text:
    FRAUDULENT PURJPOSE TO DEFEAT COLLECTION OF CLAIM.
    [Circuit Court of Summit County.]
    Goodyear Tire & Rubber Co. v. Rubber Tire Co.
    Decided, October, 1901.

      Attachment — Evidence Sufficient to Sustain — Where a Fraudulent Purpose is Shown in the Purchase of Goods.

    Evidence showing a fraudulent purpose on the part of a defendant corporation, in that with the intention of embarrassing the plaintiff, a large amount of goods were purchased from the plaintiff, for which payment was refused, and steps then taken to turn stock of the defendant into debenture bonds with authority in the holders to seize the company’s property upon short notice, thereby creating an indebtedness which did not exist at the time the goods were bought, is sufficient to sustain an attachment upon the property of the defendant.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
    Error to the Summit Common Pleas Court.
   The Goodyear Tire & Rubber Company sued the Consolidated Rubber Tire Company and sued out an attachment. Motion was made to dissolve the attachment and ivas granted, and error prosecuted to this court, and that branch of the ease only is here.

This attachment was sued out on the ground that this debt was contracted without any intention of paying it, and that the defendant was disposing of its property. The facts are these: There is evidence tending to show that the defendant in error was buying goods of the plaintiff, and that they called a salesman to know how much of a loss the plaintiff could stand. He told them he thought $50,000 or $75,000 would stagger them— words to that effect. The orders immediately increased to a large amount, and they did not pay them, and this suit is brought to get pay out of the defendant, and this attachment is sued out. There is other evidence tending to show that it was the purpose of the defendant, in buying these goods, to buy a very large amount (as it did), and refuse to pay for them and keep the plaintiff from obtaining the money, and put it in financial embarrassment, if not break it up. This is not the only evidence. This is one of those eases where the evidence must all be put together.

The defendant is a corporation, and it has, if I remember right, some four millions and a few hundred thousand or a few hundred dollars of common stock, and nearly the same amount of preferred stock. About this time the company got up a plan and was about to put it into execution, when this suit was brought and this attachment sued out, to turn a large amount, nearly half of that stock, into debenture bonds; and the plan, as it is in evidence in the record, shows that the persons who should hold them, who would be the stockholders, would thus be turned into creditors, so that they could pounce upon this company at any time with a very short notice whenever such and such things occurred; and those things were of such a nature that a claim cordd be set up and established at any time —established if the company and these new creditors were in league together to defeat the lawful creditors of the company, thus creating an indebtedness there that did not exist when they bought these goods. The purpose was to create an indebtedness of over three millions dollars to permit the creditors to seize the assets of the company at any time.

Now, in considering this case,'it won’t do to consider what this company did by way of buying goods and not intending to pay for them — to consider that entirely separate from the other. Was it carrying on a fraudulent purpose? It was all one purpose, we think, in this testimony — just one purpose, and the purpose consisted of, perhaps, three steps: We will buy an enormous amount of goods; we will refuse to pay; we will put ourselves into such shape that they never can collect if the plaintiff gets judgment. Now, these three steps all constitute one, as the .motive was one; the purpose was one, and by dividing it up it can be applied, or, taking it as a whole, it should be applied to see whether the company was buying without intent to pay, and whether it was making a disposition of its property to defraud this plaintiff.

Slabaugh c6 Seiberling, for plaintiff in error.

Musser & Kohler, for defendant in error.

You may take this whole plan, together with what they said as to the purpose of the company in creating this debt, and in running it along, and in ordering goods to several times the amount of business that it had been doing or was expecting to do, and thus running up a debt suddenly and as quickly as possible, and then getting itself in shape so that the plaintiff, if it recovered judgment, could not collect it, and we think this evidence was sufficient to hold this attachment, and that the court erred in dissolving the attachment.

The judgment is reversed and the case remanded for further proceeding's.


source: Caselaw Access Project

license: Public Domain

text:
    SUITABILITY OF CHOICE FOR. ADMINISTRATOR.
    [Circuit Court of Hamilton County.]
    Emma B. Sargent v. Mary Corbley et al.
    Decided, December 18, 1905.

      Discretion — Not Abused by Probate Judge, When — Waiver of Buie of Probate Court — As 'to Residence of Administrator — Suitability of Appointment as Administrator.

    1. As between parties of equal suitability and statutory riglits a-court may well choose the one possessing the confidence of and desired by the major portion of the beneficiaries of the trust.
    2. Where the appointee answers the requirements of the statute as to suitability and qualification, the fact that another court on the same showing might have made a different selection is not proof of abuse of discretion, neither doeg it furnish any ground to review such appointment.

      3. A nils of the probate court is not a principle of law, btit is of the court’s own making, and while it should he generally and impartially applied, it need not be a bar to an act which a sound exercise of the court’s discretion dictates, and a waiver of or departure from such rule is not an abuse of discretion.
    Jeuke, P. J.; Swing, J., and Gieeen, J., concur.
   This.matter came on for hearing in the Probate Court of Hamilton County, for the appointment of an administrator of Rebecca J. Griffin, deceased. It came on primarily upon the application of E. J. Hiatt and W. A. Hicks, and also on the application of Emma B. Sargent, and subsequently upon the application of Mary Corbley and William B. Sargent. After considerable controversy, the record of which is brought up by a bill of exceptions, the application of Messrs. Hiatt and Hicks was withdrawn, and the application of Emma B. Sargent rejected, and Mary B. Corbley and William B. Sargent were appointed by said court as administratrix and .administrator jointly of said estate.

Error was prosecuted to the order of the probate court in the court of common pleas, where said order was affirmed.

Error is now further prosecuted in this court to such order of appointment.

It appears from the record that1 Emma B. Sargent, Mary Corbley and William B. Sargent are all next of kin of the decedent, Rebecca J. Griffin, and on an equal footing of kinship as to their right to administer under Section 6005, Revised Statutes.

On the question of suitability of the respective applicants, it is now charged that there was a gross abuse of discretion upon the part of the court in selecting the persons appointed. As to Emma B. Sargent, so far as the record discloses, she was and is in every respect an eminently qualified and suitable person. The only ground of discrimination to be found against her in the record is the fact that the interest which she represented was quite small in comparison with the interests represented by the other applicants, and the fact that the other applicants who were largely interested in the administration of the estate, did not want her appointed,

Strieker & Johnson, for plain tiff, in error.

W. A. Hicks, contra.

The objection urged to' Mary Corbley was that she was aged and therefore unfit to perform -the duties of administratrix.

The objection urged to William B. Sargent was that he was not a resident of Hamilton county, but of Clermont county, ■and his appointment would violate one of the rules of the probate court.

The attitude of these latter parties, Mary Corbley and William B. Sargent was that they themselves did not particularly desire the appointment, but rather than- have Emma B. Sargent appointed they would stand upon the legal right given them by Section 60-05, Revised Statutes, and -ask for the ap-' pointment.

Emma B. Sargent and her counsel evidently -experienced acute feelings of disappointment in the -action of the court. It may be that another judge, on the -same showing disclosed in the record, would have acted differently; but it is better that one appointed to a place of responsibility and trust should not only have the capacity and qualifications for the performance of the duty of the trust, but should also enjoy the confidence of the beneficiaries of the trust- and of those interested therein. While this consideration is far from controlling, it is a matter .which may well be entertained by a court in the exercise of its discretion in the matter of such appointment. T-he rule of the probate court is not -a principle of law, but a rule of the court’s own making for the expedient transaction and dispatch of business in said court, and if said court, for reasons satisfactory to itself, -s-ees fit to break o-r waive such rule, it is n-ot to be charged to it as an abuse of discretion. The appointment as made is clearly within the provision of the law, and is not so unsuitable as to justify the charge of gross abus-e of discretion.

We are therefore of the opinion that the judgment of the court of common pleas should be affirmed.


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    IRREGULARITY IN SIGNING BILL OF EXCEPTIONS.
    [Circuit Court of Huron County.]
    City of Norwalk v. Jessie Jacobs.
    Decided, April Term, 1905.

      Bill of Exceptions — Not Rendered Invalid by Failure of Judge to Sign at the End, When — Telephone Pole in Street — Municipality Liable for, if a Nuisance — Whether a Nuisance is a Question for the Jury.

    1. Tire failure of the trial judge to sign a bill of exceptions at the end thereof does not render the bill invalid, where the cover which is attached to the bill shows the time it was received and other matters, and there is a statement in the bill as to the time it was received and allowed, which is signed by the judge.
    2. A municipality is liable for damages to one injured from contact with a telephone or telegraph* pole, which has been so placed in a public street as to become a nuisance or dangerous, and the municipality has knowledge thereof or in the exercise of ordinary care and prudence should know of its existence.
    3. Whether or not such a pole is dangerous to the public or a nuisance is a question for the jury, to be determined under proper instructions from the court and all the circumstances of the case.
    Haynes, J.; Parker, J., concurs.
    Error to the Huron County Common Pleas Court.
   This cause of action arose from the alleged negligence on the part of the city of Norwalk, in permitting a certain telephone pole to stand in the street, whereby the plaintiff below received injuries resulting from a horse shying at an electric car, passing over to the side of .the road and coming in contact with this electric pole, or the wheels of the buggy coming in contact with it. The accident happened at a place called Ailing’s Corners, about two miles from the court house in the eastern part of the city.

The case was tried to a jury and a verdict rendered in favor of the plaintiff below for $3,500. A bill of exceptions was taken and was sent to the judge who tried the case, but by some oversight he failed to sign it at the end of the bill of exceptions, but it was attached to the cover that has been prepared and used in connection with this bill of exceptions, and which we take it becomes a part of the papers, wherein is stated the time of receiving it and various other matters; and in the bill of exceptions, among other things, there is a statement to be made by the trial judge, which he signs, that he received, January 10, 1905, the bill of exceptions and that he allowed the same this January 12, 1905. That was.signed by the trial judge and turned over by him to the clerk of the court and was duly filed in this court.

Objection was made to this court considering the bill of exceptions at all; but we are of the opinion that is so far a part of the bill of exceptions, that'we should consider, as the signature of the trial judge, that he did sign the bill of exceptions and that he did allow it.

The bill of exceptions, however, has another difficulty, and that is, it in fact does not contain all the evidence; certain papers were offered in evidence' which were to be attached and should have been in the bill of exceptions but which were omitted; and the result of this combination of circumstances is, that in making an examination of the ease, we examined it in regard to any errors in the admission or rejection of evidence, and in the charge of the court. ¥e feel constrained to reverse this judgment..

The evidence tended to show that the street out there was in the nature of a public highway rather than a street; that it had been graveled or macadamized in some form, so that it was crowned, it is said, in the center of the street, some twelve or fourteen inches higher than the borders of the street; that although there are no gutters, still it went down to a point where there are trees and where there is a place reserved for the public to walk upon; in other words it is ground that would ordinarily be used for a sidewalk, and there is a space which is used for the growing of trees and grass for ornamentation. It is a road that is. rather away from the center of business and the testimony shows that a pole had been erected by the telephone company very near this bank, standing a little perhaps in the gutter. The exact distance that it is standing in the gutter, so-called, is in dispute, some testifying that it stands very near the edge of it, and others that it stands at some little distance. It is said that it now leans over some fourteen or fifteen inches toward the center of the road.

It is claimed that this lady, who was driving along, was her, self carrying a child and had a friend with her carrying another child, when the horse started and crowded or ran over near the outer edge of the road and the buggy hit this pole, that' the wheels either hit it, or else at was hit in the top by the pole leaning over. It is said that the top was taken off the buggy and the ladies were thrown upon the ground and this lady suffered the injury of a broken limb, and it is claimed she suffered other injuries.

The telephone company, of course, put'up the pole; the city, however, is responsible, if it was placed in a position where it would become a public nuisance and dangerous, or if it should become so afterwards, so that the city-should have knowledge of that matter, or in the exercise of ordinary and reasonable prudence should obtain knowledge of that fact.

The law on that subject, as cited by the authorities, is well stated in the ease of Denver v. Sherret, 88 Fed. Rep., 226, decided by the Circuit Court of Appeals — by a majority of the court; and the doctrine in regard to the rights of the city are laid down also very well in Elliott on Roads & Streets, Section 824. Light may also be thrown upon the subject by Cincinnati v. Fleischer, 63 Ohio St., 229, 234.

The court, in its charge to the jury, said that the pole was a nuisance and that the city was liable for its condition, which, of course would be true, if the plaintiff ran against it without contributory negligence, which is not claimed; so that it would simply leave the question to be decided against the city without anything further.

Now, we think that question was one that should have gone to the jury with proper instructions as to the rights and duties of the city with regard to the erection of that class of poles, or permitting the erection of that class of poles by a corporate company; and it should have gone to the jury upon the question of how and where it was situated, whether it iras in fact situated in a position that was really dangerous or not. I have very serious doubts myself whether that pole was in a position where it could be said to be in a dangerous condition, or to be said to be a nuisance. However, that was a question for a jury to decide; having stated the rights of the city, as well as its liabilities, there should have been a charge in regard 'to the amount of roadway which is left for persons to pass along. It is claimed that between the street and the railroad, there is a broad lawn or road there that was-ample and sufficient and that there would be no reason to suppose that any danger would arise to persons passing along even if the horse should shy.

E. G. Martin and J. B. McEnight, for plaintiff: in error. .

S. M. Young, for defendant in error.

Now, those were all questions that should have gone to the jury and that should have entered into discussion in their minds in regard to the liability; but as I have said, when they went out, all they had to say was, the court has said that this is a nuisance and the plaintiff says she ran against it, and there is no claim that she was negligent, and therefore she is entitled to recover.

Now, upon this question, there is a case cited by defendant in error, Fisher v. City of Mount Vernon, 6 Am. Neg. Rep., 356. It is a decision by the Supreme Court of New York in its appellate division, second department, in which is set forth the general lights of the city, or the liabilities of the city; and in that case, it will appear from a reading of the syllabi that the court proceeded with the view that the case was one that should be submitted to the jury; that it was a question to be left to the jury, and upon that point I think it is a decision in favor of the proposition that we have laid down in this case.

The judgment of the court of common pleas will be re-reversed, the verdict of the jury set aside and the case re-remanded for a new trial.


text:
    TENDER INTO COURT AND ITS EFFECT.
    [Circuit Court of Cuyahoga County.]
    Thomas L. Reeder v. Harris E. Mason et al.
    Decided, June, 1905.

      Tender into Court — Plaintiff’s Bight to Withdraio Tender and Proceed loith Action upon Appeal — Effect of Tender.

    1. In an action before a justice of the peace, where the defendant tenders and pays into court a sum of money less than the amount claimed by the plaintiff, and said tender is refused and judgment l, rendered for more than the amount tendered, upon appeal by the defendant plaintiff may Withdraw the money tendered and apply it on his claim, without barring his right to proceed for the balance claimed.
    2. It seems that the only effect of the tender in such case is to throw the costs upon the plaintiff, if he fail to recover more than the amount tendered.
    Winch, J.; Marvin, J., and Henry, J., concur.
   Error to the court of common pleas.

Plaintiff brought his action against the defendants before a justice of the peace, alleging in his bill of particulars- that said defendants were indebted to him in the sum =of $55.70. Thereupon defendants tendered and paid into court the sum ol $33.82, together with $2 for costs accrued to that time. Thereafter the case was heard and judgment rendered in favor of the plaintiff for the sum of $40 and his costs, $8.80.

Defendants appealed the case to the common pleas court, and after plaintiff had filed his petition therein, defendants filed an answer, setting up the tender made by them in the justice’s court, and alleging that while the case was pending in the common pleas- court plaintiff received and accepted the tender from said justice.

The case was submitted to the common pleas court upon the pleadings and that court found for the defendants, holding that plaintiff’s accepting the amount of the tender from the justice was a bar to his recovery of any further amount.

The ease is here on error to review said judgment of the common pleas court.

The tender made by the defendants was. under Section 5137, Revised Statutes of Ohio, which provides that in case of tender of the amount due into court during pendency of an action “the plaintiff shall not have judgment for more than the money so due and tendered, without costs, and shall pay the defendant his costs. ’ ’

Speaking of this tender, Judge Swan, on page 860 of his treatise (20th Ed.), says:

“The offer of money must be without any qualification or condition. ’ ’

We believe this properly states the law, and it is also the law that the acceptance of an unconditional tender does not amount to an accord and satisfaction, but the creditor may accept the amount tendered and maintain an action for the balance.

.The tender was an acknowledgment that at least its amount was due plaintiff in any event. In such case it has been held by the Supreme Court that the plaintiff is not required to return what he has received before suing for the balance. Insurance Co. v. Hull, 51 O. S., 270, 284.

There is a head note to a case decided and reported by Judge Wright on the circuit which reads as follows:

“A tender before suit, and bringing money into court, bars the right to recover the amount tendered, or costs, though the plaintiff may take the money brought into court and proceed for any amount beyond the tender, and if he recover more, get costs.” Foote v. Palmer, Wright, 336.

. While the facts in the case did not warrant such head note, we believe the learned judge therein expressed the law of this state.

In the case of McKerchner v. Curtis, 35 Mich., 478, it was held:

“Where in a suit in a justice’s court for unliquidated damages the defendant has made a tender of a sum of money on the trial, and on its being refused has paid it into court, the acceptance of this money from the justice by the plaintiff after judgment and appeal, is not a bar to recovery of a larger sum under the pending issue upon the appeal, on the basis of an accepted tender in court.”

A. W. Mayers and B. Pearce, for plaintiff in error.

II. I. Emerson, for defendant in error.

The court, however, calls attention to the fact that the case was one for unliquidated damages, as to which the statute regarding tender did not apply. That is also true in Ohio, where the statute (5137) provides for tender “in an action on a contract for the payment of money.”

But in the case of McCalley v. Oley, 103 Ala., 469, involving the foreclosure of a mortgage, the amount found due by the chancery court was paid into court, and the plaintiff after he had appealed his case to the Supreme Court withdrew from the chancery court the amount there paid in. The Supreme Court found this no bar to a recovery of a further amount which it found clearly due him.

We can see no good reason why the plaintiff should not have what the defendant pays into court and proceed with his action for the balance. If he fail to recover more than the tender the statute puts upon him the penalty of paying the costs and we apprehend that that is all it was intended to provide.

Because the judgment is contrary to law, it is reversed.


text:
    EQUITABLE QUESTIONS IN AN ACTION FOR. MONEY.
    LCircuit Court of Hamilton County.]
    Heintz et al, Receivers, v. Anthony et al.
    Decided, July 28, 1904.

      Action for Recovery of Money Judgment — Incidental Equitable Questions — Right of Trial to a Jury — Right of Appeal.

    Where the main issue is the right of the plaintiff to a money judgment, either party is entitled to a jury; and the character of the action is not changed by the fact that there are incidental equitable questions between other parties.
    Jelke, P. J.; Swing, J., and Gieeen, J., concur.
   We are of opinion that the main issues in the court below, especially that between Michie and Symmes and Edwards, and that between Michie and Symmes and Olmsted Bros., were purely issues for money only, and as to those issues either party was entitled to a jury. The judgment on these issues is the one particularly appealed from. The fact that there were other incidental equitable questions between other parties does not change the character of the action, where the principal relief sought is a money judgment. Warner v. Jaeger, 5 C. C., 16; Pratt v. Insurance Co., 5 C. C., 587; Lockland Lumber Co. v. Marsh, 16 C. C., 432.

C. W. Balcer and Miller Outcalt, for plaintiffs.

Rogers Wright, Thomas Bentham and A. C. Shattuclc, for defendants.

The appeal herein is prosecuted by Messrs. Symmes and Michie, who lost below on issues triable to a jury. The appeal should be dismissed.


text:
    CONSENT TO POSTPONEMENT OF DECISION BY MAGISTRATE.
    [Circuit Court of Licking County.]
    L. B. Tussing v. R. Walter Evans.
    Decided, October, 1905.

      Justice of the Peace — Jurisdiction of, to Reserve Case for Decision— Not Conferred by Consent, When.

    Jurisdiction can not be conferred by consent of parties upon a justice of the peace to reserve a case for decision to a later date than that authorized by statute. Thompson v. Acherman, 21 C. C., 740, not followed.
    Taggart, J.; Donahue, J., and McCarty, J., concur.
    Error to Licking County Common Pleas Court.
   This is a proceeding in error to reverse the judgment of the court of common pleas, wherein said court affirmed the judgment of a justice of the peace. In the justice’s court, Evans, the defendant in error, commenced a proceeding in attachment against the plaintiff in error herein, and the goods of the plaintiff in error were attached; plaintiff in error filed a counterclaim, and the cause went to trial. At the close of the hearing of the testimony in the case, the justice reserved his decision in the case. Plaintiff in error thereafter instituted proceedings in error in the court of common pleas. Accompanying his petition in error in said court was a transcript from the docket and journal entries of the justice of the peace.

Before the case came on for hearing in the court of common pleas, on application for diminution of the record and a more complete and correct transcript of the docket of the justice of the peace, the justice certified a new transcript, or a corrected transcript, which was filed in the common pleas court on May 12, 1905; and a brief reference to said corrected transcript may be necessary to a correct understanding of this case. I quote from this transcript:

“July 8, 1904, issued subpoena for plaintiff’s witnesses; July 11, 1904, case was copfinped "Iq Jply 1904, at 9 A, M,; July 13, 1904, 9 a. m., the parties appeared; the defendant stated that the claim of the plaintiff was correct and would go to trial on the counter-claim, and claimed the opening and closing, which was granted by the court; trial had. ’ ’

And then follows a statement of witnesses sworn and examined on behalf of the plaintiff. Continuing from the transcript :

"After the evidence and argument, the court reserved his decision until July 18, 1904, 9 a. m., which ivas done by consent and agreement of both parties to case, both plaintiff and defendant. July 18, 1904, 9 a. m., plaintiff appeared; the defendant stated that he could not be present and asked that the result of the decision be forwarded to him. The court, after the consideration of the evidence, finds the issues in favor of the plaintiff. It is therefore considered by me that the plaintiff recover of the defendant the sum of $129.24, and costs taxed herein. ’ ’

A bill of exceptions was taken in the court of common pleas on the question as to the right and authority of the justice of the peace to amend his transcript; the testimony was directed towards impeaching this amended transcript.

It is now contended that this court can not look into this testimony that was adduced on that hearing and incorporated in that bill of exceptions. With this contention of the defendant in error this court fully concurs. We think that we can only look to the transcript as certified by the justice and from that determine the rights of the parties herein; and, looking to that, it does appear bhat consent was given to the action of the justice in reserving his judgment after the time the trial was had, and longer than is permitted by the statute in that behalf.

Did this consent continue the jurisdiction of the justice, or did it have the effect of conferring jurisdiction upon the justice ? We think the matter is clearly determined by the authorities in this state, and we first refer to the case of Nicholson v. Roberts, 4 N. P., 43, wherein Judge Evans, we think, states the correct conclusions in cases of this kind:

"1. The jurisdiction of justices of the peace to enter judgments in actions tried before them, is prescribed by Section 6579, Revised Statutes, and the judgment of a justice rendered after the expiration of the time within which the rendition is expressly authorized by said section, is void for want of jurisdiction.
“2. The parties to an action before a justice of the peace can not by agreement, confer on him jurisdiction to render judgment therein after the expiration of the period within which he is authorized by said section to render it.”

We think the conclusion arrived at in this case is fully supported by McCleary v. McLain, 2 Ohio St., 368, 369; Bube v. Scheldt, 13 Ohio St., 406 and 416; State v. Ritty, 23 Ohio St., 562, and Rosebrough v. Ansley, 35 Ohio St., 107, 111.

The contention of the defendant in error that consent can confer jurisdiction, or can extend jurisdiction, is supported by an authority to which our attention is called, in Thompson v. Ackerman, 21 C. C., 740, wherein the Third Circuit Court of this state held:

“The power of adjudication of a justice of the peace is derived from the statute, and if not exercised within the time allowed by law, his jurisdiction ceases. Hence by adjourning the hearing of a motion for a new trial beyond the time limited by Section 6560, Revised Statutes, by which his authority to grant new trials is conferred, his jurisdiction on the motion is lost, unless it appears of record that the parties consented to such adjournment.”

Upon an examination of this case, we find that the question as to whether or not consent would confer jurisdiction or extend . jurisdiction beyond the limit of the statute was not a question in that case, and no authorities are cited by the court in support of its conclusion, and the question not being properly in the case, was perhaps not properly considered by it; but, whether it was or not, we think this authority is contrary to the great weight of authority on this question in Ohio, and therefore do not concur in the opinion of that court.

Holding to these views, it is the judgment of this court, that the judgment of the court of common pleas in affirming said judgment was erroneous and will be reversed, and the costs of this proceeding in error in the common pleas court and in this court are adjudged against the defendant in error; and the judgment of the justice of the peace is reversed, And now coming to render the judgment that said justice should have rendered, and said court of common pleas should have rendered, said cause is dismissed for want of jurisdiction, without prejudice to a new action. To all of which the defendant in error excepted, and exceptions of the defendant in error are noted.

Donaldson & Tussing, for plaintiff in error.

8. L. James, for defendant in error.

Cause remanded for execution.


text:
    JURISDICTION TO SETTLE ACCOUNT OF EXECUTORS.
    [Circuit Court of Hamilton County.]
    Samuel Meyers v. W. Scott Hopkins.
    Decided, December 9, 1905.

      Executors — Jurisdiction of Probate Court — To Apportion Commissions between Co-Executors.

    The probate court has jurisdiction under Section 524 to apportion the statutory commissions between two or more executors in accordance with the services performed by each, where the accounts between the estate on the one hand and the executors on the other have not been settled and determined..
    Gieeen, J.; Swing, J., and Jblke, P. J., concur.
   This case arose in the probate ■ court upon a motion by one executor to require his co-executor to pay to him one-half of the statutory commissions allowed for performing the -services of executor. Upon a hearing of the motion, the commissions apportioned were two-fifths to- the applicant and three-fifths to his co-executor, and upon appeal a like determination was had in the -common pleas court.

It is now claimed that the court li-ad no jurisdiction of the subject-matter, that the applicant was entitled to no part of the commission for the reason that he renounced all claim in favor o-f his co-executor and performed none of the services.

Section 524, Revised Statutes, provides that—

“The probate court shall have exclusive jurisdiction to direct and control the conduct and to settle the accounts of executors smd administrators, and to -order tbe distribution of estate,”

A. E. Moore, for plaintiff in error.

Potvell c0 Smiley, contra.

The accounts here referred to are manifestly those existing between the estate on the one hand, and the executors or administrators on the other, and if the court has once settled such accounts, it would probably have no jurisdiction to entertain a motion to ascertain or determine the proportionate amount of the statutory commissions due to each executor where there are two or more. This is the extent of the 'holding of the court in the case of Wicker sham’s Appeal, 64 Penn. St., at page 67, and the ease of Mount v. Slack, 39 N. J. Equity, page 230, relied upon by counsel for plaintiff in error. Indeed, the judge delivering the opinion in the former case says, at page 69:

“I will not say that the Orphans’ Court might not apportion the commissions allowed between co-executors and administrators; but (if it be not done, and one receives all, the remedy of the other is in the common-law courts on the implied assumpsit raised by the possession of the money. ’ ’

Section 6188, Revised Statutes, provides' that executors and administrators may be allowed specified commission upon the amount of the personal estate collected and accounted for by them. If one of two executors collected and accounted for none of the personal estate, and performed no other services required under the statute as such executor, it certainly will not be claimed that the court could not in such case allow all the commissions to the executor performing the services, and it seems no less reasonable for the court to apportion the commissions in accordance with the services performed by each executor respectively.

"We are of opinion, therefore, that the court not having already settled the account of the executors, had jurisdiction to entertain the motion to apportion- the statutory commissions in accordance with the service performed by each.

The evidence upon the other question- as to whether the executor malting the motion renounced all claim to statutory commissions or performed no services, is not such as to- authorize this court to interfere on the ground that the judsment is against the weight of the- testimony.

Judgment will 'be -affirmed.


text:
    INEXPERIENCED EMPLOYE DIRECTED TO PERFORM A DANGEROUS TASK.
    [Circuit Court of Sandusky County.]
    Jackson Knife & Shear Co. v. Fred C. Hathaway, Administrator.
    Decided, May 6, 1903.

      Negligence — Wrongful Death — Burden of Proof — Contributory Negligence and Affirmative Defense — Trial—Evidence—Charge of Court —Master and Servant — Verdict of $2,950 not Excessive, When.

    1. In an'action brought under Sections 6134 and 6135, Revised Statutes, for causing the death of plaintiff’s decedent by neglect or wrongful-act, the petition need not allege that the next of kin of the deceased have sustained pecuniary damage by his death.
    2. Proof of the absence of contributory negligence on the part of deceased is not essential to the right to recover for wrongful death. Contributory negligence in such a case is an affirmative defense and the burden of proving it rests on the defendant.
    3. In an action for wrongful death, where the alleged neglect consisted in a failure by the defendant, an employer, to acquaint the deceased, an employe, with the dangers incident to the work in which he was engaged, a charge requested to be given before argument, that “the duty to give instructions existed only when there were dangers of which defendant had or ought to have had knowledge, and which defendant had reason to believe the deceased did not know and would not have discovered in time to protect himself” is erroneous and misleading for not stating that defendant was bound to instruct where dangers existed of which defendant ought “by the exercise of ordinary care” to have had knowledge and which defendant had reason to believe the deceased might not have discovered nor been apprised “by the exercise of ordinary care.” °
    4. Where, in an action for wrongful death, the undisputed facts are, that the deceased, a boy of seventeen years, was killed while attempting to put a belt on a rapidly revolving wheel, the belt flying off and wrapping itself about his person; that the deceased had been employed in defendant’s shop only about three weeks; that when he entered the shop he had had no experience in the kind of work upon which he was engaged; that he was asked to do the work .which resulted in his death without any instruction or warning being given to him by the foreman or any one in authority at the shop, it is tor the jury to say 'whether the danger was so open and apparent that instructions concerning it were not necessary and whether the deceased was guilty of contributory negligence.
    5. Where deceased was at the time of his death about seventeen years of age, unusually bright, had attended high school to within .one year of graduation, when he left school to aid in the support of his family, and, though earning but about fifty cents a day, was contributing to the support of his parents and was a mere beginner at the work with a probability that his wages would be increased as time went on, a verdict of $2,950 is not excessive.
    HutJj, J.; Parker., J., and Haynes, J., concur.
   This action was brought by the defendant in error to recover damages against the Jackson Knife & Shear Company, for the death of Jesse Helmic, who was a minor and whose injuries it is claimed were due to the negligence of the defendant. And when I say defendant in this case, I mean the defendant below, and the same as to plaintiff.

The deceased was about seventeen years of age and he was at work in the shop of the defendant, and it was claimed that he was put at a piece of dangerous work without being given proper instructions by the defendant or by its foreman, as to how the work should be done, or warning as to the danger incident to doing the work. While engaged in the performance of this work, he was killed, and the action was brought by the administrator to recover damages.

The defendant denied all negligence on its part and claimed that the deceased had full knowledge of the danger of the work in which he was engaged, and that instructions were not necessary to avoid the danger; that he had been engaged in similar work prior to that time.

The facts briefly stated are these:

The deceased had been a resident of the state of Michigan, and through his brother-in-law, the administrator in this case, he came to Fremont and was employed in the defendant’s factory. He went to work in what was known as the “drop forge department,” of the factory, being at that time a boy about seventeen years of age, as has been stated. A few weeks after he entered the employment of the defendant a belt that was necessary in the running of the machinery of the factory slipped off a small wheel or pulley as it is called, which was some distance from the floor, the belt running over this small wheel and also a larger wheel lower down. He was asked by Mr. Kelly, the foreman, if he thought he could put the belt on and he said he thought he could, and he endeavored to reach it, but was unable to do so, and Mr. Kelly told him to get a stepladder so that he might get up more readily to where the difficulty was. Helmic went away for the stepladder, and while he was gone Mr. Kelly’s attention was attracted to the work of another employe, or perhaps a machine that was out of repair, and did not observe, he says, young Helmic when he returned with the stepladder. He continued to observe the machine and did not know Helmic had returned until he heard him make an outcry, and then heard his body as it struck the beams of the building.

It appears that Helmic had returned with the stepladder, and gone up on it to put the belt onto the pulley, and probably while he was putting it on, the belt after he had got it partially on it, tightened and then flew off suddenly, and caught hold of his arm and perhaps some other part of his body, at least his arm, and wrapped itself around his arm and around the shaft, and he was whirled rapidly around with the shaft, which was revolving at the rate of about three revolutions a second, his body and feet- striking the beams and injuring him so that he died a short time after he was taken down.

The plaintiff claims, as I have stated, that Helmic was inexperienced in this work, and was entitled to instructions and warning. That he did not receive any and that this was negligence on the part of the defendant.

A verdict was returned for the plaintiff for $2,950 and judgment was entered for that amount.

It is claimed by plaintiff in error that the petition does not state a cause of action and that therefore no evidence should have been admitted, and this objection was made upon the trial and exceptions properly lodged. The claim is based upon the fact that there is no allegation in the petition that the next of kin of Jesse Helmie sustained pecuniary damages by his death, that it fails to state that the parents and the next of kin of the deceased Jesse Helmie sustained any damage by reason of his death. And it is claimed that the petition is deficient in this respect and fatally defective — that such an allegation is necessary.

The action is brought under 'Sections 6134 and 6135, Revised Statutes, which authorize the bringing of an action by the personal representative of the deceased, in case of death by neglect or wrongful act, for the benefit of the wife or husband or father or mother or next of kin.

We think that this question, the question raised here, has been decided by our Supreme Court in a case in Johnston v. Bailway, 7 Ohio St., 336, where the Supreme Court say in the syllabus:

“An action may be maintained' by the administrator of a deceased person, for the benefit of the next- of kin of the deceased, though he leave no widow nor children, and though the petition does not contain a statement of special circumstances rendering the death a pecuniary injury to them. Such special circumstances can affect only the amount of the recovery.”

On page 339 of the opinion, the court say:

“A right of action is given by this statute to the personal representative of the deceased, merely as a trustee, and for the exclusive benefit of the widow and next of kin. Hence, it would seem to be clear, that in order, to the maintenance of the action, there must be a widow or next of kin, to whom the amount recovered could be distributed. And so it was held, under, a similar statute of New York, in Lucas v. Railway, 21 Barb., 247.
“But if there be persons to whom the beneficial interest in the judgment to be recovered can vest, then the only other conditions to which the right of action is subjected by the terms of the statute, are, first, that the death shall have been caused by such wrongful act, neglect, or default, as would (if death had not ensued) have entitled the party injured to maintain an action against the defendant, and recover damages in respect thereof; secondly, that the action be brought by and in the name of the personal representative of the deceased; and thirdly, that it be commenced within two years from the time of his death.
“Subject to these conditions, the statute gives a right of action; and seems to regard the widow and next of kin as sustaining, at least, a nominal pecuniary injury, in all such cases, from the wrongful act of the defendant. Quin v. Moore, 15 N. Y. (1 Smith), 342.
“Questions may arise upon the trial of this cause as to the construction of the rule of damages furnished by Section 2 of this statute; but no such questions are properly before us. The question raised by the demurrer does not relate to the amount of the recovery, but is, simply, can an action be maintained on the case stated in the petition? We think'it can.”

The Supreme Court here hold that the administrator brings this action simply as the trustee, and where the proper allegations are made under the statute, it is presumed that nominal pecuniary damages at least were sustained by the next of. kin.

This petition alleges that the deceased left a father and mother, a brother and sister, and asks damages in the sum of ten thousand dollars, and we think that is sufficient.

The petition contains this allegation:

“Plaintiff says he as administrator has sustained damages in the sum of ten thousand dollars.”

That properly construed probably would mean that he as trustee bringing this action had sustained damages, or was entitled to damages. But leaving that out, there is sufficient in the petition to state a cause of action under the statute.

The defendant made certain written requests of the court to charge, before argument, and exceptions were taken to the refusal of the court to give some of these requests.

The first one is request No. 1, which was refused. This request asked the court among other things to charge the jury that—

“The burden of establishing the absence of such contributory negligence as well as all other facts constituting the conditions upon which the statute gives this right of action is upon the plaintiff, and to entitle him to recover in this action he must satisfy you of their existence by a preponderance of the evidence.”

The request also contained this language:

“Want of ordinary care on the part of Jesse Helmic which contributed proximately to the accident complained of in this action would prevent him from recovering damages against this defendant for the resulting injury, even though this defendant was guilty of negligence in the particulars stated in the petition in this action. This in law is known as 'contributory negligence.’ The absence of contributory negligence on the part of Jesse Helmic is a necessary condition to the right of his administrator to maintain this action and recover damages against the defendant, ‘The Jackson Knife & Shear Company.’ ”

The gist of the instruction asked was, that the burden was upon the plaintiff in making out his case, to establish the fact that the deceased had not been guilty of contributory negligence.

The statute provides that the administrator may recover in such a case where the deceased might have recovered if living, and the argument is, that as the deceased could not have recovered if living in a case where he was guilty of contributory negligence, therefore the plaintiff in making out his case as a representative of the deceased must establish this as a substantive part of his case, thus carrying the rule from the usual one, that contributory negligence is a defense, unless the plaintiff’s own evidence raises the presumption of contributory negligence, and the instruction seems to be sustained by some language of Judge Burket in the opinion in Wolf v. Railway, 55 Ohio St., 517. On page 528, Judge Burket says:

“Contributory negligence of the party injured is usually a defense to an action for damages; but in actions under this section, contributory negligence is not, strictly speaking, a. defense, but prevents the liability to an action for damages from ■arising. The burden of proving that the liability has arisen, therefore, rests on the plaintiff.”

If this language of Judge Burket states the law correctly, it would appear that this instruction should have been given. An examination of the case, however, discloses the fact that it was not necessary to pass on this question discussed by Judge Burket, in deciding the case, and that the matter is not discussed nor touched upon in the syllabus of the case, which under the rule of the' Supreme Court is the .law of the case, as laid down by the court — the court, as such, not being bound by the argument and remarks of the judge who writes the opinion.

We are of the opinion that this instruction was properly refused; that probably Judge Burket used this language in discussing this case without considering fully the effect of such a rule as he apparently lays down, but in any event it is our judgment that that is not the law. We think that the rule is the same where the action is brought by the administrator in behalf of the estate or next of kin of the deceased person as it is where the action is brought by the injured person if living. No one is presumed to be negligent, but on the contrary, the presumption is, that every one exercises ordinary care until the contrary appears. The law of self-preservation and self-defense raises the presumption that every one will exercise ordinary care to look out for and care for himself, and we see no reason why this rule.should not prevail in a case of this kind the same as it would in the case of a living person.

This court once had this same question in a case in Huron county, where a similar instruction was asked, based upon these remarks of Judge Burket, and was refused by the court of common pleas, and that action of the court of common pleas was affirmed by the circuit court as then constituted. The judge now delivering this opinion was at that time the common pleas judge who tried the case, and the court adheres to its ruling in that case.

We therefore find that there was no error in the court refusing this instruction.

The court was also asked to give a request which is numbered “11” and which was refused, and this is claimed to be error. The substance of this request, it is said, was taken from National Malleable C. Co. v. Luscombe, 9 C. C., 680, an opinion of this court delivered by Judge King, and was as follows:

“The duty of the defendant, the Jackson Knife & Shear Company, to give instructions to the said- Jesse ITelmic existed only when there were dangers in his employment of which the defendant company had or ought to have had knowledge, and which the defendant company had reason to believe Jesse Helmic did not know and would not have discovered in time to protect himself from injury.
“If the said Jese Helmic knew or by the exercise of reasonable care or diligence might have known the elements' of the danger, it would be unreasonable to require the defendant company to warn him to avoid dangers which ordinary prudence ought to make him avoid without warning.”

This request asked to be given before argument, and under the statute, the court -was required to either refuse, or give it without modification. If it is defective in any respect, the court would be justified in refusing it. We think the court was justified in refusing to give this as an instruction to the jury before argument.

Such instructions go to the jury before they have been charged generally upon the case, before they have been given instructions as to the law of the case as a whole, and the law thus given to them is in a somewhat fragmentary form. Such instructions go with the jury to their room, and are there read and considered by them, and if in any respect they are misleading, or might be reasonably held to be misleading, they ought not tó be given.

We find on an examination of the circuit court case, National, Malleable C. Co. v. Luscombe, supra, this: That the language used was quoted by Judge King, from the decision of another court in the body of his opinion. It states in a general way the law upon this question, but there may be statements made in an opinion in an argumentative form that would not be proper to state to a jury as an instruction from the court, and we think that the instruction leaves out in the fore part of it the element of ordinary care which it should have contained. It says:

•“This duty existed only when there was danger in his employment, when the defendant company had or ought to have had knowledge. ’ ’

It uses the phrase to be sure, “ought to have had knowledge,” but the instruction does pof state that the defendant company had, or by the exercise of ordinary care ought to have had, knowledge of it. It leaves out the element of ordinary care entirely, and then continues, “and which the defendant company had reason to believe Jesse Iielmic did not know, and would not have discovered in time to protect himself from injury.” Again, the element’ of “ordinary care,” is omitted from the instruction. Jesse Iielmic was bound to exercise ordinary care only, and this is left out of this part of the instruction; and in the last part of the instruction is this language:

“If the said Jesse Iielmic knew, or by the exercise of reasonable care or diligence might have known, the elements of the danger, it would be unreasonable to require the defendant company to warn him to avoid dangers which ordinary prudence ought to make him avoid without warning. ’ ’

We think the expression, “It would be unreasonable to require the defendant company to warn him to. avoid dangers which ordinary prudence ought to make him avoid without warning,” was an inferential one, and an improper one to use in an instruction to the jury to be given before argument. It was an argumentative expression unnecessary to be used to state the law to the jury and it might have influenced the jury improperly; perhaps it might have been giving undue prominence to that part of the instruction. In short, we think that the request, considered altogether, might have misled the jury, and that there was no error in the court refusing to give it before argument.

A large number of requests were given before argument — I think perhaps ten — covering the claims of the defendant below very fully, and we think there was no error prejudicial to the defendant, in the court refusing this instruction.

As to the question of the facts in the case, and whether on the evidence given to the jury, the jury was warranted in finding the defendant guilty of negligence and the deceased not guilty of contributory negligence, it is undisputed that the deceased had been employed in this shop only about three weeks; that he had had no experience in that kind of work when he entered the shop ; that he was asked to do the work which re-

suited in his death, without any instruction or warning- being given to ’ him by the foreman or anyone in authority in the shop. It is true that on a former occasion he had done something of this kind for Mr. Hathaway, who was his brother-in-law, but Hathaway testified that he gave him no instruction or warning as to the danger at the time.

Under the law of this state as laid down in Rolling Mill Co. v. Corrigan, 46 Ohio St., 283, unless he had sufficient knowledge, it was the duty of the defendant under these circumstances to give proper instructions and warning to the deceased, and it was for the jury to say whether the danger was so open and apparent that such instructions were not necessary. In our judgment this was not so. The danger of putting this belt upon a rapidly revolving wheel was one that would not occur to an inexperienced boy of seventeen years, and might not occur to an adult person. The danger that the belt would fly off as this one did and wrap itself around his person and kill him almost instantly was one that probably did not occur to young Helmie, and that it was a great danger is apparent from an examination of this record, and although he was said to be a bright boy and observant, we are of the opinion it can not- be said that he was guilty of contributory negligence or that he took all the risk upon himself in doing this work.

This whole question is discussed in Rolling Mill Co. v. Corrigan, supra. It is familiar to counsel, and I will not stop to read it or quote from it. This is not a case where there was any wanton negligence on the part of the defendant. Apparently, Mr. Kelly, the foreman, did not think of the danger of requesting this boy to do this work. He says, that he turned from the work for a moment while the boy was gone, and that he did not know he had returned until he was injured, but under the law, having directed the boy to do this work, ordinary care required him to observe the manner in which he did the work, or give him proper instructions or warning. He asked the boy if he thought he could do the work, and he answered he could, and he sent him after the stepladder, and then and without any instructions the boy came back and as is natural, proceeded immediately to do the work and was killed, Uuder the law as laid down in our state, it can not be said that the jury were not warranted in finding a legal- liability existing against the defendant.

It is claimed that the damages were excessive. The verdict was $2,950. The wages he was receiving at this time were very small, about fifty cents a day, as he was a mere beginner in this kind of work, but with a probability that his wages would be increased as time went on. It is always of course more or less speculative what pecuniary value a child may be to his parents, or a brother may be to his brothers and sisters — in this case, the deceased leaving a father and mother and brother and sister. He was an unusually bright boy. He had attended the high school, within one year of graduation; his father meeting with reverses, he left the high school, in order that he might aid in the support of the family, and was contributing some to the support of his father and mother at the time of his death. We think that this verdict should not be held to be excessive.

Under the statute, the amount of damages within certain limits is committed to a great extent to the judgment and discretion of the jury. No exact rule can' be laid down. One jury differs from another, and it is not always entirely satisfactory, it is true. The law is, that only pecuniary damages to the next of kin can be recovered, but what pecuniary damage is suffered is not a matter of exact mathematical computation. The age of the deceased, the probable value of his services, his habits, the probability that he would aid and assist are all to be taken into consideration, and it is the purpose of the statute and its object that substantial damages shall be allowed to the next of kin for death by wrongful act, and in our judgment under the circumstances in this case, considering all the facts, $2,950 is not excessive. We find no prejudicial error in the record, and the judgment of the court of common pleas will therefore be affirmed.


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    SETTLEMENT WITH ONE JOINT TORT FEASOR..
    [Circuit Court of Cuyahoga County.]
    Arthur E. Gilbert v. Wilmer A. Timms.
    Decided, November 24, 1905.

      Joint Tort Feasors — Buie as to Settlement with One — No,t Abrogated, by Act for the Belief of Partners.

    1. At common law settlement with one joint tort feasor bars recovery against the others. Ellis v. Bitzer, 2 Ohio, 89, followed.
    2. This rule is not abrogated by the act of April 8, 1857 (Sections 3162 to 3166, inclusive, Revised Statutes) for the relief of partners and joint debtors.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Error to the court of common pleas.
   Plaintiff brought this action against Dr.. Wilmer A. Timms and Dr. Charles B. Parker to recover damages alleged to have been sustained by reason of malpractice in the setting of a broken arm. After filing his petition, plaintiff settled with defendant Charles B. Parker, and this fact was set up by Dr. Timms, in supplemental answer, ;as a bar to any recovery-against the latter.

Thereupon plaintiff replied, admitting the settlement with Dr. Parker, but alleging, “In making said settlement with defendant Charles B. Parker, however, the plaintiff expressly stipulated that in receiving said consideration from the said Charles B. Parker he expressly reserved all rights he may have against defendant, Wilmer A. Timms, to prosecute -the said action and recover such damages as he may be able to show have accrued to him on account of-the facts set up in the said- petition, in excess of the amount so received from defendant, Charles B. Parker.”

Upon motion of the defendant, Timms, judgment w-as rendered by the common pleas court for defendant, upon the pleadings.

To- reverse said judgment the case is here on error, and must be affirmed on authority of Ellis v. Bitzer, 2 Ohio, 89, unless the provisions of an ¡act for the relief of partners' and joint debtors, passed April 8, 1857 (54 O. L., 94), apply. Said act is now found in Sections 3162 to 3166 inclusive, of the Revised Statutes. The first four sections refer to partnerships and provide that after dissolution of a partnership one partner may compromise with the firm’s creditor, for his share of its debt, and be released from all further liability thereon, without releasing the other partners therefrom or affecting their right to call on the member who makes the 'compromise or composition for his ratable portion of such partnership debt.

The last section reads as follows:

“.Section 3166. The above provisions in reference to partners shall extend to other joint debtors, who may individually compound or compromise for their joint indebtedness, with the like effect in reference to creditors and to joint debtors of the individual so compromising, as is above provided in reference to partners.”

We are inclined to think that the Legislature, when it passed this act, was fully advised of the ruling of the Supreme Court in the case above referred to, but did not intend by said act to change the law as there announced. Had its intention been as broad as is contended for by counsel for plaintiff, language more apt for the purpose could have been used, and the reference in Section 3166 to “joint debtors of the individual so compromising,” is for the purpose of preserving to them the right of contribution, which existed in the case of joint obligors, but not in the case of joint tort feasors.

New York state has a similar statute, but the courts' of that state, wheré the rule expressed in Ellis v. Bitzen, supra, is not the law, have based their holdings upon principle and not upon the statute.

In the case of Gilbert v. Finch, 173 N. Y., 455, Judge Haight says (on page 466) :

‘ It thus appears that the decisions of this court are in accord with the English rule and m harmony with our statute in reference to joint debtors.”

Smith, Beardsley & Morgan, for plaintiff in error.

Squire, Sa/nders & Dempsey, for defendant in error.

So also, Judge Folger, in the ease of Irvine v. Milbank, 15 Abb. Pr. (N. S.), 378, suggests the non-applicability of the statute, but does not so adjudge.

We are doubtful whether the severity of the rule announced in 1825 by the Supreme Court of this state in the case referred to, should be relaxed in the case of all joint tort-feasors. The modern holding seems to make a distinction between the cases where there is no fixed legal measure of damages, as here, and those where there is a fixed legal measure, as in the case of Ellis v. Esson, 50 Wis., 138, where there was a trespass upon real estate and the carrying off of certain saw-logs.

The ground for the distinction lies in the fact that in a case where the damages are to be measured by the discretion of the jury, there is no way to determine whether the amount received from one joint wrong-doer is in full satisfaction of the whole wrong, while in a ease like the saw-log -case, where the damages are measurable under fixed rules of law, it is easy to determine whether or not the amount paid by one is full compensation and satisfaction for the injury complained -of.

This distinction also furnishes a cogent reason for denying the application of the statute to the case of joint -tort-feasors, leaving the courts free to make such distinction in a proper case.

Judgment affirmed.


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    EVIDENCE OF PARTNERSHIP.
    [Circuit Court of Hamilton County.]
    August Schardt v. Michael Stopper.
    Decided, December. 18, 1905.

      Partnership — Evidence Establishing Existence of — Verdict of Jury Manifestly Against Weight of Evidence.

    Where a plaintiff, who denies the existence of a partnership with the defendant, is met-by several witnesses who testify as to admissions by him of a partnership,1 and his name does not appear on the weekly pay-roll except in one instance, and he is unable to show any contract with the defendant whereby he was to furnish the material and money which he did furnish for the prosecution of the work, a verdict in his favor is clearly against the weight of the evidence, and should be reversed on that ground.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   The second amended petition contains three causes of action: first, for work .and labor; the second, for materials furnished; and the third, for money advanced.

The answer contains a general denial to the second andn third eausés of action, and as a defense to the first cause of action avers that on June 8th, 1902, the defendant was indebted to the plaintiff for work and labor in the sum of sixty-two ($62) dollars; that at that time plaintiff agreed with defendant to contribute that amount and his labor and become a partner in the executioñ of a contract for laying up stone for the Cincinnati Gas & Electric Company; that the defendant was to contribute a like sum.

The reply is a general denial of the partnership. The jury returned a verdict for $324, which was more than plaintiff proved, under the first cause of action, and while he offered testimony to prove that he had furnished materials set forth in the second cause of action, and the money advanced in the third cause of action, he wholly failed to prove a contract, either express or implied, upon the part of the defendant to pay fhefiefor.

Gloss & Luebbert, for plaintiff in error.

F. E. Niederhelmcm, contra.

The court thereupon reduced the amount of the verdict by the stan of seventy-five dollars, and with the consent of plaintiff rendered judgment on the verdict.

The principal question involved was whether a partnership in the particular contract existed. The only testimony concerning the making of the contract1 and its terms was that of the plaintiff and the defendant, but the defendant called six witnesses, all of whom are apparently credible and each of them testified that during the progress of the work the plaintiff admitted that he and the defendant were partners. Plaintiff denied making any such admission except to one witness, and that for the purpose of deceiving the labor union, which would not permit him.to work upon the job as an employe, not being a member of the union.

There is nothing in the record other than the plaintiff’s testimony, to show that the other five witnesses were testifying falsely, but, on the other hand, the circumstances related by them under which the admissions were made were such as .would naturally arise during the progress of the work and call forth such admissions. Moreover, although the plaintiff prepared or caused to be prepared a weekly pay-roll, his name was not included nor did he receive any money during the progress of the work, except at one timé he received the sum of forty ($40) dollars.

He also alleges and proves that he furnished material and money for the prosecution • of the work without showing a contract, either express or implied, that the defendant would pay for the same.

Both of these circumstances, together with the admissions of plaintiff, impel us to the conclusion that the jury either misunderstood the issue upon which the case was tried and the evidence in support of it or were influenced by prejudice. We do not hesitate to say, therefore, that the verdict was manifestly against the weight of the evidence, and will be reversed upon that ground, and cause remanded for a new trial.


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    PROCEEDINGS IN AID OF EXECUTION.
    [Circuit Court of Cuyahoga County.]
    Sidney S. Wilson Co. v. The Cleveland Electric Railway Company.
    Decided June 26, 1905.

      Pleadings — Action Against Debtor of Judgment Debtor — Proceedings in Aid of Execution — Sections GG80-3 and GG80-5.
    Where a creditor of a judgment debtor, because of failure to appear or refusal to answer when duly notified in the proceedings in aid of execution before a justice of the peace, has been ordered to pay money to the plaintiff, as provided in Section GGSO-3 and Section GG80-4, Revised Statutes, and said plaintiff under favor of Section GG80-5 brings his action against said creditor, the petition must set forth not only the proceedings before the justice, but also an allegation that the defendant is in fact indebted to the judgment debtor. Garlin v. Hower, 5 C. C.- — N. S., 70, overruled.
    Winch, J.; Marvin J., and Henry, J., concur.
    Error to the court of common pleas.
   Plaintiff having procured a judgment against one Phelps, brought proceedings in aid of execution before a justice of the peace, under favor of Sections 6680-1 to 5 inclusive, and caused defendant to be ordered to appear before said justice on a day ¡specified, and answer whether it was liable to said Phelps in any sum of money.

The defendant disregarded said order and neglected to appear and answer, whereupon the justice proceeded as if defendant had admitted money to be in his hands sufficient to satisfy said judgment and costs, and ordered defendant to pay the same to plaintiff to be applied according to law.

Defendant failed to comply with said order, whereupon plaintiff proceeded against it by civil action, and the case being appealed to the common pleas court, plaintiff filed a petition therein fully reciting said proceedings in aid of execution and the order therein made that defendant pay a certain sum to defendant and concluded with the averment, “by reason of the premises there is due and payable from said defendants to this plaintiff the sum of $284.91, with interest thereon from the 3d day of January, 1905,” and a prayer for judgment in said amount.

To this petition defendant demurred and the court sustained said demurrer on the ground that the petition was deficient in that it failed to allege that defendant was in fact liable in any sum of money to said Phelps, at the time it was first ordered to appear and answer with reference thereto. ,

Thereupon, plaintiff not desiring to plead further, judgment was rendered against it and -the case brought here for review.

Plaintiff contends that the order made by the justice requiring defendant to pay a certain sum of money to plaintiff is a final order, -and, standing unreversed, is conclusive between the parties to this suit. Were such the ease the petition would doubtless be sufficient.

While we have no decision of the Supreme Court upon the subject, the following appears as obiter in the opinion by Judge Price in the ease of Duffey v. Reardon, 70 O. S., 328, 333:

“As to the person, partnership or corporation cited to appear and answer in such proceeding, it appears from this section that the order of the justice of the peace is not a final order, precluding further inquiry or proceedings. The party may decline to obey the order of the justice, and in such case th.e judgment creditor may resort to a civil action against him, in which any proper defense may be set up by answer.”

The learned judge then calls attention to the similarity of the provisions of the statute regulating proceedings in aid of execution and attachment and garnishee proceedings.

Comparing Section 6680-5, which 'authorizes the action here brought, with Section 5551, which authorizes a similar action in event a garnishee refuses to answer, we see that they are so much alike that they may be said to be identical as-to the form of action provided for.

The law regarding garnishees has been construed by the Supreme Court in the case of Secor v. Witter, 39 O. S., 218, and, because of the similarity of the two statutes, we are led to the conclusion that language used by Judge Johnson on page 231 of the opinion of that case, is applicable to the ease at bar, makes clear the relation of the parties to each other, and thereby settles the question 'here raised. Says Judge Johnson:

John H. Smart, for plaintiff in error.

Squire, Sanders & Dempsey, for defendant in error.

“The -order made by the justice is not an adjudication between the plaintiff and the garnishee. It does not determine their ultimate rights. In legal effect it is oifiy an assignment of the claim from the- debtor to- the creditor in attachment. If the garnishee fails- to appear and answer, or if his answer is not satisfactory, or if he -does not comply with the order, he is liable to an action- as in other cases. In such an action he is a party entitled to his day in court, and the final determination of that action is a judgment either charging -or discharging him. * * * This statutory order simply authorizes the plaintiff in attachment to take the place of the defendant and sue in his own name, if 'the order is not complied with.”

This conception -of the relation of the parties applied to the situation here leads to the conclusion that -the plaintiff, by virtue of the order of the justice, has merely stepped into Phelps’ shoes and has the game rights, no greater and no less, to prosecute an action again-st the defendant to- recover from it the m-on-ey, if any, which .it -owes Phelps.

This conclusion arises naturally in the case of proceedings in aid of execution, by reason of the provisions in Section 6680-5, to the effect that “judgment may be rendered in favor'of the judgment creditor for what shall -appear to be. -owing the judgment -debtor by such person, partnership or corporation, not exceeding the amount of such older and costs, ’ ’ etc.

If the judgment creditor merely takes the place of the judgment debtor when he brings suit against one owing the latter, it follows- that his petition must set forth not -only the proceedings by virtue of which he has obtained an assignment of the debtor’s claims, but also a statement that the defendant was in fact indebted to the judgment debtor at the time it was first served with the order in aid of execution.

' The common pleas court having taken this view of the case, its judgment is affirmed.

So far as this ruling is in conflict with the -opinion of this court in the case of Carlin v. Hower & Highbee, 5 C. C. — N. S. 70, that ease is overruled.


text:
    WILLS EXECUTED IN ANOTHER. STATE AND NOT PROBATED IN OHIO.
    [Circuit Court of Hancock County.]
    Morris Hosler v. Leslie Haines et al, and Laura P. Barr v. Leslie Haines et al.
    Decided, June 21, 1905.

      Title — Sow Affected by a Foreign Will — Not Probated in Ohio for Forty Years — Words Conveying a Fee in Indiana — But only a Life Estate in Ohio — Rights of Remaindermen in Land — As against One Claiming by Adverse Possession — Remaindermen Can Not Postpone the Bar of the Statute, When — Original Will Lost— Certified Copy of Record of — Marginal Item Below Signature— Presumption — Will Invalid to Pass Title in Oflio.

    1. In Ohio lex rei sitae controls in the construction of a will executed in another state hy a resident thereof devising lands in Ohio.
    2. Where by a will executed in another state a testator devises land situated in Ohio to his daughter “during her natural life and at her decease to go to her lawful heirs,” although under the rule prevailing in such other state such will would have conveyed a fee simple in accordance with the rule in Shelley's case, yet under the rule prevailing in Ohio, these words created only a life estate in such Ohio lands.
    3. A will executed in Indiana by a resident of that state, devising lands in Ohio but not probated in Ohio for forty years after its execution, conveys no interest in said lands in favor of a remainderman as against the adverse claims of those who have held open and notorious possession for more than twenty-one years claiming title.
    4. Such possession is adverse notwithstanding the fact that the warranty deed under which it was originally acquired from the devisee in said will recited the fact that the grantor held title by such devise. Such recital, while said will remains unprobated in Ohio, is not such notice to the one in possession as to prevent. the statute of limitations from running in his favor.
    5. A remainderman who has full knowledge of his rights as remainderman, or who ought to have had such knowledge, and who knows or ought to .know that such rights depend upon an affirmative act on his part to be performed, can not, by standing by and refusing or failing to perform that act, postpone the time at which the statute of limitations will commence to run against him.
    6. When the original will is lost and a certified copy of the record of said will in a foreign jurisdiction is offered in evidence and it further appears that said original record contains a marginal item and that a part of said marginal item as recorded was below the signature of the testator, the presumption is that said record is a true copy and a true reproduction in form of the will as originally signed by said testator, and unless this presumption is overcome by evidence, such will is by reason of said marginal . item, invalid in Ohio to pass title to property in Ohio.
    Hurin, J.; Norris, J., and Vollrath, J., concur.
   These actions were brought by Leslie M. Haines et al, one against defendant, Morris Hosier, and the other against Laura P. Barr, to recover possession of certain lands in Washington township, Hancock county, Ohio, which defendants and their grantors have held for about forty years past. As the two cases are identical in principal and are based upon the same state of facts, they will be considered together.

It appears by the evidence that one Joshua Kelly, late of Auburn, DeKalb county, Indiana, was in his lifetime seized in fee of the land in question, consisting of eighty acres, more or less, in Washington township, this county; that by his last will and testament said Joshua Kelly devised said lands to his daughter, Elizabeth Haines, in the following terms:

“8th. I give, bequeath and devise unto my daughter, Elizabeth Haines, of Iowa, eighty (80) acres of land situate in Hancock county, Ohio, for her during her natural life and to be held by her to her separate use and in no wise controlled by her husband, and at her decease to go to her lawful heirs by whomsoever begotten. I also give Elizabeth Haines the sum of two hundred dollars in money to be by her expended and laid out in improving said eighty acres of land, and to be used by no other person and for no other purpose whatever.”

This item 8 was not written, in the body of the will, but so far, at least, as the record shows (and the original will is lost) was written transversely along the left hand margin of the paper, a portion of such transverse writing being below the signature of the will.

It appears further in evidence that in Indiana the familiar rule in Shelley’s case prevails, and that by this rule the estate so conveyed to Elizabeth Haines by this will would, if the land had been situated in Indiana, have been a fee simple. Teal v. Richardson, 66 N. E. Rep., 435.

In Ohio, the rule in Shelley’s ease no longer applies to wills, and the words used by the testator would, if the will were construed as an Ohio will, convey only a life interest to Elizabeth Haines, with remainder over to her heirs. See Section 5968, Revised Statutes.

It further appears that Joshua Kelly, the testator, died April. 16, 1862, in DeKalb county, Indiana; that on or about June 16, 1863, said will was probated at Auburn, DeKalb county, Indiana, and was not probated or recorded in Ohio until March 21, 1902, about the time of the filing of the petitions in these actions, and lacking less than one month of forty years after the death of said testator.

On or about July 1, 1864, said Elizabeth Haines and Rudy Haines, her husband, deeded said eighty-acre tract to Thomas Kelly, of Indiana, by a warranty deed, which deed contained the following words:

“It being- the premises held by grantor Elizabeth Haines in virtue of will of Joshua Kelly made on the 12th of April, 1862, and admitted to probate in the Court of Common Pleas of DeKalb County, Indiana, and recorded in Records of Wills, Volume 1, pages 112 and 113, said Joshua now being deceased in said DeKalb county, Indiana.”

Thomas Kelly and wife by warranty deed dated March 28, 1866, conveyed this land to Peter Hosier, who held open, notorious and adverse possession until April 19, 1883, when he deeded fifty acres to Morris Hosier by warranty deed, for a consideration of $2,000.

At a subsequent date the remaining thirty acres were conveyed to Laura P. Barr by the executors of Peter Hosier; and said Morris Hosier and Laura P. Barr are now in possession, claiming title.

It further appears that said Elizabeth Haines died on March 7, 1883, leaving heirs of whom the plaintiffs are the survivors and representatives.

All of the children and heirs of Elizabeth Haines were of age at the time of her death except her daughter Edna, one of the plaintiffs here,, and she became of age July 20, 1888, more than thirteen years before the commencement of these actions. Two of those heirs have since died (one in 1889 and the other in 1902) and each of these two is represented in this action by a daughter, one of whom is a minor.

On behalf of the plaintiff it is claimed:

1st. That the will of Joshua Kelly, though under Indiana law it would have conveyed to Elizabeth Haines a fee simple estate, yet, as it devised Ohio land to her, must be construed to convey only a life estate under the Ohio law; that therefore the warranty deed of Elizabeth Haines to Thomas Kelly could only convey her life estate, which has terminated by her death, and that her heirs, who inherited as remaindermen under the will of Joshua Kelly, are now the rightful owners of the land devised to her and her heirs.

2d. That, as the deed from Elizabeth Haines to Thomas Kelly expressly recited that the property conveyed was that held in virtue of the will of Joshua Kelly and admitted to probate in JJeKalb county, Indiana, such recital was notice to Thomas Kelly and his grantees of the existence and contents of said will and that all subsequent purchasers being charged with notice of that will, can not be held to be innocent purchasers without notice but are bound by such notice.

3d. That as both the plaintiffs and defendants claim under the will of Joshua Kelly, their common source of title, the defendants could not be permitted to attack the probate of that will in Ohio as that would be in effect an attack on the common source of title, and that it follows that defendants are bound by this will, and that plaintiffs’ title by virtue of it is absolutely established.

The defendants, on the other hand, deny these claims and assert that as to Ohio lands said will was void and powerless to pass title until probated in Ohio.

That said will not having been probated or recorded in Ohio prior to 1902 was of no effect and was void, because of the statute of limitations; that a void will is never notice of its contents for any purpose whatever; and that, therefore, the recital in the deed of Thomas Kelly was not notice to him or to his successors of the existence of the will; that consequently the grantees of Thomas Kelly are innocent purchasers without notice, and unaffected by said will.

These facts and claims present many nice questions of law, to only a few of which we can now refer.

As to the third and last claim of plaintiffs below, it is sufficient to say that,' while it may be conceded that defendants are estopped from denying the title of the person from whom both claim as a common source of title, an attack on the probating of the will in Ohio is not an attack on the title of Joshua Kelly. It is an attack upon the title of plaintiffs perhaps— but the title of Joshua is conceded at all stages of this action.

As we understand the claims of defendants, they concede the title of Joshua Kelly, and the only question is as to what, if finy, title was conveyed by Elizabeth Haines, who was, as plaintiffs claim, only a life tenant under the will of Joshua Kelly; or, as defendants claim, only one of the heirs of Joshua Kelly, the plaintiffs claiming not from her title, but from the title of Joshua; while the defendants claim solely through the title of Elizabeth, as one of the heirs of Joshua Kelly, repudiating any title by virtue of the will of Joshua Kelly. They never did claim under it as an Ohio will, therefore, they have a right to object to its being probated or set up as an Ohio will,, as against them.

As to the first claim of the plaintiffs: While the authorities are somewhat conflicting in various states, we are of the opinion that the weight of authority is clearly in favor of lex rei sitae as controlling in the construction of a will as to real estate in Ohio.

It is conceded, however, that under the Indiana law. the will devised to Elizabeth Haines a fee simple estate under the rule in Shelley’s case.

If, then, the will of Joshua Kelly could be regarded as an Indiana will for the purpose of conveying Ohio land as well as Indiana land, the title of defendants would be perfect, for Elizabeth ITaines would, under the' Indiana law, have taken .a fee simple estate, and by her warranty deed she forever barred her heirs from claiming any interest through her.

It is conceded also on the-other hand that, had the will been properly probated and recorded in Ohio before the rights of defendant became fixed, it would have operated to convey only a life estate to Elizabeth Haines, with remainder over to the heirs, who would have inherited as remaindermen immediately upon her decease. But it was not probated or recorded in Ohio for forty years. What effect did the delay have?

For forty years the will was treated by all parties as an Indiana will, conveying title to Ohio land as if it were Indiana land.

Under the Indiana rule, the fee vested in Elizabeth Haines immediately on the death of the testator. Therefore, there could be no remaindermen under the Indiana law, for there was no life estate to support a remainder.

Elizabeth Haines attempted to convey this fee to Thomas Kelly by warranty deed executed two years after the death of the testator. This deed undoubtedly did convey all of the title possessed by Elizabeth, whether a fee or a life estate. Her grantee and his successors have ever since held open, notorious, adverse possession.

But if this will conveyed only a life estate as to Ohio land to Elizabeth Haines, she had no power, by conveying her interest in that land, to destroy the rights of her heirs. The supposed fee of Elizabeth Haines and her grantees was subject at any time, unless prevented by the statute of limitations, to be divested of its character as a fee, and become merely a life estate, upon the probating of that will in Ohio (see Carpenter v. Denoon, 29 O. S., 379). That will could have been caused to be probated in Ohio by anyone interested. That will, construed under the Ohio law, as we think it must be construed if it is to convey Ohio lands, devised not only a life estate in Elizabeth Haines, but a remainder in fee to her heirs. That remainder vested immediately upon the death of the testator. ~ Dennis v. Mullane, 1 C. C., 399; affirmed by the Supreme Court without report, 20 B., 472.

At any time after his death, any of the remaindermen, even before the death of the life tenant, could have filed the will for probate and record, and so fixed their rights. Of the four heirs of Elizabeth who survived her, three were of age long prior to her death.

By the testimony of the only one of these three who still survives, it was common talk in the family that at the death of his mother, the children would inherit the Ohio lands through the will of their grandfather. The query arises, why did they not immediately take steps to investigate this claim and do the one thing needed to fix their title; that is, record the will in Ohio. This son Leslie was at the death of his mother in 1883, a man twenty-eight or twenty-nine years of age. His sister Sara was twenty-six or twenty-seven years old. His sister Mary was thirty-one years old.

By Leslie’s testimony, it is evident that all the heirs knew all that he knew. He said that he did investigate; that is, he went to Auburn, and employed a lawyer to look at the will and was misinformed by the lawyer as to its contents; was informed that it did not mention the heirs and so he dropped the investigation.

The will was a matter of public record, why,did he not read it himself? If his hired agent misinformed him as to the contents and he trusted his agent and stopped his investigation, must other’s rights suffer and can he be excused for his own negligence ?

But it is claimed that this makes no difference because the statute of limitations could not begin to run against the heirs until the death of their mother Elizabeth; that their estate in remainder then took effect; that consequently the twenty-one years allowed by the statute had not run against these heirs when the petition was filed.

But suppose this will had never been probated or recorded in Ohio, there would never then have been any estate in remainder. A will speaks from the death of the testator; the estate in remainder vested, if at all, at the death of the testator. The remaindermen, as we have seen, had the right at any time after the death of the testator, to canse this will to be probated in Ohio. They were charged with notice and actually had notice that others were claiming adversely to them through the deed of their mother. They knew, or ought to have known that until the will was so probated in Ohio, they had no rights enforceable in law or equity. Could they stand idly by and presuming on the questionable fact as to their being saved by a statute of- limitations, wait until the near approach of the final moment of their possible claim, until twenty-five or thirty years after they had knowledge of their rights, and until forty years after their opponents rights had accrued, and then for the first time take- the preliminary step which they had the right to take thirty years before, but had neglected to take during all those years?

Such a course involved great risk. Was it fatal?

There can be no doubt, we think, that the'right of action of the remaindermen, if they were remaindermen under the will, did not accrue until the death of the life tenant, Elizabeth Haines, March 7, 1883. Had the will been probated in Ohio they might, as remaindermen, have brought suit to enjoin waste of the estate, for their estate in remainder had vested on the death of the testator. But their right to sue for possession did not accrue until they were entitled to possession upon the tak-' ing effect of their estate in remainder, at the death of the life tenant. But this right to sue as remaindermen was contingent not only upon the death of the life tenant, but upon the probating of the will in Ohio, for until such probate was made, the will was not a will at all as to Ohio lands — there was no estate in remainder. The -right to probate that will and the power to do so existed in those heirs, as we have seen, long before the death of the life tenant — in fact, from the death of the testator. If they failed to probate this will, and to fix their right, they can not now take advantage of their own neglect. They could not by such neglect postpone the time at which the statute of limitations began to run. It began to run against them and in favor of those holding adverse possession from the time of the vesting of their estate in remainder — i. e., at the death of the testator, subject only to their rights as minors. The statutory time for the protection of their rights as minors has long since passed as to all of the heirs living at the time of the death of the life tenant. The statute having commenced to run as to these heirs, of course has continued to run as to their children and heirs, which includes all of the plaintiffs in this case. See Williams v. Presbyterian Society, 1 O. S., 478.

Having slept on their rights, rights of which their own testimony proves them to have had full knowledge, they are now estopped from claiming these rights as against those claiming title and holding adverse possession for more than twenty-one years.

Whether, therefore, the will be construed as an Indiana will or as an Ohio will the claim of plaintiff under the will is barred.

But what is the will on which they base their rights?

To convey to them any title it must be a will enforceable under the Ohio law. Is this such a will?

As stated in the outset, this clause under which plaintiff’s claim was apparently written in the margin of the will, not in the body of it. Photographs of the record of the will in DeKalb county, Indiana, were offered in evidence and disclose the appearance of the will as recorded.

The original will may or may not have been written in the .exact form in which it was copied into the record. The presumption is that the record is a true record. It is offered by the plaintiffs to sustain their claim. They are bound by it.

A part of this marginal will as far as the record shows, and that is the only evidence we have to guide us, was written below the signature of the will.

The Ohio law, Section 5116, requires that every last will and testament shall be signed at the end thereof by the party making the same.

Our Supreme Court in the recent case of Irwin v. Jacques, 71 O. S., 395, held that a will containing such marginal matter, a part of which was below the signature, was not signed at the end thereof. True in that egse the marginal portion was not numbered so as to show just where it was to be inserted, as was done in the ■ case at bar, but on the other hand, the proof was positive that the marginal, portion had been written at the request of the testator and before he signed the will, making a case much stronger for claimants than the case at bar.

In the case at bar, there was no such proof. The original will was not produced. The proof shows that the marginal portion was not only extended below the signature but that it was recorded in a different handwriting from that of the body of the will. The evidence is conflicting as to who was the real writer of the different portions of the record, but the apparent preponderence of testimony is that the marginal portion was not written by the officer having at the time authority so to do, nor by his deputy.

. The proof as to this is not, I say, convincing, but under the decision of Irwin v. Jacques it seems clear to us that this will can not be held to be a valid will under the laws of Ohio, unless we can give to the record of the will a different interpretation and greater validity than we could have given to the original will if produced. We know of no rule of law justifying such a course.

How then does it affect the case? The plaintiff’s rights depend entirely on the Ohio probate or record of an Indiana will. The will gives plaintiffs no rights as an Indiana will, but we are asked to enforce it as an Ohio will.

Under the Indiana law, it conveyed a fee simple estate, and the grantee of that fee simple estate attempted to convey the fee which she presumably supposed that she had a right to convey, and which the testator, having his will drawn, and skillfully drawn, under the laws of Indiana, with which alone he and his scrivener were presumably familiar, evidently intended to give her the right to convey.

We are asked to decree that this will is of no validity as an Indiana will, so as to declare the will void so far ts it purports to convey a fee, but to declare it valid as an Ohio will, so as to recreate a life estate under which plaintiff can claim. Before we can do this, it must first be necessary to produce a will which, if made in Ohio, would satisfy the laws of Ohio.

This, we think, has not been done. But this conclusion is not essential to the decision of this case. Whether this will was originally properly executed or not, the statute of limitations has completely barred plaintiffs’ claim.

If these conclusions are correct, it follows that the will is now void as an Ohio will, and that as to the eighty acres in Ohio, Joshua Kelly died intestate. His estate in these eighty acres then descended to his heirs generally. The record discloses that there were at least seven of his heirs mentioned in his will. One of these, Elizabeth, conveyed her interest, whatver it was, by her warranty deed.

The plaintiffs, as heirs of Joshua Kelly, are, in the absence of a will, heirs only to the portion of their mother, Elizabeth, and her interest is lost tp. them by her warranty deed as well as by the statute of limitations. The remaining six heirs of Joshua Kelly have made no claim and their rights are now barred by the statute of limitations.

The question of notice raised by the recitals of the deed from Elizabeth Plaines to Thomas Kelly becomes immaterial in view of the conclusions we have reached. It follows that the court below erred in directing a verdict for the plaintiff, that the verdict was against the weight of the evidence and should have been for defendant.

The judgment of the court below will, therefore, be reversed, and this court proceeding upon the undisputed facts to render the judgment which ought to have been rendered by the court of common pleas, the petition of the plaintiffs, Leslie M. Haines et al, is dismissed at plaintiffs’ costs, and the title of defendants, Morris Hosier and Laura P. Barr, to the real estate described in the petition will be quieted as against plaintiffs. Judgment against plaintiffs, Leslie M. Haines et al, for costs, for which execution is ¿warded and cause remanded for execution.