author: HAYNES, J.

text:
    DEBTORS AND CREDITORS — PREFERENCES.
    [Huron (6th) Circuit Court,
    1901.]
    Haynes, Parker and Hull, JJ;
    First National Bank v. H. G. Leise et al.
    1. Transaction- not Fraudulent Under Sec. 6343, Rev. Stat., Prior to Amendment.
    Under Sec. 6343, Rev. Stat., as it existed prior to amendment of 93 O. U. 290, mortgages given to secure bona fide debts, and to give them preference over general creditors under a deed of assignment, made substantially at the same time but not recorded until after the mortgages were recorded, are not invalid and do not constitute the agent of such mortgagees a trustee for the benefit of all the creditors; under the law as it then stood, such preferred creditors, to whom property had been so transferred, are entitled to hold the same and apply it to the payment of their respective mortgages according to their respective rights and equities, although under the present law such transactions would be void or would inure to all creditors.
    2. Transaction not Fraudulent Per SE.
    An agreement between the owner of a certain stock of goods for the sale thereof to a former employe, in consideration for which the latter has executed certain promissory notes, accompanied by a separate agreement to make monthly payments thereon, with a subsequent promise to prefer and protect the interests of the vendor for certain assistance whereby the latter was enabled to purchase more goods and for certain endorsements on his paper, a transaction by which the vendee thereof executed further notes due one day after date secured by chattel mortgages thereon to the former owner and certain other creditors separately, and whereby the store and goods were subsequently turned over to the agent of such creditors, is not fraudulent per se as to other creditors, notwithstanding the effect thereof deprives them of any part in the proceeds of such stock.
    3. Unpaid Notes not Extinguished by Other Notes.
    The fact that certain creditors of an assignor for the benefit of creditors to whom he had executed promissory notes for goods purchased before the assignment had negotiated or discounted the notes at a bank and taken the proceeds and applied them to the purposes of their business, but which notes were not paid, does not extinguish the indebtedness of the maker of the notes. Therefore, the taking of other notes due in one day from date secured by mortgages on the maker’s stock of goods, it being understood that the former notes should be returned to the debtor, gives none other than the payees of such notes any benefit under the mortgages.
    Appeal.
    C. L. Kennan and S. M. Young, for plaintiff.
    C. P. and L. W. Wickham, for defendants,
    cited:
    Mr. Hicks was a naked agent selected by the mortgagees and by them only, for the purpose of demanding and taking possession of the property for them. Justice v. Uhl, 10 Ohio St. 170; Lee v. Hennick, 52 Ohio St. 177, 181 182 [39 N. E. Rep. 473],
    Sureties are creditors, and that mortgages made to them to secure them against their liability as such, are not subject to the operation of the statute. Hatkrader v. Eeiby, 4 Ohio St. 602.
    Where an act, like a deed or assignment is for the benefit of the grantees or assignee, very slight evidence of ratification is sufficient. 1 Lawson, Sec. 41,
    Suing the purchaser, for example, for the debt, or on the contract, or suing the agent for the money received, or defending a suit brought to recover land acquired through the agent, is a ratification. 1 Lawson, Sec. 41; Frank v. Jenkins, 22 Ohio St. 597.
    Where an act is beneficial to the principal, and does not create an immediate right to have some other act or duty performed by a third person, but amounts simply to the assertion of a right on the part of the principal, then the rule (that the principal may ratiiy an authorized act) seems generally applicable. Lawson, Sec. 39.
    Ratification validates the act. Columbus v. Sohl, 44 Ohio St. 479, 482 [8 N. E. Rep. 299],
    The presumption in the absence of evidence to the contrary, is that the creditors named in a deed of assignment, accepted the benefit of the assignment. Am. Dig. 1899 B, p. 404, 19 ; Smith v. Hewell, 11 App. D. C. 425 ; Gonzales v. Batts, 50 S. W. Rep. 403 [20 Tex. Civ. App. 421] Am. Dig. (1889) p. 404.

      Preferred creditors named in a deed of trust made directly to a trustee for their benefit, and by him accepted, are presumed to have accepted it. Am. Dig. 1899 B, p. 404, 19c.
    Evidence that a deed of trust for the benefit of certain creditors was made to an agent of three of the largest creditors, and accepted by him as their agent, is sufficient proof of their acceptance of the deed in re-plevin by the trustee against an attaching officer. Fearey v. O’Neill, 50 S. W. Rep. 918 [149 Mo. 467]; Am. Dig. 1899 B, p. 404, 19d.
    Delivery of a trust deed and securing creditors, to the trustees named therein, is a good delivery which enures to the benefit of the named beneficiaries; and unless they disclaim within a reasonable time after notice their acceptance will be presumed. Kingman & Co. v. Cornell-Tebbitts Mach. & Buggy Co., 51 S. W. Rep. 727 [150 Mo. 282]; Am.' Dig. 1899 B, p. 404, 19e.
    When a grant is plainly beneficial to the grantee, his acceptance of it is presumed in the absence of proof to the contrary. Mitchell v.Ryan, 3 Ohio St. 377.
    A delivery of a deed may be to a stranger for the use of the grantee. Ib. See 4 Ballard’s Real Property, Sec. 138 ; lb. 141.
    A valid chattel mortgage of property executed to A without change of possession of the mortgaged property. Isaacs v. Insurance Co., 11 Re. 454 (27 B. 72).
    To constitute a delivery of a deed, there must.be an acceptance by the grantee, or by some one authorized to repiesent him, or one who assumes to do so, and whose act of acceptance is afterwards ratified. Meigs v. Dexter, 52 N. E. Rep. 75 [172 Mass. 217]; Am, Dig. (1899) p 1416, 18b.
    An authorized act by one assuming to be an agent for another may be ratified by the principal, and such ratification gives to the act the same effect as if it were previously duly authorized. 1 Enc. of Daw (1 ed.), 429.
    A deed executed without previous authority may be orally ratified. McIntyre v. Park, 11 Gray Rep. 102 [71 Am. Dec. 690.]
    An assignment of part of a claim to be recovered in pending litigation, to a creditor in satisfaction of his claim, without the knowledge or consent of such creditor, and made immediately before a deed of a general assignment for the benefit of creditors is filed, passes the title to such assigned part of the claim to the creditor, and is valid against the assignee named in the deed of assignment for the benefit of creditors. Bonham v. Mersman, 63 Ohio St. 599 [60 N. E. Rep. 1128],
    Where a mortgage in favor of an absentee was delivered to an attorney who had no authority to act as the absentee’s agent in accepting the same, the latter having no knowledge of the mortgagor’s intention to execute the deed, and the absentee afterw rds accepted the mortgage, he thereby ratified the attorney’s reception of it', and so became chargeable with notice of all matters within the attorney’s knowledge at the time of delivery. Lampkin v. Bank, 23 S. E. Rep. 390 [96 Ga. 487].
    A contract made by an agent in the name of his principal without previous authorization may be adopted by the principal, and such adoption may be inferred from the principal’s subsequent acquiescence. Keim v. Bindley, 30 Atl. Rep. 1063 [N. J. Ch].
    When the possession of the mortgaged property is delivered to the mortgagee, and he continues in such possession, that is sufficient notice,' and the necessity for filing or recording the mortgage fails. 3 Bine. Raw (1 ed.), W2 ; Chapman v. Weimer, 4 Ohio St. 481; Coe v. Railroad Co. 10 Ohio St. 372, 391 [76 Am. Dec. 518]; Francisco v. Ryan, 54 Ohio St. 307 [43 N. E. Rep. 1045; 56 Am. St. Rep. 711]; Brown & Co. v. Webb, 20 Ohio, 389, 390; Cross v. Carstens, 49 Ohio St. 549 [31 N. E. Rep. 506].
    A mortgage to secure endorsers upon a note contemplated to be discounted at a particular bank, and so expressed in the deed, is valid to secure the same indorsers, though the discount took place in a different bank from the one named, and was subsequently transferred to a third bank, with the same endorsers. Patterson v. Johnston, 7 Ohio (pt. 1), 225, 227; Brinckerhoff v. Ransing, 4 Johns. Ch. 65; Choteau v. Thompson, 3 Ohio St. 424; Wise v. Willard, 41 Ohio St. 679.
    Parol evidence may be received to identify the indebtedness secured. Goddard v. Sawyer, 9 Allen, 78; Johns v. Church, 12 Pick. 557; Bell v. Fleming, 12 N. J. Eq. 13 ; Easterly v. Purdey, 50 How. (N. Y.) Pr. 350; Moses v. Hatfield, 27 S. C. 324; Jackson v. Bowen, 7 Cow. 13 ; Choteau v. Thompson, .3 Ohio St. 424; Wise v. Willard, 41 Ohio St. 679; Nesbit v. Worts, 37 Ohio St. 378 ; Kuhns v. McGeah, 38 Ohio St. 468 ; Jones on Mortgages, Sec. 924; Hurd v. Robinson, 11 Ohio St. 232; Gill v. Pinney, 12 Ohio St. 38; Am. Dig. (1887) 857, par. 66.
    An outstanding liability as surety for another, together with a promise, express or implied, by such surety to the principal, that he will pay the debt and so indemnify the principal, is a valid consideration for a promissory note from the principal to such surety, payable on demand. Rittle v. Rittle 13 Pick. 426.
    Mortgages may be given to secure pre-existing debt. Cooley v . •Hobart, 8 Iowa, 358; Wright v. Bundy, 11 Ind. 398; See 2 Ballard'Real Prop., Sec. 468; 4 lb., Sec. 524.
    A mortgage executed by the wife of a debtor jointly with him upon their homestead to secure the payment of new notes, given by him as collateral to old notes, on which he was liable as maker, was sustained by valid consideration; though it would have been binding upon the homestead interest of the wife, and would have therefore been avoided in toto if it had been given to secure the old notes, without new consideration. First National Bank v. Lamont, 67 N. W. Rep. 145 [5 N. Da. 398],
    An existing indebtedness is ample consideration as between the parties for a chattel mortgage securing its payment. Johnston v. Robuck, 73 N. W. Rep. 1062 [104 la. 523] ; Jones Chattel Mortgages, Sec. 81; Smith v. Worman, 19 Ohio St. 145.
    As a general rule, a purchaser from a mortgagor or subsequent incumbrance, cannot claim that a new note for the whole or any part of the mortgage debt operates as the payment, unless the facts are such that the mortgagor himself could secure this claim. The mortgagee’s security cannot be affected by any dealings of the mortgagor with other persons. Jones Mortgages, Sec. 925, 926 ; lb. 353; lb. 70.
    A chattel mortgage will not be declared void at the instance of a creditor at large of the mortgagor, on the ground that the mortgage has not been filed in the proper office. To maintain such right, the party must be a judgment creditor, with a lien upon the mortgaged property or a valid claim to its avails. Sewart v. Beale, 14 N. Y. Sup. Ct. 405 ; 3 Enc. Daw (1 ed.), 198n.
    A valid chattel mortgage of property executed to A, without change of possession of the mortgaged property, and not filed or deposited with any public officer (mentioned in Sec. 4151, Rev. Stat.) on condition broken» confers upon the mortgagee, A, a right of possession superior to that given by a subsequent pledge of the same property, delivered to B, to seem a pre-existing indebtedness, although the pledgee, B, had neither knowledge nor notice of the existence of the chattel mortgage. Isaac v. Life Ins. Co., 11 Re. 454 [27 B. 72],
    The mortgage is valid as between the parties. Francisco v. Ryan, 54 Ohio St. 307 [43 N. E. Rep. 1045; 56 Am. St. Rep. 711]; Brown & Co. v. Webb, 20 Ohio, 390; Cross v. Carstens, 49 Ohio St. 549 [31 N. E. Rep. 508]; 1 Am. & Eng. Enc. of Law (1 ed.), 429 ; McIntyre v. Park, 11 Gray, 102; Lampkin v. First Nat. Bank, 23 S. E. Rep. 390 [96 Ga. 487]; Keirn v Lindley, (N. J. Ch.) 30 Atl. Rep. 1063.
   HAYNES, J.

This action was brought here by appeal from the court of common pleas. Action was brought in that court for the purpose of setting aside certain transfers of property and to declare a trust for the benefit of all creditors under Sec. 6343, Rev. Stat., and extending under Sec. 6344. The proper issues were made up from the pleadings and the case has been heard upon the evidence, and upon the argument of counsel.

Briefly, it appears that J. B- Hudson, prior to 1894, or about that time, had been carrying on the business in this city, of selling ready-made clothing, and about that time he desired to withdraw from the business here. Mr. Beise had been in his employ for some time, here and at Detroit, and knew him well and he desired to purchase the goods and remain here and carry on the business; and such negotiations were had that Hudson sold out to him for something like $2,200 and took notes for that amount payable at a future time, but with a separate arrangement in writing between the parties that Beise might pay $75.00 per month until the amounts were paid.

Beise desired to enlarge the business, or rather to extend it and to carry on the business of selling dry goods, and for that purpose it was necessary for him to purchase, from merchants, dry goods, and he sought to purchase from certain firms in Detroit, the firm of Strong, Bee & Company; Bdson, Moore & Company, and I believe he purchased from some other firms at other points. To enable him to do so, Mr. Hudson entered into a guaranty with these respective parties, guaranteeing the amount of the goods that each might sell him, up to a certain amount. They made sales to him payable at a future time, and the business was carried forward by Mr. Beise for a period of perhaps eighteen months. The business did not prove remunerative. His sales were light and his expenses were a little large and he found himself in a failing condition.

It appears from the testimony that he had told Mr. Hudson at the time he gave this guaranty for the payment of these goods and perhaps before that time, that he would protect him in case of any financial trouble. In carrying on the business, he has created some other indebtedness, he had borrowed money of friends of those that were rather intimate with him and had created some indebtedness for goods and had borrowed money from the First National Bank of Norwalk for the purpose of carrying on his business the sum of $1,500 or $2,000> which was still due and owing.

Finding himself in this position, he notified Mr. J. B. Hudson, or rather the agent of Mr. Hudson in Ohio, who lived at Sandusky, Mr. Hicks — Mr. Hudson himself living at Detroit — that he would have to stop business. Thereupon Mr. Hudson came to Ohio and appointed a meeting with Mr. Beise and Mr. Hicks, his manager, at Cleveland, at the office of a firm of lawyers, and there it was arranged and agreed and carried out, so far as it could be, that mortgages should be executed to Mr. Hudson and to some of these other creditors for the purpose of securing them to the amount that he was owing to each. It seems that at the same time there was a deed of assignment drawn up whereby an assignment was to be made after the filing of the mortgages to a trustee for the benefit of creditors. This was done on Sunday afternoon, on February 9, but all papers were dated February 10. Mortgages were given to each of the creditors — a mortgage to Hudson, to Strong, Tee & Company, to Edson, Moore & Company and some others.

The mortgages contained a condition that the mortgagees should take immediate possession of the stock of goods. There were also executed, at the same time, notes payable one day after date, direct to the mortgagees.

The next morning Mr. Leise returned home, and Mr. Hicks and Mr. Eoeser came here' Mr. Eoeser being an attorney from Cleveland.

It had been agreed that Mr. Hicks was to be the man who was to take possession of the stock of goods for the mortgagees, and Mr. Hudson returned to Detroit for the purpose of seeing the parties in regard to that matter. He did see them in the morning and it was agreed by them, or consented by them, that Mr. Hicks might act as their respective agent in taking possession of the stock of goods under the mortgages; and that was done, as the testimony shows, before a final consummation of the arrangement by the filing of the mortgages. He took possession of the stock of goods and the mortgages were then filed in the recorder’s office in this county.

Shortly after, Mr. Hicks, as the agent of the mortgagees, took possession of the stock of goods and closed the door, or about the same time the deed of assignment was signed and executed and Mr. S. M. Young of this city was named as assignee, and that paper was filed in the office of the probate court and Mr. Young went to the store and demanded possession of the stock of goods under it, but he was told that he could not have it and was allowed to remain outside of the building, and within three or four days this suit was commenced. Hicks, in the meantime, after closing the store, was proceeding to take an invoice of the stock of goods. That stock of goods, either by agreement or under an order of the court, has been sold, and the money is in the hands of a trustee awaiting the action of the courts in regard to these mortgages.

It transpired from the evidence which was brought out upon examination, that J. E- Hudson had received notes originally; and, in the course of business, had transferred them to a bank, for his own convenience, raising the money on them to be used in his business, and that Strong. Eee & Company and Edson, Moore & Company had done the same thing,

I believe that comprehends substantially all the facts that are material to the case.

It is intimated here that this transaction operated as a fraud upon the other creditors. That the effect of it was to entirely deprive them of any part in the proceeds of the stock of goods, is true, and we suppose their debt still remains wholly unpaid and will be unpaid unless •Mr. Teise at some time should be able to make money enough to pay them.

That there was actual fraud, in that there was an agreement at the time of the original transfer of the stock of goods to sell same and pay the indebtedness to Hudson, restock by purchase on credit and thus take the proceeds for the benefit of J. T- Hudson, is not claimed, nor is it shown by the evidence. We think the evidence shows that Mr. Hudson was willing to allow this clerk of his to try his hand at carrying on the business, but that he had some doubts whether he would be successful, and as the matter proceeded, perhaps had still more doubt; but he was willing to give him time and did give him time, and he allowed his installment of payments to pass at times unpaid. He assisted him to buy goods and incurred indebtedness on his paper for the purpose of enabling him to carry on his business, a fact which we conceive to be wholly inconsistent with actual intent of fraud on the part of Mr. Hudson. So that at the time that Mr. Teise had given notice that he would carry on the business no longer, the matter simply stood in such a manner that the transaction to be carried out, or whatever was to be done, was to take such legal steps as would prefer or protect Mr. Hudson and those other parties in accordance with the statement of Leise previously made that he would do so. That we conceive makes no special difference.

The question is, whether or not this matter of taking these preferences is illegal in the state of Ohio; whether the manner in which it was taken, is illegal, or would render it obnoxious to any provision of the statutes in this state.

That possession taken under these mortgages could not make Mr. Hicks a trustee is clearly settled by a decision of the Supreme Court of this state, a decision that has been in force for forty-two years and has been approved and never disputed by the Supreme Court of this state, and that is the case of Justice v. Uhl, 10 Ohio St. 170, where claims being in the hands of Convers, Giddings & Bigelow, a firm of law3rers then dojng business in Sandusky, they had taken mortgages to the separate creditors and had taken possession of the stock of goods as agents for those creditors; the Supreme Court said that that was perfect^ lawful and right and did not make it obnoxious to any statute of the state of Ohio, and the present statute I understand was in force at the time, or one similar to it. So that the taking possession of this stock of goods by Mr. Hicks as agent of these separate mortgagees, did not constitute him a trustee tor the benefit of all the creditors.

The question was somewhat discussed and the question is in the case, whether or not the making of these mortgages and the assignment to a trustee at substantially the same time, would or could or should operate as an assignment in trust for the benefit of all the creditors.

In Sylvester v. Hesslein, 3 Circ. Dec. 128 (5 R. 256), this court, sitting in Rucas county, composed at that time of Judges Bentley, Scribner and myself, had that question before us. The question had been decided by some other circuit courts and there had been perhaps three of them that had passed upon the question, and others, I think, were getting ready to.

In that case Hesslein, who was carrying on business at Toledo, a dry goods business, was pressed by a Chicago creditor for payment, or for security, and she executed to him a chattel mortgage on her stock of goods and allowed the creditor to take possession; she then, without being pressed or solicited in any manner, gave mortgages to sundry of her other creditors and caused them to be delivered or filed by their agents, subject to this prior mortgage and the taking possession under that mortgage; then she made an assignment of all her stock of goods to Mr. Black, of the city of Toledo, subject to his mortgage, and he wrote an acceptance, but it was never filed in probate court and he never acted upon it in any manner. But the party who held the first mortgage proceeded to sell the stock of goods and they were going to divide the proceeds between themselves, but the creditors intervened and filed their petition and the matter then came up for hearing. We held that, in that case, as far as the Chicago creditor was concerned, that he, being an adversary party and pressing for a mortgage, had the right to hold his mortgage, and that as to all the other mortgagees, it being a voluntary matter on the part of Hesslein, and an assignment having been made substantially at the same time, that same was an assignment in trust for the benefit of all the creditors; and we directed that the matter be sent to the probate court for the appointment of a trustee for carrying out all the purposes and objects of the trust.

The case was never taken up; the matter was settled immediately by the parties and the case ended. We decided that case in 1891. We thought that good law and we have never gotten away from that position. But the Supreme Court, however, the next year, took a different view of the matter and in Cross v. Carstens, 49 Ohio St. 548, 566 (31 N. E. Rep. 506), discussed the matter very fully. The case came up from Cincinnati, and perhaps these various decisions coming from the circuit courts of the state, the question having been before the courts throughout the state, they deemed it advisable to pass upon the question. The question was in the case, possibly, although they might have decided the case upon another point alone, but as the question was in the case, they saw fit to decide it and it is in fact a decision of the Supreme Court of the state of Ohio upon a point that was made in the case which was before them and which they might properly decide; and they speaking of the decision such as we had made, say :

“ This doctrine has been confidently argued by eminent lawyers and has recently received the sanction of at least one Ohio court of high standing, perhaps of more than one. There is about it a spice of the heroic which challenges admiration, though it may not win acquiescence. Indeed, we may confess that when first presented we were attracted to the doctrine. But reflection has satisfied us that it is consistent neither with a fair interpretation of the statutes, nor with the previous decisions of this court, and, as an attempted rule of property, would prove unsubstantial and delusive, and practically impossible of execution.”

Thereupon they proceed to establish and hold a contrary doctrine for the state of Ohio. They say for fifty years or more, in the state of Ohio, almost from the earliest establishment of the courts, the doctrine that a man might dispose of his own property as he saw fit, for the purpose of preferring creditors, was right; that it was held by him, and was a right which was proper for him to exercise and a right in which, he had been sustained from time to time by the courts, and in which, in this decision, they sustained him.

So that, under the decision of the Supreme Court, there could be no question but that this party had the right to make these mortgages. The mortgagees had a right to take possession under those mortgages and they had a right to hold their property, although the effect of it was to deprive other creditors equally meritorious, of any right or share in the distribution of the property and to leave them entirely without security for their indebtedness, and that the deed of assignment did not deprive them of that right.

Now, there was another complication that came into the question that is raised here, and that is this: As I have said, it appears that these various creditors had, in the course of their business, negotiated notes at the bank and had taken the proceeds and had applied them to the uses and purposes of their business in their regular course of business.

In other words, in carrying on their business, they used all their notes that came in in that way and discounted them and carried along the debt for the time, and if the notes were not paid by the debtor, then they took them up themselves.

Reference is made to tbe case of Pendery v. Allen, 50 Ohio St. 121 (33 N. E. Rep. 716; 19 L. R. A. 367). In that case Emerson had become surety for some parties by the name of Rowe. Allen owed to the bank in Cincinnati the sum of ten thousand dollars. The Rowe notes were eight thousand dollars. Emerson took a mortgage from Allen to secure himself upon his endorsement, and at the same time agreeing to pay to Rowe the amount of their notes, and also at the same time agreed to pay the hank the note that was owing by Allen to the bank upon which Emerson, prior to that time, had not been liable.

The Supreme Court held that in doing that he had rendered himself, or brought himself under this statute; that the transaction should be declared an assignment in trust of the property for the benefit of all the creditors. In other words, that in receiving the mortgage, and in taking the steps that he had, that he had received property from a fail, ing debtor in contemplation of insolvency in trust for himself and for others, and that in doing so, the statute would step in and declare the trust — a trust for the benefit of all creditors.

-They recognized the right of Emerson to secure himself as an endorser upon that paper. The court say, page 132: “He might safely have secured his liability for Allen to the Rowes; but, having gone beyond this, and accepted a mortgage intended to secure another creditor, he became by force of the statute, a trustee for all, and in respect to all the property covered by the mortgage. * * * And his liability in this regard is to be determined not by subsequent events, but by the nature of the transfer at the time it was made. If, by its terms, or necessary implication, it made him liable to account to another creditor of the debtor, it is an assignment in trust within the meaning of the, statute.”

They argued as far as the bank was concerned, that having received this property upon the agreement that he would pay that debt, the bank would have the benefit, or the right to come in and compel him to account to it for the property that he had received.

Now that transaction and this are different, and when we come to reflect upon it, they are quite different. These parties were creditors of Reise; they had sold him goods and had claims against him for the price of those goods. It is true that he had given them notes to the amount of the price of those goods although the notes didn’t pay the account. The account still existed and existed for all time and does exist to-day-because it is not yet paid.

In Merrick v. Boury, 4 Ohio St. 60, the Supreme Court say:

“ It is only by force of an agreement of the parties, that the giving of an unsealed note by the debtor will be payment of a precedent debt. The burden of proof is upon the debtor, who must establish the agreement clearly; and the question whether there was such an agreement, is one of fact to be determined by the jury.”

There is no proof and no way whereby it can be known that there was ever any agreement that these notes were to be taken by the parties as payment of that account; that account existed all the time and still exists. The notes that were taken by the parties were by them, in the course of their business, transferred to the bank simply to raise money to be used in their business. They never applied that money to the payment of the account. They could not do so. It was not what they were negotiating the notes for. They were negotiating the notes simply to carry on their business and to pay their debts and to purchase goods in their business.

When they came to take these mortgages, they took the mortgages to secure that debt. It is true, when they came to do it, the}' chose to put it in the form of a note payable at one day, with the understanding that the other notes should some time be returned to the debtor; but the thing that they were doing, the real transaction was, that they were securing the debts of these respective creditors which have never been paid in any manner or form. They never took those mortgages, in any way or form, with the understanding that anybody else was to be benefited by them, and the payment of those notes to the banks held by them respectively, did not pay the debts due from Eeise that still existed.

With this statement of facts and this discussion of the law of the case, as we think, in all its material aspects, we are wholly unable to see wherein the plaintiff has any right to set aside the transfers that were made by Leise to these parties, by virtue of those mortgages or to declare them void in any manner or form by the law of the land, as it existed at the time of the transaction. Each of these respective creditors have, we think, without doubt, the right to hold this property and to apply it upon the payment of their respective mortgages according to their respective rights and equities. In saying this, we do not wish to say that we approve of the statute as it has stood for fifty years in this State. . We have held, and we believe that the rule is, that equality is equity, and we rejoice that the legistature of the state has finally passed a law which prevents any transfers of the character of these now before us. But inasmuch as this transaction occurred prior to that law, and where the law in force was as I. have already stated it, we are compelled to announce and to adjudge that the mortgagees have the right to hold that property and we. so order,


source: Caselaw Access Project

license: Public Domain

text:
    STREET RAILWAYS — HIGHWAYS.
    [Summit (8th) Circuit Court,
    April Term, 1901.]
    Caldwell, Hale and Haynes, JJ.
    (Haynes, J., of the sixth circuit, taking the place of Marvin, J.)
    Akron, Bedford & Cleveland Railroad Co. v. Lewis Keck.
    Street Railways — Highways—Abutting Owner’s Right to Compensation. Street railways, propelled either by horse or electric power, legally authorized and located in a public highway, are not a new and additional servitude entitling the owner of abutting land to additional compensation for the mere use of the highway or the destruction of trees standing thereon, made necessary for the proper location thereof, but where the owner is deprived of the mean3 of ingress and egress to his premises, or the s me is made more inconvenient and burdensome, as where by the construction thereof large quantities of water are thrown upon his land which otherwise would have gone in another direction, his property rights are invaded, and he is entitled to compensation.
    Heard on Error.
    Allen & Cobbs and Ford, Henry, Snyder & McGraw, counsel for plaintiff in error.
    Wilcox & Grant, counsel for defendant in error,
    cited:
    As to steam railroads in highways the law has become fully settled in this state as well as many others, the rule being that as a matter of law they are an additional burden on the land owner not within the contemplation of the original dedication and that they constitute a diversion of the highway from its original uses so far as abutting owners are concerned. Railroad Co. v. O’Harra, 48 Ohio St. 848 [28 N. E. Rep. 175]; Lawrence R. R. Co. v. Williams, 35 Ohio St. 168; Railroad Co. v. Lawrence, 38 Ohio St. 41 [43 Am. Rep. 419]; Cincinnati & Spring G. A. St. Ry. Co. v. Cumminsville, 14 Ohio St. 523,549, 550, and numerous cases.
    As to street railroads, constructed in the center of and on the level of the highway and not interfering with the ordinary use of the highway, as a means of travel and of ingress to and egress from the abutting land and not substantially interfering with the land owner’s property rights in the highway, are not, per se, an additional burden. Street Railway v. Cumminsville, supra, and especially at pages 549 and 550; Sells v. Street Railway Co., 11 Re. 643 (28 Bull. 172) ; Mt. Adams & Eden Park Inc. Ry. v. Winslow, 2 Circ. Dec. 240 (3 R. 425) ; Simmons v. Toledo, 3 Circ. Dec. 64 (5 R. 124); Schaffv. Electric Ry., 8 Circ. Dec. 688 (16 R. 252); La Crosse City Ry. Co. v. Higbee, 83 N. W. Rep. 701 [107 Wis. 3891: Briggs v. Railway Co., 10 Atl. Rep. 47 [79 Me. 363; 1 Am. St. Rep. 316]: Taggart v. Railway Co., 19 Atl. Rep. 326 [16 R. I. 668; 7 L. R. A. 205]; Nichols v. Railway Co., 49 N. W. Rep. 538 [87 Mich. 361; 16 L. R. A. 371]; Halsey v. Railroad Co., 20 Atl. Rep. 859 [47 1ST. J. Eq. 380]; Howe v. Railway, 44 N. E. Rep. 386 [167 Mass. 46]; Chicago, B. & Q. Ry. Co. v. . Railway Co., 40 N. E. Rep. 1008 [156 Ill. 255],
    It becomes a question of fact, for a jury to determine, under proper instructions by the court, whether or not the road as located, constructed and operated is an additional burden on the highway and the abutters’ easements and interests therein and appropriates any substantial rights of the land owner. See all case cited in the last proposition and Zehern v. Electric Ry., 74 N. W. Rep. 538 [99 Wis. 26 ; 41 E. R. A. 575 ; 67 Am. St. Rep. 644]; Jaynes v. Omaha St. Ry. Co., 74 N. W. Rep. 67 [53 Neb. 631; 39 E. R. A. 751]; Detroit City Ry. Co. v. Mills, 48 N. W. Rep. 1007 [85 Mich. 634]; Hastings & G. I. R. R. Co. v. Ingalls, 16 N. W. Rep. 762 [15 Neb. 123] ; Railroad Co. v. Hartly, 67 Ill. 439; Eareda Electric Ry. Co. v. Hamilton, 56 S. W. Rep. 998 [23 Tex. Civ. App.480] ; Pennsylvania R. R. Co. v. Railway Co., 31 Atl. Rep. 468 [167 Pa. St. 62; 27 E. R. A. 766; 46 Am. St. Rep. 659]; Chicago & N. W. Ry. v. Railway Co., 70 N. W. Rep. 678 [95 Wis. 561; 37 E. R. A. 856; 60 Am. St. Rep. 136]; Smith v. Commissioners, 50 Ohio St. 628 [35 N. E- Rep. 796; 40 Am. St. Rep. 699].
    As to trees in the highway, see Daily v. State, 51 Ohio St. 348 [37 N. E. Rep. 710; 24 E. R. A. 724; 46 Am. St. Rep. 578], and especially the clause of the charge given on page 353 of that case.
    The real question to be determined is, what was the fair market value of the property as a whole immediately before the construction of the road, and what was the fair market value immediately after the road was built and in operation, making no allowance for benefits which the property may have derived from the building of the road; the difference between these values so found, if any, is the true measure of compensation to which plaintiff is entitled. Atlantic & G. W. R. R. Co. v. Campbell, 4Ohio St. 583 [64 Am. Dec. 607]; Hatch v. Railroad Co., 18 Ohio St. 92; Cincinnati & Ind. R. R. v. Zinn, 18 Ohio St. 417, 418; Railroad Co. v. Gardner, 45 Ohio St. 309, 322 [13 N. E. Rep. 69].
   HAYNES, J.

The plaintiff in error, the railway company, owns and operates an electric railway between the city of Akron and the city of Clveveland. The line of the road passes through the township of Boston, Summit county, and along the easterly side of the State road, so-called.

The defendant is how, and was at the time the railway track was located on said highway, the owner of a farm on the east side of said State road, and abutting on the highway, the boundary of which extended to the center of the highway. He has improved that farm and occupies it as a homestead, his buildings being near this public highway.

Some time after the track had been located upon that highway in front of the premises of the defendant in error, he commenced proceedings in the probate court of Summit county to compel the appropriation of the property appropriated or occupied by the company, as he alleged, belonging to him, for the purpose of its railway, and of which at'that time, he alleges, the company was in possession.

After certain preliminaries required by the statute a jury was impaneled in the probate court to assess such compensation and damages as the defendant in error was entitled to recover. At the close of the testimony the court, among other things, charged the jury as follows:

‘ ‘ One of the questions involved in this case is that of the character of the occupation of the highway by the defendant company. Is such partial occupation a new and additional servitude or burden, or is it not ?
“ This question is for the jury to' determine and you are instructed that if you find from a fair preponderance of the evidence that the character of defendant’s road and fixtures, the construction, operation and occupancy in and along said highway is of such a nature as to be incompatible with the usual modes of use thereof by the public and so as to practically exclude the public from the usual modes of use of that part of the highway so occupied, then the jury will be warranted in further finding that such occupation imposes an additional burden and servitude upon that part of plaintiff’s property within the lines of said highway.”

This charge, of course, permitted the jury, under certain circumstances, to return in behalf of the defendant in error compensation for the use made of the land within the limits of the highway, of which the defendant in error held the legal title.

This court has held in a somewhat similar case, that a street railroad, propelled either by horse or electric power, located in a public highway, is a legitimate, authorized public use of such highway, and a legitimate mode of travel and transportation thereof, and within the right appropriated to the public use by the original dedication or appropriation for a public highway. This to be exercised, of course, under proper regulations by the proper authorities. That such use, we have held, imposes no new servitude and does not entitle the owner of the fee to any additional compensation by reason thereof.

A petition in error is now pending in the Supreme Court to reverse that order in the case in which it was made, and so far as we are aware it is an open question in this state, not yet determined by the Supreme Court. And it may be doubtful whether we are right in this proposition. We are not disposed, however, to enter into any extensive discussion of this proposition to show its correctness, but await the determination of the question by the Supreme Court, which must be made within a reasonably short time. We adhere, however, to that holding until the Supreme Court shall have settled it adverse to such holding.

If that proposition be correct, then the proposition and charge to the jury was erroneous. Instead of the charge which we have quoted, the court should have said to the jury, in substance, that the defendant in error, as a matter of law, was entitled to no compensation by reason of any additional burden upon the land within the limits of the highway of which he held the legal title.

It does not follow, however, that the plaintiff was not entitled to any compensation on any account. As an owner of the land abutting on the highway the defendant in error may have certain rights and easements in the highway not common to the public, and for the invasion ot such rights, property rights, and such only, the defendant in error was entitled to compensation. Those rights should have been definitely defined by the court and the recovery limited to the damages for the invasions of such rights. He was entitled to reasonable access to his lands. And if, by the location of this railway upon the highway in front of his premises, he was deprived of the means of ingress to and egress from his lot, or if the same was made more inconvenient and burdensome, he should have recovered just compensation for the loss and injury to such right. If, in the construction of the railway large quantities of water were thrown upon his land, which otherwise would have flown in another direction, it was an invasion of a property right for which he was entitled to compensation, under proper instructions from the court. But for the mere use of the highway, or the destruction of trees standing thereon, made necessary for the proper location of this railway legally authorized and located under a franchise legally granted, the owner was entitled to no compensation, and the jury should have been so told.

A request was made, in substance, the opposite to that given to the jury by the court. For the error in the charge, and the refusal to give request five, the judgment of the court of common pleas affirming the probate court is reversed, and the judgment of the probate court is also reversed, and the remanded to the court of common pleas for lurther proceedings.

There are other questions of error complained of, but I think that, under this rule, if it shall be finally sanctioned by the Supreme Court, and the case is tried under the rule that we have here laid down, all other complaints of error made on this trial cannot again occur, and it is unnecessary, perhaps, to further consider them.

For these errors that I have named the judgment will be reversed and the cause remanded.


author: HULL, J.

text:
    WILLS.
    [Lucas Circuit Court,
    November 1, 1901.]
    Haynes, Parker and Hull, JJ.
    Bertha Kettemann, Executrix, etc. et al. v. Katie Metzger.
    1. Evidence Tending to Prove Undue Influence.
    In an action to set aside a will for want of sufficient mental capacity in testator and having been produced by undue influence, any testimony tending to show that the will was not testator’s or that it was brought about by undue influence, is competent. Thus testimony that the first wile of testator was frugal and industrious, that he had affection for her, that they lived happily together, that his daughter by that marriage was frugal and worked in her father’s house after her mother’s death until just before testator’s second marriage, and that testator suddenly took a violent dislike to her husband, etc., is properly submitted to the jury as tending to prove undue influence in a case where testator married a second time and willed all of his property to his second wife, although the fact of his former wife’s frugality and industry and his daughter’s services did not, of itself, take away his right to dispose of his property as he saw fit.
    2. Expert Testimony — 'Weight and Competency.
    The testimony of non-expert witnesses, acquainted with the testator, giving opinions as to the mental capacity of a testator to make a will in connection with the facts upon which their opinions are based, is competent, notwithstanding their testimony discloses little opportunity to observe or little knowledge of the facts, and their inability to state facts sheddingmuch light on testator’s condition. Under such circumstances, the question is as to the weight rather than the competency of the testimony.
    3. Witnesses in Prooe oe Execution oe Wide.
    Under Secs. 5862, 5863 and 5864, Rev. Stat., prescribing the order of trial and what evidence constitutes a prima facie case for the contestee,in an action to set aside a will, the judgment of the probate court admitting the will to probate and the will itself are competent and sufficient evidence to make a prima facie case. The witnesses thereto, if living or competent, should be brought into court and subjected to cross-examination like other witnesses. Hence an affidavit by a witness to a will, that the will was signed by testator in the presence of the witnesses and that the witnesses signed in his presence and in the presence of each other and at the request of testator, and that testator wis of sound mind and memory and not under restraint, is not proper evidence in the absence of any proof that either of such witnesses is dead, incompetent or absent and such affidavit was properly ruled out.
    4. Charge to Jury — Pureey Abstract Propositions.
    Only persons of sound mind and memory are within Sec. 5914, Rev. Stat., prescribing who may make a will. Therefore, in an action to contest a will, as made without testamentary capacity and under undue influence, it would be misleading to instruct the jury, and there was no error in refusing such an instruction, that “ it is the right of every man, which can not be taken from him, to do what he desires with his own, unless the disposition he makes violates some law,” for the reason that it leaves out the question of mental capacity and undue influence and is not applied to the facts in issue.
    6.Same — As to Power oe Court to Make Disposition oe Property.
    An instruction that “ after his death neither court nor jury have the power to make for him a disposition of his property different from the disposition he intended to make, upon any theory that such intended disposition was unjust and wrong,” is a correct statement of an abstract proposition of law, but might be misleading standing alone and without qualification in an action to contest a will upon the ground of want of mental capacity of testator and undue influence brought upon him to make the will in controversy, for while he may make an unjust will, the jury have the right to consider whether, if he was sound mentally and without undue influence, he would have made such a will, and it was not error to refuse the instruction.
    6. Undue Influence Determined erom Facts and Surroundings.
    In determining whether there was undue influence, the facts and circumstances surrounding testator at the time he made the will, his feelings towards his children and his wife, should be considered.
    7. Evidence Tending to Support Mental Soundness.
    The fact that a daughter, after leaving her father’s house, brought suit against him for and made a settlement with him as to her share of her mother’s estate, is evidence, in a will contest, tending to show that the daughter at that time regarded her father as of sound mind.
    8. Mental Soundness Notwithstanding Eccentricities.
    Where it appeared that testator, for twenty years after making his will, associated socially with men in general, bought lands and built and repaired houses, rented houses and collected the rents, bought bonds and sold them, and conducted a merchant tailoring business, that he made no bad bargains nor showed mental incapacity to cope with the men with whom he dealt; held, that the evidence showed testamentary capacity, notwithstanding it also appeared that testator was eccentric and excitable, occasionally became intoxicated, and, during the later years of his life, allowed his business to become more or less run down.
    9. Highest Degree oe Mental Capacity not Required to Make Will.
    It does not require the highest degree of mental capacity to make a will. A person who, at the time of making his will, has an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, the persons who have a claim upon his bounty, and the manner in which it is to be distributed, has sufficient mental capacity to execute a will.
    10. Fraud or Ineluence Must be Shown toJhave had Eeeect.
    To invalidate a will for fraud or undue influence, it must appear that the fraud or influence complained of had some effect upon the testator in making his will. A mere suggestion that testator should make certain provisions, etc., is not sufficient.
    11. Will Held to be a Natural One.
    Where it appeared that testator, who died worth about $15,000, leaving a widow, his wife by a second marriage, and two children by her, and a daughter by a former marriage, who had previously received about $6,000 out of her mother’s estate, and who had sued her father and made a settlement with him, a will bequeathing the whole of testator’s estate to his second wife was not an unnatural one or one which indicates undue influence.
    12. Reviewing Court may Review Testimony in Will Case.
    A reviewing court has the power to review the testimony in a will case, and if the verdict is clearly and manifestly against the weight of the evidence, it has power to set aside the verdict and order a new trial. This power is not defeated by Sec. 5861, Rev. Stat., providing that the question of the validity of a will in an action contesting it must be submitted to tbe jury and tlieir verdict thereon shall be conclusive, etc. The trial by jury means a common law jury trial, in which the court presides and passes upon questions of law and is conducted in all respects as any other trial.
    13. Verdict set Aside — Wide Sustained.
    In a contest of a will the questions of mental capacity and undue influence are peculiarly questions for the jury, and cannot be determined entirely by the number of witnesses testifying, but where it appears that twenty-three testify to the soundness of testator’s mind, while only six, three of whom are interested, testify to the contrary, the preponderance of witnesses should be considered and given great weight by a reviewing court even against the verdict of the jury holding him incapable of making a will; and where from the whole evidence it clearly appears that the testator was not mentally incapable, the verdict of the jury will be set aside and a new trial ordered as in other cases.
    HEARD ON KeROR.
    Harry E. King, J. J. Waldvogel and Elmer E. Davis, for plaintiffs in error.
    Hamilton & Kirby, for defendant in error.
   HULL, J.

This action is brought to set aside the will of John Kettemann. It was heard in the court of common pleas before the court and a jury, and a verdict returned in favor of the plaintiff below, setting aside the will. Katie Metzger, defendant in error, the daughter of John Kettemann deceased, was the plaintiff below; plaintiffs in error were the defendants. It is to set aside the judgment entered upon the verdict that these proceedings in error are brought in this court.

Plaintiffs in error claim that the court below erred in admitting evidence and in ruling out certain testimony; erred in its charge to the jury and in its refusal to give certain requests asked ; and further, that the verdict of the jury was against the weight of the evidence and not sustained by sufficient evidence, and that the court erred in overruling the motion for a new trial on that ground.

A large number of witnesses were called upon the trial — altogether about thirty — the plaintiff below calling twelve and the defendants nineteen. The petition asked to have the will set aside on the ground that John Kettemann was mentally incapacitated to make a will at the time it was made, and upon the further ground that the will was brought about by the undue influence of Bertha Kettemann, his wife, and certain other persons not named in the petition. John Kettemann at the time of his death, which occurred in August, 1900, was sixty-seven years old. The will was made on March 4, 1880, when he was forty-seven years of age, and gave all of his property to Bertha Kettemann, who was then his wife, by a second marriage, which occurred October 28,1879, a few months before the making of the will. Katie Metzger, the plaintiff below, was John Kettemann’s only daughter by his first marriage, and only surviving child at the time the will was made. John Kettemann and George Kettemann, two of the plaintiffs in error, are the sons of Bertha Kettemann by her marriage with John Kettemann. John Kettemann left an estate, according to the testimony, amounting to between $15,000 and $16,000 in real estate and personal property, the real estate being valued at between $13,000 and $14,000, he having $2,000 in a bank at the time of his death. Katie Metzger’s mother, the wife by the first marriage, had some property, and as that cuts some figure in the case, I will mention it. She died leaving an estate of perhaps $5,000 or $6,000, most of which in the end, as will appear in the discussion of the case, went to Katie Metzger, the only daughter.

After John Kettemann’s death the will in question was found in his safe. The evidence does not disclose who wrote the will. They were unable, apparently, to find out in whose handwriting it was. He referred to it in the last days of his life, or rather referred to his papers, stating to those around him that his papers would be found in his safe; and among them was found this will. The record does not disclose that his widow or either of his two sons had any knowledge of the existence of this will until after his death.

The will is very short, and was drawn substantially after the form given in Swan’s Treatise, where a testator gives all of his property to his wife. On thé face of it, it was duly executed and witnessed by two witnesses. It covers altogether about a page of “legal cap.” It was duly admitted to probate by the probate court of this county, and not long thereafter the petition was filed by Katie Metzger, his daughter, to set aside the will.

The testimony in the trial of the case took a wide range, as is usual in will cases, covering the last twenty-five or thirty years of John Ket-temann’s life; and his relations with his daughter and his first wife, his second wife, his relations with his neighbors; his conduct; his peculiarities and his characteristics ; his habits; his expressions of affection or want of affection for his daughter and first wife,'and many other matters were gone into in the testimony, to bring before the jury as nearly as possible a sort of word photograph of the testator in all of his relations in life, particularly his relations with those who might be the proper objects of his bounty; and testimony as to his mental capacity, his peculiarities, eccentricities, his habits of drinking, so far as that affected his mental capacity, was given by witnesses called on both sides.

After hearing all the testimony and the charge of the court, the jury returned a verdict that the paper in question was not John Kettemann’s will. A motion for a new trial was overruled, and by the judgment of the court the will was set aside.

Plaintiff in error claims that at the trial of the case the court erred in admitting certain evidence offered by the plaintiff. The first of this evidence to which I will refer was testimony relating to the habits of his first wife for frugality and industry and his relations with her, showing that he and she lived happily together, that he had affection for her; testimony as to the habits of Katie Metzger, the plaintiff below, of frugality; the work that she did after her mother died, which was in 1873, and before her father’s marriage with the plaintiff, which was in 1879.. There was considerable testimony of that kind introduced over the objection of the defendants below, and to which they excepted, and the admission of it is claimed as one of the errors in the trial.

Before discussing that I may as well speak of another class of evidence that was allowed to be introduced, and that was testimony as to what John Kettemann said about his wealth before he made this will— the amount of property that he was worth; some of the witnesses testifying that he said he was worth $60,000 to $70,000, and some of them said $76,000; testimony as to conversations between him and Katie, and his demeanor toward her and his conduct toward her. He finally came to dislike her for some reason, and indicated it by harsh language toward her, about the time she left her father’s house. This was objected to, and exception taken. In a general way this was the character of this class of evidence to which objection was made.

It is urged that the fact that John Kettemann’s first wife was frugal or industrious, or the fact that Katie worked in her father’s house for some years after her mother’s death, did not prevent bis making a will which disinherited Katie, the daughter of his first wife. As a proposition of law, that is, of course, correct, but where the question is whether a will has been produced by undue influence, in connection with the question whether the testator had sufficient mental capacity to make a will, any testimony that might or would shed any light upon the question, as to whether the will as made was probably his will or not, or whether brought about by any undue influence, is competent. The weight of the testimony is properly left to the jury, considering all the testimony in the end that has been offered, and determining the question whether the paper writing is in fact the will of the testator or not. If the testimony was entitled to any weight in the consideration of this question, it was properly admitted. In our judgment this testimony was properly admitted by the court. The plaintiff was entitled to show all these things in connection with all the other testimony that she had, bearing upon the question of John Kettemann’s capacity, and of undue influence, and have it all go .to the jury, and there was no error Jn admitting this testimony.

Several non-expert- witnesses were called by the plaintiff below, and over objection were permitted to testify that in their judgment John Kettemann was of unsound mind. This testimony was objected to, and its admission is claimed to be error, on the ground that non-expert witnesses should not be permitted to give their opinion as to a man’s mental capacity, unless based upon facts [showing that they are competent to give an opinion that would be entitled to some weight.

The ruléis laid down in Ohio in Clark v. State, 12 Ohio, 483 [40 Am. Dec. 481], where the Supreme Court say in the syllabus: “ On the question of insanity, witnesses, other than professional men, may state their opinion, in connection with the facts on which it'is founded.” This is perhaps the leading case in Ohio on the question, which is fully discussed in the opinion. The case has always been followed.

The testimony of these witnesses discloses that they did in each case state some facts on which they based their opinion. In some cases there were more facts than others. In the case of some witnesses the facts which they stated were quite meager, but yet in each case the witness showed some acquaintance, and in most of the cases quite a long acquaintance, with John Kettemann, and testified to some peculiarity or eccentricity on which they based their opinion that he was of unsound mind, and we think that there was no error in admitting the testimony of these witnesses. Where their testimony disclosed that they had but little opportunity to observe him, and were not able to state facts that shed very much light upon his mental condition, the opinion would not be entitled to a great deal of weight with the jury. But it was a question of weight rather than competency, each witness testifying to some facts and to an acquaintance with Kettemann which, in our judgment, under the rule, entitled the plaintiff to have his opinion as a non-expert witness. I will say in passing that there were no “ experts ” called in this case on either side to testify on the question o mental capacity.

It is claimed that the court erred in ruling out the affidavit of one of the witnesses to the will; that is, the affidavit, or rather what is called the testimony of the witness to the will which was filed in writing in the probate court in the form of an affidavit, the statute providing for the admission of the will and its probate on the part of the defendants in opening the trial of a will contest. In this case, not only the order of probate was read, but the written testimony of one of the witnesses’ Valentine Braun, as it appeared in his affidavit filed in the probate court» which was short, and in the usual form, in which he makes oath that he subscribed his name as a witness at the request of the testator, and in his presence, and in the presence of Franz Holzemer, and that he saw said testator sign said instrument at the end thereof and heard him acknowledge the same to be his will, and that said John Kettemann, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint.”

A printed form was used for this affidavit. It was said in argument that the affidavit was read during the absence of counsel for the plaintiff at the trial of the case, though that does not appear in the record.

Section 5862, Rev. Stat., provides :

“ On the trial of such issue, the order of probate shall be prima acie evidence of the due attestation, execution, and validity of the will or codicil.”

Sections 5863 and 5864, Rev. Stat., provide as follows :

‘ ‘ Section 5863. A certified copy of the testimony of such of the witnesses examined upon the probate as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, shall be admitted in evidence on the trial.
“ Section 5864. The party sustaining the will shall be entitled to open and close the evidence and argument; he shall offer the will and probate, and rest; the opposite party shall then offer his evidence ; the party sustaining the will shall then offer his other evidence; and rebutting testimony may be offered as in other cases.”

Section 5864, Rev. Stat., provides that the party sustaining the will shall offer the will and probate and rest, and as we understand that statute, that means the order of probate, the judgment and decree admitting the will to probate, and does not cover the affidavits of witnesses filed; but Sec. 5863, Rev. Stat., seems to provide for the admission of the affidavits in case of the death or absence or incompetence oí the witnesses. It says a “ copy of the testimony of such of the witnesses examined upon the probate as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, shall be admitted in evidence on the trial.”

In this trial there was no evidence that either one of these witnesses was dead or incompetent or absent, and we are of the opinion that the affidavits were not proper evidence upon the trial, and there was no error in excluding the one read. There would seem to be no reason why such a piece of testimony as this should be admitted upon the contest of a will in a trial before a jury. If the witnesses were living and competent, they should have been brought into court and subjected to cross-examination like other witnesses. It is to be presumed that the probate court acted upon sufficient evidence when the will was admitted to probate, and the' judgment of that court admitting it to probate and the will itself are competent evidence; and that makes a case for the defendants until it has been overcome by the plaintiff.

• It is claimed that the court erred in refusing to charge as requested by the defendants below. Several requests were made. Some were given, but most of them refused. I will speak only of one, request No. 7, which was refused, and which is especially relied upon as error:

“ It is the right of every man, which right cannot be taken from him, to do what he desires with his own, unless the disposition he makes violates some law; and after his death, neither court nor jury have the power to make for him a disposition of his property different from the disposition which he intended to make, upon any theory that such intended disposition was unjust and wrong.”

This request was perhaps taken from the charge of a court as reported in one .of the law bulletins, or substantially so. With some qualification it would state the law correctly, but in our judgment, given in this form, it would be misleading to the jury, and is not a correct statement of the law. It begins; “It is the right of every man, which right cannot be taken from him, to do what he desires with his own, unless the disposition he makes violates some law.” That leaves out entirely the question of the mental capacity or incapacity of the testator, and the question of undue influence. It is only a person of sound mind and memory — of testamentary capacity — who is under no restraint, who can make a will, as the statute (Sec. 5914, Rev. Stat.), in substance provides. And to say to the jury that “ it is the right of every man, which cannot be taken from him, to do what he desires with his own, unless the disposition he makes violates some law,” where the two chief questions in the case were whether the testator was of unsound mind or not, and whether he was acting under undue influence at the time he made his will, would be misleading, because it leaves out entirely the question of undue influence and mental capacity. The will of John Kettemann was to be sustained if he had sufficient mental capacity to make a will when he signed it, and if he was not under undue influence of such a character as would make the will not his will, but the will of some other person.

The request, after what I read, proceeds, “ And after his death, neither court nor jury have the power to make for him a disposition of his property different from the disposition which he intended to make, upon any theory that such intended disposition was unjust and wrong.” That part of the request is probably a correct statement of an abstract proposition of law. The whole request is really an abstract proposition of law, and is not made to apply directly to the case on trial. But while the latter part is abstractly correct, still, the jury would have the right to consider in a will contest, along with all other facts and circumstances, whether the will W'as unjust or wrong, in determining' whether or not it was in fact the will of the testator. • While a man has a right to make an unjust will, or one which in the common judgment of mankind is called wrong, still, in determining the question whether the paper writing is in fact the will of the man, the jury have the right to consider whether he would, if he was sound mentally, make such a will. On the whole, we think there was no error in refusing this request; and we find no error in the refusal to give the other requests which were refused.

The principal question in the case is whether the verdict of the jury was sustained by sufficient evidence. It is contended by the plaintiffs in error that the verdict was manifestly and clearly against the weight of the evidence, and for that reason that the judgment should be set aside. It is urged by defendant in error that the question of mental capacity and undue influence in a will contest is one peculiarly for a jury, and that where there is any testimony, or any considerable amount of testimony, tending to sustain either of these propositions, a reviewing court should not set aside the judgment of the court below affirming the verdict on the ground that the verdict is against the preponderance of the evidence only. The statute (Sec. 5861, Rev. Stat.), itself is quoted, which provides that the question of the validity of the will must be submitted to a jury, and that the verdict shall be conclusive, unless a new trial be granted or the judgment be reversed or vacated. While it is true that the issue in a will contest can only be tried by a jury, in our judgment this means trial by a common law jury, as all cases that are tried to juries are tried. The court presides, and passes upon the questions of law. He instructs the jury as to the law, and the trial is conducted in all respects as any other trial. And the Supreme Court has held in Wagner v. Ziegler, 44 Ohio St. 59 [4 N. E. Rep. 705], that where there is no evidence offered by the plaintiff to overcome the testimony in favor of the will — no evidence tending to show that the paper was not the will of the testator — the judge may so instruct the jury and direct a verdict. The second paragraph of the syllabus is as follows:

‘ ‘ In the trial of the contest of a will, where the testimony introduced does not tend to prove the issue on the part of the plaintiffs showing incapacity of the decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of the plaintiff’s testimony, to direct the jury to find a verdict sustaining the will.”

The question of the respective duties of the jury and the court in a will contest are quite fully discussed in the opinion.

It is true that in will contests these questions of mental incapacity and undue influence are peculiarly questions for the jury, as many other questions are; as, for instance, questions of negligence; they are peculiarly addressed to the jury, and a jury is better able, probably, coming from all the walks of life, and familiar with the motives that actuate men in general and their conduct, to pass upon such questions than any other tribunal which could be constructed. But the statute simply provides that the verdict of the jury shall be conclusive unless a new trial is ordered or the judgment be reversed or vacated. So that we hold that a reviewing court has the power to review the testimony in a will case, and if the verdict is clearly and manifestly against the weight of the evidence, it has the power to set aside the verdict and order a new trial, as in other cases.

It is not possible, within the limits of this opinion, to review even briefly the testimony of each witness that was called in the trial below upon the question of mental capacity or undue influence.

John Kettemann, at the time he made this-will, was forty-seven years of age. He had lived in New York and came to Toledo about the beginning of the civil war, and had lived in Toledo at the time he made the will, about twenty years. He had accumulated property worth about $20,000. He was a merchant tailor, and a dealer in ready made clothing, and for a long time had a place of business on Summit street, near the Steedman monument. About the time the will was made he moved into Broadway. Prior to that time he had had his place of business in different parts of the city. He did quite an extensive business, and accumulated this property all by his own industry and frugality and shrewdness in business. At the time he made the will he had several houses and lots. At the time of his death in 1900 he had some thirteen houses and lots which he rented, collecting the rents from the tenants. It is claimed that his mind had become affected by the excessive use of intoxicating liquor, and further, that he was afflicted with epileptic fits, which affected his mind, and that his mind was so affected at the time this will was made that he was incapacitated from making a will.

Some of the witnesses called by the plaintiff testified that in their judgment he was mentally unsound about the time this will was made. Katie Metzger, the plaintiff, her husband, Conrad Metzger, and his brother, testified to that effect; and perhaps three others, including one of the name of Sass. These, when called, testified, after stating certain things upon which they based their opinion, that in their judgment he was unsound. According to their testimony he was at times in the habit of drinking or at times drank excessively, and became intoxicated ; that he was a man of excitable temperament, and sometimes became very angry and used profane language, and swore at people generally, and sometimes called his customers thieves and robbers, and rogues, especially when they attempted to beat him down in the price that he asked for his clothing ; and sometimes, not very many times, but a few times, had fallen in one of these fits, as they were called. No witness testified that it was epilepsy’.that affected'him, but the testimony shows rather that it was a heart trouble. On the other hand, some of the witnesses called by the plaintiff below testified that in their judgment Kettemann was of sound mind at and about the time the will was made.

One witness, Henry Schweibald, testifies on page 14 of the record, that ’he could not say that he was of unsound mind. Philip Hassenzahl, who was at one time county commissioner of this county, was called by the plaintiff. He testified that he had known Kettemann for thirty years, and dealt with him to a considerable extent; was often in his place of business ; and that in his judgment he was sound. John N. Hauser, who had known him for many years, testifies that in his judgment he was sound. • On page 42 of the record, another witness testifies that he was “ all right ” so far as drinking was concerned, and did not drink to excess, so far as she knew. Another witness called by the plaintiff, ffouis Wacker, testifies that he never saw him drunk. Mr. Court Brown was also called by the contestant. He testified that he sold the deceased, in the later years of his life, bonds on different occasions; that he bought them for himself and for others. On page 58 of the record, he testifies, on cross-examination, as follows:

“Q. What kind of a business man was Mr. Kettemann at that time? A. Pretty shrewd, I should think.
Q. Did he understand how to buy bonds? A. I think he did.
“ O. During all the time that you knew him he was a good, shrewd, practical business man ? A. Why, yes; I considered him a very good business man.”

I call attention to this witness as one called by the contestant when putting in her case. There were six of those called by the contestant, the substance of whose testimony was that Mr. Kettemann was of sound mind, and in fact, that he was attending to his business in the ordinary way during all those years.

The defendants below called altogether nineteen witnesses. There were some sixteen or seventeen of these who testified as to Kettemann’s mental condition and capacity, and testified that in their judgment it was sound, many of them having known him for a great many years. One of them knew him in New York when he was a poor journeyman tailor, working there by the day, before the war. He knew him when he came to Toledo about 1860, and knew him and ¿ssociated with him all the time up to bis death. So we have altogether about twenty-two or twenty-three witnesses whose testimony is that during all these years, so far as they knew him, including about the time he made this will— 1880 — and after he made the will, John Kettemann was of sound mind. On the other hand, we have the testimony of Katie Metzger, her husband and his brother, and three other witnesses who were called, making six in all, that in their judgment he was of unsound mind. So that, so tar as the witnesses considered numerically are concerned, those who testified that in their judgment John Kettemann was of sound mind by more than three times outnumbered those who testified that he was of unsound mind.

But these questions are not to be determined entirely by the number of witnesses. The jury had an opportunity to see them; but still it is a proper thing for consideration by the court, and it should be given great weight, that of all these people who were called, who had an opportunity to see him, and who talked with him, dealt with him, ate with him, and drank with him, twenty-three of them gave their judgment to the jury that he was of sound mind, and only six, three of whom may be called interested witnesses, testified that he was unsound. We should, however, consider in connection with this testimony some incidents in John Kettemann’s life and the lives of those who attack his will:

The plaintiff, Katie Metzger, lived with him after her mother’s death in 1873, and in June, 1878, she was married, and she lived with her father at his request, according to the testimony, after her marriage to Conrad Metzger. Kettemann was acquainted with Bertha, his second wife, for some time before he married her, and according to the testimony received letters from her, and the courtship was going on apparently about a year. Before he married her, which was October 23, 1879, he ordered Katie Metzger, his daughter, and her husband, out of his house for some reason. He had conceived a dislike to Katie’s husband and did not care to have them live there any longer, and, according to the testimony, he had conceived a dislike, and a very great dislike, for some reason, to Katie Metzger, his daughter. The cause of this does not very clearly appear from the record. It does appear that Katie’s marriage with Conrad was a hasty one, and, for some reason, Kettemann disliked Metzger. A child was bom in Kettemann’s house before they left. According to Conrad Metzger, the husband of Katie, Kettemann said to him about a week before he (Kettemann) married Bertha that he wanted him to get out of the house, and threatened if he did not get out he would put him out; and he testifies that Kettemann threatened to shoot him, and raised a chair to strike him, calling him opprobrious names. Conrad then asked his wife whether she intended to stay or go with him. She said that she would go with her husband. Thereupon Katie, the plaintiff in this case, left the house of her father with her husband. A week after that he married Bertha Sacke, now his widow. Soon after Katie left she procured the administrator of her mother’s estate to bring suit against her father to make him account for the property of her mother’s estate. Her father was very much grieved by this suit, and according to some of the testimony, wept that his daughter should sue him. He married Bertha within a week after the daughter left the house, and in the following spring — February, 1880— he made a settlement with his daughter Katie, the plaintiff in this case, of all matters in difference and dispute between them, and a paper writing was drawn up and signed by Katie and her husband, setting forth that settlement. It covers about a page of legal cap, and closes as follows:

“We do hereby forever release and discharge and acknowledge the full payment and satisfaction of all claims of every nature and description we or either of us have against said John Kettemann.
“ E. P. Raymond,
“Administrator of Barbara Kettemann.
“ Conrad Metzger,
“Katie Metzger.”

That is dated February 9,1880. There was in th'e paper originally, at the end of it this: “ Growing out of the administration or heir of Barbara Ketteman.” These words were erased, so that it appears that some one, presumably John Ketteman, insisted upon making this paper a full and complete release and satisfaction of all claims of every kind, without any limitation whatever. And in consideration of this settlement John Kettemann paid to Katie at that time in money or its equivalent about $2,700, and gave her notes amounting to about $1,000, out of which, however, she did not realize much, if anything. There was real estate in which he had curtesy, and which he continued to occupy during his life, and which at his death went to Katie, which was valued at about $3,000; so that she got altogether about $6,000 out of her mother’s estate. After this paper was signed, John Kettemann said he had settled with his daughter forever, and wept, and said: “Sued by my own daughter.” From the time that Katie Metzger left her father’s house in the fall of 1879, she never entered it again, or visited him, or spoke to him, not even when he was in his last sickness; and he never visited her, or spoke to her, or had any relations with her of any kind. They were the same, as the ^witnesses said, as though dead to each other. The date of this settlement is February 9, 1880, and on"March 4, following, he made the will in question, by the terms of which he gave all of his property to his wife, whom he had married the week following the departure of his daughter from his house.

That will stood as he then wrote it for more than twenty years, by the terms of which he'gave all his property to the woman who bore him two sons, who survive him, and are parties to this suit. It appears then that between John Kettemann’and his daughter there was a bitter quarrel. ■ He was undoubtedly a man of strong prejudices, of high temper or passion. He was a man of a rather miserly character. After his' death $2,000 in money was found in the bank. He was parsimonious, stingy, somewhat, with his tenants and with those who dealt with him; and to be required by this suit to pay over to his daughter $2,700 in money or its equivalent undoubtedly made a deep impression upon John Kettemann, and embittered him, to a great extent, toward his daughter. That she was embittered toward him is evidenced from the fact that she never visited him, or spoke to him after she left his house, during the twenty years that he lived. It is evident, as her conduct discloses, that in February, 1880, she regarded her father as a man of sound mind. She had this suit commenced against him shortly before that; she carried on negotiations with him through her . attorney; she signed this paper of settlement releasing her claims against him. There was nothing in her treatment of him or conduct toward him then that indicated that she regarded him as of unsound mind.

According to all the testimony, Kettemann carried on his business until the day of his death. In the latter years of his life he did not do very much business. His store became somewhat dilapidated, and his stock of goods depreciated. But from the time he made this will until his death, covering a period of twenty years, he associated socially with men in general; he bought lands and built houses, and repaired houses ; he rented them and collected the rents ; he bought bonds and sold bonds; he ran his merchant tailoring establishment; and in all those transactions there is no evidence that he ever made a bad bargain; that he ever showed any mental incapacity to cope with the men with whom he dealt; that he ever failed to collect his rent or any other debt due him; the testimony shows that he collected promptly, and complained if he was not paid promptly. During this time, occasionally he became intoxicated, and an instance is testified to by witnesses showing his excitable character, when a dog that belonged to his former wife was lost, and he complained to the police, and threatened.- to kill himself if the dog . was. not found, and perhaps- at that time flourished a pistol. He was excitable, undoubtedly and sometimes became intoxicated, although he drank but very little away from his own home, but he had beer, and some witnesses testify, sometimes whisky in his own house. Taking all this testimony together, that offered by the plaintiff and by the defendants, and considering John ELettemann’s life as testified to by his neighbors and acquaintances, down to the time of his death, we were of the opinion that the testimony shows that he had at the time this will was made, sufficient mental capacity to make a will. In fact, if the testimony of the interested witnesses should be disregarded, there is very little, if any, testimony in the record tending to show that he had not such capacity. It does not require the highest degree of mental capacity to make a will, as is said in 25 Ene. Eaw (1 ed.), 970 :

“ A ' person who, at the time of making his will has an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who have a claim upon his bounty and the manner in which it is to be distributed, has sufficient mental capacity to execute a will.”

We find no testimony in this record that shows that John Kette-mann did not understand, in 1880, the property that he had or its nature; that he did not know, and was not able to carry in his memory at that time, the persons who might be the proper objects of his bounty. And the question always is, had he sufficient capacity, not to make a, will in general, but to make the will. And we find that the will which he in fact signed, as I have said, was of the simplest character — simply giving to his wife all the property that he had. And we are unable to find in this record: — I think I would perhaps be justified in saying — any testimony, even taking the testimony of his daughter, the contestant, that establishes, if it stood alone, that John Kettemann did not havesuf ficient mental capacity to make this will in question. Taking the testimony offered by the contestant alone and her witnesses, in connection with the story of John Kettemann’s life, as disclosed by their evidence, we think the weight of it clearly is against the proposition that he had not sufficient capacity to make this will.

Upon the question of undue influence no direct testimony is offered. There is no testimony that his wife ever spoke to him in regard to this will. One witness testifies that her father said to him shortly after the marriage, that he ought to make a will so that Katie would not get anything ; but undue influence must be of such a character that the act is not the act of the testator, but the act of some other person. I cite authorities without reading : Schouler on Wills, Secs. 228, 229; also Monroe v. Barclay, 17 Ohio St. 302 [ 93 Am. Dec. 620], and all authorities there cited along that line.

The court charged the jury that they might infer undue influence from facts and circumstances. We do not think there was any error in the court’s charge on this question of undue influence. Undue influence is usually shown by proving certain facts, and the question as to whether undue influence existed or not is to be determined from the facts as proven, the will itself, and all the facts and circumstances. It-is seldom you have a witness testifj'ing directly to acts of undue influence. In determining whether there was undue influence, the facts and circumstances surrounding John Kettemann when he made this will, his feeling toward his daughter, to which I have referred, his trouble with her, the lawsuit, the settlement, his feeling of affection toward his wife, were all to be taken into consideration.

The evidence show’s that his daughter got from the estate of her mother about $6,000. John Kettemann left an estate when he died of about $15,000 to $16,000, a widow, and two children besides Katie; so that out of the common fund, the property of John Kettemann, and that of his first wife, Kettemann probably thought that Katie had really had her share of the general property of her father and mother. And taking all the things into consideration, we think the will which John Kette-mann made in March, 1880, was a natural will for him to make at that time. He had settled with his daughter; he had paid over this money to her; he knew she would have this piece of real estate; she had brought this suit against him; and it was evidently, his purpose to settle with her then and there for all time to come. And after he had done that, he made this will disposing of his property. We find nothing in the evidence to show that this will was the result of undue influence. I have gone over the testimony in this case at some length, for the reason that it is claimed these are peculiarly questions for the jury, and that their finding should not be disturbed, unless clearly and manifestly against the weight of the evidence; and we are of that opinion. But in the judgment of the court the finding of the jury is clearly and manifestly againsf the weight of the evidence. And when that appears, it is the duty of the court in a will case, as in any other case, to set aside the verdict and judgment and remand the case for a new trial. We find no other errors, but in our judgment, for the reason stated, the court of common pleas erred in overruling the motion for a new trial and the judgment will therefore be reversed.