands as executors the sum of $16,252.59. A decree may be entered ordering the distribution of that amount in accordance with this opinion.

Judgment accordingly.

Chittenden and Kinkade, JJ., concur.


text:
    Hollowell v. Schraden et al.

      Mechanics’ liens — Liability of property owner — Contractor paid in excess of contract price- — -Lien law became operative, when — Existing and subsequent contracts.

    1. The fact that a contractor has been paid in excess of the contract price will not under the mechanic’s lien law, 103! Ohio Laws, 369 et seq., excuse the owner from his liability to a mechanic’s lien for material furnished and used in the building of a new house, if the proper steps have been taken by material men, under that statute, to perfect their liens.
    2. Where a contract is entered into prior to the taking effect of the mechanic’s lien law, for the building of an addition to an already existing house, and the destruction of the house renders the performance of the contract impossible, such -contract is terminated, and a contract for the erection, of a new house made after such law took effect is subject to such law.
    (Decided May 10, 1918.)
    Appeal : Court of Appeals for Butler county.

      Mr. Michael Minges and Messrs. Andrews & Andrews, for plaintiff.

      Mr. Clinton Egbert and Mr. Edgar A. Beldenj for defendants.
   Jones, P. J.

This case was before this court on appeal, and the evidence heard, on April 14, 1916, but after the evidence had been presented and the case argued there was interposed a motion to dismiss the appeal for want of jurisdiction. This motion was sustained by a majority of the court in a decision announced July 14, 1916, found in 26 C. C., N. S., 97. The supreme court having, set aside this dismissal and remanded the case for retrial [96 Ohio St., 599] it was again heard on February 21, 1918.

The action is brought for the foreclosure of a mechanic’s lien upon real estate of the defendant, John D. Schraden. Mr. Schraden made a contract with One John Hoover for the building of a frame addition to a brick dwelling house which stood upon his lot. There is a dispute in the evidence as to whether this contract was made July 19 or some day in August, after August 5, 1913. Mr. Hoover had been building other houses for Mr. Schraden, and Mr. Schraden testified that on July 19, 1913, when he was making a payment upon ■some other house, they discussed the building of this addition to the brick house on lot 38. The work was to begin when the tenant moved out and the price to be paid for the contemplated addition was $2,300. No plans were then prepared and it is doubtful whether it can be said that a definite contract was then made. The tenant in the brick house did not move out until the middle of September, and there is some doubt from the evidence as to just when plans were prepared or a definite agreement made as to the construction of this addition. The work on it began in September, and during that month the brick house fell into an excavation which Mr. Hoover had made for the purpose of constructing a cellar under , the proposed addition. It then became necessary to abandon the idea of using the brick house at all, and the materials contained in it were entirely removed; and thereupon the parties agreed to build a frame bungalow upon the lot instead of the contemplated addition to the brick house which had! been thus destroyed. The plans for this new house or bungalow were prepared and it was constructed by Mr. Hoover, the cost to be $2,300.

The destruction of the b.rick house rendering it impossible to carry out the contract as originally made, to build an addition to it, terminated that contract. 6 Ruling Case Law, 1007, and 7 Am. and Eng. Ency. Law (2 ed.), 116.

The rights of the parties depend upon the question whether the amendments to the so-called mechanic’s lien law, as found in 103 Ohio Laws, 369, et seq.j applied, or whether the law as it stood previous to this amendment was applicable.

Section 24 of that act (Section 8323-10, General Code) provides:

“This act shall not be construed to apply to contracts made or entered into at any time before this act shall take ‘effect.”

The act took effect August 5, 1913. It is important therefore to determine the date of the contract-under which the frame bungalow was built and the material furnished by plaintiff. Even conceding, as claimed by Schraden, that the contract for the addition to the brick house was made July 19, 1913, it must be admitted that the new house was built under a second contract, which necessarily had been made after the destruction of the brick house and subsequent to the date the new law became effective; and, therefore, the provisions of the amended law as found in 103 Ohio Laws, 369, must apply.

The fact that Mr. Hoover has been paid in excess of the contract price, $2,300, will not under this law excuse the owner from his liability to a mechanic’s lien for material furnished and used in the building of the new house, if the proper steps have been taken by the material man, under the statute, to perfect his lien. In our opinion the evidence shows that the door, which was the last item of material furnished by the plaintiff, was included in the contract and a necessary part thereof, and that the affidavit for lien was filed' within the terms of the statute, and that "plaintiff is entitled therefore to a mechanic’s lien for the balance due him. A decree may be taken to that effect.

Judgment for plaintiff..

Wilson and Hamilton, JJ., concur.


author: Hamilton, J.

text:
    The Pullman Co. v. Roos.

      Carriers — Sleeping car company — Theft of valuables of passenger — Statute of limitations — Degree of care toward passengers — Liability of company — Scope of employment of servant — > Pleading.,
    1. The relation between a sleeping car company and one who has purchased a berth in a car of such company is contractual in its-nature and an action for a breach of such implied contract may be brought within six years.
    2. It is the duty of a sleeping car company to employ competent and trustworthy employes and to exercise a high degree of care in the protection of its passengers and their property, and if a sum of money reasonable to be carried, in view of the journey of the passenger, is taken from a pillow by the porter in the absence of the passenger, and while the -porter is making up the berth, the taking is done in the course of the employment of the porter and the corrfpany is liable.

      3. A petition which alleges the purchase of a berth in a sleeping car, that defendant company was guilty of a breach of its contract in carelessly and negligently failing to guard said berth and car while plaintiff was riding thereon, and in neglecting to provide proper, honest, trustworthy and careful employes on said car to perform the services required of it in the discharge of its contract, and that while the porter, employed by said company in said car, was making up the berth occupied by plaintiff, said porter wrongfully and unlawfully took and converted to his own use, from a pillow lying in said berth, the sum of $190, the prpperty of plaintiff, and which plaintiff had taken with him on said journey to use for reasonable traveling expenses, states a good cause of action against such company.
    (Decided November 19, 1917.)
    Error: Court of Appeals for Hamilton county.

      Mr. Mortimer Matthews, for plaintiff in error.

      Mr. Harry H. Friedman and Mr. Jacob S. Hermann, for defendant in error.
   Hamilton, J.

The plaintiff below, defendant in error here, recovered a judgment against the defendant, The Pullman Company, on account of th'e loss of a sum of money amounting- to $190, alleged to have been taken by the porter on a car of The Pullman Company from a berth which was or had been occupied by the plaintiff and his wife at or immediately preceding the / time that the money was taken. After reciting the corporate power of The Pullman Company and the nature of its business, the amended petition contains the following allegations :■

“Plaintiff further says that on or about May Í2th, 1911, he boarded a sleeping oar belonging to, operated and maintained by the defendant company in the city of Cincinnati, and for a valuable consideration paid by him to the defendant company, he" was provided with a seat known as lower berth number twelve (12) for the purpose of occupancy and slumber, during plaintiff’s journey from the city of Cincinnati, Ohio, to the city of New York, state of New York, and that said sleeping car was known as car number two (2) and was attached to train number two (2) operated by the Pennsylvania Railroad Company, and that plaintiff •during said journey used and occupied said berth known as berth number twelve (12) in said car as 'aforesaid.
“Plaintiff further says that defendant was guilty of a breach of its contract with plaintiff in that it carelessly and negligently failed to guard said berth and car while he was riding thereon. Plaintiff. further says that defendant failed and neglected to provide proper, honest, trustworthy and careful employes on said car to perform the services required of it in the discharge of its contract with plaintiff.
“Plaintiff further says that by reason of the payment of said valuable consideration defendant agreed and undertook to allow plaintiff and his wife to use lower berth number twelve (12) on said -car for the purpose of occupancy and slumber; that among the servants and employes provided by the' defendant to perform its contract with plaintiff in making up the berth for the use of plaintiff and his wife during the night, and to replace the bedding of said berth and restore the same in condition for day travel, was a servant and employe of said company designated and known as the porter. That on or about May 12, 1911, the porter on said oar did convert said seat into a berth, and that on or about the 13th day of May, 1911, replaced the bedding in saith berth and restored it to a seat for day travel, and that while engaged in' his duties of replacing said bedding and restoring said berth as aforesaid, said porter, while acting as aforesaid in the course of his employment, did wrongfully and unlawfully take and convert to his own use, from a pillow lying in said berth, the sum of one hundred and ninety dollars ($190.00), which was the property of the plaintiff and which plaintiff had taken with him on said journey to use for reasonable traveling expenses.”

■Following the above allegations is a prayer for judgment' for the sum of $190 with interest.

The defendant challenged the sufficiency of the amended petition both by demurrer and answer, urging the proposition that the claim was one for tort and was barred in four years under the statute.

We can not agree with this proposition. While the plaintiff could undoubtedly have prosecuted this action as for tort, he does not do so, but sets up the contractual relation which impliedly follows the purchase by a passenger of a ticket, and the sale to him of a ticket by the company’s agent, as set forth in the petition. That such an implied 'contract arises from this transaction there can be no doubt.

Elliott on Railroads (2 ed.), Section 1618, lays down the following principle of law:

“The nature of the service rendered by sleeping car companies is public, .and they are in some measure instrumentalities of interstate commerce, and hence considerations of public policy, have weight in determining what their obligations are and the general character of their duties. We think that principle requipes the conclusion that in all matters peculiar to sleeping cars and their appurtenances, a sleeping car company owes to those with whom it contracts a special and distinct duty.”

And in Lewis v. The New York Sleeping Car Co., 143 Mass., 267, on page 272, ‘we find the following language in the opinion of the court:

“When a person buys the right to the use of a berth in a sleeping car, it is entirely clear that the ticket which he receives is not intended to, and does not, express all the terms of the contract into which he enters. Such ticket, like the ordinary railroad ticket, is little more than a symbol intended to show to the agents in charge of the car that the possessor has entered into a contract with the company owning the car, by which he is entitled to passage in the car named on the ticket.
“Ordinarily, the only communication between the parties is, that the passenger buys, and the agent of the car company sells, a ticket between two points; but the contract thereby entered into is implied from the nature and usages of the employment of the company.”

This we think to be the law, and this view is supported by abundant authority. While some of the allegations of the amended petition sound in tort, yet considering the amended petition as a whole we think it is sufficient to support a claim as arising on contract, and therefore cominy within the six-year limitation under the statute. And further construing the amended petition as supporting a claim arising on contract we also find that a breach of the contract is sufficiently alleged.

It therefore follows that the amended petition stated a good cause of action and the demurrer was properly overruled; and the court did not err in sustaining the demurrer to this ground of defense in the answer.

It is contended by plaintiff in error that there was no evidence that the theft of the money was within the scope of authority of the porter.

In the case of Bonser v. The Pullman Co., 2 Ohio App., 35, this court held that “a sleeping car company is not an insurer of the safety of property belonging to its passengers although 'held to a high degree of care in its protection.”

Under this rule it was the duty of the company to employ competent and trustworthy employes and to exercise a high degree of care in the protection of the defendant in error and his property. The evidence discloses that the wife of defendant in error pinned the money in the pillow and placed it by the wall on the, inside of the berth occupied by defendant in error and herself; that the money was taken from this pillow while the husband and wife were in the dressing rooms of the Pullman car; that,the porter made up the berth while they were dressing, and the wife upon her return to the berth immediately discovered the loss. The only rational conclusion is that if the porter took the money he took it while engaged in making up the berth, and making up the berth was one of the very things for which he was employed, and the theft — if ‘by'the porter — having occurred while he was making up the berth, it must be held that it was done, in the course of his employment.

On this proposition the case at bar presents a much stronger case than many of the authorities cited in the briefs of counsel. As to whether or not the porter took the money was a question for the jury, and under an examination of . the evidence we are unwilling to disturb the judgment as being manifestly -against the .weight of the evidence.

Plaintiff in error further complains of the charge of the court to the effect that the plaintiff might recover such a sum as the jury upon the evidence should find to have been a reasonable sum to be carried by the plaintiff, in view of the journey that was being undertaken by him, on the ground that there was no evidence tending •to show what such a reasonable sum would be. In our opinion the jury were fully justified in finding that the sum of $190 was not an excessive sum for the defendant in error to carry with him for expenses on a trip of himself and wife from Cincinnati to New York.

Finding no prejudicial error in the record, the judgment is affirmed. ■

Judgment affirmed.

Jones, P. - J., and Gorman, J., concur.


author: Houck, J.

text:
    Smith et al. v. Craig.

      Jury — Verdict by three-fourths — Section 11455, General Code — Appropriation proceedings — County road.

    The three-fourths jury law applies to verdicts assessing the value of land taken for a county road.
    (Decided June 17, 1918.)
    Error: Court of Appeals for Morgan county.

      Mr. G. O. McGonagle; Mr. C. H. Fonts and Mr. M. E. Danford, for plaintiffs in error.

      Mr. John Q. Lyne and Mr. T. E. McElhiney, for defendant in error.
   Houck, J.

On December 4, 1916, F. B. Smith and others began a proceeding before the county commissioners of Morgan county, in which it was sought to have a county road established. The usual petition having been filed, and hearing had, the road was established by order of the county commissioners, and compensation and damages awarded certain landowners.

To the findings and orders of the county commissioners an appeal was taken to the probate court, trial by jury had, and a verdict returned against the establishment of the road. Only nine jurors concurred in the verdict. A motion for a new trial was overruled, and judgment entered accordingly. Error was prosecuted to the common' pleas court, and the judgment' of the probate court was affirmed.

But one question is raised by counsel for plaintiffs in error, namely: Was the verdict of the jury, which was signed and returned by nine of the twelve jurors, a valid, legal and constitutional verdict ?

The claim of counsel for plaintiffs in error is that under Section 19, Article I of the Constitution of Ohio, the taking of private property for the making or repairing of roads must be compensated for to the owner in money, the amount to be fixed by a jury, which must be composed of twelve men, and all • must agree in the verdict returned.

True, the basis of the suit under review was the appropriation of land for road purposes, and the section provides “and such compensation shall be assessed by a jury.” But nowhere in the section and article of our Constitution relied upon by learned counsel does it fix the number of jurors necessary to concur in a verdict. Therefore, we must and are bound to look to some other constitutional or statutory provision to determine this question.

Section 5, Article I of the Ohio Constitution, as amended September 3, 1912, reads:

“The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.”

Section 11455, General Code, reads:

“In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number.”

Section 11212, General Code, reads:

“The provisions of law governing civil proceedings in the court of common pleas, so far as applicable, shall govern like proceedings in the probate court, when there is no provision on the subject in this title.”

To us it seems clear that the makers of our constitution and the members of our legislature have clearly settled and determined the question involved in this case, and by so doing have saved the courts much trouble and labor. We think the constitutional and statutory provisions just referred to are clear and plain of meaning, and when applied to the facts in the case at bar only one conclusion can be readied, and that is that the judgment in this case, as entered by the probate an'd common pleas courts, is right.

Said constitutional amendment provided that in civil cases laws might be passed authorizing the rendering of a verdict by the concurrence of not less- than three-fourths' of the jurors. The action of the makers of our constitution left it to legislative enactment, an'd that body has seen proper to act, and we must follow the constitution and the law as we find them.

If we were to adopt the theory,- as advanced by plaintiffs in error, we would find ourselves much confused in our endeavor to determine in just what cases the three-fourths rule would apply, and we think the view of counsel in this, regard entirely too narrow.

Judgment affirmed.

Powell and Shields, JJ., concur.


text:
    Beal v. The State of Ohio.

      Sabbath desecration — Transacting meat business on Sunday — Not zvork of necessity, zmhen — Sections 13044 and 13043, General Code.

    The keeping open of a place for the sale of meats on Sunday, in the month of March, constitutes a violation of Section 13044, General Code, and is not a work of necessity within the meaning of Section 13045, General Code, even though such place is located in a thickly-populated tenement district where the people are not financially able to maintain ice boxes.
    (Decided March 25, 1918.)
    Error: Court of Appeals for Hamilton county.

      Messrs. Miller & Foster, for plaintiff in error.

      Mr. Edzvard S. Morrissey and Mr. H. J. Siebenthaler, assistant prosecuting attorneys, for defendant in error.
   By the Court.

The case here presented involves a charge of the violation of Section -13044, General Code, providing against the keeping open of a place for the transaction of 'business upon the first day of the week, commonly called Sunday.

The specific charge is that the defendant, Frank Beal, unlawfully and knowingly caused to be open for the transaction of business, to-wit, the sale of meats, a certain place in the city of Cincinnati, Hamilton county, Ohio.

Defendant was tried and convicted in the municipal court of Cincinnati, without the intervention of a jury.

' The defendant' 'contends that the keeping open of the place for the sale of meats was a work of necessity and came within the exception provided in Section 13045, General Code, and that it was made such a work of necessity by the fact that the place was located in a thickly-populated tenement district of the city, where the inhabitants were not able financially to maintain ice boxes or other methods of preserving meats.

The evidence discloses that the transaction took place in March, and the court is of the opinion that at that season of the year it can not be considered such a work of. necessity, as the nature of the weather is such that it is not a difficult matter to preserve meats, the court taking judicial notice of the fact that at this time of the year the weather is sufficiently cold to preserve meat and other foodstuffs. We therefore hold that this is not such a work of necessity as would avoid liability under the statute.

Finding no error in the record, the judgment will be affirmed.

Judgment affirmed.

Jones, P. J., Gorman and Hamilton, JJ., concur.


text:
    Bradley v. The Cincinnati Camp Meeting Association.

      Corporations• — Not for profit — Express and implied powers — Raising revenue to promote object of incorporation — Membership dues not authorised, when.

    1. Where the charter of a camp meeting association empowers the' corporation to furnish tents, cottages and all other necessary conveniences and accommodations upon the camp grounds of the association, and there is nothing in the constitution which authorizes the raising of money for carrying on the work of said association, the corporation impliedly had the power and authority under its charter to provide for the raising of revenues with which to maintain such conveniences and accommodations provided such power was properly exercised.
    2. In the absence of express authority conferred by the constitution on the board of directors the question of membership dues or no membership dues, and the amount thereof, if any, must be determined by the membership of the association.
    (Decided November 29, 1918.)
    Error :■ 'Court of Appeals for Hamilton county.

      Mr. Sanford Brown, for plaintiff in error.

      Mr. William R. Collins, for defendant in error.
   Wilson, J.

This action was originally instituted by defendant in error against the plaintiff in error to recover the sum of $66.25.

The bill 'of particulars filed in the municipal court of the city of Cincinnati alleges that Alice Bradley is the owner of two cottages at Epworth Heights, and as such owner is a member of The Cincinnati Camp Meeting Association, which conducts and maintains the camp meeting grounds known as Epworth Heights; that said association is a corporation not for profit under the laws of Ohio and is conducted under the discipline, rules and regulations of the Methodist Episcopal Church; that the said property of Alice Bradley is subject to a maintenance clause and the right of said association to levy a maintenance charge or association dues for each cottage; and that the 'board of trustees of' said association fixed the amount of said charge or dues for the year 1916 at $15 per cottage, and for the year 1917 at $15 per cottage, making in all for the two cottages of Alice Bradley for said two years the sum of $60, which she was requested to pay, but refused to pay. In addition to the charge of $60 it was claimed that there was a balance due from the year 1915 of $1.25, and the sum of $5 charged for water rent for said cottages, making the total claim of $66.25.

The defendant below answered denying that her property is subject to the right of the association to levy a maintenance charge or association dues for each cottage, and further denying that a legal or binding assessment was fixed by said association for said years 1916 and 1917; and for that reason she denied the indebtedness alleged in the bill of particulars.

On the hearing in the municipal court a judgment was rendered against Alice Bradley for $61 and costs. Error was prosecuted to the court of common pleas, where the judgment below was affirmed. This court is now asked to reverse said judgments.

The sole question involved in the consideration of this cause is the validity of said maintenance charge or association dues.

The Cincinnati Camp Meeting Association is a corporation not for profit, and is designated by the statutes of Ohio a religious corporation. Its membership is composed of three classes: (1) All lot owners. (2) The Presiding Elders of the Cincinnati Conference, the Covington • District, the Kentucky Conference and the Cincinnati District of the Central German Conference. (3) Any one who has contributed the sum of $200.

One of the purposes for which the association was incorporated was:

“To hold sacredly in trust forever for the Methodist Episcopal Church the money, property and values of every kind heretofore donated, contributed, collected and held for camp-meeting purposes; * * * and all l.ands, buildings and property,., personal and real, already acquired or which may hereafter be acquired, as necessary or convenient to the successful and proper conduct of said religious camp-meetings, and the furnishing of '‘convenient and desirable tents, cottages and summer houses, roads, walks, light, water and. all other; necessaries, conveniences and accommodations upon the camp grounds of the association * * * for members and friends of the Methodist Episcopal Church.” '

The record submitted to the court contains' a copy of the constitution of said corporation, but' .the court is unable to find therein any provision for the raising of moneys for the carrying on of the' work for which the association was incorporated. There is no provision ¡therein authorizing the sale or disposition of any of its property, nor is there any provision therein for either assessing the members or establishing and fixing membership dues for the purpose of meeting the financial needs of the corporation.

This corporation is a creature of the statute laws of Ohio, and its powers are such as are conferred by its charter, its constitution, as adopted by the members thereof, not in conflict with the laws of the state or the purpose for which it was incorporated, and the laws of Ohio. We must therefore look to its charter, its constitution, and the laws of Ohio governing such corporations, for ■the power and authority for making the maintenance charge or membership dues sued for in this action.

As a maintenance charge it is in its nature and character an assessment made on each member who is a lot owner, by the board of trustees of the ■corporation. Can-such a charge be properly and legally made by the corporation acting through its board of trustees?

The charter of the corporation empowers the corporation to furnish convenient and desirable tents, cottages and summer houses, roads, walks, light, water and all other necessary conveniences and accommodations upon the camp grounds of the association, but it does not in specific terms authorize the imposition of any charge or assessment upon the members for that purpose. Can such power be implied from the language used in the charter? The charter clearly empowers the corporation to furnish such conveniences and aecommodations, and having furnished them it was incumbent on the corporation to properly maintain them. To do so necessarily involved-the duty of raising money for that purpose. From the power thus conferred is there not necessarily an implied power to do whatever is necessary and proper to Carry into effect and accomplish the purposes of its creation ?

Our supreme court in the case of The Central Ohio Natural Gas & Fuel Co. v. The Capital City Dairy Co., 60 Ohio St., 96, at page 104, say:

“It is a general rule, as sound as it is well settled, that corporations, in addition to the powers expressly granted, have by necessary implication, the power to do whatever is needed to carry into effect those granted, and accomplish the purposes of its creation, unless the particular act is forbidden by the law or charter. This is, in substance, the statutory rule of Ohio corporations. Revised Statutes, Section 3239. And, it should be reasonably applied, with a view of promoting the.legitimate objects of the corporation, rather than with a strictness that would so hedge it about as to obstruct the • practical attainment of the corporate purposes, or embarrass the corporate business. These implied powers which a corporation has in order to carry into effect its legitimate purposes are not limited to such as are indispensable to their accomplishment, but comprise all those powers that are necessary in the sense of appropriate, convenient and suitable, including a right of reasonable choice of means to be employed; and whether an act comes within those powers, must be determined in each case from all its facts and circumstances.”

Under the authority above quoted this court is of the opinion that the corporation impliedly had the power and authority under its charter to provide for the raising of revenues with which to maintain such conveniences and accommodations; but such power must be properly exercised.

The claim upon which this suit is brought is founded on a resolution passed by the board of trustees of the corporation on November 18, 1915, which reads as follows:

“On motion of brother Everett, seconded by brother Blair, the association dues of the cottage owners of the Cincinnati Camp-meeting Association are to be $15.00 per year for each cottage, payable first of each year.”

By such action the board of trustees arbitrarily fixed an amount of dues to be paid by one class bf the membership only, and that action was taken, so far as the record discloses, without its ever having been submitted to a vote of its members. The corporation had no stockholders, but it had three classes of members. The membership of the corporation had the power and authority under the laws of Ohio to adopt rules and regulations (constitution) for the government and control of the corporation, and to confer power and authority on its board of trustees not in conflict with law or violative of the object and purpose of the corporation.

The record discloses that a constitution was adopted presumably by the members, but the constitution makes no provision for membership dues, nor does it directly or indirectly confer the power and authority on the trustees to fix the annual dues or maintenance charge. The laws of Ohio do not attempt to in any way fix the membership dues of a corporation not' for profit, and without express authority so to do; conferred by its constitution on its board of trustees, this court is • of the opinion that the question of dues or no dues, and the amount of dues, if any, must be determined by the membership of the corporation.

Not having been able to find any statute of Ohio authorizing the imposition of the membership charge sued upon herein, and it not appearing by the record that such charge was ever authorized by the membership of the association, or approved or ratified by the plaintiff in error, this court is of the opinion that this charge was improperly and illegally made and that there is error in the findings and judgment of the common pleas court and the municipal court' prejudicial to the rights of the plaintiff in error.

The judgment of the court of the common pieas will therefore be reversed and this cause remanded to that court with instructions to enter a judgment reversing the judgment of the municipal court and remanding the cause to said court for such further proceedings as are authorized by law.

Judgment reversed.

Jones, P. J., and Hamilton, J., concur.